FEDERAL COURT OF AUSTRALIA

AB v Minister for Immigration and Citizenship [2007] FCA 910

MIGRATION – Judicial review – Review of Minister’s decision not to grant a visa to applicant – Refusal on character grounds – Where Minister took into account as a relevant consideration whether returning applicant to his country of origin is consistent with Australia’s treaty obligations – Where Minister has no statutory obligation to give effect to treaty obligations – Where Minister exercises discretion to apply relevant treaties – Whether failure to properly apply treaties constitutes jurisdictional error – No jurisdictional error made out

ADMINISTRATIVE LAW – Procedural Fairness – Where the Department conducts an assessment of Australia’s treaty obligations in the context of the applicant’s case – Where the Department conducts a further reassessment  – Where reassessment document not provided to applicant – Whether failure to provide applicant with a copy of the reassessment amounts to practical injustice – Whether applicant can rely on a legitimate expectation that the relevant tests for the application of the treaties provided for in the original assessment would be mirrored in the reassessment – Where applicant advised to make full submissions on the treaty obligations Australia may owe to him – No failure to observe procedural fairness requirements

Migration Act 1958 (Cth) ss 351, 476A, 499, 500, 501

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited

Kindler v Canada (Communication Number 470/1991) referred to

Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 considered

M238 of 2002 v Ruddock [2003] FCAFC 260 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370 referred to

Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 considered

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 cited

Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 referred to

Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 referred to

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 referred to

AB v MINISTER FOR IMMIGRATION AND CITIZENSHIP

1247 OF 2006

TRACEY J

21 JUNE 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The name of the Respondent be amended to read “Minister for Immigration and Citizenship”.

2.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                                             The applicant seeks judicial review of a decision, made personally by the former Minister for Immigration and Multicultural Affairs on 17 October 2006, in which she refused to grant a visa to the applicant.  The Minister’s decision was made pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).  Jurisdiction to review the decision is conferred on the Court by s 476A(1)(c) of the Act.

2                                             The circumstances in which the Minister came to make the decision are somewhat unusual.  They date back to September 1982 when the applicant, as a member of the Lebanese Phalange Militia entered the Sabra and Shatilla Palestinian Refugee Camp in West Beirut.  A massacre of civilians ensued.  The applicant has, at various times, both admitted and denied that he participated in this massacre.  It is not necessary, for present purposes, to determine whether or not he killed civilians.

3                                             In December 1993 the applicant came to Australia.  In March 1994 he applied for a protection visa.  His application was refused by a delegate of the Minister in August 1994.  He appealed to the Refugee Review Tribunal.  In August 1995 the Tribunal accepted that the applicant had a well founded fear of persecution should he return to the Lebanon but held that he was not able to avail himself of the protection provided by the Refugee Convention by reason of the provisions in Articles 1F(a) and 1F(b) which excluded those involved in war crimes or crimes against humanity or in serious non political crimes.  The Tribunal’s decision was based on findings that the applicant had taken part in the massacre in the refugee camps.

4                                             Over the next decade the applicant made a series of applications to the Minister, delegates of the Minister, the Administrative Appeals Tribunal, the Refugee Review Tribunal and this Court in order that he might be able to remain in Australia.  It is not necessary to rehearse all of these applications or their outcomes.

5                                             The genesis of the present application was the detention of the applicant, as an unlawful non citizen, on 22 May 2006.  A week later his migration agent lodged an application for a Child (residence) Class BT Visa on his behalf.  It was acknowledged that the applicant did not meet the relevant criteria and it was frankly conceded that the purpose of the application was to facilitate ministerial intervention pursuant to s 351 of the Act.  An application was also made for a Bridging Visa E.   A delegate of the Minister refused the application for the Bridging Visa.  This decision was then challenged in the Migration Review Tribunal.  That Tribunal remitted the application to the department for reconsideration.  While the reconsideration was pending the department issued a notice of intention to consider the refusal of his application under s 501(1) of the Act.  The applicant was advised that:

“In reaching a decision whether to refuse [the] visa the Minister or her delegate will also have regard to whether refusing his visa application and returning him to Lebanon would constitute a breach of Australia’s international obligations under the Refugee Convention, the Convention Against Torture (CAT) or the International Covenant on Civil and Political Rights (ICCPR).  It is important that you specify in detail, any reason why you believe that Australia would be breaching its international obligations by returning [the applicant] to the Lebanon.”

