Did the Acting Minister/Minister make a Jurisdictional error? (Grounds 1, 2A and 3 of the Appeal and Ground 5A of the Application)
135 The issue raised by these grounds is whether the Acting Minister/Minister made a jurisdictional error in not considering the implications of a breach of Australia's non-refoulement obligations as part of his consideration of whether he was satisfied that a refusal or cancellation of a visa was in the national interest.
136 Once the issue of the character test is determined, the power in s 501A(2) is exercised by reference to broad criteria. The power is a substantial one; in these two proceedings, for example, it involved a decision as to whether to set aside decisions of the Tribunal. The power is one that may only be exercised by the Minister personally (s 501A(5)) and it is a non-compellable power, that is, the Minister does not have a duty to consider whether to exercise the power whether or not the Minister is requested to do so or in any other circumstances (s 501A(6)). The Minister's decision is not reviewable under Part 5 or Part 7 of the Act (s 501A(7)). The Minister is accountable to Parliament in respect of decisions under s 501A(2) and, as the cases referred to below make clear, the Minister's decision is essentially a political one best suited to resolution by the holder of a political office.
137 The criterion in s 501A(2)(e) that the Minister is satisfied that the refusal or cancellation is in the national interest, is a broad one and the authorities have made it clear that it is largely for the Minister and not the Courts to determine what is and what is not in the national interest. The latter point has been made in a number of cases in which the Court has considered whether the Minister is entitled to take into account, in his or her consideration of the national interest, the seriousness of the criminal conduct which has led to the person not passing the character test: Gunner at 409; Re Patterson at 418-419 per Gaudron J; at 502-503 per Kirby J; Madafferi at 351; Carrascalao at 390-391. The nature of the task under s 501A(2)(e) is of evaluation: Re Patterson at 447.
138 In considering the meaning of the expression "public interest" in Part IIIA of the Trade Practices Act 1974 (Cth) in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 (Pilbara), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [42]):
Criterion (f) was "that access (or increased access) to the service would not be contrary to the public interest". It is well established that, when used in a statute, the expression "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is "neither arbitrary nor completely unlimited" but is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view". It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.
(Citations omitted. Emphasis in original.)
139 The Full Court of this Court in Carrascalao said (at [157]), by reference to Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, and Madafferi at [89], that the observations in Pilbara have even stronger force when the relevant statutory expression is the "national interest".
140 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 (Re Patterson at 446-447 per Gummow and Hayne JJ (Gleeson CJ agreeing); Graham at [57] and [59] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Madafferi at [89]; Carrascalao at [158]).
141 The test of reasonableness in the case of the existence of an opinion as a condition of the exercise of a power is also well established. The primary judge's careful elucidation of the relevant principles in the appeal and the fact that no party challenged his Honour's statement of the principles means that a short summary of the relevant principles will suffice.
142 The grounds of review are necessarily limited and an affirmative answer to such a challenge is not lightly given. The grounds include a failure to address the correct question, a material mistake of law, taking into account extraneous or irrelevant matters or failing to take into account relevant considerations or a decision that is illogical, irrational or plainly unreasonable (R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430-432 per Latham CJ; Avon Downs at 360 per Dixon J; SGLB at [38] per Gummow and Hayne JJ; SZMDS at [32], [35], [37]-[38], [40] per Gummow ACJ and Kiefel J; at [120], [124], [130], [131] per Crennan and Bell JJ). It is more difficult to successfully challenge a decision which engages matters of opinion, policy or taste (Buck v Bavone at 118-119 per Gibbs J).
143 In the appeal, the primary judge held that the Acting Minister erred in not taking into account the implications of Australia's breach of its non-refoulement obligations as part of his consideration of the national interest. His Honour held that that was a jurisdictional error because it can be described "alternatively as reasoning unreasonably or failing to act upon a correct understanding of the law" (PJ at [136]).
144 The focus of the submissions of both the Acting Minister and the respondent on the appeal was on the primary judge's conclusion that the Acting Minister's reasoning was unreasonable, rather than on his conclusion that the Acting Minister proceeded on an incorrect understanding of the law.
145 I have set out above what the Acting Minister said about the concept of the national interest. Although he outlined by reference to authority some principles relevant to the concept of the national interest, he did not address in express terms whether the implications of Australia breaching its non-refoulement obligations should or should not be part of his consideration of the national interest.
