FEDERAL COURT OF AUSTRALIA

BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Honourable David Coleman MP, Minister for Immigration, Citizenship and Multicultural Affairs, dated 5 April 2019 be quashed.

2.    The respondent pay the applicant’s costs fixed in the amount of $11,645.00.

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

REASONS FOR JUDGMENT

FARRELL J:

INTRODUCTION

1    This is an application made under s 476A of the Migration Act 1958 (Cth). The applicant (or BFM16) seeks writs of certiorari and prohibition in respect of a decision of the (then) Minister for Immigration, Citizenship and Multicultural Affairs (now Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs) (Minister) made on 5 April 2019 (Minister’s decision). He also seeks associated orders in the nature of an injunction restraining the Minister from removing him from the jurisdiction until further order of the Court.

2    The Minister’s decision involved an exercise of his power under s 501A(2) of the Migration Act to refuse to grant BFM16 a Protection (Class XA) visa (a species of protection visa) notwithstanding a decision made by the Administrative Appeals Tribunal (Tribunal or AAT) on 15 October 2018 (2018 AAT decision). The Tribunal determined to set aside a decision of a delegate of the Minister made on 23 July 2018 to refuse to grant BFM16 a protection visa pursuant to s 501(1) of the Migration Act and to grant the protection visa.

3    Relevantly, s 501A(2) of the Migration Act confers power on the Minister personally to set aside a decision such as that made by the Tribunal and refuse to grant a visa where:

(1)    The Minister reasonably suspects that the person does not pass the character test (as defined by s 501);

(2)    The person does not satisfy the Minister that the person passes the character test; and

(3)    The Minister is satisfied that the refusal or cancellation is in the national interest.

4    It is uncontroversial that BFM16 does not pass the “character test” in s 501(6)(a) (because he has a “substantial criminal record” as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more) and that the Minister is satisfied that he does not pass the character test.

BACKGROUND

5    The applicant was born in his country of origin (CoO) and arrived in Australia in 1991, then aged four. He has resided in Australia since then but for an approximately five-year absence between 1996 and 2001 during which he resided in his CoO.

6    BFM16 has a history of visas applications since August 2005, when the visa which was dependent on one of his parent’s status expired. Those visas included Bridging E visas (which he was both granted and refused) and a Temporary Work (Skilled)(Class UC) visa and a Combined Partner (Class UK820/BS801) visa (which were both refused).

7    BFM16 applied for a protection visa in the latter half of 2015. The basis of his application was that he would be a target of extortion, kidnap and murder if he returned to his CoO because he would be seen as a “wealthy target or a betrayer of Islam” and the family would be seen as westernised foreigners. His appearance as a westernised Muslim would be evident from his behaviour and accent and his wife and child are Australians who would be viewed as foreigners who are not Muslims. Since then, in July 2018, he and his wife divorced but he remains on amicable terms with her.

8    BFM16’s protection visa application was refused by a delegate of the Minister on the basis that BFM16 is not a refugee under s 36(2)(a) of the Migration Act. The AAT affirmed that decision on 4 April 2016, but the Federal Circuit Court of Australia quashed that decision and directed the AAT to re-determine the review application.

9    On redetermination, on 27 January 2017, the AAT decided to remit the matter to the Department of Home Affairs for reconsideration with the direction that BFM16 satisfies s 36(2)(a) of the Migration Act (2017 AAT decision).

10    On 23 July 2018, a delegate of the Minister refused to grant the protection visa under s 501(1) of the Migration Act on account of BFM16’s “substantial criminal record” as defined in s 501(7)(c) of the Migration Act with the result that he did not pass the “character test” in s 501(6) of that Act.

11    On review of the delegate’s 23 July 2018 decision, the Tribunal made the 2018 AAT decision.

12    In the record of the 2018 AAT decision, the Tribunal described the applicant’s background as follows:

5.    The Applicant has had quite a sad history. His parents are both naturalised Australian citizens, but they were very strict with him in his Muslim upbringing – a matter which they now regret. The Applicant subsequently experienced difficulties assimilating into the Australian culture as a child and he has quite a serious criminal history.

6.     On 12 November 2004, he was engaged in an argument at a bus stop and during the course of the argument produced a knife and ended up in a physical fight and wounding someone in the shoulder. The Applicant was sentenced to imprisonment for a year but released forthwith on entering a reconnaissance to be of good behaviour for two years.

7.    On 21 August 2005, he held up a service station with his face disguised, and threatened the store attendant with a 30 cm knife and stole $245. The Applicant was sentenced to 4 years imprisonment with a non-parole period of 18 months and at the same time was convicted of a breach of reconnaissance.

8.    On 1 May 2008, he entered a pizza store, produced a knife and ordered two employees, one of whom was a minor, to hand over the cash drawer and obtained $300 to $600 from the robbery. The Applicant was at the time on probation. On 26 July 2012, the Applicant was convicted and sentenced to 5 years imprisonment for this offence, commencing on 12 November 2009. Twenty-eight days after being discharged from prison he was taken into immigration detention. The Applicant has been in detention since May 2014, both at Villawood and Christmas Island.

9.    Between 2004 and 2012, the Applicant was convicted of multiple offences including drink-driving and dangerous driving.

10.    All of this amounts to what could only be regarded as a serious criminal record.

11.    At the time of all these offences he was addicted to alcohol and drugs. During the Tribunal Hearing held on 2 October 2018, the Applicant very frankly admitted the problems he had had with alcohol and drugs. The Applicant described his addiction as digging him deeper and deeper into a dark hole and that he knew that if he kept it up his future was bleak or non-existent. It was the birth of his daughter in 2012 that made him determined to turn over a new leaf and cure himself of his drug dependence.

12.    The Applicant did that between 2012 and 2014 and admitted that there had been failures within the two-year period. Drugs were freely available. The Applicant said that when inmates began talking about drugs he just told them that he had to make a phone call and walked away.

13.    By 2014, he was free of his drug dependence and has had no alcohol or illicit drugs since that date.

14.    While in detention the Applicant has completed 25% of an online course in carpentry and hopes to further that. The Applicant advised that if released, he will be assisted in finding employment by relatives of his former wife who are involved in the building industry. The Applicant also expressed his desire to be involved in rehabilitation work with people who have suffered a similar life to his own.

15.    The Applicant expressed what I regarded as sincere regret for his past errors which he knows are extremely serious. I accept that in the first place his wrongdoing was probably caused by his failure to reconcile a very strict Muslim upbringing with life in this country. The Applicant then took to drugs which led to crime in order to support the drug habit.

13    On 22 February 2019, the Minister requested the Department to prepare a submission to give consideration to setting aside the 2018 AAT decision and to consider refusing BFM16 a protection visa under s 501A(2) of the Migration Act.

14    On 26 February 2019, a Notice of Intention to Consider Refusal under s 501A(2) of the Migration Act was issued to BFM16. A copy of Direction 79, which came into force on 28 February 2019, was attached to it. The Notice of Intention advised that, while the Minister is not legally bound by that Direction when making a decision personally, it “will provide a broad indication of the types of issues that the Minister may take into account” and, therefore, BFM16 should read the direction carefully and “address each paragraph in PART B that is relevant to [his] circumstances”.

15    On 3 March 2019, BFM16 responded to the notice.

RELEVANT MIGRATION ACT FRAMEWORK

16    It is useful to note the following provisions of the Migration Act.

17    Section 4 relevantly provides as follows:

4    Object of Act

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

…

(4)    To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

...

18    Section 5(1) contains the following definitions:

non-refoulement obligations includes, but is not limited to:

(a)    non-refoulement obligations that may arise because Australia is a party to:

(i)    the Refugees Convention; or

(ii)    the Covenant; or

(iii)    the Convention Against Torture; and

(b)    any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

serious Australian offence means an offence against a law in force in Australia, where:

(a)    the offence:

(i)    involves violence against a person; or

(ii)    is a serious drug offence; or

(iii)    involves serious damage to property; or

(iv)    is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)    the offence is punishable by:

(i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

(iii)    imprisonment for a maximum term of not less than 3 years.

serious foreign offence means an offence against a law in force in a foreign country, where:

(a)    the offence:

(i)    involves violence against a person; or

(ii)    is a serious drug offence; or

(iii)    involves serious damage to property; and

(b)    if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:

(i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

(iii)    imprisonment for a maximum term of not less than 3 years.

19    Section 5C sets out the meaning of “character concern”. It includes a non-citizen who has a “substantial criminal record”, being (among other things) a non-citizen who has been sentenced to a term of imprisonment of 12 months or more.

20    Section 5H defines “refugee” as follows:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

21    I note that s 5H(1) closely follows the definition of “refugee” in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol and s 5H(2) closely follows Art 1F of the Refugees Convention.

22    Section 5M defines “particularly serious crime” as follows:

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

23    Division 3 of Part 2 of the Migration Act relates to visas for non-citizens which permit them to travel to, enter and remain in Australia. Section 35A provides for different classes of protection visas.

24    Section 36 sets out the criteria for protection visas. It provides in part as follows:

36    Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

  (a)    is a danger to Australia’s security; or

  (b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

25    Having regard to the definitions of “refugee” in s 5H (see [20] above), “well-founded fear of persecution” in s 5J, “serious Australian offence” and “serious foreign offence” in s 5, and “particularly serious crime” in ss 5M, 36(2)(a) and 36(1C) relatively closely reflect Art 33 of the Refugees Convention. Articles 32 and 33 of the Refugees Convention provide as follows:

Article 32

Expulsion

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

…

Article 33

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.

26    Section 197C provides as follows:

197C    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.

27    Section 198(2A) relevantly provides:

198    Removal from Australia of unlawful non-citizens

…

Removal of unlawful non-citizens in other circumstances

(2A)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    the non-citizen is covered by subparagraph 193(1)(a)(iv); and

(b)    since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision—either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.

Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.

28    Section 193(1)(a)(iv) relevantly provides:

193    Application of law to certain non-citizens while they remain in immigration detention

  (1)    Sections 194 and 195 do not apply to a person:

(a)    detained under subsection 189(1):

…

(iv)    because of a decision the Minister has made personally under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or

29    Sections 501 provides in part as follows:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

 (2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

 (3)    The Minister may:

 (a)     refuse to grant a visa to a person; or

 (b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

 (3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

 (4)    The power under subsection (3) may only be exercised by the Minister personally.

 (5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

  (6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

  (aa)    the person has been convicted of an offence that was committed:

   (i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

 (ab)    the person has been convicted of an offence against section 197A; or

  (b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

    (ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

 (c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)     vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

  (a)    the person has been sentenced to death; or

  (b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

  (f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

…

Definitions

(12)    In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2: For notification of decisions under subsection (1) or (2), see section 501G.

Note 3: For notification of decisions under subsection (3), see section 501C.

30    Section 501A provides as follows:

501A    Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

 (a)    a delegate of the Minister; or

 (b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

 (a)    refuse to grant a visa to the person; or

 (b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

 (a)    refuse to grant a visa to the person; or

 (b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

        (d)    the Minister is satisfied that the refusal or cancellation is in the national interest

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

Note 1: For notification of decisions under subsection (2), see section 501G.

Note 2: For notification of decisions under subsection (3), see section 501C.

31    Section 501G relevantly provides as follows:

501G    Refusal or cancellation of visa—notification of decision

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

(a)    refuse to grant a visa to a person; or

 (b)    cancel a visa that has been granted to a person; or

 (ba)    not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

  (c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

(f)    …

 (2)    …

(3)    A notice under subsection (1) must be given in the prescribed manner.

(4)    A failure to comply with this section in relation to a decision does not affect the validity of the decision.

32    Section 501H provides as follows:

501H    Refusal or cancellation of visa—miscellaneous provisions

Additional powers

(1)    A power under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

Cross-references to decisions under section 501

(2)    A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501BA, 501C or 501F.

SOLEMN ASSURANCES

33    Although Articles 32 and 33 of the Refugees Convention and relevant parts of the second reading speech and the Explanatory Memorandum for the Bill that came to be enacted as the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No 135 of 2014) (2014 Amendment Act) and Direction 79 were not in evidence on this application, they are important background to this application.

34    In BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19) at [32]-[35], Rares J set out Articles 32 and 33 and relevant parts of the second reading speech and Explanatory Memorandum as follows. In the original, Rares J emphasised some passages and that emphasis has been removed; the emphasis below is mine and it is designed to highlight some of the solemn assurances publicly given:

32    Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) (the 2014 Amendments) inserted s 36(1C) into the Act, together with a comprehensive suite of definitions of the other criteria for a person to be a refugee or found to be owed protection obligations in ss 5H-5M and, importantly, s 197C (see Sch 5, Pt 1, item 2 and Pt 2, items 7 and 9).

33    The Minister referred, at [93] of his reasons, to the Explanatory Memorandum for the Bill that came to be enacted as the 2014 Amendments that the then Minister for Immigration and Border Protection, the Hon. Scott Morrison MP, circulated to the House of Representatives.

34    The Explanatory Memorandum made clear at [1236] that the new s 36(1C) was a reasonably precise reflection of Australia’s international non-refoulement obligations in accordance with Art 33(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention). Articles 32 and 33 were not affected by the change to the definition of “refugee” in Art 1 of the 1967 Protocol Relating to the Status of Refugees. Articles 32(1) and 33 read:

Article 32

Expulsion

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

   […]

Article 33

   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.

(emphasis added)

35    In the second reading speech for the Bill that became enacted as the 2014 Amendments, the Minister’s predecessor told the House of Representatives (Hansard: House of Representatives, 25 September 2014 at 10547-10548):

Schedule 5 of the bill will make clear that the removal power is available independent of assessments of Australia’s non-refoulement obligations, which are addressed in the broader assessment process where a noncitizen meets the circumstances specified in the express provisions of section 198 of the Migration Act. This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.

Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions—not those who seek to direct us otherwise from places outside this country. The new framework clearly sets out the criteria to be satisfied in order to meet the new statutory definition of a ‘refugee’ and the circumstances required for a person to be found to have a ‘well-founded fear of persecution’, including where they could take reasonable steps to modify their behaviour to avoid the persecution.

Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution. Under the new framework, refugee claims will continue to be assessed against the ‘real chance’ test, which has been the test adopted by successive governments, in line with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.

The bill also clarifies the interpretation of various protection related concepts such as:

the standard of effective state and non-state protection;

the test for assessing whether a person can relocate to another area of the receiving country; and

the definition of ‘membership of a particular social group’.

The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa.

(bold emphasis added)

35    In CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 (CWY20) at [15]-[16], Griffiths J described Direction 79 and set out section 12.1(2) after noting that the applicant in that matter received a similar response to that detailed in [14] above. I adopt his Honour’s emphasis:

15.    … The Department wrote to the applicant on 8 April 2019, enclosing a copy of Direction 79, and telling him that he “should now use Direction 79 in place of Direction 65”. The Department told him that if the Minister made the decision personally he or she was not bound by Direction 79, however, Direction 79 “provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether to revoke the original decision to cancel your visa”. Presumably the letter dated 8 April 2019 is a pro forma letter. It contains instructions which have no relevance at all to the applicant. No question of revocation arose in circumstances where the applicant was applying for a visa to be granted to him. But he was told in the 8 April 2019 letter that it was important that he read Direction 79 carefully “as it may be relevant to any response you provide”.

16.    The preamble to Direction 79 states that the document provides “a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA”. On page 2 of the Direction, it is stated that Part B of the document identifies considerations which are relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. On page 4, the document specifies that a decision-maker “must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa”. Part B identifies three primary considerations which must be taken into account in deciding whether to refuse a non-citizen a visa. Section 12 of the document identifies “other considerations” which must be taken into account where relevant. They include (without limitation) “International non-refoulement obligations”. Section 12.1(2) provides (emphasis added):

(2)    The existence of a non-refoulement obligation does not preclude refusal of a non-citizens’ visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

36    In these reasons, I will refer to the bolded passages from BAL19 and CWY20 set out at [34] and [35] above as “solemn assurances”.

SUBMISSION FOR DECISION AND DECISION PAGE

37    Included in the Court Book is a “submission for decision” (or S) prepared by the Department. It comprises: a cover page (see [38] below), discussion comprising 112 paragraphs, a Decision Page at attachment 1 (see [39] below), a table of attachments at attachment 2, a draft statement of reasons (Reasons or R) at attachment 3 (see [42] and following below) and evidence and material for BFM16 at attachment 4.

Cover page

38    The cover page contains recommendations with provision for the Minister to respond to the recommendation set out in each item by electronically circling an answer and crossing out rejected answers. The responses in the second column below which were not crossed out were circled in the original. They were to the following effect (emphasis in the original):

Recommendations

That you:

Decision Page

39    The Decision Page:

(1)    Commences with the statement that:

I have considered all relevant matters including an assessment of the character test as defined by s501(6) of the Migration Act 1958 (the Act), the national interest, and all information before me provided by, and on behalf of [BFM16] in connection with the possible refusal of his application for a Protection (Class XA) visa.

