FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Anochie [2012] FCA 1440

THE COURT ORDERS THAT:

1.    Order absolute in the first instance for a writ of certiorari directed to the Administrative Appeals Tribunal quashing its decision of 24 April 2012 to set aside the decision under review in file 2012/0466: Anochie v Minister for Immigration and Citizenship.

2.    Order absolute in the first instance for a writ of mandamus directed to the Administrative Appeals Tribunal to determine Mr Anochie’s application for review in that matter according to law.

3.    If the parties cannot agree an appropriate costs order, the parties file any written submissions on costs by 1 February 2013.

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

REASONS FOR JUDGMENT

I.    Introduction

1    This application by the Minister for Immigration and Citizenship (‘the Minister’) for writs of certiorari and mandamus addressed to the Administrative Appeals Tribunal (‘the Tribunal’) raises issues about the nature of the Commonwealth’s non-refoulement obligations under the International Covenant on Civil and Political Rights [1980] ATS 23 (‘the ICCPR’). The Minister wishes to cancel Mr Anochie’s visa because of his having been sentenced to eight and a half years’ imprisonment for importing cocaine. If his visa is cancelled, then he will be deported to his native Nigeria. He contends that he is at risk, if he is so deported, of mistreatment in the Nigerian criminal justice system. He says that Australia is obliged by international law not to deport him in those circumstances. Although this contention did not persuade the delegate, who had originally decided that Mr Anochie’s visa should be cancelled, it did persuade the Tribunal, who decided that it should not: Anochie v Minister for Immigration and Citizenship [2012] AATA 234. It is that decision which is now before this Court.

II.    Background

2    The Minister is empowered by s 501(2) of the Migration Act 1958 (Cth) (‘the Act’) to cancel a non-citizen’s visa if the non-citizen fails to satisfy the Minister that he or she passes what is known as ‘the character test’ and if the Minister (or his delegate: s 496) determines that the visa should be cancelled. A non-citizen will fail the character test if, inter alia, he or she has a ‘substantial criminal record’ (s 501(6)(a)) and that will be the case if, inter alia, the person has been sentenced to a period of imprisonment of 12 months or more: s 501(7)(c). A non-citizen who does not hold a visa is ‘an unlawful non-citizen’: ss 14(1), 15. By s 198, such a person must be ‘removed’ which, by s 5, means removed from Australia. As a matter of practicality, the power of the Commonwealth to remove a person from Australia is circumscribed by the need for there to be another State in respect of which the person has a right of entry: see, for example, Al-Kateb v Godwin (2004) 219 CLR 562.

3    Mr Anochie arrived in Australia in October 2000 as a volunteer assistant to the Nigerian Paralympic team. In May 2001, he married an Australian citizen and in May 2003 was granted a permanent spouse visa.

4    In September 2005, the Australian Federal Police (‘the AFP’) received information from Interpol that German authorities had intercepted a package containing 1.8 kg of cocaine sent from South America and addressed to one Peter Obi at an address in Petersham (which is in Sydney). In the ensuing investigation, Mr Anochie came to the attention of the AFP. He was identified as using multiple post office boxes around the Sydney metropolitan area.

5    Telephone intercept warrants were obtained, both for Mr Anochie’s mobile phone and also for a mobile phone subscribed under the name of one Ignatius Obi. As a result of the intercepts subsequently conducted, it was determined that Mr Anochie had opened a post office box in Campsie (also in Sydney) in July 2004 under the name of Ignatius Obi. Mr Anochie was also detected emailing the Campsie post office box address (and nine other such addresses) to another email address (which I infer was the address of the person or persons sending the cocaine).

6    In October 2006, the AFP tracked the delivery of the cocaine from Brazil to an address in Campsie. The carton contained three packages and these were intercepted by the AFP and found to contain 1,415.4 grams of cocaine. There then followed a controlled delivery by the AFP of the carton to its destination and, in due course, Mr Anochie was arrested when he went to collect it. This occurred on 30 October 2006 and Mr Anochie was thereupon charged with importing a marketable quantity of a border controlled drug: see Criminal Code (Cth), Part 9.1. The 1,415 grams had a wholesale value of about $311,000 to $494,000.

7    On 12 May 2008, Mr Anochie pleaded guilty to this offence in the District Court of New South Wales and on, 14 November 2008, he was sentenced by that Court to a period of imprisonment of eight and a half years with a non-parole period of five years and four months. The sentence was backdated to the day upon which he had been taken into custody, that is, 30 October 2006. As such, the non-parole period was due to expire on 29 February 2012.

8    Prior to its expiry, a delegate of the Minister issued Mr Anochie with a letter notifying him of the Immigration Department’s intention to cancel his permanent spouse visa on character grounds, namely, his conviction for importing cocaine. Mr Anochie responded to this letter, but on 30 January 2012 – just a few weeks before he was eligible for parole – the Minister’s delegate determined that his visa should be cancelled. Mr Anochie then filed an application for a review by the Tribunal of that decision on 7 February 2012.

9    On 29 February 2012, whilst that application was pending, Mr Anochie was granted parole. Upon his release from prison, he was taken into immigration detention as an unlawful non-citizen pursuant to s 189 of the Act (his visa having been cancelled).

10    Mr Anochie’s review application was heard by the Tribunal on 4 April 2012 and it decided, on 24 April 2012, to re-exercise the delegate’s powers by determining that Mr Anochie’s visa should not be cancelled. Consequently, Mr Anochie presently continues to hold a valid permanent spouse visa.

11    The Minister now applies for constitutional writs to vacate the Tribunal’s decision. If the Court grants that relief, the immediate effect will be that the delegate’s earlier decision will be reinstated and Mr Anochie will again become an unlawful non-citizen. Simultaneously, the Tribunal will again be obliged to consider Mr Anochie’s application for a review of the delegate’s decision. This Court is not, therefore, called on to form a view as to whether Mr Anochie’s visa should be cancelled but rather only as to the legalities attending the Tribunal’s decision-making processes.