This notice was given on 13 June 2006.  On 6 July 2006 the applicant’s solicitors made detailed and lengthy submissions on his behalf.  One section of these submissions was devoted to Australia’s international obligations.  It was contended that:

“Australia is subject to non refoulment obligations prohibiting the return of a person to a country where, as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of their rights under the International Convention on Civil and Political Rights (ICCPR) including the Article 6 right to life, Article 7 right to freedom from torture, cruel, inhuman or degrading treatment or punishment, or the death penalty.  Further, the Convention against Torture and other Cruel, Inhuman or degrading treatment of punishment (CAT) places an absolute prohibition on refoulment on where there are “substantial grounds for believing (the person) would be in danger of being subject to torture.”

It is submitted that there is a strong possibility that [the applicant] may well face persecution and/or torture if he is forced to return to Lebanon …

…

It is therefore submitted that there continues to be a “real chance” that [the applicant] will face persecution in Lebanon on the basis of his previous claims …”

(Emphasis in original).

This section of the written submission concluded with the observation that Australia “may breach its non refoulment obligations under the ICCR (sic) and the CAT should a decision be made to return [the applicant] to the Lebanon.”

6                     The applicant’s written submissions were considered by officers of the department.  By letter dated 25 July 2006 addressed to the applicant’s solicitors the applicant was advised:

“Please find attached an assessment of Australia (sic) potential International Treaty Obligations in the case of your client …  This assessment has been developed for consideration by the decision-maker in regard to your client (sic) application for a Bridging Visa E in connection with a dependant child application and is provided to you to facilitate any comments you wish to make in regard to the assessment.”

The applicant was also invited to furnish any additional information which he might wish the decision-maker to consider.

7                     The attached assessment summarised the applicant’s claims and then identified a series of relevant considerations.  Those considerations were framed as questions and adjacent to each question was a box which enabled the author to answer the question either “yes”, “no” or “refer to comments”.  Under the heading “Non Refoulment Obligations” questions 12, 13 and 14 read:

“12.     Is there any evidence that the person will be killed?

13.       Is there any evidence that the person will be tortured?

14.       Is there any evidence that the person will face cruel, inhumane or degrading treatment or punishment?”

Each of the questions was answered “yes” and “refer to comments”.  The comments made in relation to these questions were:

“Q12

Given the volatile nature of Lebanese politics, as well as the uncertainty created by recent Israeli military exercises in Lebanon, there is a risk that [the applicant] might be killed upon return to Lebanon.  There is, however, no evidence to support his claims that he would be targeted by pro Syrian forces in Lebanon as a result of his past activities as a member of the Lebanese Forces.  He has failed to provide evidence that he has been sufficiently high profile (sic) within the Lebanese Forces to attract that sort of attention upon return to Lebanon from forces subservient to Damascus.  There is no evidence available to supports (sic) his claims that he would be targeted by Palestinians in Lebanon as a result of his participation in the Sabra and Shatilla massacres. 

In general terms, while there has been harassment of members and supporters of the Lebanese Forces under previous pro Syrian governments in Lebanon, since the elections in 2005 there has been a lack of country information supporting claims of ongoing detention, torture or killing of such Lebanese citizens.

Q13 & 14

For the same reasons stated in response to Q12 there is no significant, current evidence that [the applicant] would face torture or cruel, inhumane or degrading treatment or punishment if returned to Lebanon apart from country information which predates the outcome of the 2005 election.”

8                     Immediately after the comments the following passage appeared:

“NON REFOULMENT OBLIGATIONS ASSESSMENT

CAT    Are there substantial grounds for believing that the person will be in danger of being subjected to torture if returned to the Country of reference?

ICCPR                        Is there a real risk that the person will face a violation of their fundamental human rights under Article 6 or 7 of the ICCPR as a necessary and foreseeable consequence of return to the country of reference?”

Both of these questions were answered “no”.  The following comments followed:

“While the violent and volatile nature of Lebanese politics since 1975 means that there will always be some risk of [the applicant] being targeted for killing or torture, the political situation in Lebanon as a result of the withdrawal of Syrian military forces and the outcome of the national elections in 2005 has substantially changed.

The reduced incidence of political violence in Lebanese politics has significantly reduced the risk of [the applicant] facing violation of his fundamental rights under Article 6 (Right to Life) or Article 7 (Freedom of Torture and Cruel, Inhumane or Degrading Treatment or Punishment) of the ICCPR if he returned to Lebanon.

