FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration and Border Protection [2015] FCA 1473

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the respondent dated 27 July 2015 to cancel the applicant’s Class BB Subclass 155 (Five Year Resident Return) visa.

2.    A writ of prohibition issue preventing the respondent from taking any action to detain the applicant in immigration detention or to remove her from Australia on the basis of that decision.

3.    The respondent forthwith release the applicant from immigration detention.

4.    The respondent pay the applicant’s costs of and incidental to the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    Mrs Tam Thi Le was born in what is now known as the Socialist Republic of Vietnam in 1956. She arrived in Australia on 3 October 1984. Mrs Le entered Australia lawfully at that time, pursuant to a K4011 Refugee (Vietnamese) Permit issued under the Migration Act 1958 (Cth) (the Act) as it then stood. Either pursuant to that entry permit or another then issued under the Act, the precise position not being clear on the material before me, she was granted permanent residence in Australia upon her arrival.

2    In the years following Mrs Le’s arrival in Australia, the Act was amended so as to do away with the entry permit system and instead to make a visa the foundation for a non-citizen’s lawful residence in Australia, be that permanent or temporary. So it was that on 16 December 1991 Mrs Le came to be granted a Subclass 155 (Resident Return) visa and then, on 16 December 1994, a Class BB Subclass 155 (Five Year Resident Return) visa. That visa allowed her to remain in Australia indefinitely. Mrs Le did not hold any other Australian visa.

3     It was common ground between the parties and the proceeding was conducted on the basis that the ultimate foundation for these grants of permanent residence to Mrs Le was the initial acceptance by Australia in 1984, evidenced by the grant to her of a K4011 Refugee (Vietnamese) Permit, that she was a “refugee” for the purposes of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967 (Refugees Convention). The issuing of entry permits for non-citizens was then governed by s 6A (since repealed) of the Act with the operation and application of that section in relation to refugees being explained in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

4    Unlike her husband, Mrs Le did not become an Australian citizen. There is no evidence that this was because of any antipathy on her part towards gaining that status. She just did not get around to it. She remains a Vietnamese citizen. That absence of Australian citizenship means that she is dependent upon her visa for lawful residence in Australia.

5    On 27 July 2015, the Minister for Immigration and Border Protection, then as now the Honourable Peter Dutton MP, decided personally, pursuant to s 501(2) of the Act, to cancel Mrs Le’s Class BB Subclass 155 (Five Year Resident Return) visa. For the purposes of the Act, the effect of the Minister’s decision was to change Mrs Le’s immigration status from that of lawful non-citizen to unlawful non-citizen (ss 13 and 14 of the Act respectively refer). It also thereby rendered her, as an unlawful non-citizen, liable to detention pursuant to s 189 of the Act. Mrs Le is, as a result, presently in immigration detention. She is also liable to removal from Australia pursuant to s 198 of the Act.

6    Pursuant to s 476A of the Act, Mrs Le has instituted proceedings in the Court’s original jurisdiction for the judicial review of the Minister’s visa cancellation decision. That she is in immigration detention lends a degree of urgency to the disposition of the proceeding.

7    The grounds of review underwent a number of amendments, the last in the course of the hearing.

8    Of the amended grounds, some may be disposed of on their merits in short order, albeit after some necessary detailing of the reasons which the Minister furnished to Mrs Le for his decision.

9    It was put that the Minister’s decision was illogical, irrational or unreasonable. I disagree.

10    In an article published earlier this year in the Australian Bar Review, the Honourable WMC Gummow AC observed, “To describe the reasoning in an administrative decision as irrational or unreasonable may be mere persiflage”: (Gummow WMC, “Rationality and reasonableness as grounds of review” (2015) 40 Australian Bar Review 1). As the learned author noted, there is high authority for the proposition that such a description of a decision may “merely be an emphatic way of disagreeing with it” (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34]) but is without legal consequence.

11    Even employing irrational (or illogical) in an orthodox, rather than casually emotive, way to describe the reasons given for an administrative decision, this ground of review is not, and probably never was, completely congruent at common law with the jurisdictional error ground of unreasonableness. So much is now clear as a result of the explanation offered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Li) of the judgment of Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). As their Honours there state, “an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified”. Their Honours conclude, at [76], their consideration of the unreasonableness ground of review with these observations:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

[footnote reference omitted]

12    There is nothing illogical or irrational about the Minister’s reasons. Hard though the outcome of the Minister’s decision was for Mrs Le and her family personally, there is a readily comprehensible basis disclosed in the Minister’s reasons for that decision. However much Mrs Le and her family might disagree with and be distressed by the outcome, that disagreement and distress is not to be equated with the jurisdictional error ground of illogicality or irrationality.

