Federal Court of Australia

Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed with costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to bring proceedings is dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

Introduction

1    The Applicant seeks to review two decisions:

(1)    a decision made by the Respondent in VID458/2021 (the ‘Minister for Home Affairs’) on 22 March 2021 to cancel the Applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) (the ‘Act’) (the ‘cancellation decision’); and

(2)    a decision made by the Respondent in VID417/2021 (the ‘Immigration Minister’) on 6 July 2021 not to revoke the cancellation decision under s 501C of the Act (the ‘non-revocation decision’).

2    The non-revocation decision is sought to be reviewed by way of an originating application dated 22 July 2021, which is within time.

3    The cancellation decision is sought to be reviewed by way of an application for an extension of time which was filed on 12 August 2021, being 143 days after the cancellation decision or, by reference to s 477A of the Act, 108 days out of time. The Minister opposed the extension of time application.

4    On 26 November 2021, the Applicant filed amended applications in both proceedings. It was on the basis of the amended applications that both proceedings were argued by the parties, although Ground 4 in VID458/2021 was abandoned by the Applicant prior to the hearing.

Background

5    The Applicant is a citizen of Cambodia who previously held a Class WA Subclass 010 Bridging A visa entitling him to reside lawfully in Australia. The Applicant arrived with his mother in Australia in May 2015 at 14 years of age. Since then, he has committed a number of crimes. Most relevantly, in 2018, he was convicted of various offences and sentenced by the Melbourne Children’s Court to be detained in a Youth Justice Centre for 18 months.

6    The Applicant was first dealt with by the Australian criminal courts on 18 August 2017, at 16 years of age, for aggravated carjacking causing injury to a person. There followed a series of dispositions before the Children’s Court in 2017, 2018, 2019 and 2020, ranging from driving offences, aggravated carjacking, making a threat to kill, contraventions of a family violence intervention order and sexual assault of his mother, and assault of a police officer and emergency worker.

7    The Applicant was dealt with by the Children’s Court for his most serious offending on 24 August 2018, when the Applicant was 17 years of age. He was convicted of two charges of assault by kicking, possession of a controlled weapon without excuse, two charges of intentionally causing injury, two charges of robbery, affray, attempted robbery, committing an indictable offence while on bail, and unlawful assault. The offences related to unprovoked attacks and robberies on tourists who had attended the Australian Open tennis championship. One of the victims was put in an induced coma and ultimately required six plates to be inserted to connect the right side of his face to his skull, as well as two titanium plates in the left side.

8    For those offences, the Applicant was convicted and ordered to be detained in a Youth Justice Centre for a period of 18 months (as an aggregate sentence). He was released on parole on 1 July 2019.

9    On 22 April 2020, the Minister for Home Affairs cancelled the Applicant’s visa under s 501(2) (to which the rules of natural justice apply) on the basis that he did not pass the character test by the operation of s 501(6)(a) of the Act owing to his ‘substantial criminal record’. The Applicant was placed into immigration detention.

10    On 7 October 2020, on an application for judicial review, this Court quashed the first cancellation decision by consent on the basis that “[t]he Minister fell into jurisdictional error by failing to give active and intellectual consideration to the applicant’s claim that he would experience harm (outside of the non-refoulement framework) in his home country of Cambodia”. Following the Court’s order, the Applicant was released from immigration detention. Since that time, the Applicant’s National Criminal History Check does not indicate any further criminal incidents.

11    On 22 March 2021, the Minister for Home Affairs again cancelled the Applicant’s visa, this time under s 501(3) (to which the rules of natural justice do not apply) on the basis that he did not pass the character test – by the operation of s 501(6)(a) of the Act owing to his ‘substantial criminal record’ – and that the cancellation was in the ‘national interest’.

12    On 25 March 2021, the Applicant was given notice of the cancellation decision and invited to make representations in respect of its revocation.

13    On 29 March 2021, the Applicant made representations seeking revocation of the cancellation decision.

14    On 6 July 2021, the Immigration Minister decided not to revoke the cancellation decision under s 501C(4).

15    I understand that the Applicant has been in immigration detention since the cancellation decision.

16    As already indicated, on 22 July 2021 the Applicant applied for judicial review of the non-revocation decision, and on 12 August 2021 the Applicant applied for an extension of time in which to seek judicial review of the cancellation decision. The Minister opposed the extension of time not only on the basis of the Applicant’s inadequate explanation for the delay, but also on the basis that the proposed grounds of review lacked merit.

17    I will proceed to deal with the merits of the proposed grounds of review without considering the delay, as for the reasons that follow I have come to the clear view that the proposed grounds of review lack merit.

The section 501(3) cancellation decision and the s 501C(4) non-revocation decision

18    Section 501(3) of the Act is as follows:

(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.

…

(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).

(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

…

(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.

19    As a result of the cancellation decision made by the Minister, the Applicant’s application for a partner visa was also refused by operation of s 501F(2).

20    The Minister's statement of reasons for the cancellation decision first dealt with “preliminary matters” relating to the nature of the cancellation power under s 501(3), including the alternative cancellation power under s 501(2) and certain consequences of the exercise of s 501(3). The Minister had regard to the representations made by the Applicant prior to the Minister’s s 501(2) cancellation decision in April 2020.

21    The Minister then considered the “character test”. The relevant ground of the character test considered was s 501(6)(a), being that the person has a “substantial criminal record” (as defined by s 501(7)), with reference to s 501(7)(c), being that the person has been “sentenced to a term of imprisonment of 12 months or more”. On the basis of the Children’s Court’s conviction and detention of the Appellant on 24 August 2018 referred to earlier, the Minister “reasonably suspected” that the Applicant did not pass the character test. It ought to be noted that the Applicant, in representations sent to the Minister by his former migration agent prior to the April 2020 s 501(2) cancellation decision, had conceded that he had been “sentenced to a term of imprisonment of 12 months or more”.

22    The Minister then considered the “national interest”. The Minister had regard to the following matters under that heading:

•    the seriousness of the Applicant’s criminal and/or other serious conduct, the circumstances and nature of the conduct, and any disposition imposed by the court in respect of the criminal conduct;

•    the risk of the Applicant reoffending and/or engaging in other serious conduct, and the harm which could flow if such a risk eventuated; and

•    the expectations of the Australian community.

23    The “other serious conduct” considered included the Applicant’s gang membership, pending charges against the Applicant, current intervention orders against the Applicant in relation to association with his 16 year old female partner at that time (due to her being a minor and her intellectual disability), and previous incidents in immigration detention.

24    In considering the risk of the Applicant re-offending, the Minister considered the Applicant’s submissions received prior to the s 501(2) cancellation decision made concerning mitigating factors, namely:

•    the Applicant’s difficult personal circumstances, including the death of his father at six years of age and, following his mother re-marrying and moving to Australia in May 2015, abuse by his step-father, an unsafe home environment; his mother moving to another state for work and his mother separating from his step-father. It was in that context that it was submitted that the Applicant began drinking alcohol and using drugs, and engaging in criminal behaviour with friends;

•    his intellectual disability recognised by the Department of Health and Human Services, being “sub-average general intellectual functioning and significant deficits in adaptive behaviour”;

•    his psychiatric and mental health issues, including auditory hallucinations and depression, for which he was previously treated with prescribed medication; and

•    the Applicant’s alleged remorse and change in behaviour since his detention in the Youth Justice Centre and participation in counselling.

25    The Minister then considered other factors relevant to his overall discretion to cancel the visa under s 501(3). These considerations included:

•    the best interests of minor children – the Applicant did not have any children of his own, but was at that time in a relationship with a 16 year old woman;

•    the strength, nature and duration of the Applicant’s ties to Australia;

•    the extent of impediments facing the Applicant if he were removed to Cambodia, in particular in relation to the lack of family or social support there, the Applicant’s intellectual disability and mental illness, the potential for the Applicant to become homeless, and the Applicant’s criminal history; and

•    international non-refoulement obligations that Australia may owe the Applicant, having regard to the same factors as detailed in the point above

26    The Minister found with respect to each of the Applicant’s claims that non-refoulement obligations were not engaged, and also considered the prospect and potential effect of indefinite detention on the Applicant. The Minister also noted the Applicant’s continued entitlement to apply for a protection visa.

27    In forming his final conclusion regarding the cancellation decision, the Minister assumed in favour of the Applicant in respect of whether he was owed non-refoulement obligations, but nevertheless ultimately found that the “considerations favouring non-cancellation were insufficient to outweigh the serious national interest considerations”.

28    Section 501C of the Act relevantly provides as follows:

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the person satisfies the Minister that the person passes the character test (as defined by section 501).

29    Following the cancellation decision, the Applicant made further representations to the Immigration Minister in relation to both the character test and discretionary factors in seeking revocation of the cancellation decision.

30    The Immigration Minister’s statement of reasons set out the Applicant’s representations. However, the Immigration Minister was not satisfied that the Applicant passed the character test, and confirmed the Minister’s previous finding on the basis of s 501(7)(c). Accordingly, the Immigration Minister considered that his power to revoke the cancellation decision under s 501C(4) was not enlivened.

31    I will now deal with the grounds as pressed in the amended applications.

Ground 1 in VID458/2021 – section 501(3) decision was unreasonable

32    By this ground, the Applicant alleges that:

In exercising the power to cancel the Applicant’s visa under s 501(3) of the Act the Minister acted unreasonably.

Particulars

i.    In exercising the power to cancel the Applicant’s visa under s 501(3), the Minister deprived the Applicant (and the public) of natural justice, the predictability and constraint of a s 499 direction, and merits review.

ii.    If the Minister had exercised the power to cancel the Applicant’s visa, personally, under s 501(2), the Applicant (and the public) would only have been deprived of the predictability and constraint of a s 499 direction and merits review, but not natural justice.

iii.    If the Minister had exercised the power to cancel the Applicant’s visa under s 501(2), by a delegate, the Applicant (and the public) would have been afforded natural justice, the predictability and constraint of a s 499 direction, and merits review.

iv.    There was no evident and intelligible justification for the exercise of the power to cancel the Applicant’s visa under s 501(3), rather than s 501(2).

33    In summary, the Applicant asserts that the Minister’s decision to exercise the cancellation power in s 501(3) (with all of the consequences that follow) rather than s 501(2) was legally unreasonable in the circumstances of this particular case. The argument rests on the proposition that where Parliament confers general power X and specific (more extreme or draconian) power Y, Parliament intends that power Y not be exercised in circumstances where it is unreasonable not to proceed under power X. The submission is said to derive from the straightforward application of the implied constraints of reasonableness.