Similarly, there are not substantial grounds for believing that [the applicant] would face torture if returned to Lebanon given the lack of evidence in the form of Country Information that in the aftermath of the 2005 elections, members and supporters of the Lebanese Forces face torture, detention and imprisonment by the Lebanese Government.

The current uncertainty in regard to the future stability of Lebanese politics giving the current conflict between Hezbollah and Israel and the potential for this conflict to spark a return of sectarian violence in Lebanon means that it is not possible to rule out the possibility that [the applicant] would be targeted for killing and/or torture as a result of his past, and potentially future, membership of the Lebanese Forces.”

9                     The applicant’s solicitors responded with a further lengthy and detailed submission in a letter dated 8 August 2006.  The letter acknowledged receipt of the department’s “preliminary assessment” and continued:

“It is primarily submitted that there are substantial grounds for believing that [the applicant] faces a real risk of violation of his fundamental human rights, including under the International Covenant on Civil and Political Rights … and the Convention Against Torture …, should he be returned to Lebanon.  Any suggestion to the contrary in the Department’s Assessment reflects a failure to appreciate the correct legal test as the factual findings made by the Department indicate that Australia’s non refoulment obligations are engaged in [the applicant’s] case notwithstanding a discrete, global conclusion of the contrary.”

Later in the letter attention was directed to what was meant by a “real risk” of harm within the meaning of the International Instruments.  It was submitted that:

“International case law, including the decision of the European Court of Human Rights in Soering v The United Kingdom … has established that the obligation of non refoulment arises where there is a “real risk of exposure” to violation of the ICCPR right in question.  The European Court of Human Rights has identified the correct legal test to be applied in determining the obligations of State act as to be whether,

“Substantial grounds have shown for believing that the person concerned, if expelled, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country” …

The relevant risk is required to be “real”, “foreseeable” and “personal”.  The meaning of “real” in this context is something more than “mere possibility of ill treatment” but need not amount to “certainty” …  In the CAT context, international bodies have found that the risk “must be assessed on grounds that go beyond mere theory or suspicion” but need not be “highly probable” …”

It was then submitted “that the Department’s own preliminary assessment disclose[d] a level of recognised risk that satisfies the international law requirement that there be a risk that is greater than “mere possibility” but less than “certainty”.” 

10                  Following receipt of the solicitor’s letter an issues paper was prepared by an officer of the department for consideration by the person who was to determine whether or not to refuse the applicant’s visa application under s 501(1) of the Act.  The issues paper summarised the initial assessment and the response to it by the applicant’s solicitors.  In particular, it summarised the submissions relating to the proper construction of the “real risk” test.  The issues paper continued:

“[115]                        Departmental legal advice was sought on the issues raised by [the applicant’s solicitors].  This advice indicates that [the applicant’s] agents relied in their submissions on the European Convention on Human Rights (ECHR) jurisprudence, to which Australia is not a party.  It stated that whilst it is useful in interpreting similar obligations in instruments to which Australia is a party, it is “by no means determinative”.  In addition, they did not see anything quoted by [the solicitors] from the ECHR as suggesting that the department had applied the test for refoulment incorrectly. 

[116]              The advice also refuted the interpretation by [the solicitors] of UNCAT’s general comment Number one, and stated that there did not appear to be anything wrong in the way the department had applied the test for non refoulment.  Based on this advice the department prepared a reassessment of Australia’s International Treaty Obligations.

[117]              That assessment clarifies the first by stating that there would be “remote possibility, of [the applicant] facing torture and/or death if returned to Lebanon and that it is not possible to rule out this possibility given the volatile nature of Lebanese politics.  The conclusion reached in the initial assessment was that there was a “possibility” of torture and/or death, there was no “real risk” of this given recent changes in Lebanon and therefore the refoulment obligation of the CAT and ICCPR are not invoked in regard to [the applicant] possible return to Lebanon.”

[118]              The United Nations Human Rights Committee requires that violation of fundamental rights be a “necessary and foreseeable consequence” of an individual’s removal when determining whether there is a “real risk”.  The Department assessed that country information did not support the view that [the applicant] would face violation of his rights under Article 6 or 7 or the ICCPR as a necessary and foreseeable consequence of his removal.  Nor did the Department accept that the recent political volatility in Lebanon make (sic) the risk any greater than prior to the conflict.

[119]              The Departmental assessment also stated that [the applicant’s] representatives have provided no evidence that he was anything other than a junior officer and in this context the threat of torture and or death to [the applicant] upon return to Lebanon remains “merely a possibility or remote risk””.

