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[2020] HCA 32
respondent. Appeal dismissed with costs.
1 cited instrument linked from this judgment.
A man who came to Australia as a child refugee from Vietnam later committed serious crimes and had his permanent visa cancelled while in prison. He asked the Minister to cancel that cancellation and stay in Australia with his family, mentioning his difficult childhood but not claiming he would be persecuted or harmed if sent back. The Minister said no. The High Court decided the Minister did not have to investigate Australia's international duty not to send people to places where they face persecution (non-refoulement) because the man had never actually claimed he was at risk. The Court said such issues only need to be looked at if the person raises them or if they apply for a protection visa. The appeal was dismissed.
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2,299 words · generated 24/04/2026
The appellant arrived in Australia in 1990 at age 15 after spending his early years in a Hong Kong refugee camp following his departure from Vietnam at age seven. He entered on a humanitarian visa that did not require any assessment under the Refugees Convention. In 1994 he was granted a Class BB Subclass 155 Five Year Resident Return visa, which he used to make a brief trip to Vietnam before returning. He married an Australian citizen (also a former refugee from the same camp) and they had three Australian-citizen children. Over the following decades he accumulated a substantial criminal record. In 2004 he received an aggregate sentence of four years and six months’ imprisonment with a two-and-a-half-year non-parole period for five offences including aggravated break and enter. In 2013 he was sentenced to six years’ imprisonment with a three-and-a-half-year non-parole period for a further aggravated break and enter offence committed in 2010.
While serving the 2013 sentence he became liable for mandatory visa cancellation. On 26 April 2016 the respondent Minister cancelled the visa under s 501(3A) of the Migration Act 1958 (Cth) on the basis that the appellant had a substantial criminal record and was serving a full-time sentence of imprisonment of 12 months or more. The same day the Department sent the appellant a notice of cancellation, a revocation request form, Ministerial Direction No 65 and other materials. The notice expressly drew attention to the issues in Part C of the Direction that a decision-maker would consider relevant to revocation and invited the appellant to address them.
On 12 May 2016 the appellant lodged a revocation request. The form asked whether he had “any concerns or fears about what would happen to you on return to your country of citizenship”. He ticked “yes” and referred to an attached letter. That letter emphasised his traumatic childhood as a refugee, his wife’s similar background, his complete lack of ties to Vietnam, the absence of accommodation or employment there, and his unwillingness to live with his brother (who also had a criminal record). It did not contain any assertion that he held a subjective fear of persecution or that there was an objective risk of serious harm for a Convention reason. On 24 November 2016 the Department wrote again, enclosing a 2006 International Obligations and Humanitarian Concerns Assessment that had concluded no non-refoulement obligations were owed to him. The appellant was invited to comment. On 2 December 2016 he responded by repeating that both he and his wife had fled “post-war terrors” and that he could not ask her to return to “the place of her fear”. Letters from his wife and children were attached. He made no substantive comment on the 2006 Assessment.
On 17 January 2017 the Minister personally decided not to revoke the cancellation. The appellant sought judicial review in the Federal Court. The matter reached the Full Court and then, by grant of special leave, the High Court. The sole ground on which special leave was granted was that the Minister had been obliged, and had failed, to consider whether non-refoulement obligations were owed when exercising the s 501CA(4) power. That ground had not been raised in the courts below. Kiefel CJ and Gageler J concluded that the evidentiary foundation was insufficient to engage the point of principle and would have revoked special leave. Nettle, Gordon and Edelman JJ (whose reasons dispose of the appeal) held that the ground failed on the facts and on the law. The appeal was dismissed with costs.
The plurality (Nettle, Gordon and Edelman JJ) began from the text, subject matter, scope and purpose of s 501CA(4). The power arises only after the Minister has invited representations and the person has made them. The Minister may revoke if satisfied the person passes the character test or “there is another reason why the original decision should be revoked”. The obligation is therefore to consider the claims and material the applicant actually puts forward. On a fair reading of everything the appellant submitted, he had never asserted a forward-looking fear of persecution or serious harm in Vietnam. References to “post-war terrors”, childhood trauma in the refugee camp and practical difficulties on return did not equate to a claim that Australia owed him non-refoulement obligations. The 2006 Assessment had expressly found no such obligations and the appellant had been given, and had not taken, the opportunity to contest that assessment.