146 In Avon Downs, Dixon J said (at 360):
If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
147 The respondent did make a submission that an analogous process of reasoning should be adopted in relation to the Acting Minister's reasons and that it should be concluded that the Acting Minister's failure to take into account the implications of Australia breaching its non-refoulement obligations in his consideration of the national interest was the result of the Acting Minister not having a correct understanding of the law.
148 That is a possible approach, particularly bearing in mind the point made on many occasions in the authorities that the grounds of judicial review overlap and there is no rigid demarcation between them. However, I think the parties were correct to focus on the primary judge's conclusion that the jurisdictional error was that the Acting Minister had reasoned unreasonably, rather than the alternative basis that he proceeded on an incorrect understanding of the law, because as the primary judge made clear his conclusion of unreasonableness was based on the particular circumstances of the case.
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.
151 The issue of whether Australia's non-refoulement obligations is a mandatory relevant consideration in the exercise of the power in s 501A(2) of the Act is raised in the application in Ground 5A. It is an issue which has been considered by both this Court and the High Court in the context of other character sections in Part 9 of the Act.
152 In Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 (Le), the Full Court of this Court 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) of the Act in circumstances in which it is clear that it remains open to the person to make an application in Australia for a protection visa. The circumstance that it remained open to the person to make an application for a protection visa was critical to the Court's analysis. The Court said (at [41] and [65]):
41 For the following reasons, we respectfully consider that the primary judge erred in holding that the issue of Australia's obligation not to refoule Ms Le was a mandatory consideration in the particular circumstances of Ms Le's case when the Minister was considering whether or not to exercise his discretion to cancel her 1994 visa under s 501(2) of the Migration Act. In our view, this was not a mandatory relevant consideration under s 501(2) in circumstances where it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia's non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister. It is critical to this analysis that, as the Minister acknowledged in both [48] of his statement of reasons and in his submissions to the Court, there is no legal impediment to Ms Le applying in Australia for a protection visa.
…
65 For these reasons, the primary judge erred in concluding, in the particular circumstances relating to Ms Le, that Australia's non-refoulement obligations were a mandatory consideration in the exercise of the Minister's power under s 501(2). That is because it was open to Ms Le to apply for a protection visa and to put before the Minister any material relating to whether Australia owed protection obligations to her, whether her removal to Vietnam would be in breach of Australia's non-refoulement obligations or whether there was some other reason personal to her as to why there was a real possibility that she might be held in immigration detention indefinitely.
153 In Applicant S270/2019 , Nettle, Gordon and Edelman JJ, in the course of considering whether non-refoulement obligations were a mandatory relevant consideration under s 501CA(4), made the following observations (at [33]-[35]):
33 Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.
34 That conclusion is reinforced by the fact that non-refoulement is addressed separately in the Act in provisions concerning the grant of protection visas (being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently with its non-refoulement obligations under international law) and in the context of removal . Given those express provisions, it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised. It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non-refoulement claim is made in a revocation request.
35 Put in different terms, it is through express provisions in the Act that Australia's non-refoulement obligations under international law have been implemented in Australian domestic law; and, if a non-citizen affected by cancellation seeks to have the Minister consider non-refoulement and remains free to apply under those express provisions for a protection visa, the Minister is not required to consider non-refoulement unless a claim for a protection visa is made.
(Citations omitted.)
154 Neither s 501(2) which was in issue in Le, nor s 501CA(4) which was in issue in Applicant S270/2019, contained consideration of the national interest as a condition for the exercise of the power. In the case of the appeal and the application, both persons have been recognised as persons to whom Australia owes protection obligations and, in the case of the application, the applicant was in fact granted a protection visa some years ago. The visa in issue in the appeal is a species of protection visa. On the findings of the decision-maker in each of the appeal and the application, a decision adverse to the person in each case means that he is precluded from making any application for a visa in the future. In each of the appeal and the application, Australia's non-refoulement obligations have been raised in the decision-making process and clear findings as to their significance have been made by the decision-makers.
155 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.
156 In the appeal, the Acting Minister challenged the primary judge's conclusion that he had reasoned unreasonably on three main grounds.
157 First, he submitted that bearing in mind that Australia's non-refoulement obligations is not a mandatory relevant consideration in the decision-maker's consideration of the national interest under s 501A(2)(e) of the Act, it would be a decidedly odd result to conclude in those circumstances that, nevertheless, the Acting Minister acted unreasonably because he failed to take into account Australia's non-refoulement obligations as part of the national interest. As I understood the argument, it was that a conclusion of legal unreasonableness was effectively a failure to take into account a mandatory relevant consideration under another guise. 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.