(2)    States four alternatives, the last of which was selected by the Minister:

(a)    That BFM16 passes the character test;

(b)    That the Minister “reasonably suspect[s]” that BFM16 does not pass the character test and BFM16 has not satisfied the Minister that he does, but the Minister is not satisfied that it is in the national interest to refuse to grant BFM16 a visa with the result that “the power under s 501A(2) is not available to” the Minister in this case;

(c)    That the Minister “reasonably suspect[s]” that BFM16 does not pass the character test and BFM16 has not satisfied the Minister that he does, and the Minister is satisfied that it is in the national interest to refuse to grant the visa, but he has decided not to exercise his discretion under s 501A(2). Instead, BFM16 is to be warned about his future conduct in relation to s 501 of the Migration Act; or

(d)    That:

I reasonably suspect that [BFM16] does not pass the character test and [BFM16] has not satisfied me that he passes the character test and I am satisfied that it is in the national interest to refuse to grant [BFM16’s] visa. I have decided to exercise my discretion under s501A(2) of the Act to refuse to grant [BFM16’s] Protection (Class XA) visa. I hereby refuse to grant [BFM16’s] Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons.

40    The cover page and the Decision Page appear to have been completed, signed by the Minister and dated 5 April 2019 electronically.

Summary of submission for decision

41    It is useful to note that the structure of the discussion in the submission for decision is as follows:

(1)    S[1]-[2] state as follows:

1.    Section 501A(2) of the Migration Act 1958 (the Act) provides a non-delegable power for you to personally set aside a non-adverse ‘original decision’ (including a decision of the delegate or the Administrative Appeals Tribunal (AAT)) not to refuse to grant a visa, if (1) you reasonably suspect that the person does not pass the character test (as defined by s501); (2) the person has not satisfied you that they pass the character test, and; (3) you are satisfied that the refusal to grant decision is in the national interest.

2.    This submission has been prepared for you to personally consider refusal of [BFM16’s] application for a Protection (Class XA) visa.

(2)    At S[3]-[32] there is a recital of BFM16’s arrival in Australia and his visa history leading up to and including the 2018 AAT decision and the issue of the Notice of Intention .

(3)    At S[33]-[43], there is a summary of the consequences under the Migration Act depending on decisions taken by the Minister as follows. In his written submissions, the Minister placed emphasis on the bolded words at S[39]-[40]; that emphasis does not appear in the original:

33.    The Notice of Intention to Consider Refusal of a visa issued on 26 February 2019 is at Attachment P. On 3 March 2019, [BFM16] responded to the notice. The response is included at Attachment 4. A full list of attachments is at Attachment 2 and all of the relevant material is at Attachment 4.

34.    After considering all of the material, please record your decision and sign on the Decision Page at Attachment 1. If you decide to refuse to grant [BFM16’s] visa, a draft Statement of Reasons is at Attachment 3 for your signature, subject to any amendments you consider to be necessary.

35.    If you decide to refuse to grant [BFM16’s] visa, any undecided visa application applied for by [BFM16] at the time of your decision (other than a protection visa or visa specified in the regulations) will also be refused by operation of s501F(2) of the Act. [BFM16] has no pending visa applications.

36.    If you decide to refuse to grant [BFM16’s] visa, any other visa held by [BFM16] at the time of your decision (other than a protection visa or visa specified in the regulations) will also be cancelled by operation of s501F(3) of the Act. [BFM16] does not hold any other visa.

37.    If you decide to refuse to grant [BFM16’s] visa, merits review of your decision in the Administrative Appeals Tribunal is not available to [BFM16]. However, it would be open to [BFM16] to seek judicial review of your decision in the Federal Court of Australia.

38.    If you decide to refuse to grant [BFM16’s] visa, he will remain an unlawful non-citizen subject to immigration detention.

39    [BFM16] is a person in respect of whom Australia has been found to owe protection obligations. This means to remove him to his country of nationality would be in breach of Australia’s international non-refoulement obligations. If you decide to refuse to grant [BFM16]’s Protection (Class XA) visa, he will be an unlawful non-citizen who must be detained under s189 of the [Migration] Act and kept in immigration detention until, relevantly, he is removed from Australia under s189 [sic] or is granted a visa.

40    If you decide to refuse to grant this visa, there is presently no known prospect of removal of him to another country other than his country of origin. Refusal of his visa will mean that as soon as reasonably practicable and if the other conditions in an applicable subsection of s198 are satisfied, he must be removed to [his CoO] even though doing so would be in breach of Australia’s international non-refoulement obligations. This consequence follows from s197C(1) of the Act, which provides that “[f]or the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

…

42.    As a further alternative, it is open to you to consider intervening under s195A of the Act to grant another visa. If you decided to consider whether to intervene under s195A the consequence will be that [BFM16] is detained until you make a decision in this regard. If you decide not to intervene under s195A, then, [BFM16] must be removed to [his CoO] unless some other country is an available destination at that time. That removal must occur as soon as reasonably practicable if the other conditions in an applicable subsection of s198 are satisfied.

43.    If you indicate that you wish to consider alternative management options, a further submission will be referred for your consideration.

(4)    Under the heading “Background”, the submission for decision sets out BFM16’s age, that he is an applicant for a protection visa, when he arrived in Australia, his return to his CoO with his family for a period of time and the fact that he had resided in Australia for over 20 years: S[45]-[46].

(5)    Under the heading “Character test”, S[47]-[48] note BFM16’s conviction for aggravated robbery (in company) and his sentence to five years’ imprisonment and the consequence that he does not pass the character test in s 501(6)(a) with reference to s 501(7)(c) of the Migration Act.

(6)    Under the heading “National interest”, at S[49] it is noted that, in accordance with s 501A(2)(e), the Minister must also be satisfied that refusal is in the national interest. At S[50]-[54], there is set out essentially the same consideration of case law set out at R[14]-[17] and the conclusion at R[20].

(7)    Under the heading “Offending history”, at S[55]-[65] there is set out commentary on BFM16’s offending history including some sentencing remarks.

(8)    Under the heading “Response to the Notice of Intention to Consider Refusal of visa”, S[67]-[76] summarises submissions made on BFM16’s behalf by his then migration agent under the headings “Risk of reoffending”, “National Interest”, “Best interests of minor children”, “Expectations of the Australian Community”, “International non-refoulement obligations”, “Strength, nature and duration of ties to Australia”, and “Impact on victims”. It is relevant to note that S[70]-[71] and S[74] state the following:

National Interest

70.    Following on from the AAT finding that [BFM16] is unlikely to reoffend, Mr Kline states ‘If he is not going to re-offend, it cannot possibly be in the national interest within the meaning of s501A(2)(e) of the Act for him to be refused a visa and refouled to a place of danger to his life and safety.’

71. Mr Kline acknowledges that the Ministerial direction regarding the national interest is broad, but notes ‘the one matter the authorities say must be considered is the risk of re-offending and therefore the potential for harm to the Australian community.’ He then submits that ‘If, as the AAT found (and found on strong and cogent evidence) that risk is next to nil, any danger to the national interest cannot be engaged.’

…

International non-refoulement obligations

74.    Mr Kline notes that [BFM16] is owed international non-refoulement obligations.

(9)    Under the heading “Other factors”, there are submissions dealing with the “Best interests of minor children” at S[77]-[79], “Protection of the Australian Community” at [80]-[96], “Non-refoulement obligations” at S[97]-[101], and “Strength, nature and duration of ties to Australia” at S[102]-[107].

(10)    S[97]-[101] state as follows:

Non-refoulement obligations

97.    On 27 January 2017, the AAT found that [BFM16] is a person in respect of whom Australia has protection obligations, with the country of reference being [his CoO] Attachment H. This means that to remove [BFM16] to [his CoO] would be in breach of Australia’s international non-refoulement obligations. [BFM16] could be removed to a country other than [his CoO] but there is currently no known prospect of removal to such a country.

98.    If you decide to refuse to grant [BFM16’s] Protection visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations). According to the relevant provisions of the Migration Regulations, [BFM16] could only apply for a Bridging R (Class WR) visa in response to an invitation. Also, regarding a Protection visa, [BFM16] will be prevented by s48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determined under s48B that s48A does not apply to him.

99.     You should also be aware that if you decide to refuse to grant [BFM16’s] Protection visa, he will, as an unlawful non-citizen, be subject to continued immigration detention under s189 of the Act and removal from Australia under s198 of the Act “as soon as reasonably practicable”. In this respect, you should note that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. In relation to the operation of ss189, 196, 197C and 198 of the Act in the context of [BFM16’s] case should you refuse to grant his Protection visa, I refer back to paragraphs 40 to 43.

100.    You have been asked to indicate whether or not you would like to consider alternative management options in [BFM16’s] case (which encompass the possibility of granting a visa under s195A) should you decide to refuse to grant his Protection visa.

101.    It is open to you to give considerable weight to the assessment that [BFM16] is a person in respect of whom Australia has international non-refoulement obligations and to the statutory consequences of a decision to refuse his application for a Protection visa.

MINISTER’S REASONS

42    The Reasons appear to have been signed by the Minister and dated electronically without amendment.

43    Preliminary matters are set out at R[1]-[8]. At R[5], the Minister notes that:

Section 501A(2) of the Act enables me to set aside the original decision made by the AAT decision to not to exercise the power conferred by s501(1) to refuse to grant a visa to a person and to refuse to grant a visa to a person if:

•    I reasonably suspect that the person does not pass the character test; and

•    The person does not satisfy me that the person passes the character test; and

•    I am satisfied that the refusal is in the national interest.

44    The Reasons are then set out under four major headings, “Character Test”, “National Interest”, “Discretion” and “Conclusion”. There are subheadings in relation to “National Interest” and “Discretion”.

Character Test

45    Under this heading are R[9]-[12]. In this regard it is sufficient to note that the Minister concluded that, as a result of BFM16 being convicted of aggravated robbery (in company) and sentenced to five years’ imprisonment in 2012, he has a “substantial criminal record” and the Minister “reasonably suspect[s] that he does not pass the character test” by virtue of ss 501(6)(a) and 501(7)(c) of the Migration Act, and BFM16 did not satisfy him that he passed the character test. This indicated that the Minister was satisfied of two of the three preconditions to the exercise of discretion to refuse a visa, being those set out in s 501A(2)(c) and (d) (see [30] above).

National Interest

46    The third precondition is the national interest consideration referred to in s 501A(2)(e).

47    At R[13]-[20], the Minister made some general remarks. It is useful to set out R[14]-[20]:

14.    The terms of s501A(2) make it clear that national interest considerations are separate and distinct from the question of whether or not a person passes the character test. ‘National interest’ is not defined for the purposes of s501A. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.

15.    In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:

‘The Minister in considering the national interest under s501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest’.

16.    In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 409, the Full Court referred to the seriousness of the crimes of the visa holder in that case and said:

‘It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa’.

17.    In Re Patterson; Ex parte Taylor (2001) 182 ALR 657, Gaudron J said, after referring to the decision in Gunner, at 676:

‘Crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled’.

18.    I have considered the submissions dated 3 March 2019, from [BFM16’s] then representative, Mr Victor Kline. He submits that the AAT decision of 15 October 2018 ‘was logical and reasoned and in accordance with the evidence he had before him.’

19.    Mr Kline acknowledges that the Ministerial direction regarding the national interest is broad, but notes ‘the one matter the authorities say must be considered is the risk of re-offending and therefore the potential for harm to the Australian community.’ He then submits that ‘If, as the AAT found (and found on strong and cogent evidence) that risk is next to nil, any danger to the national interest cannot be engaged.’

20.    I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it. I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.

48    Under the sub-heading “Criminal conduct” (at R[21]-[37]), the Minister considered BFM16’s prior criminal conduct, comments made by judges in sentencing, comments made by the AAT and submissions made by BFM16’s representative. At R[35]-[37] the Minister said:

35.    I find that the sentences [BFM16] received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy, and in light of the sentences of imprisonment [BFM16] has been sentenced to, including terms of four years and five years respectively, notwithstanding the non-parole periods I have considered that the court viewed the offending as very serious, as do I.

36.    I have had regard to the AAT Decision Record of 15 October 2018, which states: ‘There is no doubt whatsoever that the Applicant has committed serious offences for which he has spent time in prison…The sentences imposed by the courts, and the observations made at the time of sentencing, indicate that the offences were regarded very seriously and punished accordingly.’ I note that the AAT also took into consideration that [BFM16’s] history of using knives while committing offences could lead the community to conclude ‘that if he were to use a knife in a similar scenario there could be a risk of serious harm’

37.    I have considered the circumstances and nature of [BFM16’s] conduct, which includes amongst other offences, instances of violent offending involving the use of knives, and violent offending against a vulnerable minor. I adopt the judicial observations that [BFM16’s] offending behaviour has at times been very serious, taking into account his offences committed while subject to conditional liberty, and his repeated use of knives ‘capable of causing injury and death.’ I have also given consideration to the dispositions imposed by the court including periods of imprisonment up to five years. In light of these considerations, I conclude that [BFM16’s] conduct is of such seriousness that it is in the national interest to refuse to grant his visa.

49    Under the sub-heading “Risk of Re-offending” (at R[38]-[101]), the Minister considered BFM16’s risk of re-offending having regard to submissions made by BFM16’s representative and findings in the 2018 AAT decision record. At R[38], the Minister noted that:

I have also had regard to whether [BFM16] poses a risk to the Australian community through committing further criminal offences, recognising that such a consideration may assist in founding a satisfaction that it is in the national interest to refuse to grant his visa.

50    At R[42], the Minister noted that, in considering BFM16’s risk of reoffending, he also took into account:

(1)    Causal factors to BFM16’s prior criminal conduct (at R[43]-[53]);

(2)    The likelihood of BFM16’s rehabilitation (at R[54]-[82]), taking into account:

(a)    orders made by a Magistrate in 2005;

(b)    his release on parole in 2007;

(c)    sentencing remarks made in 2012;

(d)    BFM16’s statements concerning the impact on him of the birth of his child in 2012;

(e)    the recommendation made in 2014 that he be released on parole;

(f)    comments made in a 2014 pre-release report;

(g)    evidence given to the AAT by a solicitor experienced in criminal law matters indicating that she had never seen BFM16 affected by drugs while in immigration detention; and

(h)    evidence given to the AAT by a forensic and clinical psychologist that BFM16 was completely free of drugs and alcohol, he exhibited no signs of mental illness, his positive behaviour in immigration detention indicated his ability to “continue to rehabilitate himself in highly testing circumstances”, his opinion that with his network of social supports “the risk of [BFM16] relapsing with resumed substance abuse and reoffending can, on balance, be reasonably viewed as low” but “out of an abundance of caution” he recommended that BFM16 “obtain psychological treatment to assist with his integration back into the community if he is permitted to remain in Australia”;

(3)    BFM16’s repeated offending and history of non-compliance with conditions imposed on the grant of liberty (at R[83]-[85]);

(4)    Previous warnings given to BFM16 that his conduct may lead to his removal from Australia (at R[86]-[89]);

(5)    BFM16’s remorse for his actions (at R[90]-[93]);

(6)    BFM16’s behaviour in custody (where he had come to adverse attention) and detention (where a welfare officer on Christmas Island had indicated that he had “displayed exceptional behaviour” and that he was “an exceptional role model”) (at R[94]-[95]); and

(7)    Community support including from BFM16’s family members, his former wife and other associates (at R[96]-[98]).

51    Under the sub-heading “Conclusion - risk”, the Minister set out his conclusions as to the risk at R[99]-[101] as follows:

Conclusion - risk

99.    While [BFM16] has a very poor history of compliance with court orders, he has inevitably committed further offences when given the opportunity to undertake rehabilitation in the community, and has not demonstrated the capacity to lead a law abiding lifestyle in the community, I acknowledge that [BFM16] has completed a program to address the lack of cognitive skills that have contributed to his offending, and has maintained a record of positive behaviour in immigration detention over a significant period of time in sometimes trying and traumatic circumstances. However, as stated above, I remain guarded about the prospects of [BFM16] not relapsing into substance abuse and associated criminality.

100.    Although I give weight to Professor Wood’s opinion that the risk of [BFM16] committing further offences is low, I do not consider this to be extremely low to the extent of being remote as submitted by Mr Kline.

101.    Overall, I find that there is an ongoing risk that [BFM16] will continue to engage in criminal conduct. Given his past offending, especially that involving violence and the use of knives, I find that if [BFM16] were to commit further violent offences it places members of the community at risk of serious physical and/or psychological harm. Furthermore, if [BFM16] were to commit any further offences it would also cause a cost to the community through any required involvement of law enforcement and the justice system.

52    Under the sub-heading “Conclusion - national interest” at R[102] the Minister said:

In sum, having regard to the above, including [BFM16’s] criminal conduct in Australia, which includes violence that has been categorised by the courts and the AAT as being very serious and has at times involved violent acts against members of the community, including vulnerable minors, and the risk to the Australian community, I conclude that it is in the national interest to refuse to grant [BFM16’s] visa.

