Federal Court of Australia

BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

The application

1    This is an application to quash a decision of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, first, setting aside a decision of the Administrative Appeals Tribunal directing that the applicant be granted a protection visa and, second, refusing to grant the applicant a protection visa.

2    The Minister’s decision was made under s 501A(2) of the Migration Act 1958 (Cth) (Migration Act) which provides that the Minister may set aside a decision of a delegate or Tribunal not to refuse to grant or cancel a visa and to instead refuse to grant or cancel a visa if:

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

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

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

3    By s 501A(5), the power under s 501A(2) may only be exercised by the Minister personally. A decision under s 501A(2) is not reviewable on its merits: s 501A(7).

4    The applicant is a citizen of South Sudan. He is a person to whom Australia owes protection obligations as he is at risk of serious harm if he is returned to South Sudan. He has complex physical and mental health needs as a result of violence and trauma he suffered in South Sudan. He has suffered from alcohol addiction. Before he was taken into immigration detention, the applicant had resided in the community for five years without offending. He undertook psychological counselling and other forms of therapy, completed or engaged in a number of offending-related courses, and has demonstrated good behaviour whilst in detention. He has three minor children, two minor grandchildren and one adult daughter in Australia. However, he fails the character test in the Migration Act due to his sentences of imprisonment for domestic violence offences. The Minister was satisfied it was in the national interest to refuse the applicant a visa and otherwise considered in the exercise of his discretion that the applicant should not be granted a visa.

5    The challenge to the validity of the Minister’s decision is brought on two grounds said to vitiate the decision for jurisdictional error:

(1)    in exercising the power under s 501A(2), the Minister’s assessment of, and satisfaction as to the requirements of s 501A(2)(e) was not attained reasonably; and/or

(2)    the Minister failed to exercise the discretion to refuse the Applicant’s visa under s 501A(2) reasonably.

6    I have decided that neither ground can succeed. My reasons follow.

The Minister’s decision

7    The Minister’s decision records that the applicant does not pass the character test in s 501(6) of the Migration Act as he had been convicted of assault occasioning actual bodily harm and contravention of an apprehended violence order in a domestic context, for which he was sentenced to 16 months’ imprisonment: [11]–[13].

8    The Minister then considered the national interest as required by s 501A(2)(e), noting that:

(1)    the term is not defined for the purposes of s 501A(2): [19];

(2)    the term involves an evaluative issue largely political in nature, citing Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40]: [20];

(3)    he had regard to “the seriousness of [the applicant’s] criminal conduct, particularly his family violence offending, the risk he poses to the Australian community with an emphasis on the harms that flow from the impacts of family violence, the expectations of the Australian community and any International Non-Refoulement Obligations owed to” the applicant: [21];

(4)    in this process of consideration, the Minister considered that:

(a)    “granting a visa to a person who has been convicted of family violence offences would send the wrong signal to people who engage in similar conduct in the future, thereby potentially undermining the Australian Government’s ongoing commitment to the safety of women and children. It is not in the national interest for a person convicted of family violence offences to be seen to get the benefit of a protection visa”: [24];

(b)    the applicant’s “criminal offending demonstrates a pattern of recidivist violent and threatening behaviour towards women, which …casts doubt about his prospects for ongoing rehabilitation should he be released into the community”: [37];

(c)    the applicant’s “offending also displayed a trend towards increasingly serious violence and that this was reflected in the sentencing by the courts. …the significant number of AVOs that were imposed on [the applicant] by the courts and found that this demonstrated not only a disregard for Australian laws but more importantly a concerning indifference to the safety and wellbeing of his female partners”: [45];

(d)    the applicant “demonstrated an understanding of the causal factors that led to his offending and exhibits some awareness of the negative impact of his drinking on himself, his victims and his family”: [76]; and

(e)    “the need to protect the Australian community from criminal or other serious conduct is relevant to consideration of the national interest”: [93];

(5)    further, under the heading “International non-refoulement obligations”, the Minister observed that that he had “chosen to consider non-refoulement issues in assessing whether refusal is in the national interest in this case”, referring to the applicant’s submission that “Australia’s non-refoulement obligations should weigh ‘extremely strongly’ against the refusal of his visa”: [126]–[127]. In this regard the Minister said:

(a)    he accepted that the applicant has been found to be a person to whom Australia owes protection and is the subject of a protection finding, within the meaning of s 197C(3) of the Migration Act, with respect to South Sudan: [134]–[135]; and

(b)    he had considered that “any removal of [the applicant] would be in breach of Australia’s non-refoulement obligations and would have serious implications not only for [the applicant] as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation. Matters of Australia’s international standing and reputation are of relevance in consideration of the national interest criterion”: [139];

(6)    under the heading “Conclusion on national interest considerations”, the Minister then concluded that:

[140]    In deciding whether I am satisfied that it is in the national interest to refuse [the applicant’s] Protection visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

[141]    I have found that it would generally be in the national interest to refuse a non-citizen’s visa insofar as it is consistent with the Australian Government’s National Plan to Reduce Violence against Women and their Children 2010-2022 where the non-citizen has been involved in crimes of family violence.

