Federal Court of Australia

NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

COLLIER J:

1    I have had the great benefit of reading in draft the detailed and thorough reasons of Derrington J. His Honour has determined that the appeal should be dismissed on either of two alternative grounds.

2    I agree with his Honour that the primary Judge was correct in his conclusion that, in the circumstances, there was no potential breach of the Convention and for this reason the appeal should be dismissed with costs.

3    The second ground on which Derrington J proposes dismissal of the appeal is that, in the process of being satisfied that the cancellation of the appellant’s visa was in the national interest, the Minister was not required to take into account whether the cancellation would or could result in a breach of the Convention. On this ground, I express no opinion.

4    I agree with the orders his Honour proposes.

Associate:

Dated:    1 December 2023

REASONS FOR JUDGMENT

DERRINGTON J:

5    The appellant’s Class BB Subclass 155 – Five Year Resident Return visa was mandatorily cancelled on 12 October 2020, pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), after he was convicted of four counts of indecent treatment of a child and sentenced to a period of imprisonment. He requested that the cancellation of his visa be revoked, but that was denied by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). He applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. On 1 June 2021, the Tribunal set aside the decision and revoked the cancellation under s 501CA(4) of the Act. However, on 21 October 2021, the Minister exercised the power vested in him by s 501BA(2) of the Act to set aside the Tribunal’s decision and cancel the appellant’s visa once again.

6    The appellant brought an application in this Court for judicial review of the Minister’s decision, raising a number of alleged jurisdictional errors. That application was unsuccessful before the primary judge: NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21. The appellant now appeals on somewhat more limited grounds, relating essentially to the Minister’s alleged failure to consider the consequences of actual or purported breaches of a treaty that Australia has ratified — namely, the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (the Convention).

7    The appeal must be dismissed for either of two reasons. The first reason is that, even assuming that the Minister was obliged to take into account in his decision or decision-making process the impact of Australia’s actual or potential non-compliance with the Convention, there was no instance of actual or prospective non-compliance in the present case. This was the basis on which the learned primary judge decided the matter. The second, and perhaps the predominant, reason is that, following the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), there was no requirement for the Minister to consider or take into account Australia’s obligations under the Convention, or the consequences of any actual or prospective non-compliance with those obligations, when making his decision.

Background

8    The appellant is a citizen of the United Kingdom. He was 61 years of age as at the date of the Minister’s decision. He has resided in Australia for the whole of his adult life, having moved here at the age of 17.

9    On 15 September 2020, he was convicted in the District Court of Queensland of three counts of “indecent treatment of children under 16 child under 12 years lineal descendant/guardian/carer” and sentenced to 12 months’ imprisonment, to be suspended for two years after the serving of two months’ imprisonment. On the same day, he was convicted of a separate fourth count and sentenced to a period of two months’ imprisonment and probation for three years.

10    The offences of which the appellant was convicted were of a sexual nature and were committed against a nine-year-old girl who was, at the time, a friend of his daughter.

11    By reason of the nature of the offences and the sentences received, the appellant’s visa was subject to mandatory cancellation under s 501(3A) of the Act. This occurred on 12 October 2020.

12    On 26 October 2020, the appellant requested that the Minister revoke the mandatory cancellation of his visa, as permitted by s 501CA(4) of the Act. On 5 March 2021, a delegate of the Minister decided not to revoke the cancellation.

13    The appellant lodged an application for review of the delegate’s decision in the Tribunal, pursuant to s 500(1)(ba) of the Act.

14    On 1 June 2021, the Tribunal set aside the delegate’s decision and substituted its own decision, revoking the cancellation of the appellant’s visa pursuant to s 501CA(4) of the Act.

The Minister’s decision

15    On 21 October 2021, the Minister exercised his power under s 501BA(2) of the Act to set aside the Tribunal’s decision and cancel the appellant’s visa. His ultimate determination was expressed as follows:

I am satisfied that [the appellant] does not pass the character test, and I am satisfied that it is in the national interest to cancel [the appellant’s] visa. I have decided to exercise my discretion under s 501BA of the Act. I hereby set aside the decision of the Administrative Appeals Tribunal dated 1 June 2021 and cancel [the appellant’s] Class BB Subclass 155 Five Year Resident Return visa …

16    In the reasons accompanying his decision, the Minister noted that, whilst s 501BA(3) of the Act provided that the rules of natural justice did not apply to the making of his decision, he was not prohibited from affording the appellant an opportunity to be heard. Nevertheless, he stated as follows:

10.    In this case, I chose to proceed without giving [the appellant] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [the appellant] has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance [the appellant’s] family includes: his partner, minor daughter, [name deleted], his daughter from a previous relationship, [name deleted], and other members of his extended family.

11.    I have, however, given consideration to representations made by [the appellant] in relation to the original decision and in the AAT proceedings which resulted in the AAT revoking the decision to cancel [the appellant’s] visa.

17    He then concluded that the appellant did not pass the character test on the basis that he had been convicted of a sexual offence involving a child, causing him to fall within the category of persons identified in s 501(6)(e) of the Act. The Minister thereby formed the state of satisfaction required by s 501BA(2)(a).

18    In considering whether he was satisfied that cancellation of the appellant’s visa was in the national interest, as required by s 501BA(2)(b) of the Act, the Minister expressly took into account the seriousness of the offences of which the appellant had been convicted, the risk of his reoffending or engaging in other serious conduct, the harm that might flow if that risk eventuated, and the expectations of the Australian community.

19    In the course of that consideration, the Minister also had regard to a document entitled “Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90), which was made under s 499 of the Act. He acknowledged that he was not legally bound to comply with Direction 90, but that it provided a “broad indication” of the types of issues that he was likely to take into account. By reference to Direction 90, the Minister had regard to the fact that sexual offences were viewed very seriously by the Australian Government and the Australian community, especially when they were committed against vulnerable members of society, including children. In this case, the sentence of imprisonment that the appellant received indicated the seriousness of the offending. The Minister also concluded that, although the risk of the appellant’s reoffending was low, if he was to engage in similar conduct again in the future, it may cause physical and/or psychological harm to members of the Australian community. It was noted, by reference to Direction 90, that the Australian community expected non-citizens to obey Australian laws while in Australia, and that cancellation of a visa may be appropriate simply because the nature of the character concerns that arose, or the offence that was committed, was such that the Australian community would not expect that the person in question should continue to hold a visa. On this point, the Minister found that the appellant raised “serious character concerns” and that the aforementioned community expectation applied in this case.

20    Given the foregoing, he concluded as follows:

61.    In sum, having regard to the information concerning the serious nature of [the appellant’s] criminal conduct involving sexual offending against a child, my finding regarding the serious risk to the community posed by [the appellant], as well as the expectations of the Australian community in relation to persons involved in such conduct, I concluded that the use of my discretionary power to set aside the original decision of the AAT and cancel the visa, without prior notice, is in the national interest.

21    Thereafter, the Minister turned to consider other matters in the exercise of his discretion under s 501BA. In so doing, he considered (inter alia) the best interests of the appellant’s daughter, then aged 14 years. He indicated that he treated this as a “primary consideration”, in accordance with Direction 90. He expressed his conclusion on this point as follows:

75.    I find that it is in the best interests of his minor daughter, [name deleted] that I do not cancel the visa, however, I have arrived at this conclusion with some hesitancy, given [the appellant’s] conduct against his daughter’s young friend. I have found that other primary considerations outweigh the consideration of the best interests of the minor child, [name deleted].

22    He then moved to consider other relevant matters referred to in Direction 90, including the impediments that the appellant would encounter in establishing himself and maintaining basic living standards in the United Kingdom. He found that the appellant would face practical, financial and emotional hardship consequent upon his age, separation from his family, and a lack of social, medical and economic support.

23    The Minister also took into account the fact that the appellant’s immediate family would experience emotional, practical and financial hardship as a result of the cancellation of his visa. The appellant’s contribution to the Australian community through his employment was found to be positive, and it was said that the community might therefore have a higher level of tolerance for his criminal conduct.

24    Nevertheless, the Minister regarded the appellant as representing “an unacceptable risk of harm to the Australian community”. He found that the protection of the Australian community outweighed any countervailing considerations. Consequently, he exercised his power to set aside the Tribunal’s decision and to cancel the appellant’s visa.

25    The appellant filed an application for judicial review of the Minister’s decision on 29 March 2022, which was some time after the expiry of the 35-day time limit imposed by s 477A of the Act. That delay is now irrelevant, given that the primary judge held that an extension should be granted and there has been no appeal against his Honour’s decision in that respect.

The primary judge’s decision

26    A not insignificant part of the learned primary judge’s reasons dealt with the application for an extension of time and certain allegations of jurisdictional error that are not pursued on appeal. There is no need to address further any of those matters. It suffices to say that the first and second grounds of the application for judicial review were rejected.

27    The third ground before the primary judge was that the Minister “acted unreasonably or on an incorrect understanding of the law when considering the national interest by failing to take into account that Australia would breach its international obligations” under the Convention were the appellant to be deported. So the submission went, as the Minister acted without taking into account the best interests of the appellant’s daughter or seeking her views, and as the decision had the consequence of separating the child from one of her parents, the decision breached the Convention. Such a violation of international law was submitted to be “intrinsically and inherently a matter of national interest”. As the Minister did not consider the impact of the actual or potential violation of international law on Australia’s national interest, it necessarily followed, according to the appellant, that the Minister’s state of satisfaction as to the national interest was not reached reasonably.

28    The primary judge noted the appellant’s reliance on the decision of the Full Court in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 (CWY20). There, the Acting Minister was found to have acted unreasonably by failing to consider Australia’s non-refoulement obligations at international law when assessing the national interest under s 501A(2) of the Act. It was held that it had been necessary for the Acting Minister to recognise the implications of Australia breaching its non-refoulement obligations in his assessment of the national interest, and that the primary judge had been entitled to take judicial notice of those implications: at 604 [169], [171] per Besanko J (with whom the other members of the Court agreed on this point).

29    The primary judge in the present case noted that the Full Court had emphasised that the outcome of the matter before it depended upon its particular facts. He noted that, in CWY20, the relevant facts included that the refusal to grant the respondent a visa would put Australia in breach of international law, and that the Acting Minister had failed to have regard to that matter. It was on this basis that the Acting Minister had been found to have acted unreasonably in reaching his state of satisfaction that the refusal was in the national interest.

30    The present case was, according to the reasons of the primary judge, relevantly distinguishable. While the Minister did not refer expressly to the best interests of the appellant’s child when dealing with the national interest, and did not make any express reference to the Convention, his failure to consider whether Australia would be in breach of its obligations under the Convention did not mean that his state of satisfaction as to the national interest had been reached unreasonably. This was because there was no prospective breach of the Convention to take into account. Specifically, the primary judge found that:

(a)    there was no prospective breach of Art 3 of the Convention because the Minister had expressly addressed the best interests of the appellant’s child as a primary consideration in the exercise of his discretion;

(b)    there was no prospective breach of Art 9 because the obligation imposed by that provision applied only where a child was to be removed from the care of his or her parents, not to a situation where a parent was being deported; and

(c)    there was no prospective breach of Art 12 because the appellant’s child had been provided with an opportunity to express her views in connection with her father’s potential removal from Australia, albeit not in the specific context of the Minister’s ultimate decision.