34    The Applicant submitted that the following matters of the statutory context of s 501(3) properly inform the Court’s consideration of the content of the obligation to exercise that power reasonably.

35    First, s 501(3) appears in the same provision as s 501(2), both of which were introduced in 1998 by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) (‘1998 Amendment Act’), after which time the essential textual structure and context has remained the same. It was submitted that the provisions must be understood to be directed to the same broad objective. The complementary, but not identical, nature of the powers in s 501(2) and (3) was said to be confirmed by the fact that their enabling criteria ‘overlap’, referring to Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 (‘Chetcuti’) at [22].

36    Then it was submitted that within the overlapping scheme of the provision, s 501(3) was intended to be used to allow “the Minister, acting personally, … to act decisively” in “exceptional or emergency circumstances” where the non-citizen is a “significant threat to the community”: see Commonwealth House of Representatives, Parliamentary Debates, 2 December 1998, p 1229, 1231 (Philip Ruddock).

37    It was submitted that of the powers in s 501, s 501(3) has the most serious consequences for a visa holder or applicant. These include not just the final consequence of visa cancellation (or refusal) – which is common to all powers in s 501 – but also the procedural consequence of a denial of procedural fairness. The significance of such a consequence, and the exceptional nature of the power to bring it about, is said to derive from modern administrative law’s insistence on natural justice not just to protect individual interests but also to improve the quality of administrative decision making. The seriousness of these consequences is a general background matter against which the content of the reasonableness obligation must be assessed.

38    Finally, it was submitted that the personal ministerial powers in s 501 must be understood in light of the closely neighbouring provision in s 499, which was also introduced in its current form by the 1998 Amendment Act. Section 499 empowers the making of ministerial directions to guide – in a binding way – the decision-making of delegates. When it was introduced at the same time as the current form of s 501, s 499 was said to be designed to “improve” decision making, “to ensure a consistency of approach” (see Commonwealth House of Representatives, Parliamentary Debates, 2 December 1998, p 1229, 1230 (Philip Ruddock)) and to “lead to greater certainty for applicants” (see Senate Legal and Constitutional Legislation Committee, Report on the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1997 (1998) [3.5]). The significance of all of this was said to be that at the very time Parliament was conferring exceptional or emergency ministerial powers to make personal decisions, it was also emphasising the importance, in all other cases, of adherence to more consistent decision-making frameworks.

39    Therefore, it was submitted that there was nothing in the circumstances of the Applicant to provide an evident and intelligible justification for the exercise of the power in s 501(3) with all of the attendant statutory consequences (including the denial of procedural fairness, lack of merits review and the predictability and constraint of a s 499 direction). It was submitted that this was not the “exceptional or emergency" case to which s 501(3) was directed, nor was there any particular urgency such as to render reasonable the decision to proceed under s 501(3). It was pointed out that the Minister had previously elected to proceed under s 501(2) rather than s 501(3) in respect of this Applicant, which indicates lack of urgency, and there had not been any change of circumstances since the quashing of the s 501(2) cancellation decision.

40    I do not accept these submissions.

41    The powers vested in the Minister by s 501 should not be interpreted impliedly to restrict each other. As a Full Court of this Court has recently observed in Chetcuti at [22]:

Suffice it to say, as a matter of construction, s 501 of the Act does not confer but one visa cancellation power. It confers separate visa cancellation powers, the enabling criteria for the exercise of which overlap but which are not identical. It is not apparent that the exercise of one is intended to restrict the exercise of the other.

42    The Full Court of this Court in Burgess v Assistant Minister of Home Affairs (2019) 271 FCR 181 at 195-196; [2019] FCAFC 152 at [67]-[68], [71]-[72] (‘Burgess’) per White and Charlesworth JJ elaborated on the Minister’s visa cancellation powers under s 501 of the Act:

[67]    We do not otherwise consider the judgment in SZSSJ to support the proposition that the “choice” between alternative courses of decision-making available under s 501 of the Act is to be characterised as a decision that is reviewable.

[68]    We consider it unnecessary to dwell on that question in any event. Labelling the Assistant Minister’s election between alternative sources of power in s 501 as a “decision”, a “personal procedural decision” or an “antecedent decision” does little to inform the substantive question that arose on the application for judicial review and that now arises on the appeal. The relief sought on the originating application was an order in the nature of certiorari quashing the cancellation decision on the basis that it was affected by jurisdictional error. The Cancellation Decision is clearly amenable to review, including on the grounds of legal unreasonableness: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. The question to be determined is whether the Assistant Minister’s exercise of the power conferred by s 501(3) was affected by jurisdictional error because of a prior election (lacking an evident and intelligible foundation) to consider first the exercise of that power.

…

[71]    The question of whether the Assistant Minister exercised his powers according to law and within the limits set by the subject matter, scope and purposes of the Act is informed by the following features of the statutory scheme:

(1)    The power under s 501(3) of the Act is conditioned on the Minister being satisfied that cancellation of the visa is in the national interest whereas the power under s 501(2) is not. The question of what the national interest requires is non-delegable. The Act evinces a clear intention that the visa holder have no entitlement to be heard with respect to that question. … ;

(2)    The discretionary power to cancel a visa under s 501(3) is enlivened upon the conditions in s 501(3)(c) and (d) being fulfilled. The Minister’s state of mind with respect to each condition may lawfully be formed without affording the visa holder an opportunity to be heard and without pausing to consider whether the criteria for the exercise of an alternative source of power may or may not be fulfilled;

(3)    Section 501 contains no express requirement that the Minister first give consideration to the exercise of the power conferred by s 501(2) before giving consideration to the exercise of the power in s 501(3), nor does any such requirement arise by implication;

(4)    Parliament has conferred alternate powers without expressly identifying any criteria against which any choice between them should be made;

(5)    The Act neither expressly nor impliedly requires the Minister to make any value judgment about which course of decision-making would be preferable from the visa holder’s perspective;

(6)    As Mr Burgess correctly contended, nothing in s 501(3) of the Act obliges the Minister not to accord procedural fairness in a particular case in any event… The “election” between alternate powers is an election between a course in which natural justice must be afforded (s 501(2)) and a course in which natural justice may be afforded (s 501(3)). As such, any “anterior decision” to proceed under s 501(3) would not necessarily encompass a decision not to accord natural justice; and

(7)    There would be an incongruity in the statutory scheme if the Minister was obliged to accord natural justice to a visa holder before making a decision under s 501 to exercise a power which does not require the provision of natural justice.

[72]    It follows from all of these considerations that the decision by the Assistant Minister to consider the exercise of the power under s 501(3) was not conditioned by a requirement that he express an intelligible basis for doing so. More particularly, the power conferred by s 501(3) is not subject to an inviolable condition that the Minister first identify an intelligible basis for not exercising the alternative power in s 501(2).

43    In my view, the observations by White and Charlesworth JJ are determinative against the submissions of the Applicant, which had particular regard to the deprivation of natural justice, as well as of the benefits of the ministerial direction and of merits review as a consequence of the Minister’s choice to exercise s 501(3).

44    As recognised in Burgess in the extracted quotation above (point (6)), the election of s 501(3) is not necessarily to be equated to a decision to deny natural justice, given the Minister is not obliged to, but still may, afford natural justice under s 501(3). However, in this case, the Minister in fact did not afford to the Applicant an opportunity to be heard immediately prior to the s 501(3) cancellation decision, although it ought to be noted that the Applicant had received an opportunity to be heard prior to the s 501(2) cancellation decision in April 2020.

45    While the election to proceed under s 501(3) does deny the obligation to afford natural justice, the benefit of merits review and the decision being subject to ministerial direction, those consequences are a necessary incident of the existence of s 501(3), which power the Parliament has decided to repose personally in the Minister. As Perry J observed recently in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 (‘EPU19’) at [243] (emphasis added):

As the Minister submits, the applicant’s complaint on this ground is not that the Minister refused the grant of his visa, but rather about the antecedent step by the Minister to exercise the powers vested in him personally to consider whether to refuse the grant of the visa under s 501, rather than leaving it to a delegate to make the decision. Yet the Parliament has chosen the Minister as the primary repository of that power, with the option under s 496 for the Minister to delegate this power, among others. As the Minister also submits, if the Minister should decide to exercise the power personally, that is simply a function of the Parliament’s legislative decision. There is nothing in the legislative scheme, and no aspects identified by the applicant to suggest otherwise, that a choice by the Minister to exercise the power personally should bear upon the validity of her or his decision to refuse a visa under s 501 of the Act.

46    In my view, it is clear that the Minister was under no obligation to consider the legal or procedural consequences as an antecedent matter in selecting to exercise the power to cancel the Applicant’s visa under s 501(3) as opposed to s 501(2), and in the circumstances of the Applicant’s case, the Minster’s exercise of the power under s 501(3) was not unreasonable. Ground 1 has no merit.

Ground 1A in VID458/2021 – failure to consider legal consequence of decision

47    By ground 1A, the Applicant alleges that:

In the alternative to ground 1, in exerc[is]ing the power to cancel the Applicant’s visa under s 501(3) the Minister failed to take into account a mandatory relevant consideration, namely, the legal consequences of exercising the power, in particular, the consequence that the Applicant (and the public) was deprived of the predictability and constraint of a s 499 direction.

Particulars

(i)    The legal consequences of decisions made under the Act are a mandatory relevant consideration.

(ii)    One legal consequence of the decision to cancel the Applicant’s visa under s 501(3) was that the Applicant (and the public) was deprived of the predictability and constraint of a s 499 direction.

(iii)    The Minister did not take into account or otherwise consider this legal consequence.

48    The above ground is similar to Ground 1 in its focus on a procedural consequence of the Minister’s exercise of his s 501(3) power. To the extent that Ground 1A overlaps with Ground 1 in impugning the Minister’s choice of which s 501 power to exercise having regard to the procedural consequences of that choice, for the same reasons as for Ground 1, Ground 1A must fail. This section addresses Ground 1A to the extent that, rather than challenging the reasonableness of the choice of which power to exercise, it challenges the Minister’s consideration of a particular procedural consequence of the s 501(3) cancellation decision.

49    It was submitted that in proceeding personally under s 501(3) rather than by a delegate under s 501(2), the Minister failed to consider a legal consequence of his decision, namely the fact that by doing so the Minister would deprive the Applicant (and the public) of the predictability and constraint of a direction under s 499. It was submitted that the predictability that flows from a s 499 direction is that the Applicant and the public know with some precision the considerations that will inform what is otherwise a broad and general discretionary power. This predictability is a benefit not just to an applicant (the person most affected by the decision) but also to the public at large, as it increases consistency and transparency in administrative decision-making. It was pointed out that the constraints imposed by a s 499 direction are, essentially, that such a direction imposes a duty to have regard to certain matters, non-compliance with which may be enforced by judicial review for jurisdictional error. However, the Applicant did not elaborate on which specific features of the applicable ministerial direction (at the time of the cancellation decision, Direction No. 79) the Applicant was purportedly deprived of.