III.    The Tribunal’s approach to the Commonwealth’s non-refoulement obligations

12    The reasoning of the Tribunal – to which it will be necessary to return below – involved an examination of the law of Nigeria and, in particular, a law known as Decree 33 of 1990. Its relevant terms are as follows:

12(2)    Any Nigerian citizen found guilty in any foreign country of an offence involving narcotic drugs and psychotropic substances and who thereby brings the name [of] Nigeria into disrepute shall be guilty of an offence under this subsection.

12(3)    Any person convicted of an offence under subsection […] 2 of this section shall be liable to imprisonment for a term of five years without an option of [a] fine and his assets and properties shall be liable to forfeiture as provided by this decree.

13    Mr Anochie’s contention in the Tribunal was that Decree 33 (and the state of the Nigerian prison system) engaged a non-refoulement obligation in Australia under art 7 of the ICCPR which provides (relevantly) that ‘[n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment’. Australia has acceded to the ICCPR. Although the Tribunal made some reference to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21 (‘the CAT’), to which Australia is also one of the States Party, its reasoning in respect of the CAT does not appear to have extended beyond its treatment of the ICCPR. In any event, Mr Anochie did not advance an argument based upon the CAT before the Tribunal (so much was alleged by the Minister in his written submissions in this Court and never denied by Mr Anochie). Rather, Mr Anochie’s point before the Tribunal was that Decree 33 would put him at risk of being drawn into the Nigerian criminal justice system and there was a risk, if that occurred, that he would be subjected to violations of his rights under art 7.

14    How did the Tribunal come to be examining Australia’s non-refoulement obligations under international law? When exercising the discretion conferred on it by s 501 (or, more accurately, when re-exercising the discretion conferred on the delegate by s 501), the Tribunal was derivatively obliged to apply what is known as ‘Direction (No. 41)—Visa Refusal and Cancellation Under s 501’ (‘Direction 41’). Obedience to Direction 41 was required by s 499(2A) of the Act.

15    Clause 10 of the Direction set out what are called the ‘primary considerations’ and cl 9(1) required the Tribunal to take those considerations into account. Those considerations were, therefore, examples of what are referred to in traditional administrative law discourse as ‘relevant considerations’: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41 per Mason J.

16    The structure of cl 10 is perhaps a little odd. Clause 10(1) lists the primary considerations (there are, in essence, four) and then the balance of the clause elaborates on each of the four primary considerations in more detail. Here, the relevant primary considerations concerned are Australia’s international obligations. These were addressed, as part of the initial list, in cl 10(1)(d) and then, in more detail, as part of cl 10.4. Together the relevant parts of cl 10 were as follows:

10    The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

…

(d)    relevant international obligations, including but not limited to:

…

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees [i.e. the Convention relating to the Status of Regugees [1954] ATS 5 and the Protocol relating to the Status of Refugees [1973] ATS 7] (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

…

10.4    International obligations

…

(2)    Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.

…

10.4.3    Other relevant international obligations

(1)    The following are to be considered:

(a)    The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);

(b)    The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture ; and

(c)    The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.

17    It might be observed that cll 10(1)(d)(ii) and 10.4(2) (‘the general clauses’) are likely to be largely identical in what they require to be taken into account. Clause 10.4.3(1) (‘the specific clause’) is, perhaps, a little different. Unlike the general clauses, it does not direct a decision-maker’s attention to an identified international obligation; rather, it appears both to identify a non-refoulement obligation and, at the same time, specify what the content of that obligation is. On its face, that drafting technique may suffer from the possible vice that cl 10 will be, at least potentially, internally inconsistent if the statement in the specific clause of what the non-refoulement obligations are turns out to be incorrect. As will be seen, an aspect of this case throws up that very conundrum.

18    The Tribunal dealt with the non-refoulement questions at [61]-[91] of its reasons under the heading ‘Non-refoulement obligations under the ICCPR and the CAT’. It did not identify which article or articles of the ICCPR or the CAT it was considering, instead resting its distillation of those principles on a quotation from cl 10.4.3(1) of Direction 41 (that is, the specific clause).

19    The Tribunal’s ultimate conclusion at [86] was that it was ‘satisfied that Mr Anochie’s removal would put Australia in breach of its international obligations under other Articles’ (my emphasis). The expression ‘other Articles’ immediately followed a discussion about the operation of art 14(7) of the ICCPR (which, in a way which does not presently call for discussion, deals with double jeopardy). This tends to suggest that the Tribunal regarded the non-refoulement obligations in question as those arising under the ICCPR rather than the CAT (despite the reference to the CAT in the specific clause of Direction 41). That conclusion is supported by the fact that the Tribunal did not discuss how the non-refoulement obligation under either treaty actually arose. To similar effect is the Tribunal’s recitation of Mr Anochie’s argument at [62] that ‘his forced return to Nigeria would expose him to a real risk of being subjected to torture, or to cruel, inhuman or degrading treatment or punishment in violation of Article 7 of the ICCPR’ and its corresponding omission of any reference to any particular article of the CAT. Again, this is consistent with the Tribunal having derived its approach to the Commonwealth’s non-refoulement obligations from the text of the specific clause itself, rather than by any direct examination of international law. I do not intend by that observation, I should say, any criticism of the Tribunal.