[142]    In the specific case of [the applicant], I have also considered the very serious nature of his involvement in family violence-related offending and the risk of him reoffending. I have also considered the risk to the community posed by him as a result. Furthermore, I have considered the Government’s views and the expectations of the Australian community generally in relation to the types of serious conduct engaged in by [the applicant], namely family violence.

[143]    On the other hand, I have also taken into account that the removal of [the applicant] to South Sudan would be in breach of Australia’s international non-refoulement obligations.

[144]    Under s197C(3) of the Act, the protection finding made for [the applicant] means that the removal of [the applicant] to South Sudan is neither required nor authorised by s198.

[145]    On balance, having regard to the other significant national interest considerations discussed above, I am satisfied that it is in the national interest to refuse [the applicant’s] visa notwithstanding the international non-refoulement obligations engaged in his case.

9    The Minister next considered whether he should exercise his discretion to refuse to grant the applicant a visa: [146]. In so doing the Minister:

(1)    gave significant weight to the fact that it would not be in the best interests of the applicant’s children and grandchildren to refuse his visa: [164];

(2)    considered that the applicant would be at risk of harm (amounting to persecution) if returned to South Sudan: [166]–[167];

(3)    considered the material about the applicant’s age, physical and mental health: [170]–[180];

(4)    concluded that it would be difficult for the applicant to subsist in South Sudan for a range of reasons: [193]. The Minister then said at [194]:

As noted above, the protection finding made for [the applicant] means that s198 of the Act does not require or authorise the removal of [the applicant] to South Sudan (s197C(3)). In this regard, I have noted that the limited circumstances in which removal is required, as set out in s197C(3)(c), do not presently exist for [the applicant]. Therefore, even if [the applicant] would face the impediments described above in South Sudan, I find that those impediments will not eventuate as a result of my decision to refuse the visa. Nevertheless, I find that this consideration weighs in favour of not refusing [the applicant’s] visa;

and

(5)    gave significant weight to the strength, nature and duration of the applicant’s ties to Australia, with particular emphasis on his children, as factors in favour of not refusing the visa: [216].

10    The Minister then dealt with the legal consequences of a refusal decision, saying:

(1)    he was aware that ([218]):

…the legal consequences of a decision to refuse [the applicant’s] visa application are that, as an unlawful non-citizen, he must continue to be detained in accordance with s189 and s196 of the Act, until removed from Australia or granted a visa. Further, by reason of the protection finding made in the course of considering his protection visa application, s198 will not require or authorise him to be removed to South Sudan, except in certain limited circumstances which are not presently relevant (s197C(3)). The prospects of finding another country willing to receive him are poor. As a result, I am aware that [the applicant] faces the prospect of immigration detention for an indefinite period;

(2)    he accepted that ([222]) “indefinite or prolonged detention is likely to adversely impact [the applicant’s] mental health and will be detrimental to the ongoing management of his physical injuries… [and] this weighs in favour not refusing his visa application”;

(3)    he was aware that the applicant would not be able to apply for any other visa “other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation”: [223];

(4)    however ([224) and [225]]:

…a Minister administering the Act has a personal non-compellable power in s195A of the Act to grant another visa to him if the Minister thinks it is in the public interest to do so. The Minister also has a personal non-compellable power in s197AB to make a residence determination if the Minister thinks it is in the public interest to do so. Such a determination would enable [the applicant] to leave held detention and instead be detained at a specified place in the community, subject to appropriate conditions.

I acknowledge that any consideration and pursuit of possible alternatives to held detention would take some time, and that in the meantime [the applicant] will remain in held detention.

(5)    and therefore ([226]):

…if I decide to refuse the visa application, and no consideration is given to intervening under s195A or 197AB, or a decision is made to not exercise such a power in [the applicant’s] favour, he will, as an unlawful non-citizen, remain in held detention unless he can be removed to a country other than South Sudan or unless one of the exceptions in s197C(3)(c) were to apply;

11    The ultimate conclusion the Minister reached was in these terms:

[227]    I reasonably suspect that [the applicant] does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) of the Act and he has not satisfied me otherwise. Further, I am satisfied that refusal of his visa is in the national interest. The power under s501A(2) of the Act to refuse to grant [the applicant] a visa is therefore enlivened.

…

[230]    I acknowledge that [the applicant] is the subject of a protection finding and that he is therefore a person to whom Australia owes protection. I have also considered that any removal of [the applicant] would be in breach of Australia’s non-refoulement obligations and would have serious implications not only for [the applicant] as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation. Again, I have noted that [the applicant’s] removal to South Sudan is not authorised by the Act as a result of s197C(3).

…

[238]    I find that the above considerations favouring not setting aside the original decision…are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the original decision…and refuse to grant [the applicant’s] application for a Protection (Class XA) visa under s501A(2) of the Act.

Other relevant provisions

12    The other provisions of the Migration Act to which the Minister referred in his decision include:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

…

197C    Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198

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

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

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

(a)    the non-citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

(iii)    the non-citizen has asked the Minister, in writing, to be removed to the country.

[“Protection finding” is also defined in s 197C(4)–(7)].