11                  On 4 October 2006 the then Minister declared that she reasonably suspected that the applicant did not pass the character test and that he had not satisfied her that he passed the character test.  She decided to exercise her discretion under s 501(1) of the Act to refuse his application for a Bridging Visa E and refused to grant the visa.

12                  On 11 October 2006 the Minister published a statement of reasons for her decision.  Relevantly, the Minister dealt with Australia’s international treaty obligations as follows:

“[31]              I gave particular consideration to the issue of [the applicant’s] safety if he were removed to Lebanon.  An International Treaties Obligation Assessment (ITOA) was undertaken in relation to [the applicant], which stated that while there was a remote possibility of the risk of torture and/or death if the applicant was to be returned, there was no real risk given the changes in Lebanon since the formation of the present elected government in July 2005.

[32]                I also took into account that the ITOA concluded that country information did not support the view that torture or death would be a “necessary and foreseeable consequence” of [the applicant’s] removal from Australia, which is the test for risk set by the United Nations Human Rights Commission.  The assessment also concluded that the recent conflict in Lebanon would not make that risk any more likely than prior to the conflict.

[33]                In view of this I accept that returning [the applicant] to the Lebanon in the present circumstances would not contravene Australia’s international obligations.  I gave this consideration moderate weight.”

13                  The Minister formed the view that the applicant participated in killing civilians during the 1982 massacre at the refugee camps.  She further found that he did not pass the character test because he was not of good character having regard to his past general conduct:  see s 501(6)(c)(ii) of the Act.  The Minister said that, in reaching her decision, she had “considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act 1958, (2) Ministerial Direction 21 under s 499 of that Act and (3) all other evidence available to me, including evidence provided by, or on behalf of, the applicant.”

THE LEGISLATION

14                  Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.  The character test is defined in s 501(6), it provides that a person does not pass the character test, inter alia, if the person is not of good character having regard to the person’s past and present general conduct.  Section 499 of the Act empowers the Minister to give written directions to decision-makers about how they are to exercise discretionary powers under the Act.  Decision-makers are bound to comply with such directions.  The Minister him or herself is not so bound when exercising powers personally:  see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 544 [57].  Decisions made by a delegate of the Minister under s 501(1) are reviewable by the Administrative Appeals Tribunal; decisions made personally by the Minister are not:  see s 500(1).

THE TREATIES

15                  Article 4 of the CAT provides that:

“No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

16                  Article 6 of the ICCPR provides that:

“Every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrately deprived of his life.”

17                  Article 7 of the ICCPR provides that:

“No one shall be subjected to torture or cruel, inhuman or degrading punishment.”

THE APPLICANT’S CASE

18                  The applicant accepts that none of the relevant treaty obligations has been incorporated in Australian domestic law.  There is, therefore, no statutory obligation on the Minister or other decision-makers under the Act to give effect to those obligations when making decisions under the Act.  The applicant, however, argues that, because the Minister determined that she “would follow Direction No 21” and that she would take into account, as a relevant consideration, the question of whether the applicant could be returned to the Lebanon consistently with Australia’s treaty obligations, she was obliged to have regard to the CAT and ICCPR, properly construed, when exercising the discretion conferred on her by s 501(1) of the Act.  The applicant contends that the Minister made two errors in dealing with the treaties.  They were that:

·                    She applied the “necessary and foreseeable” test when deciding whether a “real risk” of harm would confront the applicant in Lebanon.  In doing so it is said that she erred because the test “is a separate element of the assessment of the non refoulment obligation under the ICCPR going to the nexus between the removal and the risk, as opposed to the determination of the presence of a real risk of death or mistreatment.”

·                    She failed to give discrete consideration to the test posed by the CAT.

19                  The applicant further contended that he had been denied procedural fairness in that:

·                    Procedural fairness required that he be provided with a copy of the reassessment and given the opportunity to comment on it.  He was not given a copy of the document.

·                    He had a legitimate expectation that the Minister would apply the constructions of the ICCPR and the CAT as they were explained in the initial assessment or that, if some other construction was to be applied, he would have had the opportunity of being heard in support of an argument that this should not occur.

·                    The failure to provide him with a copy of the reassessment and to afford him an opportunity to be heard on its contents caused practical injustice because, had the reassessment been exposed, his advisers would have been able to make submissions as to the proper constructions which the Minister should apply.