50    Referring to NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 at [9] (Allsop CJ and Katzmann J), it was submitted that the failure to consider a legal consequence of a decision is a well-established species of jurisdictional error, such that:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

Reference was also made to NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 at [2] (Allsop CJ and Katzmann J), [107]–[108], [125]–[127] (Buchanan J).

51    In these cases, the Full Courts were dealing with the consequence of the relevant decisions upon the particular applicants in question, who would need to be removed from Australia as soon as reasonably practicable or face indefinite detention. The consequences in the above cases (indefinite detention pending removal) arose directly from Australia’s obligation of non-refoulement and the legal framework under the Act as a consequence of the Minister’s decision, and were also substantial consequences in ‘human terms’. The Minister in this case did to some extent address the prospect of indefinite detention of the Applicant at [205] of his reasons (although, according to Ground 5(b) of the Applicant’s case, insufficiently so, which I will return to later in these reasons).

52    Similar to this proceeding, the Full Court of this Court considered the Minister’s duty to take into account the legal consequences of a s 501(3) cancellation decision, including the procedural consequences of the decision, in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 at 168 [84] per Kenny, Flick and Griffiths JJ (emphasis added):

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision. There is no difference in this regard between an exercise of power under s 501(1) of the Migration Act and an exercise of power under s 501(2) or s 501(3) [citation omitted]. Furthermore, at a functional level, the human consequences of a decision under each of these three provisions may be equally grave. The difference between them is that the possibility that the Minister may act without regard to a decision’s human implications is more likely under s 501(3) than under s 501(1) and (2), because of the absence of a procedural fairness requirement with respect to decisions under s 501(3) (see s 501(5)), with the result that the Minister may lawfully make a decision under s 501(3) without the benefit of any information the visa holder might contribute. It follows that, in making a decision under s 501(3), the Minister is obliged to take into account the direct and immediate statutory consequences of the decision. These consequences include those set out in s 501C, which in terms applies “if the Minister makes a decision under subsection 501(3) … to … cancel a visa”.

53    The Full Court summarised the statutory consequences of the s 501(3) decision pursuant to s 501C at 160 [50]-[51]:

[50]    Where the Minister cancels a visa under s 501(3) there is no opportunity for a visa holder to inform the Minister of the matters, including serious human considerations, which may bear on the Minister’s consideration of whether, as a matter of discretion, a visa ought not be cancelled. The rules of natural justice do not apply to a decision made under s 501(3): see s 501(5). Instead, s 501C(3) provides that, as soon as practicable after the decision under s 501(3) is made (subject to exceptions not applicable here) the Minister must invite the visa holder to make representations to the Minister “about revocation of the original decision”, within the period and in the manner required. The effect of s 501C(4) is, however, that the only basis for revocation of a decision under s 501(3) is that the affected person satisfies the Minister that he or she in fact passes the character test, as defined in s 501(6)…

[51]    The result is that, although s 501C(3) contemplates that a former visa holder whose visa has been cancelled under s 501(3) will have an opportunity to make representations about the revocation of the cancellation decision, the only relevant representations are those that relate to satisfaction of the character test. Because of the definition in s 501(6), however, the application of the character test does not generally allow for any nuanced judgment. Representations about matters that might incline the Minister to revoke the decision as a matter of discretion, even though the former visa holder is unable to satisfy the Minister that he or she passes the character test, cannot under the statutory regime applicable to a decision under s 501(3), form a basis for revocation. Bearing in mind that the rules of natural justice have no application to a decision made under s 501(3), a person whose visa has been cancelled under s 501(3) has therefore no statutorily-conferred opportunity at any stage of the process to persuade the Minister that a visa should not be cancelled on discretionary grounds…

54    Having regard to the above, I accept that the Minister was required to consider the “direct and immediate statutorily prescribed consequences” of the s 501(3) cancellation decision he was contemplating. The Minister’s reasons indicate that the procedural consequence discussed above – the denial of an opportunity to be heard or to comment prior to the cancellation decision – was considered by the Minister: see [5]-[12] and [66]. The Minister specifically considered the revocation framework under s 501C and also whether to provide the Applicant with an opportunity to comment on matters other than the operation of the character test.

55    In this Ground 1A, the “legal consequence” particularised is the Applicant being deprived of the benefits of the ministerial direction applicable to other section 501 cancellation powers exercisable by a delegate of the Minister. However, I do not consider the non-applicability of the relevant ministerial direction (Direction No. 79) to be a “direct and immediate statutorily prescribed consequence” of the Minister’s s 501(3) decision that the Minister ought to have considered. The purpose of a ministerial direction given under s 499 of the Act is so that a decision-maker under the Act who is not the Minister may be given guidance from the Minister as to the proper principles and considerations that ought to be applied in the exercise of certain powers under the Act. The Applicant is essentially complaining of the deprivation of the process of having a delegate consider cancellation of his visa subject to the relevant ministerial direction rather than the Minister himself, who is the person who gives the ministerial direction, is the statutory repository of decision-making power under s 501 and who is not bound by his own ministerial direction in the exercise of his powers: Howells v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; [2004] FCAFC 327. While the Applicant may be able to point to the certainty and predictability of having the cancellation decision considered in accordance with the principles, considerations and constraints outlined in ministerial Direction No. 79 generally, the legal consequence of the Minister’s exercise of his s 501(3) powers is that the Minister has instead personally considered the exercise of those powers and is constrained by the natural limits of his power imposed by the statute and by the common law. Such a consequence is not a legal or practical consequence with human impacts that is analogous to indefinite detention pending removal or the deprivation of an opportunity to be heard. On a conceptual level, I therefore do not consider the non-applicability of Direction No. 79 to be a “direct and immediate statutorily prescribed consequence” which ought to have been considered by the Minister in exercising his powers under s 501(3). This conclusion is also consistent with the more general observation of Perry J in EPU19 that I quoted earlier in relation to the statutory scheme implemented by s 501.

56    In any event, even if the non-applicability of Direction No. 79 could generally be considered a possible relevant legal consequence to be considered by the Minister in a particular case, in this case the Applicant failed to demonstrate how he (or the public) was in fact deprived of any predictability or constraint from the non-applicability of the ministerial direction. The Applicant did not refer to any particular principle or consideration in Direction No 79 to which the Minister did not have regard.

57    In my view, ground 1A has no merit.

Ground 2 in VID458/2021 – misunderstanding of “imprisonment” for purposes of the character test

58    By this ground, the Applicant alleges that:

The Minister erred in reasonably suspecting that the Applicant did not pass the character test for the purposes of s 501(3)(c).

Particulars

(i)    The Minister suspected that the Applicant did not pass the character test (as defined in s 501(6)) because the Applicant purportedly had a substantial criminal record (as defined in s 501(7)) with reference to s 501(7)(c), because the Applicant purportedly had been sentenced to a term of imprisonment of 12 months or more.

(ii)    The basis for the Minister’s suspicion that the Applicant did not pass the character test was that on 24 August 2018, the Applicant was convicted in the Children’s Court of Victoria and ordered to be detained in a Youth Justice Centre for 18 months.

(iii)    The order of the Children’s Court of Victoria made on 24 August 2018 was made under s 412 of the Children, Youth and Families Act 2005 (Vic).

(iv)    That order was not a sentence to ‘a term of imprisonment’ within the meaning of s 501(7)(c) of the Act, including because the ‘impriso[n]ment’ is defined in s 501(12) to include ‘any form of punitive detention in a facility or institution’ and the order of 24 August 2018 was not an order for punitive detention.

59    The Applicant here submitted that the sentence imposed on him was not punitive in nature and thus was incapable of falling within the definition of ‘imprisonment’ in s 501(12) of the Act, and so was incapable of providing ‘sufficient grounds’ for the reasonable suspicion required by s 501(3)(c).

60    Section 501(6)(a) relevantly provides that “a person does not pass the character test if … the person has a substantial criminal record (as defined in subsection (7))”. Section 501(7)(c) relevantly provides that “a person has a substantial criminal record if … the person has been sentenced to a term of imprisonment for 12 months or more”. Then s 501(12) relevantly provides:

In this section:

…

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

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

61    The relevant sentence relied upon by the Minister was that imposed on the Applicant on 24 August 2018 by the Children’s Court of Victoria. That sentence was an order that the Applicant be detained for 18 months in a Youth Justice Centre. The question posed by ground 2 is whether that sentence was “a term of imprisonment for 12 months or more” within the meaning of s 501(7)(c).

62    The Applicant referred the Court to the Children, Youth and Families Act 2005 (Vic) (‘CYFA’) as it existed at 24 August 2018 and in particular s 412 of the CYFA which empowers a court to “order that the child be detained in a youth justice centre”. That section must be read in light of s 362, which provides:

Matters to be taken into account

(1)    In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—

(a)    the need to strengthen and preserve the relationship between the child and the child's family; and

(b)    the desirability of allowing the child to live at home; and

(c)    the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

(d)    the need to minimise the stigma to the child resulting from a court determination; and

(e)    the suitability of the sentence to the child; and

(f)    if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and

(g)    the need to protect the community, or any person, from the violent or other wrongful acts of the child—

(i)    in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or

(ii)    in any other case—if it is appropriate to do so.

(h)    if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.

63    The Applicant submitted that it is important that s 362 refers to some of the traditional purposes of punishment (such as specific deterrence, community protection and, implicitly, rehabilitation) but does not include any reference to punishment, which is to be contrasted with s 5(1)(a) of the Sentencing Act 1991 (Vic) (the ‘Sentencing Act’), which is headed ‘Sentencing guidelines’ and provides as one of its purposes for which sentences may be imposed: “to punish the offender to an extent and in a manner which is just in all of the circumstances”.

64    It was submitted that judicial authority confirms that the Victorian adult and youth sentencing regimes are “strikingly different”: see CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228 (‘CNK’) at [80] (the Court) and Poutai v The Queen [2011] VSCA 382 (‘Poutai’) at [21] (the Court). Just as general deterrence has been said to be “entirely foreign” to the sentencing of youths under the CYFA: see Poutai at [26], “denunciation” has been held to have no place: see R v AM [2021] VSC 397, [40] (Tinney J). Most relevantly for present purposes, the Applicant submitted that “the statutory framework for juvenile justice compels the court sentencing a young offender (almost always the Children’s Court) to adopt the offender-centred (or ‘welfare’) approach, rather than the ‘justice’ or ‘punishment’ approach’: see Webster (a Pseudonym) v The Queen [2016] VSCA 66; (2016) 258 A Crim R 301, [28] (Maxwell P and Redlich JA).

