Federal Court of Australia

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The parties be heard as to the appropriate orders to be made in light of these reasons.

2.    Within seven (7) days the parties file short submissions of no more than two (2) pages as to the appropriate orders to be made.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons to be published of Besanko J, with which I agree. I agree with the orders proposed. I wish only to add the following.

2    In the course of oral argument, counsel for the respondent in the appeal (CWY20), sought to anchor international law and international obligations within the national interest calculus through recourse to three related considerations. The first consideration was the possible adverse consequences with respect to Australia’s reputation, international standing, and international relations resulting from the breach of its international non-refoulement obligations: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [123]–[124] (Kerr and Mortimer JJ); PKZM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 845 at [72]–[88]; BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 at [72], [132]; Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [91]; CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380 at [37].

3    The third consideration was the nature of the undertaking by the Executive government to adhere (in good faith) to the terms of a given international instrument as a solemn assurance made to the international community and to the Australian people: BFM16 [2021] FCA 312 at [150]–[154], [195], citing Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 291 where Mason CJ and Deane J said the following:

… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights ... Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.

Justice Toohey further remarked at 301:

For, by ratifying the Convention Australia has given a solemn undertaking to the world at large …

4    The first and third of these considerations are familiar in the context of the consideration of the national interest.

5    The second of the respondent’s considerations warrants some comment: that is, that the violation of an international treaty or custom is a violation of international law qua law and that such could be thought to be a matter of deep and lasting significance, irrespective of the effect on Australia’s reputation in the community of nations. Focusing on the consequences of such breach or the repudiation of a solemn undertaking was not, it was submitted, the whole point. A violation of a treaty is a violation of international law. Such is significant, regardless of whether that violation is attended by reputational consequences, and irrespective of the (important) symbolism of accession to, or ratification of, a given treaty. It is unlawful by international law. The matter arose in oral address without significant elaboration. That is not said critically of counsel. The point is one of importance. Because of that, though recognising that the Court has not had the benefit of detailed submissions, I would add the following.

6    International law is comprised of, inter alia, treaties: international conventions, whether general or particular, establishing rules expressly recognised by the contesting states, and customary law: international custom, as evidence of a general practice accepted as law: Art 38(1)(a) and (b) of the Statute of the International Court of Justice. That treaties are examples of law per se has not only been endorsed by judges and scholars such as Oppenheim, McNair, D’Amato, Mégret, Crawford and Koskenniemi, (see Oppenheim L and Roxburgh R, International Law: A Treatise (Longman, Green and Co, 3rd ed, 1920) Vol I at 3–19; Oppenheim L, ‘The Science of International Law: Its Task and Method’ (1908) 2 American Journal of International Law 313 at 313–56; McNair A, The Law of Treaties (Clarendon, 1961) at 5; D’Amato A, International Law: Process and Prospect (Transnational Publishers, 1987); Mégret F, ‘International Law as Law’ in Crawford J and Koskenniemi M, The Cambridge Companion to International Law (Cambridge University Press, 2012)); but also by Glanville Williams, Kelsen and Hart: Williams G, ‘International Law and the Controversy Concerning the Word “Law”’ (1945) 22 British Yearbook of International Law 146; Kelsen H, Law and Peace in International Relations (Harvard University Press, 1942) at 49–54; Hart HLA, The Concept of Law (Oxford University Press, 3rd ed, 2012) at 213–237.

7    Indeed, Australia has always (by its conduct, and by express statements) accepted that international law is law. So much is clear from the Memorial on Jurisdiction and Admissibility, submitted by the Government of Australia in Nuclear Tests (Australia v France) [1974] ICJ Rep 253, especially at [450] and [488]. Australia’s Manual on the Law of Armed Conflict speaks of the “dire consequences” of breaches of international law which is “binding on nations”: The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006 at [1.11]. International law now forms the foundation of enforceable norms in criminal law: see generally Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501.

8    The question therefore becomes whether knowing violations of international law bear upon considerations of the “national interest”.

9    “National interest” has been used as an evaluative touchstone in many pieces of Commonwealth legislation since 1945. In some of these Acts, the “national interest” and international obligations are related concepts: see for example, the Clean Energy Act 2011 (Cth) s 3(a) and (b); the Water Act 2007 (Cth) s 3(a) and (b); the Broadcasting Services Amendment Act 2000 (Cth) s 121FD; the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) s 3(2)(a) and (b); and the Petroleum (Submerged Lands) Act 1967 (Cth) preamble. Indeed, s 5 of the National Environment Protection Measures (Implementation) Act 1998 (Cth), defines the phrase “matter of national interest” to include “Australia’s relations with another country or Australia’s international obligations”. The term is similarly defined in the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 (Cth) Division 12A, wherein Australia’s international obligations, and relevant principles of international law or practice are mandatory considerations in determining the national interest. Section 3 of the Structural Adjustment (Loan Guarantees) Act 1974 (Cth) defines “national interest” as “the interests of the Australian community in relation to matters that are, under the Constitution, the concern of the Australian Government”.

10    Australia’s international obligations and violation thereof can thus be seen to bear directly and naturally on the conception of the “national interest”.

11    In the case of both CWY20 and QJMV, the Minister, pursuant to s 501A(2) of the Migration Act 1958 (Cth) set aside decisions of the Tribunal which had, in turn, set aside the earlier decisions of the Minister’s delegates to cancel, pursuant to s 501 of the Migration Act, the visas held by CWY20 and QJMV. At the time, to do so placed the erstwhile visa holders in the position of being removed from Australia as soon as reasonably practicable: s 198 of the Migration Act; and, if the person could not be removed to another country, being removed to the country from which the person had sought (and been given by Australia) protection: s 197C. In the then form of s 197C of the Migration Act, Parliament had commanded that Australia’s non-refoulement obligations made under treaty and international law were not to prevent removal from Australia.

12    Australia’s non-refoulement obligations can be found in Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Art 2 read with Arts 6 and 7 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) and Art 33 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967), in addition to any obligations that may exist at customary international law. There can be no doubt that the obligation of non-refoulement is a rule expressly recognised by contracting states. Article 33 of the Refugees Convention and Protocol cannot be the subject of reservation: Art 42. Non-refoulement lies at the heart of the Convention: “It embodies the humanitarian essence of the [Refugees] Convention”: Lauterpacht E and Bethlehem D, “The Scope and Context of the Principle of Non-Refoulement”: Opinion given to the United Nations High Commissioner for Refugees, 20 June 2001 at 21 [51] and [53], referred to by Kiefel J (as the Chief Justice then was) in Plaintiff M70 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at 224 [214]; see also Goodwin-Gill G, McAdam J and Dunlop E, The Refugee in International Law (Oxford University Press, 4th ed, 2021) 243–258; and Hathaway J, The Rights of Refugees Under International Law (Cambridge University Press, 2nd ed, 2021) Chapter 4.

13    Article 26 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), and the principle of pacta sunt servanda, impose upon the Australian Government an obligation to observe and perform, in good faith, those treaties to which it is a party. Failure to do so exposes the nation to responsibility for internationally wrongful acts under the Draft Articles on Responsibility of States for Internationally Wrongful Acts, commended by the General Assembly on 28 January 2002, A/RES/56/83 and on 8 January 2008, A/RES/62/61, in which case Australia may face legal consequences (Art 28), including, but not limited to: cessation and non-repetition (Art 30), reparation (Art 31) in the form of restitution (Art 35), compensation (Art 36) and satisfaction (Art 37), in addition to countermeasures (Art 49). Whether or not these legal consequences in fact arise, a breach of a treaty is a breach of international law, which is a breach of law nonetheless.

14    Thus, part of the national interest can be seen necessarily to be the question of whether a decision should be made that may lead, pursuant to the (then) command of Parliament, and depending on the circumstances, to a state of affairs where Australia would act in breach of its treaty obligations, being in this case a rule expressly recognised by Australia and other contracting states to the relevant conventions: that is, in breach of international law, and in that sense unlawfully.

15    It goes without saying that it is a matter for the Executive to determine whether it is in the national interest for a given visa to be cancelled. Within any such decision, if it be relevant, the violation of international law, qua law, is intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation. So much has been recognised in other Commonwealth legislative regimes, and so much ought to be recognised in the context of the Migration Act in respect of non-refoulement obligations.

Associate:

Dated:    9 November 2021

REASONS FOR JUDGMENT

KENNY J:

16    There are two matters before the Court. One, Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (CWY20), is on appeal from a judgment of a judge of the Court. The other, QJMV v Minister for Home Affairs, concerns two grounds of an originating application for judicial review within the Court’s original jurisdiction, which came before the Court in the manner described by Besanko J. The issues for determination in these two cases are related.

17    The Acting Minister in CWY20 appeals from a judgment that set aside, for jurisdictional error, a decision of 16 July 2020 made under s 501A(2) of the Migration Act 1958 (Cth) (the Act) concerning CWY20. That decision set aside a decision of the Administrative Appeals Tribunal (the Tribunal). The circumstances relevant at first instance and on appeal in CWY20 appear in the reasons for judgment of the primary judge and in Besanko J’s reasons for judgment on the appeal. Besanko J also describes the circumstances relevant to the determination of Grounds 5 and 5A of QJMV’s application for review of the Minister’s 7 December 2020 decision to set aside a decision of the Tribunal regarding QJMV, also made under s 501A(2) of the Act.

18    In CWY20’s case, the Acting Minister’s decision involved a refusal of CWY20’s application for a Safe Haven Enterprise (Class XE) visa. In QJMV’s case, the Minister’s decision involved a cancellation of his Resident Return (Class BB) (Subclass 155) visa. Prior to this visa, QJMV held a Protection (Class XA) (Subclass 866) visa.

19    As will be seen by now, I have had the considerable advantage of reading in draft the reasons prepared by Besanko J. I substantially agree with his Honour’s reasons; in particular, I agree as follows.

20    For the reasons set out by Besanko J (at [94]-[107]) I would reject the submission made by QJMV (and by CWY20 in his notice of contention) that once satisfied of each of the matters in s 501A(2)(c), (d) and (e) of the Act, the Minister had no discretion under s 501A(2). In other words, I would reject the submission that, once satisfied of these matters, the Minister (or Acting Minister) was required to set aside the Tribunal’s decision in each case.

21    Further, I concur with Besanko J that, in CWY20, the primary judge was correct to reject the Acting Minister’s submission that it should be inferred from his statement of reasons that he turned his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether it was in the national interest to refuse CWY20 a Safe Haven Enterprise visa. I do so for the reasons stated by Besanko J, and also by the primary judge. Substantially for the reasons stated by the primary judge and by Besanko J, I also concur with Besanko J’s conclusion that, if it were necessary to determine the issue raised by Ground 2B of the appeal, then the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of non-refoulement obligations arising under international law was immaterial to an assessment of Australia’s national interest.