31    For those reasons, his Honour held that the Minister had not arrived unreasonably at his state of satisfaction as to the national interest and that no jurisdictional error arose. The application for judicial review was therefore dismissed.

Appeal to this Court

32    By a Notice of Appeal filed on 23 February 2023, the appellant appealed from the primary judge’s decision on three broad grounds. It later became clear that the appeal focused only on his Honour’s conclusions as to the alleged actual or prospective breaches of Arts 9 and 12 of the Convention.

The grounds of appeal

33    The three grounds of appeal identified in the appellant’s Notice of Appeal were as follows:

1.    The primary judge erred in failing to find that the Minister’s decision and decision-making process breached Australia’s obligations under the United Nations Convention on the Rights of the Child (1989);

2.     The primary judge erred in failing to find that the breach of Australia’s international obligations was intrinsically a matter of national interest; and

3.     The primary judged erred in failing to find that the Minister’s decision was affected by jurisdictional error by reason of the failure to consider such a breach.

34    Two central questions arise from these grounds. The first is whether the Minister’s decision or decision-making process would cause any breach of Australia’s obligations under Arts 9 and 12 of the Convention. The second is whether, assuming that it would cause such a breach, it would be unreasonable for the Minister to fail to consider the breach or the prospect of such a breach in his assessment of the national interest for the purpose of s 501BA(2)(b) of the Act.

35    That latter question requires it to be determined what effect, if any, is properly to be attributed to the fact that the Minister has acted contrary to the terms of a treaty that Australia has ratified but not incorporated into its domestic law by enactment. This, in turn, raises a question as to the correctness of the decision in CWY20 in the wake of the High Court’s decision in Plaintiff M1/2021. That issue was the subject of a Notice of Contention filed in this proceeding by the Minister on 28 August 2023.

36    The answer to either of the two central questions is capable of resolving the appeal. If it is found in respect of the first question that there was no breach of the Convention, then the appeal must be dismissed. It will be unnecessary to consider what consequence should follow from the Minister’s failure to take into account any actual or prospective breach in his assessment of the national interest. Equally, on the second question, if the Minister’s failure to comply with the requirements of an unenacted treaty is determined to be inconsequential, as the Minister submits it ought to be following Plaintiff M1/2021, then the appeal should also be dismissed and there will be no need to consider whether there was any breach.

37    For the reasons that follow, the answer to each question provides an independently sufficient reason to dismiss the appeal.

38    At first instance, the learned primary judge held that the decision-making process in which the Minister engaged did not give rise to any prospective contravention of the Convention, such that there was no need to consider what has been characterised above as the second central question on appeal. It is, therefore, convenient to commence by considering the issues that were the subject of the primary judge’s decision — that is, whether the Minister’s decision or decision-making process entailed any breach of Arts 9 or 12 of the Convention.

The statutory provision

39    For the present purposes, it is only necessary to refer to the following relevant parts of s 501BA of the Act:

501BA    Cancellation of visa—setting aside and substitution of non adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

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

40    The discretionary power of the Minister under s 501BA(2) to set aside the original decision and cancel a visa is conditioned on the existence of the subjective jurisdictional facts described in paragraphs (a) and (b) of that sub-section. The first is the Minister’s satisfaction that the person does not pass the character test by reason of the operation of the enumerated provisions. That jurisdictional fact is not in issue on this appeal. The second is the Minister’s satisfaction that cancellation of the person’s visa is in the national interest. The discretion, once enlivened, is conferred in general terms but is exercisable subject to any implied limitations that are to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Peko-Wallsend). A similar conclusion was reached by Besanko J in CWY20 at 585 – 592 [88] – [116] in relation to the analogous power in s 501A(2).

41    Here, putting to one side the uncontroversial finding that the appellant did not pass the character test, it can be observed that the Minister first reached the conclusion that cancellation of the appellant’s visa was in the national interest and then, separately, turned his attention to the exercise of the discretion. It was in this latter context that he took into account several of the matters specified in Direction 90 and addressed the best interests of the appellant’s child as a “primary consideration”.

42    The appellant’s case concerns the first of these steps. It is contended, specifically, that the Minister should have had regard to the impact of non-compliance with the Convention in arriving at his state of satisfaction that cancellation was in the national interest.

Issue 1 — was there any actual or prospective breach of the Convention?

43    By the first ground of appeal, the appellant contended that the Minister’s decision and decision-making process breached the Convention. He subsequently alleged, with greater specificity, that the Minister had breached Arts 9(1) and 12(2). Whether that is so depends on the proper interpretation of those articles, as applied to the Minister’s actions.

Principles of interpretation of treaties

44    There was very little difference between the parties as to the applicable principles of treaty interpretation. Those principles are expressed in the Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980): Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 408 ALR 658, 668 – 669 [38] – [39]. Article 31(1) provides, relevantly, that:

1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

45    The scope of this article is assayed in Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2nd ed, 2020) 280 – 281 [10.240]. There, the learned authors observe that the technical principles of common law construction are not to be adopted in the construction of treaties. In support of that proposition, they rely on the observation of Mason and Wilson JJ in Shipping Corp of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd (1980) 147 CLR 142 at 159 that:

It has been recognized that a national court, in the interests of uniformity, should construe rules formulated by an international convention, especially rules formulated for the purpose of governing international transactions such as the carriage of goods by sea, “in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation”, to repeat the words of Lord Wilberforce in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd.; see also Stag Line Ltd. v. Foscolo, Mango & Co. Ltd.

(Footnotes omitted).

46    This passage has since been cited for the proposition that treaties should be interpreted in a more “liberal” manner than is ordinarily adopted by a court construing domestic legislation: Morrison v Peacock (2002) 210 CLR 274, 279 [16]. The authors of Interpretation add that the justification for this approach, at least in the case of multilateral or bilateral treaties between countries with different languages and legal traditions, is that the text of a treaty ought to be understood in the same sense by all parties despite their differing drafting styles and methods of interpretation. On the other hand, they rightly question the applicability of that principle in the case of a bilateral treaty between two countries with the same language and similar legal systems. Though the point is perhaps of little relevance to the present case, it must be kept steadily in mind that treaties are, in many cases, agreements reached after years of negotiation. Lengthy debate often surrounds the use of particular words, or even a single word. A casual perusal of the travaux préparatoires of almost any treaty will bear this out. It, therefore, seems somewhat counterintuitive to set the result of such prolonged negotiation aside by recourse to a broad or “liberal” approach to interpretation, which can tend to minimise the significance of the intentional use of specific words.

The breach of Art 9 of the Convention

47    Art 9 of the Convention reads as follows:

Article 9

1.     States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2.     In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3.     States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

4.     Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

48    The appellant’s oral submissions directed foremost attention to sub-article (1). The fundamental premise of the appellant’s case was that the decision to cancel his visa would directly and inevitably cause his child (hereinafter “Child P”) to be “separated” from him, as contemplated by that sub-article, first by his detention and, thereafter, by his removal from Australia. This, so it was said, would not be in Child P’s best interests. Accordingly, the Minister’s decision to cancel the appellant’s visa would breach Art 9(1). It was submitted, on this basis, that the Minister’s determination that he was satisfied that cancellation was in the national interest was made unreasonably because he did not consider the impact of the breach of Australia’s obligations under Art 9(1) that would result from the cancellation. In particular, it was contended that such a breach would diminish Australia’s international standing and reputation.

49    There is more than one potential problem with this chain of reasoning. However, attention can initially be fixed on the difficulties attending the fundamental premise described above.

50    This premise proceeds from a construction of Art 9(1) by which a child is taken to be “separated” from his or her parents in circumstances where one parent is deported. In advocating for this construction, Mr Rebetzke for the appellant placed considerable emphasis on the object and purpose of the Convention. He also distinguished Art 9(1) and (2) from Art 9(3) and (4), describing the former as dealing with “prospective separation” and the latter as dealing with “the situation where a child is already, for whatever reason, separated from a parent”. In this way, so it was said, a separation resulting from “deportation … of one or both parents or of the child” under Art 9(4) would still be a separation subject to Art 9(1), which was required to be “necessary for the best interests of the child”.

51    The Minister, by contrast, focused on the text of Art 9(1) and the apparent inapplicability of that sub-article to a scenario in which a parent is deported. He drew a different distinction between Art 9(1) and (4): the former was said to apply “where a child is being separated from the family environment”, while the latter included the scenario “where the parent is being removed from the family environment”. In this way, the separation by deportation in Art 9(4) was effectively said to be a type of separation not covered by Art 9(1).

52    Ultimately, the appellant’s construction of Art 9(1) cannot be sustained. The primary judge’s finding to the same effect must be upheld.

53    The first reason is found in the text of Art 9(1) itself, to which the Minister properly drew attention. On its face, that sub-article appears to be concerned with a scenario in which the State separates a child from his or her parents, in the sense of removing the child from the parents’ custody or control against their will. The opening sentence of the sub-article is drafted in such a way that the provision’s imperative effect is centred on the State’s actions in respect of the child, not its actions in respect of the parents: the child is the object of the sentence and is the focus of the active language employed therein. That understanding is reinforced by the two examples set out in the second sentence of the sub-article. The first example, in which separation is made necessary by “abuse or neglect of the child by the parents”, quite plainly involves the State acting in respect of the child by removing him or her from the proximity of the parents. Likewise, the second example, in which separation follows because a decision must be made as to the child’s place of residence when both parents are living separately, again involves the State acting in respect of the child — this time, by locating or relocating him or her and, in doing so, potentially depriving him or her of association with at least one parent on a temporary or permanent basis.

54    Turning to consider the context within which Art 9(1) sits, the appellant submitted that Art 9(3) and (4) serve a “beneficial” or “remedial” purpose by requiring the State to “keep families in touch where there has been a separation of child and parent initiated by a State Party”. This characterisation of the purpose of the sub-articles cannot be entirely correct, as one of the circumstances of State-initiated separation expressly listed in Art 9(4) is the death of one or both parents or of the child, at which point there is no scope for the families to “keep in touch”. That aside, the appellant’s submission seemed to be to the effect that nothing in Art 9(3) and (4) can be taken to preclude the application of Art 9(1) to a scenario where a child is to be “separated” from a parent by the deportation of that parent — or by any of the other means listed in Art 9(4), for that matter. In other words, the circumstances of State-initiated separation expressly listed in Art 9(4) are still instances of separation that must be “necessary for the best interests of the child” in accordance with Art 9(1).

55    It has been noted already, however, that the text of Art 9(1) makes it somewhat difficult to treat that sub-article as applying to actions taken in respect of a parent. Article 9(4), meanwhile, explicitly identifies types of separation that may arise from a State initiating action in respect of a parent. The problem is that the appellant’s attempted harmonisation of Art 9(1) and (4) does not provide any particularly forceful reason to read differently the text of the former of those sub-articles. In any event, it cannot realistically be the case, as the appellant’s submission seems to suggest, that all of the means of separation contemplated by Art 9(4) are subject to Art 9(1). One might ask, for instance, how the separation of a child from his or her parents by the exile or death of the latter could ever be “necessary for the best interests of the child”, so as to maintain compliance with Art 9(1). If, in this way, at least some of the means of separation listed in Art 9(4) cannot plausibly be subject to Art 9(1), then it ought to be asked on what basis any of those means should be seen as subject to Art 9(1).