198    Removal from Australia of unlawful non-citizens

[Provides that an officer “must remove as soon as reasonably practicable an unlawful non-citizen” in specified circumstances].

13    Section 197C(3) was inserted into s 197C by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). In the Second Reading speech for this amending Act (Hansard, 25 March 2021, p 3497) the Minister explained that:

The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 amends the Migration Act to clarify that, in line with Australia’s international obligations relating to non-refoulement, the removal power in the Migration Act does not require or authorise removal of a person where they have been assessed as engaging those obligations.

14    The Minister also said that:

…a number of court decisions have made it clear that section 197C, which was inserted to limit successful injunctions to prevent removal where a person has been assessed as not engaging protection obligations, also operates to require removal where the person has been assessed as engaging those obligations.

This is quite obviously not reflective of the original intent of section 197C under the Migration Act.

This bill seeks to address this disconnect by making it clear that the Migration Act does not require or authorise the removal of a person to a country in relation to which the person has been assessed in the statutory protection visa process as facing persecution or a real risk of torture, cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the application of the death penalty. This change will improve our nation’s ability to uphold human rights.

The applicant’s grounds

15    In respect of ground one, the applicant submitted that a number of international treaties to which Australia is a party would be contravened by the indefinite detention of the applicant, namely, the International Covenant of Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and (by reason of Australia’s membership of the United Nations) the Universal Declaration of Human Rights (UDHR).

16    The applicant relied on Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 395 ALR 57 at [10], [15], [177] and [181] to support the proposition that for any decisions in which there are considerations relating to the “national interest” such as a decision made under s 501A(2), if it be relevant, a violation of international law, qua law, was intrinsically and inherently a matter of national interest and therefore within the subject of evaluation. The applicant also relied on ENT19 v Minister for Home Affairs [2021] FCAFC 217 which applied CWY20. The applicant submitted that Plaintiff M1 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417, on which the Minister relied, is distinguishable.

17    According to the applicant:

(1)    the Minister concluded that it was in the national interest to refuse to grant the applicant a protection visa under s 501A(2) at [145]–[150] of his reasons;

(2)    the Minister reached this conclusion without considering how refusing the applicant’s visa would be consistent with, or could otherwise be reconciled with, the apparent contraventions of international law; and

(3)    in so doing, the Minister failed to take into account the violation of international laws by reason of the applicant being indefinitely detained as a consequence of the refusal of his visa and erred in the manner contemplated by the Full Court in CWY20.

18    In respect of ground two, the applicant submitted that as there was no bona fide or rational possibility that the powers in ss 195A or 197AB would ever be exercised in relation to the applicant (particularly given the Minister’s statement at [237] that he could not “rule out the possibility of further criminal conduct by [the applicant]. The Australian community should not tolerate any risk of further harm”), it was unreasonable for the Minister to take into account as he did at [224]–[225] any possibility of an exercise of power under those provisions. The applicant cited in support Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [55] per Gageler J, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] per Allsop CJ (Markovic and Steward JJ agreeing), and AEM20 v Minister for Home Affairs [2020] FCA 623; (2020) 277 FCR 299 at [109]–[117] per Katzmann J.

19    Additionally, the applicant submitted that in the circumstances disclosed in the Minister’s reasons at [219]–[222] about the applicant’s complex mental and physical health needs, the Minister had to consider the consequence of the refusal of the visa in the context of those needs and the capacity for those needs to be met in detention.

Consideration

20    CWY20 and ENT19 were decided before the insertion of s 197C(3) into the Act. They are decisions to which s 197C(3) responds.

21    In CWY20 Allsop CJ said:

[10]    Australia’s international obligations and violation thereof can thus be seen to bear directly and naturally on the conception of the “national interest”.

…

[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.

22    Chief Justice Allsop made these observations in a particular context. First, his Honour agreed with the reasons of Besanko J: [1]. Secondly, he added some observations, of which [10] and [15] form part. Thirdly, he noted that the issue of the significance of Australia being in breach of international law as law (irrespective of the law having been enacted into Australian law), was important but had only been raised in oral address without “significant elaboration”: [5]. Fourth, he noted that the concept of the “national interest” appeared as “an evaluative touchstone in many pieces of Commonwealth legislation” and, when used, it often required consideration of Australia’s international obligations: [9].

23    Chief Justice Allsop’s observation at [10] (“Australia’s international obligations and violation thereof can thus be seen to bear directly and naturally on the conception of the “national interest”) reflects the incontrovertible factual proposition that any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest. In other words, it could not be said that a violation of Australia’s international obligations is extraneous to the concept of the national interest. His Honour is not suggesting that in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest.

24    Chief Justice Allsop’s observation at [15] is premised on the condition “if it be relevant”. His Honour is not saying that a “violation of international law, qua law” is a mandatory relevant consideration of any assessment of the national interest. He is saying that if that matter is or becomes relevant in respect of any visa decision dependent on an evaluation of the national interest, that matter (“violation of international law, qua law”) is “within the subject of evaluation”. That is, speaking generally, the matter is a permissible consideration.

