Federal Court of Australia

AFX17 v Minister for Home Affairs [2022] FCAFC 150

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal, such costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This appeal raises a short point. In circumstances where the Minister determined that it was in the national interest to refuse to grant a protection visa to the appellant, did the Minister consider as a consequence of that decision the potential breach of international non-refoulement obligations? The primary judge held that the Minister did give consideration to that issue. In our view, there was no error in the primary judge’s analysis, or conclusion. For the reasons that follow, the appeal must therefore be dismissed.

Background

2    As the primary judge remarked, this matter has a long history. His Honour set out the background at [3] to [29] of his Honour’s reasons: AFX17 v Minister for Home Affairs [2022] FCA 56. For the purposes of this appeal, the essential elements of the background may be summarised as follows.

3    On 19 December 2016, the appellant, an Iranian national, applied for a Safe Haven Enterprise Visa. On 5 July 2017, a delegate of the Minister found that the appellant was owed protection obligations, and that there was a real chance that he would suffer serious harm for reasons relating to his religion in the form of harassment, imprisonment, or potentially death. However, the appellant’s visa application was refused by a delegate on 8 August 2018 on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth).

4    Subsequently, on 23 October 2018 the delegate’s decision to refuse to grant the visa on character grounds was set aside on review by the Administrative Appeals Tribunal with a finding that the appellant passed the character test. The Tribunal remitted the decision to the Minister.

5    The appellant was then the subject of three decisions, ostensibly made pursuant to s 501A(2) of the Act, to set aside the decision of the Tribunal, and instead to refuse to grant him a protection visa. On 26 March 2020, Flick J made orders quashing the first of those decisions. On 15 September 2020, Mortimer J made orders quashing the second of those decisions. The orders of Flick J and of Mortimer J were not contested, and were made upon an acceptance that the decisions to which they were directed were affected by jurisdictional error. The third decision was the subject of the application for judicial review before the primary judge, which was unsuccessful.

The legislation

6    Sub-sections 501A(1) and (2) of the Migration Act provide as follows –

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.

…

7    The power of the Minister under s 501A(2) to set aside the original decision may only be exercised by the Minister personally, and is not reviewable under Parts 5 or 7 of the Act: s 501A(5) and (7).

The Minister’s decision

8    The Minister’s decision was dated 28 October 2020 and was accompanied by a statement of reasons. The decision record is as follows –

I reasonably suspect that [AFX17] does not pass the character test and [AFX17] 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 [AFX17’s] visa. I have decided to exercise my discretion under s 501A(2) of the Act. I hereby set aside the decision of the AAT dated 23 October 2018, and refuse to grant [AFX17’s] Safe Haven Enterprise (Class XE) visa. My reasons for this decision are set out in the attached Statement of Reasons.

9    In the attached statement of reasons the Minister considered the following topics –

(a)    whether the Minister reasonably suspected that the appellant did not pass the character test;

(b)    whether the refusal of the visa was in the national interest; and

(c)    other considerations bearing on the exercise of the discretion in s 501A(2).

The character test

10    In relation to the character test, the Minister referred to the appellant’s conviction in the Magistrates’ Court of Victoria on 3 August 2016 of sexual assault and his initial sentence to a community correction order of 18 months together with 100 hours of community service. The Minister stated that on 9 January 2018 this sentence was varied to a fine of $2,500, because the appellant could not comply with the terms of the order after being taken into immigration detention on 1 December 2016. The Minister referred to a second occasion on which the appellant was convicted of sexual assault in the Magistrates’ Court of Victoria, being on 7 March 2017 where he was sentenced to a community correction order of 18 months. This order was also varied after the appellant was taken into immigration detention, and the appellant was fined $2,000. The Minister referred to a range of circumstances surrounding the appellant’s offending, his family situation, his social networks, his employment prospects, and his good behaviour in detention. The Minister concluded at [42] that –

I reasonably suspect that in the event that [AFX17] is allowed to remain in Australia there is a risk that he would engage in criminal conduct in Australia. Therefore, I reasonably suspect that [AFX17] does not pass the character test by virtue of s 501(6)(d) of the Act, and he has not satisfied me that he passes the character test.

The national interest

11    It is the Minister’s consideration of the national interest that is in issue on this appeal, and in particular, the appellant’s claim that the Minister did not address, as part of his consideration of the national interest, Australia’s non-refoulement obligations.