22    Finally, I am of the view that, if Australia’s non-refoulement obligations is not a mandatory relevant consideration in deciding upon an exercise of power under s 501A(2) of the Act, then, for the reasons expressed by Besanko J, this does not create any relevant incongruity with a finding that a failure to consider those obligations in a particular case (as in CWY20) means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense.

23    Accordingly, I agree in the making of the orders proposed by Besanko J in his reasons.

Associate:

Dated:    9 November 2021

REASONS FOR JUDGMENT

BESANKO J:

Introduction

24    There are two proceedings before the Court. The first proceeding is an appeal by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Acting Minister) from orders made by a judge of the Court on 23 December 2020 (CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855). The second proceeding concerns two grounds in an Amended Originating application in the original jurisdiction of the Court. In the second proceeding, an order was made that the issues and questions arising in Grounds 5 and 5A of the Amended Originating application be heard separately from any other questions. The Chief Justice subsequently made a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the original jurisdiction of the Court in relation to the issues raised in Grounds 5 and 5A of the Amended Originating application be exercised by a Full Court.

25    The appeal and Grounds 5 and 5A of the application raise similar issues concerning decisions made, in the case of the appeal, by the Acting Minister and, in the case of the application, by the Minister under s 501A(2) of the Migration Act 1958 (Cth) (the Act) and the construction and application of that subsection and, in particular, the condition in s 501A(2)(e) dealing with the national interest.

The Facts in the Appeal

26    The respondent to the Acting Minister’s appeal is described as CWY20.

27    The respondent is a national of Afghanistan and he arrived at Christmas Island in July 2013. He was taken into immigration detention. On 21 August 2013, he was granted a Bridging E (Class WE) visa and released into the community.

28    In December 2013, the respondent was charged with multiple offences of a sexual nature against children and he was remanded in custody. His Bridging visa was cancelled under s 116 of the Act.

29    On 3 March 2014, the respondent was convicted on seven separate counts involving indecent assaults on young females. He was sentenced to a total term of imprisonment of 56 months, with a fixed term of 14 months imprisonment. After the respondent had served his sentence, and while he was in immigration detention, he applied for a Safe Haven Enterprise (Class XE) visa. On 20 July 2017, a delegate of the then Minister for Home Affairs refused the respondent’s application. The respondent sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 25 October 2017, the Tribunal set aside the delegate’s decision. The Minister then decided to set aside the Tribunal’s decision under s 501A(2) of the Act, but this decision was subsequently quashed following legal proceedings.

30    On 16 July 2020, the Acting Minister made another decision to set aside the Tribunal’s decision under s 501A(2) of the Act and it is this decision which was the subject of the application for judicial review considered by the primary judge.

31    The respondent was advised of the Acting Minister’s intention to consider exercising the power under s 501A(2) and in the period prior to 16 July 2020, he provided the Acting Minister with various materials and submissions. The Acting Minister’s Department provided him with a submission, a decision record and draft reasons for the purposes of assisting him in making his decision.

32    The departmental submission records the fact that in July 2016, a departmental delegate indicatively found that the respondent was a refugee on the basis of his claims with respect to his race and religion. It noted that the Department had found that the respondent was a person in respect of whom Australia had protection obligations with the country of reference being Afghanistan. That meant (so the submission stated) that to remove the respondent to Afghanistan would be in breach of Australia’s international non-refoulement obligations and that, although the respondent could be removed to a country other than Afghanistan, there was at that time no known prospect of removal to such a country. The submission states that if the Acting Minister decides to refuse to grant the respondent a Safe Haven Enterprise visa, he will, as an unlawful non-citizen, be subject to continued immigration detention under s 189 of the Act and removal from Australia under s 198 of the Act “as soon as reasonably practicable”. The submission asks the Acting Minister to note that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. The submission advises the Acting Minister that it is open to him to give considerable weight to the assessment that the respondent is a person in respect of whom Australia has international non-refoulement obligations and to the statutory consequences of a decision to refuse to grant him a Safe Haven Enterprise visa.

33    The Acting Minister made his decision on 16 July 2020. The decision is expressed as follows:

I reasonably suspect that [the respondent] does not pass the character test and [the respondent] has not satisfied me that he passes the character test and I am satisfied that it is in the national interest to refuse to grant [the respondent’s] visa. I have decided to exercise my discretion under s501A(2) of the Act. I hereby set aside the decision of the AAT dated 25 October 2017, and refuse to grant [the respondent’s] Safe Haven Enterprise (Class XE) visa. My reasons for this decision are set out in the attached Statement of Reasons.

34    In another document which accompanied the departmental submission and which was signed by the Acting Minister at the time he made his decision, he indicated that he did not require a submission with respect to and nor did he seek to discuss, should he decide to refuse the respondent’s visa (as he did), alternative management options “which encompass the grant of another visa under s 195A or a residence determination under s 197AB”.

35    I turn now to summarise the Acting Minister’s reasons.

36    After setting out a number of introductory matters relevant to the respondent’s application and addressing the conditions in s 501A(2)(c) and (d), that is, the character test which the respondent clearly failed to pass, the Acting Minister turned to consider the national interest.

37    The Acting Minister commences his consideration of the national interest by noting that the national interest is not defined for the purposes of s 501A and by noting the guidance offered by the authorities about the meaning of the concept of national interest as follows:

(1)    The national interest is a different concept to the public interest;

(2)    The decision as to what is or is not in the national interest is entrusted by the Act to the Minister to determine according to his or her own satisfaction which must be attained reasonably (Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 188 FCR 326 (Madafferi)); and

(3)    In considering the national interest under s 501A(2), the Minister may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant passes the character test and the crime or crimes may be of such seriousness as to found the satisfaction that it is in the national interest that a person’s visa be cancelled (Madafferi at [86]; Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 (Gunner); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson) at [79] per Gaudron J).

38    The Acting Minister states that he had regard to the representations made by the respondent’s representative. He then expresses the conclusion that matters of national interest include, among other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct and any disposition imposed by the Court in respect of that conduct and that matters of national interest can include a consideration of the risk of a person reoffending and the harm which could result if such a risk eventuated.

39    The Acting Minister then turned to consider the nature and seriousness of the respondent’s criminal conduct, the risk that he would reoffend and the extent of the likely harm should he do so. It is not necessary for the determination of the issues on the appeal to set out the details of the Acting Minister’s consideration of these matters. It is sufficient to note that the Acting Minister concluded that it was in the national interest to refuse to grant the respondent’s application for a visa and that there is no reference in this part of the Acting Minister’s written reasons to Australia’s international non-refoulement obligations.

40    The Acting Minister said, having found that the respondent did not pass the character test and that it was in the national interest to refuse to grant the respondent’s visa, he would then address his discretion “to refuse to grant [the respondent’s] visa, taking into account factors that I considered weighed against and in favour of refusing [the respondent’s] visa”. In that context, the Acting Minister considered the following matters: (1) his assessment of the expectations of the Australian community as to whether the respondent should hold a visa; (2) the relevance of, impact or effect of Australia’s international non-refoulement obligations; (3) the effect on the respondent’s family in Afghanistan (i.e., a spouse and five children) of a decision to refuse the respondent’s application for a visa and his continuing detention; and (4) the strength, nature and duration of the respondent’s ties to Australia.

41    The Acting Minister then set out his conclusions. He referred to “countervailing considerations” which he said included non-refoulement obligations. The Acting Minister said that he had regard to the limited length of time in which the respondent has made a contribution to the Australian community, the resulting impacts of prolonged detention and the impact of a refusal decision on the respondent’s family unit in Afghanistan.

42    The final paragraph in the Acting Minister’s reasons is as follows:

133.    I find that the above considerations favouring not setting aside the original decision and refusing to grant [the respondent’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [the respondent’s] application for a Safe Haven Enterprise (Class XE) visa under s501A(2) of the Act.

The “above considerations” in this passage of the Acting Minister’s reasons are the countervailing considerations.

43    In the course of considering Australia’s international non-refoulement obligations, the Acting Minister made the following findings: (1) on 29 July 2016, a delegate of the Department indicatively found that the respondent is a refugee on account of his claims with respect to his race and religion; (2) the delegate’s finding that the respondent is a person in respect of whom Australia has non-refoulement obligations means that his removal to Afghanistan would be in breach of Australia’s international non-refoulement obligations; (3) by reason of a combination of ss 501E and 48A of the Act and the Migration Regulations 1994 (Cth) (the Regulations) relevant to Bridging R (Class WR) visas, a decision unfavourable to the respondent will mean that he will be unable to apply for another visa; (4) the refusal of the respondent’s application for a visa has the consequences under the Act that he will become liable for removal from Australia as soon as reasonably practicable under s 198 of the Act and in the meantime, detention under s 189. Further, s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen; (5) that he has a personal non-compellable power under s 195A of the Act to grant a visa to the respondent if he considers that it is in the public interest to do so; and (6) if the respondent is removed to Afghanistan, there is a risk that he would suffer the type of harm described in his claims for protection, including death at the hands of the Taliban and other extremist groups.

44    The following matters should be noted in relation to these six findings. First, as already noted, at the same time as he made his decision, the Acting Minister indicated that he did not require a submission from his Department with respect to or wish to discuss the option of granting the respondent another visa under s 195A of the Act. Secondly, the Acting Minister said that he gave considerable weight to the risk identified in finding (6) above. Finally, the Acting Minister also addressed the effects on the respondent of his continuing detention.

The Primary Judge’s Reasons IN THE APPEAL

45    The primary judge set aside the Acting Minister’s decision on the ground that he made a jurisdictional error.

46    The primary judge said that the only issue in the case before him was whether the Acting Minister fell into reviewable error in considering the implications of Australia being in breach of its international non-refoulement obligations when he addressed his residual discretion under s 501A(2) and not earlier in his analysis, with particular reference to the pre-condition to the exercise of the power that he was satisfied that refusal to grant the visa was in the national interest (PJ at [85]).

47    The primary judge noted on more than one occasion in his reasons that the respondent’s challenge to the Acting Minister’s decision was not based on a claim by the respondent that the Acting Minister failed to take into account a mandatory relevant consideration to his assessment of the national interest, being the implications of a breach by Australia of its international non-refoulement obligations (see, for example, PJ at [92]). The basis of the respondent’s challenge to the decision was legal unreasonableness and the requirement that the decision-maker have a correct understanding of the law.

48    The primary judge said that he did not understand the Acting Minister to dispute the proposition that the formation of the state of satisfaction for the purposes of s 501A(2)(e) was subject to judicial review as to whether his reasoning was illogical, irrational or unreasonable and that he was also required to have a correct understanding of the law (PJ at [94]).

49    The primary judge said that it is not accurate to describe the condition in s 501A(2)(e) as a discretionary power, the exercise of which would attract the principles concerning reasonableness in the legal sense identified in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1. Rather, the task or exercise under s 501A(2)(e) was one of evaluation. The primary judge said that the Minister’s state of satisfaction in s 501A(2)(e) is properly described as a subjective jurisdictional fact and he referred to the statements of the grounds of judicial review in the case of subjective jurisdictional facts in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (Avon Downs) at 360 per Dixon J (as his Honour then was) and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 (SGLB) at [38] per Gummow and Hayne JJ.