56    Noting these potential flaws in the appellant’s approach, a different construction of Art 9(1) and (4) ought to be adopted in order to allow those sub-articles to operate together more coherently. Considering closely the text, it is possible to perceive two distinct conceptions of “separation” at play in the Art 9 — namely:

(a)    a narrower conception in Art 9(1), which, for the reasons set out above, is limited to the separation of the child from the parents; and

(b)    a broader conception in Art 9(4), which includes separation by the “detention, imprisonment, exile, deportation or death … of one or both parents” and thereby extends to (but does not concern exclusively) the separation of the parents from the child.

57    The consequence of reading Art 9(1) and (4) in this way is that the former sub-article does not apply to the deportation of a parent while the latter, on its own terms, does. The obligation to be met by the State in the event of such a deportation is therefore to provide the information identified in Art 9(4); the State is not obliged to ensure that the deportation is necessary for the best interests of the child in accordance with Art 9(1).

58    It ought to be noted that this distinction between the two conceptions of “separation” in Art 9 has previously been endorsed by the courts of other countries. In the Privy Council case of Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538, Baroness Hale delivered an additional judgment in which she stated at 559 [74] that:

Article 9 of the Convention draws a distinction between the compulsory separation of a child from her parents, which must be subject to judicial review and necessary in her best interests, and the separation of a parent from his child, for example by detention, imprisonment, exile, deportation or death.

59    Those remarks were repeated by her Ladyship, with the agreement of Lords Brown and Mance JJSC, in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at 179 [25].

60    Both of these decisions were cited with approval by Miller J (delivering the judgment of the Court of Appeal) in Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] 2 NZLR 662 (Liu) at 669 – 670 [21], immediately after his Honour observed that “superior courts in other jurisdictions have also recognised or held that art 9.1 does not apply to deportation”. In the course of the same line of reasoning, his Honour stated as follows at 669 [19], when discussing the text of Art 9(1) and (4):

“[S]uch separation” [in Art 9(4)] refers to the separation of child from parents against the latter’s will, but the phrase is merely a shorthand way of expressing the grammatical subject of art 9.4. The article does not go on to provide that the obligation created in art 9.1 applies to separation that happens through deportation or imprisonment. Far from it, art 9.4 creates a different and lesser obligation in such cases; state parties must provide a family member with essential information concerning the whereabouts of the absent member.

(Emphasis added).

61    It can thus be concluded that the text of Art 9(1) indicates that the sub-article does not apply in circumstances where a parent is deported, and that nothing in the immediate context of the sub-article warrants any other conclusion. In case any doubt remains as to the inapplicability of the sub-article to such circumstances, it is worth addressing the practical repercussions of the appellant’s contrary construction.

62    One logical consequence of that construction is that the Minister cannot reasonably conclude that the cancellation of a visa under s 501BA(2) is in the national interest unless it is also in the best interests of all the children of the visa holder, or the best interests of those children are offset by sufficiently strong countervailing considerations. In effect, the starting point in almost all cases will be that cancellation is not in the national interest. This is because:

(a)    in accordance with the appellant’s construction, the cancellation will cause the child to be “separated” from his or her parent;

(b)    separation by deportation of the parent will very rarely, if ever, be “necessary for the best interests of the child”;

(c)    accordingly, Art 9(1) of the Convention will almost invariably be breached;

(d)    that breach will, according to the appellant and certain of the authorities addressed later in these reasons, result in a diminution of Australia’s reputation; and

(e)    a diminution in Australia’s reputation will self-evidently be contrary to the national interest.

63    Another logical consequence of the appellant’s preferred construction is that, if Art 9(1) was to be enacted into Australian domestic law, then a person could never lawfully be deported unless it was in the best interests of each of that person’s children, since his or her deportation would cause a parent and child to be “separated”. Mr Rebetzke accepted that conclusion. But, by the same reasoning, no person could lawfully be imprisoned unless that same criterion was met — notwithstanding the fact that this might severely impede the operation of the criminal justice system. As observed by Spigelman CJ, when addressing the operation of Art 9 in R v Togias (2001) 127 A Crim R 23 at 28 [27], “it is not clear … how a ‘separation’ by way of imprisonment can ever be determined to be ‘for the best interests of the child’ save where there has been a crime of child abuse”. Accordingly, the circumstances in which the State could imprison any person with a child without breaching Art 9(1) would be quite strictly limited.

64    It follows that, if the appellant’s preferred construction of Art 9(1) is correct, the States parties to the Convention would seem to have assumed some truly remarkable obligations.

65    The better position is that, in accordance with the understanding of the text and immediate context of Art 9(1) explained above, that sub-article has no operation in circumstances where a parent is to be deported. While, as previously noted, Mr Rebetzke placed a considerable degree of emphasis on the object and purpose of the Convention in advocating for a contrary conclusion, none of the material to which he referred in that connection was so compelling as to justify the adoption of the appellant’s construction. The passages that were cited by the appellant from the preamble and Arts 1 and 2 of the Convention, and from certain other international instruments, were pitched at an especially high level of abstraction. None of them was concrete enough to make any one conclusion more favourable than another in the present interpretive exercise. The passages can be taken to express in broad terms the normative foundations of the Convention as a whole, and might also indicate certain aspirations for the treatment of children and families in public international law more generally. However, they fall some ways short of impeaching the construction of Art 9(1) that has prevailed above, which arises from the ordinary meaning to be given to the terms of that sub-article in their context.

66    The relevant Australian authorities, to the extent that they offer any assistance, also weigh against the appellant’s construction of Art 9(1).

67     In Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479, it was submitted that the findings of a delegate of the Minister were incorrect because he had failed to take into account, amongst other things, Australia’s obligations under Art 9 of the Convention. After setting out the text of Art 9(1) and (4), French J stated at 485 that:

On this latter point, it is sufficient to say that the article does not impinge upon the right of a State to deport the parent of a child. Such a deportation will not always be in or related to the “best interests of the child” contemplated by Art 9(1).

68    In Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409, the appellant, a Malaysian citizen, was the father of three children and acted as a father to four others. He asserted that, in making the decision to deport him, a delegate of the Minister had failed to make appropriate investigations into the hardship that would result for his wife and children. In this context, Carr J had regard to Art 9(1) of the Convention — albeit while noting (at 433) that the appellant had not placed reliance on this article. At 432, his Honour stated as follows:

I would construe Art 9 par 1 as being intended to apply only where a child is to be removed from the care of:

1.     Both parents (where the parents are living together);

2.     Both or either parents (where the parents are living separately); or

3.     One parent when there is only one parent alive;

and not to a situation where the parent or parents are being deported. I refer to the expression “against their will” (clearly a reference to the will of the parents) and “is necessary for the best interest of the child” and the example of “abuse or neglect of the child by the parents”. In my opinion, the subject matter of the paragraph is removal of the child resulting in separation not removal of the parent or parents.

I read the reference in Art 9 par 3 to “is separated” as meaning “is in a state of separation” or “happens to be in a state of separation” rather than being a reference to the process of separation.

As further confirmation of this construction I consider that:

(a)     it would be strange to condition every positive decision to deport a parent from the boundaries of a State Party upon it being “necessary for the best interests of the child”; and

(b)     very clear language would be required before the public interest of a State Party in the matter of a deportation decision (either positive or negative) is to be subordinated to such a condition.

…

In my view, it is not an order for deportation with which Art 9 par 4 is concerned. The work of that paragraph is to provide the child or other family members with information as to the whereabouts of the absent member of the family once the child is in a state of separation resulting from State Party-initiated action.

69    Those views were not criticised by the High Court on appeal in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Rather, Mason CJ and Deane J observed at 288 – 289:

The respondent did not rely on Art 9, no doubt because it does not seem to address decisions to deport or, for that matter, decisions to refuse permanent entry.

70    Notably, a contrary view was expressed in Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550. In that case, the Minister signed a deportation order against the applicant, which the applicant sought to contest on the basis that he had subsequently formed a parental relationship with two children in Australia. The Tribunal refused to extend time for the making of an application for review. The applicant contended that it had erred by failing to take into account the best interests of the two children, and by failing to notify him that it intended not to do so. In discussing the relevant provisions of the Convention, Wilcox J stated at 558 that:

Article 9 dealt with separation of a child from his or her parents. …

Subarticle 4 made plain that the separation referred to in this article might be by “action initiated by a State Party” such as deportation.

71    That observation is inconsistent with the views previously expressed in the Australian case law. It is relevant to point out that his Honour’s remarks were not accompanied by any discussion of the aforementioned authorities.

72    In the present case, the learned primary judge correctly rejected Wilcox J’s construction of Art 9(1). The appellant’s preferred construction should likewise be rejected. That construction cannot be sustained on a proper understanding of the text and context of the sub-article, is liable to cause undue complications in practice, and is contrary to the weight of authority in this jurisdiction and others.

73    The primary judge (at [82]) concisely summarised the proper operation of Art 9 in this case as follows:

Accordingly, Australia does not breach Art 9(1) merely by deporting, or removing, a person from Australia where separation is contrary to the best interests of the person’s child. There was no prospective breach of Art 9(1) for the Minister to consider.

74    I agree with his Honour’s analysis and conclusion.

75    Child P has not been, and will not be, “separated” from her parents, in the relevant sense, as a consequence of the decision to cancel the appellant’s visa. Instead, it is the appellant who will be “separated” from Child P and her mother. Article 9(1) has no operation in these circumstances. Accordingly, it cannot have been breached by the Minister’s decision. It follows that the Minister did not err by failing to take into account the obligations contained in Art 9, or the impact of any actual or prospective breach of those obligations, in assessing the national interest under s 501BA(2)(b) of the Act.

The breach of Art 12 of the Convention

76    The appellant also submitted that the primary judge erred in finding that there was no prospective breach of Art 12 of the Convention for the Minister to take into account in his assessment of the national interest. That article provides as follows:

Article 12

1.     States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.     For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

77    The appellant accepted that Australia had not incorporated the Convention into domestic law and had not put in place any processes by which a child of a person who may be subject to a cancellation decision under s 501BA(2) of the Act could assert an entitlement to be heard about the effect that such a decision might have on them. On one view, that may be a complete answer to this aspect of the appeal. In the absence of any enacted obligation to afford Child P a right to be heard on all matters affecting her, there was nothing that the Minister could breach by making a decision without receiving her views. If there was a breach of the Convention, it was in the more fundamental failure of the Australian Government to put in place any mechanism that would “assure” the achievement of the article’s requirements.

78    Putting this point to one side, the appellant’s position with respect to Art 12 can be seen to involve two key contentions. First, the appellant contends that, because the Minister made a decision under s 501BA(2) without giving Child P an opportunity to be heard in relation to it, there was a breach of Australia’s obligation under Art 12(2). Secondly, it is contended that the Minister should have had regard to the impact of this prospective breach of Art 12(2) at the time that he made his assessment of the national interest under s 501BA(2)(b).