12    At [45] of his reasons, the Minister referred to the decision of the High Court in Plaintiff S156 of 2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40], where the Court held that “what is in the national interest is largely a political question”. At [47] of his reasons, the Minister stated that national interest considerations included the expectations of the Australian community. Under the heading, “Expectations of the Australian Community”, the Minister referred to Australia’s international non-refoulement obligations. At [60], the Minister referred to a submission made on behalf of the appellant by his representative, Ms Battisson, concerning international treaty obligations –

I note that Ms Battisson also submits that ‘the Australian community would not expect Australia to breach its international treaty obligations by refusing [to] grant a visa in a situation in which [AFX17] faces indefinite detention.’ I have also had regard to her submissions that Australia is already in breach of its obligations to [AFX17] with regard to various Articles of the United Declaration of Human Rights, Refugee Convention, and the International Covenant on Civil and Political Rights.

13    At [61], the Minister stated that he did not consider that refusing to grant a visa in a case of non-citizens who have committed serious offending was of itself a breach of any of Australia’s international obligations.

14    At [62], the Minister stated –

[AFX17’s] claims of harm upon return and international non-refoulement obligations, and matters raised of prolonged detention, are addressed below under ‘International non-refoulement obligations’.

15    At [65], the Minister concluded that it was in the national interest to refuse to grant the appellant’s visa.

Other considerations

16    The Minister then turned to “other considerations”. At [66], the Minister stated that in making his decision he was mindful that Australia has a sovereign right to determine whether non-citizens who are of “character concern” are allowed to remain in Australia. Under the heading “International non-refoulement obligations” the Minister stated, inter alia –

84.    As part of the representations made on behalf of [AFX17] seeking non-refusal of his visa, it is submitted that [AFX17] will face serious harm if returned to Iran and that this enlivens Australia’s international non-refoulement obligations.

17    The Minister summarised some of the appellant’s claims before stating –

87.    I note that [AFX17] has not provided information to substantiate these claims, and accordingly I am unable to make a finding as to whether [AFX17] faces a real risk of being killed by the stated family, or the likelihood of such a risk eventuating.

18    The Minister then referred to and accepted a claim by the appellant that he would be persecuted upon return to Iran upon the basis of his conversion to Christianity –

93.    I accept, in line with the assessment by the departmental delegate on 5 July 2017 as noted above, that [AFX17] may likely come to the adverse attention of authorities in Iran due to his conversion to Christianity, and consequently that he faces a real risk of serious harm in the nature of harassment, imprisonment, or death.

94.    I have also accepted the conclusion drawn by the Department on 5 July 2017 that [AFX17] is a person in respect of whom Australia has international non-refoulement obligations, with the country of reference being Iran. This means that his removal to Iran would breach these obligations. I also accept that there is currently no known prospect of removing him to any other country.

19    The Minister then addressed the statutory consequences of the refusal to grant the appellant a visa –

95.    I am aware that the statutory consequence of a decision to refuse to grant [AFX17’s] visa is that, as an unlawful non-citizen, [AFX17] would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, and in the meantime, detention under s 189. I am also aware that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful noncitizen.

…

98.    I have considered that any removal of [AFX17] in breach of Australia’s non-refoulement obligations would have serious implications not only for [AFX17] as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation. I have found that these considerations weigh in favour of non-refusal of [AFX17’s] application for a Safe Haven Enterprise (Class XE) visa.

20    We pause to note that the Minister’s decision was made before the commencement on 25 May 2021 of the amendments effected by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth), which added s 197C(3) to (9) to the Migration Act. Those subsections qualify the circumstances in which the obligation on an officer under s 198 to remove an unlawful non-citizen as soon as practicable is engaged.

21    The Minister then addressed a submission that the refusal of the visa would result in indefinite detention of the appellant, on the basis that Iran did not accept involuntary returnees –

99.    I have also taken into account Ms Battisson’s submission of 16 December 2019, that Iran does not accept involuntary returnees from Australia, and [AFX17] has no rights to enter any other country. She also stated that the result of refusing [AFX17] a visa would be indefinite detention, ‘or detention for an indeterminate period of time’ and submits that ‘the decision-maker and Department must consider this result’. I accept that it may be the case that [AFX17] could face a period of prolonged detention and if it was found that he was unable to return to Iran for the reasons stated, and there was no other country bound to accept him, that his detention as such would be for an indeterminate period whilst options in relation to removal are explored.

