FEDERAL COURT OF AUSTRALIA

BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent is amended to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant is a citizen of South Sudan who first arrived in Australia in 2005 on a Class XB Subclass 202 Global Special Humanitarian Visa.

2    The relevant procedural history may be shortly stated. Following cancellation of his visa on 16 April 2018, the appellant applied on 21 February 2019 for a Subclass 866 Protection (Class XA) visa (protection visa). On 23 December 2019, a delegate for the respondent, the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the appellant’s protection visa on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth). On 2 March 2021, the Administrative Appeals Tribunal set aside that decision and remitted the matter back to the Minister, directing instead that the discretion in s 501(1) be exercised in the appellant’s favour. However, on 7 March 2022, the Minister personally set aside the Tribunal’s decision and refused to grant the appellant a protection visa (the Minister’s decision). In this regard, the Department of Home Affairs had earlier determined on 22 June 2021 (and the Minister accepted) that the appellant is a person to whom Australia owes protection obligations because he would be at risk of serious harm if returned to South Sudan (the protection finding).

3    The appellant’s application for judicial review of the Minister’s decision was dismissed by a single judge of this Court. This is an appeal from that decision.

4    The Minister’s decision was made under s 501A(2) of the Act. That section provides that the Minister may set aside a decision of the delegate or Tribunal not to refuse to grant or cancel a visa, 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.

(For convenience, I will refer to the last of these criteria in sub-s (e) as the national interest criterion.)

5    By virtue of ss 501A(5) and (7) respectively, the power under s 501A(2) may be exercised only by the Minister personally, is a non-compellable power, and is not subject to merits review.

6    The issues raised by the grounds of appeal, as elucidated by the appellant’s submissions, may be summarised as follows:

(1)    Did the primary judge err (at [68] and [70]) in failing to hold that the Minister’s attainment of the state of satisfaction as to the national interest in s 501A(2)(e) of the Act was legally unreasonable because the Minister was required, but failed, to consider that the consequence of his decision refusing a visa would be the indefinite detention of the appellant, and that indefinite detention would place Australia in breach of its human rights obligations under the following international instruments:

(a)    Articles 2, 9 and 26 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR);

(b)    Article 16 of the Convention Against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT); and

(c)    by reason of Australia’s membership of the United Nations, Arts 2, 3, 7, 8 and 9 of the Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) (UDHR);

(Ground 1)

(2)    Did the primary judge err in failing to find that the Minister had exercised his discretion under s 501A(2) to refuse to grant the appellant a visa unreasonably, given that there was no rational possibility that the Minister’s non-compellable powers in ss 195A and 197AB of the Act would be exercised in relation to the appellant? In particular, did the primary judge err:

(a)    in assessing (at [41]-[42]) the reasonableness of the Minister’s exercise of discretion “by reference to potential events arising at a point in time subsequent to the date on which the decision under judicial review was made, being 7 March 2022”; and

(b)    in effectively relying upon (but not complying with) s 144(1) of the Evidence Act 1995 (Cth) in making findings at [42] and [73] that Ministers “may change” and “may change their minds”?

(Ground 2)

7    In support of ground 1, the appellant relied upon the Full Court decisions in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 and ENT19 v Minister for Home Affairs [2021] FCAFC 217; (2021) 289 FCR 100. However, by a notice of contention filed on 6 September 2022, the Minister contended (among other things) that the decisions in CWY20 and ENT19 should not be followed to the extent (if at all) that they hold that unenacted international obligations are mandatory relevant considerations for the purposes of s 501A(2)(e), or that the failure to consider those obligations could render legally unreasonable the attainment by the Minister of the state of satisfaction required by s 501A(2)(e).

8    For the following reasons, the appeal must be dismissed with costs.

2.    BACKGROUND

2.1    Relevant statutory provisions

9    I have set out s 501A(2) of the Act at the commencement of these reasons. The other relevant provisions of the Act relate to the obligation to detain an unlawful non-citizen. First, s 189(1) provides that:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

10    Secondly, s 196 requires an unlawful non-citizen to be kept in immigration detention pending one of a number of specified events. That provision relevantly provides that:

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

…

(c)    he or she is granted a visa.

11    In turn, s 198(2A) provides that an officer “must remove as soon as reasonably practicable an unlawful non-citizen” covered by s 193(1)(a)(iv) who, since the Minister’s decision, has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone. An unlawful non-citizen covered by s 193(1)(a)(iv) is an unlawful non-citizen who is detained under s 189(1) because of a decision made personally by the Minister under (relevantly) s 501A to refuse to grant a visa to the person.

12    Thirdly, ss 197C(1) and (2) provide that:

(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.

13    Significantly, however, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the amending Act) inserted s 197C(3) into the Act, as a consequence of which the obligation to remove an unlawful non-citizen in ss 197C(1) and (2) did not extend to the non-citizens in respect of whom an assessment has been made that they engage Australia’s non-refoulement (i.e. protection) obligations. Specifically, s 197C(3) provides that:

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

(a)    the non-citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

(iii)    the non-citizen has asked the Minister, in writing, to be removed to the country.

14    The phrase “protection finding” is defined in s 197C(4)-(7).

2.2    The Minister’s decision

15    The Minister’s reasons for setting aside the Tribunal’s decision and instead refusing to grant the protection visa under s 501A(2) can be summarised as follows.

16    First, the Minister explained that he had regard to Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) made under s 499 of the Act, even though he found (correctly) that he was not legally bound to comply with the Direction (at [9]).

17    Secondly, the Minister found that he was not satisfied that the appellant passed the “character test” in s 501(6) of the Act because the appellant had previously been sentenced to a term of 16 months’ imprisonment (at [10]-[17]).

18    Thirdly, under the heading “National interest”, the Minister considered whether he was satisfied that the refusal of the appellant’s visa was in the national interest under s 501A(2)(e) of the Act. In so considering, the Minister found that the following matters were relevant to Australia’s national interest:

(1)    domestic and family violence: namely, the protection and safeguarding of Australia’s women and children from family violence (at [22]-[24]), including that a person convicted of family violence should not be seen to gain the benefit of a protection visa because it would potentially undermine the government’s commitment to the safety of women and children (at [24]);

(2)    seriousness of criminal conduct: the appellant has shown a trend towards increasingly serious violent offending, and his offending is “very serious” (at [25]-[50]);

(3)    risk to the Australian community: while there was a low likelihood that the appellant will re-offend (at [93]):

[n]evertheless, I consider that, should [the appellant] engage in similar conduct there is a risk it may result in psychological and physical harm to members of the community and contribute to the significant impact of family violence on the wider Australian community. I find that the existence of such a risk is a further indication that it is in the national interest to set aside the original decision of the AAT and refuse the visa. I consider that the need to protect the Australian community from criminal or other serious conduct is relevant to the consideration of the national interest.

(4)    seriousness of the family violence: the seriousness of the appellant’s family violence is further evidence that the national interest is engaged, given the government’s views on family violence (at [118]);

(5)    expectations of the Australian community: the Direction states that the Australian community expects the government to refuse a visa to applicants raising serious character concerns through certain kinds of conduct, including the commission of crimes against women and acts of family violence (at [120]); and

(6)    international non-refoulement obligations: any removal of the appellant to South Sudan would breach Australia’s non-refoulement obligations and have implications for Australia’s international standing and reputation (at [139]).

19    Under the heading “Conclusions on national interest”, the Minister stated (at [141]-[145]) that:

I have found that it would generally be in the national interest to refuse a non-citizen’s visa insofar as it is consistent with the Australian Government’s National Plan to Reduce Violence against Women and Their Children 2010-2022 where the non-citizen has been involved in crimes of family violence.

In the specific case of [the appellant], I have also considered the very serious nature of his involvement in family violence-related offending and the risk of him reoffending. I have also considered the risk to the community posed by him as a result. Furthermore, I have considered the Government’s views and the expectations of the Australian community generally in relation to the types of serious conduct engaged in by [the appellant], namely family violence.

On the other hand, I have also taken into account that the removal of [the appellant] to South Sudan would be in breach of Australia’s international non-refoulement obligations.