79    The primary judge focused on the first of these contentions. His Honour held as follows at [85]:

The requirement under Art 12(2) of the Convention to give a child an opportunity to be heard is subject to the opportunity being provided, “in a manner consistent with the procedural rules of national law”. As harsh as it may be, s 501BA(3) indicates that the rules of natural justice (or procedural fairness) do not apply to a decision under s 501BA(2). That section answers the description of a, “procedural rule of national law”. It is inconsistent with the necessary provision of a separate opportunity for a child to be heard in respect of a decision under s 501BA(2).

80    It was on this basis that he found that there was no prospective breach of Art 12(2) for the Minister to take into account when considering the national interest.

81    The critical question posed by the appellant on appeal is whether his Honour was correct to find that s 501BA(3) answered the description of a “procedural rule of national law”.

82    For the reasons that follow, the primary judge’s finding was correct. Accordingly, there was no prospective breach of Art 12 of the Convention, and no potential impact on the national interest for the Minister to take into account. Although the point was the subject of extensive debate as between the parties, it is sufficiently clear that s 501BA(3) is a “procedural rule” for the purpose of Art 12(2). In the absence of any statutory exception, the rules of natural justice and procedural fairness will apply to ensure the validity of decision-making processes. Here, s 501BA(3) negated any obligation, which might otherwise have existed within that corpus of rules, to afford Child P an opportunity to be heard in relation to the decision under s 501BA(2).

83    The appellant submitted that s 501BA(3) operates “substantively” to define the conditions governing the exercise of the statutory power contained in s 501BA(2). That submission should not be accepted. Rules that are directed to governing or regulating the mode or conduct of proceedings have generally been regarded as the “essence of what is procedural”: McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1, 26 – 27 (McKain). See also Stevens v Head (1993) 176 CLR 433, 445. The difference between procedural rules of this kind and substantive rules was explained in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 543 – 544 [99] as follows:

[M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive.

(Footnotes omitted).

84    Although the dividing line between the two kinds of rules is not always clear, it has been recognised that it will often be necessary to insist that a distinction be maintained for a number of forensic purposes: McKain at 40. The practical reality that all rules that are typically classified as procedural have the potential also to effect substantive rights does not eliminate the need to draw such a line: McKain at 25 – 26. Here, s 501BA(3) does not affect the rights or duties of the appellant as regards his visa or his right to remain in the country. The exclusion of the rules of natural justice, at its core, seems merely to concern his ability, and the ability of other persons, to be heard in relation to the Minister’s decision as to whether or not to cancel his visa. To put the matter more precisely, the exclusion does not go to the substantive issues of whether or not a person passes the character test and whether or not it is in the national interest that his or her visa be cancelled. Rather, it governs the conduct of the Minister’s decision-making process as an administrative proceeding.

85    The primary judge observed that s 501BA(3) might be perceived to be harsh, but it is nevertheless “a procedural rule of national law”. His Honour was correct to identify the inherently procedural nature of the sub-section. His conclusion is one with which I agree.

86    Further support for the rejection of the appellant’s submissions based on Art 12 is found in In re P-S (Children) [2013] 1 WLR 3831 (Re P-S), which concerned action taken by a local authority under the Children Act 1989 (UK) in relation to two boys, both of whom were in temporary foster care. One of the boys, in the privacy of the judge’s chambers at first instance, had expressed his views about whether he should be returned to the care of his mother. Subsequently, he applied for permission to attend the hearing in the matter to give evidence via video link so that the strength of his feelings could be made known in open court. The judge refused the application. On appeal from that decision, Sir Alan Ward (with whom Pitchford and Elias LJJ agreed) considered the scope of Art 12 of the Convention, and the explanation of that article offered by the Committee on the Rights of the Child in its General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, UN Doc CRC/C/GC/12 (20 July 2009). In his reasons, Sir Alan set out parts of that commentary — including paragraph [38], on which the appellant relied in the present case. It provided as follows:

38. The opportunity for representation must be “in a manner consistent with the procedural rules of national law”. This clause should not be interpreted as permitting the use of procedural legislation which restricts or prevents enjoyment of this fundamental right. On the contrary, States parties are encouraged to comply with the basic rules of fair proceedings, such as the right to a defence and the right to access one’s own files.

87    Commentary of this kind can be understood as offering a view as to the manner in which Art 12 is intended to operate and ought to be implemented. However, it is not binding. Nor should it be permitted to add to, subtract from, or vary the text of the instrument to which States have agreed.

88    Relevantly, in Re P-S, Sir Alan effectively held that, so long as the requirements of the Convention were met, the manner in which they were met could be shaped by the procedural rules imposed by the State. At 3844 – 3845 [35] – [36], he stated as follows:

35.     That being the jurisprudence, is it enough for us to say that a child has a right not only to be heard in proceedings affecting him but also, and more relevantly for the appeal, a right to give evidence in those proceedings? …

36.     … [I]n my judgment, it should now be declared that the child does have the former important but limited right, that is to say, a right to be heard in the proceedings. It is apparent from the foregoing that the right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed “either directly, or through a representative or appropriate body”. Indeed General Comment No 12 (2009), para 43 prefers the child being heard under conditions of confidentiality, not in open court. It may be enough that a social worker, i e the CAFCASS officer or guardian, hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.

89    He went on to recognise (at 3845 [38]) that Art 12 guaranteed that the wishes and feelings of the child were to be made known to the judge, but did not provide any answer to the question as to how that information was to be conveyed to the judge. The appeal was dismissed on this basis. It was found that the child had already been afforded an opportunity to be heard in the matter, in compliance with the terms of Art 12 of the Convention. His wishes were said (at 3845 [40]) to be “well known”. The judge, having once explained the procedure to him, did not need to see him again and did not require him to give evidence by video link.

90    In the present case, Child P did not have an opportunity to attend before the Minister, make submissions, or take any other action in direct connection with the decision-making process under s 501BA(2). No one did. However, the significance to be attributed to this state of affairs must be assessed with a proper appreciation of the context within which the s 501BA(2) decision-making process occurs. Most importantly, it must be recognised that the Minister’s decision under that sub-section can be made only after:

(a)    a person’s visa is mandatorily cancelled pursuant to s 501(3A) of the Act;

(b)    that person requests that the Minister revoke the mandatory cancellation of his or her visa pursuant to s 501CA(4);

(c)    a delegate of the Minister refuses to revoke the mandatory cancellation;

(d)    the person applies to the Tribunal, pursuant to s 500(1)(ba), for review of the delegate’s decision not to revoke the mandatory cancellation; and

(e)    the Tribunal sets aside the delegate’s decision and substitutes its own decision revoking the mandatory cancellation pursuant to s 501CA(4).

91    This multi-stage decision-making process is not especially fast-moving. In the present case, just over one year passed between the date that the appellant’s visa was mandatorily cancelled and the date that the Minister made his decision pursuant to s 501BA(2). At certain points in this overarching decision-making process, the appellant was afforded an opportunity to be heard and to put on material — including under s 501CA(3)(b), which provides that:

(3)     As soon as practicable after making the original decision [under s 501(3A)], the Minister must:

…

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

92    The reasons of the Tribunal record that the appellant gave evidence at the hearing of his application, along with his partner and certain experts. He also put a substantial quantity of written material before the Tribunal.

93    Two points must be noted. First, at those stages of the overarching decision-making process where the appellant was able to be heard and to put on material, there existed an opportunity for Child P, also, to be heard. As explained below, that opportunity was taken up. Secondly, the submissions and other materials that the appellant contributed to this broader decision-making process made their way, in one form or another, to the Minister.

94    Elaborating further on the first of these points, the Tribunal recounted in its reasons, beneath the subheading entitled “Primary Consideration 3: The Best Interests of Minor Children in Australia”, some of the evidence adduced by and on behalf of the appellant in respect of his relationship with Child P. Relevantly, it was recognised there that his partner had said in her evidence before the Tribunal that “Child [P] misses the [appellant] and is always asking when he is coming home”. It was also acknowledged that an expert, Ms Elia, who had been Child P’s treating psychologist since late-2017, had said that a particular incident, in which the appellant was released from prison and sent home only to be handcuffed and taken to immigration detention five hours later, “re-traumatised the family”. The Tribunal accepted that “it was very traumatic for Child [P] to think she had her father back only to see him handcuffed and taken away”.

95    The Tribunal was also furnished with a letter from another expert who had been looking after Child P and her mother since October 2017. That letter recognised that Child P “has significant mental health issues which have been compounded by the fact that she hasn’t been able to see [the appellant] since 2017”. The Tribunal recounted more comprehensive evidence, along similar lines, given by Ms Elia in relation to Child P’s condition. It was said that Child P “described the awful feelings of seeing her father being treated so badly by the victim’s parents and the police”, and that she reported “symptoms of anger, negative thinking, worrying, sleep disturbance, flashbacks, bad dreams and nightmares, fear of going to school and seeing the victim, difficulty concentrating, withdrawal (feeling lazy), feeling worthless and sad, and loss of appetite”. Ms Elia’s evidence was that Child P, over time, “lost more interest in school, friends and in everyday activities”. Child P also “became disgruntled with the legal system, the police and the lawyers”, and “found it difficult to understand the length of time required for any action and investigation to be taken”.

96    In this way, to a not insignificant extent, the views of Child P were able to be expressed through the evidence of other persons before the Tribunal. Although it is unnecessary to draw any conclusion on this specific point, it is at least arguable that this evidence amounted to Child P having an opportunity to express her views “through a representative or an appropriate body” in accordance with Art 12(2) of the Convention.

97    More importantly, the Tribunal referred to a letter authored by Child P herself. It explained the contents of that letter as follows:

Child [P] wrote a letter in which she said she is waiting for everything to go back to normal so she can be happy again, and that she has not been happy since all this happened. She said she cannot sleep properly and does not want to go to school. She said her father is a good person and she has complete trust in him. She said she had an interest in photography because her father was always taking photos of wildlife and he taught her how to take good photos. She misses doing that activity with him and now she stays in her room and does nothing.

(Footnotes omitted).

98    Taking all of these matters into account, the Tribunal found that the best interests of Child P weighed heavily in favour of revocation of the cancellation of the appellant’s visa.

99    In relation to the second of the aforementioned points, it is relevant to point out that the learned primary judge referred to Child P’s letter and held that, although it was not specifically referred to by the Minister, its substance was articulated in the Tribunal’s reasons which were in turn read by the Minister. His Honour found as follows at [84]:

The letter was described in detail in the reasons of the Tribunal, which were before the Minister. Although the letter was not expressly referred to in the Minister’s reasons, the Minister specifically referred to the Tribunal’s finding that the best interests of the applicant’s daughter weighed heavily in favour of revocation. I draw an inference that the Minister read the Tribunal’s reasons, including the Tribunal’s description of the letter written by the applicant’s daughter, and considered her views. The applicant’s daughter was provided with an opportunity to express her views as to the prospect of her father being removed from Australia, albeit not in the specific context of the Minister’s ultimate decision.