22    In conclusion, the Minister stated at [112] –

112.    I found the above considerations outweighed the countervailing considerations in [AFX17’s] case, including the best interests of the affected child treated as a primary consideration, non-refoulement obligations and the real risk of harm faced upon return, the impact on [AFX17] of prolonged or indefinite detention, and the hardship to be endured by his family members and social networks, in particular his wife, [redacted]. I have also considered the length of time [AFX17] has made a positive contribution to the Australian community.

The grounds of review before the primary judge

23    Before the primary judge, the appellant maintained four grounds of review. Only the fourth ground is relevant to the appeal, and was in the following terms –

Ground Four

4.    The First Respondent erred by failing to consider Australia’s international non-refoulement obligations to other countries, in relation to the Applicant, in assessing whether it was in the ‘national interest’ to refuse to grant a protection visa to the Applicant pursuant to s 501A(2)(a) of the Migration Act 1958 (Cth).

Particulars

a.    In making the decision to refuse the Applicant’s visa application pursuant to s 501A(2)(a) of the Act, the First Respondent did not consider Australia’s non-refoulement obligations in assessing whether he considered that it was in the national interest to refuse to grant the Applicant a protection visa.

b.    In doing so, the First Respondent failed to have regard to a relevant consideration in his determination of ‘the national interest’.

c.    Further and in the alterative to (b) above, the First Respondent reasoned in a manner which was unreasonable, illogical or irrational.

The primary Judge’s reasons

24    The primary judge did not accept the appellant’s claim that was the factual foundation of ground four. Relevantly, his Honour held at [89], [92] and [93] –

89    In my view, the Minister did engage with the question of Australia’s international obligations, including non-refoulement, in considering the public interest, as evidenced by the emphasised passages of the Minister’s reasons at [34] above and the reference to the consideration of non-refoulement obligations at [62] of his reasons, which were set out under the heading of “National interest”. The applicant submitted that these passages were mere acknowledgements of his representations, and were not active intellectual engagement with the non-refoulement issue. I do not accept that submission. The Minister expressly said that he considered the applicant’s submissions, and made findings in relation to their contents.

90    This matter is not analogous to CWY20, in which the structure and contents of the reasons made it clear that non-refoulement obligations were not taken into account in considering national interest. In coming to a decision on the question of national interest in that case, the Minister made no reference to the implications of Australia breaching its non-refoulement obligations. Rather, in considering the national interest, the Minister considered only the severity of the relevant criminal conduct and the risk of, and possible harm caused by, the visa applicant reoffending. See CWY20 [74]; and first instance [31]–[32].

91    Although the Minister’s reasons followed a similar structure to that of CWY20, here, he expressly referred to Australia’s non-refoulement obligations under the heading of “Expectations of the Australian community” in considering the national interest. As the respondent submitted, the reasons showed that there was “plainly an understanding that non-refoulement was something that could be considered under the head of national interests”.

92    It is not to the point that the more detailed analysis on non-refoulement was contained in the “Other considerations” section where the Minister considered whether or not to exercise his discretion. The fact that the Minister considered Australia’s non-refoulement obligations in the exercise of his discretion does not mean that the same matters were not weighed in the balance in deciding the question of national interest. The reasons of administrative decision makers are not to be read so rigidly. As the High Court has repeatedly said, reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”. See, by way of example only, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

93    In contrast to CWY20, where no reference to non-refoulement obligations was made under the national interest “rubric”, here the Minister expressly referred to his consideration of such issues. As counsel for the respondents submitted in his oral address, there is a “distinct textual link” in the reasons that indicated that non-refoulement was “considered under both heads”, that is, under the rubric of the national interest and the exercise of the discretion.

The appellant’s grounds of appeal to this Court

25    The appellant relies upon one ground of appeal to this Court, which includes particulars –

Ground of appeal

1.    The primary judge erred in finding that the first respondent (the Minister) considered Australia’s non-refoulement obligations in relation to the Appellant, in the requisite sense of an active intellectual process, in considering whether he was satisfied that it was in the “national interest” to refuse to grant the Appellant a Safe Haven Enterprise (Class XE) visa (being a kind of “protection visa”) under section 501A(2) of the Migration Act 1958 (Cth), and thereby in dismissing ground 4 of the application for judicial review of the Minister’s decision.