RELEVANT CONSIDERATIONS

20                  The applicant acknowledges that the Minister would have been free to make her decision, under s 501(1) of the Act, without reference to the ICCPR, the CAT or any other international treaty which had not been incorporated in Australian domestic law.  It is, however, contended that, once the Minister determined that she would take Australia’s obligations under the ICCPR and the CAT into account, she was obliged to ascertain and apply the relevant treaty obligations according to their terms.  If, in making her decision, the Minister misconstrued a treaty obligation and this had a material bearing on her decision, she could be said to have failed to have regard to a relevant consideration (the obligation correctly construed) or had regard to an irrelevant consideration (the misunderstood obligation). 

21                  As counsel for the applicant readily conceded this aspect of his case confronted some significant difficulties.  The first is that his argument assumes that a decision-maker can be bound to have regard to a consideration which he or she would otherwise be free to ignore if he or she chooses to take the particular consideration into account.  The argument is made all the more difficult where the decision-maker is a Minister and the relevant statutory discretion is conferred in the widest possible terms.  The difficulty is compounded when the relevant consideration is identified as a treaty obligation, correctly construed.

22                  The discretionary power, conferred on the Minister by s 501(1) of the Act, is unfetteredin its terms.  As Heydon and Crennan JJ (with whom Gleeson CJ agreed) said, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370 at 401 [128], speaking of the similarly wide discretion conferred on the Minister by s 501(2):

“Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia.  Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context in the Act.  As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.”

The protection and expectations of the Australian community are not, however, binding considerations when the Minister him or herself makes a decision under s 501.  The same must be true of international treaty obligations.  As McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at 33 [101];

“ …In the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision making under powers conferred by statute and without specification of those obligations.  The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.”

23                  While such considerations could be elevated to the status of mandatory considerations by statute or by direction given under statutory power, this has not occurred in the present case.  The Minister is under no such obligation to so treat them.  The question then arises as to whether that position can be altered simply because the Minister chooses to take into account treaty obligations when making a decision under the Act.

24                  The applicant seeks an affirmative answer to this question relying on the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189.  A delegate of the Minister had determined that the respondent should be deported because he had committed various criminal offences in Australia.  He appealed to the Administrative Appeals Tribunal.  In affirming the delegate’s decision the Tribunal made two brief references to a ministerial policy statement relating to criminal deportation.  French and Drummond JJ held (at 211) that the ministerial policy statements “were relevant factors which the Tribunal was bound to consider although not bound to apply so as to prejudice its independent assessment of the merits of the case.”  Their Honours found that the Tribunal had failed to have regard to certain central elements in the policy in coming to its decision.  They said (at 208) that:

“On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power.  If a decision-maker, not bound to apply policy, purports to apply it as a proper basis the disposing of the case in hand, but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.  In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion.  In such a case misconstruction of a policy may reduce to misconstruction of the statute or misunderstanding of its purpose.”

25                  This passage cannot be understood as supporting an unqualified proposition that an error in construing and applying a policy or an unincorporated treaty, which the decision-maker is not bound to apply, will amount to jurisdictional error.  This will only be so if the misconstruction is “serious” such that “what is applied is not the policy but something else …”.  Moreover their Honours’ reasoning assumes that the Tribunal was bound to give consideration to the ministerial policy.  Whether or not that be right in respect to a ministerial policy, it is now clear that this is not the case where unincorporated international treaty obligations are concerned.  This was accepted by French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875.  His Honour said (at [59]) that:

“There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power.  Nor is there anything in the language of the Act to support an implication to that effect.  In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration “in all cases concerning children”.  However the existence of that obligation of international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers.  The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions. … Such considerations do not thereby become mandatory.  In the joint judgment in re Minister for Immigration and Multicultural Affairs; ex parte Lam …McHugh and Gummow JJ referred to the “… established doctrine” that obligations under international treaties “… are not mandatory relevant considerations attracting judicial review for jurisdictional error.” The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501.  It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law …  But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision makers.”

26                  His Honour expressly rejected a contention that the Full Court decision in Gray compelled a different conclusion.  His Honour said (at [62], [63], [66]) that:

“[62]  Although the Minister, like the AAT in Gray’s case, is not bound to apply the Ministerial direction this does not preclude him or her from adopting a ministerial policy to be applied in such cases providing he does not fetter his discretion in so doing.  The adoption of a policy guideline would be entirely consistent with the impited legislative intent that the Minister’s powers not be exercised capriciously or arbitrarily, albeit the policy might be changed from time to time.  In this case the Issues Paper told the Minister no more than that it was open to him to be guided by the factors set out in the Direction.  It did not suggest that he apply the policy.  The facts provided to the Minister for consideration reflected those identified in the Direction.  But although it may be inferred that the Minister decided to adopt that general approach, it does not mean that he was bound to treat the interest of Mr Le’s children as a primary consideration or that he in fact did so. 