100    The inference drawn by the primary judge was not challenged on appeal. Accordingly, it can be accepted that Child P’s views were made known to the Minister in the course of his decision-making process under s 501BA(2), even though they were not sought specifically for that purpose. As explained above, the broader multi-stage decision-making process and the procedural rules applicable therein created an opportunity for Child P to make known her views about the effect that the cancellation of the appellant’s visa had on her. She availed herself of that opportunity. Whilst her views may have been presented to the Minister only somewhat indirectly, there is nothing to suggest that they were not received and taken properly into account in the course of his decision-making process.

101    It follows that, if there was any obligation arising under Art 12 to afford Child P an opportunity to be heard in respect of the Minister’s decision to cancel the appellant’s visa, notwithstanding the effect of s 501BA(3), then that obligation was satisfied in this case. If it could be said, correlatively, that Child P had a positive right to be heard, then it would be apt to recall the observation of Sir Alan Ward in Re P-S, extracted above, that the Convention “does not specify how the child is to be heard”. The necessary conclusion here is that there has not been any breach of Art 12 of the Convention, and the Minister committed no error by omitting to take into account the impact of a prospective breach in assessing the national interest.

102    At the hearing of the appeal, Mr Rebetzke submitted that the Minister’s decision under s 501BA(2) constituted a “fresh exercise of power”, and that Child P’s circumstances had changed materially between the time that she wrote the letter referred to by the Tribunal and the time of that decision. It was contended, on this basis, that the Minister’s consideration of the letter could not be taken to demonstrate that Child P had been afforded a sufficient opportunity to be heard.

103    With respect, this submission finds little support in the text of Art 12 itself. Again, as pointed out in Re P-S, the article does not stipulate any particular means by which a child is to be heard. Article 12(2), to which much of the attention in this case was directed, merely states that the child shall be provided “the opportunity to be heard in any … administrative proceedings affecting the child”. It does not go so far as to require that the child be afforded an opportunity to be heard in respect of every discrete decision forming part of the administrative proceedings. Likewise, Art 12(1) merely requires that the child be assured the right to express his or her own views freely “in all matters affecting the child”. The appellant’s approach would treat those words as meaning, effectively, that the right is to be exercisable in respect of every step of an administrative process and on all occasions. However, there is no apparent reason to treat Art 12(1) as being so prescriptive. The objective of the sub-article is, as its words quite straightforwardly suggest, to ensure that a child is afforded an opportunity to be heard in relation to any matter that affects him or her. Here, the overarching “matter” affecting Child P was the prospect of her being separated from her father by the cancellation of his visa. Her views on that matter were recorded in the course of the multi-stage decision-making process outlined above. They were available for consideration (and, indeed, were considered) at the final stage of that process, when the Minister made his decision under s 501BA(2). The requirements of Art 12 were therefore satisfied. There was no actual or prospective breach of the Convention.

Conclusion on the construction and application of the Convention

104    The inevitable conclusion is that the primary judge’s construction and application of Arts 9 and 12 of the Convention was correct. No part of the Minister’s decision or decision-making process was, or had the potential to be, a breach of Australia’s obligations under the Convention. Accordingly, there was no need for the Minister to have regard to the impact of any actual or potential breach of the Convention in assessing, for the purpose of s 501BA(2)(b), whether the cancellation of the appellant’s visa was in the national interest. The Minister’s decision was not affected by any jurisdictional error on account of his omission to consider such a breach.

Conclusion on issue 1 of the appeal

105    It follows that no error has been shown in those aspects of the primary judge’s reasoning and conclusions that were the subject of the grounds of appeal. As his Honour held, the Minister did not arrive unreasonably at his state of satisfaction that it was in the national interest to cancel the appellant’s visa. The appeal can be dismissed on this basis alone.

Issue 2 — should the Minister have had regard to the impact of an actual or prospective breach of the Convention as part of his decision or decision-making process?

106    It is now appropriate to turn to what might perhaps be considered an antecedent question: that is, whether the Convention, or an actual or prospective breach of its terms, was at all relevant to the Minister’s decision-making process under s 501BA(2). The fundamental issue here is whether a treaty, which has not been enacted into Australian domestic law, can have any bearing on the Minister’s assessment of the national interest and his arrival at a particular state of satisfaction. If it cannot, then the first issue addressed above does not arise and the conclusion of the primary judge could be affirmed on a ground other than those upon which he relied.

107    Mr Rebetzke accepted that this Court should decide the second issue, notwithstanding the potential sufficiency of its answer in respect of the first issue. The second issue encompasses the question as to whether the Full Court’s decision in CWY20 remains good law in light of the High Court’s decision in Plaintiff M1/2021, this being a question on which a subsequent Full Court in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 111 (BNGP) has made substantive comment. The continuing relevance of CWY20 was expressly made the subject of the Minister’s Notice of Contention, and Ms Wheatley KC for the Minister positively submitted that this second issue should be determined.

The context in which the second issue arises

108    Section 501BA is set out above and need not be repeated. However, it is apt to observe again that s 501BA(2) is structured such that, prima facie, the discretionary power that it confers is enlivened upon the satisfaction of the dual subjective jurisdictional facts found in paragraphs (a) and (b). The operation of a cognate provision, s 501A(2), was considered in detail in CWY20 by Besanko J (at 585 – 592 [88] – [116]). His Honour (with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed on this point) held that the residual discretion conferred upon the Minister under that provision fell to be exercised after the requirements in s 501A(2)(c) to (e) were satisfied. There can be little doubt as to the correctness of that conclusion, and the arguments recruited in support of it are compelling. The same arguments support an identical conclusion in respect of s 501BA(2) which features the same drafting attributes as were drawn upon by Besanko J in his reasons in CWY20. It was not suggested by either party to the present appeal that s 501BA(2) should be construed differently.

109    As an aside, that same drafting structure exists in other sections of the Act — including, in particular, s 501CA(4). That provision has been discussed in numerous decisions of this Court, including Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315, Ali v Minister for Home Affairs (2020) 278 FCR 627 (Ali) and EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409. Those authorities concluded that s 501CA(4) confers a residual discretion on the Minister, to be exercised once the subjective jurisdictional facts upon which it is pre-conditioned are satisfied. They did so by recruiting in support essentially the same arguments as were relied upon by Besanko J in CWY20. However, his Honour, albeit clearly in obiter, made reference (at 591 – 592 [116]) to the judgment of Colvin J (with whom Reeves and Rangiah JJ agreed) in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), in which a contrary construction of s 501CA(4) was adopted, and remarked that there was “no reason to doubt this aspect” of the decision having regard to the particular terms of s 501CA(4). With the greatest respect, there is considerable difficulty in differentiating the structure of s 501A(2) from that of s 501CA(4). The arguments set out in CWY20 ought to apply with equal force to the interpretation of that latter provision. There is accordingly some basis upon which to suspect that this part of the reasoning in Viane may not be correct: cf Ozer v Minister for Home Affairs [2019] FCA 104 [43].

110    Returning to s 501BA(2), the Minister is initially to ascertain whether he is satisfied, first, that the visa holder does not pass the character test for certain reasons and, secondly, that cancellation of the visa is in the national interest. If the Minister arrives at the requisite state of satisfaction on both points, a discretion to cancel the visa will arise. It was submitted by the appellant that, in assessing whether cancellation was in the national interest, the Minister in this case was required to have regard to Australia’s obligations under the Convention, whether those obligations would be breached in the event that he decided to cancel the appellant’s visa, and the impact of those prospective breaches. His failure to address these matters was said to mean that his state of satisfaction under s 501BA(2)(b) had been arrived at unreasonably. In other words, according to the appellant, the Minister formed his state of mind in a manner not contemplated by the provision.

111    In a trilogy of cases — namely, R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 432, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360 (Avon Downs), and Buck v Bavone (1976) 135 CLR 110, 118 – 119 — the High Court identified those “errors” that might invalidate a state of mind that a member of the executive has been conferred an entitlement to form. They were summarised in ‘Migrating towards a Principled Approach to Reviewing Jurisdictional Facts’ (2020) 27 Australian Journal of Administrative Law 70 at 78 as being that:

(1)    the state of mind so formed was illogical or irrational in the sense that it could not be formed by a rational or logical person in the circumstances;

(2)    the state of mind is based on findings or inferences of fact which are not supported by logical grounds or, possibly, probative evidence;

(3)    the state of mind is founded upon a misunderstanding of the law relating to the subject matter in respect of which the opinion is formed;

(4)    … factors not relevant to the state of mind are taken into consideration, or a relevant factor has been ignored; and

(5)    the formation of the state of mind was arbitrary, capricious, irrational, or not bona fide although this may well be within the scope of the illogicality and irrationality ground.

112    It should be kept steadily in mind that a review of the veracity of a state of mind, which is the condition on which a statutory power is conferred, is not an exercise in judicial review. It amounts to merits review. That has been recognised on many occasions over a long period of time: see, eg, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 654 – 655 [138] – [139]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1176 [59] – [60]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 624 [38] – [39]. Nevertheless, as the principles referred to above disclose, a sensitivity exists in relation to the Court’s intruding upon a task conferred by the legislature on a member of the Executive, and the grounds upon which judicial review will occur.

113    On this appeal, attention was directed to whether the Minister had taken into account all of those matters that he was required to consider in arriving at a state of satisfaction that cancellation of the appellant’s visa was in the national interest for the purpose of s 501BA(2)(b). In particular, it was submitted that he was required to have regard to the impact on Australia’s international reputation that would result if his decision or decision-making process breached the Convention. Correlatively, it was submitted that the Minister’s conclusion that he was satisfied that it was in the national interest to cancel the appellant’s visa was unreasonable, insofar as it was reached without the Minister having considered the consequence of non-compliance with the Convention.

114    In Avon Downs, Dixon J identified (at 360) that a state of mind purportedly held by an administrative decision-maker in accordance with a statute might be vitiated if he or she, amongst other things, “takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination”. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, 471 [85]; Foster v Minister for Customs and Justice (2000) 200 CLR 442, 447 [7] – [8]. Whether particular factors must be considered, or must not be considered, is to be determined in the same manner as one would determine what amounts to a relevant or irrelevant consideration in the exercise of a statutory discretion: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 270 [54]. That is, they are to be identified by reference to the statute in question, rather than the particular factual circumstances of the case, and they will either be expressly stated or arise “by implication from the subject-matter, scope and purpose of the Act”: Peko-Wallsend at 39 – 40. See generally Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) (2019) 167 ALD 492, 526 – 527 [123] – [125], 544 [188] – [189]; Ali at [44]; GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 [30].

115    There is no express requirement in any part of the Act that the Minister take into account Australia’s compliance with its obligations under the Convention, or the impact of any non-compliance, when considering whether cancellation of a visa is in the national interest. The appellant’s submission was, instead, that the breach of Australia’s obligations under the Convention is “intrinsically and inherently” a matter of national interest. Support for this proposition was derived from CWY20 and it is appropriate to turn to consider the reasoning in that decision in some detail.