IV.    The questions which arise

20    It is the Minister’s principal submission that the Tribunal misdirected itself as to the correct test to be applied in cases of non-refoulement. He submits that the Tribunal was required to ascertain the nature and content of Australia’s obligations arising from the ICCPR and that, if it had done so, it would have applied as the correct test one which had been enunciated by the United Nations Human Rights Committee (‘the Committee’), which was established by art 22 of the ICCPR, in ARJ v Australia (Communication No 692/1996, 28 July 1997, UN Doc CCPR/C/60/D/692/1996). That test would have required the Tribunal, so it was said, to ask itself whether Mr Anochie’s deportation carried with it as a ‘necessary and foreseeable consequence’ the fact that Mr Anochie would suffer an infringement of his rights under art 7 of the ICCPR. Instead of taking that course, the Tribunal had asked itself whether the risk of art 7 harm to Mr Anochie was one which could be dismissed as remote, insubstantial or far-fetched and, having concluded that it was not, found that the non-refoulement obligation had been engaged: [82], [86]. Seen this way, the test applied by the Tribunal had been much more liberal to Mr Anochie than the test required under international law. It followed that the Tribunal had taken into account an irrelevant consideration (i.e. the wrong test) or, perhaps, failed to take into account a relevant consideration (i.e. the correct test). Jurisdictional error was, so it was submitted, disclosed and the writs should issue.

21    A number of issues arise from the Minister’s submissions. The first concerns the manner in which the content of the non-refoulement obligation referred to in Direction 41 is to be interpreted. Is Direction 41 and its explanation of non-refoulement in the specific clause to be understood as having the force of domestic law and, therefore, construed in the manner of a domestic statute? Such is the case, for example, with the definition of ‘torture’ in s 5 of the Act and, in the context of non-refoulement, s 36(2)(aa). On the other hand, is an attempt to be made to interpret the references to non-refoulement under the ICCPR in accordance with the international law governing the interpretation of treaties?

22    The second issue arises under the assumption that Australia’s non-refoulement obligations under the ICCPR are to be determined as a matter of public international law (as does the third). The questions which then arise are: whether the views and General Comments of the Committee are admissible in this endeavour; if they are, what the output of the Committee suggests on non-refoulement; and, finally, what the proper interpretation of the non-refoulement obligation under the ICCPR, in fact, is.

23    Having discerned the correct test under the ICCPR (if that is required), the third issue involves a comparison between the test implemented by the Tribunal and the test in fact required under public international law.

V.    How is the non-refoulement obligation referred to in Direction 41 to be interpreted?

24    The relevant portions of Direction 41 are set out above at [16]. The general clauses expressly require decision-makers under s 501(2) to take into account ‘the non-refoulement obligations contained in [inter alia, the ICCPR]’ and ‘any non-refoulement obligations’ where relevant. The decision-maker to whom Direction 41 is addressed is bound, as I have noted above at [14], to obey Direction 41 by s 499(2A) (‘a person or body must comply with a direction under subsection (1)’). The author of the Direction is, by s 499(1), the Minister. The power conferred on the Minister to make directions about functions or powers under the Act is a power only exerciseable if the directions are ‘about: (a) the performance of those functions; or (b) the exercise of those powers’. What is involved, then, is a species of delegated legislation; the Minister is empowered to give authoritative guidance on the approach to the Act’s application provided always that the directions so given are not inconsistent with the Act itself. It is perhaps an example of interstitial regulation. It is a set of rules of general application, albeit operating within a confined zone of activity. Although circumscribed within that zone, the Minister’s directions nevertheless operate as new rules of law binding on all relevant decision-makers: Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265 per Bowen CJ, Northrop and Lockhart JJ (‘[t]he distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases’).

25    As a species of delegated legislation, Direction 41 is to be interpreted in accordance with the general principles relating to the interpretation of Acts of Parliament: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ citing DC Pearce, Delegated Legislation in Australia and New Zealand (Butterworths, 1st Ed, 1977) at 286 [628]; see also DC Pearce & S Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th Ed, 2012) at 461 [30.1]. The learned author of that work notes a possible qualification to that principle to which the Court did not refer in Agfa-Gevaert; that is, the need to keep in mind that regulations are often addressed to practical people skilled in a particular trade and hence often exhibit minor inconsistencies which ought to lead to their interpretation in light of practical considerations: see Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183 per Lord Reid. As Professor Pearce notes, this principle has received support in Australia and is ‘eminently sensible’ in the case of ‘regulations that are endeavouring to deal with day-to-day situations and which impose obligations on persons who are in no position to consult a lawyer as to the meaning of the legislation’: Delegated Legislation in Australia (4th Ed) at 462-463 [30.3]. Murphy J accepted that a regulation was to be construed as one with its authorising statute, but nevertheless thought that ‘such regulations evolve in the same way described by Lord Reid and his observations are applicable to them’: Driscoll v J Scott Pty Ltd (1976) 8 ALR 593 at 598.

26    Assuming such an approach is available in the case of regulations generally, I do not think that approach should be taken to Direction 41. It is one thing to say that a shop or factory regulation should be read with a little latitude in light both of its likely authors and readers, another altogether to put Direction 41 in that category. Its subject matter shows that its intended readership consists of delegates of the Minister making difficult administrative decisions under a statute which itself is of considerable complexity, as well as the Tribunals and Courts that will, from time to time, be called upon to review decisions made by reference to the Direction. Assuming that Lord Reid’s statement forms part of Australian law, I do not think that it would be appropriate to apply it in this case. There may, indeed, be a reason in the future to doubt its on-going relevance. Previously, regulations were drafted (or at least settled) by the Office of Legislative Drafting and Publishing, which is within the Commonwealth Attorney-General’s Department. Following the passage of the Parliamentary Counsel and Other Legislation Amendment Act 2012 (Cth), the function of drafting subordinate legislation has been transferred to the Office of Parliamentary Counsel, which is also responsible for the drafting of statutes: see Explanatory Memorandum, Parliamentary Counsel and Other Legislation Amendment Bill 2012 (Cth). One assumption upon which Lord Reid’s statement is premised – a differing approach to drafting – is likely, as this régime progressively takes effect, to be falsified.

27    In any event, at least in the first instance, Direction 41 should be interpreted in accordance with the general principles of statutory interpretation.