[63]    The best interests of the children of the visa holder affected by a decision taken by the Minister under s 501 cannot be regarded as a mandatory relevant factor in the exercise of the Minister’s discretion by reason of the terms of the statute, international law or the Minister’s own policy directions …

[66]    Absent a requirement, conditioning the exercise of the cancellation power, that the Minister have regard to the best interests of the visa holder’s children, the complaint of a constructive failure to consider their interests, even if made out, would not expose a jurisdictional error…”

27                  Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act.  In the absence of legislative requirement they are not, however, bound to do so.  If they do not bring them into account as part of the decision-making process no jurisdictional error will occur.  If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error.  It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error:  see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78.  Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.

28                  For these reasons I do not consider that the Minister made any jurisdictional error, even if she erred in construing and applying the ICCPR or the CAT.

29                  Although it is strictly unnecessary to do so, I should add that I do not accept the applicant’s contention that the Minister necessarily erred in her construction and application of the treaty obligations to which she had regard.  In Kindler v Canada (Communication Number 470/1991) the United Nations Human Rights Committee said that the relevant question under Article 6 of the ICCPR was whether Canada had exposed “a person within its jurisdiction to the real risk (that is to say, a necessary and foreseeable consequence) of losing his life” contrary to the ICCPR.  The Minister approached the matter in this way when she accepted the departmental assessment “that country information did not support the view that torture or death would be a “necessary and foreseeable consequence” of the [applicant’s] removal from Australia which is the test for risk set by the United Nations Human Rights Commission.”  The applicant’s allegation of error is founded on a more recent formulation of the test by the Human Rights Committee which, it is contended, rephrases the relevant question such that the “necessary and foreseeable consequence” test should not be read as qualifying the test of “real risk”.  The two tests are set to be cumulative.  Reliance was placed on two of the Committee’s decisions in 2006 which related to Canada.  The Committee’s decisions included statements that:

“States parties are under an obligation not to expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment”

and that

“The committee must therefore decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s removal] there is a real risk that the [applicant] would be subjected to treatment prohibited by articles 6 and 7 [of the ICCPR].”

Attention was directed to one of the Committee’s decisions in 2004 involving Denmark.  There it held that the relevant question was whether expulsion would “expose [the applicant] to a real and foreseeable risk of being subjected to treatment contrary to article 7 [of the ICCPR]”.  Reliance was also placed on a comparison of the draft and final versions of the Committee’s General Comment 31.  In none of these instances was the Kindler formulation criticised or rejected.  Nor do the formulations which are relied on lend clear support to the applicant’s contentions that there are two tests to be applied cumulatively.  In any event, even if the more recent expressions of the Committee’s understanding of the relevant obligations are to be understood as reflecting a differing view from that previously expressed, it does not follow that the Minster has erred by preferring the opinion expressed in cases such as Kindler. 

30                  The applicant’s second complaint relating to the Minister’s treatment of Australia’s treaty obligations was that she failed to deal with the test posed by the CAT at all.  I am by no means persuaded that this complaint has merit.  The Minister’s reasons do not refer expressly to either the ICCPR or the CAT.  They do, however, refer to “Australia’s international obligations.”  Moreover, she referred to the department’s assessment in which both the ICCPR and the CAT obligations are dealt with.  Even if the Minister had failed to give separate or any consideration to the obligations imposed by the CAT, this would not have constituted a jurisdictional error.  This is so for at least two reasons. The first is that, if she did not do so, she did not err because she was not bound to have regard to the CAT obligations.  The second is that, in any event, the applicant, in written submissions to the Minister, did not seek to suggest that there was anything other than a “real risk” test to be applied in determining whether either or both of the ICCPR and the CAT were engaged.  One example was the submission that: “The situation in Lebanon is far from stable and the Department cannot reach a determinative conclusion of whether there is a “real risk” that [the applicant] will face violation of his ICCPR , or CAT, rights upon any return to Lebanon.”  It is, therefore, hardly surprising that the Minister did not, in terms, deal separately with the CAT obligations once she had explained her reasons for concluding that Australia’s international obligations were not engaged.