Under s197C(3) of the Act, the protection finding made for [the appellant] means that the removal of [the appellant] to South Sudan is neither required nor authorised by s198.

On balance, having regard to the other significant national interest considerations discussed above, I am satisfied that it is in the national interest to refuse [the appellant’s] visa notwithstanding the international non-refoulement obligations engaged in his case.

20    In the fourth place, the Minister considered whether or not to exercise his discretion to refuse to grant the appellant’s visa, taking into account factors which he considered weighed against and in favour of refusing the appellant’s visa, including “other considerations” specified in the Direction. These included the following findings:

(1)    best interests of minor children: it is in the best interests of the appellant’s children and grandchildren that his visa not be refused, and this consideration should be given significant weight in favour of not refusing the visa (at [147]-[164]);

(2)    risk of harm if returned to South Sudan: the appellant may be at risk of persecution which could include arbitrary detention, torture and death. However, given the Department’s findings on 22 June 2021 that non-refoulement obligations are engaged with respect to the appellant, removal to South Sudan is neither required nor authorised by s 198 of the Act by virtue of s 197C(3) (at [166]-168]); and

(3)    extent of impediments if removed to South Sudan: the appellant would face serious impediments to establishing basic living standards if removed to South Sudan, having regard among other things to his significant mental health issues and physical disabilities (at [170]-[194]). While those impediments will not eventuate as a result of the Minister’s decision to refuse the visa because the protection finding made for the appellant means that s 198 of the Act does not require or authorise his removal to South Sudan (s 197C(3)), nonetheless this consideration weighs in favour of not refusing the appellant’s visa (at [194]).

21    Further and significantly for present purposes, under the heading “Additional matters considered”, the Minister dealt with the legal consequences of a refusal decision. In particular, the Minister found that by reason of the operation of ss 189, 196 and 197C(3) of the Act, the appellant faces the prospect of immigration detention for an indefinite period which was likely to adversely impact on his mental health and stated that he had considered the appellant’s submissions addressing the possibility of prolonged or indefinite detention. In reaching that conclusion, the Minister found that:

(1)    he was aware (at [218]) that the appellant faced the prospect of indefinite immigration detention if his application for a visa is refused because he must continue to be detained until removed or granted a visa under the Act and s 197C(3) would prevent his removal to South Sudan;

(2)    he had considered the appellant’s submission dated 23 September 2021 addressing the possibility of prolonged or indefinite detention as a legal consequence of a decision refusing his visa (at [219]);

(3)    he accepted (at [222]) that “indefinite or prolonged detention is likely to adversely impact [the appellant’s] mental health and will be detrimental to the ongoing management of his physical injuries … [and] this weighs in favour not refusing his visa application”; and

(4)    he was aware (at [223]) that the appellant would be unable to apply for any visa “other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation”.

22    Significantly for the purposes of ground 2 of the present appeal, the Minister then found on the one hand at [224] that:

I am mindful that even if I refuse [the appellant’s] visa application, a Minister administering the Act has a personal non-compellable power in s195A of the Act to grant another visa to him if the Minister thinks it is in the public interest to do so. The Minister also has a personal non-compellable power in s197AB to make a residence determination if the Minister thinks it is in the public interest to do so. Such a determination would enable [the appellant] to leave held detention and instead be detained at a specified place in the community, subject to appropriate conditions.

23    On the other hand, at [226] the Minister found that:

I am mindful that if I decide to refuse the visa application, and no consideration is given to intervening under s195A or 197AB, or a decision is made to not exercise such a power in [the appellant’s] favour, he will, as an unlawful non-citizen, remain in held detention unless he can be removed to a country other than South Sudan or unless one of the exceptions in s197C(3)(c) were to apply.

24    The respondent placed particular weight upon the finding at [226] in response to ground 2 of the notice of appeal, as later explained.

25    Finally, the Minister concluded overall as follows (at [227], [230] and [238] respectively):

I reasonably suspect that [the appellant] does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) of the Act and he has not satisfied me otherwise. Further, I am satisfied that refusal of his visa is in the national interest. The power under s501A(2) of the Act to refuse to grant [the appellant] a visa is therefore enlivened.

…

I acknowledge that [the appellant] is the subject of a protection finding and that he is therefore a person to whom Australia owes protection. I have also considered that any removal of [the appellant] would be in breach of Australia’s non-refoulement obligations and would have serious implications not only for [the appellant] 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. Again, I have noted that [the appellant’s] removal to South Sudan is not authorised by the Act as a result of s197C(3).

…

I find that the above considerations favouring not setting aside the original decision and refusing to grant [the appellant’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 of the AAT and refuse to grant [the appellant’s] application for a Protection (Class XA) visa under s501A(2) of the Act.

2.3    The decision of the primary judge

26    Before the primary judge, the appellant sought to challenge the Minister’s decision on two grounds which essentially reflect the grounds of appeal, namely, that:

(1)    the Minister’s assessment of, and satisfaction as to, the national interest criterion was not attained reasonably because the Minister failed to take into account the impact on international relations, and Australia’s international reputation and standing, of a breach of Australia’s international obligations under the ICCPR, CAT and UDHR by reason of the appellant being detained indefinitely as a consequence of the refusal of his visa; and

(2)    the Minister failed to exercise the discretion to refuse the appellant’s visa under s 501A(2) reasonably.

2.3.1    Ground 1 of the judicial review application

27    The specific articles of the international instruments which the appellant contended below would be breached by reason of his indefinite detention were Arts 2, 9 and 26 of the ICCPR, Arts 2, 3, 7, 8 and 9 of the UHDR and Art 16 of the CAT. Those articles are reproduced at [86]-[89] below.

28    The argument before the primary judge focused upon whether the Full Court decisions in CWY20 and, in particular, ENT19, applied and should be followed in light of the subsequent High Court decision in Plaintiff M1 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497. 

29    First, the primary judge considered that CWY20 stood broadly for the proposition that, in considering the “national interest” in s 501A(2), there may be particular cases where a failure to consider Australia’s non-refoulement obligations will give rise to a state of satisfaction as to the national interest which has not been attained reasonably (at [26]). Her Honour further considered that the decision in ENT19 extended this reasoning (at [27]).

30    However, the primary judge rejected the appellant’s submission that CWY20 and ENT19 established a principle that “in evaluating the national interest, each and every decision-maker … had to consider any violation of Australia’s international obligations” (at [23]).  Rather, her Honour considered that a failure to consider a matter (such as Australia’s international legal obligations) in assessing the national interest criterion may involve jurisdictional error depending upon the particular circumstances of the case on the ground of legal unreasonableness. In particular, her Honour considered that only breaches of international law that were an inevitable and direct consequence of the decision would require consideration under s 501A(2) (at [23], [48], [51] and [69]).

31    Secondly, the primary judge held that the appellant’s case was distinguishable from CWY20 and ENT19 because, amongst other things, those decisions preceded the insertion of s 197C(3) into the Act (at [20]). Her Honour observed that those cases were decided on the basis that any removal of the appellant would involve both a risk of serious harm to the appellant and have implications for Australia in terms of its international standing and reputation which were relevant to the evaluation of the national interest. However, as s 197C(3) now applies to prevent any such removal (at [31]), the Minister did not commit the jurisdictional error which the Full Court found had occurred in CWY20. Rather, the primary judge held that the appellant’s argument in this case involved an extension to the reasoning in CWY20 of the kind which arose in ENT19, but in the different statutory context where s 197C(3) had since been enacted (at [31]).

32    Thirdly, the primary judge held that the appellant’s proposed extension to the reasoning in CWY20 involved five different steps, namely (at [32]):

(a) as a result of ss 189, 196, and 197C(3), the applicant was required to be detained but would not be removed from Australia, (b) therefore, the applicant would be kept in indefinite detention, (c) indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party, (d) the Minister did not consider those breaches of Australia’s international obligations in evaluating the national interest, and (e) by analogy to the reasoning in CWY20, it was legally unreasonable for the Minister not to have considered those breaches of Australia’s international obligations in evaluating the national interest.