Particulars

a.    By ground 4 of the application for judicial review the Appellant essentially contended that the Minister made a jurisdictional error akin to that identified by the Full Court in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 (dismissing an appeal from a judgment of Griffiths J in CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62) by failing to consider whether it was in the “national interest” to refuse to grant the Appellant a protection visa in circumstances where the consequence of the Minister’s decision would be the engagement of an obligation to remove the Appellant from Australia as soon as reasonably practicable irrespective that removal of the Appellant to Iran would breach Australia’s non-refoulement obligations (the existence of which were accepted by the Minister).

b.    The primary judge erred in rejecting the Appellant’s contention that the Minister’s reasons did not exhibit an “active intellectual engagement” with this question ([89]).

c.    In particular, insofar as the primary judge found that the requisite “active intellectual engagement” was evinced by the Minister’s “express refer[ence] to Australia’s non-refoulement obligations under the heading ‘Expectations of the Australian community’ in considering the national interest”, his Honour erred ([91]).

The appellant’s submissions

26    The appellant’s case on appeal relied on the decision of an enlarged five-member Full Court in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 (CWY20). The orders made by the Full Court concerned two proceedings: (1) an appeal by the Acting Minister from a decision of Griffiths J in which CWY20 was the respondent; and (2) a separate proceeding (referred to as “QJMV”) in the original jurisdiction of the Court that was referred to the Full Court for the hearing and determination of some separate questions. The principal judgment was given by Besanko J, with whom Allsop CJ, Kerr J, and Charlesworth J agreed, and with whom Kenny J substantially agreed. In CWY20, the Full Court decided that, in considering the national interest for the purposes of determining whether to set aside a decision of the Tribunal under s 501A(2), the Acting Minister had not considered the implications of a breach of Australia’s non-refoulement obligations. Although the Acting Minister had referred to non-refoulement obligations when considering discretionary considerations, he had not done so as part of his consideration of the national interest for the purposes of s 501A(2)(e). The Full Court affirmed the decision of Griffiths J, holding that in the circumstances of that case, the Acting Minister’s failure to consider, in the context of the national interest, Australia’s non-refoulement obligations, resulted in a state of satisfaction that was not attained reasonably: see Besanko J at [157], [172]. The appellant’s submissions to this Court proceeded on the basis that CWY20 remained good law, and that it had been applied by another Full Court in ENT19 v Minister for Home Affairs [2021] FCAFC 217 (Katzmann J, Collier J and Wheelahan J relevantly agreeing).

27    Counsel for the appellant framed the only issue on this appeal as being whether the Minister in fact gave “active intellectual consideration” to the prospective breach of Australia’s international non-refoulement obligations in assessing where the national interest lay. Counsel submitted that [59], [60], and [62] of the Minister’s reasons, under the heading “Expectations of the Australian Community”, did not support a conclusion that the Minister had actively considered the matter. Counsel submitted that [59] and [60] simply asserted that the Minister had considered submissions about what the Australian community would expect in light of non-refoulement issues, but with no engagement with those submissions. Counsel for the appellant drew attention to the fact that at [62], the Minister stated that “[i]nternational non-refoulement obligations … are addressed” in a later section of the reasons. Counsel submitted that the later section of the reasons concerned the exercise of the residual discretion, which only arose if the Minister had first assessed that it was in the national interest to refuse the protection visa. Counsel submitted that here there was no engagement by the Minister with the prospective breach of Australia’s non-refoulement obligations in assessing where the national interest lay. It was submitted that the issue was only meaningfully engaged in purporting to exercise the residual discretion. Counsel submitted that in any event the submissions that were said by the Minister at [59]–[60] of his reasons to have been considered concerned only a prospective breach of non-refoulement obligations through the prism of the “expectations of the Australian community”. Counsel submitted that all that [62] of the Minister’s reasons did was to indicate that the issue of non-refoulement obligations would be considered in a later section, which section dealt with the exercise of discretion, which only arose if the Minister had lawfully first assessed the national interest. In conclusion, counsel submitted that the text and structure of the Minister’s reasons strongly supported the conclusion that the Minister did not actively consider the prospective breach of Australia’s non-refoulement obligations in assessing whether it was in the national interest to refuse the protection visa.