13    The Minister’s reasons reveal a meticulous examination of Mrs Le’s personal circumstances, extending not only to her relationships with her husband and adult children, each of whom is an Australian citizen, but also to her relationships with her grandchildren, each also Australian citizens. He also took into account Mrs Le’s ties to her 82 year old, Australian resident mother. This was responsive to a very comprehensive submission made on behalf of Mrs Le by her advisers after her receipt of a notice of intention to cancel her visa. In assessing Mrs Le’s ties to Australia, the Minister concluded, “Ms LE has a very close-knit family in Australia and I accept her presence is of high importance to her family” (Reasons, para 51).

14    The Minister’s reasons also disclose that he took into account Mrs Le’s extensive criminal history in Australia. This commenced in 1994 with a succession of what the Minister regarded and which, objectively, were “relatively minor” offences, each of which attracted fines. They are detailed in the Briefing Paper prepared for the Minister by his department. The Minister chose not to repeat this detail in his reasons. He made no particular moment of these offences.

15    The offences which most attracted the Minister’s attention were described in his reasons as follows:

9.    … Regarding her first offence involving drugs, on 2 May 1997 she was convicted of seven counts of supplying heroin, two counts of possessing heroin and one count of possessing a motor vehicle used in connection with supplying heroin, for which she was sentenced to four years imprisonment to be served concurrently, with a non-parole period of 18 months.

10.    In sentencing Ms LE in relation to these matters the court remarked that the offences, which involved four members of her family, were inherently serious, and the fact that she committed the offences whilst on bail aggravated her offending.

11.    On 7 November 2000, Ms LE was convicted of trafficking in dangerous drugs for which she was sentenced to eight years imprisonment. The court found that she trafficked in significant quantities of heroin for significant financial returns on a regular basis and that her motivation was largely commercial. The court also found that the offending occurred during her period of home detention, and that after her release in 1998 she “immediately resumed selling heroin”, which resulted in her breaching the conditions of her parole.

12.    After her release in 2005, Ms LE committed the additional offence of trafficking in dangerous drugs in 2007. On 22 December 2011, she was convicted of this offence and sentenced to eight years imprisonment. Ms LE was released in September 2014 and she is currently residing in the community on a parole order that expires in July 2016.

13.    The court remarked that Ms LE operated a small scale wholesale business selling street level quantities of heroin, that she involved members of her family – her husband as driver and her son as agent and interpreter, and that she was “the leader of the operation”. The court also noted that she was on parole at the time of the offending.

14.    I adopt the judicial observations and consider Ms LE’s drug -related offences constitute serious criminal offending. The sentences she received are a further indication of the seriousness of her offending. I regard each of Ms LE’s custodial terms as indicative of her serious offending. I also take into account that some of her offending occurred when she was on bail, during periods of home detention and while on parole for previous offending.

15.    I further note that Ms Le has had no further convictions since her last conviction in December 2011 and since her release to parole in September 2014.

16    The Minister’s characterisation of these drug-related offences as “serious” is unremarkable. By any objective measure, they were serious offences. By definition, they also meant that Mrs Le had a “substantial criminal record” for the purposes of s 501 of the Act: s 501(7) refers. That being so, there was a foundation for the Minister reasonably to suspect, as suspect he did, that Mrs Le did not pass the “character test” for the purposes of s 501: see s 501(6)(a) of the Act. Mrs Le did not allege that she passed the “character test”.

17    The Minister had the benefit of, and his reasons disclose that he took into account, detailed information concerning Mrs Le’s “personal circumstances and mental health as well as her problems with gambling” (Reasons, para 16). He noted, “the judicial remarks that Ms LE did not herself use heroin and ‘committed the offence for the money’” and that she “had a difficult upbringing in Vietnam due to the war” and was “a heavy gambler” (Reasons, para 16). The Minister found, “Ms LE’s gambling habit, personal circumstances and mental health all contributed to her criminal offending” (Reasons, para 18).