PROCEDURAL FAIRNESS

31                  It is common ground that the applicant was not provided with a copy of the reassessment or the issues paper referred to above at [10].  The Minister’s reasons do not refer expressly to either document.  The applicant argues, nonetheless, that the Minister must have had regard to the reassessment and relied on it because she refers in her reasons to an International Treaties Obligation Assessment “which states that while there was a remote possibility of the risk of torture and/or death if the applicant was to be returned, there was no real risk given the changes in Lebanon since … July 2005.”  No such phrasing appears in the initial assessment which was provided to the applicant.  It is said that the tests which were to be applied by the Minister in determining whether Australia had non-refoulment obligations to the applicant under the two treaties were formulated differently in the initial assessment, to which the applicant had access, and the reassessment.  The comparison is drawn between the questions which are set out above at [8] and what is said in the passages from the reassessment which are extracted in the issues paper:  see above at [10].  In particular it is suggested that the formulation of the test in para [118] of the issues paper is confusing and ignores the test posed by the CAT.  Complaint is also made that the clarification contained in para [117] in which the department expresses the opinion that the applicant would confront only a “remote possibility” of torture or death if returned to the Lebanon, differs from the initial assessment.  In addition, the applicant’s solicitor gave evidence that, had she been provided with a copy of the reassessment, she would have made submissions, such as those made in argument in this proceeding, as to the proper construction of the ICCPR and the CAT.  However, in cross examination, she conceded that these arguments had not occurred to her at the time that the submissions would have been made in response to the assessment.  They occurred to her after the Minister’s decision had been made and after counsel had been briefed for the trial.

32                  Procedural fairness required that the applicant should be advised of any “critical point on which the decision would turn”:  see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43].  He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision.  In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 600 [32], a Full Court of this Court said (at 590-1) that:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

33                  When the department issued the notice of intention to consider the refusal of his visa application the applicant was advised that one of the issues to be considered by the Minister was whether Australia would breach its international treaty obligations should it return him to the Lebanon.  Given the importance of this matter he was advised to “specify in detail any reason why you believe that Australia would be breaching its international obligations by returning [you] to the Lebanon”:  see above at [5].  The applicant’s solicitor responded to this invitation by making submissions supporting the proposition that the treaty obligations would be breached because there was the “strong possibility” that he “may well face persecution and/or torture if he is forced to return to Lebanon …”.  Shortly afterwards the applicant’s solicitors were provided with the department’s initial assessment relating to Australia’s international treaty obligations in so far as they had application to the applicant.  Again the solicitors for the applicant were invited to respond on his behalf and did so.  The submissions dealt with the construction and application of the ICCPR and the CAT, arguing that the level of risk of harm which would be faced by the applicant in the Lebanon was such as to satisfy tests which would attract the operation of the two treaties.  The applicant’s solicitor acknowledged, in evidence, that she had not expected to be afforded any further opportunity to comment on the departmental material prior to the Minister making a decision.  Accordingly she had made a comprehensive submission on behalf of the applicant saying all that it was desired to advance on his behalf including contentions relating to the construction and application of the ICCPR and the CAT.

34                  In my opinion, the procedures adopted by the department satisfied the requirements of procedural fairness in the present case.  The invitation identified with clarity one of the crucial or relevant points on which the Minister’s decision might turn.  The applicant was afforded the opportunity, on two occasions, to make detailed submissions on the construction and application of the two treaties.  Conflicting assessments by the departmental officer and the applicant’s solicitor as to the proper characterisation of the level of risk to be confronted, should the applicant return to the Lebanon, were placed before the Minister.  So too were submissions relating to the correct formulation of the relevant treaty obligations.  They were incorporated in the issues paper.  There was no requirement that the department’s issues paper should be provided to the applicant before it was considered by the Minister:  see M238 of 2002 v Ruddock [2003] FCAFC 260 at [54].  Furthermore, there was no requirement that the Minister’s views on these matters, after she had considered the submissions and the issues paper, should be exposed to the applicant for further comment prior to a decision being made:  see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 603 [48].

35                  The applicant submits that he “had a legitimate expectation that the tests for the application of the ICCPR and the CAT would be as couched in the Assessment (or that if some deviation was proposed, he would have the opportunity of being heard as to why that would be incorrect)”.