116    That case was concerned with s 501A(2) of the Act, a cognate provision to s 501BA(2). There were two matters before the Full Court: an appeal from a judgment of a judge of this Court brought by the Acting Minister against CWY20, and an application for judicial review brought in the Court’s original jurisdiction by QJMV against the Minister for Home Affairs. The issues for determination in the two matters were related, and it is convenient for present purposes to make reference only to the appeal. The primary judge in that matter had found that the Acting Minister had acted unreasonably by failing to take into account Australia’s non-refoulement obligations when assessing whether the refusal of CWY20’s Safe Haven Enterprise (Class XE) visa was in the national interest. The Acting Minister had determined that refusal was appropriate in circumstances where the respondent had been convicted of multiple offences of a sexual nature against children. It was accepted that the respondent was a refugee to whom Australia owed protection obligations on the basis of his claims with respect to his race and religion. In other words, he was able to establish that, if he was to be returned to his country of origin, there was a risk that he would suffer harm and an accepted risk that he would be killed. It followed that his removal from the country would be a breach of Australia’s non-refoulement obligations contained in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967), and at customary international law. However, the Acting Minister did not consider the implications of Australia breaching its non-refoulement obligations when assessing the national interest under s 501A(2)(e). He took them into account only as a matter relevant to the discretion that was vested in him by s 501A(2).

117    The main judgment of the Full Court was delivered by Besanko J. At 576 – 577 [46], his Honour recognised that the primary judge had isolated the issue for determination as being:

… whether the Acting Minister fell into reviewable error in considering the implications of Australia being in breach of its international non-refoulement obligations when he addressed his residual discretion under s 501A(2) and not earlier in his analysis, with particular reference to the pre-condition to the exercise of the power that he was satisfied that refusal to grant the visa was in the national interest …

118    His Honour noted (at 578 – 579 [55] – [60]) that the primary judge had said that the implications of Australia acting in breach of its non-refoulement obligations arose squarely on the material before the Acting Minister and the findings that he had made, such that he had to confront them in assessing the national interest as required by s 501A(2). Nevertheless, the primary judge accepted that the impact of a breach of those obligations on the national interest was a matter to be determined solely by the Acting Minister. He referred to authorities in which it had been recognised that Australia’s international reputation and standing were matters falling within the ordinary meaning of the expression “national interest”, and to judicial observations concerning the significance to be accorded to Australia’s ratification of an international convention. He concluded that, “in the particular circumstances of this case”, Australia’s non-refoulement obligations were an important part of the national interest. Accordingly, the Acting Minister was held to have fallen into jurisdictional error by assessing the national interest on an erroneously narrow basis. Had the Acting Minister considered the implications of Australia acting in breach of its non-refoulement obligations as part of the national interest, he may have given the national interest a different weight or reached a different conclusion as to whether he was satisfied that the refusal of the respondent’s visa was in the national interest.

119    His Honour upheld (at 596 [133]) the primary judge’s factual finding that the Acting Minister did not give active consideration to Australia’s non-refoulement obligations in his assessment of the national interest. He identified (at 596 [135]) that the issue that then arose was whether the Acting Minister made a jurisdictional error in adopting that course.

120    On that issue, his Honour observed (at 597 [137]) that the criterion in s 501A(2)(e) that the Minister is satisfied that the refusal is in the national interest is a broad one, and it is well established that it is for the Minister and not for the Courts to determine what is and is not in the national interest: Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, 409; Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 418 – 419, 502 – 503 (Re Patterson); Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, 351 (Madafferi); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 390 – 391 (Carrascalao). At 597 [138] – [140], his Honour made reference to a number of prior authorities, from which can now be drawn the following propositions:

(a)    the expression “national interest”, when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379, 400 – 401 [42] (Pilbara); Carrascalao at 390 [157];

(b)    the discretion as to what matters might be considered is unconfined except to the extent that the subject matter, scope and purpose of the statutory provision in question enable the Court to pronounce certain matters to be definitely relevant or irrelevant: Pilbara at 400 – 401 [42], quoting Water Conversation & Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492, 505; and

(c)    the power to reach a state of satisfaction as to the national interest, while broad, is not unconfined, and the Minister must attain that state of satisfaction reasonably: Re Patterson at 446 – 447 [167]; Madafferi at 353 [89]; Carrascalao at 390 – 391 [158]; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 30 [57], [59].

121    His Honour went on to recognise (at 598 [143] – [144]) that the primary judge had held that the Acting Minister erred in not considering the implications of Australia’s breach of its non-refoulement obligations as part of his assessment of the national interest. This was said to be a jurisdictional error because it could be described, alternatively, as “reasoning unreasonably” or “failing to act upon a correct understanding of the law”. On appeal, the Acting Minister and the respondent had both focused on the primary judge’s conclusion that the Acting Minister’s reasoning was unreasonable. His Honour considered (at 598 – 599 [148]) that the parties were correct to do so.

122    Proceeding accordingly, Besanko J noted (at 599 [149]) that the primary judge had emphasised on a number of occasions in his reasons the significance of the “particular circumstances of the case before him”. His Honour then identified (at 599 [150]) that these circumstances would not be present in every case in which the Minister (or Acting Minister) was considering the exercise of the power in s 501A(2), and that it was not argued before the primary judge that the implications of Australia breaching its non-refoulement obligations was a “mandatory relevant consideration” in his assessment of the national interest.

123    The manner in which this concept of a “mandatory relevant consideration” was subsequently addressed by Besanko J is of some importance.

124    His Honour first recognised (at 599 – 600 [151] – [153]) that the Full Court and the High Court had already determined that Australia’s non-refoulement obligations were not a mandatory relevant consideration in the context of other character sections in Pt 9 of the Act, analogous to s 501A(2): see Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 65 [41], 72 [65] (Le); Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897, 902 [33] – [35]. However, he noted (at 600 [154]) that the statutory provisions relevant to those cases, unlike that which was the focus of the case before him, did not require consideration of the national interest as a condition for the exercise of power. Moreover, in the case before him, a decision adverse to the respondent meant that he would be precluded from making any application for a visa in the future. This was a matter of particular note because, as the jurisprudence in this Court had developed, a decision-maker could permissibly ignore Australia’s non-refoulement obligations if the affected person had an entitlement to raise them subsequently in the context of an application for a protection visa. It was held in Le, for instance, that Australia’s non-refoulement obligations were not a mandatory consideration in the exercise of the Minister’s power under s 501(2) because it remained open to Ms Le to apply for a protection visa and put before the Minister any material addressing whether her removal to Vietnam would be in breach of those obligations.

125    Importantly, Besanko J concluded (at 601 [155]) that the implications of Australia breaching its non-refoulement obligations (or, more simply, Australia’s non-refoulement obligations) did not constitute a mandatory relevant consideration for the purpose of s 501A(2), in the sense of being a consideration that needed to be taken into account in every case as discussed in Peko-Wallsend at 39 – 42. However, his Honour went on to state as follows at 601 [157]:

In my opinion, there is no incongruity or oddity in holding that Australia’s non-refoulement obligations is not a mandatory relevant consideration in every case and in concluding that, in a particular case, a failure to consider Australia’s non-refoulement obligations in the context of the national interest gave rise to a state of satisfaction as to the national interest not attained reasonably.

126    His Honour considered (at 602 – 603 [162] – [166]) a submission made by the Acting Minister that the primary judge’s approach impermissibly required the Court to determine the effect on Australia’s reputation or international relationships of non-compliance by the Executive with international legal obligations. It was contended by the Acting Minister that these reputational and relational matters, and their bearing on the national interest, were “so within the core political conception of the national interest that they are committed by the Act to the Minister personally, such that the Minister’s assessment of whether they should be given weight in any given case would not readily be characterised as irrational or unreasonable in the exacting legal sense”. His Honour rejected this submission, agreeing (at 603 [166]) with the primary judge’s conclusion that “Australia’s breach of its non-refoulement obligations had to be considered as part of the consideration of the national interest in order for the Acting Minister to meet the requirement of acting rationally and reasonably”, but that “the weighing process was a matter for the Acting Minister and not for the Courts”.

127    Further to this, Besanko J recognised (at 603 [167]) that the power to determine what is and is not in the national interest “has boundaries” and “it is the responsibility of the Court to identify those boundaries when called upon to do so”. He sought to support that conclusion as follows at 603 – 604 [168]:

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

128    His Honour further held (at 604 [169]) that, in the particular circumstances of the case, it was not possible for the Minister to dismiss the implications of Australia’s non-compliance with its non-refoulement obligations as being of no weight and immaterial. He noted, however, that the precise weight to be accorded to this factor was a matter for the Acting Minister. Finally, he accepted (at 604 [171]) that the primary judge was entitled to conclude that acting inconsistently with international law obligations “may” undermine confidence in Australia in an international sense. Specifically, his Honour stated as follows:

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

129    In essence, his Honour appeared to accept that, in circumstances where Australia owes treaty obligations that have not been enacted into domestic law, or are only partially and specifically enacted, and a Minister is required under statute to assess the national interest in a case where those treaty obligations will be breached, then the implications of the breach will be so inherently a matter of national interest that it will be unreasonable for the Minister not to turn his or her mind to them. Indeed, the relevance of the non-compliance is so great that the Minister cannot regard it as being an immaterial matter or a matter to be afforded no weight.

130    The other members of the Court (Allsop CJ, Kenny, Kerr and Charlesworth JJ) substantially agreed with Besanko J and the appeal was dismissed. It ought to be noted, however, that Kerr J (at 606 [180]) was unpersuaded that it was necessary for the Court to express any concluded view as to whether Australia’s non-refoulement obligations in the applicable statutory context were, or were not, a mandatory relevant consideration in the Peko-Wallsend sense.

131    Shortly after CWY20 was decided, a differently constituted Full Court handed down its decision in ENT19 v Minister for Home Affairs (2021) 289 FCR 100 (ENT19). That case concerned the Minister’s decision to refuse the appellant’s application for a Safe Haven Enterprise visa because he was not satisfied that the grant of such a visa was in the national interest. It was held that the Minister had erred by failing to take into account the prospect that the appellant would be refouled to Iran in breach of Australia’s non-refoulement obligations, and the prospect that he would be detained indefinitely in breach of Australia’s international human rights obligations. The implications of those prospective breaches were said to constitute relevant considerations, the omission of which from the Minister’s decision and decision-making process had a material effect on the outcome of the appellant’s application. At 123 – 124 [107] – [108], Katzmann J (with whom Collier and Wheelahan JJ agreed on this point) held that it was incumbent on the Minister, when arriving at a particular state of satisfaction as to the national interest, to consider the impact of the prospective non-compliance with Australia’s treaty obligations. It followed that the Minister’s decision was vitiated for his failure to take into account relevant considerations and because it was, on that basis, unreasonable.

132    As was noted by Perry J, delivering a separate judgment in the subsequent Full Court case of BNGP, at [69]:

… 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 …

133    There are, with great respect, some debateable features of the reasoning in CWY20 and ENT19. They stem from the assumption by this Court, without evidence to hand, of a prescient understanding of the impact of Australia’s non-compliance with those treaty obligations to which it has consented at international law, but not enacted into its own domestic law.

134    In CWY20, the Acting Minister submitted that a court could not make findings about the implications of Australia breaching a treaty obligation in the absence of evidence. However, the Full Court (through the reasons of Besanko J at 604 [171]) agreed with the primary judge that, in such circumstances, judicial notice could be taken of the fact that “acting inconsistently with international law obligations may undermine confidence externally”. The taking of judicial notice was seemingly justified on two bases. First, that the relevant obligation in that case was voluntarily assumed and “involved a number of other countries”. Secondly, that the assumption of the international law obligations more generally, and certain statements made in an Explanatory Memorandum and in Direction 79 (both referred to above), were “positive statements to the Australian people”, such that acting inconsistently with the obligations might “undermine confidence within Australia”.