18    For reasons which I detail below, the Minister expressly chose not to determine, because he considered it unnecessary, whether Australia had non-refoulement obligations to Mrs Le. Albeit without any focus upon possible interaction with any non-refoulement obligations, the Minister did, nonetheless, make particular findings about the extent of impediments which Mrs Le would face if removed to Vietnam. He concluded these findings as follows:

58.     I find the lifestyle and society in Vietnam including the Vietnamese language is familiar to Ms LE, given that she left the country as an adult, has returned to Vietnam and has maintained contact with the Vietnamese community in Australia. Nevertheless, I find that the standards of health, social and other services in Vietnam are not comparable to those in Australia, and that Ms LE may face substantial impediments on return, given her age, health issues, a lack of family support in a country of citizenship and particularly her absence from the country for some 30 years.

19    The Minister’s reasons disclose that he balanced each of these various factors and came to make a value judgement in favour of cancellation which he expressed in the following way:

60.    Ms LE has committed multiple offences in Australia, including a number of serious drug offences. Ms LE should expect to forfeit the privilege of staying in Australia.

61.    I find that the Australian community could be exposed to serious harm should Ms LE reoffend in a similar fashion. I could not rule out the possibility of future offending by her. The Australian community should not tolerate any further risk of harm.

62.    I found the above consideration outweigh the countervailing considerations in Ms LE’s case, including the best interests of her eight minor grandchildren, impact on a husband and other family members in Australia. I have also considered the length of time Ms LE has made a positive contribution to the Australian community, as well as the impediments she will face on return due to her long absence and a lack of family support in Vietnam.

63.    In reaching my decision I concluded that Ms LE represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

20    In two cases decided earlier this year, Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36 and Eden v Minister for Immigration and Border Protection [2015] FCA 780 (Eden), I concluded that particular, personal exercises by the Minister concerned of the discretion conferred by s 501(2) of the Act were unreasonable in the sense this jurisdictional error ground is described in Li. Whether that ground is established in the present case is not to be determined by comparing and contrasting the circumstances of those cases with those of the present. That would be to elevate outcomes on particular facts to statements of principle. In fairness, Mrs Le did not attempt to do this. Her submission was that the outcome was unreasonable in the circumstances of this case.

21    In the later of these two earlier cases, Eden, at [30] – [32] and by reference to De Smith’s Judicial Review, at paras 11-74 and The Queen, on the application of the Association of British Civilian Internees (Far East Region) v Secretary of State for Defence [2003] QB 1397 at 33-35, I made reference to views expressed in the United Kingdom about whether proportionality, rather than unreasonableness, ought to be regarded as a ground of jurisdictional error. I opined that, if Li presaged an evolution from unreasonableness to proportionality as a jurisdictional error ground, that development in Australian administrative law was one for the High Court in the exercise of its ultimate appellate jurisdiction, not for a judge sitting in the exercise of original jurisdiction. I adhere to that view.

22    That Li may presage such a development has, notably, since then, been postulated by The Hon Sir Anthony Mason AC, KBE in his paper, “Proportionality and its use in Australian Constitutional Law”, which he delivered at the public lecture named in his honour at the Melbourne University Law School on 5 August 2015 (I am advised by the author that a revised version is to be published in Public Law in 2016. It is at present available online as a podcast at: http://law.unimelb.edu.au/news/MLS/sir-anthony-mason-lecture, accessed, 21 December 2015). Li, he opined, may indicate on the part of the current High Court “a more positive attitude to the use of proportionality”.

23    Some three decades earlier and writing judicially in relation to unreasonableness as a ground of jurisdictional error in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42 (Peko-Wallsend), Sir Anthony highlighted the considerable diversity in the readiness with which courts had been prepared to hold that this ground had been made out. He suggested that guidance might be found by analogy with the appellate review of the exercise of a judicial discretion on the basis that proper weight had not been given to a particular matter in its exercise. This guidance, he reminded, carried with it the need to proceed with caution in finding that the ground was made out, lest a mere preference for a particular result lead impermissibly to review on the merits. His Honour’s discussion of this subject was cited with approval by Hayne, Kiefel and Bell JJ in Li at [75].