33    Her Honour found that both steps (b) and (c) in that list were contestable.

34    As concerned step (b) (that the appellant would be kept in indefinite detention), the primary judge relevantly held (at [41]-[43]) that:

the problem with the applicant’s approach to the rationality of the possibility of another Ministerial exercise of power the result of which would be that the applicant would no longer be an “unlawful” non-citizen, is that it assumes that the only time for assessment of the rationality of possibility is the time at which this Minister made this decision. It may be accepted that, at the time this Minister made this decision, there was no rational prospect of this Minister exercising any power enabling the applicant to become a “lawful” non-citizen and, therefore, not subject to the requirement of detention. This is because this Minister, having found that the national interest weighed in favour of refusal of the visa could not logically conclude that the applicant should be granted a visa in the public interest without some changed circumstance. … However, in the present case the Minister was not referring to such a possibility (that, there and then, he might exercise such a power). The Minister was saying that a Minister has these powers and might exercise them in the future: see [224] and [225].

The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.

It follows that the Minister’s assessment, that the applicant faced “the prospect of immigration detention for an indefinite period”, was accurate. The Minister did not purport to suggest that this prospect was other than the most likely. He accepted and confronted this as the most likely prospect for the applicant, subject to the possibility of a Ministerial exercise of power the effect of which would be to release the applicant into the Australian community from detention under the Migration Act. The relevance of this for the legality of the Minister’s consideration of the national interest is that, unlike CWY20, there was no accepted and inevitable breach of Australia’s international non-refoulement obligations as there would have been if the applicant in that case had been deported to Afghanistan. Rather, there was a likelihood that the applicant would face indefinite detention in Australia, subject to a possibility of a Ministerial exercise of power ending that detention in the future. When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, the difference cannot be disregarded.

(Emphasis added.)

35    The primary judge also found that step (c) (that indefinite detention is a breach of Australia’s international obligations to which Australia is a party) was a contestable proposition, even though it was “reasonably arguable, and may be correct” that a person’s indefinite detention may place Australia in breach of some of its international obligations and may also be in breach of Australian law (at [48]). However, her Honour considered (at [48]) that:

The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between [1] a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and [2] a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.

(Emphasis added.)

36    After referring to the Minister’s submissions as to why indefinite detention would not inevitably place Australia in breach of its international obligations, the primary judge concluded (at [51]) that:

I do not need to decide if these contentions are right or wrong. The relevant point for present purposes is that the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.

(Emphasis added.)

37    Fourthly, the primary judge addressed (at [61]-[64]) the Minister’s contention that CWY20 (and therefore ENT19) could not be good law following the High Court’s decision in Plaintiff M1 and did not accord with the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101] (Gleeson CJ), or with observations in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [385] (Gageler J) and [490] (Keane J). However, her Honour held that neither Lam nor CPCF “considered the question whether a decision might be legally unreasonable if, in the particular circumstances of that decision, the Minister did not consider the consequences of the decision for Australia’s international law obligations” (at [63]). Nor, the primary judge observed, did the High Court include the decisions of CWY20 or ENT19 in the footnoted decisions held to be wrong in Plaintiff M1 and, indeed, special leave to appeal from those decisions had been refused by the High Court in the week before the publication of Plaintiff M1 (at [64]). That said, however, the primary judge found that “in circumstances where both CWY20 and ENT19 are clearly distinguishable, the reasoning in Plaintiff M1 also indicates that CWY20 and ENT19 should not be treated as persuasive authority in respect of Ministerial decisions made after the enactment of s 197C(3) of the Migration Act” (at [64]).

38    On that basis, the primary judge concluded as follows:

(1)    the Minister had considered the prospect of the appellant’s indefinite detention in evaluating the national interest (at [66]);

(2)    in reaching his state of satisfaction about the national interest, the Minister did not consider that a consequence of a decision refusing to grant the visa would be the indefinite detention of the appellant and that indefinite detention would place Australia in breach of its international obligations (at [67]);

(3)    in reaching his state of satisfaction about the national interest for the purposes of s 501A(2)(e) or in exercising the discretion under s 501A(2) of the Act, the Minister was not bound to consider, as a mandatory relevant consideration, that the consequence of a decision refusing a visa would be the appellant’s prospect of indefinite detention, and that indefinite detention would place Australia in breach of international law. This was because, amongst other things, it was “by no means certain that such detention would place Australia in breach of its international obligations” in circumstances where the relevant international obligations concern detention that is “arbitrary” or on grounds not “established by law”(at [68]); and

(4)    the primary judge (at [70]) did not accept that in reaching his state of satisfaction about the national interest (or otherwise) the Minister acted legally unreasonably, given that:

(a) the actual legal consequence of the decision to refuse the visa was not the certainty, but the likelihood, of indefinite detention of the applicant, (b) more importantly, it is reasonably arguable but by no means certain that such detention would place Australia in breach of its international obligations, (c) it is at least as reasonably arguable that such detention would place the Commonwealth in breach of Australian law and, if this is found to be so by a court of competent jurisdiction, such detention could not continue, and (d) the applicant did not make any claim for consideration by the Minister that his indefinite detention would place Australia in breach of any international obligation.

39    The primary judge therefore rejected ground one of the application. Her Honour’s findings at [68] and [70] are directly challenged by ground 1 of the notice of appeal.

2.3.2    Ground 2 of the judicial review application

40    As concerns ground two, the appellant submitted before the primary judge that the Minister did not exercise the power under s 501A(2) of the Act in a reasonable manner. Two arguments were put forward to support that contention before the primary judge. The second was not raised on the appeal and therefore can be put to one side.

41    Relevantly, the appellant challenged [224] of the Minister’s reasons (quoted above). At [224] the Minister found that, even if the visa application were refused, a Minister administering the Act has personal non-compellable powers to grant a visa under s 195A of the Act and to make a residence determination enabling the appellant to leave held detention under s 197AB.

42    Before the primary judge, the appellant submitted that this reasoning disclosed an error because there was no rational possibility that the powers in ss 195A or 197AB would ever be exercised with respect to the appellant. In this regard, the appellants relied on the Minister’s statement (at [237]) that he could not “rule out the possibility of further criminal conduct by [the appellant]. The Australian community should not tolerate any risk of further harm”. That statement was said to demonstrate that the Minister would never grant the appellant a s 195A visa or make the appellant the subject of a s 197AB residence determination.

43    The primary judge rejected this submission, holding (at [73], and by similar reasoning at [42])) that:

As already discussed, I do not accept that it was legally unreasonable for the Minister to consider the possibility that a Minister, exercising powers under the Migration Act, might do so with the result that the applicant could no longer be held in detention. This possibility was not fanciful given that Ministers change, Ministers change their minds, and circumstances change.

3.    DISPOSITION OF THE APPEAL

3.1    Was it legally unreasonable for the Minister to fail to consider the impact of alleged breaches of Australia’s international obligations in assessing the national interest criterion (ground 1)?

44    The appellant’s first ground as articulated in argument largely repeats ground 1 of the judicial review application before the primary judge. That is, applying the reasoning in CWY20 and ENT19, the primary judge should have held that it was legally unreasonable for the Minister not to consider violations of international law in his assessment of the national interest criterion in s 501A(2)(e). Before addressing ground 1, it is helpful to briefly outline the principles governing legal unreasonableness, and to summarise the salient aspects of the decisions in CWY20 and ENT19, given the centrality of those decisions to the issues raised by ground 1.

3.1.1    Legal unreasonableness: general principles

45    First, legal reasonableness is an essential element of lawfulness in decision-making: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58] (the Court). However, in determining whether an administrative decision is vitiated by legal unreasonableness, it is essential to bear in mind that the Court’s jurisdiction is strictly supervisory and does not involve the Court reviewing the merits of the decision: Li at [66] (Hayne, Kiefel and Bell JJ); Eden at [59].