Discretion

53    The Minister then turned to the consideration of whether to exercise his discretion under the heading “Discretion”. At R[103], the Minister said:

Having found that [BFM16] does not pass the character test and that it is in the national interest to refuse to grant [BFM16’s] visa, and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to refuse to grant [BFM16’s] visa, taking into account factors that I considered weighed against and in favour of refusing to grant [BFM16’s] visa. In making my decision I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.

54    The Minister then addressed the following matters under individual headings:

(1)    “Best interests of minor children” (at R[104]-[109]). The Minister said that he had treated the best interests of any affected children who are less than 18 years of age in Australia as a primary consideration and he concluded that it is in the best interests of BFM16’s daughter and niece not to refuse to grant him a visa;

(2)    “Expectations of the Australian community” (at R[110]-[112]). The Minister concluded that, given the serious nature of BFM16’s violent offences, the Australian community would expect him not to be granted a visa;

(3)    “International non-refoulement obligations” (at R[113]-[119]) (see [55] below);

(4)    “The strength, nature and duration of ties to Australia” (at R[120]-[130]). The Minister noted that while BFM16 had spent 22 years in Australia, most of his adult life had been spent in criminal custody and immigration detention rather than in the community. The Minister took into account that two of BFM16’s siblings are Australian citizens. The Minister also took into account BFM16’s representative’s submission that he has a strong supportive network of family and friends in Australia and that, if the visa was refused, his elderly parents would experience substantial emotional hardship, his siblings would suffer emotional hardship, his friends would be disappointed, and his former wife (with whom he maintains an amicable relationship) would likely experience emotional and practical hardship. The Minister found that BFM16 had made some positive contributions to the community between 2002 and 2010 and recognised the effect of visa refusal for minor children, family members and friends; and

(5)    “Impact on victims” (at R[131]). The Minister noted the submission from BFM16’s legal representative that it was “extremely unlikely” that visa refusal would impact on the victims of BFM16’s criminal behaviour or their families.

55    In relation to “International non-refoulement obligations”, the Minister said:

International non-refoulement obligations

113.    [BFM16] is a national of [CoO]. [BFM16] has made claims as part of his response to the Notice of Intention to Consider Refusal dated 26 February 2019.

114.    On 27 January 2017, the AAT concluded that [BFM16] had a fear of persecution for reasons of his religion if he returns to [his CoO]. Accordingly, the AAT found that [BFM16] is a person in respect of whom Australia has non-refoulement obligations, and I accept that finding.

115.    I understand that if I decide to refuse to grant [BFM16’s] Protection visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa. I further understand that, according to the relevant provisions of the Regulations, [BFM16] could only apply for a Bridging R (Class WR) visa in response to an invitation, and that in respect of a Protection visa, he will be prevented by s48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s48B that s48A does not apply to him).

116.    I am aware that the statutory consequence of a decision to refuse to grant [BFM16’s] Protection visa is that, as an unlawful non-citizen, [BFM16] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, continued detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

117.    I am mindful that even if I refuse to grant [BFM16’s] visa, I have a personal non-compellable power in s195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [BFM16’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to [his CoO], having regard to s197C.

118.    I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [BFM16’s] criminal offending in the making of my decision whether to refuse to grant [BFM16’s] Protection visa.

119.    In making my decision I have also taken into account the impact that detention has had on his health as outlined in the psychologist report by Ms Burke dated 31 October 2016 who stated that [BFM16] suffers with depression, extreme stress and anxiety about his ongoing stay in detention.

Conclusion

56    Under the heading “Conclusion”, the Minister said (at R[132]-[140]):

132.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act, (2) the national interest, and (3) all other evidence available to me, including evidence provided by, or on behalf of [BFM16].

133.    Having given full consideration to all of the information before me in this case, I reasonably suspect that [BFM16] does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) and [BFM16] has not satisfied me that he passes the character test. Also, I am satisfied that refusal of [BFM16’s] visa is in the national interest.

134.    In considering whether or not to refuse to grant [BFM16’s] visa, I gave primary consideration to the best interests of [BFM16’s] child and have found that her best interests would be best served by not refusing the visa, as would that of [BFM16’s] niece.

135.    I also considered the risk posed to the Australian community by [BFM16’s] continued presence in Australia, taking into consideration his past criminal conduct, particularly that involving violence, as well as the risk of him reoffending.

136.    [BFM16] has committed very serious crimes of a violent nature involving stabbing and robbery involving knives, which in one instance involved a vulnerable member of the community, that being a minor. Non-citizens such as [BFM16] who commit such offences should not generally expect to be permitted to remain in Australia.

137.    I find that the Australian community could be exposed to significant harm should [BFM16] reoffend in a similar fashion, committing violent offences involving knives. I could not rule out the possibility of further offending by [BFM16]. The Australian community should not tolerate any further risk of harm.

138.    I found the above considerations outweighed the countervailing considerations in [BFM16’s] case, including the best interests of his daughter and niece treated as a primary consideration, non-refoulement obligations, and the impact on his family members and friends in Australia. I have also considered the positive contributions [BFM16] has made to the community through his education and employment.

139.    I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to refuse to grant the visa. This is the case even applying a higher tolerance of criminal conduct by [BFM16], than I otherwise would because he has lived in Australia from a very young age, arriving at the age of four.

140.    I find that the considerations favouring non-refusal, in particular the best interests of the affected children treated as a primary consideration, and [BFM16’s] ties to Australia and the hardship on him and his family members and friends, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [BFM16’s] application for a Protection (Class XA) visa under s501A(2) of the Act.

JUDICIAL REVIEW APPLICATION

57    At the hearing of this application, Mr Godwin appeared for BFM16. Mr Lenehan SC appeared for the Minister. Written outlines of submissions were filed on behalf of BFM16 and the Minister before the hearing.

58    BFM16 was not legally represented when he filed his application for review. He subsequently obtained the pro bono assistance of Mr Godwin of counsel, following which an amended originating process was filed without leave. The Minister did not oppose leave being granted to BFM16 to rely on the amended originating process and that leave was granted at the hearing.

59    While judgment was reserved, Rares J handed down judgment in BAL19. BFM16 sought leave to amend the amended originating process to introduce grounds reliant on that decision and that the matter be adjourned pending resolution of an appeal in BAL19. The Minister consented to orders being made and that was done. As a result, the further amended application was filed introducing the fourth and fifth grounds.

60    The further amended application contained the following grounds:

1.    In his assessment of the National Interest the respondent failed to take into account the fact that Australia will be in breach of its international obligations as a consequence of the steps that will occur upon refusal of the visa by him.

2.    The respondent failed to address whether or not [his CoO] would cooperate in allowing [BFM16] to return there.

3.    The respondent failed to address the consequences for the applicant if [his CoO] did not cooperate in allowing the applicant to return there.

4.    The respondent acted unreasonably and failed to engage in an active intellectual process in considering the legal and practical consequences of his decision as he

a.    Failed to consider in any way the purpose of the Parliament in enacting s 36(1C) as its expression of the nation’s non-refoulement obligations in respect of the acceptable danger to the Australian community of a refugee other than by his using the generic description of “international non-refoulement obligations” in his reasons;

b.    Failed to consider the practical consequences for the applicant of being returned to [his CoO]

5.    The respondent did not have the power to refuse the grant of a protection visa to the applicant under s 501A(2) of the Act as he was precluded from doing so by the specific power in s 36(1C) of the Act.

61    On 1 July 2020, by email to chambers, the Minister’s legal representative advised the Court of the Full Court’s decision in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (KDSP) and of the statement accompanying the orders made by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (SAD 70 of 2020) and BGS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NSD 331 of 2020). The Full Court has since published reasons in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121 (BFW20). The parties agreed that, as a result of those decisions, the fifth ground could not succeed and accordingly BFM16 does not press it. A timetable for the provision of written submissions relating to the fourth ground was agreed and written submissions were provided by both parties in accordance with it.

62    After a date for handing down judgment had been set, the parties approached chambers to allow time for further submissions in relation to the first ground of review having regard to Griffiths J’s decision in CWY20 and leave was granted for filing of those submissions.

FIRST GROUND

63    Having regard to the submissions made by BFM16 and the Minister in relation to CWY20 and therefore the basis on which they have joined issue, BFM16’s first ground should be understood as being: the Minister did not, in his assessment of national interest, consider the fact that Australia would be in breach of its international obligations as a consequence of the steps that will occur if the Minister refused BFM16 a protection visa and thereby formed his assessment of the national interest unreasonably and not on a correct understanding of the law.

BFM16’s submissions

64    BFM16 made the following submissions in support of the first ground:

65    In the 2017 AAT decision record, the AAT found that BFM16 is a person in respect of whom Australia has protection obligations because he is a refugee who has a well-founded fear of persecution in his CoO for reasons of his religion: see [157] below.

66    Article 33(1) of the Refugees Convention expressly prohibits States from “expel[ling] or return[ing] a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened” on account of a reason which includes a person’s religion.

67    In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [27] the High Court said (footnotes omitted):

First and foremost among those contextual reasons is that, read 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.

68    When (in item 6 on the cover page) the Minister was asked if he would like to consider alternative management options pursuant to ss 195A and 197AB of the Migration Act, the Minister selected the response “no submission required”: see item 6 of the table at [38] above. That meant that the Department was required to remove BFM16 from Australia as soon as reasonably practicable: see s 198(6) of the Migration Act. Removal was to take place notwithstanding Australia’s non-refoulement obligations: see s 197C of the Migration Act. Refoulement would be to his CoO as BFM16 has no right of residence elsewhere, which would be in breach of Australia’s international obligations.

69    At R[14], the Minister noted that the terms of s 501A(2) make it clear that national interest considerations are separate and distinct from the question of whether or not a person passes the character test; that “national interest” is not defined for the purposes of s 501A; that Courts have generally been reluctant to attempt to define the meaning of “national interest” in statutory contexts; and that the “national interest” is different to the “public interest”.

70    The Minister’s power to override the 2018 AAT decision and refuse BFM16 a protection visa under s 501A(2) of the Migration Act is triggered by the “national interest” consideration in s 501A(2)(e).

71    At R[20], the Minister said that he considered that the matter of “national interest” includes, among other things, the seriousness of criminal conduct and any disposition imposed by a court and that it includes a consideration of the risk of reoffending and the harm that could flow from it if the risk eventuated. The Minister reached his conclusion that it was in the national interest to refuse to grant BFM16’s visa at R[102] having had regard to those matters.

72    The Minister therefore did not take into account the consequences for the national interest of BFM16’s refoulement. That conclusion is supported by these matters:

(1)    Breach of Australia’s international obligations by reason of BFM16’s refoulement or the consequent damage to Australia’s international reputation if it did so are not mentioned in that part of the Reasons which deals with the “national interest”.

(2)    Under s 501G of the Migration Act, the Minister is obliged to give reasons for his decision made under s 501A(2). The Minister’s written reasons may and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account. If something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at [16] (Allsop CJ and Katzmann J) and [172]-[177] (Buchanan J) relying on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [5] (Gleeson CJ), [37] (Gaudron J), [69], [89] (McHugh, Gummow and Hayne JJ) and [133] (Kirby J); and s 25D of the Acts Interpretation Act 1901 (Cth) and s 501G of the Migration Act.

(3)    As the Reasons in BFM16’s case are otherwise comprehensive, it must be inferred that the matters referred to under the heading “national interest” and its sub-headings were the Minister’s reasons for finding (at R[102]) that it was in the national interest that BFM16 not be granted a protection visa.

73    After considering the national interest, the Minister turned to consider issues relevant to his exercise of discretion. At R[114], the Minister says that he accepts the AAT’s finding that BFM16 had “a fear of persecution” in his CoO for reasons of his religion. R[117] suggests that the Minister considered the consequences for BFM16 of ss 197C and 198 of the Migration Act in exercising his discretion. However these aspects of the Reasons do not demonstrate that the Minister considered the consequence for the national interest of Australia refouling BFM16 in breach of its international obligations.

74    BFM16 acknowledged that what constitutes the national interest is largely a political question (referring to Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 (Plaintiff S156/2013) at [40]) but submitted that it is not beyond judicial scrutiny. BFM16 relied on the High Court’s decision in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) (Graham) at [57] as follows (footnotes omitted):

The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister’s satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”.

75    BFM16 relied on the reasons of Rares J in FRH18 v Minister for Home Affairs [2018] FCA 1769; (2018) 266 FCR 413 (FRH18) for the proposition that, when reaching a decision under s 501A(2) of the Migration Act, breach of international obligations is a necessary consideration in the assessment of the national interest such that the failure to consider it amounts to jurisdictional error. BFM16 notes “close factual similarities” and differences between FRH18’s case and BFM16’s case:

(1)    In FRH18’s case, the Minister had circled the option on the cover page which indicated that he did want a briefing on alternative management non-compellable powers. The Minister indicated that he did not want such a briefing in BFM16’s case. However, Rares J drew the inference that notwithstanding that the Minister had indicated that he wanted a briefing on alternative management, the only rational viewpoint, given his other reasons, that the Minister could have had was that he was never going to exercise a non-compellable power to allow FRH18 to stay in Australia: FRH18 at [53], [57]. It is that conclusion which bring FRH18’s case and BFM16’s case into line with each other and effectively created the same factual matrix. The result is that in both cases, if the visa was refused, the applicant would need to be removed from Australia as soon as reasonably practical.

(2)    In both cases:

(a)    The determination of the national interest is dealt with before the exercise of discretion;

(b)    It is the ongoing risk that the applicant would potentially engage in criminal conduct which is determinative of the national interest;

(c)    International non-refoulement obligations are referred to in the context of the exercise of discretion;

(d)    The Minister accepts the findings made by the administrative decision-maker (the AAT in BFM16’s case and the Department in FRH18’s case) that Australia owes the applicant non-refoulement obligations;

(e)    Findings are made in FRH18 in identical terms as R[115], [116] and [118] (see [55] above); and

(f)    The Minister’s consideration makes reference to the possibility of significant harm to the applicant and makes a comment in exactly the same terms to R[139] and [140] (see [56] above).

76    BFM16 noted the following features of the decision in FRH18:

(1)    At [36], Rares J noted the Minister’s submission (which is similar to the Minister’s submissions in this case) that the power under s 501A(2) is personal to the Minister, it confers a wide discretion to decide what was in the national interest and it is not appropriate to seek to discern some unstated requirement that he has to consider specific factors that are personal to the applicant, relying on Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (Nystrom) at [125]-[129] (Heydon and Crennan JJ), with whom Gleeson CJ at [1] and Gummow and Hayne JJ at [39]-[41] agreed.

(2)    At [42], Rares J sets out the passage from Graham at [57] and, at [43], Rares J noted that the High Court held (in Graham at [59]) that the Minister had to evaluate the material to which he had regard reasonably in forming his state of satisfaction as to the national interest in exercising his discretion under s 501(3).

(3)    At [44], Rares J referred to NBMZ at [17] and [177] and Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 (Le) at [46] and [60]-[61] and noted that, by reason of his knowledge that Australia has currently existing non-refoulement obligations in respect of the applicant, the Minister had an obligation to take into account the legal consequences of a decision to cancel a visa under s 501(2) having regard to ss 48B, 189, 195A, 196, 197AB, 197C and 198 of the Migration Act.

(4)    At [45], Rares J said (emphasis in BFM16’s submissions):

Although their Honours discussed this issue using the expression “mandatory consideration”, they did not do so because the Migration Act made it obligatory for the Minister to have regard to the most recent known material relevant to whether there was a likelihood of the visa holder becoming subject to indefinite detention or refoulement if the visa were revoked. Rather, the Minister’s obligation to have regard to these matters arose because this consequence was the most up to date material before him relevant to his consideration of the detriment to the applicant from the exercise of his power to cancel the visa under s 501(2): Peko-Wallsend [(1986) 162 CLR 24] at 44-45 per Mason J with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue; which I applied in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at [27]-[42] in a manner approved by Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [75]-[77]; and see too S156/2013 [(2014) 254 CLR 28 at 46-47] [39]-[43] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

(5)    At [46], Rares J states his opinion that “[t]he nature of the issues relevant to the Minister exercising his or her personal power under ss 501(1), (2), or (3) or 501A(2) to cancel a visa and the consequences for the individual concerned are materially similar, save that in the cases of ss 501(3) and 501A(2), the Minister must also be satisfied that the cancellation is in the national interest”.

(6)    At [47] Rares J rejected the Minister’s submission recorded in FRH18 at [36], on the basis that s 197C, as currently enacted, did not exist in 2006 (when Nystrom was decided).

(7)    At [49], [50], [52], Rares J said (emphasis in the original):

49    In the applicant’s case, the Minister’s reasons revealed what he understood that he was deciding and why he had decided to delay considering how Australia’s non-refoulement obligations could be addressed. However wide the scope of the Minister’s discretion to consider what is in the national interest, the question whether to make a decision that would have the prima facie effect of putting Australia in breach of its non-refoulement obligations owed in public law to other nations party to treaties with Australia whence those obligations derive, suggests that this factor must be considered (and not put to one side) by the Minister in exercising the power under s 501A(2) (cf: Graham [(2017) 347 ALR 350 at 363-364] [57], [59]).