65    The Applicant submitted that s 362 operates as a code insofar as it does not leave open the consideration of otherwise “established sentencing principles”: RAC v The Queen [2011] VSCA 294, [7]–[10] (Harper JA, Nettle JA agreeing). I interpolate here that their Honours did not in fact make such a broad statement, instead only confirming the Court’s ruling in CNK that s 362 of the CYFA precluded any consideration of general deterrence in relation to youthful offenders. The reasons of the Court in CNK at [6]-[16], do not preclude the characterisation of a sentence against a child under the CYFA as “punitive” or a “punishment”. Indeed, the extrinsic materials referred to by the Court at [18] of its reasons (a report in response to which the precursor of the CYFA was said to be enacted in 1989) indicates that the concept of “punishment” remains central to the sentencing of young offenders, and that the matters at s 362 are mandatory additional principles for sentencing juveniles, over and above the other “universal principles of justice” set out in that report.

66    It was further submitted that the fact that the Applicant having a “substantial criminal record” pursuant to s 501(7) was conceded by the Applicant in his submissions to the Minister prior to the making of the s 501(2) cancellation decision in April 2020 cannot operate to confer jurisdiction on the Minister in this case.

67    In this matter I was not referred to or able to find any analogous case determining whether detention of a child under a juvenile sentencing regime is or can be an “imprisonment” within the meaning of the Act. In Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 at [8]-[15], Kerr J approved an Administrative Appeals Tribunal decision which had found that the County Court of Victoria’s sentencing of a 19 year old man to two years’ imprisonment in a Youth Justice Centre for armed robbery was “imprisonment” within the meaning of s 501(12), but queried whether the same would apply in the circumstances of the case before him, where the applicant had been the subject of a detention order under the Youth Justice Act 1992 (Qld), was 14 years of age at the time of offending and where no conviction had been recorded. Ultimately, the issue did not need to be decided and his Honour deferred the resolution of that point to a case that required it to be addressed.

68    In my reasoning below, I am mindful of the legal consequences that this question of interpretation raises. That is, that as a consequence of having been found guilty of a criminal offence and detained while still a minor, a person’s visa may later be cancelled on the basis of that punitive detention, so that the person no longer has any right to remain in Australia. Nevertheless, in my view, the phrase “sentenced to a term of imprisonment” under s 501(7)(c) of the Act includes the form of detention to which the Applicant was sentenced in this case while a minor.

69    First, the definition of “imprisonment” at s 501(12) is not an exhaustive definition, to which issue I will return. Further, even assuming that the sentence imposed on the Applicant must be “punitive” in nature to be “imprisonment” as defined in the Act, in my opinion the Applicant was clearly subject to “imprisonment” in the nature of “punitive detention”.

70    As defined in the Short Oxford English Dictionary, the term “imprison” means “to detain in custody; to confine”, and the term “punitive” means “awarding, inflicting, or involving punishment”. The term “punish” means “1a To cause (an offender) to suffer for an offence; to subject to judicial chastisement as retribution or requital, or as a caution against further transgression; to inflict a penalty on. b To inflict a penalty for (something).” It can be seen that the definitions 1a and 1b of “punish” have a different emphasis, even though both refer to inflicting a penalty. Definition 1b refers to almost an objective or neutral concept of punishment that would seem to include almost any penalty or sentence imposed as a consequence of a finding of guilt for a criminal offence. Definition 1a connotes a stronger punitive purpose underlying the sentence. In my view, having regard to the following reasons, the definition which directs attention to inflicting a penalty on or for something at both 1a and 1b more relevantly informs the meaning of “punitive detention” within the definition of “imprisonment” at s 501(12) of the Act.

71    Therefore, I do not accept as a matter of general understanding that the detention of juvenile offenders in Victoria can involve no element of punishment whatever. As observed by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27, subject to some limited exceptions not applicable here, the “involuntary detention of a citizen in custody by the State is penal or punitive in character and … exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”. The emphasis of their Honours was detention following upon a judicial determination. Not all detention is “punitive detention” under the Act.

72    While I accept that the object of rehabilitation is a “primary consideration” when sentencing juvenile offenders (see CNK at [76]), that does not mean that the sentence is not itself punishment (in the broad sense indicated by the “1b” definition referred to above) for the crime for which there has been a finding of guilt.

73    Returning to the issue of the nature of the definition of “imprisonment” under the Act, there has been a great deal of discussion in the cases concerning the use of the word “includes” in a definition provision: see generally Pearce, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) pp 265-270 and Herzfeld and Prince, Interpretation (2nd ed, Lawbook Co., 2020) pp 478-9.

74    In my view, the use of the word “includes” in the definition of “imprisonment” is to remove doubt that certain things fall within the meaning of imprisonment: see for example the approach in Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, at 206-7 (per Mason ACJ, Wilson, Deane and Dawson JJ). It includes, but does not require, the detention to be punitive, provided that the detention answers the general description of “imprisonment”. Nevertheless, it must be noted that the function of the concept of “imprisonment” in the statutory context of s 501 is as part of the indicia of a person having a “substantial criminal record” for the purposes of the character test, as a part of the phrase “sentenced to a term of an imprisonment”. Accordingly, the concept of “imprisonment” should be read in that context as imprisonment as an incident of the adjudication of criminal guilt.

75    Detention in a Youth Justice Centre as a sentence upon the adjudication of a child’s criminal guilt, whatever the precise purpose of the sentence passed, fits within that concept of “imprisonment”. As pointed out by the Minister, even the Victorian Court of Appeal has from time to time used the word “imprisonment” to refer to detention in a Youth Justice Centre: see R v O’Blein [2009] VSCA 159 at [34]; Director of Public Prosecutions (Vic) v Borg (2016) 258 A Crim R; [2016] VSCA 53 at [82]; DPP v Hodgson [2019] VSCA 49 at [29]; Ward v The Queen [2018] VSCA 80; (2018) 55 VR 307 at [117].

76    The use of “facility or institution” in the inclusive definition evidences the breadth of the meaning of “imprisonment” in s 501. Such a phrase would comprise juvenile correctional facilities. The phrase “any form of punitive detention” is similarly wide. In addition, it ought to be noted that s 501(9) essentially deems an imprisonment where a person is convicted of an offence and the court orders the person to participate in a “residential drug rehabilitation scheme” or a “residential program for the mentally ill”. Such schemes or programs might not ordinarily be considered to be substantially punitive, but are taken to be a form of imprisonment for the purposes of s 501. However, while subsection (9) extends the meaning of “imprisonment” to include those schemes and programs, in my view it does not otherwise change or extend the essential meaning of “imprisonment” for the purposes of s 501.

77    Lastly, although it was not raised by the parties in their submissions, for completeness and to the extent it is relevant, I do note that Article 37(b) of the Convention on the Rights of the Child (entered into force 2 September 1990), which Australia has ratified, adverts to the lawful imprisonment of children:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time…

78    Having made the above remarks in regards to juvenile punishment generally and to the concept of “imprisonment” under the Act, it is necessary for me to consider the nature of detention in a Youth Justice Centre ordered under the CYFA and the specific order to detain the Applicant. The Applicant in this case was convicted and ordered to be detained in a Youth Justice Centre for a period of 18 months, as an aggregate sentence imposed as a consequence of the Children’s Court finding the Applicant guilty to a number of serious offences.

79    Putting that sentence in context, I now turn to the specific features of the CYFA:

(a)    Chapter 5 of the CYFA is titled “Children and the criminal law”. That Chapter provides for the minimum age of criminal responsibility of children, the commencement of criminal proceedings against children, the procedures and standard of proof for such proceedings, and sentences which may be imposed by the Children’s Court of Victoria upon a determination of criminal guilt, among other things.

(b)    The CYFA provides for alternative mechanisms of dealing with a child accused in a criminal proceeding. For example, s 349 provides for referral of the matter to the Secretary of the relevant Department for investigation where grounds exist for the making of a protection application or a therapeutic treatment order in respect of the child. Division 3A of Part 5.2 also provides for diversion programs. When considering any type of diversion program to be ordered, s 356G(1)(a) provides that “the diversion program should not be more punitive than the sentence that would have been imposed had the child been found guilty”.

(c)    Part 5.3 of the CYFA deals with sentences where a child is found guilty of an offence. Section 360 provides for a range of sentences, some of which may be imposed with or without conviction, and some which may only be imposed with a conviction. The s 360 orders are listed in hierarchical order (which I would describe as being from least punitive to most punitive, in the purposive sense), and s 361 requires the Court to consider the appropriateness of imposing any sentence in the order of that hierarchy. The last sentence enumerated at s 360(1)(j) is to “convict the child and order that the child be detained in a youth justice centre under section 412” (a ‘youth justice centre order’). A “youth justice centre” is a form of “corrective service” defined as being “for the care and welfare of persons ordered to be detained … under this Act”: s 478(c)

(d)    Section 362, as extracted earlier in these reasons, provides for the matters to be taken into account by the Children’s Court in determining which sentence to impose on the child. Many of these matters are related to the wellbeing of the child, for example, paragraphs (1)(a)-(e). Paragraph (f) is arguably directed to a more punitive consideration: “if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law.”

(e)    Section 362A provides for sentencing discounts for guilty pleas and s 362B provides for aggregate sentencing of detention. Section 475(3) also provides for the serving of concurrent sentences where a child is subject to a “sentence of detention” and a “sentence of imprisonment”. In my view, each are indicative of the punitive nature of a youth justice centre order, that is, the clear nature of such an order as a punishment as a consequence of an adjudication of criminal guilt.

(f)    I do note that the CYFA generally distinguishes a “sentence of detention” from a “sentence of imprisonment” (eg s 475). Section 525(2) also refers to offences “punishable, in the case of an adult, by imprisonment”. In my view, this choice of language is necessary as a matter of clarity to distinguish between a sentence of detention under the CYFA and imprisonment in a prison.

(g)    The CYFA also generally does not refer to “punishment” or other derivative forms of that word in referring to sentences imposed on a child, although there are two exceptions. First, s 528(3) concerns the Children’s Court’s powers in “punishing” a child for contempt of court by committing the child to a youth justice centre. Second, the definition of “young offender” within Schedule 2 relating to the interstate transfer of young offenders seemingly equates young offenders in Victoria who have been subject to an order under s 360(1)(f)-(j) (which includes a youth justice centre order) and young offenders in another State who have been “dealt with under a law which applies in that State which relates to the welfare or punishment of such a person” (emphasis added).