46    Secondly, where the contention is that an administrative decision is illogical or irrational, “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] (Crennan and Bell JJ). As their Honours continued (at [135]):

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

47    Thirdly, it follows that the threshold for finding that the end result or fact finding leading to the end result is illogical or irrational is high. Disagreement, even emphatic disagreement, with the administrative decision-maker’s reasoning is not sufficient: Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]-[25] (the Court) (quoted with approval by the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166; (2021) 287 FCR 328 at [22] (McKerracher and Griffiths JJ), the merits of which were not questioned when overturned by the High Court on an issue of apprehended bias: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 66 Fam LR 369 at [1] (Kiefel CJ and Gageler J)).

48    Fourthly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ, with whose reasons Griffith and Wigney JJ agreed at [87] and [90] respectively).

49    Finally, whether a decision-maker has failed to reach a state of satisfaction reasonably is a fact-specific inquiry. As Nettle and Gordon JJ observed in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at [84]):

legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case.

50    Thus, in determining whether a decision was legally unreasonable, “the question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker”: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85] (the Court); see also SZMDS at [130] (Crennan and Bell JJ).

3.1.2    The decision in CWY20

51    It is convenient to note first that applications for special leave in CWY20 and ENT19 were both dismissed on 5 May 2022, including on the basis that the proposed appeals had “insufficient prospects of success to warrant the grant of special leave”: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2022] HCASL 93; Minister for Home Affairs v ENT19 [2022] HCASL 94. Secondly, I note that in CCU21 v Minister for Home Affairs [2023] FCAFC 87, the Full Court unanimously held that (and did not cast doubt on) the reasoning in CWY20 and ENT19 applied to s 501(3) of the Act (at [35]), but did not accept on the facts of that case that it was irrational or unreasonable for the Minister not to advert to the consequences for Australia’s international reputation of a breach of its non-refoulement obligations in assessing the national interest (at [50]).

52    In CWY20, the Full Court heard and determined an appeal involving a refusal by the Acting Minister to grant a protection visa under s 501A(2) (CWY20) together with an application for judicial review arising from a decision by the Minister to cancel a protection visa under the same provision (QJMV v Minister for Home Affairs).

53    The lead judgment is that of Besanko J with whose reasons the other members of the Court agreed (Allsop CJ, Kenny, Kerr (subject to one caveat not presently relevant), and Charlesworth JJ). I note that Kerr and Charlesworth JJ also concurred with Allsop CJ’s separate reasons.

54    The salient matters arising from the decision in CWY20 may be summarised as follows.

55    First, the Minister’s power under s 501A(2) is discretionary: CWY20 at [20] (Allsop CJ), [93]-[108] (Besanko J).

56    Secondly, Allsop CJ explained at [12] that Australia’s non-refoulement obligations are found in Art 3 of the CAT, Art 2 read with Arts 6 and 7 of the ICCPR, 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, opened for signature 16 December 1966, 606 UNTS 267 (entered into force 4 October 1967), in addition to any obligations that may exist under customary international law. His Honour further explained at [13] that Australia is under an obligation to observe and perform its obligations under treaties to which it is a party (which it has ratified) under Art 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. His Honour therefore observed that the failure to perform its international obligations may lead to legal consequences for Australia at international law.

(I interpose that the High Court in CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529 explained at [24] that:

it is accepted as a matter of international law that Art 2 [of the ICCPR] impliedly obligates States Parties not to remove a person from their territory where there are ‘substantial grounds’ for believing that there is a real risk of irreparable harm of the kind contemplated by Arts 6 and 7 in the country to which such removal is to be effected. ‘Substantial grounds’ means, however, that it must be a necessary and foreseeable consequence of refoulement that the person would suffer the kind of harm identified in Arts 6 and 7 [namely arbitrary deprivation of life or torture or cruel or inhuman or degrading treatment or punishment].

See also CCU21 at [4] (the Court).)

57    Thirdly, the implications of Australia breaching its non-refoulement obligations are not a mandatory relevant consideration with respect to every exercise of power under s 501A(2) in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42 (Mason J): at [155] (Besanko J) and [180] (Kerr J not deciding). There may be cases where Australia’s non-refoulement obligations are not raised and are not relevant: at [155] (Besanko J).

58    Fourthly, the national interest criterion in s 501A(2)(e) “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” (at [137]). However, the power is not unlimited and the Minister must attain the requisite state of satisfaction reasonably (at [140] and [167] (Besanko J)).

59    Fifthly, a failure to consider Australia’s non-refoulement obligations when assessing the national interest under s 501A(2) may be unreasonable in a particular case (at [22] (Allsop CJ), [157] and [165] (Besanko J)). This is distinct from the weighing process which is for the Minister to undertake and not the Court (at [166] (Besanko J)). In CWY20, Besanko J observed that the primary judge did not trespass into the weighing process, but “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” (ibid).

60    In the circumstances of both the appeal (CWY20) and judicial review proceedings (QJMV), 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 the findings which the Minister made, namely, that the appellant would be refouled in breach of Australia’s obligations under international law (at [55] and [174] (Besanko J)). Specifically, in both cases the Acting Minister found (at [174]) that Australia owed the person non-refoulement obligations, and refusing or cancelling the visa would put Australia in breach of those obligations.

61    Thus Besanko J held at [169] that:

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.

62    Contrary to that requirement, the Full Court held that the Acting Minister did not expressly or by implication address whether the consequences of Australia breaching its non-refoulement obligations should or should not be part of his consideration of the national interest (at [126]-[127] and [145] (Besanko J)).

63    Sixthly, the Full Court held that the primary judge was entitled to take judicial notice of the fact that acting inconsistently with international law obligations may undermine confidence in Australia both internationally and domestically, and that compliance with international obligations was (therefore) an aspect of the national interest (at [171] (Besanko J)).

64    Finally, the Full Court held that the primary judge was 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 (at [172] (Besanko J)). Specifically, the Court held that the primary judge had correctly found that if the Acting Minister had considered those implications as part of his consideration of the national interest criterion (as opposed to his consideration of the discretion), there was at least a possibility that he might have reached a different conclusion on where the national interest lay (at [172] (Besanko J)).

3.1.3    The decision in ENT19

65    In ENT19, the Minister had refused the appellant’s application for a Safe Haven Enterprise Visa (SHEV) (a form of protection visa) because he was not satisfied that the grant of the SHEV was in the national interest. (I interpolate that in an exercise of original jurisdiction, the High Court quashed a later decision by the Minister for Home Affairs with respect to ENT19 under s 65 of the Act to refuse the plaintiff’s visa because the Minister was not satisfied that the visa criterion in cl 790.227 of Sch 2 to the Migration Regulations 1994 (Cth) that the grant was in the national interest: ENT19 v Minister for Home Affairs [2023] HCA 18. However, that case raised different issues from those considered in this case and may be set to one side.)

66    Katzmann J delivered the leading judgment in ENT19. Wheelahan J at [138] (with whose reasons Collier J agreed at [1]) agreed with Katzmann J’s reasons on the national interest issue. By those reasons, Katzmann J held that the Minister had failed to assess the national interest criterion rationally and reasonably by failing to consider the legal consequences of his decision, which included indefinite detention and removal from Australia. In essence, Katzmann J held that the Minister fell into jurisdictional error in failing to have regard to the implications to Australia’s international reputation of a decision refusing to grant the appellant a SHEV, namely, that:

(1)    the appellant would be refouled to Iran where he would be exposed to the risk of torture and death in breach of Australia’s international non-refoulement obligations; and

(2)    in the meantime, he would be held in indefinite detention, potentially putting Australia in breach of its obligations under the ICCPR.

67    These, her Honour held, were not “mere ‘personal circumstances’” which the Full Court has elsewhere held are not required to be taken into account in considering the national interest: at [73] and [96]-[97] (citing, amongst other authorities, Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [74]). Rather, they were matters which necessarily resulted from the application of the Act. In this regard, Katzmann J held (at [98]) that:

there is a difference between considering matters personal to a visa holder or visa applicant, especially matters of the kind to which the Full Court referred in Huynh, and considering matters that necessarily result from the application of the Act. The prospects of refoulement and indefinite detention are matters of the latter kind. Australia’s international treaty obligations are of particular relevance to any consideration of the national interest. One such obligation is Australia’s obligation under Article 33 of the Refugees Convention, which is the foundation for some of the rights to protection for which the Act provides. A similar obligation arises from Article 3 of the CAT, which is the foundation for other rights to protection enshrined in the Act.