50    Moreover, the presence of s 197C made it necessary for the Minister to consider the existence and impact of Australia’s non-refoulement obligations in relation to the applicant at the time the Minister was considering the cancellation of the applicant’s visa under s 501A(2). The Minister was bound to have regard to Australia’s non-refoulement obligations because of the subject-matter, scope and purpose of the discretion that s 501A(2) confers on the Minister to cancel a visa. That is because, if the decision is adverse for the visa holder, the exercise of the discretion will cause that person detriment. The Minister was bound to evaluate the existing non-refoulement obligations reasonably in deciding whether to cancel the applicant’s partner visa, including if it would be possible to meet those obligations in the way he suggested in [106] of his reasons, in light of a finding that any risk of the applicant reoffending required the cancellation of his visa.

…

52    As the Minister’s reasons demonstrated at [86], [132] and [134]-[135], he regarded as determinative, the existence of the likelihood, however remote, of the applicant reoffending if the visa were not cancelled. He found (at [132]) that “I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm” (emphasis added). Although the Minister asserted that he had considered Australia’s non-refoulement obligations in respect of the applicant (at [133]) he found that these, and other factors favouring the status quo, did not outweigh the national interest considerations based on the risk that the applicant posed to the Australian community by the mere possibility that he might reoffend if the visa were not cancelled. The “consideration” in [106] was perfunctory and not carried out with any reasoning or analysis, given the Minister’s conclusion about the applicant’s risk of reoffending.

BFM16 says that the same reasoning as employed by Rares J in FRH18 applies equally to his case.

(8)    At [58]-[59], Rares J said (emphasis added):

58    The Minister stated in [106] that, after cancellation of the partner visa, he still would have “alternative management options in relation to” the applicant. However, that statement could not amount to proper, genuine or realistic consideration of whether it would be in the national interest to exercise the power in s 501A(2) to cancel the applicant’s visa. Because the Minister had formed the view that the possibility of the applicant reoffending in the future was unacceptable, the grant of another visa or residence determination was out of the question because the risk of the applicant reoffending would be unchanged. Accordingly, any future “consideration” of the exercise of the Minister’s personal non-compellable powers to grant another visa or make a residence determination would necessarily result in a negative decision. Once that occurred, ss 197C and 198(2A) would entail the applicant’s removal from Australia as soon as reasonably practicable. Nor could the Minister continue to hold the applicant in immigration detention in the hope that the reason (the real chance of persecution of Christians in the applicant’s situation in Pakistan) for existence of the non-refoulement obligations might cease to exist at some indefinite further time: M61/2010E [(2010) 243 CLR 319 at 353] [76]-[77].

59    In the present context, once the Minister decides to cancel a visa under s 501A(2), s 197C makes irrelevant the existence of non-refoulement obligations to the duty of an officer to remove the person from Australia. Accordingly, having regard to the subject-matter, scope and purpose of the Act, a decision to cancel under s 501A(2) may cause Australia to be in breach of its international non-refoulement obligations under treaties that this country has entered into so as to make it necessary to take this into account as a relevant consideration in the determination of what is or is not in the national interest.

(9)    BFM16 says the finding in FRH18 at [59] is the “central determinative factor” and the factual similarities between FRH18’s case and BFM16’s case, when properly understood, are so close that FRH18 is not distinguishable and the reasoning employed by Rares J should be followed.

(10)    At [60], Rares J said:

60    I agree with the analysis of Moshinsky J in AQM18 [[2018] FCA 944] at [80]-[89] that, in a similar case to this, the Minister, in substance, had misunderstood, and therefore failed to take into account the legal consequences of his decision. That was because he had not considered how, in light of the cancellation of the visa and ss 197C and 198, any “alternative management option” could lead to an outcome other than refoulement by force of ss 197C and 198: see too DMH16 v Minister for Immigration and Border Protection [(2017) 253 FCR 576 at 581] [26]. In the applicant’s case here, after cancelling the visa the Minister circled that he wished to discuss the alternative management options. This reinforces the conclusion that the Minister did not think through, indeed even consider, how, if at all, these could be engaged to enable Australia to comply with its international non-refoulement obligations.

77    In AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424 (Besanko, White and Thawley JJ) (AQM18 FCAFC) the Full Court upheld a cross appeal from the decision of Moshinsky J in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. Contrary to Moshinsky J’s findings, Besanko and Thawley JJ considered that the Minister’s statement of reasons in that case revealed that he had understood that the consequence of his decision was that AQM18 would be refouled despite Australia’s non-refoulement obligations.

78    BFM16’s case is distinguishable from AQM18’s case because in BFM16’s case the Minister did not appreciate the fact that BFM16’s refoulement would be a breach by Australia of its obligations to the international community under the Refugees Convention and he did not take that fact into account in his assessment of the national interest.

79    The Minister’s failure to refer to the consequential breach of Australia’s international obligations as part of his assessment of the national interest is consistent only with the Minister not understanding that this was the necessary consequence of his decision so that he did not take it into account. The failure to have regard to the legal consequences of a decision to refuse a visa may constitute a jurisdictional error: see NBMZ at [6]-[10] and [18] (Allsop CJ and Katzmann J) and [164]-[167] (Buchanan J).

Minister’s submissions

80    The Minister submitted as follows.

Overly narrow construction of Reasons

81    The first ground depends upon an overly narrow construction of the Reasons. Proper regard must be had to all of the material before the Minister and the process by which his decision was made, including the submission for decision.

82    Where the Department prepares a document such as the submission for decision for the Minister, the usual inference is that the Minister has read it: Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 (Stambe) at [74] (Mortimer J); Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 (Maxwell) at [31(2)] (Perry J). That inference becomes more compelling in light of the following matters:

(1)    The fact that the submission for decision was prepared at the Minister’s instigation: see item 1 on the cover page (see [38] above);

(2)    The statement at the commencement of the Decision Page indicates what the Minister has considered “all relevant matters” (see [39(1)] above).

83    The Minister submitted that the very matter that BFM16 says was not considered by the Minister was drawn to his attention in the submission for decision at S[38]-[40] (see [41(3)] above).

84    The discussion in the submission for decision made observations under the heading “Non-refoulement obligations” at S[97]-[99] (see [41(10)] above). The Minister emphasised that, at S[97], the discussion drew the Minister’s attention to the fact that the 2017 AAT decision found that BFM16 was a person in respect of whom Australia has protection obligations and the country of reference is CoO, stating that: “This means that to remove [BFM16] to [his CoO] would be in breach of Australia’s international non-refoulement obligations. [BFM16] could be removed to a country other than [his CoO] but there is currently no known prospect of removal to such a country.”

85    Further, it should also be inferred that the Minister considered the responses made by or on behalf of BFM16 to the Notice of Intention from the fact that the Minister has circled “noted” in relation to recommendation 2 on the cover page (see [38] above) and the statement at the commencement of the Decision Page which indicates that he considered “all information [before him] provided by, and on behalf of [BFM16] in connection with the possible refusal of his application” (see [39(1)] above). That material included a submission dated 3 March 2019 from Mr Kline, BFM16’s former barrister, who put to the Minister the asserted relevance of non-refoulement obligations to consideration of the national interest. I note that CB277-278 contains the following:

…

I would draw your attention to the fact that the matter before the AAT was heard by a very senior member in Deputy President Ian Hangar AM QC, and you were represented by your most senior solicitor at the Australian Government Solicitor, Mr Markus who, very properly, in accordance with his ethical obligations, made a number of concessions (or perhaps acknowledgements is a better word) about [BFM16’s] reformation, and the extremely low possibility of his re-offending. Again, I refer you generally to the transcript.

The decision of Deputy-President Hangar was logical and reasoned and in accordance with the evidence before him. I draw your attention to the Explanatory memorandum under which sections like s 501A(2) were introduced into the Act, and the accompanying press releases. The intention was to enable the Minister to override wayward decisions of the AAT. There is no possibility that the decision of Deputy-President Hangar could be possibly so categorised.

As such, an attempt to use s 501A(2) in these circumstances is outside the intent of the Parliament and an abuse of power giving rise again to constructive failure to exercise jurisdiction described, inter alia, by the concepts of legal unreasonableness and reasonable apprehension of bias.

As I say, the concessions or acknowledgements of Mr Markus were properly made in the face of evidence given on [BFM16’s] behalf by, inter alia, Professor Stephen Woods, clinical psychologist, and Australia’s leading expert on recidivism, as well as solicitor Christine Bourke, Member Hangar accepted their evidence that the likelihood of [BFM16] re-offending is remote.

If he is not going to re-offend, it cannot possibly be in the national interest within the meaning of s 501A(2)(e) of the Act for him to be refused a visa and refouled to a place of danger to his life and safety. Such a suggestion would display a misunderstanding on your part, of your statutory obligations, and again would lead you into jurisdictional error.

Whilst the Ministerial discretion as to what is in the national interest is broad, the one matter the authorities say must be considered is the risk of re-offending and therefore the potential for harm to the Australian community. If, as the AAT found (and found on strong and cogent evidence) that risk is next to nil, any danger to the national interest cannot be engaged. See Bromberg J in Gbojueh v Minister (2012) 202 FCR 417 at [45].

86    The Decision Page (which the Minister signed) and the draft of the Reasons (which the Minister also signed), were all part of or attached to the submission for decision. The significance of that in respect of the decision-making process was identified by Allsop J (as his Honour then was) in Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 at [31] (Navarrete), where his Honour said (emphasis added):

… It is important, however, to appreciate what the “reasons” were before they were adopted. They were part of the submission. They were no doubt read and intended to be read as part of the process of decision-making by the Minister. On one view they can be seen as a Departmental recommendation, not so much the personal view of the author, but an expression of view purportedly conformable with Government policy which would justify a decision to cancel the applicant's visa. As such they are part of the submission to be taken into account and considered before the decision. The submission, including the draft reasons viewed as I have indicated, is an integral part of the decision-making process…

87    In such circumstances, establishing that the Minister did not give proper consideration to those materials is not “straightforward”: see Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; (2017) 256 FCR 455 at [91]-[92] (Murphy and Burley JJ).

88    The Minister understands that the essential point in ground 1 is that, because the Minister did not expressly refer in his Reasons either to the fact that refoulement of BFM16 would be a breach by Australia of its obligations to the international community under the Refugees Convention or the consequential breach of Australia’s international obligations, he did not take those matters into account. However, the discussion in the submission for decision at S[40] and [97]-[99] (extracted above at [41(3)] and [41(10)]) leave no room for doubt that he did have regard to that very matter. The application should fail for that reason alone.

89    Even if, contrary to the authorities on which the Minister relies, one could divorce the Reasons from the submission for decision, the same conclusion would be reached because:

(1)    At R[114], the Minister expressly accepted that BFM16 was a person in respect of whom Australia has non-refoulement obligations. The basis of that obligation was identified: “the AAT concluded that [BMF16] had a fear of persecution for reasons of his religion if he returns to [his CoO]”. The necessary corollary was that Australia would be in breach of its non-refoulement obligations if the outcome of the Minister’s decision was that BFM16 was returned to his CoO. There is no doubt that the Minister considered that matter: see R[116] and [117] which are set out at [55] above.

(2)    The significance of the Minister’s reference to s 197C at R[117] is that the Minister understood that the outcome of his refusal decision (unless he later exercised his power under s 195A) would be breach of Australia’s non-refoulement obligations. The only material effect of s 197C is to make such obligations “irrelevant”: that would only arise if those obligations stood to be breached.

(3)    Accordingly, the Minister’s shorthand reference to having had regard to “the existence of non-refoulement obligations in this case” at R[118] (see [55] above) can only sensibly be understood as having had regard to their likely breach if the visa was refused (absent any exercise of the power conferred by s 195A). As was noted in AQM18 FCAFC at [23], that is the inexorable logic of the notion that those non-refoulement obligations were to be “carefully weighed” against the seriousness of BFM16’s criminal offending. That would not have been necessary if the Minister was proceeding on the basis that those obligations were to be met. The same point applies to the Minister’s later reasoning at R[138], [139]: AQM18 FCAFC at [24].

90    BFM16 (correctly) acknowledged similarities between the Reasons in his case and the Minister’s reasons in AQM18’s case which the Full Court held to involve no error. BFM16 seeks to avoid that difficulty by asserting that the ground in issue in his case is different to the ground in issue in AQM18’s case. However, BFM16 overstates the differences. The important point is that in AQM18 FCAFC at [22] and [25], Besanko and Thawley JJ concluded that the Minister’s “weighing” process (between the national interest and having regard to non-refoulement obligations) proceeded on the basis of an expectation that AQM18 would be refouled as a consequence of his decision and the Minister took that into account. The same reasoning applies in BFM16’s case.

Non-refoulement obligations not a mandatory relevant consideration

91    In the Minister’s submission, for the foregoing reasons, it is not necessary for this Court to decide whether non-refoulement obligations are a mandatory relevant consideration for the purposes of s 501A of the Migration Act. Having said that, the Minister submitted that non-refoulement obligations are not a mandatory consideration for those purposes.

92    In oral submissions, senior counsel for the Minister submitted that Rares J did not clearly analyse the issues in FRH18 on the basis that national interest and discretion were strictly separated.

93    Counsel submitted that decision-makers commonly express their reasons sequentially but that does not mean that they decide each factual issue in isolation from the others. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [14] (Gleeson CJ). Nor (having regard to the High Court’s decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang)) should a Minister’s reasons be read in an overly strict fashion and on the assumption that because a decision-maker does not refer to a fact in relation to one aspect they have omitted to consider it.

94    It is sufficient to note that in FRH18 at [52], Rares J did not take issue with the Minister weighing discretionary matters, including non-refoulement. Rather, Rares J’s concern at [52] was that the Minister’s “consideration” in [106] of his reasons was perfunctory and not carried out with any reasoning or analysis, given the Minister’s conclusion about the applicant’s risk of reoffending.

95    The text of s 501A does not expressly require the Minister to consider Australia’s non-refoulement obligations. It is therefore necessary for BFM16 to show that such a requirement can be inferred from the subject matter, scope and purpose of the Migration Act.

96    Such an inference is unavailable in the context of s 501A. Upon satisfaction of the matters in s 501A(2)(c), (d) and (e), the Minister has a broad discretion to refuse or cancel a visa that is unfettered by any express restraint. In such circumstances, it is largely for the decision-maker to determine the relevant issues: Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375. This is particularly so in circumstances where:

(1)    The discretion can only be exercised personally by the Minister; and

(2)    The discretion is only enlivened where the Minister has made a determination of the “national interest”.

97    Given the nature of the power, it is not appropriate to seek to imply from the statute an obligation upon the Minister to consider “specific factors” that are “personal to the visa holder”. The Minister relied on Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 (Huynh) at [74] and Nystrom at [124]-[129] (Crennan and Gummow JJ) and [1] and [39]-[41] (Gleeson CJ).

98    In Huynh at [73]-[74] Kiefel J (as her Honour then was), and Bennett J said:

73    … And in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 Drummond J observed that although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject-matter, scope and purpose of the statute (at [17]).

74    A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. …

99    The decisions in Nystrom and Huynh were made in the context of s 501(2). The Minister submitted that the position is a fortiori in respect of s 501A(2), given that the power conferred on the Minister is conditioned on her or his satisfaction as to the “national interest”. As French CJ and Kiefel J observed in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at [30] in respect of the similar term “public interest”, it is difficult to give a “precise content” to terms which confer a discretionary value judgment to be made by reference to “undefined factual matters” confined only in so far as the subject matter, scope and purpose may enable given reasons to be pronounced “definitely extraneous to any object the legislature could have had in view” (emphasis in submission). None of that provides any firm basis in the text for discerning mandatory relevant considerations: see to similar effect at [99(v)-(vi)] (Gummow, Hayne, Crennan and Bell JJ) and at [113]-[114] (Heydon J).

100    The introduction of s 197C does not affect that analysis, contrary to FRH18 at [50] (see [76(7)] above).

101    If it is necessary for me to decide the point, this Court should conclude that FRH18 is plainly wrong and should not be followed insofar as Rares J held that non-refoulement obligations are a mandatory relevant consideration in the context of s 501A(2) (see FRH18 at [49] and [59] extracted at [76(7)-(8)] above) because:

(1)    The reasoning appears to have been that the Minister was required to consider non-refoulement obligations as an aspect of the national interest because an exercise of the discretion, if adverse to the person, stands to cause that person “detriment” in the form of refoulement. But even if the person were not to be refouled, such a decision stood to cause a person detriment (in the form of potentially lengthy detention). In any event such detriment, being a specific factor personal to the visa applicant, is not a matter that is required to be taken into account in evaluating the national interest.

(2)    In FRH18, Rares J placed reliance upon Graham at [57] and [59], but that decision goes no further than the proposition that the Minister’s state of satisfaction must be formed reasonably and on a correct understanding of law. That provides no basis for discerning a mandatory consideration in the arid context of a discretion framed by reference to a concept as broad as the “national interest”.

(3)    In FRH18 at [44], Rares J refers to the Full Court’s decision in Le at [61] (Allsop CJ, Griffiths and Wigney JJ). But that passage only deals with s 501(1) and (2). Justice Rares’ later conclusion (at [46]) that the same considerations apply to ss 501(3) and 501A(2) takes insufficient account of the textual differences between those provisions.