158 Secondly, the Acting Minister submitted that there is little indication in the Act to suggest Australia's non-refoulement obligations should be considered as part of the national interest in the decision-making process under s 501A(2). There are the provisions which comprise the protection visa regime (ss 5H, 5J, 35A, 36, 37A, 91A-91X) and none of those provisions are engaged. There is s 197C of the Act where Parliament has addressed the significance of Australia's non-refoulement obligations, albeit in a way that makes it clear that they are irrelevant for the purpose identified in the section.
159 Section 197C, to the extent presently relevant, provides as follows:
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.
160 In my opinion, the answer to this second argument is similar to the answer to the first argument. 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.
161 Thirdly, the Acting Minister submitted that although it was open to him to consider and accord some weight to the impacts on Australia's reputation and relationships with other countries of a breach of its non-refoulement obligations as part of his assessment of the national interest, he could not be, and was not, bound to do so. The effect of the primary judge's conclusion of unreasonableness was that the Acting Minister was so bound and that was an error for the following three reasons.
162 The first reason is that the primary judge's approach involved a construction of s 501A(2)(e) of the Act which requires the Court to pass judgment on sensitive topics of foreign relations. It requires the Court to determine the effect, or likely effect, on Australia's reputation or international relationships of non-compliance by the executive government with international legal obligations. Those reputational and relational matters and their bearing on the national interest are, as the Acting Minister put it, "so within the core political conception of the national interest that they are committed by the Act to the Minister personally, such that the Minister's assessment of whether they should be given weight in any given case would not readily be characterised as irrational or unreasonable in the exacting legal sense". In discerning the "boundaries" of the national interest, regard must be had to the extent to which the matters said to be within the national interest are especially within the competence of the executive branch of government.
163 The Acting Minister pointed to the fact that Courts traditionally exercise restraint in construing conferrals of power where matters of international relations or comity are involved (see, for example, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at [250]-[258] per Keane J). Furthermore, the effect of Australia not complying with a treaty or convention is ordinarily a matter of sensitive judgment for the executive branch of government and not for the Courts. In Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1, Mason J said (at 125-126):
In any event, as I observed in Koowarta, the Court would undertake an invidious task if it were to decide whether the subject-matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the executive government and Parliament. The fact of entry into, and of ratification of, an international convention, evidences the judgment of the executive and of Parliament that the subject-matter of the convention is of international character and concern and that its implementation will be a benefit to Australia. Whether the subject-matter as dealt with by the convention is of international concern, whether it will yield, or is capable of yielding, a benefit to Australia, whether non-observance by Australia is likely to lead to adverse international action or reaction, are not questions on which the Court can readily arrive at an informed opinion. Essentially they are issues involving nice questions of sensitive judgment which should be left to the executive government for determination. The Court should accept and act upon the decision of the executive government and upon the expression of the will of Parliament in giving legislative ratification to the treaty or convention.
(Citation omitted.)
Justice Brennan (as his Honour then was) said (at 219):
Indeed, an inquiry into the extent to which a failure to fulfil a treaty obligation has the capacity to affect Australia's relations with other countries is an inquiry that could hardly be pursued by this Court without advice given by the executive government.
164 In essence, the Acting Minister's submission is that the primary judge's conclusion necessarily involved a conclusion by the Court that the Acting Minister was required to place particular weight on the reputational or relational impacts of breaching international non-refoulement obligations and thereby appropriating without justification to the Court the function of determining from case to case "what the reputational and relational effects of breach are likely to be" and to require the Court "to pass judgment on sensitive questions of foreign relations between Australia and other countries".
165 I do not accept this submission. It involves a considerable overstatement of the primary judge's approach to the extent of judicial review of the Acting Minister's decision and his conclusion with respect to the national interest in particular.
166 As I have said, the primary judge concluded that the Acting Minister gave no consideration to the implications of Australia breaching its non-refoulement obligations in the context of his assessment of the national interest and the Acting Minister's challenge to that conclusion fails. Although it is true that the primary judge held that Australia's breach of its non-refoulement obligations had to be considered as part of the consideration of the national interest in order for the Acting Minister to meet the requirement of acting rationally and reasonably, the primary judge made it clear that the weighing process was a matter for the Acting Minister and not for the Courts (see PJ at [119]). Even if, contrary to my view, Ground 1A should be upheld and it should be concluded that the Acting Minister considered Australia's breach of its non-refoulement obligations in the context of his consideration of the national interest and decided that those obligations were not material in that context, the primary judge did not then engage in a weighing process, but rather went no further than saying that the Acting Minister, acting rationally and reasonably, could not have concluded that Australia's breach of its international legal obligations was immaterial to his assessment of Australia's national interest (PJ at [135]).