68    Katzmann J continued at [103] that “Australia’s standing in the international community could be adversely affected by a decision to refuse to grant a protection visa to a person, like the appellant, who has been found to be a refugee”. After quoting from the reasons of Allsop CJ in CWY20 as to the place of international law and international obligations within the “national interest calculus”, her Honour held that (at [107]-[108]):

In the present case, the Minister erroneously confined his assessment of the national interest by focussing on the type of offence the appellant had committed, the appearance of granting a protection visa to such an offender, and the implications of doing so for Australia’s border protection policy. The primary judge erred in holding otherwise. The Minister was entitled to take those factors into account. They were not irrelevant to the national interest. But the implications for Australia of returning the appellant to his country of nationality in breach of Australia’s non-refoulement obligations were also intrinsically and inherently relevant, for the reasons identified by Allsop CJ in CWY20, including because a breach of international legal obligations is a legal consequence of the decision. So, too, was the prospect of indefinite detention for, unless the detention were for a lawful purpose, detaining the appellant indefinitely could put Australia in breach of its obligations under the ICCPR.

Further, as in CWY20, in the particular circumstances of the present case no reasonable decision-maker could lawfully calculate whether it was in the national interest to grant the applicant a visa without considering both these prospective eventualities. Even if detaining the appellant indefinitely were lawful, as a legal consequence of his decision the Minister was bound to take it into account before determining whether he could be satisfied that it was in the national interest to grant the appellant a visa.

(Emphasis added.)

69    It follows that the Full Court in ENT19 not only applied CWY20 so as to hold that it was unreasonable to fail to consider the implications for Australia in refouling the appellant in breach of Australia’s international non-refoulement obligations when assessing the national interest criterion; the Full Court extended that principle to apply also to the prospect of indefinitely detaining the appellant which “could” put Australia in breach of its international human rights obligations (as the primary judge held).

3.1.4    Disposition of ground 1

3.1.4.1    Overview of the appellant’s submissions

70    With respect to ground 1, the appellant submitted that the present case was not relevantly distinguishable from CWY20 and ENT19. Specifically, the appellant submitted that, having accepted that the appellant would be detained indefinitely if his protection visa application were refused, the Minister failed to consider whether “such detention … would then cause Australia to potentially breach its international legal obligations in, for example, the Convention Against Torture, the ICCPR or the UDHR in forming the anterior state of satisfaction required” in determining whether it was in the national interest to refuse his visa application (emphasis added).

71    Consistent with the holding in CWY20 (at [155]), the appellant expressly disavowed the proposition that an assessment of whether refusal would breach Australia’s international obligations was a mandatory requirement in every case. As a result, it was not in issue that breaches (or purported breaches) of international law are not a mandatory relevant consideration: see also Applicant S270/2019 v Minister for Immigration & Border Protection [2020] HCA 32; (2020) 94 ALJR 897 at [33]-[35] (Nettle, Gordon and Edelman JJ); Plaintiff M1 at [20] (Kiefel, Keane, Gordon and Steward JJ; Gageler J agreeing).

72    Rather, the appellant submitted that it was legally unreasonable for the Minister not to have considered the international reputation submission (as set out below) in assessing the national interest criterion in the particular circumstances of his case because:

(1)    the appellant raised this claim “squarely” in his statement dated 23 September 2021 to the Minister; or, in any event,

(2)    regardless of whether or not a representation had been made, it was incumbent on the Minister “to address any relevant component of the national interest which arose squarely on the material before the Minister”, relying upon CWY20 at [53].

73    In my view, these submissions must be rejected for the following reasons.

3.1.4.2    Was the international reputation submission raised squarely by the appellant in the context of the national interest criterion?

74    Turning to the first way in which the appellant put his case, the appellant submitted that the following submission in his statement to the Minister squarely raised the issue so as to require the Minister to consider whether his indefinite or prolonged detention would be in breach of the ICCPR, CAT and UDHR:

The Australian community would also expect that Australia respects its international obligations as a good global citizen to not deport me or indefinitely detain me or detain me for a very long period of time (which would be the practical and legal consequence of the refusal of my protection visa in my particular case).

75    This submission (the international reputation submission) focused upon the reputational consequences for Australia of breaching its international obligations, as opposed to focusing upon the appellant’s personal interests in not being refouled or being detained indefinitely or for a lengthy period: CCU21 at [5] (the Court). Further, as is evident, the international reputation submission had two limbs: the first limb focused upon international obligations not to deport, and the second upon international obligations not to detain indefinitely or for a lengthy period.

76    The first limb of the international reputation submission plainly raised an issue in relation to Australia’s international non-refoulement obligations in a context where a protection finding had been made in the appellant’s favour, and was so understood by the Minister. No complaint is made about the Minister’s consideration of that issue.

77    The appellant’s complaint is with the second limb of the international reputation submission. However, in his statement to the Minister the appellant did not identify the specific international obligations which he said Australia would breach if he were detained indefinitely or for a lengthy period, or why his indefinite or prolonged detention would result in a breach of those obligations. Moreover, the international reputation submission was made by the appellant to the Minister as one of a list of matters “concerning the discretionary aspect of the s 501A(2) power” (emphasis added). No submission was made to this effect by the appellant to the Minister in relation to the national interest criterion in s 501A(2).

78    As such, the international reputation submission was relevantly made at a high level of generality and only in relation to the exercise of discretion by the Minister. Contrary to the appellant’s submissions, therefore, he did not squarely raise a claim that the Minister was required, in assessing the national interest, to consider the consequences for Australia’s international reputation if the visa were refused because the appellant would be detained indefinitely in breach of specific articles of the ICCPR, the CAT and/or the UDHR.

79    The Minister had regard to the appellant’s international reputation submission in the context of considering whether or not to exercise his discretion, accepting the appellant’s submission that he faced the prospect of indefinite detention. Specifically, the Minister found (at [218]-[219]) that:

I am aware that the legal consequences of a decision to refuse [the appellant’s] visa application are that, as an unlawful non-citizen, he must continue to be detained in accordance with s189 and s196 of the Act, until removed from Australia or granted a visa. Further, by reason of the protection finding made in the course of considering his protection visa application, s198 will not require or authorise him to be removed to South Sudan, except in certain limited circumstances which are not presently relevant (s197C(3)). The prospects of finding another country willing to receive him are poor. As a result, I am aware that [the appellant] faces the prospect of immigration detention for an indefinite period.

I have given consideration to [the appellant’s] submission dated 23 September 2021 in which he addresses the possibility of prolonged or indefinite detention as a legal consequence of a decision to refuse his visa. [The appellant] acknowledges that the practical and legal consequence of a decision to refuse his visa would be ‘indefinite detention or at least prolonged detention spanning many years or decades.’ He submits that he will suffer ‘grave consequences’ if he is forced to remain in indefinite detention … [The appellant] also maintains that Australia is obliged, with respect to its ‘international obligations as a good global citizen’, not to subject him to prolonged or indefinite detention …

(Emphasis added.)

80    It follows that the Minister did expressly consider the appellant’s international reputation submission in the context where the appellant alleged that it was relevant, namely, to the exercise of discretion, and did so in a manner reflective of the level of detail with which the submission had been made.

3.1.4.3    Was it otherwise incumbent on the Minister to consider the international reputation submission?

81    Turning to the second way in which the appellant put ground 1, I agree with the primary judge that the appellant’s case necessarily involves an extension to the reasoning in CWY20 of the kind upheld by the Full Court in ENT19, but in circumstances where s 197C(3) of the Act has now been enacted. Unlike CWY20 and ENT19, there was therefore no prospect of Australia returning the appellant to South Sudan in breach of its non-refoulement obligations (as the Minister accepted in his reasons).