24    A moderating influence in respect of an invitation to conclude that an exercise of a discretionary power by a Minister or some other officer of the Executive is unreasonable must always be the limited role of a reviewing court. In the present context, Parliament has, by s 501(2) of the Act, consigned the exercise of a visa cancellation discretion to the Minister, not to the courts. In exercising his discretion in the present case, the Minister was answerable to this Court only in respect of the legality of his decision and then only if a judicial review application were instituted (and the same applies in respect of the exercise by the High Court in respect of the jurisdiction entrenched by s 75(v) of The Constitution). In all other respects, the Minister was and remains answerable to Parliament under our Westminster system of responsible government, to the electorate under our system of representative democracy and to the loneliness of his conscience in how faithfully to adhere to the oath or affirmation which he took in assuming his present office as what our Constitution (s 64) terms “one of the Queen’s Ministers of State for the Commonwealth”. The importance for the legitimacy of judicial review in these considerations translating in practice into a principled restraint in determining whether the jurisdictional error ground of unreasonableness is established cannot be over-emphasised and lose nothing of their force by repetition in particular cases.

25    For Australia, these considerations were definitively expressed by Brennan J (as his Honour then was), in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall C.J. in Marbury v. Madison:

"It is, emphatically, the province and duty of the judicial department to say what the law is."

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

[footnote reference omitted]

26    Approaching the subject of unreasonableness on the basis that its metes and bounds are not delineated by Wednesbury and even allowing that, exceptionally, the ground might be established on the basis of a failure to give proper weight to a particular matter, I cannot conclude that it is present with respect to the Minister’s exercise of his discretion in this case.

27    The passages from the Minister’s reasons to which I have referred above demonstrate that he gave particular weight to Mrs Le’s familial and other ties with Australia, to an explanation for her offending conduct that might be found in her youth in war-torn Vietnam and to the difficulties which she would encounter in a return to that country at her age and without the support of family members resident there. It was not submitted that the Minister’s deliberate references to these considerations were a mere pretence, indicative of a decision made in bad faith and there is not a scintilla of evidence which would support any such conclusion.

28    This is just one of those cases where there were countervailing considerations. The Minister was entitled to treat these as, on balance, decisive with respect to visa cancellation. Objectively, the drug offences to which the Minister adverted were serious. He was also entitled to take into account that “some of her offending occurred when she was on bail, during periods of home detention and while on parole for previous offending”. The latter was reasonably capable of being regarded as an aggravating factor. The unreasonableness ground is not made out.

29    Subject to the question of any obligation to consider non-refoulement, the Minister has addressed the merits of Mrs Le’s individual case and reached a conclusion to which he was reasonably entitled.

30    It was also put that jurisdictional error was to be found in a failure on the part of the Minister to give proper consideration, “by necessity and or by analogy to Articles 3(2) and 9(1) of the United Nations Convention on the Rights of the Child”.

31    Australia is a party to the Convention on the Rights of the Child (New York, 20 November 1989), which entered into force for Australia on 16 January 1991 (Australian Treaty Series 1991 No 4). Article 3 of this treaty materially provides:

1.    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

Article 9(1) of this treaty provides:

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

32    There are numerous difficulties with this ground of review, not the least of which is that, even assuming that the Minister was obliged to take these particular treaty articles into account and to treat them as extending to Mrs Le’s grandchildren so as to make their best interests a primary consideration, his reasons reveal that he did just that. That makes it unnecessary to consider in detail other difficulties which attend this ground. It is sufficient to make some brief reference to them.

33    Article 1 of the treaty provides:

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

None of Mrs Le’s surviving children is below the age of eighteen years. Each is an adult. Given the definition of “child” found in Article 1 and the references to “parent” in each of Articles 3(2) and 9(1) of the treaty, it is difficult, if not impossible, to construe either article as extending to grandchildren.

34    Australia’s subscription to this treaty did not, of its own force, thereby make the international obligations under that treaty mandatory relevant considerations for the Minister in the exercise of the discretion conferred on him by s 501 of the Act: Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at [101] per McHugh and Gummow JJ; at [148] per Callinan J.

35    The best interests of minor children in Australia were designated as a primary consideration in the directions given by the Minister’s predecessor in office under s 499 of the Act. The direction then in force (No 55) was annexed to the notice of intention to consider cancelation letter dated 31 March 2014, which was sent to Mrs Le. By the time when the Minister made his visa cancellation decision, that direction had been revoked and replaced by another (No 65) but the best interests of minor children in Australia remained a primary consideration in this direction. The existence of this replacement direction was drawn to Mrs Le’s attention under cover of a letter from the Minister’s department dated 6 February 2015.