25    The principal judgment in CWY20 was that of Besanko J (with whom Kenny and Charlesworth JJ also agreed). In deciding to refuse a visa, the Acting Minister referred to Australia’s non-refoulement obligations as “countervailing considerations” (that is, weighing against refusal of the visa): [41]. The Acting Minister had also made the following findings summarised by Besanko J at [43]:

… (1) on 29 July 2016, a delegate of the Department indicatively found that the respondent is a refugee on account of his claims with respect to his race and religion; (2) the delegate’s finding that the respondent is a person in respect of whom Australia has non-refoulement obligations means that his removal to Afghanistan would be in breach of Australia’s international non-refoulement obligations; (3) by reason of a combination of ss 501E and 48A of the Act and the Migration Regulations 1994 (Cth) (the Regulations) relevant to Bridging R (Class WR) visas, a decision unfavourable to the respondent will mean that he will be unable to apply for another visa; (4) the refusal of the respondent’s application for a visa has the consequences under the Act that he will become liable for removal from Australia as soon as reasonably practicable under s 198 of the Act and in the meantime, detention under s 189. Further, s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non-citizen; (5) that he has a personal non-compellable power under s 195A of the Act to grant a visa to the respondent if he considers that it is in the public interest to do so; and (6) if the respondent is removed to Afghanistan, there is a risk that he would suffer the type of harm described in his claims for protection, including death at the hands of the Taliban and other extremist groups.

26    The key conclusions from Besanko J’s judgment are:

(1)    s 501A(2) involves a discretion separate from the required mental states of the Minister specified in the section: [93] and [108];

(2)    on the facts of that case, the Acting Minister did not consider Australia’s non-refoulement obligations in his assessment of the national interest (but only in his assessment of his ultimate discretion): [133];

(3)    although the Minister’s power to reach a state of satisfaction as to the national interest is a broad one, it is well established that it is not unconfined and that the Minister must attain the state of satisfaction reasonably: [140];

(4)    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 Migration Act in the sense of a consideration to be taken into account in every case: [155];

(5)    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: [157];

(6)    the protection visa regime and s 197C support the view that Australia’s non-refoulement obligations are not a mandatory relevant consideration in the consideration of the national interest pursuant to s 501A(2), but they say nothing, or very little, about whether it was legally unreasonable for the Acting Minister not to consider the implication of Australia’s non-refoulement obligations in the particular circumstances of the case. Furthermore, it should be noted that s 197C of the Act operates in a particular context and at a particular stage, that is, for officers at the stage of removal: [160];

(7)    in the particular circumstance of this case, it was necessary for the Acting Minister to recognise the implications of Australia breaching its non-refoulement obligations in his assessment of the national interest, although the precise weight to be accorded to it and how it was to be balanced against other factors was a matter for the Acting Minister and the Acting Minister alone: [169]; and

(8)    had the Minister considered the implications of Australia breaching its non-refoulement obligations as part of his consideration of the national interest, there was at least a possibility that he may have given different weight to the national interest when balancing it with other considerations which were relevant to the exercise of his discretion: [172].

27    CWY20 was applied in ENT19. In ENT19, Katzmann J (Collier and Wheelahan JJ agreeing) went further than CWY20 in saying at [98] that:

…there is a difference between considering matters personal to a visa holder or visa applicant, especially matters of the kind to which the Full Court referred in Huynh, and considering matters that necessarily result from the application of the Act. The prospects of refoulement and indefinite detention are matters of the latter kind. Australia’s international treaty obligations are of particular relevance to any consideration of the national interest. One such obligation is Australia’s obligation under Article 33 of the Refugees Convention, which is the foundation for some of the rights to protection for which the Act provides. A similar obligation arises from Article 3 of the CAT, which is the foundation for other rights to protection enshrined in the Act.

28    At [100] Katzmann J said:

The mere fact that the criterion is applied to applications for a SHEV [Safe Haven Enterprise Visa] does not mean that the decision-maker can ignore the prospect of refoulement or indefinite detention when considering whether it is in the national interest in a particular case to grant a SHEV.

29    At [107]–[108] Katzmann J said:

…the implications for Australia of returning the appellant to his country of nationality in breach of Australia’s non-refoulement obligations were also intrinsically and inherently relevant, for the reasons identified by Allsop CJ in CWY20, including because a breach of international legal obligations is a legal consequence of the decision. So, too, was the prospect of indefinite detention for, unless the detention were for a lawful purpose, detaining the appellant indefinitely could put Australia in breach of its obligations under the ICCPR.

Further, as in CWY20, in the particular circumstances of the present case no reasonable decision-maker could lawfully calculate whether it was in the national interest to grant the applicant a visa without considering both these prospective eventualities. Even if detaining the appellant indefinitely were lawful, as a legal consequence of his decision the Minister was bound to take it into account before determining whether he could be satisfied that it was in the national interest to grant the appellant a visa.

30    At [112] Katzmann J concluded that this error was material and jurisdictional.

31    The present case is different, including because of the application of s 197C(3) of the Migration Act. In the present case the Minister found that s 197C(3) applied to the applicant. He accepted that any removal of the applicant in breach of Australia’s non-refoulement obligations would involve both a risk of serious harm to the applicant and have implications for Australia in terms of its international standing and reputation which were relevant to his evaluation of the national interest. That is, the Minister in the present case did not commit the legal error the Full Court found had occurred in CWY20. The argument in the present case involves an extension of the reasoning in CWY20, of the kind which arose in ENT19, albeit in the different statutory context at the time in which s 197C(3) did not exist.