The respondents’ submissions

28    Before the primary judge, counsel for the respondents made a formal submission that CWY20 was wrongly decided. On appeal, counsel for the respondents premised their written submissions on an argument that the Full Court’s reasoning in CWY20 is now “contradicted” by the majority reasoning in Plaintiff M1 2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 (Plaintiff M1). Counsel submitted that a failure to have regard to unenacted international non-refoulement obligations cannot sound in jurisdictional error, relying on statements in the joint judgment of Kiefel CJ, Keane, Gordon and Steward JJ at [17], [20] and [29], and the judgment of Gageler J at [43]. During the course of argument at the hearing of the appeal, senior counsel for the respondents clarified that it was not submitted that CWY20 was plainly wrong, but that the respondents relied on the more nuanced submission reflected in their written submissions that CWY20 had been “contradicted” by Plaintiff M1.

29    As to the factual question raised on appeal, counsel for the respondents submitted that the present case was distinguishable from CWY20 where there had been no reference by the Acting Minister in that case to international non-refoulement obligations when considering the national interest. It was submitted by reference to the relevant paragraphs of the Minister’s reasons here that the Minister had identified and then engaged with the issue under the rubric of the national interest.

Consideration

30    In CWY20, Besanko J held at [155] that the implications of Australia breaching its non-refoulement obligations was 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. At this level, there is no inconsistency between CWY20 and Plaintiff M1. The question in CWY20 was whether in the circumstances of addressing in that case an issue raised by domestic law, namely s 501A(2)(e) of the Act, consideration of the national interest could be reasonably undertaken without addressing the potential breach of international obligations. In separate reasons in CWY20, Allsop CJ agreed with Besanko J. His Honour then made some additional remarks, with which Kerr J at [177] and Charlesworth J at [181] agreed –

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

…

[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.

(Emphasis added.)

31    It is not at all clear that anything said by the majority Justices in Plaintiff M1 necessarily cuts across the Full Court’s decision in CWY20. In Plaintiff M1, the question considered in CWY20 concerning the evaluation by the Minister of the national interest as a mandatory consideration did not arise. The question in Plaintiff M1 was whether a decision-maker, considering revocation of a decision to cancel a visa under s 501CA(4), was required to determine whether non-refoulement obligations were owed to a former visa holder who made representations that raised a potential breach of those obligations, but where the person remained free to apply for a protection visa. The dispute was not if, but how such representations should be considered by the decision-maker: see Plaintiff M1 at [21]. At [29]-[30], Kiefel CJ, Keane, Gordon and Steward JJ in their joint judgment drew a distinction between representations that relied on international non-refoulement obligations, and representations making claims of non-refoulement arising under domestic law, stating –

[29]    Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.

[30]    Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

(Footnotes omitted.)

32    There is no necessary inconsistency in this regard between Plaintiff M1 and CWY20, where as we have mentioned, Besanko J held that the implications of Australia breaching its non-refoulement obligations was not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act.

33    In the joint judgment in Plaintiff M1 at [34], their Honours referred to paths of reasoning in decisions of this Court that focused on decision-makers failing to consider properly the consequences to a former visa holder and to Australia (for example, the impact on Australia’s reputation and standing in the global community), which would flow from removing a former visa holder contrary to non-refoulement obligations under international law. Their Honours stated that these paths of reasoning ignored the choice that Parliament had made about the extent to, and manner in which, Australia’s international non-refoulement obligations are incorporated into the Migration Act. Several decisions were cited, by way of example, in the footnotes to [34]. The relevant paths of reasoning that were illustrated by the cited decisions were disapproved. The citations included a reference to the dissenting reasons of Wigney J in BHL19 v Minister v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 (BHL19), to which senior counsel for the respondents took us during argument. BHL19 concerned a discretionary decision under s 501(1) of the Act to refuse a protection visa on character grounds. By his dissenting reasons, Wigney J held at [236] that “the Minister’s reasoning concerning the effect that his decision would have, including the breach of Australia’s international non-refoulement obligations, was flawed and unreasonable”. At [224], which was cited in the joint judgment in Plaintiff M1 at footnote (66), his Honour referred to several conventions giving rise to international non-refoulement obligations, stating, “[o]ne would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly”. As with Plaintiff M1, BHL19 was not concerned with claimed legal unreasonableness in the evaluation of the national interest as a mandatory consideration.