50    The primary judge noted the practical difficulty of establishing legal unreasonableness in a case where the state of satisfaction required by the legislation relates to a matter of opinion or policy or taste and, in that context, he referred to the decision in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 (Buck v Bavone) at 118–119 per Gibbs J (as his Honour then was). His Honour also referred to the observations of various members of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [35] and [40] per Gummow ACJ and Kiefel J (as her Honour then was); at [120], [130] and [131] per Crennan and Bell JJ and, having reviewed those authorities, the primary judge said (PJ at [108]):

… This serves to highlight the need for appropriate judicial self-restraint in reviewing a subjective jurisdictional fact on grounds of irrationality, illogicality or the related concept of unreasonableness. There is a high threshold.

51    The primary judge rejected a submission made by the Acting Minister to the effect that s 197C of the Act was significant beyond the operation of s 198 of the Act. Section 198 of the Act deals with the removal from Australia of unlawful non-citizens by officers and s 197C(1) provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen. The primary judge said that s 197C had no significance beyond this and that the provision said nothing about Australia’s non-refoulement obligations in respect of the exercise of other powers and duties of the Act (PJ at [112]).

52    His Honour said that the decision of the High Court in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897 (Applicant S270/2019) was not determinative of the issues which arose in the proceeding (PJ at [113]). I will return to discuss this decision later in these reasons.

53    His Honour said that the authorities supported the proposition that the subjective jurisdictional fact contained in s 501A(2)(e) must not only be formed reasonably, but must also be formed on the basis of a correct understanding of the law. His Honour considered that that obligation meant that the Minister must address any relevant component of the national interest which arose squarely on the material before the Minister and that this may include representations made by the person on that subject, but it is not necessarily confined to consideration of such representations (PJ at [117]).

54    I come then to the critical aspects of the primary judge’s reasons.

55    The primary judge said that, in the particular circumstances of the case before him, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Acting Minister and the findings which the Acting Minister made. His Honour held that what he described as the “very serious consequence for Australia” of a decision by the Acting Minister to refuse to grant the respondent a visa, being that the respondent would be refouled in breach of Australia’s obligations under international law, had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). His Honour immediately went on to say that ultimately, however, it would be a matter for the Acting Minister to determine whether or not, despite putting Australia in breach of its obligations under international law, it was nevertheless in the national interest to refuse to grant the respondent a visa (PJ at [119]).

56    The primary judge said that whilst the seriousness of the respondent’s criminal conduct, the sentence he received, the risk that he would reoffend and the harm to the Australian community if such risk eventuated are all matters which could be considered by the Acting Minister in his assessment of the national interest, so are the implications of Australia breaching its non-refoulement obligations and returning a person to his country of origin where there was an accepted risk that he would be killed. His Honour referred to a number of authorities in which it had been recognised that Australia’s international reputation and standing fall within the ordinary meaning of the expression “national interest”: Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 at [45] per Kenny J; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959 at [33] per Tamberlin J; Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [91]. His Honour also referred to the observations of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh) at 291 concerning the significance to be accorded to the ratification by Australia of an international convention.

57    The primary judge said he found that, in the particular circumstances of this case, Australia’s international obligations relating to non-refoulement are an important part of the national interest for the purposes of s 501A(2) of the Act. His Honour’s use of the word “found” is not accidental. The case was not argued before him as a failure to take into account a mandatory relevant consideration and his Honour’s conclusions were clearly based on the particular circumstances of the case.

58    The primary judge considered that the structure of s 501A(2) was significant in that it highlighted the distinct and separate pre-conditions to the exercise of the Acting Minister’s power to refuse to grant a visa to a person. His Honour said the following (at [134]):

… On the proper construction of s 501A(2), and having regard to the Acting Minister’s findings that refusing the applicant a visa and returning him to his country of origin would put Australia in breach of its non-refoulement obligations and expose the applicant to the risk of being killed, the Acting Minister, acting reasonably and with a correct understanding of the law, ought to have addressed those matters at an earlier stage of the decision-making process and before he addressed his residual discretion. Having regard to Australia’s reputation in the international community and its obligations under international law, breach of Australia’s non-refoulement obligations and the ramifications thereof were relevant to the Acting Minister’s assessment of the national interest at an earlier stage of the decision-making process. …

59    The primary judge held that the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis and that the error could be described alternatively as reasoning unreasonably, or failing to act upon a correct understanding of the law (PJ at [136]).

60    The primary judge said that the stage at which the Acting Minister considered the implications of Australia acting in breach of its international non-refoulement obligations was significant. Had the Acting Minister considered Australia’s breach of its non-refoulement obligations as part of the national interest, he may have given the national interest a different weight or, in the alternative, he may have reached a different conclusion as to whether he was satisfied that the refusal was in the national interest. The Acting Minister’s misunderstanding of the concept of national interest gave rise to a possible distortion in the subsequent balancing exercise (PJ at [136]–[137]).

61    The primary judge noted that in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 at [114], the Full Court of this Court held that it was necessary for the Assistant Minister to have a correct understanding of the Act when forming the state of satisfaction required by s 501BA(2) and that that was so even if the existence or otherwise of non-refoulement obligations in respect of the applicant was not a mandatory relevant consideration.

62    Finally, the primary judge rejected the Acting Minister’s submission that the respondent had to adduce evidence to support his claim that the Acting Minister’s decision would harm Australia’s reputation in the eyes of other countries because the decision was taken in knowledge that it constituted a breach of Australia’s non-refoulement obligations. I will expand on his Honour’s reasons for rejecting this submission later in these reasons.

The Facts in the Application

63    The applicant in the proceeding is described as QJMV and the respondents are the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and the Commonwealth of Australia.

64    The following facts are taken from the documents before the Court and are not in dispute. The applicant is a citizen of Afghanistan and between July 2011 and February 2020, he lived in Australia as the holder of a permanent residence visa being first, a Protection (Class XA) (Subclass 866) visa and then a Subclass 155 Resident Return Five Year visa.

65    On 6 February 2020, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act. On 7 May 2020, the Tribunal set aside the delegate’s decision and decided not to exercise the power in s 501 of the Act to cancel the applicant’s visa.

66    The reason the applicant does not pass the character test is briefly, but for present purposes, adequately, explained by the Tribunal as follows:

In late 2015 QJMV was found guilty of two charges of ‘Indecent act with child under 16’, relating to an incident that occurred on 26 January 2015. The Court dealt with QJMV’s offending without conviction and by imposing an 18-month Community Corrections Order (“CCO”). He was subsequently convicted in April 2017 of contravening the CCO and two counts of ‘Fail to comply with reporting obligations,’ which was dealt with by way of a fine;

(Citations omitted.)

67    On 17 June 2020, the applicant was advised by the Minister’s Department that the Minister intended to consider under s 501A(2) of the Act whether to set aside the original decision of the Tribunal and to cancel the visa granted to the applicant. The solicitor for the applicant responded to the Department’s letter on 22 July 2020 and urged the Minister not to cancel the applicant’s visa.

68    The Minister was provided with a submission prepared by his Department, a decision record and a draft statement of reasons. The submission, after setting out certain background matters relating to the power in s 501A(2), addresses the character test, the national interest and other matters, including Australia’s international non-refoulement obligations. The submission contains advice to the Minister to the effect that in granting a protection visa to the applicant in 2011, the Department was satisfied that the applicant was a person in respect of whom Australia had protection obligations because he is a refugee with the country of reference being Afghanistan. The submission contains advice that to remove the applicant to Afghanistan would be in breach of Australia’s non-refoulement obligations and that even though the applicant could be removed to a country other than Afghanistan, there was currently no known prospect of removal to such a country. The submission contains advice to the Minister that the cancellation of the applicant’s visa would mean that as an unlawful non-citizen, he would be subject to immigration detention under s 189 of the Act and removal from Australia under s 198 of the Act “as soon as reasonably practicable”. It advises the Minister that s 197C of the Act provides that for the purposes of s 198, it was irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. The submission contains advice to the Minister to the effect that it was open to him to give considerable weight to the assessment that the applicant was a person in respect of whom Australia had international non-refoulement obligations and to the statutory consequences of a decision to cancel his visa. The submission also contains advice to the Minister that if he decided to cancel the applicant’s visa, it was nevertheless open to him to consider alternative management options, being a community residence determination under s 197AB of the Act or granting the applicant a different visa under s 195A of the Act.

69    The Minister made his decision on 7 December 2020. The decision is expressed as follows:

I reasonably suspect that [the applicant] does not pass the character test and [the applicant] has not satisfied me that he passes the character test, and I am satisfied that it is in the national interest to cancel [the applicant’s] Class BB Subclass 155 Resident Return Five Year visa. I have decided to exercise my discretion under s501A(2) of the Act. I hereby set aside the decision of the AAT dated 7 May 2020 and cancel [the applicant’s] Class BB Subclass 155 Resident Return Five Year visa. My reasons for this decision are set out in the attached Statement of Reasons.

70    Before turning to the Minister’s reasons, it is to be noted that, as was the case with the Acting Minister’s decision in the appeal, the Minister signed a recommendations page on the day he made his decision in which he indicated that he did not require a submission with respect to, or the opportunity to discuss, alternative management options, “such as another visa under s195A or a residence determination under s197AB”.

71    The Minister signed and dated without any amendments the draft statement of reasons that had been prepared for him by the Department. The Minister’s reasons, after addressing a number of background matters relevant to the cancellation of a visa under s 501A(2) of the Act, address the character test, the national interest and then the discretion. I say “then the discretion” because the Minister addressed the discretion after he had found that the applicant had not passed the character test and that it is in the national interest to cancel the applicant’s visa. The implications of Australia breaching its non-refoulement obligations is addressed under the heading of the “Discretion”.

72    The Minister’s reasons in the application are structured in a similar way to the Acting Minister’s reasons in the appeal.

73    The introduction is followed by a discussion of whether or not the applicant meets the character test. The Minister then considers the national interest and the directions he gives himself about the concept of the national interest are, for all intents and purposes, the same as the directions the Acting Minister gave himself in the decision which is the subject of the appeal.

74    The Minister considers the nature and seriousness of the applicant’s criminal conduct, the risk of the applicant reoffending and the extent of the likely harm should he do so. It is not necessary for me to set out the details. It is sufficient to note that the Minister concluded that it was in the national interest to cancel the applicant’s visa and that there is no reference in that part of his reasons to the implications of Australia breaching its non-refoulement obligations.