135    Respectfully, neither of the identified justifications for taking judicial notice of the alleged harm to “external confidence” in Australia is compelling.

136    The fact that an obligation is assumed voluntarily and that other nations are involved establishes little. The harm, if any, that will flow from non-compliance with the obligation is neither revealed nor clarified by this observation. If such harm does exist, then it must be for the Executive to identify it and assess its extent. It may be that other nations are as unconcerned about Australia’s non-compliance with certain of its treaty obligations as they are about their own non-compliance. In the immediate factual context of this case and CWY20, for instance, it is certainly not self-evident that Australia has historically been the subject of international condemnation for every individual deportation decision that has been, or has possibly been, contrary to its unenacted treaty obligations. The damage to Australia’s reputation and standing in the international community that results from each decision in breach of its treaty obligations is essentially incalculable. An attempt to measure that damage would require consideration of numerous matters, including (for instance) the level of compliance by the other States parties to the treaty in question. Such analysis is neither appropriate nor feasible for a court to undertake.

137    Further, the second claimed justification, being the attitude of the Australian population to non-compliance with unenacted treaty obligations, seems to have little discernible relevance to the matters of which judicial notice was actually taken in CWY20: that is, the effect of a breach on confidence externally. The fact that an instance of non-compliance has, or has not, been condemned by Australian citizens, as a matter of practical reality, says nothing about the extent to which Australia’s reputation and standing internationally might be impacted.

138    Even if it is assumed that there will be some negative reaction to a breach of Australia’s obligations at international law, it is not abundantly clear what opprobrium will fall on Australia — including in this case, for example, if the appellant is deported in circumstances where certain obligations under the Convention have not been met. One may ask from where the opprobrium would come, in what form, how consequential it would be for Australia’s international standing, and how it would adversely affect Australia in any event. A brief perusal of the Convention reveals that Australia has almost completely failed to establish the systems, organisations and facilities needed to comply with the obligations to which it has consented.

139    Whilst a patchwork of State and Federal legislation might be taken to meet or facilitate some of the Convention’s objectives, there has been no attempt to enact, in toto, the terms of the Convention into domestic law. It is true that Part IIAA of the Australian Human Rights Commission Act 1986 (Cth) establishes a National Children’s Commissioner to, amongst other things, promote and report on matters relating to the human rights of children in Australia. However, that cannot be regarded as going far enough to meet the obligations imposed in Art 2. Similarly, although the concept of the best interests of the child, as identified in Art 3, is taken up in part in various provisions of the Family Law Act 1975 (Cth), including in particular ss 60CA, 65AA, 67L and 67V, it is apparent from its terms that Art 3 is intended to have much wider application to “all actions concerning children”.

140    A further example of non-compliance arises in relation to Art 4, which reads:

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

141    As best one can tell, little effort has been made in Australia to comply with the obligations in this article, including by introducing the rights and obligations in the Convention into domestic law.

142    Again, while the rights and obligations in Art 12 are taken up to an extent in s 60CD of the Family Law Act 1975 (Cth) in connection with parenting orders, they do not otherwise find clear expression in that statute or elsewhere. For instance, the National Children’s Commissioner may, but seemingly need not, consult children in performing his or her functions or exercising powers under s 46MB of the Australian Human Rights Commission Act 1986 (Cth). As is apparent from the reasons above in relation to the first issue in this appeal, the Act at the centre of this case does not provide legislative protection of a child’s rights under Art 12, or impose any of the obligations contained in that article. Children who arrive in Australia with their families are not interviewed separately by immigration officials.

143    Similar comments can be made in relation to many other articles in the Convention, which are given partial or only minimal effect in State or Federal legislation. Clearly, there has been no attempt to implement in domestic law the totality of the rights and obligations contained in the Convention.

144    Whilst this is not an appropriate occasion on which to catalogue the various other treaties and international instruments that Australia has entered, but has neither fully nor even substantially implemented, there is certainly no shortage of examples on which to draw.

145    It follows that whatever opprobrium falls on Australia by reason of its non-compliance with the Convention in a particular deportation case, and whatever damage it suffers to its reputation as a result, must be regarded as essentially negligible. If there is any harm to Australia’s reputation to be discerned in this context, it must come predominantly from its almost wholesale failure to implement the Convention, amongst other treaties and instruments, rather than any specific instance of non-compliance with a particular obligation at international law.

146    In any event, harm to Australia’s reputation internationally is not a concept that is realistically justiciable in domestic courts, which have neither the evidence to hand nor the conversance with the subject matter that is necessary to facilitate a proper assessment. Matters of this kind have been made the domain of the Executive by the Parliament, and rightly so. The consequences of Australia’s non-compliance with its treaty obligations are essentially political, whether they arise domestically or internationally, and it is appropriate for the Executive to be vested with the principal responsibility for evaluating those consequences — including their implications for the country’s standing amongst other nations. Through a constitutionally-mandated system of representative and responsible government, such matters are open, ultimately, to be assessed by the Australian people. With respect, it is difficult to see why it should be the place of individual judges to assume, by the taking of judicial notice in the absence of evidence, that a specific instance of non-compliance with a treaty obligation will have consequences of a certain kind and severity, such as to bear materially on the national interest.

147    It follows that the submissions of the Acting Minister in CWY20 ought to be regarded as correct: no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence. The harm that results from such a breach, if any, is entirely for the Executive to ascertain and to weigh.

148    Putting that point to one side for a moment, it is apparent from the reasons delivered in CWY20 and ENT19 that the Courts there assumed that treaty obligations that Australia has consented to but not enacted into domestic law are capable of affecting the exercise of a statutory power, in that non-compliance with such obligations is a matter that must, at least in certain cases, influence the exercise of that power. It is necessary to devote some consideration to the correctness of this reasoning in light of the High Court’s decision in Plaintiff M1/2021.

149    Plaintiff M1/2021 concerned the operation of s 501CA(4) of the Act, which empowers the Minister to revoke a cancellation decision if satisfied that a person passes the character test, as defined by s 501, or that there is “another reason” to do so. The plaintiff’s representations to the Minister, made under s 501CA(3)(b) after the mandatory cancellation of his visa, contained assertions to the effect that, if he was to be returned to South Sudan, he would face persecution, torture and death. In deciding not to revoke the cancellation decision, a delegate of the Minister held that it did not need to be determined whether non-refoulement obligations were owed in respect of the plaintiff because the plaintiff was able to make an application for a protection visa at a subsequent time. The plaintiff made such an application, but it was refused. A case was stated to the High Court concerning the correct approach where representations raised a potential breach of Australia’s non-refoulement obligations in circumstances where it was open to the plaintiff to apply for a protection visa. It was relevant for the Court to consider, in addressing this question, whether the Minister was required to take into account, in the exercise of his power under s 501CA(4), the consequences of Australia not complying with its unenacted treaty obligations.

150    After considering the relevant aspects of the statutory scheme (at 505 – 507 [10] – [16]), the joint majority observed (at 507 [18]) that Australia’s non-refoulement obligations had been addressed, to the extent that they had been enacted as domestic law, in the Act in provisions concerning the grant of protection visas. There were two criteria for the grant of a protection visa, as described in DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at 6 [1]: “that the applicant is a non-citizen in Australia ‘in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee’ under s 36(2)(a); and, if the applicant does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia’s non-refoulement obligations under international instruments”. There were also certain “ineligibility criteria” to be satisfied by the applicant.

151    In relation to the need for a decision-maker under the Act to consider Australia’s non-refoulement obligations outside of those enacted circumstances, particularly under s 501CA(4), the majority observed as follows at 507 – 508 [20]:

Australia’s international non-refoulement obligations, as distinct from the criteria for the grant of a protection visa, are addressed separately and later in the scheme of the Migration Act in the context of removal. That distinction is important. In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate 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.

(Footnotes omitted).

152    The majority then addressed the question as to how a decision-maker was to deal with representations under s 501CA(3) raising Australia’s non-refoulement obligations. In doing so, their Honours identified (at 508 [22]) that s 501CA(4) confers a wide discretionary power on the Minister to revoke a cancellation decision “if satisfied that there is ‘another reason’ why that decision should be revoked”, and that in arriving at that state of satisfaction the decision-maker undertakes an assessment by reference to the case made by the former visa holder through their representations. That scheme involves the Minister reading, identifying, understanding and evaluating the representations made. Once the Minister has done so, they may accord them the weight that they consider is appropriate (at 508 [24]). The level of engagement with the representations must also be within the bounds of rationality and reasonableness (at 508 – 509 [25]). Where no issue concerning Australia’s non-refoulement obligations is raised, “there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation” (at 510 [28]). The majority went on to observe as follows at 510 [29]:

Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international nonrefoulement 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.

(Emphasis in the original; footnotes omitted).

153    On the other hand, it was said (at 510 [30]) that:

Where the representations do include, or the circumstances do suggest, a claim of nonrefoulement 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.

(Emphasis in the original; footnotes omitted).

154    In reaching this conclusion, the majority was acutely aware of the numerous prior decisions of this Court that were inconsistent with its analysis that unenacted international non-refoulement obligations cannot be a mandatory relevant consideration in the exercise of discretionary powers conferred by statute. Those decisions had erroneously reasoned that determinations under s 501CA(4) were invalid on account of the decision-makers’ failure to take those obligations into account. More specifically, the decisions of this Court were identified as following any of four erroneous paths of reasoning (or a fifth path that has more recently been overtaken by a ministerial direction and an update to the Act), and the footnotes to the joint majority’s reasons identify those authorities that must now be understood to have been overruled (at 510 – 512 [32] – [35]). In the course of discussing those erroneous approaches, it was noted (at 511 [34]) that, to the extent that certain decisions focused on the decision-maker having failed properly to consider the consequences, both to a former visa holder and to Australia’s reputation and standing, that would flow from removing a former visa holder contrary to unenacted non-refoulement obligations at international law, they “ignored the choice Parliament made about the extent to, and manner in, which those non-refoulement obligations are incorporated into the [Act]”.

155    Justice Gageler, in a separate judgment, agreed with most of the joint majority’s reasons (at 513 [43]). However, without disagreeing with the majority’s reasoning on the point, his Honour considered that the first question, the subject of the foregoing discussion, was inappropriate to answer because it was asked in an inappropriate form.

The impact of Plaintiff M1/2021

156    The joint majority’s statement in Plaintiff M1/2021 at 507 – 508 [20], as extracted above, was as emphatic as it was clear. As a statement of constitutional principle, it both reinforced parliamentary sovereignty and rejected the suggestion that the Executive might have the capacity to create rights or obligations in a domestic setting merely by deciding, of its own accord, to bind Australia to treaties and other international instruments, the rules and normative content of which otherwise find no direct expression in domestic law. As their Honours said, “[i]t is only Parliament that may make and alter domestic law”. The necessary concomitant is that the unenacted content of treaties cannot operate “as a source of rights and obligations under domestic law”. In the administrative law context, it was expressly identified that unenacted international obligations cannot amount to mandatory relevant considerations in the exercise of discretionary decision-making powers under statute in the absence of express specification or incorporation.

