Consideration
30 In CWY20, Besanko J held at [155] that the implications of Australia breaching its non-refoulement obligations was 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. At this level, there is no inconsistency between CWY20 and Plaintiff M1. The question in CWY20 was whether in the circumstances of addressing in that case an issue raised by domestic law, namely s 501A(2)(e) of the Act, consideration of the national interest could be reasonably undertaken without addressing the potential breach of international obligations. In separate reasons in CWY20, Allsop CJ agreed with Besanko J. His Honour then made some additional remarks, with which Kerr J at [177] and Charlesworth J at [181] agreed -
[10] Australia's international obligations and violation thereof can thus be seen to bear directly and naturally on the conception of the "national interest".
…
[14] Thus, part of the national interest can be seen necessarily to be the question of whether a decision should be made that may lead, pursuant to the (then) command of Parliament, and depending on the circumstances, to a state of affairs where Australia would act in breach of its treaty obligations, being in this case a rule expressly recognised by Australia and other contracting states to the relevant conventions: that is, in breach of international law, and in that sense unlawfully.
[15] It goes without saying that it is a matter for the Executive to determine whether it is in the national interest for a given visa to be cancelled. Within any such decision, if it be relevant, the violation of international law, qua law, is intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation. So much has been recognised in other Commonwealth legislative regimes, and so much ought to be recognised in the context of the Migration Act in respect of non-refoulement obligations.
(Emphasis added.)
31 It is not at all clear that anything said by the majority Justices in Plaintiff M1 necessarily cuts across the Full Court's decision in CWY20. In Plaintiff M1, the question considered in CWY20 concerning the evaluation by the Minister of the national interest as a mandatory consideration did not arise. The question in Plaintiff M1 was whether a decision-maker, considering revocation of a decision to cancel a visa under s 501CA(4), was required to determine whether non-refoulement obligations were owed to a former visa holder who made representations that raised a potential breach of those obligations, but where the person remained free to apply for a protection visa. The dispute was not if, but how such representations should be considered by the decision-maker: see Plaintiff M1 at [21]. At [29]-[30], Kiefel CJ, Keane, Gordon and Steward JJ in their joint judgment drew a distinction between representations that relied on international non-refoulement obligations, and representations making claims of non-refoulement arising under domestic law, stating -
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error - they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(Footnotes omitted.)
32 There is no necessary inconsistency in this regard between Plaintiff M1 and CWY20, where as we have mentioned, Besanko J held that the implications of Australia breaching its non-refoulement obligations was not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act.
33 In the joint judgment in Plaintiff M1 at [34], their Honours referred to paths of reasoning in decisions of this Court that focused on decision-makers failing to consider properly the consequences 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. Their Honours stated that these paths of reasoning ignored the choice that Parliament had made about the extent to, and manner in which, Australia's international non-refoulement obligations are incorporated into the Migration Act. Several decisions were cited, by way of example, in the footnotes to [34]. The relevant paths of reasoning that were illustrated by the cited decisions were disapproved. The citations included a reference to the dissenting reasons of Wigney J in BHL19 v Minister v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 (BHL19), to which senior counsel for the respondents took us during argument. BHL19 concerned a discretionary decision under s 501(1) of the Act to refuse a protection visa on character grounds. By his dissenting reasons, Wigney J held at [236] that "the Minister's reasoning concerning the effect that his decision would have, including the breach of Australia's international non-refoulement obligations, was flawed and unreasonable". At [224], which was cited in the joint judgment in Plaintiff M1 at footnote (66), his Honour referred to several conventions giving rise to international non-refoulement obligations, stating, "[o]ne would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly". As with Plaintiff M1, BHL19 was not concerned with claimed legal unreasonableness in the evaluation of the national interest as a mandatory consideration.