102    Senior counsel submitted that, although there is a textual “hook” for the requirement to consider refoulement in the notion of “national interest”, Rares J should be understood to be saying that the legal consequences of an exercise of the power conferred by s 501A(2) is a mandatory consideration as found in NBMZ. His Honour should not be understood to be saying that refoulement must be considered in the context of the determination of the national interest and then dealt with again as a discretionary matter. So much is clear from FRH18 at [49] where his Honour said: “This factor must be considered (and not put to one side) by the Minister in exercising the power under s 501A(2)”.

CWY20 submissions

103    In his written submissions, the Minister noted that he has filed an appeal in relation to the decision in CWY20.

104    The Minister submitted that, in CWY20, Griffiths J was satisfied that the Acting Minister erred by failing to consider Australia’s international non-refoulement obligations to other countries in assessing whether it was in the “national interest” to refuse to grant CWY20 a protection visa under s 501A(2) of the Migration Act. The Minister noted that CWY20’s case did not rely on a contention that the Acting Minister erred because he failed to take into account a mandatory consideration being the impact of breach of non-refoulement obligations on Australia’s international reputation (see CWY20 at [51]). The Minister submitted that was appropriate having regard to Huynh at [74] and Nystrom at [127]-[128].

105    The Minister referred to CWY20 at [116]-[117], [119]-[120] and [134] and [136]. It is useful to set out those passages of the judgment, as well as [118] as it reflects similar circumstance to BFM16’s case:

116    As has been emphasised above, the expression “the national interest” is a broad and evaluative one, but it is not unbounded. The Acting Minister noted in his statement of reasons that his state of satisfaction as to what is or is not in the national interest is a question which has been entrusted to the Minister by the Parliament, but he then correctly acknowledged that this satisfaction “must be attained reasonably”. Moreover, the requisite satisfaction must be reached on a correct understanding of the law.

117    Consideration of the question of the national interest can be affected by the particular circumstances of the case, including any representations made by an applicant on that subject. It is to be recalled that a feature of the power conferred by s 501A(2) is that it must be exercised in accordance with natural justice requirements, which include an affected person having an opportunity to make representations prior to a decision being made whether or not to exercise the power. That is not say, however, that in attaining the state of mind as to whether or not he or she is satisfied for the purposes of s 501A(2)(e) that the refusal of a visa is in the national interest, the Minister has only to address any such representations made by the affected person on the subject of the national interest. The Minister’s task is wider than that because he or she is obliged to have a correct understanding of the law, which necessarily involves the Minister having to address any relevant component of the national interest which arises squarely on the material before the Minister. This may include representations made by the applicant on that subject, but it is not necessarily confined to consideration of such representations.

118    It should be reiterated that the applicant in this case did raise the issue of non-refoulement in his representations to the Minister but, consistently with the structure of Direction 79 and the Department’s encouragement to follow that structure, those submissions were not under the heading of “national interest” (see [17] to [22] above).

119    In the particular circumstances of this case, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Acting Minister and the findings he made. Those findings involved an acceptance by the Acting Minister that Australia owed non-refoulement obligations in relation to the applicant, and that refusing him the visa would put Australia in breach of those obligations because necessarily the applicant would have to be returned to his country of origin where there was an accepted risk that he would be killed. The Acting Minister’s decision to refuse the applicant the visa meant that the applicant would be refouled in breach of Australia’s obligations under international law. That very serious consequence for Australia had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). Ultimately, however, it would be a matter for the Acting Minister to determine whether or not, despite putting Australia in breach of its obligations under international law, it was nevertheless in the national interest to refuse the applicant a visa.

120    The Minister erroneously confined his assessment of the national interest by simply focusing upon the seriousness of the applicant’s criminal conduct, the sentence he received, the risk of him reoffending and the harm to the Australian community if such a risk eventuated. Those matters were relevant to an assessment of the national interest, but so were the implications of Australia breaching its non-refoulement obligations and returning a person to his country of origin where there was an accepted risk that he would be killed.

…

134    It may be noted that the Acting Minister stated at [112] of his statement of reasons that he had given “considerable weight” to the risk that the applicant would be killed if he were returned to his country of origin, but he concluded that the existence of non-refoulement obligations in this case was outweighed by the national interest considerations which he had taken into account. The difficulty with this approach, in the particular circumstances of the applicant’s case, is that consideration of Australia’s non-refoulement obligations and the implications for Australia if those obligations were breached were only weighed in the balance by the Acting Minister when it came to the question of how he should exercise his residual discretion. It is worth reemphasising that s 501A(2) is structured in a way which highlights the distinct and separate pre-conditions to the exercise of the Minister’s power to refuse to grant a visa to a person. On the proper construction of s 501A(2), and having regard to the Acting Minister’s findings that refusing the applicant a visa and returning him to his country of origin would put Australia in breach of its non-refoulement obligations and expose the applicant to the risk of being killed, the Acting Minister, acting reasonably and with a correct understanding of the law, ought to have addressed those matters at an earlier stage of the decision-making process and before he addressed his residual discretion. Having regard to Australia’s reputation in the international community and its obligations under international law, breach of Australia’s non-refoulement obligations and the ramifications thereof were relevant to the Acting Minister’s assessment of the national interest at an earlier stage of the decision-making process. The structure of s 501A(2) is significant.

…

136    In my view, the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis. The error can be described alternatively as reasoning unreasonably or failing to act upon a correct understanding of the law. The Acting Minister’s decision to, in effect, defer consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process (i.e. as to how his residual discretion should be exercised), meant that, when it came to weigh national interest considerations against other matters which were favourable to the applicant, the weighing was distorted. This was because the Acting Minister’s assessment of the national interest could have been different if he had factored into his assessment of the national interest the implications of Australia acting in breach of its international non-refoulement obligations. In other words, if the Acting Minister had directly confronted this issue in the earlier stage of his decision-making when assessing the national interest, there was at least a possibility that he may have given different weight to the national interest when subsequently balancing it with other considerations which were relevant to the exercise of his residual discretion. Further, there was at least a possibility that the Minister may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest and, if the precondition in s 501(2)(e) to the exercise of his power was not met, would not have progressed to consider his residual discretion.

Minister’s first contention: the decision in CWY20 is plainly wrong

106    The Minister submitted that Griffiths J’s finding in CWY20 that the Acting Minister’s assessment of the national interest was legally unreasonable or was not based on a correct understanding of the law was (with respect) plainly wrong and the Court should not consider itself bound to follow that judgment were it otherwise to consider that judgment relevant to the issues that arise for consideration in this case. The Minister relies on four bases for this contention.

107    First basis: there is an irreconcilable tension between Griffiths J’s conclusions in CWY20 and long-standing authority.

108    The Minister accepts that his satisfaction as to the national interest under s 501A(2)(e) of the Migration Act must be attained reasonably as found in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson; Ex parte Taylor) at [167] (Gummow and Hayne JJ, Gleeson CJ agreeing). However, he submitted that Griffiths J erred by extrapolating from that uncontested proposition a permission for the Court itself to determine the parameters and content of the national interest; that was a matter Parliament reserved for the Minister’s determination. He says that the Court had no authority to second-guess the Minister’s identification of the factors that require consideration in any particular case, yet that is what his Honour effectively did.

109    In saying that there is clear authority against the approach adopted in CWY20, the Minister relied on:

(1)    Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 (Gbojueh) at [43]-[44] (Bromberg J) (emphasis in submissions):

43    The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship (2011) 125 ALD 57 at [12] and [32] (Katzman J); Maurangi v Bowen [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gumow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44    The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

(2)    Observations made by Tracey J in MZAGK v Minister for Immigration and Border Protection [2014] FCA 1190; (2014) 226 FCR 311 (MZAGK) at [34]-[35]. I note that these remarks were made after Tracey J referred to Gbojueh at [43]-[44], Huynh at [74], the fact that a majority of the High Court approved that passage in Nystrom at 606, and the authorities relied on by the Minister in his Reasons as R[15]-[17] (see [47] above) being Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 (Heerey, Lindgren and Emmett JJ), Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 (Madafferi) at [86] and Re Patterson; Ex parte Taylor at [79]. At [34]-[35], Tracey J said:

34    These decisions emphasise the breadth of the power conferred on the Minister by s 501A of the Act. If the Minister is entitled to form the view that it is not in the national interest for a visa holder to be allowed to remain in Australia solely because of the serious nature of the crime or crimes of which the person has been convicted, it is difficult to discern a principled basis upon which the exercise of the power (either in determining where the national interest lies or in the exercise of the residual discretion) should be fettered by Court-imposed requirements that additional matters must be taken into account. The protective nature of the power is not compromised by such restraint. Indeed, it may be enhanced. The approach reflected in these authorities ensures that the Minister is not required to speculate on the degree of likelihood of the visa holder re-offending should he be permitted to remain in Australia. If the offence of which the visa holder stands convicted is open to be characterised as serious, the Minister will be able to decide (as he has done in the present case) that a risk exists and that any risk of re-offending is unacceptable and should be avoided.

35    If the Minister were required to pass beyond an assessment of the seriousness of the offending in determining whether it is in the national interest to exclude a visa holder or in exercising the discretion conferred by s 501A questions would necessarily arise as to precisely what additional matters the Minister should take into account and how tightly they should be defined. It is one thing to require the Minister to consider the potential for harm to the Australian community should the visa holder remain part of it; it is another, altogether, to prescribe the manner in which the Minister must undertake such a consideration.

(3)    Coherence between the views expressed by Tracey J and those of Jessup J in Leiataua v Minister for Immigration and Citizenship [2012] FCA 1427; (2012) 208 FCR 448 (Leiataua). Justice Jessup rejected an argument based on what was said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 that, in a case where children are involved either as victims of crime or as family members of the person concerned, it was not enough for the Minister to consider the prospect of harm to them as a general discretionary matter, but it was a mandatory consideration in relation to the determination of the national interest in a decision made under s 501A(2). While the Minister relied only on Leiataua at [21], it is useful to set out [22] as well:

21.    Uninstructed by authority, I would not accept that submission. Giving content to the “national interest” has been left by the terms of s 501A(2) to the Minister. While it might be possible to conceive of a case where a particular fact relied on by the Minister was so conspicuously irrelevant to any concept of the national interest (eg that the person concerned had dandruff) so as to permit the conclusion that an irrelevant consideration had been taken into account, to perceive in this very spare, high-level, statutory formula an implicit instruction to regard some unstated fact or circumstance as essential for consideration would, in my view, be problematic. Such a perception on the part of a court would, as it seems to me, be directly antagonistic to the terms of the Act itself, which, as I say, makes the content of the national interest a matter for the Minister.

22    I take the view that, in this second ground, the applicant is seeking to impress upon s 501A(2) a construction which is informed by his own circumstances, and the needs of his own case. That is not a permissible approach. Although speaking of s 501(2) of the Act, which makes no reference to the national interest in terms, the principle with which the applicant’s second ground, as elaborated upon in the course of submissions made on his behalf, is inconsistent is that stated by Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74]:

If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed.

Likewise in the present case: it is not possible to imply into the very broad terms of s 501A(2)(e) a mandatory requirement that the Minister consider, as a factor going to the national interest, the harm that would, or could, be visited on the applicant’s own children as a result of the cancellation of his visa.

(4)    Comments made by Lander J in Maurangi v Bowen [2012] FCA 15; (2012) 200 FCR 191 (Maurangi), a case relied on by Griffiths J in CWY20. In Maurangi at [69]-[70], Lander J said:

69    Counsel for the applicant placed some emphasis on the words “sufficiently serious” [in the Full Court’s decision in Madafferi at [86]], and argued that notwithstanding the very serious nature of the applicant’s crime it was not “sufficiently serious” to justify the Minister exercising his discretion to cancel the applicant’s visa. That contention may be answered in two ways. First, the Full Court did not intend by referring to “sufficiently serious crime” to be formulating a test for when the Minister might be satisfied that it is in the national interest to refuse or cancel a visa. The test for refusal or cancellation is if the Minister thinks it to be necessary in the national interest. Secondly, it is clear from the comments of the Full Court in Madafferi and in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 that the seriousness of a person’s criminal history may be sufficient on its own to satisfy the Minister that it is in the national interest to cancel the person’s visa. In my view it is for the Minister to determine when a person’s criminal history is such that it is in the national interest to cancel that person’s visa, providing of course the Minister exercises the discretion reasonably.

70    The Court is not entitled to substitute its views for the Minister’s. The decision is to be made by the Executive. It has the responsibility, including the political responsibility, for deciding what is in the national interest. In Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 Kirby J said at 502-503:

However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the Minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the Minister.

(Footnote omitted)

Similarly, in Madafferi the Full Court said at [89]:

[89] … The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained reasonably.

110    The Minister acknowledged that that line of authority, with the exception of Maurangi deals with claims founded on asserted mandatory considerations. The Minister said, however, those cases make plain that it is a matter for the Minister to identify the factors relevant in a particular case to the assessment of the national interest. As said by Jessup J in Leiataua at [21], the contrary view would be “antagonistic” to the statutory context.

111    The Minister submitted that Griffiths J did not suggest that that line of authority was wrongly decided, with the possible exception of remarks made about Maurangi in CWY20 at [109]. If that line of authority is not wrongly decided, then it also follows, as a matter of logic, that it is neither an error of law nor a legally unreasonable approach, for the Minister to identify the factors relevant to the exercise of his or her power in the way the Acting Minister did in CWY20 or in this case. I note that in CWY20 at [109], Griffiths J said:

The Acting Minister placed heavy reliance upon Lander J’s reasons for judgment in Maurangi v Bowen [2012] FCA 15; 200 FCR 191 at [63] to [70]. That case involved judicial review of the Minister’s decision under s 501A(2). In response to the applicant’s contention there that the Minister had misconstrued the expression “in the national interest”, Lander J said at [67] that as long as “the Minister addresses the question whether the refusal or cancellation of a visa of a person who does not satisfy the Minister that the person passes the character test is in the national interest the Minister will have acted within jurisdiction”. At [68] to [70], his Honour referred to Madafferi, Gunner and Re Patterson. It is notable that his Honour made no reference to cases such as SZMDS and Avon Downs. It is equally notable, however, that at [71] Lander J said that there was nothing to suggest in Maurangi that the Minister acted unreasonably. Evidently, his Honour accepted that the Minister’s decision under s 501A(2) was amenable to review for unreasonableness. For the reasons I have given above, I consider that such a decision is also reviewable on the basis whether the Minister acted with a correct understanding as to the law.

112    The Minister submitted that the fact that Australia’s international reputation and standing could have been considered (or in other cases had been considered) as a factor relevant to the national interest (see CWY20 at [121]-[122]) is not an adequate basis to support Griffiths J’s conclusions because they go no further than identifying matters that could, but need not, be considered. The Minister also says that the decision of the Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559 referred to in CWY20 at [124]-[132] does not support Griffiths J’s conclusions because they arise in a different statutory context.

113    As in CWY20, in BFM16’s case, there is nothing in the Reasons that suggests that the Minister overlooked the breadth of the term “national interest” or that he wrongly assumed that breach of non-refoulement obligations could not be considered as an aspect of the national interest. He simply focussed on other matters, as he was entitled to do.

114    Second basis: the finding in CWY20 is inconsistent with the authorities that indicate that, in some cases, the seriousness of a person’s criminal offending will be a sufficient basis for the Minister to determine to cancel or refuse a visa in the national interest, being the authorities relied on by the Minister at R[15]-[17] (see [47] above).

115    Third basis: Griffiths J erred (at [135]) in rejecting the Minister’s submission that he had given consideration to the implications of Australia’s breaching its non-refoulement obligations. The absence of a reference to the implications of Australia acting in breach of its international non-refoulement obligations in the part of the Reasons dealing with the national interest does not give rise to any such inference. The Minister conceded that the comment was obiter, but he relied on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [158]:

There is no obligation on the Minister, in determining whether or not to exercise his power under s 501(3), to advert to all and every possible consideration which may inform an assessment of the national interest in the particular case. Accordingly, the absence of any reference in this part of the Minister’s statements of reasons to the best interests of the child does not give rise to an inference that the Minister considered that, as a matter of construction, the national interest excluded the best interest of the child.

116    Fourth basis: Griffiths J erred (in CWY20 at [139]) by taking judicial notice of the fact that acting inconsistently with international law obligations and “solemn assurances” given by the then Minister in extrinsic material and in Direction 79 regarding Australia’s commitment to honouring those non-refoulement obligations may undermine confidence both within Australia and externally.

117    The Minister says that, contrary to Griffiths J’s finding at CWY20 at [139], CWY20 needed to do more than merely assert the possibility that Australia’s reputation might be adversely affected. The question of whether, and the extent to which, CWY20’s removal from Australia would result in reputational damage to Australia was not a matter of “knowledge that is not reasonably open to question” or “common knowledge in the locality in which the proceeding is being held or generally”, or knowledge “capable of verification by reference to a document the authority of which cannot reasonably be questioned”: see s 144(1) of the Evidence Act 1995 (Cth).