167 As wide as the Minister's power to determine what is and is not in the national interest may be, and fully recognising the extent to which political considerations are relevant to the exercise of the power, nevertheless, the power has boundaries and it is the responsibility of the Court to identify those boundaries when called upon to do so. The requirement that the Minister attain his state of satisfaction under s 501A(2)(e) reasonably places that obligation on the Court.
168 Furthermore, the context in this case is considerably broader than whether non-compliance with a convention "is likely to lead to adverse international action or reaction", to use the words of Mason J in The Tasmanian Dam Case. Not only is ratification by Australia of an international convention not to be dismissed as a merely platitudinous or ineffectual act, as Mason CJ and Deane J said in Teoh (at 291), but also, as their Honours said, ratification of a convention is a positive statement by the executive government of this country not only to the world, but also to the Australian people that the executive government and its agencies will act in accordance with the convention. In addition, positive statements that Australia will not remove a person in breach of non-refoulement obligations appear in the Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (the Explanatory Memorandum) and in Direction 79 issued by the Minister under s 499 of the Act (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA).
169 The second reason advanced by the Acting Minister is that it cannot be assumed that in every case weight must be given in the national interest assessment to the consequences of a breach of non-refoulement obligations. He submitted that it is uncontroversial that the character concerns enlivening the exercise of power, including the seriousness of the criminal conduct and the risk of reoffending, are matters that can weigh, and can weigh decisively, in the assessment of the national interest. Although the second proposition is undoubtedly correct, I do not accept the first. The Acting Minister submitted that in a case such as this where the offending is of a sexual nature and there was a finding of a risk of reoffending, it could not be said that it was irrational or unreasonable of the Acting Minister to place no weight on the implications of Australia's breach of its non-refoulement obligations. With respect to this submission, the first point to note is that in view of the rejection of Ground 1A, the case is one of the Acting Minister not considering the implications of Australia's breach of its non-refoulement obligations and not one of the Acting Minister considering that matter and deciding that it is immaterial to the national interest. In any event, I do not accept that in a case such as the present it would be open to the Acting Minister to dismiss the implications of Australia's breach of its non-refoulement obligations as of no weight or immaterial insofar as it is suggested that he could have done that and any error was immaterial. 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.
170 The third reason advanced by the Acting Minister reflects Ground 3 of the appeal. It is that no finding can be made about the implications of Australia's breach of its non-refoulement obligations in terms of its reputation and relations with other countries in the absence of actual evidence that such matters would be harmed.
171 The primary judge said that the Court was entitled to take judicial notice of the fact that acting inconsistently with international law obligations may undermine confidence externally. The primary judge was entitled to make this finding. The obligation was voluntarily assumed by Australia under international law and involved a number of other countries. Furthermore, the broader context is again relevant. The assumption of the international law obligations and the statements in the Explanatory Memorandum and in Direction 79 were positive statements to the Australian people and the primary judge did not err in also concluding that acting inconsistently with international law obligations may undermine confidence within Australia. Compliance with international law obligations was an aspect of the national interest.
172 The primary judge was clearly right to conclude that the step in the decision-making process at which the Minister considers the implications of Australia breaching its non-refoulement obligations is important. He noted, correctly in my view, that had the Acting 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. Furthermore, as the primary judge noted (PJ at [136]) there was at least a possibility that the Acting Minister may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest and, if the precondition in s 501(2)(e) to the exercise of his power was not met, he would not have progressed to consider his residual discretion.
173 For these reasons, the appeal must be dismissed.
174 With respect to the application, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Minister and, subject to one matter, the Minister made the same findings as the Acting Minister made in the decision which is the subject of the appeal. Those findings include a finding by the Minister that Australia owed non-refoulement obligations to the applicant and that refusing him a visa would put Australia in breach of those obligations. The Minister's decision to cancel the applicant's visa meant that he would be refouled in breach of Australia's obligations under international law. The one difference between the application and the appeal is that in the application the Minister did not make a finding that there was an accepted risk that the applicant would be killed if he was returned to his country of origin. However, that is not a material difference for the purposes of the analysis set out above. In those circumstances, the same conclusion follows in the case of the application as follows in the case of the appeal. In the application, that is that the Minister made a jurisdictional error in his decision made on 7 December 2020 in that he did not attain his state of satisfaction under s 501A(2)(e) as to the national interest reasonably.