32    The applicant’s proposed extension of the reasoning in CWY20 involves a number of steps: (a) as a result of ss 189, 196, and 197C(3), the applicant was required to be detained but would not be removed from Australia, (b) therefore, the applicant would be kept in indefinite detention, (c) indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party, (d) the Minister did not consider those breaches of Australia’s international obligations in evaluating the national interest, and (e) by analogy to the reasoning in CWY20, it was legally unreasonable for the Minister not to have considered those breaches of Australia’s international obligations in evaluating the national interest.

33    This raises a number of issues for consideration.

34    First, proposition (b) above (the applicant would be kept in indefinite detention) is contestable. The Minister accepted that the applicant would have to be detained until removed from Australia or granted a visa: [218]. He accepted that the applicant could not be removed to South Sudan given s 197C(3) of the Migration Act, and that the prospects of finding another country willing to receive him were poor. Accordingly, the applicant faced “the prospect of immigration detention for an indefinite period”. That prospect was subject to the applicant being invited to apply for a Bridging R (Class WR) visa under s 501E(2)(b) (as prescribed by reg 2.12AA of the Migration Regulations 1994 (Cth)), the Minister granting another visa under s 195A, or the Minister making a residence determination under s 197AB.

35    In respect of ground two, the applicant contended that these were not “bona fide or rational” possibilities given the Minister’s finding at [237] that he could not “rule out the possibility of further criminal conduct by [the applicant]. The “Australian community should not tolerate any risk of further harm”.

36    I disagree.

37    SZVFW at [55] is not authority to the contrary. In [54]–[57] Gageler J said only that a court in the exercise of judicial power is bound to determine whether the exercise of power said to be legally unreasonable was legally reasonable or not. An appellate court must decide whether a primary judge’s conclusion one way or another is right or wrong. To do so, an appellate court must determine the issue of legal unreasonableness for itself.

38    Nor is Hands at [3] authority to the contrary. In [3], Allsop CJ’s point is that administrative decisions involve real-world human consequences, potentially devastating in effect, and that “[g]enuine consideration of the human consequences demands honest confrontation of what is being done to people”.

39    In AEM20 at [108]–[116] Katzmann J referred to the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276 at [48] in which his Honour held that no Minister, acting reasonably, having decided to refuse a protection visa, could at the same time consider that an application for another visa had any prospect of being granted before the applicant’s removal in accordance with s 198 “as soon as reasonably practicable” after the decision.

40    The critical difference between BAL19 and the present case is again the operation of s 197C(3) which removes the obligation on an officer to remove the applicant from Australia as soon as reasonably practicable. Further, Katzmann J’s conclusion in AEM20 that, having found that the risk of harm to the Australian community posed by the applicant’s continuing presence in Australia was unacceptable, the prospect that he might be granted a visa under s 195A was fanciful, and the Minister’s opinion “that Australia’s non‑refoulement obligation to the applicant could be addressed by the use of his non-compellable power to grant him a visa in the public interest was infected by jurisdictional error” (at [113] and [117]) relates to an exercise of power under s 501 of the Migration Act, not an exercise of power calling for an evaluation of the national interest as required by s 501A(2). BAL19 and AEM20 also involved a temporal constraint which is inapplicable in the present case as a result of the operation of s 198 (which confined the period within which there could be another exercise of Ministerial power, such as s 195A) to that between the decision and the removal of the applicant as soon as reasonably practicable. That temporal constraint is inapplicable in the present case given the application of s 197C(3) of the Migration Act.

41    In any event, the problem with the applicant’s approach to the rationality of the possibility of another Ministerial exercise of power the result of which would be that the applicant would no longer be an “unlawful” non-citizen, is that it assumes that the only time for assessment of the rationality of possibility is the time at which this Minister made this decision. It may be accepted that, at the time this Minister made this decision, there was no rational prospect of this Minister exercising any power enabling the applicant to become a “lawful” non-citizen and, therefore, not subject to the requirement of detention. This is because this Minister, having found that the national interest weighed in favour of refusal of the visa could not logically conclude that the applicant should be granted a visa in the public interest without some changed circumstance. This is one basis capable of explaining BAL19 and AEM20. However, in the present case the Minister was not referring to such a possibility (that, there and then, he might exercise such a power). The Minister was saying that a Minister has these powers and might exercise them in the future: see [224] and [225].

42    The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.

43    It follows that the Minister’s assessment, that the applicant faced “the prospect of immigration detention for an indefinite period”, was accurate. The Minister did not purport to suggest that this prospect was other than the most likely. He accepted and confronted this as the most likely prospect for the applicant, subject to the possibility of a Ministerial exercise of power the effect of which would be to release the applicant into the Australian community from detention under the Migration Act. The relevance of this for the legality of the Minister’s consideration of the national interest is that, unlike CWY20, there was no accepted and inevitable breach of Australia’s international non-refoulement obligations as there would have been if the applicant in that case had been deported to Afghanistan. Rather, there was a likelihood that the applicant would face indefinite detention in Australia, subject to a possibility of a Ministerial exercise of power ending that detention in the future. When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, the difference cannot be disregarded.