82    As the primary judge held, for the appellant’s proposed extension to the reasoning in CWY20 to succeed, it is necessary to satisfy each of the five steps identified by her Honour at [32], including relevantly steps (b) and (c) that:

(b)    as a result of ss 189, 196, and 197C(3), the appellant would be kept in indefinite detention; and

(c)    indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party.

83    As earlier explained, her Honour held that these two propositions are contestable. What that means is that the implications of Australia breaching its international obligations under the international instruments concerned did not squarely arise so as to require their consideration in the context of the national interest criterion. More significantly, as developed below, if the propositions are contestable only and not inevitable consequences of the refusal to grant the visa, then, it follows from CWY20, that it is not unreasonable or irrational for the Minister not to take those matters into account.

84    It is unnecessary to determine whether the primary judge correctly held, with respect to step (b), that the appellant’s contention that he would be kept in indefinite detention was contestable. If the reference to indefinite detention meant no more than that the appellant’s detention had no fixed end point by reference either to a specific event or time, the proposition that he would be kept in indefinite detention would be self-evidently correct. However, the appellant appears to use the phrase in a different sense as meaning detention for a very lengthy period of time with no fixed end point, and perhaps permanently (which would potentially raise questions as to the validity of the detention under domestic law, as I later explain).

85    That notwithstanding, irrespective of the sense in which the phrase is used, the more fundamental issue is that raised by step (c), namely: whether the proposition that indefinite detention would constitute a breach of Australia’s international obligations was an inevitable or certain legal consequence of the Minister’s decision or merely a reasonably arguable consequence.

86    With respect to the particular international obligations relied upon by the appellant, Art 9(1) of the ICCPR relevantly provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

87    Article 2 of the ICCPR creates an obligation on State Parties to realise the rights in the ICCPR, while Art 26 provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

88    Articles 2, 3, 7, 8 and 9 of the UDHR (which is not a treaty or binding in its own right) relevantly provides that:

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. …

Article 3

Everyone has the right to life, liberty and security of person.

…

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

89    Finally, Art 16(1) of the CAT provides that:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

90    No argument was developed by the appellant in his representations to the Minister, by reference to international materials or otherwise, as to why the appellant’s indefinite or lengthy detention as a result of the Minister’s decision to refuse the visa would have the inevitable and direct effect of placing Australia in breach of the relevant articles of the ICCPR and the CAT, or how Australia could be in breach of the UDHR which is not a treaty. To the contrary, as the primary judge held at [49]:

The contestable nature of proposition (c) is also exposed in the Statement of Compatibility with Human Rights which accompanied the amending Act, required under s 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). In that statement (attached to the Explanatory Memoranda for the Bill) at p 14, it says that:

While some unlawful non-citizens affected by the amendments made by the Bill will be subject to immigration detention while awaiting removal, the Minister’s decision not to grant them a visa or place them in community detention will be made in consideration of their individual circumstances. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to their individual circumstances and therefore not be arbitrary and contrary to Article 9 [of the ICCPR].

91    The contestable nature of step (c) is also exposed by the Minister’s submissions below (as the primary judge also quoted at [50]):

Articles 2 and 26 of the ICCPR have no relevance to the present case. To the extent that the applicant’s contention is that he is unable to access an appropriate remedy in respect of his indefinite detention, the argument founders when it is accepted that he may make an application in a court of competent jurisdiction for a writ of habeas corpus (if his detention is unlawful) or a writ of mandamus (if the Commonwealth is dilatory in performing its duty under s 198 to remove him from Australia as soon as reasonably practicable).

Nor is Art 9 apt. As Hayne J observed in Al-Kateb v Godwin, “[t]here must, at least, be doubt about whether the mandatory detention of those who do not have permission to enter and remain in Australia contravenes Art 9 of the ICCPR when the detention is in accordance with a procedure established by law (Art 9(1)) and the lawfulness of that detention can readily be tested in a court (Art 9(4))”. The applicant does not otherwise explain how immigration detention under ss 189 and 196 of the Act in his circumstances is “arbitrary” within the meaning of Art 9(1).

The UDHR does not itself create enforceable obligations at international law; rather, it was through the adoption of the ICCPR that the translation of the UDHR into enforceable obligations was achieved. In any event, it is difficult to see how immigration detention could give rise to a contravention of the rights in Arts 2, 3, 7, 8 or 9 of the UDHR. So far as Art 9 of the UDHR is concerned, the applicant does not explain how immigration detention under ss 189 and 196 of the Act in his circumstances is “arbitrary”.

The applicant’s reliance on Art 16.1 of the CAT is also misplaced. The applicant has not shown how detention under ss 189 and 196 of the Act is cruel, inhuman or degrading treatment or punishment. Mandatory detention is not “punishment” because of the legal characteristics of the persons on whom it is imposed and the purpose for which it is imposed.

92    The primary judge held, and I agree, that it is unnecessary to consider whether these contentions are correct. Rather, they are relevant precisely because they indicate that the purported breaches of international law did not rise to the level of direct and inevitable legal consequences of the Minister’s decision to refuse the visa. That being so, and bearing in mind the high threshold for establishing legal unreasonableness, there is no legal unreasonableness or irrationality in the Minister, when addressing the national interest criterion, failing to consider arguable breaches of international law (which indeed were not even raised by the appellant before the Minister).

93    By contrast, in CWY20 the Full Court held that the Acting Minister, acting rationally, could not have concluded that Australia’s breach of international non-refoulement obligations was immaterial to his assessment of Australia’s national interest in circumstances where that breach was an inevitable legal consequence of the Acting Minister’s decision and was an accepted consequence by the Acting Minister. It is for this reason that the Full Court held that the failure by the Minister to consider the international reputational consequences for Australia, in the context of addressing the national interest, was legally unreasonable.

94    It follows that the decision in CWY20 is clearly distinguishable from the present case.

95    The position with respect to ENT19 requires closer consideration. I agree with the primary judge that the reasoning in ENT19 appears to have assumed that while indefinite detention, if the non-citizen were not removed because of Australia’s non-refoulement obligations, may breach Australia’s international obligations, such detention may still be lawful under Australian law despite arguably not being for the purposes of removal or assessment (at [57]). So much was determined in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, which held that ss 189, 196 and 198 of the Act are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future. However, I note that the High Court will hear a case this year challenging the correctness of Al-Kateb (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, S28/2023) including in light of the subsequent enactment of s 197C(3) of the Act. As such, the question of whether indefinite detention in such circumstances is permitted under Australian law may be open to doubt.

96    While these constitutional issues do not arise in the present case, they are relevant insofar as it is clear that, if detention became unlawful under domestic law, it could be brought to an end by proceedings in a court of competent jurisdiction. As the primary judge held at [60], the existence of enforceable remedies by which unlawful indefinite detention could be brought to an end in turn reinforces the contestable nature of step (c) which underpins the appellant’s contentions, namely: that if the appellant were kept indefinitely in immigration detention as a consequence of the decision to refuse him a visa, this would be in breach of Australia’s international obligations.

97    In any event, the decision in ENT19 is underpinned by the following critical findings:

(1)    the Full Court characterised the appellant’s grievance in that case as that “[t]he Minister failed to take into account the fact that the legal consequence of refusing him a visa was that he would be refouled, regardless of his wishes” (at [56]; emphasis added);

(2)    the Department accepted in its submission to the Minister that the appellant could not be removed without breaching Australia’s international non-refoulement obligations (at [66]);

(3)    the Full Court held that “[o]n the basis of the material that was before the Minister at the time of his decision, the legal consequences of refusing to grant the appellant a SHEV were that he would be refouled to Iran and, in the meantime, held in indefinite detention … The former would expose the appellant to the risk of torture and death and put Australia in breach of its international non-refoulement obligations” (at [72]; emphasis added); and

(4)    the Full Court held that it was legally unreasonable for the Minister to have failed to consider that “a breach of international legal obligations is a legal consequence of the decision” (at [107]; emphasis added).