80    In my view, although the CYFA may consistently distinguish between a child’s detention and imprisonment, whether as a matter of clarity or by a deliberate effort to avoid stigmatising further a child’s detention, and generally avoids use of the word “punishment”, it does not overturn the clear conclusion that a youth justice centre order is substantively a form of punitive detention as a consequence of a finding of criminal guilt and is therefore a sentence of “imprisonment” within the meaning of s 501 of the Act.

81    Having regard to all of the matters referred to above, I do not consider that the Minister erred in applying s 501(7)(c) to the Applicant.

82    In light of the above conclusion, I do not need to consider the significance of the Applicant’s concession prior to the cancellation decision that he was sentenced to imprisonment, or whether even if not constituting “imprisonment”, the Minister’s decision to cancel the Applicant’s power was within jurisdiction because he held a “reasonable suspicion” under s 501(3)(c) that the Applicant did not pass the character test by virtue of his purported imprisonment in the Youth Justice Centre.

83    In my view, Ground 2 has no merit.

Ground 3 in VID458/2021 – failure to consider non-refoulement obligations in national interest test

84    By this ground, the Applicant alleges that:

The Minister’s state of satisfaction under s 501(3)(d) was attained unreasonably, or entailed a failure to consider a mandatory relevant consideration, in that the Minister did not consider whether the removal of the Applicant would or might put Australia in breach of its non-refoulement obligations.

Particulars

(i)     Australia’s international obligations and violation thereof bear directly on the conception of the ‘national interest’ in s 501(3)(d).

(ii)     In reaching his state of satisfaction under s 501(3)(d) as to the national interest, the Minister failed to consider whether his decision would or might put Australia in breach of its non-refoulement obligations.

(iii)     In so failing, the Minister acted unreasonably or failed to have regard to a mandatory relevant consideration.

85    In considering the concept of “national interest”, Allsop CJ explained in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 (‘CWY20’), [8], [10], [13]–[15] (emphasis added):

[8]    The question therefore becomes whether knowing violations of international law bear upon considerations of the “national interest”.

…

[10]    Australia’s international obligations and violation thereof … bear directly and naturally on the conception of the “national interest”.

…

[13]    Article 26 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), and the principle of pacta sunt servanda, impose upon the Australian Government an obligation to observe and perform, in good faith, those treaties to which it is a party. Failure to do so exposes the nation to responsibility for internationally wrongful acts under the Draft Articles on Responsibility of States for Internationally Wrongful Acts, commended by the General Assembly on 28 January 2002, A/RES/56/83 and on 8 January 2008, A/RES/62/61, in which case Australia may face legal consequences (Art 28), including, but not limited to: cessation and non-repetition (Art 30), reparation (Art 31) in the form of restitution (Art 35), compensation (Art 36) and satisfaction (Art 37), in addition to countermeasures (Art 49). Whether or not these legal consequences in fact arise, a breach of a treaty is a breach of international law, which is a breach of law nonetheless.

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

[15]    It goes without saying that it is a matter for the Executive to determine whether it is in the national interest for a given visa to be cancelled. Within any such decision, if it be relevant, the violation of international law, qua law, is intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation. So much has been recognised in other Commonwealth legislative regimes, and so much ought to be recognised in the context of the Migration Act in respect of non-refoulement obligations.

86    As in CWY20, where the issue of non-refoulement was clearly raised, the consideration of Australia’s non-refoulement obligations in the context of s 501(3)(d) may involve not only the consideration of whether the visa holder is owed non-refoulement obligations by Australia, but if so, the national interest implications of Australia not complying with its non-refoulement obligations. In this proceeding, it was not disputed that the Minister considered Australia’s potential non-refoulement obligations to the Applicant as part of his overall discretion to cancel the visa under s 501(3) (which I shall call the ‘residual discretion’, discussed further in Ground 5). Rather, by Ground 3, the Applicant pleads that the Minister did not consider the national interest implications of Australia potentially breaching its non-refoulement obligations under the s 501(3)(d) national interest test (the satisfaction of which being a jurisdictional fact enlivening the Minister’s residual discretion).

87    One of the questions before me raised by Ground 3 is whether Australia’s non-refoulement obligations are mandatory relevant considerations for the satisfaction of the ‘national interest’ test under s 501(3)(d). Based upon authority, a failure to take into account non-refoulement obligations in the assessment of the national interest cannot be characterised as a failure to take into account a mandatory relevant consideration.

88    In CWY20 at [155], Besanko J said in respect of s 501A(2) of the Act, which also involves a ‘national interest’ test:

In my opinion, the implications of Australia breaching its non-refoulement obligations or, more simply, Australia’s non-refoulement obligations, is not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act in the sense of a consideration to be taken into account in every case (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–42 per Mason J (as his Honour then was)). There are no doubt cases under s 501A(2) where Australia’s non-refoulement obligations are not raised and are not relevant.

89    Despite the reference by Allsop CJ referred to in CWY20 at [15] to the violation of international law being “intrinsically and inherently” a matter of national interest, Allsop CJ agreed at [1] with Besanko J. Charlesworth J at [181] also agreed with Besanko J.

90    Rather, the Full Court in CWY20 considered whether the particular decision of the Minister was unreasonable in the circumstances having regard to the Minister’s failure to consider Australia’s non-refoulement obligations: see at [156]-[172] per Besanko J, who gave the leading judgment. Justice Besanko at [157] said (and with which the other Judges of the Full Court agreed):

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

91    The Full Court’s approach to s 501A(2) in CWY20 is equally applicable to s 501(3)(d) before me. The proper approach is to determine whether the particular decision of the Minister is unreasonable in the circumstances, This was the approach also followed by the Full Court of this Court in ENT19 v Minister for Home Affairs [2021] FCAFC 217 (‘ENT19’): per Katzmann J [107]-[108], with whom Collier J at [1] and Wheelahan J at [138] agreed.

92    It is accepted by the parties in the current proceeding before me that the Minister did not consider Australia’s non-refoulement obligations to the Applicant in assessing national interest specifically, nor the national interest implications of Australia being in breach of its international non-refoulement obligations.

93    On this ground the Applicant relies substantially on CWY20 and ENT19. Both those decisions were said to be wrong by the respondents, and, at the time of the oral hearing, applications for special leave to the High Court of Australia had been made from each judgment. Since that time, the High Court of Australia refused to grant special leave for each of the proceedings partly on the basis of insufficient prospects of success: Acting Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs v CWY20 [2022] HCASL 93; Minister for Home Affairs v ENT19 [2022] HCASL 94. Accordingly, I proceed to treat each decision as binding on me in the determination of the proceedings now before the Court.

94    It is useful to briefly describe the circumstances in which these decisions were determined.

95    CWY20 relevantly concerned personal ministerial decisions to set aside decisions of the Administrative Appeals Tribunal under s 501A(2) of the Act, and to substitute less favourable decisions for the two visa applicants in that case (that is, to cancel or refuse their visas). The applicant CWY20 was a protection visa applicant who had been the subject of a previous protection finding, and the department had submitted to the Assistant Minister making the decision that to remove CWY20 to his home country (Afghanistan) would be in breach of Australia’s international non-refoulement obligations. The Acting Minister was also advised that, upon the exercise of his power under s 501A(2), CWY20 would be taken into detention and removal under s 198 would occur as soon as reasonably practicable. Nevertheless, the application was ultimately refused by the Acting Minister by reason of his failing the character test on the basis of sexual assault convictions in Australia. The other applicant in the case, QJMV, had also been the subject of a previous protection finding and was the holder of a protection visa. His visa was ultimately cancelled by the Minister by reason of sexual assault charges in Australia for which he was found guilty.

96    In relation to each of the applicants (CWY20 and QJMV), the Acting Minister or Minister made positive findings about the applicant’s refugee status, found that by reason of the cancellation, the applicant would be unable to apply for another visa, and found that the applicant would be liable to removal as soon as reasonably practicable. However, the Acting Minister or Minister gave no consideration to the national interest implications of Australia breaching its non-refoulement obligations.

97    In CWY20 at [152], Besanko J referred to a previous Full Court decision in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (‘Le’), noting that it had held that Australia’s non-refoulement obligations are not a mandatory relevant consideration when considering whether to exercise the discretion to cancel a person’s visa under s 501(2) “in circumstances in which it is clear that it remains open to the person to make an application in Australia for a protection visa”. Justice Besanko added, “[t]he circumstance that it remained open to the person to make an application for a protection visa was critical to the Court’s analysis”.

98    His Honour also placed emphasis upon the findings in the applications before him that cancellation meant that the applicants were “precluded from making any application for a visa in the future”, noting that for each of CWY20 and QJMV “clear findings as to [the] significance [of Australia’s non-refoulement obligations] have been made by the decision-makers”: [154].

99    Although the national interest implications of Australia breaching its non-refoulement obligations was not a mandatory relevant consideration, the Court held that the failure to take into account non-refoulement considerations in determining the national interest was unreasonable in the circumstances: [156]-[174].

100    ENT19 is a Full Court decision in which Katzmann J gave the leading judgment in relation to the Minister’s failure to consider Australia’s non-refoulement obligations as part of the evaluation of the national interest. It was a case concerning the Minister personally refusing under s 501(1) (ie on character grounds relating to the applicant’s conviction for a people smuggling offence) to grant a Safe Haven Enterprise Visa (a type of protection visa) to a person found to be a refugee, and where the granting of that visa was required to be in the national interest (by reg 790.227 of the Migration Regulations 2001 (Cth)). While the Minister had the power to grant ENT19 another visa under s 195A or a residence determination under s 197AB, Katzmann J observed that it was “clear” from the Minister’s reasons that he did not contemplate either option; thus, “[o]n the basis of the material that was before the Minister at the time of his decision, the legal consequences of refusing to grant the appellant a SHEV were that he would be refouled to Iran and, in the meantime, held in indefinite detention”: [72]. The Court ultimately found that the Minister had committed jurisdictional error by (unreasonably in the circumstances) failing to consider the legal consequences of his decision, being breach of Australia’s non-refoulement obligations or indefinite detention: [74]-[112].