75    The Minister then describes the meaning of the discretion in exactly the same way as the Acting Minister did in the decision which is the subject of the appeal. The Minister considers the following matters in the context of the discretion: (1) the best interests of the applicant’s four minor children who, with his spouse, are resident in Afghanistan and how they might be affected by the cancellation of his visa; (2) the Minister’s assessment of the expectations of the Australian community as to whether the applicant should hold a visa; (3) the strength, nature and duration of the applicant’s ties to Australia; (4) the impact of the cancellation of the applicant’s visa on Australian business interests; (5) the impact of the cancellation of the applicant’s visa on those affected by his offending; (6) the impediments the applicant will face if he is removed from Australia and returned to Afghanistan; and (7) Australia’s international non-refoulement obligations.

76    The Minister then sets out his conclusions. He refers to “countervailing considerations” which he identifies as non-refoulement obligations, the applicant’s claims that he will suffer hardship and harm if he is returned to Afghanistan and the impact on family members and friends, the length of time the applicant has made a contribution to the Australian community and hardship to be endured by his family, in particular his wife and children and other family members, and the impediments the applicant will face upon return to his home country, noting the dangers he may face. The final paragraph in the Minister’s reasons is as follows:

107.    I find that the above considerations favouring not setting aside the original decision and cancelling [the applicant’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the original decision and cancel [the applicant’s] Class BB Subclass 155 Resident Return Five Year visa under s501A(2) of the Act.

The “above considerations” in this passage are the countervailing considerations.

77    In the course of considering Australia’s international non-refoulement obligations, the Minister made the following findings: (1) the applicant, a national of Afghanistan, was granted a protection visa under the Act in 2011 and was recognised as a person to whom Australia has protection obligations; (2) the decision that the applicant is a refugee enlivens Australia’s non-refoulement obligations and means that to remove the applicant to Afghanistan would be a breach of Australia’s international non-refoulement obligations. He could be removed to another country, but there is currently no other country to which he could be removed; (3) by reason of a combination of ss 501E and s 46A(1) of the Act and the relevant provisions of the Regulations relating to Bridging R (Class WR) visas, the applicant is precluded from applying for another visa unless the Minister determines under s 46A(2) that s 46A(1) does not apply to the applicant in which case he can apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa; (4) the statutory consequences under the Act of the cancellation of the applicant’s visa are that he will become liable for removal from Australia as soon as reasonably practicable under s 198 of the Act and in the meantime, detention under s 189. Further, s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen; (5) that he has a personal non-compellable power under s 195A of the Act to grant a visa to the applicant if he considers that it is in the public interest to do so; and (6) the applicant will face a real risk of serious and significant harm in Afghanistan on account of his race, religion, imputed political opinion and on the basis of being a returnee from a western country. As already noted, at the same time as he made his decision, the Minister indicated that he did not require a submission with respect to, or the opportunity to discuss, alternative management options, “such as another visa under s 197A or a residence determination under s 197AB”.

The Issues on the Appeal and in the Application

78    In his Notice of appeal, the Acting Minister raises five grounds of appeal. In Ground 1A, it is alleged that the primary judge erred in fact by finding that the Acting Minister deferred consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process and in failing to find that the Acting Minister considered the implication of Australia breaching its international obligations in assessing the national interest, but concluded that it was not material to his assessment of the national interest. If this ground succeeds, then Ground 2B is engaged and in that ground it is alleged that the primary judge erred in law in holding that the Acting Minister would have acted irrationally or unreasonably in determining that Australia’s non-refoulement obligations were not material to the national interest in this case.

79    In the alternative to Ground 1A, the Acting Minister alleges in Grounds 1 and 2A that the primary judge erred in law in holding that the Acting Minister erred in his understanding of the law with respect to the “national interest” in s 501A(2) of the Act (Ground 1) and that the primary judge erred in law in holding that the Acting Minister acted unreasonably by deferring his consideration of Australia’s non-refoulement obligations to the exercise of the discretion in s 501A(2) of the Act (Ground 2B).

80    In Ground 3 which is related to Grounds 1 and 2A, the Acting Minister alleges that the primary judge erred in fact or law in treating the accepted position that any breach of Australia’s non-refoulement obligations may affect Australia’s international reputation and standing as if it was a fact that it would do so in this particular case, such as to render the Minister’s consideration of the “national interest” unreasonable.

81    CWY20 has filed a Notice of contention in the appeal in which he alleges that the decision at first instance should be affirmed on grounds other than those relied on by the Court below. Those grounds are that the Minister’s purported decision dated 16 July 2020 was affected by jurisdictional error because the Minister misconstrued s 501A(2) as conferring a “residual discretion” to refuse or not to refuse the visa application. CWY20 contends that the Minister proceeded on the basis that he possessed a residual discretion to refuse or not to refuse an application for a visa if he formed the state of satisfaction that the criteria in s 501A(2)(c), (d) and (e) of the Act were satisfied and that on the proper construction of s 501A(2), the section does not confer on the Minister a residual discretion as to whether to refuse to grant a visa to a person. In other words, the submission is that once the Minister reaches the state of satisfaction as to the criteria in s 501A(2)(c), (d) and (e), then the Minister is obliged to set aside the original decision and refuse to grant a visa to that person. CWY20’s submission is that the Acting Minister did not proceed in this way and, in those circumstances, the Acting Minister has proceeded to exercise the power based on a material misconstruction or misunderstanding of s 501A(2) and his purported decision is affected by jurisdictional error.

82    In the application, the grounds which are to be heard and determined before the other grounds are Grounds 5 and 5A. Ground 5 is to the effect that the Minister asked himself the wrong question because the structure of s 501A(2) was to the effect that the Minister was granted a discretion to set aside the original decision and cancel a visa that had been granted to a person upon, and only upon, satisfaction of each of the three subjective jurisdictional facts referred to in s 501A(2)(c), (d) and (e).

83    Ground 5 of the application is as follows:

5.    The Minister’s 501A(2) decision is vitiated by error – asking the wrong question.

Particulars

(a)    The structure of s 501A(2) shows that Parliament has:

a.    granted to the Minister a discretion to:

i.    set aside the original decision; and

ii.    cancel a visa that has been granted to a person,

(chapeaux to subs (2) and par (b));

b.    upon, and only upon, each of three subjective jurisdictional facts exists (pars (c), (d) and (e)).

(b)    The Minister wrongly construed s 501A(2) as requiring, alternatively permitting, a decision where he would:

a.    first, ask himself whether he was satisfied that cancellation of the Applicant’s visa was in the national interest; and

b.    next, ask himself whether he would exercise a discretion to cancel, by supposedly taking into account factors which he considered weighed against cancelling the Applicant’s visa (in respect of which visa, he was by then already satisfied that cancellation was in the national interest), and those factors which he considered weighed in favour of cancelling.

(c)    Additionally and/or alternatively, the Minister wrongly considered that s 501A(2) either mandated him or permitted him to exclude, from consideration of par (e), compliance by Australia with its international obligations, which he would only consider, if in fact he chose to do so, as part of some kind of residual discretion, when weighing such factors he would identify as either against or in favour of cancelling the Applicant’s visa.

84    This ground raises a similar point to that raised by the Notice of contention in the appeal, with the addition perhaps of an allegation as to materiality in paragraph 5(c).

85    Ground 5A alleges that the Minister’s decision was vitiated by legal unreasonableness and a failure to have regard to a relevant consideration. The factual basis for both grounds of jurisdictional error is the Minister’s treatment of the implications of Australia breaching its non-refoulement obligations.

86    Ground 5A of the application is as follows:

5A.    The Minister’s 501A(2) decision is vitiated by one or more errors –

a.    absence of reasonableness;

b.    failure to have regard to a relevant consideration.

Particulars

(a)    By wrongly proceeding as pleaded in Ground 5, the Minister among other matters, prevented himself from considering whether Australia’s compliance with international obligations, in particular the Refugees Convention and CROC, and/or good international standing, are part of the national interest.

(b)    Additionally and/or alternatively, the Minister failed to have regard to a consideration relevant to what is in the national interest when:

a.    possible exercise of the power in s 501A(2) to cancel a person’s visa (in this case, a permanent visa) is being considered by the Minister; and

b.    Australia owes protection obligations to the person,

namely Australia’s non-refoulement obligations.

(c)    Additionally and/or alternatively, it was unreasonable for the Minister to:

a.    recognise that a decision to set aside the AAT decision and cancel the Applicant’s visa would enliven the obligation under s 198 (when read with s 197C) to have the Applicant removed from Australia which would be in breach of its international non-refoulement obligations;

b.    decide, at the same time, that he would not exercise another power available to him which would avoid the Applicant being removed from Australia to his country of origin – noting that:

c.    fail to consider Australia’s non-refoulement obligations in assessing whether it was in the national interest to set aside the AAT decision and cancel the Applicant’s visa.

87    This ground raises similar issues to those raised by Grounds 1, 2B and 3 of the appeal. There are differences between the appeal and the application in terms of the classification of the alleged jurisdictional error, but, as will be seen, those differences are not as significant as they first seem.

Is there a discretion under s 501A(2) of the Act? (the nOTICE OF cONTENTION IN THE aPPEAL AND gROUND 5 OF THE aPPLICATION)

88    Submissions in support of the argument that the Minister did not have a discretion under s 501A(2) of the Act were made by the applicant in the application. Counsel for the respondent in the appeal had not raised this argument before the primary judge, and before this Court he was content to rely on the applicant’s submissions on the application.

89    Section 501A of the Act relevantly provides:

501A    Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

…

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

…

90    The applicant submitted that the Minister must set aside the original decision and cancel a visa that has been granted to a person if each of the matters in s 501A(2)(c), (d) and (e) are satisfied and there is no discretion to refrain from setting aside the original decision and cancelling the visa. In other words, once the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest, then the Minister must set aside the original decision and cancel the visa. The applicant submitted that the Minister clearly proceeded on the basis that he had a discretion to cancel the applicant’s visa taking into account the factors that he considered weighed against and in favour of cancelling the applicant’s visa. In so doing, the Minister misunderstood the law and that constituted a jurisdictional error.

91    As I have said, the respondent in the appeal did not raise this argument before the primary judge. His Honour proceeded on the basis that there is a discretion after the matters in s 501A(2)(c), (d) and (e) have been considered. He identified (correctly in my view) the difference between the discretion under s 501A(2) and the evaluative exercise or task required by s 501(2)(e). His Honour said (PJ at [79]):

I do not consider that the Minister’s residual discretion whether or not to exercise the power of refusal or cancellation is of a similar character to the satisfaction which has to be found as to whether or not refusal or cancellation is in the national interest. The former may properly be described as a discretionary power. The latter is of a different character. In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment, as the plurality acknowledged in Graham at [57]. …

92    It is clear that the Minister, whose decision is the subject of the application, proceeded on the basis that there is a discretion under s 501A(2) of the Act. The Minister said:

Having found that [the applicant] does not pass the character test and that it is in the national interest to cancel [the applicant’s] visa, and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to cancel [the applicant’s] visa, taking into account factors that I considered weighed against and in favour of cancelling [the applicant’s] visa …

The Acting Minister used almost identical words in his reasons which are the subject of the appeal.