28    This conclusion directs attention to the fact that cl 10 is, or may be, internally inconsistent in what it says about the non-refoulement obligation arising under the ICCPR. The relevant parts are set out above at [16]. The inconsistency arises because the specific clause purports to state the content of the test to be applied under the ICCPR in cases on non-refoulement, whereas the general clauses merely refer to the non-refoulement obligations under international law without indicating what their content might be.

29    For reasons to which I will return, the test stated in the specific clause involves a materially erroneous statement of the non-refoulement obligation. It will follow that, if the general clauses require decision-makers to apply the non-refoulement obligation arising under the ICCPR as a matter of public international law, then they will be inconsistent with the specific clause.

30    The task at hand is to resolve what it is, as a matter of Australian law, that Direction 41 requires officials to do. When confronted with an enactment (or, as here, a type of delegated legislation) in which international instruments have been referred to or adopted wholly (or in part), two steps are required: ‘[t]he first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented…The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires’: NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 at 71 [61] per Callinan, Heydon and Crennan JJ.

31    Implementation of the first step requires one to apply ordinary principles of Australian statutory interpretation to the specific clause, on the one hand, and the general clauses, on the other, to determine what recourse is to be had to ICCPR. The relevant part of the principles of statutory interpretation to be applied is that stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] per McHugh, Gummow, Kirby and Hayne JJ:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

(References omitted.)

32    The structure of cl 10 suggests that it is cl 10(1)(d) which is paramount, that cl 10.4 then expands on cl 10(1)(d) and that cl 10.4.3 (i.e. the specific clause) is on the lowest of three rungs in that schema. The four primary considerations are set at a high level of generality in cll 10(1)(a)-(d). That four-fold structure is then reflected in cl 10.1 (for cl 10(1)(a)), cl 10.2 (for cl 10(1)(b)), cl 10.3 (for cl 10(1)(c)) and cl 10.4 (for cl 10(1)(d)). Similarly, within each of cll 10.1-10.4 there is a further working-through in more detail of each requirement. Thus, within cl 10.4 there are three sub-clauses:

    Clause 10.4.1 (‘The best interests of the child’);

    Clause 10.4.2 (the ‘Convention and the Protocol relating to the Status of Refugees’); and

    Clause 10.4.3 (‘Other relevant international obligations’) (i.e. the specific clause).

33    This structural hierarchy of cl 10 is supported by a consideration of what the particular purposes of the four primary considerations in Direction 41 are. The purpose of cl 10(1)(d), for example, is to ensure, so far as is possible, that decision-makers take into account the Commonwealth’s international obligations, presumably thereby fostering the Commonwealth’s compliance with those obligations. That end is unlikely to be served by requiring decision-makers to take into account international standards which are not correctly stated.

34    This tends to suggest that the specific clause is an attempt to restate in a helpful fashion the obligations identified in the general clauses.

35    For that reason, I conclude that it is the general clauses which are the leading provisions and the specific clause the subordinate. It follows that attention may be focussed on what it is that the former clauses require.

36    Neither of the general clauses has the effect of purporting to give the non-refoulement obligation in the ICCPR the force of domestic law. Nor does either give effect indirectly to a specified textual version of the ICCPR. Instead, construed in ordinary language, the two clauses command the decision-maker to consult, as a matter to be considered in the exercise of the discretion, the content of any non-refoulement obligation to which Australia may be subject. It is a command, in other words, to consider the content of public international law, although not a command to implement it. This is no accident. If Direction 41 commanded the decision-maker to give effect to a non-refoulement obligation by refusing to cancel a visa, it would very likely be ultra vires s 501(2). That provision confers a discretion (‘may cancel’), whereas the non-refoulement obligation is absolute – if engaged, the Commonwealth is bound as a matter of international law not to deport the person. A requirement that a decision-maker implement the non-refoulement obligation would, therefore, be inconsistent with the discretion in s 501(2). Such a direction would be inconsistent with the terms of the Act and would not be authorised by s 499. It is unnecessary to consider whether cl 10.4.3(1)(c) infringes this principle in this case.

37    Nevertheless, properly construed, the general clauses do require the decision-maker to ascertain what the Commonwealth’s obligations under the ICCPR are in relation to non-refoulement, regardless of what the specific clause says.

38    I should note that, since the decision of the Tribunal, Direction 41 has been revoked and replaced by ‘Direction No. 55 – Visa refusal and cancellation under s501’: see cl 3 of that instrument. The new direction came into effect on 1 September 2012: cl 2. It contains non-refoulement provisions that are different to those in Direction 41 (see cll 9(1)(d), 9.4(1), 9.4(3), 11(1)(c), 11.3(1) and 11.3(3)), but the question of their construction does not arise in this case.

VI.    What is the content of the non-refoulement obligation as a matter of public international law?

39    Having satisfied myself that Direction 41 affirmatively requires the identification, as a matter of public international law, of the content of the non-refoulement obligation in the ICCPR, I turn to that issue. There are three questions that must now be answered:

(a)    To what materials may resort be had in interpreting the ICCPR?

(b)    Where does the non-refoulement obligation come from?

(c)    What is the content of the non-refoulement obligation?

(a)    To what materials may resort be had in interpreting the ICCPR?

40    The question which arises is one which involves the interpretation of a treaty. Commonsense suggests, and the High Court’s decisions in Applicant A v Minister for Immigration and Ethic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ, 251-252 per McHugh J and Thiel v Commissioner of Taxation (1990) 171 CLR 338 at 344 per Mason CJ, Brennan and Gaudron JJ, 356 per McHugh J confirm, that this requires, as McHugh J put it in the latter case, that the treaty ‘is to be interpreted in accordance with the rules of interpretation recognised by international lawyers’.

41    That inquiry begins, but does not end, with the requirements of the Vienna Convention on the Law of Treaties [1974] ATS 2 (‘the VCLT’) and, in particular, art 31 of that Convention. Article 31 provides:

Article 31

General rule of interpretation

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.