Because no non-refoulement claim had been raised, it was unnecessary to decide whether such obligations could be a mandatory relevant consideration in other factual scenarios. The plurality nevertheless went on to explain why, as a matter of statutory construction, non-refoulement is not mandatorily required to be considered in every s 501CA(4) case involving a non-protection visa. The Migration Act deals with non-refoulement in discrete, express provisions: the criteria for protection visas and the removal provisions. It would cut across that scheme to read the general character-based cancellation and revocation powers as impliedly requiring consideration of non-refoulement “in the abstract” when the applicant has not invoked the specific protection pathways and has not raised the issue. The Minister’s discretion, though wide, is not at large; it is to be exercised by reference to the case the applicant has chosen to present. In the absence of any such case on non-refoulement, the Minister did not err by failing to consider it.
Kiefel CJ and Gageler J reached the same ultimate result by a shorter route. They emphasised the paucity of evidence. Even if the Minister had been required to consider non-refoulement, the appellant had not demonstrated that there was any realistic possibility the Minister’s decision would have been different. Material before the Court suggested that circumstances in Vietnam had changed significantly since the appellant’s departure. The question of principle therefore arose in a hypothetical vacuum and it was neither necessary nor appropriate to answer it. Their Honours would have revoked special leave, but the plurality’s dismissal of the appeal produced the same formal order.
Before this decision, the law contained some uncertainty about the intersection between character-based visa cancellation and Australia’s non-refoulement obligations. Earlier Full Federal Court authority had suggested that, in at least some contexts, the Minister or delegate was required to consider non-refoulement when exercising powers under s 501 or s 501CA even if the person had not made a protection visa application. There was also debate about whether a decision-maker could lawfully “defer” consideration of non-refoulement to a later protection visa stage. Ministerial Direction 65 (the version applicable at the time) listed non-refoulement as a factor to be considered in revocation decisions, but the plurality noted that the Minister personally is not bound by the Direction.
After the decision the position is clearer. Where an applicant for revocation under s 501CA(4) does not advance any claim that engages non-refoulement, the Minister is not obliged to consider that issue as a mandatory relevant consideration. The statutory scheme is to be read as channelling non-refoulement claims into the protection visa regime or into removal decisions. The revocation power is not a general humanitarian safety-net that requires the Minister to hunt for unarticulated international-law issues. The decision therefore narrows the scope of mandatory considerations in character cancellation cases and reinforces the primacy of the specific protection visa provisions. It also confirms that an applicant’s failure to raise a claim in response to an express invitation can be fatal to a later argument that the Minister overlooked the issue.
At the heart of the plurality’s reasoning is the statement that “non-refoulement obligations are not a mandatory relevant consideration under s 501CA(4) of the Migration Act where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.” In plain English: unless the person actually says, in substance, “I will be persecuted or seriously harmed if sent back”, the Minister does not have to investigate that possibility when deciding whether to revoke a character cancellation.
Another key passage explains the architecture of the Act: “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.” Translation: Parliament has deliberately placed the non-refoulement rules in the protection visa part of the Act. A person who wants those rules applied should use that pathway rather than expecting the Minister to import them automatically into every character case.
The plurality also addressed the appellant’s attempt to rely on past trauma: “Australia’s non-refoulement obligations are forward-looking. On a fair reading of the material before the Minister, the appellant made no claim that gave any reason to require the Minister to consider Australia’s non-refoulement obligations. As the Minister submitted, the only available inference from the material the appellant submitted in support of his revocation request is that he does not have any such fear.” Plain English: talking about how bad things were decades ago in Vietnam or in a refugee camp does not automatically raise a claim that you would be at risk now if returned. The Court will look at what the person actually said about current risk.
This precedent is engaged whenever a non-citizen who is not the holder of a protection visa has had their visa mandatorily cancelled under s 501(3A) and seeks revocation under s 501CA(4). It applies with particular force where the representations made in support of revocation contain no assertion, express or implied, of a well-founded fear of persecution for a Convention reason or of serious harm for any other non-refoulement reason. Typical triggers include: lengthy criminal history leading to full-time imprisonment; references only to family ties in Australia, lack of connections to the home country, or generalised hardship on return; an express departmental invitation to comment on a non-refoulement assessment that found no obligations owed, followed by no substantive contest; and a subsequent judicial review application that seeks to characterise past refugee history or family trauma as sufficient to raise the issue.