93    I have reached the conclusion that there is a discretion under s 501A(2) of the Act. The following matters support that conclusion.

94    First, the use of the word “may” in s 501A(2) is significant. As a matter of statutory construction, the prima facie presumption is that permissive or facultative expressions operate according to their ordinary natural meaning. In Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505, the High Court said:

In considering the correctness of this interpretation it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. “The authorities clearly indicate that it lies on those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning” – per Cussen J.: Re Gleeson. “The meaning of such words is the same, whether there is or is not a duty or obligation to use the power to which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is solved from the context, from the particular conferring the power” – per Lord Selborne: Julius v. Bishop of Oxford.

(Citations omitted.)

95    Section 33(2A) of the Acts Interpretation Act 1901 (Cth) is to similar effect as the rule or principle at common law. The section provides as follows:

Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

96    In view of the clear application of the principle at common law, it is unnecessary to consider an issue about the application of s 33(2A) to s 501A(2) of the Act identified by the Minister, namely, whether the Act was assented to after the commencement of s 33(2A).

97    Secondly and relatedly in this case, the prima facie presumption which arises as a result of the use of the word “may” is reinforced by the fact that the Parliament has used the word “must” (or shall) in Part 9 of the Act when it intends to create an obligation. Examples in the Act are ss 501(3A), 501C(3), 501C(8), 501C(9), 501CA(3), 501G(1), 498(1), 499(2A) and 499(3).

98    Thirdly, in the case of a section in broadly similar terms, and also in Part 9 of the Act, (s 501(3)), the High Court in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (Graham) at [58] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ proceeded on the basis that the section conferred a discretion, although at the same time it must be noted that the existence or otherwise of a discretion was not an issue in the case.

99    Fourthly, in his decision which is the subject of the application, the Minister considered a number of matters personal to the applicant as part of the exercise of his discretion under s 501A(2). They are personal because they relate to the applicant’s particular circumstances such as the impact on minor children, the strength, nature and duration of ties to Australia and the impediments he will face if he is removed from Australia. The Acting Minister did a similar thing in his decision which is the subject of the appeal. In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505, Kiefel and Bennett JJ, in addressing the power in s 501(2) of the Act, said the following (at [74]):

… If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

100    The point is that even if the Minister could take some of the matters personal to an applicant into account in the Minister’s consideration of the national interest, he or she would not be bound to do so and a conclusion that there is no discretion under s 501A(2) would operate to the disadvantage of a visa holder or a visa applicant. That would be a harsh consequence for those persons who may be the subject of a decision under s 501A(2) and is a reason not to read the word “may” as meaning “must” (Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 at [70] per Gaudron, Gummow and Callinan JJ).

101    As against these matters, the applicant relied on two matters in support of his submission that there was no discretion under s 501A(2).

102    First, the applicant submitted that the use of the word “may” in s 501A(2) is not significant, or not as significant as it may otherwise be, because for quite a separate reason it was not open to the legislature to use the word “must” in s 501A(2). As I understood the applicant’s argument, it is that had the legislature used the word “must” in s 501A(2), then in every case in which there is an original decision as defined in s 501A(1), the Minister would be under an obligation to consider exercising the power in s 501A(2) or s 501A(3). That argument must be rejected. That would not be the effect of using the word “must” in s 501A(2) because of the clear terms of s 501A(6) that the Minister does not have a duty to consider the exercise of the power.

103    Secondly, the applicant submitted that the Minister’s interpretation of s 501A(2) as including a discretion produces a result which is incongruous. It is incongruous, so the applicant submitted, to construe s 501A(2) such that it confers a discretion on the Minister to decide not to set aside the decision and refuse to grant a visa to the person or cancel a visa that has been granted to the person, despite having reached the conclusion that the refusal or cancellation was in the national interest. The applicant submitted that it is difficult to think that the legislature would have countenanced a situation in which the Minister declined to exercise the power in s 501A(2) despite there being no issue with respect to the character test and the Minister being satisfied that the refusal or cancellation was in the national interest.

104    The applicant submitted that such a construction would be an odd one and referred in that context to the decision of the High Court in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (Hogan). That case concerned the now repealed s 50 of the Federal Court of Australia Act which was in the following terms:

The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

105    One issue before the High Court was whether a Court exercising the power in s 50 had a discretion to refuse to make an order even though the Court had concluded, for example, that an order was necessary in order to prevent prejudice to the security of the Commonwealth. After noting that, as it appears in s 50, “necessary” is a strong word (at [30]), French CJ, Gummow, Hayne, Heydon and Kiefel JJ said (at [32]–[33]):

32    If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.

33    It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.

(Citation omitted.)

106    It seems to me that the essential point made by the plurality in Hogan is that the test of “necessary” being such a demanding one and the statutory criteria so important and, in a sense, overwhelming (i.e., to prevent prejudice to the security of the Commonwealth), the proper inference as to the intention of the legislature is that once the test and statutory criterion have been satisfied, an order must be made.

107    No doubt the concept of the national interest is important and a conclusion that a particular state of affairs is not in the national interest is a weighty consideration. However, it is not of the same order as necessary to prevent prejudice to the security of the Commonwealth. Critically, it is not difficult to see that considerations personal to a visa holder, or applicant for a visa, may be relevant to the exercise of the power in s 501A(2) of the Act. To the extent this point has weight, it is insufficient to outweigh the matter which favours the existence of a discretion and which were referred to earlier.

108    In my opinion, there is a discretion under s 501A(2) of the Act and Ground 5 of the applicant’s application for judicial review and the Notice of contention must be dismissed.

109    Before leaving this issue in the appeal and the application, I refer to two arguments raised in connection with it, but which do not, in my opinion, assist in its resolution.

110    First, the Minister submitted that the construction of s 501A(2) was supported by what is referred to as the re-enactment presumption.

111    In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 (Gbojueh), Bromberg J considered the terms of s 501A(2) and an argument by the applicant in that case that the Minister should have undertaken a one-stage process under s 501A(2) by considering the question of national interest together with the exercise of the residual discretion and that by adopting a two-stage process, once the Minister determined that cancellation was in the national interest, the exercise of the discretion could only result in cancellation of a visa. Bromberg J rejected this argument and said (at [14]):

The drafting of s 501A(2) utilises a well recognised format, requiring the satisfaction of prerequisite conditions (set out in ss 501A(2)(c), (d) and (e)) before the residual discretion is enlivened. One of the preconditions to the exercise of the discretion is the Minister’s satisfaction that the cancellation of a visa is in the national interest. The availability of the Minister’s discretionary power to set aside the original decision and to refuse to grant a visa or cancel a visa that has already been granted, is only enlivened when the Minister is satisfied of each of the preconditions to the exercise of the power. The question whether the discretion should be exercised does not arise until the Minister is satisfied that each of the preconditions are met, including that cancellation would be in the national interest. Decision-making in accordance with the structure of the section requires the Minister to consider the national interest precondition before considering the exercise of the residual discretion. A two step process is necessarily required of the Minister.

112    The Minister submitted that the re-enactment presumption operated with respect to that construction of s 501A(2) because following the decision in Gbojueh, Parliament inserted s 501BA using the same “well recognised format” described in Gbojueh. He referred to well-known decisions with respect to the re-enactment presumption of R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 at 388; Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [63]; and Brisbane City Council v Amos [2019] HCA 27; (2019) 266 CLR 593 at [24] per Kiefel CJ and Edelman J; at [45] per Gageler J; at [48]–[49] per Keane J; and at [55]–[56] per Nettle J.

113    The re-enactment presumption was recently considered by the High Court in Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 95 ALJR 741. Kiefel CJ, Keane and Gleeson JJ said (at [10]):

In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees this Court said that there is abundant authority “for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them]’”. The Court stated the proposition in short form, no doubt because its application was so clear in that case. In a case to which it referred, Barras v Aberdeen Steam Trawling and Fishing Co, this principle of statutory construction was said to apply where a word of doubtful meaning has received a clear judicial interpretation and the subsequent statute incorporates the same word or phrase in a similar context.

(Citations omitted.)

Importantly, their Honours went on to say the following (at [12]):

It is the duty of appellate courts, and this Court in particular, to correct error. It would seem to follow that the terms of the re-enactment, the circumstances surrounding it, or the context in which it is made must be such that the adoption by the legislature of the meaning assigned by the courts to the statutory term in question is tolerably clear. There have been cases, such as Alcan and Electrolux Home Products Pty Ltd v Australian Workers Union, where the courts have been able to conclude that there has been a clear case of legislative adoption.

(Citations omitted.)

114    The argument in this case seems to be that the use by the legislature of a similar format in s 501BA of the Act constitutes legislative endorsement of the construction of s 501A(2) by Bromberg J in Gbojueh. I have difficulty seeing how this is so. The Court was not referred to any statements or information in the extrinsic material at the time s 501BA was introduced which might suggest that the legislature was in any way addressing the issue. Furthermore, with respect, it is not clear to me what Bromberg J had in mind when he referred to “a well recognised format” and, in particular, whether he was referring to the structure of the subsection only or that matter and the words used in the subsection. If the latter, the reasoning may not go much further than the application of the prima facie presumption arising from the use of the word “may”. If the former, the structure by itself would seem to me to be a somewhat doubtful basis for a conclusion that there was a discretion having regard to the discussion in Hogan and the fact that a different criterion in a provision such as s 501A(2)(e) may have been sufficient to justify a conclusion that the legislature did not intend to confer a discretion.

115    Secondly, the Minister sought to meet an argument that he anticipated the applicant was putting that this Court should follow the decision of Steward J in Ozer v Minister for Home Affairs [2019] FCA 104 (Ozer) at [43]. The applicant did not expressly disclaim reliance on that case, but rather said in his written outline that he would not enter into the debate about the effect of decisions of this Court at first instance. In Ozer, Steward J was required to consider the proper construction of s 501BA(2) and, relying on the decision of the Full Court of this Court in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 (Viane), his Honour said that there was no residual discretion and no two-step process under s 501BA(2).

116    In Viane, Colvin J (with whom Reeves and Rangiah JJ agreed) said of s 501CA(4) (at [73]–[74]):

73    Finally, if the Minister is satisfied that there is a reason why the cancellation decision should be revoked then, given the way in which s 501CA(4)(b) is expressed, the Minister must revoke. As the failure to meet the character test will be the only reason why a person’s visa will be revoked under s 501(3A), it would be strange if the Minister was satisfied for the purposes of s 501CA(4)(b)(i) that the person passed the character test, yet there remained a discretion whether to revoke. Such a construction would mean that the power to revoke could be withheld even though the Minister was satisfied that the basis on which the visa had been cancelled was not actually satisfied. Equally, it would be strange if the Minister found that there was another reason for the purposes of s 501CA(4)(b)(ii) why the original decision should be revoked, but nevertheless retained a discretion to refrain from revoking the cancellation of the visa.