2.     The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)    any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b)    any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3.    There shall be taken into account, together with the context:

(a)    any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)    any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)    any relevant rules of international law applicable in the relations between the parties

4.    A special meaning shall be given to a term if it is established that the parties so intended.

42    Additionally, recourse may be had to ‘supplementary means of interpretation’, according to art 32 of the VCLT, ‘in order to confirm [inter alia] the meaning resulting from the application of article 31’. In Thiel at 357, McHugh J (with whom Mason CJ, Brennan and Gaudron JJ agreed on this point at 344) held that the commentary prepared by the Organisation for Economic Co-operation and Development (‘the OECD’) on its ‘Model Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and on Capital’ (and, indeed, the Model Convention itself) were supplementary means of interpretation within the meaning of art 32. Dawson J reached the same conclusion (at 350).

43    This suggests that a commentary or other interpretive statement prepared by an equivalent body on the ICCPR will itself be a supplementary means of interpretation to which regard may legitimately be had. Article 28 of the ICCPR establishes the Committee, which has a membership elected by the States who have acceded to the Convention: art 30(4).

44    To my mind, there is potentially one distinguishing feature from the situation in Thiel. In that case, the Convention on the Organisation for Economic Cooperation and Development [1971] ATS 11 reconstituted the Organisation for European Economic Co-operation as the OECD and, as part of its work, the OECD developed the Model Convention on Double Taxation. At the same time, it wrote a commentary on the Model Convention and has continued to update both documents. The commentary thereby prepared was material created by the author of the Model Convention. Its ability to assist in the interpretation of the Model Convention is obvious.

45    This may not be so in the case of the Committee. It did not create the ICCPR but was instead created by it. It is not self-evident that the opinions of a body constituted by a treaty on what the substantive (as opposed to constitutive) provisions of that treaty mean is necessarily useful material in the process of interpretation. Nevertheless, upon reflection, I accept that the Committee’s interpretation of the ICCPR is admissible in its construction. This is because, in the first place, art 40(4) expressly authorises the Committee to issue General Comments about the ICCPR:

Article 40

…

4.     The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant.

(Emphasis added.)

46    In addition to General Comments, the Committee is empowered by art 1 of the [First] Optional Protocol to the International Covenant on Civil and Political Rights [1991] ATS 39 (to which Australia is a party) to ‘receive and consider communications from individuals subject to [the] jurisdiction [of a party to the Protocol] who claim to be victims of a violation by that State Party of any of the rights set forth in [the ICCPR]’. The fruits of the Committee’s deliberations (called ‘views’) are thereafter forwarded to the individual and the State Party concerned: art 5(4).

47    The status of these views was considered by the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at 91 [148] per Black CJ, Sundberg and Weinberg JJ:

Although the views of the Committee lack precedential authority in an Australian court, it is legitimate to have regard to them as the opinions of an expert body established by the treaty to further its objects by performing functions that include reporting, receiving reports, conciliating and considering claims that a State Party is not fulfilling its obligations. The Committee's functions under the Optional Protocol to the International Covenant on Civil and Political Rights, to which Australia has acceded (effective as of 25 December 1991) are particularly relevant in this respect. They include receiving, considering and expressing a view about claims by individuals that a State Party to the Protocol has violated covenanted rights. The conclusion that it is appropriate for a court to have regard to the views of such a body concerning the construction of a treaty is also supported by the observations of Kirby J in Johnson v Johnson (2000) 201 CLR 488 at 501-502, and of Katz J in Commonwealth v Hamilton (2000) 108 FCR 378 at 387, citing some observations of Black CJ in Commonwealth v Bradley (1999) 95 FCR 218 at 237. See also R v Sin Yau-Ming [1992] 1 HKCLR 127 at 141. It is appropriate, as well, to have regard to the opinions expressed in works of scholarship in the field of international law, including opinions based upon the jurisprudence developed within international bodies, such as the Committee.

48    This statement, which probably binds me, is consistent with the Committee’s views on individual complaints (as well as its General Comments) being ‘supplementary means of interpretation’ under art 32 of the VCLT. I return below to why I say ‘probably binds’.

49    An alternate route to the same conclusion may be art 38(1)(d) of the Statute of the International Court of Justice [1975] ATS 50, which provides that that Court ‘whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply…(d)…judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’. Although, strictly speaking, the operation of that provision is limited to the activities of the International Court of Justice, ‘[a]rticle 38 is generally regarded as a complete statement of the sources of international law’: I Brownlie, Principles of Public International Law (Oxford University Press, 7th Ed, 2008) at 5. Under art 28(2) of the ICCPR, the persons appointed to the Committee are to be ‘persons of high moral character and recognized competence in the field of human rights’. This may suggest that the output of the Committee may be admissible as the teachings of highly qualified publicists. As the International Court of Justice itself observed in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010] ICJ Rep 639 at 664 [66], after citing both a view and a General Comment of the Committee:

Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.

(Emphasis added.)

50    In any event, this course is sanctioned by Al Masri. I have said above at [48] that Al Masri ‘probably binds me’, which may seem a curious thing for a single judge to say of a Full Court judgment. The reason for my ambivalence on this issue is that the Full Court’s statement is a statement about the appropriate sources of public international law. There is an interesting question as to whether the Full Court’s opinion is a statement of Australian law or, perhaps in the style of foreign law, a statement of fact: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 225 per Gummow J. Since I propose to follow Al Masri, there is no utility in working out how the domestic doctrine of stare decisis operates in respect of domestic statements about the appropriate sources of public international law. At the very least, Al Masri is a ‘judicial decision’ and therefore a ‘subsidiary means for the determination of rules of [international] law’: art 38(1)(d), Statute of the International Court of Justice. The same comments apply to my use of Thiel above.

(b)    Where does the non-refoulement obligation come from?