The precedent does not apply, or at least does not compel the same outcome, where the revocation request squarely raises a fear of persecution, provides country information, or expressly invokes Articles 1A, 33 or 1C of the Refugees Convention. It also leaves open the position where the Minister or delegate purports to “defer” consideration to a protection visa application after a claim has in fact been made. The ratio is therefore narrowly tied to the absence of any claim on the material before the Minister.
The source judgment itself contains no discussion of its future treatment, as it post-dates all earlier authority. It does, however, carefully distinguish the factual setting from cases in which a non-refoulement claim was squarely raised. The plurality’s emphasis on the need for the claim to be “raised” or “suggested” by the materials has reinforced a line of authority that treats the content of the applicant’s representations as decisive. The judgment’s construction of the statutory scheme as deliberately separating character cancellation from the protection visa regime has been cited for the proposition that general powers should not be read as impliedly incorporating international obligations that Parliament has chosen to locate elsewhere. Because the decision turned on both the absence of a claim and the statutory context, later courts have treated the mandatory-consideration holding as confined to situations where no claim was made, while noting that the obiter observations on deferral remain unresolved.
The plurality expressly left two related questions undecided. First, whether, in a case where a non-refoulement claim is squarely raised in a revocation request, the Minister may lawfully decide to defer any consideration of that claim to a subsequent protection visa application. Second, the precise content of the Minister’s obligation where the materials before him “suggest” (even if they do not squarely assert) that non-refoulement obligations may be engaged. The judgment also leaves open the position in respect of visas that are protection visas, or where the applicant has already been assessed as a refugee and the question is whether Art 1C(5) of the Refugees Convention has caused that status to cease. Kiefel CJ and Gageler J’s separate reasons add a further open evidential question: what degree of factual material is required before a court can conclude that a failure to consider non-refoulement could have made a difference to the outcome. These gaps mean that litigation is likely to continue to test the boundary between “no claim made” (this case) and “claim made but deferred”.
Most practitioners assume that any mention of refugee history or “fear” in revocation submissions automatically triggers a duty to consider non-refoulement; this judgment shows that is not so. The Court looks for a forward-looking, Convention-linked fear, not generalised hardship or nostalgia for past trauma. Another trap is treating Ministerial Direction 65 as creating legal obligations on the Minister personally; the plurality noted the Direction is not binding on the Minister and cannot be used to excuse an applicant’s failure to raise a claim. Finally, the case illustrates the high evidentiary burden on an applicant who seeks to run a new jurisdictional-error argument on appeal: without cross-examination-proof material showing that a different decision was realistically possible, the ground will fail even if the legal principle is sound. Compliance professionals should therefore advise clients to articulate any protection claim with precision at the revocation stage rather than hoping the Minister will infer it.
S E J Prince SC with S G Lawrence and I Chatterjee for the appellant (instructed by Purcell Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, with R S Francois for the respondent (instructed by Mills Oakley)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Applicant S270/2019 v Minister for Immigration and Border Protection
Immigration - Visas - Cancellation of visa - Revocation of cancellation - Where s 501(3A) of Migration Act 1958 (Cth) provides that Minister must cancel visa if satisfied person does not pass character test because they have substantial criminal record and person is serving sentence of imprisonment on full-time basis - Where s 501CA(4) provides that Minister may revoke decision to cancel visa if conditions in s 501CA(4)(a) and (b) are met - Where s 501CA(4)(a) requires that person makes representations in accordance with invitation from Minister - Where s 501CA(4)(b) requires that Minister is satisfied person passes character test or there is another reason why decision should be revoked - Where appellant held visa which was not protection visa - Where appellant's visa cancelled under s 501(3A) and Minister declined to revoke cancellation under s 501CA(4) - Whether Minister obliged to, and failed to, consider whether non‑refoulement obligations were owed to appellant when exercising power under s 501CA(4).
Words and phrases - "another reason", "cancellation", "discretion", "fear of persecution", "international law", "mandatory relevant consideration", "non‑refoulement", "refugee", "revocation", "substantial criminal record", "sufficient evidence", "visa".