101    Before going any further, the scope of application of those decisions has been recently commented on by Griffiths J in CCU21 v Minister for Home Affairs [2022] FCA 28 (‘CCU21’). In that case, the Minister cancelled the visa holder’s Safe Haven Enterprise Visa under s 501(3) (on character grounds on the basis of an adverse security assessment from ASIO relating to the applicant’s historical involvement in a people smuggling operation). Similar to this proceeding, in CCU21, the Minister considered Australia’s non-refoulement obligations to the visa holder as part of her residual discretion, but did not consider them under the national interest test. In those circumstances, Griffiths J held that there was no error in the Minister’s failure to consider Australia’s non-refoulement obligations under the national interest test.

102    In CCU21at [47]-[51], Griffiths J distinguished the case before him from both CWY20 and ENT19:

[47]    The Minister did not dispute that Australia’s non-refoulement obligations were not considered as part of his assessment of the national interest here (but were considered in respect of the residual discretion). That acknowledgement was properly given but it does not mean that the applicant should succeed on the basis of the Full Court’s decision in CWY20. I accept the respondents’ submission that, putting to one side for the moment the question of materiality, CWY20 is distinguishable on at least the following two grounds:

(a)    CWY20 dealt with s 501A of the Migration Act, which empowers the Minister to substitute a less favourable decision for the one reached by a delegate or the Administrative Appeals Tribunal. It is plain from the terms of that provision that an assessment as to the national interest is an essential condition to the exercise of that significant power. The Minister also has to be satisfied under s 501(3) that it is in the national interest to refuse or cancel a visa. That assessment of the national interest arises under s 501(3), where the decision to refuse or cancel a visa may be made without complying with natural justice requirements. As the respondents pointed out, the Minister also has a power to refuse or cancel a visa under s 501(2), where natural justice requirements do apply. There is force in the respondents’ submission that, given the structure and terms of ss 501(2) and (3), it is open to the Minister to consider the issue of Australia’s non-refoulement obligations as part of the residual discretion under s 501(3) just as it would be open to adopt that course if the Minister had elected to proceed under s 501(2).

(b)    It is also important not to overstate the implications of CWY20. In particular, apart from noting that that proceeding related to s 501A and not s 501(3), it is also important to note the emphasis given to the particular circumstances of that case. As Besanko J said at [149] and [150]:

149    The primary judge emphasised the significance of the particular circumstances of the case before him on a number of occasions in his reasons (see, for example, PJ at [119] and [132]). He identified those particular circumstances as the fact that the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the material before the Acting Minister, and the Acting Minister’s findings that Australia owed non-refoulement obligations to the respondent and that refusing him the visa would put Australia in breach of those obligations because necessarily the respondent 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 to grant the respondent a visa meant that the respondent would be refouled in breach of Australia’s obligations under international law.

150    Those circumstances will not be present in every case in which the Minister is considering the exercise of the power in s 501A(2) of the Act and, as the primary judge noted, it was not argued before him that the implications of Australia breaching its international non-refoulement obligations was a mandatory relevant consideration in the consideration of the national interest pursuant to s 501A(2)(e) of the Act.

[48]    Contrary to the supplementary written submissions filed with leave by the applicant after the hearing, I do not consider that the Full Court’s decision in ENT19 v Minister for Home Affairs [2021] FCAFC 217 advances his claim that the Court should find that the Minister repeated the same error here as in CWY20. That is for three reasons. First, ENT19 arose in a different legislative context, namely, that relating to the Minister’s refusal to a grant a Safe Haven Enterprise visa, where the Minister was not satisfied (as required by r 790.227 of the Migration Regulations) that granting the visa was in the national interest. Where that criterion was not met, the Minister was obliged to refuse the visa. In contrast with the position under s 501(3), there was no discretion.

[49]    Secondly, in contrast with the legislative context in ENT19, there was no immediate requirement to remove the applicant from Australia once the Cancellation Decision was made. That was because of the statutory provisions relating to the question whether that decision should be revoked. This different decision-making process suggests that the issue of non-refoulement need not be considered as part of the national interest assessment under s 501(3).

[50]    Thirdly, and perhaps most importantly, unlike the position in ENT19, the Minister did consider Australia’s non-refoulement obligations in making the Cancellation Decision. That consideration occurred in respect of the Minister’s assessment of how the residual discretion under s 501(3) should be exercised and not under the rubric of the national interest.

103    The comments of Griffiths J are pertinent and useful in putting the decisions in CWY20 and ENT19 in proper context. The case before me is also to be distinguished from both CWY20 and ENT19.

104    First, unlike in CWY20 and ENT19, there were no findings that the Applicant was owed protection obligations, or that his return to Cambodia would breach Australia’s non-refoulement obligations. In a part of his reasons, the Minister proceeded on the basis favourable to the Applicant that he “may” be owed non-refoulement obligations: see [213], but there was no actual or preliminary finding that he was owed those obligations. On the contrary, the Minister found on the evidence before him that Australia’s non-refoulement obligations were “not engaged” in respect of the Applicant: [179]-[204].

105    Second, after the s 501(3) cancellation decision, there also remained the opportunity for the Applicant to seek revocation of his cancellation under s 501C on the basis that he passed the character test (as he now says he does in this Court), and the consequence of the cancellation was to invite the Applicant to make such representations. Although any representations of the Applicant’s regarding Australia’s non-refoulement obligations to him or Australia’s national interest cannot bear on the Minister’s s 501C(4) revocation decision, unlike in CWY20 and ENT19, as a consequence of s 198(2A), no immediate obligation to remove the Applicant as soon as reasonably practicable arose at the point of cancellation. The obligation to remove would only arise upon the happening of certain further contingencies, including that the Applicant either not make representations for revocation within the period for doing so, or that he make representations and the Minister makes a subsequent and separate decision not to revoke the cancellation decision. During this time, the Applicant is entitled to lodge a protection visa application (and as stated above, the Applicant remains entitled to do so).

106    Third, unlike in CWY20 and ENT19, the Minister’s cancellation decision under s 501(3) created no barrier to the Applicant lodging a valid protection visa application in which his protection claims could be fully assessed: see s501E(2) of the Act. In CWY20, Besanko J observed that that matter was critical to the Full Court’s decision in Le that the Minister was not obliged at the time of the s 501(2) cancellation decision to consider non-refoulement issues as a mandatory relevant consideration. The opportunity of the Applicant still to lodge a protection visa following his visa cancellation is also significant when considering the potential legal consequences of a s 501(3) cancellation decision. For those visa holders or visa applicants in CWY20 and ENT19, the ministerial decisions at issue were final in the sense that there was no further available entitlement under the Act for those applicants to have Australia’s non-refoulement obligations considered with respect to their circumstances.

107    In this case, the Minister explicitly adverted to the Applicant’s continued entitlement to make an application for a protection visa despite any cancellation decision: [206]-[210]. However, the Minister noted that even in circumstances where the Minister or a delegate considers that the Applicant is owed protection obligations, the protection visa may be refused on character-related grounds: see s 36(1C) and (2C)(b) of the Act, being the ineligibility criteria for refugee and complementary claims respectively. For example, if the Minister is satisfied that the Applicant is a “danger to the Australian community” on account of a conviction for a “particularly serious crime” under the provisions just referred to, the Minister must refuse the Applicant’s protection visa application. If the Minister is not so satisfied (that is, the Applicant’s conviction is not for a “particularly serious crime” as defined in the Act), the Minister may grant a protection visa if the Applicant satisfies the relevant protection criteria. At the time of the cancellation decision, the Minister would have been able to consider the Applicant’s protection claims and whether any non-refoulement obligations were owed to the Applicant prior to considering the ineligibility criteria, but would not have been bound to do so by ministerial Direction No. 75 as a delegate would. The Minister considered this in his reasons as part of the exercise of the residual discretion, and described it as a “situation that would only arise in the unlikely event that a Minister determines to depart from the usual practice … and from the policy approach set out in Direction 75”: [209]. The Minister conceded that the Applicant may be refused a protection visa because he may be subject to the ineligibility criterion referred to above, and accordingly at that point would be subject to removal from Australia as soon as reasonably practicable notwithstanding any non-refoulement obligation: [210].

108    As a footnote, because of an amendment to s 36A of the Act which came into force on 25 May 2021 (after the cancellation decision), in considering a valid application for a protection visa, decision-makers, including the Minister, must now assess whether the refugee and complementary protection criteria are met before considering any other criteria such as the character ineligibility criterion.

109    In the above circumstances, it was appropriate for the Minister not to consider specifically the national interest implications of Australia potentially breaching its non-refoulement obligations in respect of the Applicant. Accordingly, the Minister’s satisfaction under s 501(3)(d) was not attained unreasonably.

110    In my view, ground 3 has no merit.

Ground 5 in VID458/2021 – reasoning errors with respect to non-refoulement obligations

111    By this ground, the Applicant alleges that:

In exercising his discretion to cancel the Applicant’s visa under s 501(3), the Minister:

a.    reasoned illogically or irrationally in respect of Australia’s non-refoulement obligations;

b.    failed to engage in an active intellectual process in reviewing the material placed before him in respect of Australia’s non-refoulement obligations;

c.    misunderstood the law and/or asked the wrong question(s) in respect of Australia’s non-refoulement obligations.

Particulars

(i)    As to ground 5(a), the Minister’s reasoning was internally inconsistent in that he: reasoned that the discrete non-refoulement obligations raised by the Applicant were ‘not engaged’; observed ‘there is currently insufficient information for me to determine whether any non-refoulement obligation are [sic] owed to Mr NUON on the grounds claimed’; and concluded ‘I have proceeded on the basis that Mr NUON may be owed non-refoulement obligations, and that this favours a non-cancellation decision’.

(ii)    As to ground 5(b), the Minister:

A.    failed to actively engage with the accumulation of risks of harm to the Applicant, and whether that accumulation engaged Australia’s non-refoulement obligations;

B.    failed to actively engage with the prospect of the Applicant being indefinitely detained as a result of Australia’s non-refoulement obligations, rather than simply the hypothetical effects if he were detained.

(iii)    As to ground 5(c) with respect to non-refoulement obligations that would or might arise by reason of the Applicant’s intellectual disability and/or mental illness, the Minister:

A.    failed to ask whether the ‘difficulties’ which the Minister found the Applicant ‘may’ encounter if removed to Cambodia amounted to the level of harm that engaged international non-refoulement obligations;

B.    asked the wrong question in asking whether the risk of harm to the Applicant if removed to Cambodia arose ‘entirely’ due to the Applicant’s intellectual disability and/or mental health issues.

(iv)    As to ground 5(c) with respect to non-refoulement obligations that would or might arise by reason of the Applicant’s homelessness, the Minister asked the wrong question by asking whether the risk of harm to the Applicant would ‘necessarily’ result or was ‘plausible’.