51    The full text of art 7 of the ICCPR (upon which Mr Anochie relies) is as follows:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

52    Article 7 does not itself directly confer a non-refoulement obligation upon a State Party, but there are international materials which indicate that art 2(1) has the effect of imposing such an obligation on a State Party contemplating the extradition or deportation of a person within its territory to another State. Article 2(1) provides:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

53    There are two readings of art 2(1) available which bear on this case. The first is that a State Party’s obligation to ‘ensure to all individuals within its territory…the rights recognized in the present Covenant’ could refer to ensuring only that no breaches of the rights conferred by the Covenant occur within its jurisdiction. The second is that it also requires a State Party to take steps to prevent breaches of the rights conferred by the Covenant from occurring outside its territory where its own actions will be the immediate cause of a person presently being within its jurisdiction ceasing to be so.

54    Article 31(2) of the VCLT (which is set out above at [41]) has the effect of including the preamble to the ICCPR as part of ‘the context’ which, by art 31(1), is to be considered when interpreting a treaty. The preamble to the ICCPR is as follows:

THE STATES PARTIES TO THE PRESENT COVENANT,

CONSIDERING that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

RECOGNIZING that these rights derive from the inherent dignity of the human person,

RECOGNIZING that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

CONSIDERING the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

REALIZING that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

AGREE upon the following articles:

(Italicised emphasis added.)

55    The italicised reference to the obligation of States to ‘promote universal respect for, and observance of, human rights and freedoms’ suggests that the broader interpretation of art 2(1) is more consistent with the context and purpose of the ICCPR. Deporting individuals within one’s territory to another State where their rights under the ICCPR would be breached would not be conduct which promoted either respect for, or promotion of, those rights.

56    Consequently, the bare text of the ICCPR suggests that art 2(1) carries with it a non-refoulement obligation.

57    As explained at [42]-[50] above, regard may be had to the Committee’s General Comments and views as subsidiary means of interpretation. In General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004, UN Doc CCPR/C/21/Rev.1/Add.13) (‘General Comment 31’), the Committee observed (at [12]):

Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.

58    This confirms the textual conclusion at which I have already arrived, namely, that there is a non-refoulement obligation arising from art 2.

(c)    What is the content of the non-refoulement obligation?

59    General Comment 31 also throws light on the content of that obligation. It would appear that, in the Committee’s opinion, there needs to be:

(a)    substantial grounds;

(b)    for a belief;

(c)    that there is a real risk of harm;

(d)    where that harm is of the irreparable kind contemplated by arts 6 and 7 (i.e. arbitrary deprivation of life and torture).

60    The Minister submitted that General Comment 31 was a correct statement of what was required, but that the ‘real risk’ element had been given further content by the Committee, which had treated it as synonymous with a ‘necessary and foreseeable consequence’ test.

61    This was said to be supported by what had been said by the Committee in ARJ v Australia. That case had concerned the proposed deportation by Australia to Iran of an Iranian who had been convicted of importing 2 kg of cannabis resin into Australia: at [2.1]. It was suggested that, on his return, he might be subjected to an unfair trial, imprisonment and thereafter torture. There were two passages in the Committee’s reasons which were said by the Minister to be relevant:

6.8    What is in issue in this case is whether by deporting Mr. J to Iran, Australia exposes him to a real risk (that is a necessary and foreseeable consequence) of a violation of his rights under the Covenant.

…

6.14    In assessing whether, in the instant case, the author is exposed to a real risk of a violation of article 7, considerations similar to those detailed in paragraph 6.12 above apply. The Committee does not take lightly the possibility that if retried and resentenced in Iran, the author might be exposed to a sentence of between 20 and 74 lashes. But the real risk of such treatment must be real, i.e. be the necessary and foreseeable consequence of deportation to Iran.

(Emphasis in original.)

62    One should observe the high standard set by this test. A foreseeable consequence is one thing, but a ‘necessary and foreseeable consequence’ is another altogether. It is foreseeable that I may get wet on the way home today, but on no view is it both necessary and foreseeable that this should occur – the clouds may clear.

63    For the reasons given above, the decision of the Committee in ARJ v Australia is capable of throwing light on the issue. The test of ‘necessary and foreseeable’ had reflected the idea that the focus was on whether the harm alleged would occur. Earlier decisions of the Committee also supported that view: see, for example, Kindler v Canada (Communication No 470/1991, 30 July 1993, UN Doc CCPR/C/48/D/470/1991) at [6.2]; Cox v Canada (Communication No 539/1993, 31 October 1994, UN Doc CCPR/C/52/D/539/1993) at [10.4] and [16.1]; GT v Australia (Communication No 706/1996, 4 November 1997, UN Doc CCPR/C/61/D/706/1996) at [8.4] and [8.6].

64    Subsequently, there has been a shift in the Committee’s approach. Whilst apparently still requiring that something be a necessary and foreseeable consequence of deportation, more recent decisions suggest that the something is not the harm itself but the risk of harm. This appears to have been the approach in Munaf v Romania (Communication No 1539/2006, 30 July 2009, UN Doc CCPR/C/96/D/1539/2006) at [14.2] and Yakupova v Uzbekistan (Communication No 1205/2003, 3 April 2008, CCPR/C/92/D/1205/2003) at [6.3]. More recently, the Committee considered the status of the ‘necessary and foreseeable’ test in Pillai v Canada (Communication No 1763/2008, 25 March 2011, UN Doc CCPR/C/101/D/1763/2008). The Committee expressed itself succinctly on the issue at [11.4], saying: ‘the Committee recalls its General Comment No. 31 in which it refers to the obligations of States Parties not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm’. Five members of the Committee (Ms Helen Keller, Ms Iulia Antoanella Motoc, Mr Gerald L. Neuman, Mr Michael O’Flaherty and Sir Nigel Rodley) wrote a concurring opinion. They expressed themselves in this way on the issue.