98    Two things flow from this analysis.

99    First, the decision in ENT19 is distinguishable from the present case because this is not a case where a breach of international legal obligations is a necessary legal consequence of the Minister’s decision. As the Full Court held in CCU21 at [38]:

in ENT19 no further revocation procedure existed after the visa application was refused so that the next step was removal under s 198. In both cases [i.e. ENT19 and CWY20], whilst removal under s 198 involved further administrative decisions, s 197C is clear that for the purposes of s 198 ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’. Thus, in a real sense, in both cases the decisions under review represented the last point at which the International Reputation Issue could be considered.

100    Secondly, in ENT19, Katzmann J did not explain the proposition (at [107]) that the prospect of the appellant’s indefinite detention, unless for a lawful purpose, could put Australia in breach of its international obligations, and it does not appear that the basis for that statement was the subject of argument by the parties in that case. As such, her Honour’s statement was apparently an assumption rather than a finding and, even though it is arguably part of the ratio of the decision, it is not therefore binding on later courts (see CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] (Gleeson CJ, Gummow and Heydon JJ); Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298 at [190] (Edelman J)).

101    In these circumstances, respectfully I would not follow this aspect of the decision in ENT19. Rather, for the reasons earlier explained, in deciding whether a decision is legally unreasonable because of a failure by the decision-maker to consider the full legal consequences of the decision, a distinction needs to be drawn between, on one hand, an inevitable or certain legal consequence as in CWY20 and, on the other hand, a consequence which is merely probable or arguable. While, applying CWY20, a failure to consider a consequence of the former kind may be irrational, the same does not follow with respect to a consequence of the latter kind, being merely probable or arguable. That is even more so in a case where the appellant has not raised the issue in his representations to the Minister on the national interest criterion and it does not otherwise squarely arise from the materials before the Minister.

102    As such, I do not consider that the Minister’s decision was legally unreasonable by reason of his failure to have regard to the impact on Australia’s international reputation of the arguable proposition that Australia may breach its international obligations by reason of the appellant’s likely indefinite or prolonged detention if the visa were refused. Ground 1 must therefore be dismissed.

3.2    Did the Minister exercise his discretion unreasonably in contemplating the possibility of a Minister exercising the non-compellable powers in ss 195A and 197AB (ground 2)?

103    As earlier explained, by ground 2, the appellant claims that the primary judge erred in failing to find that the Minister had failed to exercise his discretion to refuse the appellant’s visa under s 501A(2) reasonably on the basis that there was no rational possibility that the Minister would exercise his non-compellable powers in ss 195A or 197AB in relation to the appellant. In particular, the appellant contended that the primary judge erred:

(1)    in assessing the reasonableness of the Minister’s exercise of discretion (at [41]-[42]) “by reference to potential events arising at a point in time subsequent to the date on which the decision under judicial review was made, being 7 March 2022”; and

(2)    in effectively relying upon (but not complying with) s 144(1) of the Evidence Act in making findings at [42] and [73] (quoted earlier) that Ministers “may change” and “may change their minds”.

104    As to the first argument, the appellant submitted that the primary judge erred in making findings by reference to potential events arising at a subsequent point in time. According to the appellant, the reasonableness of the respondent’s exercise of the power under s 501A(2) must be assessed based on facts in existence at the time the decision was made (SZVFW at [55] (Gageler J)). By considering prospective events (that is, the future changing of a Minister) in assessing the reasonableness of the Minister’s exercise of power, the appellant contended that the primary judge fell into error.

105    With respect, that submission should be rejected.

106    It is true, as the appellant submitted, that the reasonableness of an exercise of power can only be judged based on facts in existence at the time of making a decision. As earlier explained, the question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker: DCP16 at [85] (the Court).

107    The difficulty with the appellant’s submission, however, is that in this case the Minister’s exercise of power was not conditioned on speculation about future events; nor as the primary judge held, did the Minister—having found that the national interest weighed in favour of refusing the visa—then illogically conclude that the appellant should be granted a visa in the public interest without any change in circumstances. Rather, the primary judge correctly held that the Minister was saying no more than that “a Minister has these powers and might exercise them in the future” (at [41]). A finding to that effect is a statement about circumstances reasonably within the Minister’s contemplation at the time of making his decision, based upon powers vested in the Minister or Ministers who are charged from time to time with administering the Act.

108    As to the second argument, the appellants sought to impugn the primary judge’s comments (that “Ministers may change” and “Ministers may change their mind”) as not complying with s 144(4) of the Evidence Act.

109    Section 144 of the Evidence Act relevantly provides:

(1)     Proof is not required about knowledge that is not reasonably open to question and is:

(a)     common knowledge in the locality in which the proceeding is being held or generally, or

(b)     capable of verification by reference to a document the authority of which can be reasonably be questioned.

…

(4)     The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

110    According to the appellant, the primary judge failed to comply with s 144(4) of the Evidence Act because her Honour did not provide the appellant with any opportunity to make submissions relevant to the finding that “Ministers may change” and “Ministers may change their minds”.

111    That submission also must be rejected.

112    The short point is that even if the appellant were to succeed on this aspect of ground 2, it would leave untouched the finding by her Honour that, irrespective of whether Ministers may change or change their minds, the Minister must be taken to have known that relevant circumstances may change. That is sufficient to establish that it was not unreasonable or irrational for the Minister to contemplate, at the time he made his decision, the possibility that the powers under ss 195A or 197AB might be exercised by a Minister at some time in the future. Further, as the respondent observes, the Minister himself acknowledged in his reasons that there might well be intervention under ss 195A or 197AB, and articulated the consequences of that possibility (at [226]).

113    In any event, this is not a case where the primary judge failed to comply with s 144(4) of the Evidence Act with respect to the impugned findings. The principles governing s 144(4) are well settled. As Gleeson CJ, McHugh, Hayne and Heydon JJ held in Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 204 ALR 258 at [18], s 144(4) will be breached in circumstances where:

it has not been demonstrated that the [primary judge] gave the [parties] an opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of the knowledge in question as was necessary to ensure that they were not unfairly prejudiced.

114    Plainly, therefore, s 144(4) is directed to whether a party had, in a practical sense, an opportunity to make submissions on a particular matter of common knowledge.

115    Importantly, there are circumstances where a party is afforded an opportunity to make a submission on a matter of common knowledge in compliance with s 144(4), even where a primary judge has not invited specific submissions on that point. In Combined Excavations & Supplies v Bowis [2000] NSWCA 298, for example, matters of common knowledge were raised by a plaintiff in an affidavit. That affidavit was said to provide “ample notice” to address a point of common knowledge, even though the trial judge invited no specific submissions on that matter (at [71] (Heydon JA, in dissent although not on this point). In so holding, Heydon JA observed that an argument that s 144(4) has been breached would have merit only:

if there were no notice, whether from the primary judge or otherwise, of the possibility that the primary judge might take account of the matters of common knowledge which he did take into account. Evaluation of the submission would depend on what actually happened at the hearing.

(Emphasis added.)

116    The procedural history of this matter reveals that the appellant was afforded ample opportunity to make submissions relevant to the finding that “Ministers may change” and “Ministers may change their minds”. First, the Minister’s reasons referred to the possibility that a future Minister may exercise a non-compellable power to grant the appellant a visa or residence determination (at [224]). By virtue of those reasons, the appellant was therefore put on notice as to that matter of common knowledge, and had ample opportunity to make submissions on that issue (as he in fact did, by challenging the reasonableness of that finding in ground two of his judicial review application before the primary judge).

117    Secondly, the respondent’s written submissions before the primary judge refer to the fact that a “different minister administering the Act [may take] a different view as to” the suitability of exercising a non-compellable power with respect to the appellant.

118    Therefore, this was not a case in which a matter of common knowledge was raised for the first time in the primary judge’s reasons, without any prior opportunity for submissions (cf Gattellaro).