The Minister’s second contention: in any event, CWY20 is factually distinguishable from this case

118    The Minister says that the factual distinction is that in CWY20, the Minister explicitly stated that he did not wish to consider “alternative management options” in relation to CWY20, but no similar indication was given in this case; the Minister relies on R[117] (set out at [55] above) to say that the Minister expressly left open that option. In this case, the prospect that the Minister might take alternative action to grant BFM16 a visa of some kind meant that Australia’s international non-refoulement obligations would not, or at least might not, be breached. Justice Griffith’s finding that the Minister made an error of law by taking an unduly narrow view of the term “national interest” rested on particular facts, which are relevantly different to the facts of this case: see CWY20 at [117], [119]-[120] and [134].

BFM16’s submissions in reply

119    BFM16 made the following submissions in reply.

120    This is a case where the Reasons were provided at the time the decision was made. They can therefore be relied on to contain the matters that were in the mind of the Minister at that time. That differs from the position in Stambe. In that case, the reasons were prepared some time after the decision was made, a fact which Mortimer J regarded as critical in reducing their value in determining what was in the mind of the decision-maker at the time of decision.

121    In BFM16’s case, the Reasons provide a specific assessment of the matters taken into account in determining the “national interest”. The fact that there was material before the Minister which indicated that there would be a breach of Australia’s international non-refoulement obligations only highlights the deficiency in the Minister’s reasoning in not taking this into account in considering the “national interest”.

122    In Navarrete at [38]-[39] and [52]-[53], Allsop J made it clear that the issue was not whether the reasons and the submission should be dealt with as a single set of material to determine what the decision was; rather the issue was an anterior question of whether or not there had been procedural fairness in making the decision in circumstances where the Minister’s reasons were not an accurate reflection of Mr Navarrete’s offending and the offending was made to appear more serious than it was. It should be noted that at [42], Allsop J (as his Honour then was) said:

It is necessary now to examine the draft reasons as a recommendation or positing of an available approach. It is important to understand that I am looking at the draft reasons as a submission to the Minister and not as the reasons of the Minister.

123    Justice Perry’s decision in Maxwell at [31] is not authority for the proposition for which the Minister contends; that passage goes to whether or not the Minister had independently undertaken a review of the material before reaching a decision. Maxwell is not a case that addresses the content of the reasons for the decision; like Navarrete, it goes to the process of decision-making.

124    Further, a breach of Australia’s international non-refoulement obligations and ensuing harm to Australia’s international reputation is not properly characterised as being a specific factor personal to the visa holder. For that reason, Nystrom and Huynh are not apposite.

125    In relation to CWY20, BFM16 made the following submissions.

126    While the Minister has indicated that CWY20 is under appeal, he made no submission that judgment in this case should await the outcome of that appeal.

127    Although ground one of the amended originating application refers to the error as being a failure to take into account non-refoulement obligations in the consideration of the national interest, the ground is broad enough to encompass characterisation that the failure to do so is unreasonable or betrays an incorrect understanding of the law. The Minister did not make any contrary submission.

128    None of the Minister’s contentions of error in the CWY20 decision would sustain a conclusion that the decision was plainly wrong. There is no dispute between the parties in this case that the law requires the Minister to form the necessary satisfaction about what is in the national interest in a legally reasonable way. It is a developing area of law. The content of what is required to reach that state of satisfaction is necessarily case specific. However, the factual circumstances in this case are not relevantly distinguishable from those in CWY20 (for the reasons set out at [133] below). In the circumstances, the Court should apply the reasoning as a matter of judicial comity: see Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [76] (French J).

129    As to the Minister’s first basis for suggesting that CWY20 was wrongly decided, the Minister relies on cases that consider whether there are factors which constitute mandatory relevant considerations in the assessment of the national interest. That is a different basis from that on which Griffiths J made his decision, which does not depend upon there being a matter inferred to be relevant based on the subject matter and scope of s 501A or on the failure to give proper, genuine and realistic consideration. Rather, it is an assessment of the bounds of reasonableness for a decision-maker who has made a finding accepting that international non-refoulement obligations exist. None of the cases on which the Minister relied in this respect addressed directly the matters which Griffiths J considered determinative and they largely predate the development of the law of legal unreasonableness.

(1)    In Gbojueh, Bromberg J was considering an assertion that the Minister had taken too expansive a view of what was relevant to the national interest and found that potential harm to the Australian community arising from the applicant’s continued presence in Australia was a mandatory relevant consideration. There was no issue of international non-refoulement obligations in that case nor was there an assertion of legal unreasonableness. In Gbojueh at [44], Bromberg J was not addressing the same issue as Griffiths J in CWY20.

(2)    In MZAGK, the grounds were whether the Minister had asked himself the wrong question by assessing whether the risk to the Australian community was unacceptable only by reference to MZAGK’s past offending and whether there had been proper, genuine and realistic consideration given where the Minister made no finding as to the type of offending he might engage in in the future. Again, there was no assertion of legal unreasonableness and there was no non-refoulement obligation in issue. The comments made by Tracey J on which the Minister relied were made in the context of distinguishing that case from a decision dealing with s 501(2) and thus not turning on questions of the national interest. Justice Tracey (at [35]) expressly stopped short of making any statement as to what might be necessary in a consideration of the national interest.

(3)    In Leiataua, Jessup J found that the issue of whether the applicant’s children would be harmed if he was deported was a matter that need not be considered in determining the national interest having regard to Huynh at [74], because it was a matter personal to the applicant. However, relevantly to BFM16’s case, in CWY20 at [92], Griffiths J found that:

… the issue of Australia’s non-refoulement obligations has a much broader character than a matter which is entirely specific to a visa holder or visa applicant, such as the circumstances surrounding the offence for which the person has been convicted. It is important to bear in mind that Australia’s non-refoulement obligations are not owed to the visa holder or visa applicant, but to the international community.

(4)    In relation to Maurangi, in CWY20 at [109], Griffiths J notes that Lander J said (in Maurangi at [71]), that there was nothing to suggest that the Minister had acted unreasonably in that case and Griffiths J reasoned that Lander J thereby accepted that the Minister’s decision under s 501A(2) was amenable to review for unreasonableness. The issue of non-refoulement obligations was not raised in that case.

(5)    The Minister’s submission set out at [111] above would justify the Minister identifying any matter, no matter how obscure, as being the complete content of the national interest in any particular case. That is contrary to Re Patterson, ex parte Taylor at [167] and Madafferi at [89].

130    As to the Minister’s second basis for suggesting that CWY20 was wrongly decided, it is true that in some cases, the seriousness of the person’s criminal offending will be a sufficient basis for the Minister to determine to cancel or refuse a visa in the national interest, but not in all cases. It will not be sufficient for the Minister to confine the consideration of the national interest to the seriousness of the criminal offending where the Minister accepts that international non-refoulement obligations are owed by Australia.

131    As to the Minister’s third basis for suggesting that CWY20 was wrongly decided, where, as in BFM16’s case, the Reasons extensively set out the matters being considered in the determination of the national interest and then, at R[102] concludes that “having regard to the above” it is in the national interest to refuse the visa, the Reasons in their own terms indicate what was taken into account. The inference that matters not mentioned were not taken into account is available in these circumstances.

132    As to the Minister’s fourth basis for suggesting that CWY20 was wrongly decided:

(1)    It is implicit in the Minister’s submission that evidence that Australia’s reputation would be damaged was admissible and therefore that Australia’s reputation was to be taken into account in the circumstances; and

(2)    The point is not whether there is proof of reputational damage, the point is that it is accepted by the Minister that Australia will breach its non-refoulement obligations and thereby its obligations to other States in international law. The Minister must rationally take this into account in assessing whether he is satisfied that it is in the national interest to refuse BFM16 a visa. The extent to which there is proof that Australia’s reputation will be damaged is a matter of fact and degree for the Minister to consider. It was unexceptional for Griffiths J to take judicial notice that there may be such damage. His Honour (at [139]) founded his rejection of the Minister’s contention on a similar basis, saying:

… as Mr Wood [counsel for CWY20] pointed out in oral address, the “fact that Australia is contemplating breaching its voluntary assumed [international] legal obligations, is not rendered of no significance by any perceived difficulty in proving the precise, practical impact that that would have for Australia’s reputation.

133    The Court should not accept the Minister’s submission that the Acting Minister’s decision in CWY20 and the Minister’s decision in BFM16’s case are critically factually different because the Acting Minister refused to consider “alternative management arrangements” in CWY20, but R[117] indicates that the Minister would do so in BFM16’s case. In response to item 6 of the cover page: “If you decide to refuse to grant [BFM16’s] application for a Protection visa, indicate if you would like to consider alternative management options”, the Minister selected “no submission required” (see [38] above). The same thing occurred in CWY20: see CWY20 at [38].

CONSIDERATION OF THE FIRST GROUND

Overly narrow construction argument

134    The Minister’s first submission is that the first ground reflects an overly narrow reading of the Reasons. He says, in effect, that in making the national interest determination the Minister did take into account that, by refusing BFM16 a protection visa, the necessary effect of complying with ss 197C and 198 of the Migration Act was that BFM16 would be returned to his CoO in breach of non-refoulement obligations owed by Australia to the international community under the Refugees Convention. I reject that submission. The Acting Minister’s identification of the national interest, and the format of his reasons in CWY20 is relevantly the same as in BFM16’s case. I note that, in CWY20, Griffiths J dismissed the same submission by the Minister: see CWY20 at [26].

135    It is clear that the “national interest” determination was made based on the Minister’s findings concerning the violent nature and seriousness of BFM16’s past offending as discussed in sentencing remarks and evidenced by the sentences imposed and the risk to the Australian community posed by the low but not remote likelihood of his reoffending: see R[13]-[102]. There is no mention of Australia’s international non-refoulement obligations in that part of the Reasons.

136    The only available reading of the Reasons is that international non-refoulement obligations were taken into account only as an “other consideration” (in accordance with Direction 79) in relation to whether the Minister should exercise his discretion to refuse the protection visa having regard to the impact of ss 48A, 48B, 189, 195A, 197C, 198 and 501E of the Migration Act and only as they affected BFM16 (consistently with the decisions in NBMZ and Le): see R[113]-[119] and [138]. I have formed that view for the following reasons.

137    I respectfully adopt the comments made by Mortimer J in Stambe at [73]-[75] as being applicable to the circumstances of BFM16’s case, albeit that the markings in Stambe were made by hand and they were made electronically in BFM16’s case:

73    In some cases (examples appear below), draft reasons are prepared and provided to a Minister at the time of the exercise of power. The Minister then adopts them at that time. In such cases, the content of those reasons may inform more reliably what the Minister “considered”, or read, prior to deciding how to exercise a power.

74    As a general principle, I consider it reliable and appropriate to infer, consistently with the purpose and practice of ministerial briefing notes, that a Minister reads a briefing note with which she or he is provided, where that briefing note is intended to provide the Minister with sufficient information to make a decision about whether or how to exercise a statutory power. Sometimes there may be evidence which assists the drawing of such an inference, such as handwriting, or marks such as circles or underlining, by the Minister on the contents of a briefing note itself. Such evidence is not necessary for the inference to be available and drawn, but it may be persuasive.

75    Of course, the drawing of such an inference may be actively contested by admissible evidence. If it is not, then it would tend to undermine the practice of executive decision-making at ministerial level if supervising Courts were to require direct evidence that the contents of each briefing note were read by a Minister. Whether an inference should be drawn in an individual case will remain a matter for each judge in the circumstances, but for my own part I consider this an appropriate general approach.

138    In BFM16’s case, the Minister requested the Department to prepare the submission for decision. It appears that the Minister has selected options, dated and signed both the cover page of the submission for decision and the Decision Page; and signed and dated the final page of the Reasons without amendment, in each case electronically.

139    In the absence of evidence that those actions were not taken by the Minister, I accept that the inferences should be drawn that:

(1)    The Minister read the discussion in the submission for decision and the draft reasons annexed to the submission before adopting those reasons as his Reasons for the decision to refuse BFM16 a protection visa.

(2)    The Minister was therefore aware of the advice he received at S[39]-[40], [97]-[100] (set out at [41(3)] and [41(10)] above). As a result, I accept that, as part of the procedure leading up to the Minister’s decision, he was advised, at several places in the submission for decision, that returning BFM16 to his CoO would put Australia in breach of its “international non-refoulement obligations” and of the statutory consequences of refusing the visa. I consider that finding to be consistent with Allsop J’s findings in Navarrete referred to at [122]. In light of BFM16’s submissions, I should expressly state I am not finding that the Minister thereby adopted that advice, except to the extent it is fairly reflected in the Reasons. I note that items 5 and 6 of the cover page would not have aided the Minister’s understanding of the statutory consequences of a decision to refuse BFM16 a protection visa in light of Australia’s internationally owed non-refoulement obligations. Item 5 suggests that BFM16 would remain in indefinite detention and item 6 deals with alternative management options. Further, the response to item 6, appears to be inconsistent with R[117], in which the language employed appears to indicate that the issue of alternative management options is still open and acknowledges the consequences if the visa were refused and alternative management options were not adopted. It is the cover page that demonstrates active engagement by the Minister; except by signing and dating the Decision Page, there is no mark or comment on the Reasons that indicate the Minister’s engagement with them and no paragraph of the Reasons (for example, R[117]) has been struck out or modified to take account of the decision reflected in item 6 of the cover page.

(3)    By reason of having circled “noted” in relation to item 2 on the cover page and the statement at the commencement of the Decision Page (which indicates that he considered “all information [before him] provided by, and on behalf of [BFM16] in connection with the possible refusal of his application”), the Minister was aware of submissions made by Mr Kline as set out at [85] above. That assumption can further be supported by the quotations from those submissions set out at R[18] and [19] (see [47] above).

140    I also accept that it is not always the case that a conclusion can be drawn that a particular matter was not taken into account in forming a view on an issue based on the order in which material is addressed in a decision-maker’s reasons. It is also necessary to construe the Reasons in a “practical and common-sense manner” and not with “an eye keenly attuned to the perception of error”: see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 (Ayoub) at [47] (Flick, Griffiths and Perry JJ) citing Wu Shan Liang at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Neither of those factors require me to ignore the clear structure of the Reasons in this case. Reasons provided in every case must be considered by reference to the facts of that particular case: Ayoub at [47].

141    Contrary to the Minister’s submissions:

(1)    There is no assessment anywhere in the Reasons of whether an apparent breach of Australia’s international non-refoulement obligations under a long-standing international treaty may have an impact on Australia’s national interest which should be taken into account, whether that impact be reputational or otherwise.

(2)    All contextual indications in the Reasons are that Australia’s international non-refoulement obligations were not taken into account in relation to consideration of the national interest:

(a)    R[13]-[102] are set out under the major heading “National Interest”, with R[102] being set out under the sub-heading “Conclusion – national interest”. The whole of this consideration, including those passages referable to Mr Kline’s submissions (at R[18] and [19]) focussed on the seriousness of offending and likelihood of reoffending having regard to risk to the Australian community. There is no mention of international non-refoulement obligations in this part of the Reasons at all; and

(b)    R[103]-[131] are set out under the major heading of “Discretion”. R[103] states:

Having found that [BFM16] does not pass the character test and that it is in the national interest to refuse to grant [BFM16’s visa] and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to refuse to grant [him] a visa.

This demonstrates that the issue of “national interest” had already been decided before any of the issues in the discussion of “Discretion” were embarked upon, contrary to the Minister’s submissions.

(3)    I do not accept that the matters addressed in R[113]-[119] (and R[118] in particular) or the “weighing” referred to in R[138] indicate that the Minister took into account the impact on Australia’s national interest of breaching its international non-refoulement obligations with respect to BFM16. At R[118], the Minister states that he “had regard to the existence of non-refoulement obligations” and “carefully weighed this factor” against the seriousness of BFM16’s offending. In its terms, it does not recognise that the obligations are owed to other nations and the context would suggest that the Minister is considering whether BFM16 should be entitled to the benefit of the existence of “non-refoulement obligations”, not the impact on Australia’s national interest resulting from their breach. The same can be said for R[138].

Mandatory consideration and CWY20

142    The Minister’s alternative submissions (set out at [91]-[102]) are that the breach of “international non-refoulement obligations” and the possible impact of such a breach on Australia’s reputation and standing with other nations is not a mandatory consideration in making the determination required under s  501A(2)(e).

143    It is not controversial that:

(1)    The determination of whether it is in the national interest to refuse or cancel a visa under s 501A(2)(e) of the Migration Act is personal to the Minister. The discretion is a broad and evaluative one;

(2)    The text of s 501A(2)(e) does not expressly require the Minister to consider Australia’s internationally owed non-refoulement obligations;

(3)    In such circumstances, the determination of what constitutes the national interest is largely a political question: Plaintiff S156/2013 at [40];

(4)    In relation to the determination of the national interest, it is not possible to imply into the Migration Act some obligation on the Minister’s part to consider specific factors personal to the visa holder, such as the circumstances surrounding the offences they have committed: Huynh at [74] and Nystrom at [127] and the authorities cited at [108]-[109]; and

(5)    Considerations relevant to the exercise of a power depend on the nature, scope and purpose of the power, understood in its context in the Migration Act: Nystrom at [128].