74    Therefore, the opening words to s 501CA(4) are in all likelihood an example of those cases where ‘may’ means ‘must’: Marzano at [31]; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135, 138-139 and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38]. If there remains a discretion once the Minister is satisfied as to one of the matters in s 501CA(4)(b) it would be a very narrow one that, in most circumstances, could not be reasonably exercised by refusing to revoke the original decision to cancel the visa.

There is no reason to doubt the correctness of this aspect of Viane having regard to the particular terms of s 501CA(4). With respect to Steward J in Ozer, it is not obvious to me that Viane dictates the same result in the case of s 501BA(2) of the Act. In any event, s 501BA(2) is not the section in issue before this Court and neither Viane nor Ozer bear on the proper construction of s 501A(2).

At what Stage in the Decision-making process did the ACTING Minister consider Australia’s Non-Refoulement obligations? (Grounds 1A and 2B of the appeal)

117    In the appeal, the primary judge said that he rejected the Acting Minister’s contention in his supplementary submissions that it should be inferred from the Acting Minister’s statement of reasons that he did turn his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether or not it was in the national interest to refuse the visa, but concluded that it was not material to his assessment of that particular subject. His Honour said that there was nothing in the statement of reasons which supported such an inference (PJ at [135]). The primary judge went on to say that, in any event, the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of its international obligations was immaterial to his assessment of Australia’s national interest. These two conclusions are challenged in the grounds of appeal, the first in Ground 1A and the second in Ground 2B. The essence of the Acting Minister’s argument seems to be that the primary judge ought not to have found that the Acting Minister did not consider the significance of Australia’s non-refoulement obligations in his assessment of the national interest, albeit he concluded that they were not material to his assessment of that issue.

118    Earlier in his reasons, the primary judge explained his reasons for reaching the conclusions he did (at [25]–[26]):

25    The Acting Minister provided a detailed statement of reasons in support of his decision. The structure of the statement of reasons leaves no room to doubt that the Acting Minister proceeded on the basis that Australia’s non-refoulement obligations were only relevant to the question whether he should exercise his residual discretion to refuse to grant the visa. The statement of reasons indicates that the Acting Minister (correctly) viewed his decision-making task under s 501A(2) as involving several separate and distinct stages, including separate stages relating to good character, national interest and his residual discretion.

26    It is evident from that part of the Acting Minister’s reasons relating to his assessment of the national interest that he gave no consideration in that assessment to the fact that he accepted that, in the applicant’s circumstances:

(a)    Australia owed international non-refoulement obligations;

(b)    refusal of the visa meant that the applicant would be removed to his country of origin in breach of those obligations; and

(c)    there was a risk that the applicant would be killed if he returned to his country of origin.

119    The Acting Minister submitted that the primary judge’s conclusion is a finding of fact. It was based on inferences from documents which are available to this Court and, therefore, it is a finding in relation to which the primary judge enjoyed no particular advantage. Those propositions are correct.

120    The Acting Minister submitted that the primary judge’s error was in treating the statement of reasons as though it represented a “series of siloed decisions” about each of the statutory integers from which it was legitimate to infer that, because non-refoulement obligations were dealt with in the later section dealing with the discretion, they were not considered in the earlier section dealing with the national interest.

121    The Acting Minister referred to the reasons of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165. The issue in that case concerned the process whereby the Refugee Review Tribunal concluded that the applicant for a protection visa had lied. Gleeson CJ (McHugh and Gummow JJ, and Callinan J agreeing) decided that it was not irrational for the Refugee Review Tribunal to decide that the applicant for review had lied without first weighing the alleged corroborative evidence. The Chief Justice said that the complaint before the Court was that the Refugee Review Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant for review and did not properly assess the significance of the evidence of the corroborating witnesses. The Chief Justice rejected that complaint and said (at [14]):

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of a witness who was said to corroborate him.

122    The Acting Minister submitted that he was provided with the departmental submission and the respondent’s submissions and the draft reasons. Those documents canvass the topic of Australia’s non-refoulement obligations and the liability of the respondent to be removed to Afghanistan if the visa is refused and the consequences for him of that happening. The Acting Minister invites this Court to infer that he read the whole submission and the draft reasons before making his decision on any of the statutory integers and that this method of approach is consistent with what he described as the compendious formulation of the refusal outcome ultimately selected by him and described above (at [33]). The Acting Minister accepts that the departmental submission is organised in such a way as to suggest that Australia’s non-refoulement obligations could and should be dealt with as an aspect of the discretion. However, it should also be accepted that he read the whole submission before making his decision and it follows from that that he understood the issues concerning Australia’s non-refoulement obligations before he formed a concluded view about the national interest. The proper inference, therefore, is that the Minister considered those issues, but decided to place no weight upon them in his assessment of the national interest.

123    In the alternative, the Acting Minister submitted that if the correct conclusion is that he proceeded in a “siloed” fashion making a decision on each integer as he went, any such decision on the national interest had no legal effect of itself and could not conceivably have been regarded by him as final or unable to be revisited. If, when he came to consider the discretion, he thought that Australia’s non-refoulement obligations affected the national interest, he could have revisited that aspect of his decision. In short, it could not be concluded that the Acting Minister did not consider Australia’s non-refoulement obligations when considering the national interest, although his decision was that he placed no weight upon them.

124    The Acting Minister submitted that his obligation to provide reasons for his decision does not support a contrary conclusion. Section 501G(1) of the Act provides that if a decision is made under s 501A(2) (among others), to refuse to grant a visa to a person or to cancel a visa that has been granted to a person or not to revoke a decision to cancel a visa that has been granted to a person, the Minister must give the person a written notice that sets out the decision, specifies the provision under which the decision was made and sets out the effect of that provision and the reasons (other than non-disclosable information) for the decision. Section 25D of the Acts Interpretation Act provides as follows:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

The Acting Minister submitted that these sections did not require him to set out, in the context of his consideration of the national interest, Australia’s non-refoulement obligations bearing in mind that he considered them, but decided to give them no weight.

125    The Acting Minister urged this Court to take a similar approach to that taken by the Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao). In that case, the Full Court considered it unnecessary to determine all of the issues raised by the judicial review applicants as to the correct construction of the “national interest” and whether it encompassed the best interests of the child. The Court considered that the ground failed on the facts of both cases. The Court accepted the Minister’s submission that it is a matter for the Minister to decide, on the merits of any particular case, what national interest factors are engaged in the case. The Court said that there was no obligation on the Minister in determining whether or not to exercise his power under s 501(3) to advert to all and every possible consideration which may inform an assessment of the national interest in the particular case. It followed that the absence of any reference in the Minister’s statement of reasons to the best interests of the child did not give rise to an inference that the Minister considered that as a matter of construction, the national interest excluded the best interests of the child. The Court went on to say (at [158]):

We accept the Minister’s submission, that, at best, an inference might arise that the Minister regarded the bests interests of the child as not bearing upon his assessment of the national interest in the particular circumstances of the case …

126    The Acting Minister submitted that it should not be inferred from the absence of reference in the national interest section of his reasons to Australia’s non-refoulement obligations that he excluded them from consideration. The proper inference, in all the circumstances, is that he chose not to give weight to Australia’s non-refoulement obligations in relation to the national interest.

127    I reject the Acting Minister’s submissions.

128    The starting point is that the Acting Minister asserts that the proper inference is that he considered Australia’s non-refoulement obligations in his assessment of the national interest. That requires on his part an active intellectual process (see the discussion in Carrascalao at [45]–[46]) and active consideration is not to be equated with merely reading a document, although the latter is clearly relevant (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [29]). It is true that active consideration is not necessarily measured by the amount of time spent on the issue or the detail or extent of the reasons dealing with the issue. Nevertheless, to assert that it is not significant that the absence of reference to a matter in reasons, or, in this case, in a particular part of the reasons, is because although the matter was actively considered, it was considered irrelevant, is really to proceed by assuming the answer sought.

129    In this case, the Acting Minister was provided with draft reasons which he adopted as his own and those draft reasons proceeded on the basis that Australia’s non-refoulement obligations were potentially relevant to the discretion, but nowhere is it suggested that they were potentially relevant to the Acting Minister’s state of mind as to the national interest.

130    The cases are legion in which the Courts have said that it is not appropriate, or ordinarily appropriate, to infer that the decision-maker has made findings or drawn conclusions not referred to in the written reasons of the decision-maker (see, for example, SZMDS at [36] per Gummow ACJ and Kiefel J; FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 at [67] per Crennan and Bell JJ; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34(a)]; Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [55] per Kenny J).

131    The Acting Minister’s written reasons follow a logical structure and are detailed and closely reasoned.

132    I refer to the summary of those reasons set out above (at [36]–[42]). I reiterate and add the following:

(1)    The Acting Minister dealt with the national interest in the manner set out above (at [37]–[39]), before he said:

In sum, having regard to the above, including [the respondent’s] criminal history and the risk to the Australian community, I conclude that it is in the national interest to refuse to grant [the respondent’s] visa application.

There is no reference in the Acting Minister’s reasons to that point to Australia’s non-refoulement obligations and no indication that the Acting Minister gave active consideration to those obligations to that point.

(2)    The Acting Minister then proceeded to consider the discretion under s 501A(2) in the manner summarised above (at [40]).

(3)    Having set out the matters he considered were relevant to the discretion, including Australia’s non-refoulement obligations, the Acting Minister then set out his conclusions. He reiterated his conclusions that the respondent did not pass the character test and that it was in the national interest that the respondent’s visa be refused “[h]aving given full consideration to all of the information before me in this case”. This latter reference is a reference to the information he considered in that part of his reasons dealing with the national interest and not a reference to those matters and the matters he considered were relevant to the discretion, including Australia’s non-refoulement obligations. That is clear from the context. First, having made that statement, he immediately proceeds in three paragraphs to summarise the matters previously discussed in that part of his reasons dealing with the national interest. Secondly, the Acting Minister went on to say that the “above consideration”, which is a reference to his conclusion with respect to the national interest, “outweighed the countervailing considerations in [the respondent’s] case including non-refoulement obligations”.

133    For these reasons, the primary judge’s conclusion that the Acting Minister did not give active consideration to Australia’s non-refoulement obligations in his assessment of the national interest is correct. This is a factual finding and I do not consider the reference to Carrascalao, a different case with different reasons and issues, to be of assistance.

134    In view of this conclusion, it is not strictly necessary to consider the Acting Minister’s challenge in Ground 2B of the appeal to the primary judge’s alternative conclusion that, even if the Acting Minister had given active consideration to Australia’s non-refoulement obligations in his assessment of the national interest, a conclusion that those obligations were not relevant to the national interest would involve the Acting Minister proceeding irrationally or unreasonably. It is sufficient for me to say that had it been necessary, I would have rejected that challenge for the reasons given in the next section.

Did the Acting Minister/Minister make a Jurisdictional error? (Grounds 1, 2A and 3 of the Appeal and Ground 5A of the Application)

135    The issue raised by these grounds is whether the Acting Minister/Minister made a jurisdictional error in not considering the implications of a breach of Australia’s non-refoulement obligations as part of his consideration of whether he was satisfied that a refusal or cancellation of a visa was in the national interest.