36    Neither of these directions bound the Minister when personally making such a decision. This was stated explicitly in the letter of 31 March 2014. In that letter, the subjects canvassed in the direction were put no higher than, “a broad indication of the types of issues that he may take into account”. There was no separate representation by or on behalf of the Minister that these subjects had any greater status than that. In these circumstances, the foundation even for the Minister to be subject to a procedural fairness obligation with respect to the offering of an opportunity to be heard on any of these subjects, best interests of minor children included, is wanting. Further and in any event, such an opportunity was extended to Mrs Le by the Minister and she took advantage of it.

37    The ground based on this treaty must fail.

38    It was also asserted (as ground 4) that the Minister’s decision was affected by the following asserted jurisdictional error, “The Minister failed to take proper and full account of the implications of the Applicant’s migration rights being limited to apply for a Protection Visa pursuant to s 48A of the Act and by failing to consider that such an application would be made outside of the Migration Zone and have negligible prospects of success, both of which were relevant in formulating the Minister’s ultimate decision.”

39    The Minister’s reasons contain the following passage under the heading, “International non-refoulement obligations”:

International non-refoulement obligations

46.    Ms LE arrived in Australia as a refugee in 1984 and was granted permanent residence on arrival.

47.    I note that when she was last considered for visa cancellation, which commenced in 2004 Ms LE made claims that required assessment in relation to Australia's international non-refoulement obligations. The Department completed an international obligations assessment on 29 July 2004 and another on 10 November 2006, both of which found that cancellation of Ms LE's visa would not result in a breach of Australia's international non-refoulement obligations.

48.    Ms LE has not made any claims in relation to the current character consideration process that require assessment in relation to Australia's international non-refoulement obligations, however she is able to make a valid application for another visa. I note that Ms LE is not prevented by s48A of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Ms LE for the purposes of determining whether her visa should be cancelled.

40    Ground 4 is based on para 48 of the Minister’s reasons. A complete answer to it was given by the Minister in his submission that what is put in this ground was not a relevant consideration in the sense that it was not one which the Act either expressly or by necessary implication required the Minister to take into account: Peko-Wallsend, at 39-40 per Mason J (as Sir Anthony then was). Further, the statement in para 48 of the Minister’s reasons that Mrs Le was not prevented by s 48A of the Act from making an application for a protection visa is correct.

41    This then leaves the question as to whether the Minister was under any obligation to address whether Australia had any continuing non-refoulement obligation to Mrs Le, having accepted her for residence in 1984 on the basis that she was a refugee for the purposes of the Refugees Convention (ground 5). If he were subject to such an obligation, this ground of review will be made out, for para 48 of his reasons reveals that he considered that it was unnecessary for him to determine this in the absence of a claim in this regard by Mrs Le. Accordingly, the Minister made no such determination.

42    The Minister’s submissions in relation to this ground were two-fold. The first was to repeat the position evident from the first sentence in para 48 of his reasons. That was that, in the absence of any current claim by Mrs Le with respect to non-refoulement in her submissions to the Minister, there was no need to consider this subject. The second was that, as a result of an amendment of the Act which came into force prior to the making of the Minister’s decision, s 197C made the subject irrelevant in any event. Section 197C provides:

Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

43    The term, “refoulement” and its antonym, “non-refoulement” offer a reminder of the historic role of the French language in international diplomacy. The term, “refoulement” is derived from the French, “refouler”, meaning to force or drive back. In the Refugees Convention, refoulement finds expression in Article 33, which provides:

Prohibition of expulsion or return (refoulement)

1.    No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Also relevant, in relation to the expulsion or return of a refugee is Article 32 of the Refugees Convention, which provides:

Expulsion

1.    The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

2.    The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

3.    The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

44    Mrs Le being a Vietnamese citizen and that country being the subject of the claim to refugee status made by her and accepted by Australia in 1984, the parties came to focus attention in their submissions in relation to ground 5 on Article 33 of the Refugees Convention.

45    It has been said of Article 33 of the Refugees Convention that, “the principle of non-refoulement constitutes “a cornerstone of the protection of refugees and asylum seekers”: Davy U, “Article 32” in Zimmermann A (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol, A Commentary (Oxford University Press, 2011) p 1335. The correctness of this statement is beyond doubt. The principle of non-refoulement complements, materially, the acceptance by a state party to the Refugees Convention that, in terms of Article 1A(2) of that Convention, a person who is outside the country of their nationality, has a well-founded fear of persecution for a reason specified in that article and is unable or, owing to such fear, unwilling to return to that country. In 1984, Australia accepted that Mrs Le was just such a person, a “refugee”, in relation to Vietnam and granted her lawful residence here accordingly.