This Committee has also concluded that Article 7 requires attention to the real risks that the situation presents, and not only attention to what is certain to happen or what will most probably happen. General Comment No. 31, quoted above, demonstrates this focus. So do the Committee’s Views and Decisions of the past decade. The phrasings have varied, and the Committee continues to refer on occasion to a “necessary and foreseeable consequence” of deportation. But when it inquires into such consequences, the Committee now asks whether a necessary and foreseeable consequence of the deportation would be a real risk of torture in the receiving State, not whether a necessary and foreseeable consequence would be the actual occurrence of torture.

[The footnote reads: See for example communication No. 1539/2006, Munaf v. Romania, Views adopted on 30 July 2009, para. 14.2 (“The risk of an extraterritorial violation must be a necessary and foreseeable consequence…”); communication No. 1205/2003, Yakupova v. Uzbekistan, Views adopted on 3 April 2008, para. 6.3 (“substantial grounds for believing that, as a necessary and foreseeable consequence of the transfer to Kazakhstan, there was a real risk that he would be subjected to treatment prohibited by Article 7.”]

(Emphasis added.)

65    In a dissenting opinion, Mr Yuji Iwasawa said:

The concurring opinion of Ms. Keller and others points out that the Human Rights Committee in the recent decade asks whether the necessary and foreseeable consequence of the deportation would be a real risk of torture, rather than the actual occurrence of torture. The jurisprudence of the Committee is, however, not consistent. Even in recent years, the Committee asks whether the necessary and foreseeable consequence would be a violation of rights, rather than a real risk of a violation. [Footnote: Communication No. 1539/2006, Munaf v. Romania, Views adopted on 30 July 2009, para. 7.5.] Moreover, the Committee constantly cites as the authority A.R.J. v Australia, [Footnote: e.g., Communication No. 1544/2007, Hamida v. Canada, Views adopted on 18 Mar. 2010, para. 8.7, n.19] which sets out a necessary and foreseeable consequence of a violation as the test. Thus, the test of the Committee needs clarification.

66    The Minister submitted that this was not the basis of the decision in Pillai and, in this, he is strictly correct. The actual decision in Pillai turned on the failure of the Canadian authorities properly to ascertain what would happen to the authors of the communication (i.e. the complainants) if they were deported: see [11.3]-[11.4]. Nevertheless, I do not think it lessens what is otherwise an explicit statement by the Committee that what must be a necessary and foreseeable consequence of deportation is the risk of harm and not the harm itself.

67    In those circumstances, I conclude that art 2 of the ICCPR imposes on the Commonwealth an obligation not to deport Mr Anochie in the circumstances set out in General Comment 31 – as explained in Pillai – and that the question is whether a necessary and foreseeable consequence of deportation would be a real risk of irreparable harm. The kinds of harm in arts 6 and 7 may serve as a guide to the severity of what is required without being an exhaustive statement of the quality of that harm. The superaddition of the words ‘substantial grounds for believing’ do not add any additional requirements to the test. Domestic courts who have to consider this question would no doubt be assisted if the Committee could maintain some consistency of language, but I do not doubt that the test is as I have outlined.

68    In this case, the only harm relevant is the risk of torture, cruel, inhuman or degrading punishment (i.e. a violation of art 7), so my considered view that the obligation potentially extends beyond the harms in arts 6 and 7 is an obiter dictum. It is, however, an obiter dictum with considerable pedigree: see Human Rights Committee, General Comment No 15: The Position of Aliens under the Covenant (11 April 1986, UN Doc HRI/GEN/1/Rev.6) at 140 [4] (‘in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise’); in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1955) 213 UNTS 221, see Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1 at 71-72; [2012] ECHR 56 at [231]-[233] and Ullah, R (on the Application of) v Special Adjudicator [2004] 2 AC 323; [2004] UKHL 26 at [1], [21] and [24] per Lord Bingham, [29] and [50] per Lord Steyn, and [62]-[70] per Lord Carswell. See also Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Migration Amendment (Complementary Protection) Bill 2009 [Provisions] (2009) at [3.12]-[3.13], and the following submissions to that inquiry: Australian Human Rights Commission, Submission No 32, 30 September 2009 at [31]-[36]; Refugee Council of Australia, Submission No 10, 28 September 2009 at 2-4; Human Rights Law Resource Centre, Submission No 5, September 2009 at [16]-[19].

69    It should be pointed out at this juncture (as foreshadowed above at [29]) that the correct test differs from that set out in the specific clause of Direction 41 in two material ways. First, the correct test includes, as an element, the concept of a ‘necessary and foreseeable consequence’, whereas the specific clause speaks of a ‘necessary or foreseeable consequence’. Secondly, the consequence to be contemplated is the risk of ‘irreparable harm’, such as that envisaged by arts 6 and 7; it is not limited to the risk of violations of arts 6 or 7.

70    The Minister also submitted there needed to be a finding of irreparable harm in fact. I reject this submission. General Comment 31 is concerned with ‘irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant’ (my emphasis). All contraventions of arts 6 and 7 are irreparable harms and no further finding is necessary. The General Comment makes clear that contraventions of arts 6 and 7 are examples of irreparable harm (and, as I have noted above, there may be others). This is consistent with common sense. To be killed is certainly irreparable but it would take a certain outlook, which I would hope few people share, to think that being tortured did not also involve irreparable harm.

VII.    The Tribunal’s error

71    How did the Tribunal deal with the matter? For present purposes it is sufficient to note that the Tribunal considered the issue of risk as being a function of the operation of Decree 33 on Mr Anochie should he return to Nigeria and the perils of the Nigerian criminal justice system. This is confirmed at [66] of the Tribunal’s reasons: ‘the real question is whether Mr Anochie faces a real chance of being detained, imprisoned, and subjected to torture or to cruel, inhuman or degrading treatment or punishment’.