136    Once the issue of the character test is determined, the power in s 501A(2) is exercised by reference to broad criteria. The power is a substantial one; in these two proceedings, for example, it involved a decision as to whether to set aside decisions of the Tribunal. The power is one that may only be exercised by the Minister personally (s 501A(5)) and it is a non-compellable power, that is, the Minister does not have a duty to consider whether to exercise the power whether or not the Minister is requested to do so or in any other circumstances (s 501A(6)). The Minister’s decision is not reviewable under Part 5 or Part 7 of the Act (s 501A(7)). The Minister is accountable to Parliament in respect of decisions under s 501A(2) and, as the cases referred to below make clear, the Minister’s decision is essentially a political one best suited to resolution by the holder of a political office.

137    The criterion in s 501A(2)(e) that the Minister is satisfied that the refusal or cancellation is in the national interest, is a broad one and the authorities have made it clear that it is largely for the Minister and not the Courts to determine what is and what is not in the national interest. The latter point has been made in a number of cases in which the Court has considered whether the Minister is entitled to take into account, in his or her consideration of the national interest, the seriousness of the criminal conduct which has led to the person not passing the character test: Gunner at 409; Re Patterson at 418–419 per Gaudron J; at 502–503 per Kirby J; Madafferi at 351; Carrascalao at 390–391. The nature of the task under s 501A(2)(e) is of evaluation: Re Patterson at 447.

138    In considering the meaning of the expression “public interest” in Part IIIA of the Trade Practices Act 1974 (Cth) in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 (Pilbara), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [42]):

Criterion (f) was “that access (or increased access) to the service would not be contrary to the public interest”. It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

(Citations omitted. Emphasis in original.)

139    The Full Court of this Court in Carrascalao said (at [157]), by reference to Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, and Madafferi at [89], that the observations in Pilbara have even stronger force when the relevant statutory expression is the “national interest”.

140    Although the Minister’s power to reach a state of satisfaction as to the national interest is a broad one, it is well established that it is not unconfined and that the Minister must attain the state of satisfaction reasonably (Re Patterson at 446–447 per Gummow and Hayne JJ (Gleeson CJ agreeing); Graham at [57] and [59] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Madafferi at [89]; Carrascalao at [158]).

141    The test of reasonableness in the case of the existence of an opinion as a condition of the exercise of a power is also well established. The primary judge’s careful elucidation of the relevant principles in the appeal and the fact that no party challenged his Honour’s statement of the principles means that a short summary of the relevant principles will suffice.

142    The grounds of review are necessarily limited and an affirmative answer to such a challenge is not lightly given. The grounds include a failure to address the correct question, a material mistake of law, taking into account extraneous or irrelevant matters or failing to take into account relevant considerations or a decision that is illogical, irrational or plainly unreasonable (R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430–432 per Latham CJ; Avon Downs at 360 per Dixon J; SGLB at [38] per Gummow and Hayne JJ; SZMDS at [32], [35], [37]–[38], [40] per Gummow ACJ and Kiefel J; at [120], [124], [130], [131] per Crennan and Bell JJ). It is more difficult to successfully challenge a decision which engages matters of opinion, policy or taste (Buck v Bavone at 118–119 per Gibbs J).

143    In the appeal, the primary judge held that the Acting Minister erred in not taking into account the implications of Australia’s breach of its non-refoulement obligations as part of his consideration of the national interest. His Honour held that that was a jurisdictional error because it can be described “alternatively as reasoning unreasonably or failing to act upon a correct understanding of the law” (PJ at [136]).

144    The focus of the submissions of both the Acting Minister and the respondent on the appeal was on the primary judge’s conclusion that the Acting Minister’s reasoning was unreasonable, rather than on his conclusion that the Acting Minister proceeded on an incorrect understanding of the law.

145    I have set out above what the Acting Minister said about the concept of the national interest. Although he outlined by reference to authority some principles relevant to the concept of the national interest, he did not address in express terms whether the implications of Australia breaching its non-refoulement obligations should or should not be part of his consideration of the national interest.

146    In Avon Downs, Dixon J said (at 360):

If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

147    The respondent did make a submission that an analogous process of reasoning should be adopted in relation to the Acting Minister’s reasons and that it should be concluded that the Acting Minister’s failure to take into account the implications of Australia breaching its non-refoulement obligations in his consideration of the national interest was the result of the Acting Minister not having a correct understanding of the law.

148    That is a possible approach, particularly bearing in mind the point made on many occasions in the authorities that the grounds of judicial review overlap and there is no rigid demarcation between them. However, I think the parties were correct to focus on the primary judge’s conclusion that the jurisdictional error was that the Acting Minister had reasoned unreasonably, rather than the alternative basis that he proceeded on an incorrect understanding of the law, because as the primary judge made clear his conclusion of unreasonableness was based on the particular circumstances of the case.

149    The primary judge emphasised the significance of the particular circumstances of the case before him on a number of occasions in his reasons (see, for example, PJ at [119] and [132]). He identified those particular circumstances as the fact that the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the material before the Acting Minister, and the Acting Minister’s findings that Australia owed non-refoulement obligations to the respondent and that refusing him the visa would put Australia in breach of those obligations because necessarily the respondent would have to be returned to his country of origin where there was an accepted risk that he would be killed. The Acting Minister’s decision to refuse to grant the respondent a visa meant that the respondent would be refouled in breach of Australia’s obligations under international law.

150    Those circumstances will not be present in every case in which the Minister is considering the exercise of the power in s 501A(2) of the Act and, as the primary judge noted, it was not argued before him that the implications of Australia breaching its international non-refoulement obligations was a mandatory relevant consideration in the consideration of the national interest pursuant to s 501A(2)(e) of the Act.

151    The issue of whether Australia’s non-refoulement obligations is a mandatory relevant consideration in the exercise of the power in s 501A(2) of the Act is raised in the application in Ground 5A. It is an issue which has been considered by both this Court and the High Court in the context of other character sections in Part 9 of the Act.

152    In Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 (Le), the Full Court of this Court held that Australia’s non-refoulement obligations are not a mandatory relevant consideration when considering whether to exercise the discretion to cancel a person’s visa under s 501(2) of the Act in circumstances in which it is clear that it remains open to the person to make an application in Australia for a protection visa. The circumstance that it remained open to the person to make an application for a protection visa was critical to the Court’s analysis. The Court said (at [41] and [65]):

41    For the following reasons, we respectfully consider that the primary judge erred in holding that the issue of Australia’s obligation not to refoule Ms Le was a mandatory consideration in the particular circumstances of Ms Le’s case when the Minister was considering whether or not to exercise his discretion to cancel her 1994 visa under s 501(2) of the Migration Act. In our view, this was not a mandatory relevant consideration under s 501(2) in circumstances where it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia’s non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister. It is critical to this analysis that, as the Minister acknowledged in both [48] of his statement of reasons and in his submissions to the Court, there is no legal impediment to Ms Le applying in Australia for a protection visa.

…

65    For these reasons, the primary judge erred in concluding, in the particular circumstances relating to Ms Le, that Australia’s non-refoulement obligations were a mandatory consideration in the exercise of the Minister’s power under s 501(2). That is because it was open to Ms Le to apply for a protection visa and to put before the Minister any material relating to whether Australia owed protection obligations to her, whether her removal to Vietnam would be in breach of Australia’s non-refoulement obligations or whether there was some other reason personal to her as to why there was a real possibility that she might be held in immigration detention indefinitely.

153    In Applicant S270/2019 , Nettle, Gordon and Edelman JJ, in the course of considering whether non-refoulement obligations were a mandatory relevant consideration under s 501CA(4), made the following observations (at [33]–[35]):

33    Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.

34    That conclusion is reinforced by the fact that non-refoulement is addressed separately in the Act in provisions concerning the grant of protection visas (being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently with its non-refoulement obligations under international law) and in the context of removal . Given those express provisions, it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised. It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non-refoulement claim is made in a revocation request.

35    Put in different terms, it is through express provisions in the Act that Australia’s non-refoulement obligations under international law have been implemented in Australian domestic law; and, if a non-citizen affected by cancellation seeks to have the Minister consider non-refoulement and remains free to apply under those express provisions for a protection visa, the Minister is not required to consider non-refoulement unless a claim for a protection visa is made.

(Citations omitted.)

154    Neither s 501(2) which was in issue in Le, nor s 501CA(4) which was in issue in Applicant S270/2019, contained consideration of the national interest as a condition for the exercise of the power. In the case of the appeal and the application, both persons have been recognised as persons to whom Australia owes protection obligations and, in the case of the application, the applicant was in fact granted a protection visa some years ago. The visa in issue in the appeal is a species of protection visa. On the findings of the decision-maker in each of the appeal and the application, a decision adverse to the person in each case means that he is precluded from making any application for a visa in the future. In each of the appeal and the application, Australia’s non-refoulement obligations have been raised in the decision-making process and clear findings as to their significance have been made by the decision-makers.

155    In my opinion, the implications of Australia breaching its non-refoulement obligations or, more simply, Australia’s non-refoulement obligations, is not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act in the sense of a consideration to be taken into account in every case (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–42 per Mason J (as his Honour then was)). There are no doubt cases under s 501A(2) where Australia’s non-refoulement obligations are not raised and are not relevant.

156    In the appeal, the Acting Minister challenged the primary judge’s conclusion that he had reasoned unreasonably on three main grounds.

157    First, he submitted that bearing in mind that Australia’s non-refoulement obligations is not a mandatory relevant consideration in the decision-maker’s consideration of the national interest under s 501A(2)(e) of the Act, it would be a decidedly odd result to conclude in those circumstances that, nevertheless, the Acting Minister acted unreasonably because he failed to take into account Australia’s non-refoulement obligations as part of the national interest. As I understood the argument, it was that a conclusion of legal unreasonableness was effectively a failure to take into account a mandatory relevant consideration under another guise. In my opinion, there is no incongruity or oddity in holding that Australia’s non-refoulement obligations is not a mandatory relevant consideration in every case and in concluding that, in a particular case, a failure to consider Australia’s non-refoulement obligations in the context of the national interest gave rise to a state of satisfaction as to the national interest not attained reasonably.

158    Secondly, the Acting Minister submitted that there is little indication in the Act to suggest Australia’s non-refoulement obligations should be considered as part of the national interest in the decision-making process under s 501A(2). There are the provisions which comprise the protection visa regime (ss 5H, 5J, 35A, 36, 37A, 91A–91X) and none of those provisions are engaged. There is s 197C of the Act where Parliament has addressed the significance of Australia’s non-refoulement obligations, albeit in a way that makes it clear that they are irrelevant for the purpose identified in the section.