44    Proposition (c) above (indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party) is also contestable. In CWY20 the Acting Minister found that removal of the applicant in that case to Afghanistan would breach Australia’s international non-refoulement obligations. There is no equivalent finding in the present case that indefinite detention of the applicant (or, accurately, the prospect, in the sense of likelihood of, indefinite detention of the applicant) would be a breach of Australia’s international obligations. Nor is that manifestly correct.

45    Article 9.1 of the ICCPR provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

46    The UHDR provides that:

Article 3

Everyone has the right to life, liberty and the security of person.

…

Article 5

No one shall he subjected to torture or to cruel, inhuman or degrading treatment or punishment.

…

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

47    Article 16 of the CAT provides that:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

48    I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.

49    The contestable nature of proposition (c) is also exposed in the Statement of Compatibility with Human Rights which accompanied the amending Act, required under s 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). In that statement (attached to the Explanatory Memoranda for the Bill) at p 14, it says that:

While some unlawful non-citizens affected by the amendments made by the Bill will be subject to immigration detention while awaiting removal, the Minister’s decision not to grant them a visa or place them in community detention will be made in consideration of their individual circumstances. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to their individual circumstances and therefore not be arbitrary and contrary to Article 9 [of the ICCPR].

50    The contestable nature of proposition (c) is exposed further in the Minister’s submissions in which the Minister said that the applicant had not explained how immigration detention in accordance with the Migration Act (ss 189 and 196) contravenes the ICCPR, UDHR or CAT. The Minister also said:

Articles 2 and 26 of the ICCPR have no relevance to the present case. To the extent that the applicant’s contention is that he is unable to access an appropriate remedy in respect of his indefinite detention, the argument founders when it is accepted that he may make an application in a court of competent jurisdiction for a writ of habeas corpus (if his detention is unlawful) or a writ of mandamus (if the Commonwealth is dilatory in performing its duty under s 198 to remove him from Australia as soon as reasonably practicable).

Nor is Art 9 apt. As Hayne J observed in Al-Kateb v Godwin, “[t]here must, at least, be doubt about whether the mandatory detention of those who do not have permission to enter and remain in Australia contravenes Art 9 of the ICCPR when the detention is in accordance with a procedure established by law (Art 9(1)) and the lawfulness of that detention can readily be tested in a court (Art 9(4))”. The applicant does not otherwise explain how immigration detention under ss 189 and 196 of the Act in his circumstances is “arbitrary” within the meaning of Art 9(1).

The UDHR does not itself create enforceable obligations at international law; rather, it was through the adoption of the ICCPR that the translation of the UDHR into enforceable obligations was achieved. In any event, it is difficult to see how immigration detention could give rise to a contravention of the rights in Arts 2, 3, 7, 8 or 9 of the UDHR. So far as Art 9 of the UDHR is concerned, the applicant does not explain how immigration detention under ss 189 and 196 of the Act in his circumstances is “arbitrary”.

The applicant’s reliance on Art 16.1 of the CAT is also misplaced. The applicant has not shown how detention under ss 189 and 196 of the Act is cruel, inhuman or degrading treatment or punishment. Mandatory detention is not “punishment” because of the legal characteristics of the persons on whom it is imposed and the purpose for which it is imposed.

51    I do not need to decide if these contentions are right or wrong. The relevant point for present purposes is that the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.

52    The Minister submitted that CWY20 is not authority for the proposition that, in forming the state of satisfaction described in s 501A(2)(e), a failure by a decision-maker to have regard to Australia’s international non-refoulement obligations will result in that state of satisfaction not being attained reasonably. I agree. CWY20 is authority for the proposition only that such a decision may be legally unreasonable depending on the circumstances.

53    The Minister submitted that the observations of Allsop CJ in CWY20 are not to be understood as saying that Australia’s international non-refoulement obligations are a mandatory relevant consideration in every decision under s 501A(2) of the Migration Act. Again, for the reasons already given, I agree.

54    The Minister submitted that the better view is that CWY20 stands for the narrower proposition that, depending on the circumstances of the case, a failure to take Australia’s international non-refoulement obligations into account in forming the state of satisfaction in s 501A(2)(e) may supply the inference that the decision-maker did not attain that state of satisfaction reasonably. I agree other than that a conclusion of legal unreasonableness is not an inference – it is a legal conclusion. As such, the better view of CWY20 is that, depending on the circumstances, a failure to consider Australia’s international non-refoulement obligations (a non-mandatory consideration) may make a decision legally unreasonable.

55    The Minister submitted that even if CWY20 remains good law following the High Court’s judgment in Plaintiff M1 (which the Minister disputes), it does not control the outcome of this case. Again, I agree for the reasons already given.