46    James Hathaway (The Rights of Refugees under International Law (Cambridge University Press, 2005) p 657) puts the international law position with respect to that acceptance and grant of lawful residence in this way, “… once a refugee is not only in fact under the jurisdiction of a state party to the Convention, but also lawfully present in that country, he or she acquires three additional rights” (emphasis in original). In the circumstances of this case, it is only necessary to set out the first of the three additional rights identified by Hathaway (ibid):

First, a refugee who is lawfully present enjoys both substantive and procedural protections against expulsion. These guarantees govern any effort to remove the refugee to any country, and are in addition to the right not to be sent to a country in which there is a risk of being persecuted.

47    Even though, once gained, refugee status confers these rights under international law, that status with those rights is not necessarily an indefinitely enduring one. Goodwin-Gill and McAdam (The Refugee in International Law (3rd edn Oxford University Press, 2007) p 135) summarise into four categories the circumstances in which, under international law, refugee status may be lost or denied: “(1) by reason of voluntary acts of the individual; (2) by reason of change of circumstances; (3) by reason of protection accorded by other States or international agencies; and (4) in the case of criminals or other undeserving cases”.

48    What I derive from this is that, in 1984, upon her acceptance as a refugee in terms of the Refugees Convention and the corresponding grant to her of lawful residence in Australia, Mrs Le acquired under international law an accrued right of non-refoulement to Vietnam, subject to the qualifications found in Article 33 of the Refugees Convention for as long as she remained a refugee and, in turn, Australia came under a corresponding international obligation, subject again to the qualifications noted, not to refoule her to that country. It was not necessary for her to claim that right in order to engage that obligation. She enjoyed it as of right as an incident of her acceptance by Australia as such a refugee.

49    It is against this international law background that the following observation made by the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [27] (Plaintiff M61/2010E) about its translation into domestic law is material:

[R]ead as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. In some respects, as was explained in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the provisions of the Migration Act may, at times, have gone beyond what would be required to respond to those obligations. It is not necessary to explore those issues here. Rather, what is presently significant is that the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.

[Footnote reference omitted]

That observation was made in relation to the Act as it stood prior to the insertion by amendment by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Act No 135 of 2014) of, materially, the present s 197C.

50    Plaintiff M70/ 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Plaintiff M70/ 2011) is another case determined in the High Court prior to the insertion of s 197C into the Act. In that case, French CJ, at [4], described Article 33.1 of the Refugees Convention as an, “important protection obligation assumed by parties to the Refugees Convention” (emphasis added). His Honour then referred to the following statement by Shearer IA, “Extradition and Asylum”, in Ryan KW (ed), International Law in Australia (2nd edn, Law Book Co, 1984) p 205, as cited in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 171 [21], that Article 33.1, “not only applies to refugees whether lawfully or unlawfully within the host territory, but also embraces all measures of return, including extradition, to a country where their lives or freedom would be threatened.” His Honour continued, “Article 33.1 nevertheless permits removal of a refugee to a ‘safe’ third country, ie. one in which there is no danger that the refugee might be sent from there to a territory where he or she will be at risk” (footnote reference omitted).

51    Also in Plaintiff M70/ 2011, Gummow, Hayne, Crennan and Bell JJ, having referred, at [90], to the passage from Plaintiff M61/2010E at [27], quoted above, emphasising in so doing, “by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason”, further stated, at [94]:

… for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugees Convention.

52    Prior to Plaintiff M61/2010E and Plaintiff M70/ 2011, it had been thought that, “by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act”, such that, it was not, “open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Refugees Convention”: M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at [71]-[72]. Influential in the Full Court’s conclusions in that case about the duty imposed on an officer by s 198(6) of the Act to remove certain unlawful non-citizens, “as soon as reasonably practicable” was the Court’s acceptance (at [38]), by reference to R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958 at 1001, that, “it is clear that the obligation against non-refoulement applies to persons who are determined to be refugees under Art 1”.

53    As the qualifying phrase, “For the purposes of section 198” indicates, s 197C is directed to the undertaking of the duty imposed by s 198, not to the complete abrogation, for the purposes of Australia’s domestic law, of the non-refoulement obligation assumed under international law by our subscription to the Refugees Convention. Section 197C of the Act thus restores, in respect of unlawful non-citizens, what was understood to be the position prior to Plaintiff M61/2010E and Plaintiff M70/ 2011. That this is the meaning and effect of s 197C is apparent from the text of the section. That this is so is confirmed by regard to the Explanatory Memorandum in respect of the Bill which became the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014: see, esp. paras 1134 to 1140.