112    I emphasise that this Ground 5 relates to the Minister’s exercise of his overall discretion under s 501(3), which I referred to above as the “residual discretion”, as separate from the satisfaction of the “national interest” test specifically under subsection (3)(d).

113    As a preliminary point, I point out that all the errors referred to are not material, because the Minister proceeded, in the Applicant’s favour, on the basis that the Applicant may be owed non-refoulement obligations: [213]. This precludes the Applicant succeeding on ground 5 as a whole.

114    I will now consider each sub-ground in turn as presented by the Applicant.

Sub-ground 5(a) – illogicality or irrationality

115    It is useful to rehearse the recent observations of the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 at [32]-[35] relating to legal unreasonableness:

[32]    The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at 3–6 [2]–[13]. See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at 170–172 [54]–[65].

[33]    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

[34]    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35]    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

116    The Applicant argued as follows.

117    First, the Minister purported to find that the discrete non-refoulement obligations raised by the Applicant were “not engaged”, referring to the following paragraphs of the Minister’s reasons: [190] as to the Applicant’s intellectual disability and mental illness, [194] as to the Applicant’s potential homelessness in Cambodia, and [200], [202], and [204] as to the Applicant’s criminal history and Cambodia’s judicial system.

118    Second, the Minister observed “there is currently insufficient information for me to determine whether any non-refoulement obligation[s] are owed to [the Applicant] on the grounds claimed”: [206]. It was argued that this finding can only have meant that there may, or may not, be non-refoulement obligations owed to the Applicant, and thus is inconsistent with the first finding just mentioned that those obligations were “not engaged”.

119    Third, the Minister concluded: “I have proceeded on the basis that [the Applicant] may be owed non-refoulement obligations, and that this favours a non-cancellation decision”: [213]. It was argued that there would be no rational basis to proceed upon an assumption that the Applicant was owed non-refoulement obligations unless there was material to tend towards that conclusion. This third aspect of the reasoning was thus directly inconsistent with the first finding just mentioned, and in tension with the second observation. Therefore, it was submitted that there being no logical way to reconcile those three features of the reasoning, the Minister must be found to have reasoned so illogically as to have exceeded his jurisdiction.

120    I do not accept this submission. It is logical and rational for the Minister to consider that the non-refoulement obligations were not engaged, but at the same time say that effectively for the purposes of his final consideration he will nevertheless proceed in favour of the Applicant on this issue. It is a convenient and permissible way to proceed where other matters may weigh more heavily in the balance, to adopt an assumption in favour of the Applicant as the Minister did here.

121    In any event, it can be seen that the three sets of findings complained of by the Applicant in fact work together. Thus, the first set of findings, that the non-refoulement obligations previously raised by the Applicant were “not engaged” are, findings that non-refoulement obligations were not engaged on the evidence before the Minister. That is then consistent with the subsequent finding that “there is currently insufficient information for me to determine whether non-refoulement obligation[s] are owed to the Applicant on the grounds claimed” – that is, definitively owed, since for example, no country information or other evidence was provided by the Applicant in relation to the risk of him being interrogated, detained or monitored by the Cambodian authorities. And, finally, in circumstances where the Applicant had not had an opportunity to be heard on the s 501(3) cancellation, it was perfectly open to the Minister nevertheless to proceed on the basis that the Applicant may be owed non-refoulement obligations and to weigh that in his favour.

122    Further, given the nature of the findings made, whereby no positive finding was made of any non-refoulement obligations being owed, but where the Minister gave the Applicant the benefit of the doubt that there “may” be such obligations, it could not be said that any error was material to the outcome.

123    This sub-ground is therefore of no merit.

Sub-ground 5(b) – failure to consider cumulative risks of harm or prospect of indefinite detention

124    It can be accepted that where an applicant claims to fear harm on a number of bases there may be jurisdictional error on the part of the decision-maker if it considered individual circumstances put forward by an applicant as being grounds for a well-founded fear of persecution in the future, but failed to consider those circumstances cumulatively.

125    It can also be accepted that the Applicant put his non-refoulement claims “either cumulatively or separately”. By way of example, the Applicant had submitted to the Minister prior to the Minister’s s 501(2) cancellation decision in April 2020 that his disability, poor mental health and likely homelessness together made him much more likely to be arbitrarily arrested and subjected to torture or cruel, inhuman and degrading treatment and/or to be “rounded up” in the “sweeps” of undesirables taking place in Cambodia at that time.

126    It was pointed out by the Applicant that the Minister in his reasons made findings that non-refoulement obligations were not engaged by each separate claim, but these claims were not considered cumulatively.

127    In my view, it is apparent that the Minister gave consideration to all of the previously raised non-refoulement matters referred to in his reasons at [179]-[210]. The specific complaint made by the Applicant – that the various aspects of the profile affecting the Applicant as a disabled person, with poor mental health and likely homeless, and that this was not considered cumulatively – is not correct. The Minister did consider the relevant material as indicating that “people who were homeless and/or with mental disabilities were amongst dozens who had been arbitrarily arrested and detained as part of government ‘sweeps of city streets’”: [191].

128    In any event, any failure to consider the claims cumulatively was not material, as for the purposes of the ultimate exercise of the discretion to cancel the Applicant’s visa, the Minister proceeded, in the Applicant’s favour and despite his earlier findings, on the basis that the Applicant may be owed non-refoulement obligations: [213].

129    It was also argued that separately, the Minister’s reasons evince a failure to engage with the prospect that the Applicant would be indefinitely detained (if he were found to be owed non-refoulement obligations).

130    The Minister adverted to what would happen if the Applicant were indefinitely detained, saying at [205]: “I accept that prolonged or indefinite detention is likely to have adverse impacts on [the Applicant]’s mental and physical health, such that his health is likely to deteriorate.”

131    The Applicant submitted that there could be no meaningful weighing of those potential consequences without first assessing the probability that the factual precondition to those consequences (indefinite detention) would eventuate. That failure to actively engage with the prospect of indefinite detention was said to be material because, given what the Minister had accepted about how the Applicant would be affected by indefinite detention and given the potential significance of indefinite detention to discretionary considerations, the result might realistically have been different had this matter been squarely confronted.

132    I do not accept the Applicant’s submission. The Minister could not speculate with any more precision about the prospect that the Applicant might be indefinitely detained, given his preliminary findings that non-refoulement obligations were not owed and his conclusion that “there is currently insufficient information for me to determine whether any non-refoulement obligation[s] are owed” to the Applicant, and in circumstances where indefinite detention would only realistically occur should such an obligation be found to be owed and should any protection visa application as the Applicant might make be refused. Further, cancellation did not mean here, as it might in some other cases, either immediate removal or indefinite detention, as I explained earlier in my reasons for dismissing Ground 3.

133    This sub-ground is therefore of no merit.

Sub-ground 5(c) – misunderstanding the law / asking wrong question

134    The relevant parts of the Minister’s reasons in relation to this sub-ground are as follows:

[187]    I accept the country information about the issues facing people with disabilities in Cambodia as outlined by Mr NUON’s former migration agent, noting this information is derived from credible Australian and international sources. I have accepted that Mr NUON will lack family support, may have difficulty obtaining employment and accommodation, and may face financial difficulties in Cambodia. I further accepted that Mr NUON’s intellectual disability may compound the aforementioned difficulties and be an additional difficulty in itself, that his mental health issues may be exacerbated in facing these difficulties and in transition and reintegration into Cambodia, and that his use of illicit drugs and/or possible misuse of prescription medication may create difficulties for him. While I accepted these difficulties under Extent of Impediments if Removed, I also accept them in my consideration of international non-refoulement obligations.

[188]    However, as I have outlined under Extent of Impediments if Removed, there is no evidence Mr NUON has ever accessed nor sought access to any disability support service in Australia nor that he has a mental health diagnosis. I have reached a state of satisfaction that Mr NUON’s intellectual disability is not at a level that requires disability support services to enable him to engage in educational, vocational and other opportunities. I further noted that a psychologist asked only that his ‘mental health circumstances and personal hardships’ were taken into account.

[189]    On the information before me, I am not satisfied that Mr NUON’s intellectual disability and mental health issues gives rise to a real risk of serious harm. Difficulties do not necessarily equate to serious harm. Nor do those difficulties necessarily entirely arise due to Mr NUON’s intellectual disability and mental health issues. For example, Mr NUON’s likely difficulty obtaining employment in Cambodia may be due less to any discrimination about his intellectual disability, but more that he has a lack of skills and experience relevant to obtaining employment. Similarly, if Mr NUON was detained in a drug treatment facility in Cambodia, this may be due more to his choice to use illicit drugs than having a mental disability.

…

[192]    As outlined above, I accept Mr NUON may have difficulties obtaining and maintaining accommodation, particularly given he does not appear to have lived independently in Australia. However, a difficulty obtaining accommodation does not necessarily result in homelessness; it is that the process of obtaining accommodation in Cambodia may be harder for Mr NUON. I am not satisfied that any difficulties Mr NUON faces in obtaining and maintaining accommodation gives rise to a real risk of serious harm of the type as proposed by his former migration agent (such as arbitrary arrest/detention, human rights abuses and torture).

[193]    While I accept some dozens of homeless people were arbitrarily arrested and detained in 2016, as described in the country information, there is no evidence before me that this practice has continued, nor, as I have stated, that Mr NUON’s difficulties obtaining accommodation will necessarily result in homelessness. To suggest that there is a real risk of serious harm, such as physical restraints, intense exercise, ill-treatment, harsh methods, and torture, arising from Mr NUON’s difficulty finding accommodation is not, in my view, plausible. A real risk is distinct from a remote or far-fetched possibility.

…

[213]    In addition, in making the present decision, I have proceeded on the basis that Mr NUON may be owed non-refoulement obligations, and that this favours a non-cancellation decision.

135    Under this sub-ground, the Applicant raised three ways in which the Minister misunderstood the law or asked himself the wrong question in relation to non-refoulement obligations.

136    The first was the failure to ask whether ‘difficulties’ were ‘serious harm’. It was submitted that the Minister misunderstood, or otherwise failed to engage in, the qualitative assessment required to determine whether particular harms will rise to the level of “serious harm” so as to engage non-refoulement obligations, referring to NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298, [455] (French J).

137    It can be accepted that serious harm need not be “irreparable harm”: Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211, [19]. Further, an assessment of serious harm requires ‘qualitative judgment’: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610, [35], [41] (French CJ, Kiefel, Bell and Keane JJ). That assessment will depend on matters of ‘fact and degree’ including the ‘gravity and frequency’ of the risked harm: see [51] (French CJ, Kiefel, Bell and Keane JJ).