56    As noted, the conclusions in ENT19 involved a statutory context (the absence of s 197C(3) of the Migration Act) and facts different from the present case. In particular, in ENT19 the Full Court characterised the applicant’s grievance as that he “would be refouled, regardless of his wishes”, and this reflected the relevant statutory provisions in that case (which did not include s 197C(3)): [56]. But, as also discussed, the reasoning of the Full Court in ENT19 also proceeded on a broader basis, that the legal consequences of the Minister’s decision included either refoulement in breach of Australia’s international obligations or indefinite detention, and that in evaluating the national interest, it was legally unreasonable for the Minister not to consider those legal consequences.

57    This reasoning in ENT19 appears to have assumed that continued detention (as required by ss 189 and 196), if the person could not be removed due to Australia’s international non-refoulement obligations, would be indefinite detention in breach of Australia’s international obligations. The reasoning in ENT19 also appears to have assumed that such continuing detention would be lawful under Australian law, despite the detention (arguably) not being for the purpose of removal or assessment. In this regard I note that in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562, also decided before the insertion of s 197C(3) into the Migration Act, the High Court said at [26]:

The correctness of the constitutional holding in Al‑Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562], that ss 189, 196 and 198 are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future, does not arise for consideration in the present case.

58    This critical question arises (but, insofar as I am aware, remains unanswered, particularly in the context of the operation of s 197C(3) of the Migration Act) because of the principle from CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [374] per Gageler J that:

deriving from Ch III of the Constitution, …a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved.

59    In support of this proposition, his Honour cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 33; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [138]–[140]; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [25]–[29].

60    This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.

61    What then is the status of ENT19? ENT19 must be distinguishable because it is based on a different statutory regime (without s 197C(3)) and different facts (the Minister’s reasoning process was different). On this basis, I am not bound by the reasoning in ENT19, but the doctrine of precedent is not so confined. To ascertain the persuasive authority or otherwise of ENT19 I need to assess the Minister’s contention that CWY20 (and therefore ENT19) cannot be good law following the High Court’s decision in Plaintiff M1.

62    Plaintiff M1 does not concern s 501A(2) of the Migration Act. It concerns s 501CA(4) of the Migration Act which enables the Minister to revoke a cancellation decision if, relevantly, the Minister is satisfied that there is another reason why the cancellation decision should be revoked. In that context, the High Court held that Australia’s international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration: [9(2)], [20], [29]. The High Court explained that reasoning of this Court to the contrary by any one of five paths was wrong. Those paths were described at [32]–[35] as finding error (citations omitted):

…on the basis that the decision‑maker conflated the concept of Australia's non‑refoulement obligations under international law with protection obligations under the Migration Act (the first path), failed to appreciate the qualitative differences in the manner in which Australia's non-refoulement obligations may be considered for the purposes of s 501CA(4) and the protection visa process (the second path), or misunderstood that the protection visa process does not call for full exploration of whether Australia is in breach of non‑refoulement obligations under international law (the third path)…

The fourth path of reasoning was that error could be found on the basis that a decision‑maker failed adequately to consider representations about non‑refoulement obligations (or non‑refoulement claims squarely arising from the materials) by deferring assessment of whether a former visa holder was owed non‑refoulement obligations to a potential protection visa application…

To the extent that those paths of reasoning focused on decision‑makers failing to properly consider the consequences, both to a former visa holder and to Australia (for example, the impact on Australia’s reputation and standing in the global community), which would flow from removing a former visa holder contrary to non‑refoulement obligations under international law, they ignored the choice Parliament made about the extent to, and manner in, which Australia’s international non‑refoulement obligations are incorporated into the Migration Act…

The fifth path of reasoning was that error could be found on the basis that a decision-maker misunderstood the likely course of decision‑making under the Migration Act because the decision-maker erroneously assumed that non‑refoulement obligations would necessarily be considered in the protection visa process…

63    The Minister also referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101] and CPCF at [385] and [490]. In Lam at [101], Gleeson CJ said that it was “established doctrine” that unenacted international obligations are not mandatory relevant considerations in discretionary administrative decision-making except to the extent required by the doctrine of procedural fairness. In CPCF at [385], Gageler J said that the principle that a statute is to be construed, so far as its language permits, consistently with established rules of international law did not assist an argument regarding certain limitations on a statutory duty. At [490] in CPCF, Keane J said that “[p]owers exercisable by the Executive government under the common law are not limited by international law obligations not incorporated into domestic law”. Neither case considered the question whether a decision might be legally unreasonable if, in the particular circumstances of that decision, the Minister did not consider the consequences of the decision for Australia’s international law obligations.

64    In Plaintiff M1, the High Court did not refer to CWY20 or ENT19. They are not one of the decisions of this Court held to be wrong in footnotes 61–69 of Plaintiff M1. Further, the High Court refused special leave to appeal in both CWY20 and ENT19 in the week before publication of Plaintiff M1. Moreover, the focus of the High Court’s reasoning in Plaintiff M1 is not the legal reasonableness of the Minister’s state of satisfaction in respect of the national interest. This all said, in circumstances where both CWY20 and ENT19 are clearly distinguishable, the reasoning in Plaintiff M1 also indicates that CWY20 and ENT19 should not be treated as persuasive authority in respect of Ministerial decisions made after the enactment of s 197C(3) of the Migration Act.