34 CWY20 was not cited in the footnotes of cases that were disapproved in the joint judgment in Plaintiff M1. We are not prepared to entertain that, by a side wind, the High Court's decision in Plaintiff M1 "contradicts" the decision of the Full Court in CWY20 with the consequence that this Court should now reconsider CWY20. This is particularly so when, on 5 May 2022, the High Court dismissed on the papers an application for special leave to appeal the decision in CWY20: [2022] HCASL 93. We say this acknowledging the limitations on the significance of the dismissal of an application for special leave: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; 256 CLR 104 at [52] (French CJ, Nettle and Gordon JJ), [111]-[112] (Kiefel and Keane JJ), [119] (Bell and Gageler JJ). However, the relevance of the dismissal is to the principles of stare decisis. In our view, any challenge in this Court to CWY20 should proceed on the basis of a submission that it was plainly wrong on some principled basis relevant to the disposition of this appeal, which would have to confront the array of considerations referred to by Allsop CJ in Minister for Immigration v FAK19 [2021] FCAFC 153; 287 FCR 181 at [2]-[32]. Not only has that submission not been put, but we do not find it necessary to address the respondents' more nuanced submission that the Full Court's decision in CWY20 is now contradicted by Plaintiff M1, which may be seen as a direct challenge to CWY20 under another guise. That is because the issue on this appeal can be determined on the facts.
35 In this case, the relevant mandatory consideration was the national interest, as required by s 501A(2)(e). It is important to appreciate that the appellant's claim on appeal does not rely on any failure by the Minister to address a mandatory relevant consideration. Rather, by reference to the facts and circumstances of CWY20, it is argued that the Minister's consideration of the national interest was legally unreasonable. Whether a process of decision-making, or the outcome of a decision-making process, is legally unreasonable to the high threshold that is required is fact-dependent. In this appeal, it was a feature of the submissions of counsel for the appellant to this Court that the Minister did not "give active intellectual consideration" to the prospective breach of Australia's non-refoulement obligations. Of like phrases, in Plaintiff M1, Kiefel CJ, Keane, Gordon and Steward JJ stated at [26] -
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Peko-Wallsend,"[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
(Footnotes omitted.)
36 In CWY20, Besanko J stated at [163] that "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", citing Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 125-6 (Mason J) and 219 (Brennan J). At [166], Besanko J referred to the primary judge's reasons, which his Honour said made clear that the weighing process was a matter for the Minister and not for the courts. To the same effect, in Plaintiff M1, Kiefel CJ, Keane, Gordon and Steward JJ stated at [24] in the context of representations made pursuant to s 501CA(4) of the Migration Act which are, as a whole, a mandatory relevant consideration -
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
(Emphasis added, footnotes omitted.)
37 The outcome of this appeal should not depend upon a comparison of the facts of this case with the facts of others, although valuable insight into the principles may be gained as a result of reference to their application in other cases. Subject to that qualification, a conspicuous feature of CWY20 was that the relevant decision-maker in that case, the Acting Minister, did not refer at all to international non-refoulement obligations in the section of his reasons that addressed whether he was satisfied that the cancellation of the visa was in the national interest. Here, as the primary judge stated at [91] and [93] of his Honour's reasons, the Minister expressly referred to Australia's international non-refoulement obligations under the heading of "Expectations of the Australian community" in considering the national interest: see [60]-[62] of the Minister's reasons. At [62], the Minister referred to the fact that international non-refoulement obligations, and matters of prolonged detention would be addressed later. At [94] of the Minister's reasons, which we set out above, the Minister acknowledged that the removal of the appellant to Iran would breach those obligations, and at [98] the Minister acknowledged that such a breach would have serious implications for Australia in terms of its international standing and reputation.
38 In this case, it is our view that the Minister did not act unreasonably by addressing non-refoulement obligations through the lens of expectations of the Australian community, or by incorporating by reference his later consideration of non-refoulement obligations when addressing "other considerations". Fairly read, the textual link at [62] of the Minister's reasons to [94] and [98] shows that the Minister did advert to and consider international non-refoulement obligations and Australia's standing when considering the national interest. Those considerations simply did not carry any determinative weight in the Minister's evaluation. In our view, the appellant's claim that the Minister thereby did not give "active intellectual consideration" to the question of the breach of international non-refoulement obligations amounts to a submission that the Minister should have considered those matters in a different way, when this was a matter of sensitive judgment for the executive branch of government, to be performed by the Minister. The Minister's reasons show that he was not persuaded that the potential breach of non-refoulement obligations should have decisive weight in his evaluation of the national interest. This decision was within the wide bounds of what was largely a political question, and the claimed jurisdictional error that is the subject of this appeal has not been demonstrated. The decision of the primary judge was therefore correct.