138    It was submitted by the Applicant that the Minister did not engage in any such assessment: instead, the Minister found that the Applicant might face “difficulties” ([187]) if he were removed to Cambodia and noted that “difficulties do not necessarily equate to serious harm”: [189]. It was submitted that the Minister was obliged to go further and step through a consideration of the gravity and frequency of the “difficulties” the Applicant would face in order to form a conclusion as to whether they might amount to serious harm.

139    The second error was asking the wrong question (whether any harm might arise “entirely” because of the Applicant’s intellectual disability or mental health issues). It was submitted that in his consideration of non-refoulement obligations, the Minister purported to discount the likelihood that the Applicant might be owed such obligations on the basis that the difficulties the Applicant would face if removed to Cambodia would not “entirely arise due to [the Applicant]’s intellectual disability and mental health issues”: [189]. However, under most international obligations (such as the obligations arising under the Refugees Convention, now partially codified in the refugee criterion in the Act), the question is whether a person will face harm “substantially” (rather than “entirely”) because of a protected attribute. It was submitted that in respect of other non-refoulement obligations (such as the obligations arising under instruments other than the Refugees Convention, for example the Convention Against Torture (‘CAT’) and the International Covenant on Civil and Political Rights (‘ICCPR’), now partially codified in the complementary protection criterion in the Act), there is no basis upon which to discount the harm based on its cause or reason, the question is simply whether there is a real risk of the harm (whatever the source of that risk).

140    The third error was asking the wrong question (whether harm would “necessarily” result or was “plausible”). It was submitted that various non-refoulement obligations express themselves differently in terms of the threshold risk by which they are engaged. For example, article 3 of the CAT requires that: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’ (emphasis added). By contrast, article 33(1) of the Refugees Convention provides that: ‘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’ (emphasis added). None of the international obligations direct attention to what “necessarily” may follow: see and compare DADQ v Minister for Immigration and Border Protection [2014] FCA 754; (2014) 143 ALD 659, [59]–[60] (Mansfield J). Similarly, none ask what is “plausible”. It was submitted that these were the criteria employed by the Minister at [192] and [193]. The Minister should instead have simply asked whether the risk was real – rather than far-fetched or fanciful – and should have acknowledged that a “well-founded fear of persecution may be grounded upon the possibility of such an occurrence. Indeed, the fear that such harm may be suffered may be well-founded even though persecution is unlikely to occur” [emphasis added]: Minister of Immigration, Local Government and Ethnic Affairs v Che Guang Xiang [1994] FCA 1259 at [38] (the Court), referring to Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 389 (Mason CJ), 429 (McHugh J).

141    It was then submitted that in respect of each of the errors alleged in ground 5(a), (b) and (c), if the Minister had engaged in the required assessment of harm he might realistically have concluded that the harm rose to the level of serious harm and, as a result, exercised the discretion in favour of the Applicant. The error was thus material because meaningful consideration of the issue may have made a difference to the ultimate outcome.

142    In my view, whilst the Applicant alleges that the Minister failed to consider whether the harm raised rose to the required level of harm for the purposes of non-refoulement obligations, pointing to parts of the Minister’s reasons at [187] and [189] that referred to difficulties, and how those difficulties did not necessarily equate to serious harm, those parts of the reasons must be read in light of the whole of the Minister’s reasons. The Minister at [188] addressed the mildness of the Applicant’s disability for the purposes of engaging in educational vocational and other opportunities, and at [189] said: “On the information before me, I am not satisfied that Mr NUON’s intellectual disability and mental health issues gives rise to a real risk of serious harm”, and at paragraph [190] said: “I therefore find that non-refoulment obligations are not engaged by this claim.”

143    I am satisfied that the Minister’s findings as a whole were clearly to the effect that the accepted difficulties did not give rise to a real risk of serious harm.

144    The Applicant then further alleges that the Minister wrongly considered at [189] whether harm would arise “entirely” because of the Applicant’s intellectual disability and mental health issues. One must look to see how the Applicant’s then migration agents framed the issue. The submissions about the engagement of the CAT and the ICCPR were made “on the basis of [the Applicant’s] particular profile” which should be understood as a reference to his particular attributes – relevantly his intellectual disability and mental illness. As for the reference to “entirely”, the context sheds light in its meaning. Those examples are concerned with the difficulties that essentially arise not from the Applicant’s “profile” as someone with an intellectual disability and mental illness, but from some other aspect dissociated from that profile (the examples referring to his lack of skills and experience in obtaining employment, and his choice to use illicit drugs).

145    In any event, I consider this particular error is also not material, because the Minister did not accept that the matters raised gave rise to a real risk of serious harm ([189]). This is putting aside the fact the Minister proceeded, in the Applicant’s favour, on the basis that the Applicant may be owed non-refoulement obligations ([213]).

146    Finally, the Applicant further refers to the findings in [192] and [193], on the grounds that they expose the Minister having asked a wrong question. The words “necessarily” and “plausible” are focussed upon by the Applicant, but again the reasons have to read as a whole. In [192], the Minister makes a finding that he was not satisfied that any difficulties the Applicant faces in obtaining and maintaining accommodation gave rise to a real risk of serious harm of the type claim by the Applicant’s former agent (arbitrary arrest/detention, human rights abuses, and torture). Thus, any complaint about the observation in the previous sentence (“a difficulty obtaining accommodation does not necessarily result in homelessness”) is to be seen as an additional observation. At [193] the Minister observes that “[t]o suggest that there is a real risk of serious harm, such as physical restraints, intense exercise, ill-treatment, harsh methods, and torture, arising from Mr NUON’s difficulty finding accommodation is not, in my view, plausible”. The following sentence then emphasises that a real risk must not be “remote or [a] far-fetched possibility”. In that context, the Minister’s finding was that he was not satisfied at all there was a real risk of relevant harm. The finding of implausibility was, simply another way of describing the risk as remote or far-fetched.

147    In my view, sub-ground 5(c) has no merit.

148    As a final matter in relation to each of the sub-grounds of Ground 5, I observe that the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 has recently indicated at [30] and [37]-[38] in relation to a different statutory provision (s 501CA of the Act) that the Minister may defer assessment of whether the former visa holder was owed non-refoulement obligations on the basis that a former visa holder may still apply for a protection visa. Although s 501CA is relevantly different to s 501(3) and s 501C (for example, there is no ‘national interest’ test), if the Minister were similarly able to defer assessment of the former visa holder’s non-refoulement obligations under s 501(3) in this case, it may be that Ground 5 as a whole would fail on that basis alone. However, given my findings in relation to each sub-ground of Ground 5, I do not need to consider this aspect any further for the purposes of this proceeding.

Ground 1 of VID 417/2021 – misunderstanding of “imprisonment” for purposes of the character test

149    I now turn to proceeding VID417/2021.

150    It is to be recalled that the Applicant seeks judicial review of a decision of the Immigration Minister on 6 July 2021 not to revoke the decision of the Minister for Home Affairs on 22 March 2021 to cancel the Applicant’s visa. The non-revocation decision was made pursuant to s 501C(4) of the Act.

151    The Applicant’s amended originating application for VID417/2021 contains only one ground. By this ground, the Applicant alleges that:

The Minister erred in not being satisfied that the Applicant passed the character test (as defined by section 501) for the purposes of s 501C(4)(b).

Particulars

(i)    The Minister was not satisfied that the Applicant passed the character test (as defined in s 501(6)) because the Applicant purportedly had a substantial criminal record (as defined in s 501(7)) with reference to s 501(7)(c), because the Applicant purportedly had been sentenced to a term of imprisonment of 12 months or more.

(ii)    The basis for the Minister not being satisfied that the Applicant passed the character test was that on 24 August 2018, the Applicant was convicted in the Children’s Court of Victoria and ordered to be detained in a Youth Justice Centre for 18 months.

(iii)    The order of the Children’s Court of Victoria made on 24 August 2018 was made under s 412 of the Children, Youth and Families Act 2005 (Vic).

(iv)    That order was not a sentence to ‘a term of imprisonment’ within the meaning of s 501(7)(1)(c) of the Act, including because ‘impriso[n]ment’ is defined in s 501(12) to include ‘any form of punitive detention in a facility or institution’ and the order of 24 August 2018 was not an order for punitive detention.

152    Pursuant to s 501C(4) of the Act, the Minister may revoke the cancellation decision under s 501(3) if the person makes representations in accordance with an invitation (given under s 501C(3)) and the person satisfies the Minister that the person passes the character test (as defined by s 501). It will be noticed that it is a different standard than “reasonably suspects” (as in s 501(3)).

153    In his reasons for decision, the Immigration Minister found that he was not satisfied that the Applicant passed the character test, as he had been sentenced to a term of imprisonment of 12 months or more when ordered to be detained in a Youth Justice Centre for 18 months.

154    Again it is to be noted that the Applicant, via his previous migration agents’ submissions in relation to the earlier s 501(2) cancellation decision, had conceded on 10 January 2020, and again on 3 February 2020, that he did not pass the character test. The 10 January 2020 submissions were resubmitted by the Applicant as a representation in support of revocation in relation to the s 501(3) cancellation decision.

155    As the Applicant was sentenced to terms of imprisonment of 12 months or more in fact, the Immigration Minister was not satisfied that the Applicant passed the character test.

156    The Applicant relied on his submissions on ground 2 of his amended application in related proceedings VID458/2021. The Applicant alleges that the sentence imposed on him was not punitive in nature and thus was incapable of falling within the definition of ‘imprisonment’ in s 501(12) of the Act. While the Applicant did not make representations to this effect to the Immigration Minister, it was submitted that the Immigration Minister was nevertheless bound to make the decision under s 501C(4) on a correct understanding of the law. It was submitted that it is apparent that he did not, as he misunderstood a youth justice centre order to be a sentence of imprisonment.

157    Unlike in VID 458/2021, where there is the issue of whether the Minister of Home Affairs could hold a “reasonable suspicion” that the Applicant had failed the character test on the basis of his understanding of “imprisonment” under s 501, in VID 417/2021, the issue is only whether the Applicant was “sentenced to a term of imprisonment of 12 months or more” on the correct legal application of those words under s 501. In view of my determination of Ground 2 in VID 458/2021 as to the interpretation of the term “imprisonment” under s 501 and its application in this case, the conclusion in VID 417/2021 follows.

158    This ground therefore must fail.

DISPOSITION

159    The court will order as follows.

In VID 417 of 2021:

(1)    The originating application be dismissed with costs.

In VID 458 of 2021:

(1)    The application for an extension of time to bring proceedings is dismissed with costs.

Associate:

Dated:    6 June 2022