34    CWY20 was not cited in the footnotes of cases that were disapproved in the joint judgment in Plaintiff M1. We are not prepared to entertain that, by a side wind, the High Court’s decision in Plaintiff M1 “contradicts” the decision of the Full Court in CWY20 with the consequence that this Court should now reconsider CWY20. This is particularly so when, on 5 May 2022, the High Court dismissed on the papers an application for special leave to appeal the decision in CWY20: [2022] HCASL 93. We say this acknowledging the limitations on the significance of the dismissal of an application for special leave: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; 256 CLR 104 at [52] (French CJ, Nettle and Gordon JJ), [111]–[112] (Kiefel and Keane JJ), [119] (Bell and Gageler JJ). However, the relevance of the dismissal is to the principles of stare decisis. In our view, any challenge in this Court to CWY20 should proceed on the basis of a submission that it was plainly wrong on some principled basis relevant to the disposition of this appeal, which would have to confront the array of considerations referred to by Allsop CJ in Minister for Immigration v FAK19 [2021] FCAFC 153; 287 FCR 181 at [2]–[32]. Not only has that submission not been put, but we do not find it necessary to address the respondents’ more nuanced submission that the Full Court’s decision in CWY20 is now contradicted by Plaintiff M1, which may be seen as a direct challenge to CWY20 under another guise. That is because the issue on this appeal can be determined on the facts.

35    In this case, the relevant mandatory consideration was the national interest, as required by s 501A(2)(e). It is important to appreciate that the appellant’s claim on appeal does not rely on any failure by the Minister to address a mandatory relevant consideration. Rather, by reference to the facts and circumstances of CWY20, it is argued that the Minister’s consideration of the national interest was legally unreasonable. Whether a process of decision-making, or the outcome of a decision-making process, is legally unreasonable to the high threshold that is required is fact-dependent. In this appeal, it was a feature of the submissions of counsel for the appellant to this Court that the Minister did not “give active intellectual consideration” to the prospective breach of Australia’s non-refoulement obligations. Of like phrases, in Plaintiff M1, Kiefel CJ, Keane, Gordon and Steward JJ stated at [26] –

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend,”[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Footnotes omitted.)

36    In CWY20, Besanko J stated at [163] that “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”, citing Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 125-6 (Mason J) and 219 (Brennan J). At [166], Besanko J referred to the primary judge’s reasons, which his Honour said made clear that the weighing process was a matter for the Minister and not for the courts. To the same effect, in Plaintiff M1, Kiefel CJ, Keane, Gordon and Steward JJ stated at [24] in the context of representations made pursuant to s 501CA(4) of the Migration Act which are, as a whole, a mandatory relevant consideration –

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

(Emphasis added, footnotes omitted.)

37    The outcome of this appeal should not depend upon a comparison of the facts of this case with the facts of others, although valuable insight into the principles may be gained as a result of reference to their application in other cases. Subject to that qualification, a conspicuous feature of CWY20 was that the relevant decision-maker in that case, the Acting Minister, did not refer at all to international non-refoulement obligations in the section of his reasons that addressed whether he was satisfied that the cancellation of the visa was in the national interest. Here, as the primary judge stated at [91] and [93] of his Honour’s reasons, the Minister expressly referred to Australia’s international non-refoulement obligations under the heading of “Expectations of the Australian community” in considering the national interest: see [60]-[62] of the Minister’s reasons. At [62], the Minister referred to the fact that international non-refoulement obligations, and matters of prolonged detention would be addressed later. At [94] of the Minister’s reasons, which we set out above, the Minister acknowledged that the removal of the appellant to Iran would breach those obligations, and at [98] the Minister acknowledged that such a breach would have serious implications for Australia in terms of its international standing and reputation.

38    In this case, it is our view that the Minister did not act unreasonably by addressing non-refoulement obligations through the lens of expectations of the Australian community, or by incorporating by reference his later consideration of non-refoulement obligations when addressing “other considerations”. Fairly read, the textual link at [62] of the Minister’s reasons to [94] and [98] shows that the Minister did advert to and consider international non-refoulement obligations and Australia’s standing when considering the national interest. Those considerations simply did not carry any determinative weight in the Minister’s evaluation. In our view, the appellant’s claim that the Minister thereby did not give “active intellectual consideration” to the question of the breach of international non-refoulement obligations amounts to a submission that the Minister should have considered those matters in a different way, when this was a matter of sensitive judgment for the executive branch of government, to be performed by the Minister. The Minister’s reasons show that he was not persuaded that the potential breach of non-refoulement obligations should have decisive weight in his evaluation of the national interest. This decision was within the wide bounds of what was largely a political question, and the claimed jurisdictional error that is the subject of this appeal has not been demonstrated. The decision of the primary judge was therefore correct.

Conclusion

39    The appeal should be dismissed with costs.

Associate:

Dated:    5 September 2022