54    Section 197C of the Act does not negate the existence of an obligation on the part of the Minister, when personally deciding under s 501(2) whether or not to cancel the visa of a person granted permanent residence in Australia on the basis of a determination that they are a refugee for the purposes of the Refugees Convention (or more latterly, “satisfaction” that they are such a person), to address whether that cancellation will lead to a breach of a non-refoulement obligation. If anything, the presence of s 197C and that the duty to remove found in s 198(6) is no longer qualified by any need on the part of an officer to consider non-refoulement before removal supports a conclusion that there is such an obligation when the Minister is exercising a cancellation discretion under s 501(2). It remains the case that the Act, “proceeds from the assumption that Australia has protection obligations to individuals” and that, “the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason”, Plaintiff M61/2010E at [27]. It is just that, in light of s 197C, it is not the responsibility of an officer discharging the duty found in s 198(6) to provide that response.

55    Such a construction of the Act is supported by the following statement, at para 1142, in the Explanatory Memorandum mentioned:

“Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in s 198 of the Migration Act. For example, Australia`s non-refoulement obligations will be met through the protection visa application process or the use of the Minister`s personal powers in the Migration Act …”.

The particular examples which are then referenced concern those who would become lawful non-citizens, not those who already have that status on the strength of their being a refugee and would lose it if their visa were cancelled by the Minister. In this case, the Minister was exercising personally another power conferred by the Act, that conferred by s 501(2).

56    As abrogation of an obligation of non-refoulement is not intended and, given that non-refoulement is a “cornerstone”, it follows, inexorably in my view, from what was said in Plaintiff M61/2010E, that an “assumption” or “footing” in respect of the discretionary power in s 501(2) is that its exercise will be responsive to that obligation. In other words, in terms of Peko-Wallsend at 39-40, whether the cancellation of a visa will lead to a breach of a non-refoulement obligation is, by necessary implication, a relevant consideration for the Minister.

57    For completeness and because it is a judgement of a Full Court, reference ought to be made to Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47 (Huynh), even though that case did not feature in the submissions of either party. In Huynh, the Full Court held that, in the circumstances of that case, a Federal Magistrate had erred in concluding that, as the Act stood at the time, the Minister’s decision under s 501(2) of the Act to cancel a person’s Class BB 155 Resident Return visa was invalidated by his failure to give consideration to that person’s “status as a refugee”. The person concerned had entered Australia in 1992, pursuant to a Class 200 visa. The “Issues Document” before the Minister stated that, “Mr Huynh arrived in Australia on 24 September 1992 under the Indo Chinese Refugee Programme”. That was true but a close analysis by the Full Court of the criteria for the grant of that visa disclosed (Huynh, at [9]) that, “No criterion prescribed in respect of Class 200 visas referred to a fear of persecution by reason of ‘race, religion, nationality, membership of a particular social group or political opinion’ (see Article 1A of the Refugees Convention)”. The word “refugee” was used in the description of the programme in a general, rather than in a Convention specific, sense. It transpired (Huynh, at [23]) that, “the assumption made by the Federal Magistrate and upon which he based his decision, namely that the respondent had been found to be a person to whom Australia owes protection obligations under the Refugees Convention, is not supported by the evidence and other material that was before his Honour”. That is in contradistinction to the position which was common ground in the present case. Unlike Mr Huynh, Mrs Le is a person who has been determined to have the status of a refugee for the purposes of the Refugees Convention.

58    While that difference alone is a basis for distinguishing Huynh, the Full Court, having adverted to s 501E of the Act, expressed a tentative view that “the Minister is not obliged to give consideration to the possibility that the visa holder might be a person to whom Australia owes protection obligations or to notify the visa holder that that topic will not be considered”: Huynh, at [28]. In so doing, the Full Court refrained (ibid) even from expressing a tentative view as to what the position might be were the visa which was the subject of a cancellation decision a “Protection Visa”.