159    Section 197C, to the extent presently relevant, provides as follows:

197C Relevance of Australia’s non refoulement obligations to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

160    In my opinion, the answer to this second argument is similar to the answer to the first argument. The protection visa regime and s 197C support the view that Australia’s non-refoulement obligations are not a mandatory relevant consideration in the consideration of the national interest pursuant to s 501A(2), but they say nothing, or very little, about whether it was legally unreasonable for the Acting Minister not to consider the implication of Australia’s non-refoulement obligations in the particular circumstances of the case. Furthermore, it should be noted that s 197C of the Act operates in a particular context and at a particular stage, that is, for officers at the stage of removal.

161    Thirdly, the Acting Minister submitted that although it was open to him to consider and accord some weight to the impacts on Australia’s reputation and relationships with other countries of a breach of its non-refoulement obligations as part of his assessment of the national interest, he could not be, and was not, bound to do so. The effect of the primary judge’s conclusion of unreasonableness was that the Acting Minister was so bound and that was an error for the following three reasons.

162    The first reason is that the primary judge’s approach involved a construction of s 501A(2)(e) of the Act which requires the Court to pass judgment on sensitive topics of foreign relations. It requires the Court to determine the effect, or likely effect, on Australia’s reputation or international relationships of non-compliance by the executive government with international legal obligations. Those reputational and relational matters and their bearing on the national interest are, as the Acting Minister put it, “so within the core political conception of the national interest that they are committed by the Act to the Minister personally, such that the Minister’s assessment of whether they should be given weight in any given case would not readily be characterised as irrational or unreasonable in the exacting legal sense”. In discerning the “boundaries” of the national interest, regard must be had to the extent to which the matters said to be within the national interest are especially within the competence of the executive branch of government.

163    The Acting Minister pointed to the fact that Courts traditionally exercise restraint in construing conferrals of power where matters of international relations or comity are involved (see, for example, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at [250]–[258] per Keane J). Furthermore, the effect of Australia not complying with a treaty or convention is ordinarily a matter of sensitive judgment for the executive branch of government and not for the Courts. In Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1, Mason J said (at 125–126):

In any event, as I observed in Koowarta, the Court would undertake an invidious task if it were to decide whether the subject-matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the executive government and Parliament. The fact of entry into, and of ratification of, an international convention, evidences the judgment of the executive and of Parliament that the subject-matter of the convention is of international character and concern and that its implementation will be a benefit to Australia. Whether the subject-matter as dealt with by the convention is of international concern, whether it will yield, or is capable of yielding, a benefit to Australia, whether non-observance by Australia is likely to lead to adverse international action or reaction, are not questions on which the Court can readily arrive at an informed opinion. Essentially they are issues involving nice questions of sensitive judgment which should be left to the executive government for determination. The Court should accept and act upon the decision of the executive government and upon the expression of the will of Parliament in giving legislative ratification to the treaty or convention.

(Citation omitted.)

Justice Brennan (as his Honour then was) said (at 219):

Indeed, an inquiry into the extent to which a failure to fulfil a treaty obligation has the capacity to affect Australia’s relations with other countries is an inquiry that could hardly be pursued by this Court without advice given by the executive government.

164    In essence, the Acting Minister’s submission is that the primary judge’s conclusion necessarily involved a conclusion by the Court that the Acting Minister was required to place particular weight on the reputational or relational impacts of breaching international non-refoulement obligations and thereby appropriating without justification to the Court the function of determining from case to case “what the reputational and relational effects of breach are likely to be” and to require the Court “to pass judgment on sensitive questions of foreign relations between Australia and other countries”.

165    I do not accept this submission. It involves a considerable overstatement of the primary judge’s approach to the extent of judicial review of the Acting Minister’s decision and his conclusion with respect to the national interest in particular.

166    As I have said, the primary judge concluded that the Acting Minister gave no consideration to the implications of Australia breaching its non-refoulement obligations in the context of his assessment of the national interest and the Acting Minister’s challenge to that conclusion fails. Although it is true that the primary judge held that Australia’s breach of its non-refoulement obligations had to be considered as part of the consideration of the national interest in order for the Acting Minister to meet the requirement of acting rationally and reasonably, the primary judge made it clear that the weighing process was a matter for the Acting Minister and not for the Courts (see PJ at [119]). Even if, contrary to my view, Ground 1A should be upheld and it should be concluded that the Acting Minister considered Australia’s breach of its non-refoulement obligations in the context of his consideration of the national interest and decided that those obligations were not material in that context, the primary judge did not then engage in a weighing process, but rather went no further than saying that the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of its international legal obligations was immaterial to his assessment of Australia’s national interest (PJ at [135]).

167    As wide as the Minister’s power to determine what is and is not in the national interest may be, and fully recognising the extent to which political considerations are relevant to the exercise of the power, nevertheless, the power has boundaries and it is the responsibility of the Court to identify those boundaries when called upon to do so. The requirement that the Minister attain his state of satisfaction under s 501A(2)(e) reasonably places that obligation on the Court.

168    Furthermore, the context in this case is considerably broader than whether non-compliance with a convention “is likely to lead to adverse international action or reaction”, to use the words of Mason J in The Tasmanian Dam Case. Not only is ratification by Australia of an international convention not to be dismissed as a merely platitudinous or ineffectual act, as Mason CJ and Deane J said in Teoh (at 291), but also, as their Honours said, ratification of a convention is a positive statement by the executive government of this country not only to the world, but also to the Australian people that the executive government and its agencies will act in accordance with the convention. In addition, positive statements that Australia will not remove a person in breach of non-refoulement obligations appear in the Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (the Explanatory Memorandum) and in Direction 79 issued by the Minister under s 499 of the Act (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA).

169    The second reason advanced by the Acting Minister is that it cannot be assumed that in every case weight must be given in the national interest assessment to the consequences of a breach of non-refoulement obligations. He submitted that it is uncontroversial that the character concerns enlivening the exercise of power, including the seriousness of the criminal conduct and the risk of reoffending, are matters that can weigh, and can weigh decisively, in the assessment of the national interest. Although the second proposition is undoubtedly correct, I do not accept the first. The Acting Minister submitted that in a case such as this where the offending is of a sexual nature and there was a finding of a risk of reoffending, it could not be said that it was irrational or unreasonable of the Acting Minister to place no weight on the implications of Australia’s breach of its non-refoulement obligations. With respect to this submission, the first point to note is that in view of the rejection of Ground 1A, the case is one of the Acting Minister not considering the implications of Australia’s breach of its non-refoulement obligations and not one of the Acting Minister considering that matter and deciding that it is immaterial to the national interest. In any event, I do not accept that in a case such as the present it would be open to the Acting Minister to dismiss the implications of Australia’s breach of its non-refoulement obligations as of no weight or immaterial insofar as it is suggested that he could have done that and any error was immaterial. In the particular circumstance of this case, it was necessary for the Acting Minister to recognise the implications of Australia breaching its non-refoulement obligations in his assessment of the national interest, although the precise weight to be accorded to it and how it was to be balanced against other factors was a matter for the Acting Minister and the Acting Minister alone.

170    The third reason advanced by the Acting Minister reflects Ground 3 of the appeal. It is that no finding can be made about the implications of Australia’s breach of its non-refoulement obligations in terms of its reputation and relations with other countries in the absence of actual evidence that such matters would be harmed.

171    The primary judge said that the Court was entitled to take judicial notice of the fact that acting inconsistently with international law obligations may undermine confidence externally. The primary judge was entitled to make this finding. The obligation was voluntarily assumed by Australia under international law and involved a number of other countries. Furthermore, the broader context is again relevant. The assumption of the international law obligations and the statements in the Explanatory Memorandum and in Direction 79 were positive statements to the Australian people and the primary judge did not err in also concluding that acting inconsistently with international law obligations may undermine confidence within Australia. Compliance with international law obligations was an aspect of the national interest.

172    The primary judge was clearly right to conclude that the step in the decision-making process at which the Minister considers the implications of Australia breaching its non-refoulement obligations is important. He noted, correctly in my view, that had the Acting Minister considered the implications of Australia breaching its non-refoulement obligations as part of his consideration of the national interest, there was at least a possibility that he may have given different weight to the national interest when balancing it with other considerations which were relevant to the exercise of his discretion. Furthermore, as the primary judge noted (PJ at [136]) there was at least a possibility that the Acting Minister may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest and, if the precondition in s 501(2)(e) to the exercise of his power was not met, he would not have progressed to consider his residual discretion.

173    For these reasons, the appeal must be dismissed.

174    With respect to the application, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Minister and, subject to one matter, the Minister made the same findings as the Acting Minister made in the decision which is the subject of the appeal. Those findings include a finding by the Minister that Australia owed non-refoulement obligations to the applicant and that refusing him a visa would put Australia in breach of those obligations. The Minister’s decision to cancel the applicant’s visa meant that he would be refouled in breach of Australia’s obligations under international law. The one difference between the application and the appeal is that in the application the Minister did not make a finding that there was an accepted risk that the applicant would be killed if he was returned to his country of origin. However, that is not a material difference for the purposes of the analysis set out above. In those circumstances, the same conclusion follows in the case of the application as follows in the case of the appeal. In the application, that is that the Minister made a jurisdictional error in his decision made on 7 December 2020 in that he did not attain his state of satisfaction under s 501A(2)(e) as to the national interest reasonably.

Conclusions

175    The appeal must be dismissed with costs. The parties will be heard as to the appropriate orders in the application in light of these reasons.

Associate:    

Dated:    9 November 2021

REASONS FOR JUDGMENT

KERR J:

176    As with all other members of the Court I have had the very considerable benefit of reading the reasons of Besanko J in draft. I concur with his Honour in the outcome. Save in one respect which is not material to that outcome I also respectfully adopt everything which Besanko J states in his Honour’s reasons.

177    I have also had the very considerable benefit of reading the additional concurring reasons of Allsop CJ in draft. I concur with and adopt all of what the Chief Justice states in those additional reasons.

178    The one qualification in respect of Besanko J’s reasoning I record is advanced on the premise, as his Honour notes at [150], that the primary judge proceeded on the basis that the implications of Australia breaching its non-refoulement obligations had not been submitted to be a mandatory relevant consideration in the consideration of the national interest in s 501A(2)(e) of the Act.

179    Besanko J concludes, as I do for the reasons his Honour sets out, that the Minister’s appeal is to be dismissed on the basis of the correctness of the primary judge’s reasoning.

180    In that circumstance I am unpersuaded it is necessary for the Court to express a concluded view as to whether Australia’s non-refoulement obligations in the applying statutory context might, or might not, be a mandatory relevant consideration for decision making in the Minister v Peko-Wallsend sense. The question answered by his Honour at [155] in my opinion does not require determination. Its resolution can await a case in which a decision is required.

Associate:

Dated:         9 November 2021

REASONS FOR JUDGMENT

CHARLESWORTH J:

181    I have had the benefit of reading the reasons of Besanko J and the additional reasons of the Chief Justice. I agree with each of them.

Associate:

Dated:    9 November 2021