119    In any event, I do not accept that the trial judge’s findings caused any “unfair prejudice”, because it is not possible to imagine any different finding of fact having been made if the appellant had been expressly invited to make submissions or adduce evidence on the point. Elections, changes of government and new ministerial appointments are undeniable features of Australia’s constitutional and political landscape. To succeed upon appeal, it is insufficient simply to point to a legal or procedural error in the judgment below. The appellate court must be persuaded that the judgment is materially wrong, or at least that key findings were not made so as to justify remitter. The appellant did not submit that the primary judge’s finding was wrong, or point to any basis for considering that the finding might have been wrong. Nor did the appellant explain why, if the finding were wrong, the Court should uphold the appeal and set aside the judgment below. Instead, in oral submissions, counsel for the appellant referred the Court to SZVFW at [55] (Gageler J). That passage, however, concerns issues of legal unreasonableness, and therefore appears to deal with an entirely different issue from that raised by s 144(4) of the Evidence Act. In the end, therefore, no reason was advanced as to why the primary judge’s finding evinced appealable error.

120    Ground two must therefore be dismissed.

3.3    The notice of contention

121    As I have earlier mentioned, the Minister accepted in oral submissions that there was no need for the Court to address the issues raised in his notice of contention as to the question of whether or not the earlier Full Court decisions in CWY20 and ENT19 should be overturned if this Court dismissed ground 1 of the notice of appeal. Nonetheless, I consider it appropriate to make the following observations.

122    The respondent submitted that the decision in CWY20 should not be followed on two bases. First, the respondent contended that the Full Court in CWY20 did not consider the High Court’s decisions in Lam or CPCF and the statement in CWY20 at [157] is inconsistent with the principles enunciated in those cases. As such, the respondent submitted that the Full Court’s judgment “is, therefore, plainly wrong” (citing Minister for Immigration v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [2]–[32] (Allsop CJ)) (RS at [13])). Secondly, the respondent submitted that CWY20 is inconsistent with Plaintiff M1 and, while Plaintiff M1 did not expressly overrule CWY20, the reasoning in CWY20 cannot stand with the proposition endorsed by plurality (with whose reasons Gageler J agreed at [43]) in Plaintiff M1 at [20] and [29]. As such, the respondent submitted that Plaintiff M1 has impliedly overruled CWY20 and the cases which followed it (RS at [14]).

123    While there may be difficulties in reconciling the Full Court’s decision in CWY20 with the decision of the High Court in Plaintiff M1, I note that there are a number of potentially significant points of distinction between those two decisions. I also do not agree that the Full Court’s decision overlooked, and is necessarily inconsistent with, the long-recognised principles endorsed in the passages on which the respondents rely in Lam and CPCF.

124    First, Plaintiff M1 concerned s 501CA(4) of the Act which, in contrast to s 501A(2) at issue in CWY20, does not include any requirement for the Minister to consider the “national interest”. Nor did any of the cases overruled in footnotes 61 to 69 of Plaintiff M1 concern decisions made under provisions of the Act which incorporated a national interest criterion.

125    Secondly, in CWY20 Allsop CJ pointed out at the commencement of his reasons that the unreasonableness argument “within the national interest calculus” in s 501A(2)(e), was put in a number of different ways, relevantly:

(1)    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 (at [2]); and

(2)    the proposition that a violation of an international treaty or custom is a violation of international law qua law and that should be considered to be a matter of deep and lasting significance irrespective of the effect on Australia’s international reputation (at [5]).

126    In addition to agreeing with Besanko J, Allsop CJ (with whose reasons Charlesworth and Kerr JJ concurred) in obiter accepted also the second of these propositions. However, Besanko J, with whom all members of the Court agreed, upheld the appeal only on the first of these propositions: see e.g. CWY20 at [172] and [174] referring to the unreasonableness in the Acting Minister failing to consider the implications for Australia of breaching its non-refoulement obligations. It was, in other words, the Acting Minister’s failure to consider the impact on Australia’s international reputation which was found to have been unreasonable given:

(1)    the statutory requirement to consider the national interest; and

(2)    the findings by the Acting Minister that:

(a)    Australia owed non-refoulement obligations to the appellant, CWY20, and the applicant, QJMV; and

(b)    the refusal to grant a visa to them would place Australia in breach of its international non-refoulement obligations (at [174]).

127    The Full Court did not hold that it was a failure to consider a breach of Australia’s international obligations per se that rendered the Acting Minister’s decision legally unreasonable. Furthermore, the Full Court considered that neither the implications of Australia breaching its non-refoulement obligations nor Australia’s non-refoulement obligations per se were mandatory relevant considerations in every case (at [155]). The Full Court’s focus was upon the reasonableness of the line of reasoning adopted by the Acting Minister with respect to the appellant, CWY20, and the applicant, QJMV, in light of the Acting Minister’s own findings and having regard to the statutory context including s 501A(2)(e) and the obligation to remove as soon as reasonably practicable.

128    Thirdly, in so holding the Full Court (at [151]-[155]) explicitly disavowed the proposition that Australia’s international non-refoulement obligations were a mandatory relevant consideration in the Peko-Wallsend sense, citing Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [41] and [65] and Applicant S270/2019. In this regard, even though Lam was not expressly cited, the Full Court necessarily accepted the principle endorsed in Lam in the passage relied upon by the respondents at [101] (McHugh and Gummow JJ), namely, that: “unenacted international obligations … are not mandatory relevant considerations attracting judicial review for jurisdictional error”.

129    The plurality in Plaintiff M1, in turn, relevantly upheld that principle at [20], where Kiefel CJ, Keane, Gordon and Steward JJ (with whose reasons Gageler J agreed at [43]) held that:

In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operation as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.

(See also Plaintiff M1 at [29].)

130    Turning to the decision in CPCF, in the first passage relied upon by the respondents, Gageler J explained that the proposition that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity with the established rules of international law does not give rise to any presumption “that the statute is to be read as legislatively constraining the officer to act in conformity with international law norms as those norms might be ascertained, interpreted and then enforced by a domestic court” (at [385], citing Lam at [101]). In turn, Keane J at [490] held that “an international treaty made by the Executive Government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament.” In my view, there is nothing necessarily inconsistent with the long established principles reflected in these passages and the decision in CWY20. It is apparent that the Full Court in CWY20 was well aware that international obligations could not be a direct source of rights and obligations under domestic law, as reflected in its acceptance that international law is not a mandatory relevant consideration.

131    Fourthly, CWY20 is a closely reasoned and unanimous decision of a five member Full Court and has been followed on a number of occasions.

132    In the fifth place, this Court has repeatedly emphasised the need for caution before departing from earlier Full Court authority. As Chief Justice Allsop held in FAK19 at [18] (Kerr and Mortimer JJ agreeing):

The caution that the Court should exercise before departing from earlier Full Court authority should be reflected in how parties approach the task of appellate advocacy and in how Full Courts approach calls and attempts to re-agitate questions of law (especially statutory construction), decided by earlier Full Courts. This is so especially in the exercise of migration jurisdiction as replete with cases, replete with the same or similar provisions being applied in case after case, and with one litigant in one Ministerial form or another in every case.

133    Finally, the Full Court in AFX17 v Minister for Home Affairs [2022] FCAFC 150 rejected, in obiter, the proposition that Plaintiff M1 impliedly overruled the decision in CWY20 even though it was ultimately unnecessarily for the Full Court to consider whether CWY20 was plainly wrong. In so doing, the Full Court expressed the view (at [31] and [32]) that:

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.)

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.

134    The Full Court further considered that, given that CWY20 was not among those authorities disapproved in a footnote in Plaintiff M1, it was “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” (at [34]). This was particularly so, given that the application for special leave to appeal the decision in CWY20 was dismissed, although in so holding the Full Court specifically acknowledged “the limitations on the significance of the dismissal of an application for special leave” (citing 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).

135    The Minister in this case characterised this aspect of the reasoning of the Full Court in AFX17 as “tentative observations”, and submitted that they should not be followed by this Court to the extent that they suggest that Plaintiff M1 has not impliedly overruled CWY20. With respect, however, that submission underplays the carefully considered obiter of the Full Court in AFX17.

136    It follows for the reasons outlined above that, if it were necessary to address the notice of contention, I would not have held that CWY20 had been implicitly overruled by Plaintiff M1; nor would I have been persuaded by the Minister’s submissions that CWY20 was plainly wrong. To this extent, I therefore respectfully disagree with the reasons of Bromwich and Kennett JJ.