144    I do not accept the submission made by the Minister recorded at [111] above. Acceptance of the correctness of those authorities does not preclude a finding of jurisdictional error in circumstances factually different from those cases. The Minister may be found to have erred where s/he misdirecting her/himself in law, or where the Minister failed to consider matters s/he is required to consider, or where the Minister took into account irrelevant matters, or where the decision is legally unreasonable, albeit that that may be difficult to demonstrate where the Minister is required to be satisfied of a matter of opinion, policy or taste: Buck v Bavone [1976] HCA 24; (1976) 135 CLR 100 at 118-119.

145    None of the decisions which considered the question of mandatory considerations on which the Minister relied was decided in a context where possible refoulement in breach of Australia’s international non-refoulement obligations was raised as an issue. Further, the 2014 Amendment Act had not been enacted when the relevant decisions were made and the Minister responsible at the relevant time had not made the solemn assurances in the second reading speech, the Explanatory Memorandum or in Direction 79.

146    Further, it is notable that the authorities on which the Minister relied in his consideration of the “national interest” at R[13]-[20] (see [47] above) and in his submissions to the Court focus on the seriousness of the offending on which the Minister relied in forming his or her view of the “national interest”. That must be because to focus on lesser criminality would not be reasonable or demonstrate a correct understanding of the law in forming the satisfaction required under s 510A(2)(e). The subjective jurisdictional fact contained in s 501A(2)(e), being the Minister’s satisfaction that refusal or cancelation is in the national interest, must be formed reasonably and on a correct understanding of the law: see CWY20 at [115]; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33] (Gageler and Keane JJ), citing Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12 at [51]-[55] (White, Perry and Charlesworth JJ) (Ibrahim) and Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54] (Robertson J).

147    Accordingly, in my view, the following propositions also apply in this case:

(1)    In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest for the purposes of s 501A(2)(e), the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment. That satisfaction is the starting point for the consideration of the exercise of discretion in s 501A(2)(e): CWY20 at [79], relying on Graham at [57]-[58].

(2)    It is important that each stage of the decision-making process (which includes the separate and distinct pre-conditions in s 501A(2)(c) to (e)) be conducted reasonably and on a proper legal basis, with a correct understanding of the meaning and application of relevant statutory concepts at each stage. The need for the Minister to adopt and apply a correct understanding of the national interest is all the more important because considerable weight will usually be given to the assessment of the national interest when that matter comes to be weighed against other considerations which are relevant in the later stage of the decision-making process, being the residual discretion: CWY20 at [137].

(3)    The legal requirements for the Minister to act reasonably and to have a correct understanding of the Act when forming the state of satisfaction required by s 501A(2)(e) are separate from any issue of mandatory relevant considerations: CWY20 at [138]; Ibrahim at [114];

(4)    A feature of the power conferred by s 501A(2) is that it must be exercised in accordance with natural justice requirements, which include an affected person having an opportunity to make representations prior to a decision being made whether or not to exercise the power. In determining whether or not he or she is satisfied for the purposes of s 501A(2)(e) that the refusal of a visa is in the national interest, the Minister must address those representations on the subject of the national interest. However, the Minister’s task is wider than that. A correct understanding of the law involves the Minister having to address any relevant component of the national interest which arises squarely on the material before the Minister: CWY20 at [117]. In this case, the submissions made by Mr Kline expressly referred to section 12.1 of Direction 79, which reflects the solemn assurances.

(5)    The issue of breach of Australia’s non-refoulement obligations owed to other nations has a much broader character than the circumstances surrounding offences committed by the visa holder, which was the factor “personal to the visa holder” in Huynh, a case concerning the exercise of power under s 501. It is important to bear in mind that Australia’s non-refoulement obligations are owed not to the visa holder or visa applicant, but to the international community. That is not to deny, however, that the question whether or not those obligations have been enlivened will necessarily involve consideration of the circumstances pertaining to a particular individual: CWY20 at [92].

(6)    The object of the Migration Act is, as stated in s 4, “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. There is a suite of provisions (including ss 5H, 5J, 35A, 36, 37A, 91A-91X and 197C) which address the issue of non-refoulement and the grant of protection visas which are intended to serve the national interest: CWY20 at [72]-[73]; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 [34].

(7)    The existence of provisions in the Migration Act which facilitate compliance with Australia’s non-refoulement obligations does not mandate it. The Migration Act does not, in effect, provide that it is only in reliance on the criterion in s 36(1C) that a protection visa may be refused. The Full Court’s remarks in BFW20 at [149] apply equally to decisions of the Minister under s 501A(2). In relation to BFM16’s reliance on Plaintiff M61/2010E at [27], the High Court noted in Plaintiff S156/2013 at [44] (in remarks equally applicable to the existence of s 197C):

There may be some doubt whether the provisions of subdiv B, which were inserted after these cases, can be said to respond to Australia’s obligations under the Refugees Convention. Indeed, that is part of the plaintiff’s complaint. This possibility does not assist the plaintiff’s argument. Rather, it would follow that the conditions for which the plaintiff contends cannot be implied on the basis of any assumptions respecting the fulfilment by Australia of its international obligations.

(8)    It has repeatedly been recognised that the grounds of review, such as legal unreasonableness and failing to act on a correct understanding of the law, may overlap: see Yusuf at [82] (McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [72] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [77] (Robertson J). In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360, Dixon J stated that jurisdictional error concerning a subjective jurisdictional fact may often be explained in alternative ways and that it “is not necessary that you should be sure of the precise particular in which [the decision-maker] has gone wrong”: CWY20 at [62].

(9)    The “national interest” is a broad and often indeterminate test, until the circumstances of a particular case come into focus: Jione v Minister for Immigration and Border Protection [2015] FCA 144; (2015) 232 FCR 120 (Buchanan J) at [17].

148    There is considerable force to the Minister’s submission that the fact that Australia’s international reputation and standing could have been considered (or in other cases had been considered) as a factor relevant to the national interest (see CWY20 at [121]-[123]) does not elevate that factor to a mandatory consideration for the purposes of s 501A(2)(e), at least not in all cases. However, that is not a sufficient reason for me to find that the decision in CWY20 is plainly wrong, especially since CWY20 did not make such a claim.

149    In my view, the first ground is made out and the appeal should be allowed for the following reasons.

150    The circumstances of this case are relevantly similar to those in CWY20 and to some extent to those in FRH18:

(1)    The solemn assurances were made at the time the 2014 Amendment Act was introduced and had not been publicly revoked;

(2)    The Minister made Direction 79 (containing 12.1(2)) under s 499 of the Migration Act reflecting the policy in the solemn assurances and it was in force, albeit that it related to decisions under ss 501 and 501CA, rather than s 501A;

(3)    Direction 79 was given to BFM16 and CWY20 to guide their responses to the Minister and in BFM16’s case it is clear that it did by reason of Mr Kline’s response;

(4)    The Minister stated at R[114] that he accepted the findings made by the relevant administrative decision-maker that Australia owed non-refoulement obligations in relation to the applicant;

(5)    The Minister made clear (in the cases of CWY20 and BFM16) that he did not wish to consider alternative management options, such as the exercise of his power under s 195A of the Act, by the way he answered item 6 on the cover page. In FRH18’s case, Rares J found (at [53]) that, notwithstanding that the Minister indicated that he wished submissions on that matter, it was “as clear as burning daylight” that the Minister had closed his mind to the possibility of granting FRH18 a visa in the future, or at least within any reasonable time after he cancelled the partner visa;

(6)    In BFM16’s case, the Minister said in his Reasons (at R[117]) that he understood that, if he did not adopt an alternative management option, a consequence of his decision was that the applicant would be liable to removal, including to his country of origin, as a result of ss 197C and 198 of the Migration Act.

151    In BFM16’s case, neither the discussion in the submission for decision nor the Reasons make any reference to the solemn assurances (even by reference to Direction 79) and, for reasons discussed later in this judgment, I am not satisfied that the Minister had, or had drawn to his attention, the full implications of the repeated references to Australia’s “international non-refoulement obligations”.

152    In my view, the solemn assurances in the second reading speech and the Explanatory Memorandum are political statements made at a critical time. That is, at the time the Government proposed the introduction of s 197C in light of the existence of s 198 and where the proposed s 36(1C) (which largely reflects Art 33(2) of the Refugees Convention) was not to be the only way in which a protection visa may be refused under the Migration Act.

153    The solemn assurances were politically necessary because of the existence of the obligations undertaken by Australia under the Convention. As Mason and Deane JJ noted in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291, ratification of such a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. The solemn assurances in the second reading speech and the Explanatory Memorandum were public statements to other nations and the Australian public that those obligations would not be breached. There is only one way those assurances could be fulfilled if the protection visa was not granted: by adopting alternative management options. When the Minister decided not to adopt those options and not to grant the visa, the performance of the officer’s duty under s 197C would necessarily mean that the solemn assurances would be breached.

154    There is no recognition in the discussion in the submission for the decision or the Reasons under the heading of “national interest” or elsewhere of the fact that a decision to refuse the visa and to refuse to consider alternative management obligations would result in the breach of the solemn assurances. Accordingly, there is nothing which indicates that the Minister had drawn to his attention or that he gave consideration to the implications of breaching these political solemn assurances in consideration of the political question of whether it was in the “national interest” to refuse a protection visa. Failure of that consideration bespeaks error in the formation of the Minister’s satisfaction as to the national interest in this case. I do not consider that Rares J was plainly wrong in his finding in FRH18 at [49] and [50] or that Griffiths J was plainly wrong in his finding in CWY20 at [136]. The fact is, the Minister did not consider this question anywhere in his Reasons, whether as to the national interest or on a discretionary basis.

155    Further, in CWY20’s case, it is clear that the Minister understood that one of the consequences of a decision to refuse CWY20 a visa was that, on his refoulement to Afghanistan, he may be killed by the Taliban and other extremist groups (see CWY20 at [33]). Importantly, BFM16’s case reveals no such clarity about the basis of Australia’s “international non-refoulement obligations”.

156    Throughout the discussion in the submission for decision and the Reasons, the phrase “international non-refoulement obligations” is used but the basis for the finding made in the 2017 AAT decision that they are owed in respect of BFM16 was never drawn to the Minister’s attention in the discussion in the submission for decision (in sharp contrast to the seriousness of offending and comments made by sentencing Courts and comments made in the 2018 AAT decision) nor was it commented on in any way by the Minister in his Reasons. How could the Minister’s state of satisfaction as to the national interest or the exercise of his discretion be properly informed without such an understanding?

157    At R[114], the Minister notes that on 27 January 2017, the AAT concluded that BFM16 had a “a fear of persecution” for reasons of his religion if he returns to his CoO. That is not what the AAT found in the 2017 AAT Decision. In fact, the AAT found (at [90]) that BFM16 had a “well-founded fear of persecution”; it is not apparent that the Minister understood that or the legal basis for that conclusion. The Minister simply accepted as a conclusion that the AAT found that BFM16 is a person in respect of whom “Australia has non-refoulement obligations”. That term is highly ambiguous as to whom those obligations are owed.

158    The submissions for decision do not draw the Minister’s attention to the 2017 AAT decision record at [87]-[89] which draw out the basis of Australia’s “international non-refoulement obligations” and the detail of why BFM16 is owed protection. The Reasons reveal no real understanding of how that Tribunal reached the conclusion that BFM16 had a “well-founded fear” or the “persecution” to which there was a “real chance” he would be subjected if he was returned to his CoO as set out below:

87    … Having given careful consideration to all of the evidence before me I therefore conclude that, in the context of the recent increase in lslamist militancy in [his CoO], there is a real chance that, if the applicant returns to [his CoO] now or in the reasonably foreseeable future, he could be harmed and possibly killed by radical lslamist elements who might seek to make an example of him as someone who has infringed the traditional boundaries of Islam by marrying a non-Muslim who visibly remains a non-Muslim and by allowing his daughter to be baptised as a Christian.

88.    With regard to whether ‘effective protection measures’ as defined in section 5LA are available to the applicant I note the advice of the Australian Department of Foreign Affairs and Trade that political manipulation and corruption constrain the rule of law in [his CoO]. The Department has said that the [CoO] Police and other security forces have responded to recent militant attacks by providing additional protection to religious minorities, forming a task force to monitor terrorist activities, and arresting terrorist and militant suspects, but that credible sources have questioned the effectiveness of these measures, noting that most of the perpetrators remain at large and highlighting dangers associated with the Government’s continued denial of the involvement of ISIL (Islamic state of Iraq and the Levant, also known as ISIS and Daesh). The Department has said that, according to the International Crisis Group, political and bureaucratic interference is a significant impediment to police efficiency and that, while senior officers are relatively well trained, well paid and occupy important positions within the bureaucracy, the lower ranks are often poorly paid, trained and equipped. I do not accept on the basis of this evidence that [his CoO] as [sic has] a reasonably effective police force as required by paragraph 5LA(2)(c) and I therefore conclude that effective protection measures are not available to the applicant in [his CoO].

89    I consider that the persecution which the applicant fears involves ‘serious harm’ as required by paragraph 5J(4)(b) of the Migration Act in that it involves a threat to his life or significant physical harassment or ill-treatment. I consider that his religion is the essential and significant reason for the persecution which he fears, as required by paragraph 5J(4)(a). I further consider that the persecution which he fears involves systematic and discriminatory conduct, as required by paragraph 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason. I consider on the basis of the evidence before me that the risk to the applicant from radical Islamist elements exists throughout [his CoO] so that the real chance of persecution relates to all areas of the receiving country as required by paragraph 5J(1)(c). I therefore conclude that the applicant has a well-founded fear of persecution as defined in section 5J and that he therefore meets the definition of refugee in section 5H.

159    The Minister cannot have given adequately informed or realistic consideration to the determination of the national interest or the weighing process which he purported to undertake in R[118] and R[138], nor can he have determined to exercise his powers on a proper understanding of the law, if, as I believe to be the case based on the materials before me:

(1)    The Minister gave no consideration to the policy reflected in the solemn assurances and the content of Direction 79 at 12.1(2) in the circumstances described above;

(2)    The discussion in the submission for decision did not draw the Minister’s attention to the basis of BFM16’s protection claims as encapsulated in the findings made in the 2017 AAT decision; and

(3)    The Minister did not adequately recognise the nature of those claims in his Reasons which form the basis of the conclusion that Australia owes international non-refoulement obligations.

CONSIDERTION OF SECOND AND THIRD GROUNDS

160    The parties’ submissions dealt with these two grounds together. By these grounds, BFM16 says that the Minister failed to address whether or not his CoO would co-operate in allowing BFM16 to return there and the consequences for BFM16 if that country did not do so.

161    BFM16 submitted that there is nothing in the material upon which the Minister relied in making his decision indicating his CoO would agree to allow BFM16’s return. In particular there is no material indicating he has a passport or the extent of any delay involved in obtaining the issue of a passport from that country. He says that without this information the true consequence of the Minister’s decision is unknown. A possible outcome could be that his CoO does not give its approval to BFM16’s return or issue a passport to him, having the consequence that he would remain in immigration detention indefinitely. The Minister did not consider that possible outcome.

162    BFM16 relied on Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 (Cotterill) at [107] and [123]-[126] (North, Kenny and Perry JJ). BFM16 submitted that the Full Court in that case found jurisdictional error because the Minister failed to take into account the possibility that Mr Cotterill could not be returned to the United Kingdom due to his medical condition with the consequence he would face indefinite detention if his visa was cancelled. BFM16 says that, because there was nothing before the Minister indicating that he had a current passport or to suggest what delay there might be in obtaining a passport, the Minister could not know the consequence of his decision to refuse him a visa. BFM16 says the Minister was required to address the possibility that BFM16’s CoO might not approve his return or provide him with a passport, and in those events, he would remain in indefinite detention. In submissions in reply, BFM16 submitted that in Atkins v Minister for Home Affairs [2019] FCAFC 159 (Atkins) (Davies, Moshinsky and Steward JJ), the Full Court found that it was appropriate for the Tribunal to consider that indefinite detention was the likely outcome if Iran was unwilling to receive Mr Atkins (a pseudonym).

163    I do not accept these submissions and prefer the Minister’s submissions that the ground is not made out because there was nothing before the Minister which indicated that there would be any “real possibility” of a legal or practical impediment to BFM16’s return to his CoO.

164    The application for a protection visa made in September 2015 indicates that BFM16 then held a passport issued by his CoO, which, unless renewed, would have expired before the Minister made the decision under review. BFM16 said that it was held by his parent or his then wife.

165    BFM16’s submissions to the Minister contained nothing to suggest that there would be any legal or practical impediment to BFM16 obtaining a new passport or to him being removed to his CoO. This is in contrast to the position in Cotterill, where Mr Cotterill’s submissions stated that he had a number of identified health conditions and it was possible that “in the event of a cancellation he may not be able to be returned to the United Kingdom due to his health condition and would face prolonged and possibly indefinite detention”: see Cotterill [117]. The Minister failed to take into account the practical situation which had been drawn to his attention by Mr Cotterill with the result that the Minister failed to take into account the legal consequences of his decision to cancel the visa under ss 189,196 and 198 of the Migration Act.