65    On this basis, I conclude as follows.

66    First, I am not prepared to infer that in reaching his state of satisfaction about the national interest, the Minister did not consider that a consequence of a decision refusing a visa would be the prospect of indefinite detention of the applicant. While the Minister did not refer to this prospect in his conclusions about the national interest at [140]–[145], he did refer in his overall discussion of the national interest (at [18]–[145]) to: (a) the circumstances which founded the “protection finding” made in respect of the applicant ([135]), (b) the engagement of s 197C(3) of the Migration Act as a result ([144]), and (c) the applicant’s submission that the Australian community would not expect his visa to be refused given, amongst other things, “Australia’s obligation as a ‘good global citizen’ not to subject him to prolonged or indefinite detention, which would be the ‘practical and legal consequence’ of a decision to refuse his visa” ([123]). These references indicate the Minister’s consideration of the prospect of indefinite detention of the applicant in evaluating the national interest.

67    Secondly, I do infer that in reaching his state of satisfaction about the national interest, the Minister did not consider that a consequence of a decision refusing a visa would be the indefinite detention of the applicant and that indefinite detention would place Australia in breach of its international obligations. I infer this as: (a) there is no reference to Australia’s international obligations potentially being breached by indefinite detention under the Migration Act in the Minister’s reasons, (b) all of the references in the Minister’s reasons to Australia’s international obligations are focused on its non-refoulement obligations, (c) s 197C(3), as the Second Reading speech discloses, was inserted to ensure Australia was not placed in breach of its international non-refoulement obligations, and (d) there is nothing in the context of the introduction of s 197C(3) which suggests consideration of the potential breach of other international obligations relating to indefinite definition (or, indeed, Australian law relating to the authorised duration of executive detention).

68    Thirdly, I do not accept that in reaching a state of satisfaction about the national interest under s 501A(2)(e) or otherwise exercising the discretion under s 501A(2) of the Migration Act, the Minister was bound to consider that the consequence of a decision refusing a visa would be the indefinite detention of the applicant and that indefinite detention would place Australia in breach of its international obligations as a mandatory relevant consideration under the terms of the Act. I do not accept this as: (a) it is inconsistent with the authorities discussed above, (b) the actual legal consequence of the decision to refuse the visa was not the certainty, but the likelihood, of indefinite detention of the applicant, (c) more importantly, it is reasonably arguable but by no means certain that such detention would place Australia in breach of its international obligations, and (d) it is at least as reasonably arguable that such detention would place the Commonwealth in breach of Australian law and, if this is found to be so by a court of competent jurisdiction, such detention could not continue. This is in circumstances where the substance of Australia’s international obligations concerns detention which is “arbitrary” or on grounds not “established by law”.

69    Fourthly, I do not accept that in reaching a state of satisfaction about the national interest under s 501A(2)(e) or otherwise exercising the discretion under s 501A(2) of the Migration Act, the Minister acted legally unreasonably. Unlike the Minister, I see no incongruity in the proposition in CWY20 at [157] that a matter may not be a mandatory relevant consideration under the terms of the Act, but that a failure to consider that matter may involve jurisdictional error in the particular circumstances of the case on the ground of legal unreasonableness (as well as, I note, possibly denial of procedural fairness). I would not rule this possibility out as necessarily illogical for every case involving a decision under s 501A(2).

70    In this case, however, I am unable to conclude that in not considering the matter the applicant identified (the violation of international laws by reason of the applicant being indefinitely detained as a consequence of the refusal of his visa) in reaching his state of satisfaction about the national interest (or otherwise) the Minister acted legally unreasonably. This is because: (a) the actual legal consequence of the decision to refuse the visa was not the certainty, but the likelihood, of indefinite detention of the applicant, (b) more importantly, it is reasonably arguable but by no means certain that such detention would place Australia in breach of its international obligations, (c) it is at least as reasonably arguable that such detention would place the Commonwealth in breach of Australian law and, if this is found to be so by a court of competent jurisdiction, such detention could not continue, and (d) the applicant did not make any claim for consideration by the Minister that his indefinite detention would place Australia in breach of any international obligation.

71    This means that I must reject ground one of the application.

72    I am also not persuaded by any aspect of ground two of the application.

73    As already discussed, I do not accept that it was legally unreasonable for the Minister to consider the possibility that a Minister, exercising powers under the Migration Act, might do so with the result that the applicant could no longer be held in detention. This possibility was not fanciful given that Ministers change, Ministers change their minds, and circumstances change.

74    The Minister considered the applicant’s complex mental and physical health needs (including at [219]–[222]). The applicant contended that the Minister failed to consider that these needs would continue to be insufficiently treated in detention. I disagree. It is apparent from [222] that the Minister took this into consideration, saying that “indefinite or prolonged detention is likely to adversely impact [the applicant’s] mental health and will be detrimental to the ongoing management of his physical injuries” and this “weighs in favour [of] not refusing his visa application”. Nor was the Minister legally obliged to make factual findings about each and every claim of the applicant: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 408 at [14].

75    Given these conclusions, it is unnecessary to consider the disputed issue of the materiality of the alleged jurisdictional errors.

76    For these reasons the application must be dismissed with costs.

Associate:

Dated:    28 July 2022