36                  This submission must be rejected.  The decision was to be made by the Minister personally.  The applicant was specifically advised to make full submissions about the treaty obligations Australia may owe to him.  No restrictions were placed on this invitation.  The submissions were made and included submissions as to the construction and application of the ICCPR and the CAT.  The applicant may well have had a proper basis for alleging jurisdictional error had it been said or implied that the Minister would accept and act on the departmental officer’s views.  Such an assertion would have rendered the invitation to the applicant to make detailed submissions on the issues raised in the department’s documents a hollow and meaningless gesture.  No expectation of the kind identified by the applicant could justifiably be regarded as “legitimate”.  The critical point is that the applicant was afforded the opportunity to tell the Minister affirmatively what he contended were Australia’s treaty obligations and how they applied to him.  He did so. 

37                  In Re Minister for Immigration, Multicultural and Indigenous Affairs;  ex parte Lam (2003) 214 CLR 1, the applicant claimed to have been denied procedural fairness by the Minister when he made a decision to cancel his visa under s 501(2) of the Act.  The applicant had been given a notice by the Department advising him that the Minister was proposing to consider cancellation of his visa.  Various relevant matters were identified, including the best interests of any children with whom the applicant had an involvement.  The applicant made detailed submissions including claims relating to the effect of his deportation on his Australian born children.  It was apparent from those submissions that the children were being cared for by a particular person.  After the submissions had been received an officer of the department sought information from the applicant such as the name, address and telephone number of the children’s carers.  It was said that the department wished to contact the carers in order to assess some of the applicant’s claims.  Although the applicant provided the requested particulars no contact was made with the person who was caring for the children.  The Minister cancelled the visa.  The applicant claimed to have been denied procedural fairness because he had a legitimate expectation that the carer would be contacted and her views taken into account and that expectation was not fulfilled.  The High Court dismissed the application.  Gleeson CJ said (at 13-14):

“[36]  The more fundamental problem facing the applicant, however, relates to the matter of unfairness.  A statement of intention, made in the course of decision making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention.  Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything.  Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

[37]    A common form of detriment suffered where a decision maker has failed to take a procedural step is loss of an opportunity to make representations. …  A particular example of such detriment is a case where the statement of intention has been relied upon and, acting in the faith of it, a person has refrained from putting material before a decision maker.  In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness.  Fairness is not an abstract concept.  It is essential practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

[38]    No practical injustice has been shown.  The applicant lost no opportunity to advance his case.  He did not rely to his disadvantage on the statement of intention.  It has not been shown that there was procedural unfairness.  And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children.”

McHugh and Gummow JJ came to a similar conclusion.  Their Honours said (at 34-35) that:

“[105]            But the failure to meet that expectation does not reasonably found a case of denial of natural justice.  The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case.  The ends sought to be attained by the requirement of natural justice may be variously identified.  But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome.  It is with the decision making process not the decision …

[106]  The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act.  It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it.  Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000.  The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice.

Hayne J concluded (at 38-39) that:

“[122]            …it is enough to say that even if the Department’s letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the appellant pursued, gives no ground for relief.  He was afforded a full opportunity to be heard.  The Department’s letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in anyway from the relevance of, or weight to be given to, the effect that cancellation of the applicant’s visa would have on his children. …”

38                  The applicant’s case, insofar as it is founded on claims that he had a legitimate expectation which was not fulfilled and which occasioned practical unfairness relies on the passages just quoted from the judgment of Gleeson CJ in Lam.

39                  The applicant contends that he had a legitimate expectation that the Minister would apply the tests identified in the initial submission “and that he would be heard in the event that it be proposed that relevant contents of the Assessment were amended or abandoned to his detriment.”  It is said that the practical unfairness arose because, when an allegedly different test was propounded in the reassessment and was referred to in the issues paper given to the Minister he was unaware of the change.  He claims, that had he known of the change, “he could have made submissions urging against their adoption, and those might have found favour.”

40                  For reasons already given I do not consider that it is possible to discern, in the department’s initial assessment and the reassessment, materially different formulations of the tests to be applied in determining Australia’s obligation to him under the ICCPR and the CAT.  Even if some significant differences did exist it does not follow that any practical unfairness was occasioned by the procedures which were adopted.  It is to be noted that, in both assessments, the conclusion was reached that non-refoulment obligations did not arise.  It is also to be noted that there is no evidence of any subjective expectation, harboured by the applicant (or his solicitor) at relevant times of the kind now alleged much less any evidence of reliance on it.  As the applicant’s solicitor frankly acknowledged, in her evidence, comprehensive submissions were made on the critically relevant issues.  Nothing was omitted as a result of any expectation engendered by the Department or the Minister.  The process adopted gave rise to no practical unfairness.

41                  The application should be dismissed with costs.

Associate:

Dated:         21 June 2007