166    The discussion in the submission for decision at S[97]-[99] (see [41(10)] above) proceeds on the clear assumption that BFM16 could be removed to his CoO. I accept that in the absence of any submission or evidence to the contrary, the Minister was entitled to act on that assumption.

167    In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [106], Gummow J noted that by customary international law it is said that the State of nationality is under a duty towards other States to receive its nationals back onto its territory. At [109], his Honour noted (without criticism) that the decisions in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 and Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 had proceeded on the assumption that “once the status of an illegal immigrant was established, then expulsion or deportation would be a practicable course and that the country of nationality could be expected to discharge its international responsibilities”, an assumption not available where the person was stateless.

168    In Atkins, the fact that Iran does not accept involuntary returnees was before the Tribunal and the Tribunal considered the possibility that the cancellation of Mr Atkins’ visa might lead to indefinite detention. Those facts are far removed from the position in BFM16’s case.

169    In any event, the consequence of a decision to refuse BFM16 a protection visa would be that BFM16’s detention would continue until his removal could be arranged and the impact of continued detention on BFM16 was drawn to the Minister’s attention and referred to in the Reasons: see S[38] and [99] and R[116] and [119].

FOURTH GROUND

170    The fourth ground of review is that the Minister acted unreasonably and failed to engage in an active intellectual process in considering the legal and practical consequences of his decision in two ways set out in paragraph (a) and (b) of the ground.

171    As noted previously, the fourth ground reflects the reasoning of Rares J in BAL19 in relation to the first ground pleaded in BAL19’s case while BFM16’s fifth ground (on which he does not now rely) reflects the second ground in BAL19’s case. Justice Rares’ decision in respect of the first ground in BAL19’s case was not considered or expressly overturned in KDSP or BFW20, while his Honour’s reasoning in relation to the second ground was found to be in error.

172    In relation to the fourth ground of his application for review, BFM16 relies in particular on BAL19 at [37], [50]-[54] which are as follows:

37    Here, the Minister accepted that Australia owed the applicant non-refoulement obligations because he had a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups (at [91]-[92]). That is, the Minister found, in substance, that the applicant was a refugee within the meaning of ss 5H and 36(2)(a). The Minister did not suggest that the applicant had not satisfied the other criteria in s 36(1A). Yet, at no point did the Minister refer to s 36(1C) or explain what he understood were Australia’s non-refoulement obligations in which s 36(1C) plays a crucial role.

…

50    Refoulement of the applicant to Sri Lanka as soon as reasonably practicable, even though Australia owed him protection obligations, would be the, or a reasonable, legal and the immediate practical, consequence of a decision to refuse the visa. Contrary to what he said in [95] and [97], were he to have refused the visa, the Minister had no reasonable, available alternative to refoulement as soon as reasonably practicable, but to act in accordance with the requirements of ss 197C and 198. The Minister’s reasons at [94]-[97] were perfunctory and cursory. They did not amount to an active intellectual process that engaged at all with, let alone with the legal or practical consequence of, what his assessment of risk necessarily would entail, if he refused the visa, namely that he would have to refoule the applicant in breach of this country’s international obligations as reflected in s 36(1C).

51    The Minister’s use of the reasoning in [94]-[97] was tantamount to saying that he had considered the consequences under ss 197C and 198 of refusing to grant the visa, but disregarded them: Telstra 176 FCR at 182 [107], applying East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ, 256 [102] per Gummow and Hayne JJ. The effect of this reasoning would be to prolong the immigration detention of the applicant to further deprive him of his liberty in this country. That prolongation could only occur (having regard to ss 197C and 198) if the Minister could be, or was, considering using his non-compellable powers under s 195A to grant a visa or under s 48B to allow the applicant to make what necessarily would be a futile application for a substantive visa (because even if allowed to be made, it necessarily would be refused), thus justifying the continued detention for the purposes of that consideration: cf. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 198 [44], 200-201 [52]-[57] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. The applicant’s arbitrary detention, that both the Australian Human Rights Commission and the WGAD had found inconsistent with the applicant’s internationally recognised human rights would only be exacerbated by further delay.

52    The possibility that the Minister might consider using, or use, his non-compellable powers in that way in order to hold a person in immigration detention when there is no bona fide or rational possibility that those powers will be exercised so as to result in the grant of a visa, is beyond the Minister’s power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ (see too at 12 per Mason CJ).

53    In [94], the Minister said, in effect, that the correct understanding of the law was as he set out at [95] and [97]. He did this as a basis for not addressing (or engaging in an active intellectual process), in making his decision under s 501(1), whether the legal or practical consequence of his decision would be that he would have to refoule the applicant in accordance with ss 197C and 198. That was a material error of law since, in acting under s 501(1), he had to take into account that the legal or practical consequence of a decision to refuse to grant the visa on the basis that his reasoning process in [115]-[119] inevitably would be refoulement: NBMZ 220 FCR at 4-5 [6]-[10] per Allsop CJ and Katzmann J, 39 [177]-[178] per Buchanan J; Taulahi 246 FCR at 168 [84] per Kenny, Flick and Griffiths JJ; Cotterill 240 FCR at 48 [107], 51-52 [129]. Nor did the Minister consider in any way the purpose of the Parliament in enacting s 36(1C) as its expression of the nation’s non-refoulement obligations in respect of the acceptable danger to the Australian community of a refugee other than by his using the generic description of “international non-refoulement obligations” in his reasons. That failure also represented a lack of engagement in an active intellectual process.

54    The Minister committed a material jurisdictional error. What the Minister said in [94]-[97] of his reasons demonstrated that he did not approach the exercise of the discretion under s 501(1) on the basis that a refusal would have the legal or practical consequence of refoulement (as the direct and immediate result) that ss 197C and 198 mandated, in spite of this country’s non-refoulement obligations owed to the applicant. He acted unreasonably (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 362-363 [63]) and did not address the correct question, namely what would happen to the applicant (i.e. the legal or practical consequence) if the visa were not granted because of the “unacceptable” risk that the Minister found and, as must then happen, he were returned to Sri Lanka where, the Minister also found, there is a real chance that the applicant would be persecuted as a person who had been involved with the LTTE for 10 years.

173    BFM16 made the following submissions:

(1)    The Minister gave no consideration to the intention of Parliament in enacting s 36(1C) and making the potential danger to the Australian community of the applicant remaining in Australia as part of a process of determining whether the applicant should be eligible for the grant of a protection visa. As in BAL19, there is no reference to s 36(1C) in the Reasons. BFM16 relies on BAL19 at [37] and [53] in this regard.

(2)    While, at R[118] (see [55] above), the Minister said that he carefully weighed Australia’s non-refoulement obligations when he considered the seriousness of BFM16’s offending, the Minister did not refer to the fact that the danger to the Australian community of BFM16 remaining in Australia had been determined to be acceptable when addressing the criterion in s 36(1C). (I note that none of the materials before the Court contain an express consideration of the criterion in s 36(1C)). The Minister did not grapple with the seeming contradiction between his assessment of risk and that which had already taken place in the assessment of protection obligations.

(3)    The non-refoulement obligations referred to in R[118] are owed to other nation states. To say that non-refoulement obligations have been carefully considered is not to say that the specific harm that BFM16 had been found likely to suffer on return to his CoO had been considered.

(4)    The Minister did not attempt to engage in an active intellectual way with the risk BFM16 faced in his CoO. That harm is the practical and legal consequence of the Minister’s decision.

Paragraph (a)

174    Paragraph (a) of this ground is a contention that, the Minister failed to give consideration to the intention of Parliament in enacting s 36(1C) of the Migration Act as an expression of the nation’s non-refoulement obligations in respect of the acceptable danger posed by a refugee to the Australian community other than by using the description of “international non-refoulement obligations”. Section 36(1C) is set out at [24] above.

175    I accept the Minister’s submission that paragraph (a) of the fourth ground is misconceived.

176    The first ground in BAL19 was primarily concerned with the Minister’s reasoning regarding the possible exercise of his non-compellable powers to grant another visa: see BAL19 at [49]-[52] and the first three sentences of [53] and [54].

177    In BFM16’s case, the Minister indicated that he did not wish to receive submissions about non-compellable powers and it must be inferred from that that the Minister did not intend to exercise them. It is clear from R[116]-[117] (see [55] above) that the Minister understood that the consequence of exercising his discretion to refuse the visa where the non-compellable powers were not exercised was that BFM16 would be removed to his CoO “as soon as reasonably practicable” notwithstanding any breach of non-refoulement obligations in circumstances where the Minister accepted (at R[114]) that Australia owed non-refoulement obligations in respect of BFM16 where the receiving country is his CoO.

178    The “purpose of the Parliament” aspect of the first ground in BAL19 was explained by Rares J in BAL19 at [45]:

45    The Minister’s reasons did not explain how the risk that the applicant posed disentitled him to a protection visa when the Parliament expressly stipulated in s 36(1C) that a criterion for such a visa was that, first, a person who had not been convicted of a particularly serious crime here or overseas was eligible for the grant of the visa and, secondly, even a person [that] had been convicted of such a crime was eligible, unless the Minister also considered, on reasonable grounds, that the person was, in fact, a danger to the Australian community.

179    I accept the Minister’s submission that Rares J’s findings concerning the first ground in BAL19 were, like the second ground, premised upon the understanding that the presence of s 36(1C) in some way constrained the exercise of the power conferred by s 501(1). Justice Rares held that it was necessary for the Minister to consider and explain why he was departing from the standard “expressly stipulated” by Parliament regarding the “acceptable danger to the Australian community of a refugee” in s 36(1C): see BAL19 [45], [53].

180    That reasoning cannot stand in light of the Full Court’s decisions in KDSP and BFW20. In KDSP at [284], O’Callaghan and Steward JJ found that ss 36(1C) and 501(1) are cumulative requirements. Where an applicant fails to satisfy s 36(1C) they will not be eligible for a visa, but if the applicant satisfies s 36(1C), he or she remains subject to the Minister’s discretionary powers in s 501. A similar point was made in BFW20 at [129]. Accordingly, as ss 36(1C) and 501(1) (or, relevantly, s 501A(2)) are cumulative requirements, Parliament’s intention in enacting s 36(1C) says nothing about whether or not there is a basis for the Minister to refuse the visa under ss 501 or 501A(2).

Paragraph (b)

181    Paragraph (b) of this ground relies on the failure of the Minister to consider the practical consequences for BFM16 of being returned to his CoO.

182    What is so striking about the part of the Reasons dealing with the impact of Australia’s non-refoulement obligations on his decision under s 501A(2) (and to a similar extent in FRH18 and CWY20) referred to above is the formulaic and perfunctory nature of the consideration.

183    For the reasons given at [150]-[159] above, in my view the Reasons and the discussion in the submission for decision did not sufficiently consider the basis of the finding made in the 2017 AAT decision at [87]-[89] and this ground should therefore be allowed.

184    The Minister submitted that: The Minister specifically referred to (and accepted) the Tribunal’s finding in the 2017 AAT decision that BFM16 was a person in respect of whom Australia owed non-refoulement obligations (see R[114] at [55] above). The decision record for the 2017 AAT decision was attachment H to the submission for decision and the Minister can be taken to have adopted it. That decision record contained detailed findings as to the nature of the risk of harm BFM16 faced in his CoO. It is apparent from R[116]-[117] that the Minister considered those risks and/or harms may eventuate, acknowledging that BFM16 would be liable to be removed to his CoO “as soon as reasonably practicable”.

185    Those submissions should not be accepted.

186    Although the 2017 AAT decision was attached to the submission for decision, there is no evidence that either the writer(s) of the discussion in the submission for decision and draft reasons or the Minister had any regard to it beyond the bare finding that Australia owed non-refoulement obligations in respect of BFM16.

187    R[114] indicates that the Minister did not understand that BFM16 had a “well-founded” fear of persecution upon returning to his CoO. The Reasons make no reference at all to the risks or harms BFM16 might face on return there. As said above, the statements at R[118] and R[138] are so perfunctory that it cannot be concluded that the Minister took any account at all of the basis of the 2017 AAT’s finding so as to be in a position to consider the practical consequences of the legal decision the Minister was making in circumstances where he had refused any submissions as to alternative management options.

188    The Minister submitted that the representations to the Minister filed on BFM16’s behalf did not seek to elaborate on any risk that he might face in his CoO and said nothing more than “International non-refoulement obligations: these are owed to [BFM16]”. The Minister says that he could not be said to be obliged to consider a reason for a particular exercise of power not in fact put by the applicant. The Minister relied on remarks made by Jagot, Bromwich and Thawley JJ in Sowa v Minister for Home Affairs [2019] FCAFC 111 at [43].

The outcome in Omar, accordingly, depended on the terms of the representations which had been put to the Minister. Contrary to the appellant’s submissions, the representations in the present case are not analogous to those that are the subject of consideration in Omar. It is clear from BCR16 at [60] and [72] that there is a difference between claiming to fear harm if required to return to a place and non-refoulement obligations. In the present case, the representations by the appellant make no reference at all to non-refoulement obligations. The representations at AB 73 to 74 are about the appellant’s fear of harm if required to return to Sierra Leone. In contrast to the position in Omar, there is no reference in the representations to Australia’s practice of not returning a person to a place if non-refoulement obligations are owed and there is the potential consequence of indefinite detention. The representation is about a fear of harm if required to return to Sierra Leone, which the Assistant Minister expressly considered in his reasons. As the Minister submitted, the Minister is not required to consider a reason in favour of revocation not in fact put by the appellant: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [79(3)] and [80]. In the present case, nothing was put about non-refoulement obligations and the potential consequences of those obligations for the appellant.

189    The failing was the Minister’s, not that of BFM16 or his advisor. As I noted above, in light of the statement in Direction 79 at 12.1(2), Mr Kline’s response by reference to paragraph 12.1 that international non-refoulement obligations were owed sufficiently raised the issue. Further, as noted in the discussion in the submission for decision (see [41(8)]), Mr Kline submitted that: “If he is not going to re-offend, it cannot possibly be in the national interest within the meaning of s 501A(2)(e) of the Act for him to be refused a visa and refouled to a place of danger to his life and safety”. That submission is not referred to in the Reasons, albeit that other matters mentioned in Mr Kline’s submissions were (for instance at R[18] and [19]). There is nothing in the Reasons that demonstrates that the Minister accepted that refoulement meant exposing BFM16 to a real chance that he would be killed or otherwise subject to “persecution” as defined.

190    The Minister also submitted that, in any event, the power conferred on the Minister by s 501A(2) supplies arid ground for implying a requirement to consider any specific factors that are personal to a visa holder; the passages of BAL19 on which BFM16 relies (concerning s 501(1)) do not suggest otherwise.

191    This submission should also be rejected. It fails to recognise the obligation of the Minister to engage adequately with the application before him and the consequences of the decision being made.

CONCLUSION

192    A number of cases have reiterated what was said by Allsop CJ (with whom Markovic and Steward JJ agreed) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (emphasis added):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

193    While this case concerns a decision under s 501A of the Migration Act, in my view, those remarks apply with equal force with respect to determination of the national interest and the exercise of the discretion enlivened by that consideration. In my view, the Minister signally failed to meet these standards in this case.

194    I recognise that the Migration Act (as amended by the 2014 Amendments) does not expressly require the Minister to refrain from exercising the discretion in s 501A in breach of Australia’s obligations to other countries not to refoule non-citizens who meet the criterion in s 36(2)(a) or (2)(aa) and who are not excluded by reason of the criterion in s 36(1C).

195    However, the Reasons (and to a significant extent, the discussion in the submission for decision) are formulaic and contain no recognition that the solemn assurances had recently been made by two Ministers with responsibility for immigration (including the current Prime Minister and the Minister who made this decision); that there may be consequences for the national interest of breaching the Convention and those solemn assurances; or of the true basis of non-refoulement obligations owed in respect of BFM16.

196    The frequent incantation of the term “international non-refoulement obligations” or “non-refoulement obligations” in discussion in the submission for decision and in the Reasons obscures more than it reveals in circumstances where there was no recognition that those obligations are owed to other nations. The Reasons reveal that, in purporting to exercise a discretion enlivened by the national interest consideration, the Minister did not properly understand the basis of the finding in the 2017 AAT decision with respect to BFM16. The Minister failed to recognise that BFM16’s “fear” was “well-founded” and refused to consider alternative management options at the time he decided to refuse a protection visa despite two Tribunals having found protection obligations were owed under the Migration Act. I note that the Minister was not assisted (in a case where the criterion in s 36(2)(a) has been met and the criterion in s 36(1C) does not apply) by the terms of the cover page, particularly in the interaction between items 5 and 6.

197    As I am satisfied that grounds 1 and 4(b) are made out, the Minister’s decision should be quashed with costs.

Associate:

Dated:    31 March 2021