59    A Protection Visa is a creature of domestic law, issued under the Act. The Refugees Convention does not dictate how, once a person has been determined to be a “refugee” for the purposes of that Convention, they are to be granted lawful entry and residence in the country that has assumed a protection obligation in respect of them. If the consequence of a Minister’s decision is to negate the right of a person hitherto determined to be a refugee for the purposes of that Convention to lawful residence and to subject that person to the prospect of refoulement, it is, with respect and having regard to what was later stated in the High Court in Plaintiff M61/2010E at [27] as to the Act’s assumptions and footings, an unlikely construction of the Act that whether or not the Minister is, in exercising his discretion under s 501(2), obliged to turn his mind to whether a person once determined to be a refugee retains that status or, if so, falls within a qualification in respect of non-refoulement should depend on the type of visa consequentially granted from time to time under domestic law in order to confer upon that person that person lawful entry and residence. It is just that, as the visa system in and under the Act presently stands, one might expect that a person accepted as a refugee for the purposes of the Refugees Convention would, at least in the first instance, acquire lawful residence by becoming the holder of what is termed a Protection Visa.

60    Though the case was decided prior to Plaintiff M61/2010E, this approach to Huynh, is consistent with that adopted by Lee J in Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 at [57] to [62], with which I respectfully agree. In particular, His Honour there stated, at [60]:

60    If the applicant had been assessed by the UNHCR to be a refugee within the meaning of that term as used in the Convention, then Australia, having accepted the applicant for re-settlement and as a contracting party to the Convention, would have to have given regard to whether Australia’s obligations to the applicant continued under the Convention before it took any step to return the applicant to Vietnam. It followed that the foregoing question was a material consideration in determining whether to cancel the applicant’s visa preparatory to refouling the applicant to Vietnam.

61    Given that Huynh is distinguishable, that the views expressed in it were tentative and were not in any event relied upon by the Minister or the subject of a responsive submission on the part of Mrs Le, it is not necessary further to consider them.

62    For reasons already given, non-refoulement is an accrued right of a person accepted as a refugee and granted lawful residence accordingly. Mrs Le was such a person in 1984. The status of refugee is not necessarily an indefinitely continuing one. As mentioned, it can be lost in a number of ways well-recognised in international law. A voluntary act such as a return to the country of nationality in respect it was accepted that there was once a well-founded fear of persecution may (not must) be regarded as indicative that the fear of persecution is no longer held or that there is no longer a need of protection: Goodwin-Gill and McAdam at p 635 et seq. I note, as did the Minister, that Mrs Le chose briefly to return to Vietnam in the mid-1990s.

63    Even if Mrs Le were to be regarded as still having the status of a refugee, the obligation of non-refoulement found in Article 33 is not unqualified. A question would arise as to whether, in terms of that qualification, the convictions of Mrs Le for various drug offences were in respect of “a particularly serious crime” which “constitutes a danger to the community” of Australia. That question is not answered by her having a “substantial criminal record” as defined by s 501(7) of the Act. Further, the centrality to the Refugees Convention of non-refoulement in respect of a refugee and the juxtapositioning in Article 33 of “danger to the security of the country” with “a particularly serious crime” which “constitutes a danger to the community” and the use of the adverb, “particularly” in the qualification found in Article 33 rather suggests that the crime concerned must be a grave one indeed.

64    None of this need though be the subject of further consideration in the present case. That is because the Minister, as para 48 of his reasons evidences, has proceeded on the legally erroneous basis that it was unnecessary for him to consider them, because Mrs Le had made no claims in this regard in the submission made on her behalf to him. She did not have to. She already had the benefit of a prior determination by Australia that she was a refugee. Of this the Minister was aware and found as a fact. The relevant consideration was whether she still enjoyed that status and, even if so, whether by cancelling her visa and rendering her an unlawful non-citizen subject to the duty of removal a non-refoulement obligation would be violated or whether her case fell within a qualification to that obligation. A corollary of the potentially adverse consequences which might follow for Mrs Le from a decision by the Minister which took into account these matters was that she was entitled to an opportunity to be heard in respect of them prior to the Minister’s making his decision. He did not include this subject in the opportunity which he afforded her because, erroneously, he did not consider that he had to.

65    It is not for me, in the determination of this judicial review application, to make findings of fact in relation to the merits of this relevant consideration including whether Mrs Le remains a refugee. The Act consigns that responsibility to the Minister.

66    For these reasons, the Minister’s decision was affected by jurisdictional error. It must be quashed and the Minister prohibited from acting upon it so as further to detain Mrs Le or to remove her from Australia. A consequence is that Mrs Le must be released forthwith from her present immigration detention.

Associate:

Dated:    24 December 2015