72    In that regard, the Tribunal reasoned this way (at [82]):

The consequences of [Mr Anochie coming to the attention of Nigerian authorities upon his return there] are unclear. It is not clear whether Mr Anochie would be simply “monitored” – whatever that means – or detained on arrival. It is not clear what chance he faces of being detained under Decree 33 and, if so, what that would mean for him. However, in the language of the High Court in Chan Yee Kin v [Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379;] [1989] HCA 62 in relation to the meaning of “well-founded fear” of persecution in Article 1A(2) of the Refugees Convention, the chance that he may be detained under Decree 33 and subjected to the type of harm that would engage Australia’s non-refoulement obligation cannot be dismissed as remote or insubstantial, or a far-fetched possibility and is, therefore, “real”.

73    The critical aspect of this is the last line, where it is apparent that the Tribunal applied a test of asking whether the risk of harm was real. It concluded that the risk was real because it was not remote or insubstantial or a far-fetched possibility. This conclusion is reinforced by what was said at [105]:

It also weighs in Mr Anochie’s favour that there is real chance that he would be detained on return to Nigeria and that he would be prosecuted under Decree 33. If either was to occur, he faces a real chance of suffering torture, or cruel inhuman or degrading punishment, meaning his removal would put Australia in breach of its obligations under the ICCPR and the CAT.

74    The Minister submits that the Tribunal erred by applying the ‘real chance’ test – ordinarily applied in a refugee context – when it should have applied the ‘real risk’ test under the ICCPR.

75    There is no doubt the tests under the two treaties are formulated in different terms. The language used in the Refugees Convention is whether a person has a ‘well-founded fear’ of persecution for a Convention reason. The words ‘well-founded’ have been interpreted in a number of ways, all of which convey the same idea. For example:

1.    is there a ‘real chance’ that the refugee will be persecuted if returned? (Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ, 398 per Dawson J, 407-408 per Toohey J, 427-429 per McHugh J.)

2.    is there a ‘reasonable degree of likelihood’? (R v Home Secretary; ex parte Sivakumaran [1988] AC 958 at 994 per Lord Keith of Kinkel.)

3.    is there a ‘real and substantial risk’? (Sivakumaran at 1000 per Lord Goff of Chieveley.)

4.    is there a ‘reasonable possibility’? (Immigration and Naturalization Service v Stevic (1984) 467 US 407 at 425.)

76    In the case of the Refugees Convention, it is accepted that the chances of persecution need not exceed fifty per cent: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, at 585 per Kirby J. Indeed, in Chan, McHugh J thought a ten per cent chance of persecution might suffice: at 429.

77    The Minister pointed this out to contrast the position with the asperity of the test articulated in ARJ v Australia. But, as I have endeavoured to explain, the correct test is whether deportation carries with it, as a necessary and foreseeable consequence, a real risk of irreparable harm, such as is found in arts 6 and 7 of the ICCPR. It seems to me that this test lies between the test advocated by the Minister and that applied by the Tribunal.

78    Asking whether the formulation in Chan is different to the formulation in Pillai (or, for that matter, ARJ v Australia) is an almost meaningless question. It is a more useful inquiry to ask what it is that both treaties are doing. The Refugees Convention seeks to define when a visa will be granted to a person seeking refuge. The ICCPR concept of non-refoulement is addressed to a different question; namely, whether a person can be sent to a particular State. So, too, the harms which are involved are different. The Refugees Convention will be satisfied by persecution which may fall well short of death, torture or other similarly irreparable harm. Non-refoulement under the ICCPR, by contrast, requires irreparable harms of the kinds contemplated by arts 6 and 7. Further, there may not necessarily be a bright line between the terms of the risk assessment question and the actual risk being assessed under it. Where the risk is death or torture, what is required by a test such as ‘real chance’ or even ‘necessary and foreseeable consequence’ is likely more readily to be satisfied than where the risk is not being able to practice one’s religion or express one’s political views.

79    Ultimately, I do not think that dissecting the verbal formulae used by the Tribunal and comparing it to the formulae used by the Committee would be useful, although no doubt it would amuse those who study linguistics. The more critical issue seems to me to be that the functions being performed under these conventions are very different. Determining whether a person has a well-founded fear of persecution for a Refugees Convention reason is a fundamentally different inquiry to asking whether a State’s obligation under art 2 of the ICCPR to ensure a person’s rights under that treaty requires that the person not be deported.

80    The flaw in the Tribunal’s approach was to assume that these were interchangeable inquiries when, in fact, they are quite different. The simple transfer of the words of one test in one context to a similar test in a different context is erroneous (although entirely understandable).

81    I do not by that mean to suggest that the answer to the correct question will necessarily be any different, although I express no view about that. What needs to occur instead is for the Tribunal to identify the field of discourse it is examining – non-refoulement – and then to apply the Committee’s approach in the General Comment as explained in Pillai. It is not helpful to intermingle refugee jurisprudence into that debate, however similar the language of some of the tests.

82    In those circumstances, I conclude that the Tribunal failed to take into account a relevant consideration, namely, the correct principles of international law.

83    The Minister also took issue with the way in which the Tribunal had approached the factual analysis of Decree 33’s operation and the perils of the Nigerian criminal justice system. He did this through the prism of an assumption, lest his principal argument fail, that the Tribunal had applied the correct test. In view of the fact that I have concluded that it applied the wrong test, an analysis of how it treated the material before it on the wrong test would not be useful. It might be observed, however, that an assessment of risk requires the risks clearly to be identified. I will say no more than that.

VIII.    Disposition

84    Not without some hesitation, I conclude that the outcome would not inevitably have been the same if the Tribunal had applied the correct test and that, therefore, relief should not be refused for discretionary reasons. There will be, therefore, grants of certiorari and mandamus directed to the Tribunal.

85    I presently incline to the view that the costs of the appeal should abide the outcome of the rehearing in the Tribunal. If the parties cannot reach agreement on an appropriate costs order, they may file, by 1 February 2013, short written submissions.

Associate:

Dated:    18 December 2012