157    With great deference to those who might take a different view, it seems apparent that the majority of the High Court drew a bright line between the effect of those treaty rules and standards that have been incorporated by enactment into Australia’s domestic law, and the effect of those that have not. The latter cannot function, either directly or indirectly, as a source of rights and obligations under domestic law. The majority did not seem to suggest that the issue lay only with such treaty obligations being treated as a “direct” source of rights and obligations: cf BNGP [130]. The cardinal constitutional principle to be observed is that it is for the Parliament and not the Executive to make and alter the domestic law. The majority’s reasons eschew the suggestion that the Executive can do so indirectly. It would be somewhat unusual for the norms contained in an unenacted treaty to be ineffective to create rights and obligations directly in domestic law, but then to be recognised as having that effect indirectly by functioning as mandatory relevant considerations in the exercise of statutory powers.

158    Having concluded that the Executive cannot circumvent Parliament to create rights and obligations in domestic law merely by causing Australia to enter into a treaty, the majority in Plaintiff M1/2021 recognised that unenacted treaty norms also cannot restrict or confine the exercise of administrative powers conferred by statute. Such norms cannot amount to mandatory relevant considerations, unless they have explicitly been drafted into the statutory decision-making process. They will not ordinarily be relevant by implication from the subject matter, scope and purpose of the legislation or of the particular power that it confers. Moreover, as the majority indicated (at 510 [29]), even if an unenacted international obligation is raised in connection with a decision-maker’s exercise of a statutory power, its impotence is such that neither its existence nor the consequences of its contravention are matters that the decision-maker is required to consider.

159    In BNGP, there was some difference of opinion amongst the members of the Full Court as to the impact of Plaintiff M1/2021 on the exercise of a discretionary power under the Act that requires an assessment of the national interest. It was contended that, because the provision of the Act at issue in Plaintiff M1/2021, s 501CA(4), did not incorporate a national interest criterion, the decision had no bearing on the application of a provision that did, like s 501A(2). The appellant claimed that, in the latter scenario, the reasoning in CWY20 and the cases that had followed it should continue to apply: the Minister’s determination was unreasonable because, in arriving at a state of satisfaction as to the national interest, he was required to, but did not, have regard to the fact that the consequence of his decision refusing a visa would be the indefinite detention of the appellant, which would place Australia in breach of its human rights obligations under multiple international instruments. The Minister, in opposition, filed a Notice of Contention in which it was asserted (inter alia) that the decisions in CWY20 and ENT19 should not be followed to the extent that they held that unenacted obligations amounted to 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). It was said that, while Plaintiff M1/2021 did not expressly overrule CWY20, the reasoning in CWY20 could not stand with the propositions endorsed by the joint majority of the High Court at 507 [20] and 509 [29] of its reasons.

160    As it transpired, no member of the Court in BNGP found it necessary to determine whether Plaintiff M1/2021 implicitly overruled CWY20. Nevertheless, they all made considered observations on that point in obiter.

161    Justice Perry explained (at [93]) that, in CWY20, the Full Court had held that the Acting Minister could not have concluded that Australia’s breach of its non-refoulement obligations was immaterial to his assessment of the national interest in circumstances where that breach was an inevitable legal consequence of his decision. It was for this reason that the Full Court held that the Acting Minister’s failure to consider the international reputational consequences of the breach as part of the national interest was legally unreasonable. Her Honour, on this basis, described CWY20 as being “clearly distinguishable” from the case before her (at [94]). This led her to find at [101] that:

… 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.

162    In the matter before her Honour, it was not inevitable that Australia would be in breach of its non-refoulement obligations. Therefore, there was no legal unreasonableness or irrationality in the Minister failing to consider any arguable breaches of international law. Her Honour (at [100]) disagreed with Katzmann J’s conclusion in ENT19 that the principles expressed in CWY20 extended to those circumstances where the Minister’s decision “could” put Australia in breach of its international obligations.

163    Her Honour also concluded that CWY20 was distinguishable from Plaintiff M1/2021 because the latter case did not involve any question of “national interest” (at [124]). With respect, that appears to be a distinction without a difference. The majority of the High Court was clear as to the ineffectuality of unenacted international treaty obligations: they are not the source of any domestic rights or obligations. That must be so regardless of whether a Minister is assessing the national interest or considering whether there is “another reason” to revoke a cancellation decision. As Bromwich and Kennett JJ identified in BNGP (at [146]), some of the authorities that the High Court expressly identified as no longer reflecting good law concerned the exercise of powers with a “national interest” criterion. Specifically, their Honours identified the references to Hamidy v Minister for Immigration and Border Protection (2019) 164 ALD 149, 154 [25], Kio v Minister for Home Affairs (No 2) [2019] FCA 1293 [30] – [31], Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181, 208 [110] – [111], 209 [114], 209 – 211 [117] – [124], 212 – 216 [129] – [142], 216 – 217 [148], Ibrahim v Minister for Immigration and Border Protection (No 2) (2017) 256 FCR 50, 60 – 61 [41] – [47] and Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 32 – 37 [87] – [117], and noted that these cases, unlike CWY20, did not draw a link between non-refoulement obligations and the national interest. They stated that:

The absence of any reference to that form of reasoning, or to CWY20 in particular, indicates that the decision had not been drawn to the High Court’s attention. We do not think it can be inferred that CWY20 was deliberately excluded from the expression of disapproval in Plaintiff M1.

164    Justices Bromwich and Kennett were also of the opinion that the approach adopted in CWY20 — to the effect that, whilst Australia’s unenacted non-refoulement obligations and the consequences of their non-observance were not mandatory considerations in the assessment of the national interest, a failure to consider them would in some circumstances amount to unreasonableness — was in conflict with the principle in Plaintiff M1/2021. They opined (at [148] – [149]) that the conclusion in CWY20, that it would be unreasonable for the Minister not to take into account the effect of Australia breaching unenacted non-refoulement obligations, or to advert to Australia’s non-refoulement obligations and dismiss the issue as being of no weight or immaterial, was in substance indistinguishable from treating the unenacted international obligations (or the breach of them) as a mandatory consideration in the Peko-Wallsend sense. Underlying the approach in CWY20 was the perception that the statutory concept of “national interest” (that is, the subject matter, scope and purpose of the legislation) necessarily required consideration of such matters. This, so their Honours observed, erroneously treated the unenacted international obligations as “a source of rights and obligations under domestic law”. They held at [150] that:

The same observations apply to the reasoning of Katzmann J in ENT19 v Minister for Home Affairs [2021] FCAFC 217 at [98]–[109] (Collier and Wheelahan JJ agreeing at [1], [138]). In the light of Plaintiff M1 the “legal consequences” of a decision, which the decision-maker must understand and take into account according to a line of authorities in this Court (going back to NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1), are to be understood to be the consequences visited by Australian law on the persons whom the decision affects.

165    In the absence of any domestic legal requirement for the Minister to take into account Australia’s unenacted international treaty obligations when making a decision, and in circumstances where the Minister maintains a discretion to consider such obligations even when they have squarely been raised by a person, the failure to consider the obligations cannot constitute unreasonableness. Australia’s entry into a treaty is not per se productive of domestic rights or obligations unless and until there has been enactment of the treaty’s norms into domestic law. Ultimately, the issue is one of legality. It must be asked whether the exercise of the power requires consideration of the unenacted treaty obligations in question. In light of the majority’s observations in Plaintiff M1/2021, the necessary answer in the present context is in the negative: the Minister was under no obligation to consider the Convention, or the impact of any actual or prospective breach of the Convention, in assessing under s 501BA(2)(b) of the Act whether it was in the national interest that the appellant’s visa be cancelled.

166    It follows that CWY20 should no longer be regarded as good law in the light of Plaintiff M1/2021. I am comforted in drawing this conclusion by the fact that it is consistent with the carefully considered dicta of Bromwich and Kennett JJ in BNGP, to the effect that their Honours would have reached the same conclusion had they been called upon to decide the point.

167    Finally, it bears mentioning that, in CWY20, Allsop CJ also addressed a further, slightly different, point. His Honour observed that counsel for the respondent in the appeal (CWY20) sought to anchor international law and international obligations within the national interest calculus by recourse to three related considerations. The second of these considerations, to which his Honour devoted particular attention, was that the violation of an international treaty or custom is “a violation of international law qua law”, which should be regarded as “a matter of deep and lasting significance, irrespective of the effect on Australia’s reputation in the community of nations” (at 569 [5]). These matters, so his Honour held (at 571 [14]), necessarily affected the national interest, in that:

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

(Emphasis in original).

168    This separate analysis was an important part of the decision in CWY20, having attracted the agreement of Kerr and Charlesworth JJ. However, it was not relied upon by the appellant in the present matter to any substantial degree. Nevertheless, for the sake of completeness, it ought to be pointed out that it, too, is covered by the principles explicated by the joint majority in Plaintiff M1/2021. Indeed, the analysis of Allsop CJ brings clearly into focus the rationale for those principles. To recognise that Australia’s non-compliance with unenacted treaty obligations constitutes a breach of international law is to spotlight its external impact. However, its internal impact is a different matter. Plaintiff M1/2021 makes clear that the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly.

Conclusion on the application of Plaintiff M1/2021

169    The Minister in the present case was under no obligation to consider the terms of the Convention, or the impact of any actual or prospective breach of those terms, in assessing whether it was in the national interest that the appellant’s visa be cancelled. It cannot be said that his decision was unreasonable on account of his omission to consider such matters.

Conclusion on issue 2 of the appeal

170    It follows that, even if the primary judge erred in finding that there was no breach of Arts 9 and 12 of the Convention (which, for the foregoing reasons, he did not), then his Honour’s overall conclusion could stand on the separate ground that the Minister was not required to consider the impact of any breach of Australia’s obligations under the Convention when assessing the national interest for the purpose of s 501BA(2). It follows that the appeal should be dismissed for this reason as well.

Disposition

171    Given the answers to the two central questions in this case, the appeal must be dismissed. There is no reason why the ordinary rule as to costs should not apply here, such that the appellant must pay the respondent’s costs of the appeal.

Associate:    

Dated:    1 December 2023

REASONS FOR JUDGMENT

DOWNES J:

172    I have had the considerable advantage of reading the draft reasons of Derrington J and adopt the definitions from those reasons.

173    His Honour’s reasons identify two issues on the appeal.

174    As to the first issue, I agree with Derrington J that, even assuming that the Minister was obliged to take into account in his decision or decision-making process the impact of Australia’s actual or potential non-compliance with the Convention, there was no instance of actual or prospective non-compliance in the present case. In that regard, I agree with his Honour’s reasons for reaching that conclusion and having nothing to add.

175    As to the second issue, I agree with Derrington J that, following the decision in Plaintiff M1/2021, there was no requirement for the Minister to consider or take into account Australia’s obligations under the Convention, or the consequences of any actual or prospective non-compliance with those obligations, when making his decision in this case. I also respectfully agree with his Honour’s reasons from [148] onwards.

176    I also agree with the orders which Derrington J proposes.

Associate:

Dated:    1 December 2023