KIEFEL CJ AND GAGELER J. The facts relevant to this appeal are set out in the reasons of Nettle, Gordon and Edelman JJ. At issue on this appeal is the decision of the respondent ("the Minister") not to revoke the cancellation of the appellant's visa. The sole ground upon which special leave was granted was that the Minister was obliged to and failed to consider whether non‑refoulement obligations were owed to the appellant when exercising the discretionary power under s 501CA(4) of the Migration Act 1958 (Cth). This was a ground which had not been raised in the courts below. On the application for special leave to appeal, it was submitted by counsel for the appellant that the ground "arises on the materials in evidence below", which is to say that it was capable of determination by this Court on the available evidence. Unfortunately that has not proved to be the case. The appellant's ground of appeal required him to establish, in the first instance, that protection obligations such as those owed to a refugee were or are owed to him. It is only if such obligations were or are owed that an issue as to whether the appellant could be returned to Vietnam without harm could arise. Much of the argument on the appeal was directed to whether there was sufficient evidence to permit a conclusion to be reached on that initial premise. But there were other difficulties with the state of the evidence. The appellant accepted that even if he established that the Minister was required to consider Australia's non-refoulement obligations and that the failure to do so constituted jurisdictional error, he would need to show that there was at least a possibility that the Minister's consideration of that issue would have resulted in a decision to revoke the cancellation of the visa. But there was no sufficient evidence from which the Minister could have concluded that if the appellant was now returned to his country of origin he remained at risk of harm. Such evidence as there was suggests that much has changed since he left Vietnam. It follows that the question of principle which underpinned the grant of special leave does not arise. In the absence of a factual context we do not consider it either necessary or appropriate to comment upon whether s 501CA(4) of the Migration Act might oblige the Minister to consider whether non-refoulement obligations are owed when deciding whether to revoke a decision to cancel a visa that is not a protection visa. To answer what is in the circumstances largely a hypothetical question is not useful and may mislead. In our view the proper course is to revoke the grant of special leave, dismiss the application for special leave and order the appellant to pay the costs of the application and this hearing.
NETTLE, GORDON AND EDELMAN JJ. This appeal from a decision of the Full Court of the Federal Court concerns the validity of the decision of the respondent ("the Minister") under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the appellant's Class BB Subclass 155 Five Year Resident Return visa, which is not a protection visa. The appellant was granted special leave to appeal on one ground to the effect that when exercising the discretionary power under s 501CA(4) to revoke the cancellation of the visa, the Minister was obliged to, and failed to, consider whether non-refoulement obligations were owed to the appellant. Three questions were raised on appeal: did the material before the Minister raise the issue of whether Australia owed any non‑refoulement obligations with respect to the appellant; if so, did the Minister decide to defer consideration of that issue because any such obligations could be considered if the appellant made an application for a protection visa; and, finally, whether the Minister was required to consider Australia's non-refoulement obligations in making a decision under s 501CA(4) of the Migration Act. For the reasons that follow, the appeal should be dismissed. The appellant made no claim to fear persecution or serious harm so as to raise the issue of whether Australia owed any non-refoulement obligations and, in the circumstances of this matter, non-refoulement obligations were not a mandatory relevant consideration under s 501CA(4) of the Migration Act. Facts The appellant was born in Vietnam but left Vietnam aged seven. After eight years in a refugee camp in Hong Kong and aged 15, the appellant arrived in Australia on 7 June 1990 on a humanitarian visa. The visa did not have as a criterion that the appellant was entitled to protection under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees ("the Refugees Convention"). On 15 November 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa. On 22 November 1994, on that visa, the appellant departed Australia for Vietnam and then returned to Australia on 9 February 1995. The appellant is married to an Australian citizen, a woman he met as a child in the refugee camp in Hong Kong. They have three children, all Australian citizens. The appellant also has a lengthy criminal record. On 27 August 2004, the appellant was sentenced at the Sydney District Court for five offences including aggravated break and enter with intent and received various sentences of imprisonment aggregating to a total effective sentence of four years and six months' imprisonment with a non-parole period of two years and six months. On 13 September 2013, the appellant was sentenced at the Sydney District Court for an offence of aggravated break and enter with intent in company (which had occurred on 10 December 2010) and sentenced to six years' imprisonment with a non-parole period of three years and six months ("the 2013 Sentencing"). Cancellation of visa On 26 April 2016, the appellant's visa was cancelled pursuant to s 501(3A) of the Migration Act because he was serving a sentence of imprisonment of 12 months or more and therefore had a substantial criminal record ("the decision"). On that same day, 26 April 2016, the appellant was sent a notice of the decision, a copy of Direction No 65 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA ("Ministerial Direction 65") and a number of other enclosures including a revocation request form. Ministerial Direction 65 was explained in the notice of decision in these terms: "the Minister has issued [Ministerial Direction 65] which identifies issues that are relevant to the revocation consideration. A copy of [Ministerial] Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances. Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow [Ministerial] Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by [Ministerial] Direction 65, although [Ministerial] Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa." (emphasis added) It will be necessary to return to the Direction later in these reasons. Request to revoke cancellation of visa The appellant filled out the revocation request form on 12 May 2016 and sent the revocation request to the Department of Immigration and Border Protection ("the Department"). The form specifically asked the appellant to "provide your reasons as to why the Minister or his/her delegate should revoke the mandatory cancellation of your visa". It also asked the following: "Do you have any concerns or fears about what would happen to you on return to your country of citizenship? ... If yes, please describe your concerns and what you think will happen to you if you return". The appellant ticked "yes" to the first question and wrote "see letter attached" in response to the second question. The attached letter did not contain any claim to fear persecution or other serious harm. The letter set out that, at the 2013 Sentencing, the judge had "referred to the [appellant's] traumatic experience of ... being [a] refugee in a Hong Kong refugee camp for a number of years at such a young age" and the "desperate circumstances" in the early years of his life. The letter stated that the appellant's wife was also a refugee having fled Vietnam to Hong Kong and then to Australia. The letter, however, went on to state that: the appellant did not wish to return to his country of birth; he had no ties to Vietnam; he did not know what he would do once he arrived in Vietnam; he did not have a place to live or to work in Vietnam; he did not know his way around the country; and he did not want to live with his brother due to his brother's previous criminal record. On 24 November 2016, in a letter from the Department, the appellant was provided with particulars of information, including an "International obligations and humanitarian concerns assessment" ("the Assessment") dated 28 December 2006. The letter stated that the Department had received the information, including the Assessment, and that the information may be taken into account when making the decision whether to revoke the cancellation of his visa. The appellant was invited to comment on that information. Part C of the Assessment, headed "Non-Refoulement Obligations", listed 22 relevant considerations or questions, all of which were assessed not applicable to the appellant. The Assessment concluded that no non-refoulement obligations were owed with respect to the appellant. In relation to the first consideration - "[a]re there indications that a pattern of gross, flagrant or mass violations of human rights may exist in the State of reference?" - the comments section of the Assessment recorded that "[i]t must be noted that [the appellant] has not indicated a fear of returning to Vietnam on the basis of any Convention reason. He was only seven years old when he left Vietnam and has returned only briefly since, that being in 1994/95." In relation to another relevant consideration, the Assessment stated that the appellant was a person who had never been held to fall within Art 33(1) of the Refugees Convention because, as the comments section explained: "[The appellant] arrived in Australia as the holder of a Funded Special Humanitarian (subclass K4B12) visa. The criteria for that visa did not require an assessment under the Refugees Convention. Accordingly, [the appellant] had never been assessed in respect of Article 33(1) of the Refugees Convention prior to 19 December 2006, when a Protection Obligations Assessment was undertaken by a Protection visa delegate in the NSW Office in response to a request by NSW Compliance Cancellations/Refusals, Sydney office. That assessment found that [the appellant] did not fall within Article 33(1)." On 2 December 2016, the appellant responded to the Department's request for comment in the letter of 24 November 2016. The appellant's comment, or lack of comment, is telling. His submission relevantly stated: "My wife, like me, escaped Vietnam as a child fleeing the post-war terrors. She also spent years in the refugee camp in Hong Kong and I could never ask her to retrace that dreadful history by returning to the place of her fear." He attached letters from his wife and three children. He made no response to the invitation to comment in relation to the Assessment. On 17 January 2017, the Minister declined to revoke the earlier cancellation. Issue Section 501CA(4) states: "The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked." (emphasis added) The key question is whether the Minister was required to consider whether Australia owed non-refoulement obligations to the appellant as "another reason" under s 501CA(4)(b)(ii). The answer is no. Whether Australia owed non-refoulement obligations not raised The Department invited the appellant to provide reasons why he did not now wish to return to Vietnam and, in particular, to comment on the Assessment. There was nothing in any of the material submitted by the appellant in support of his revocation request that indicated or suggested that he now held a subjective or well-founded fear of persecution in Vietnam. The fact that the appellant told the Department in December 2016 that "[m]y wife, like me, escaped Vietnam as a child fleeing the post-war terrors. She also spent years in the refugee camp in Hong Kong and I could never ask her to retrace that dreadful history by returning to the place of her fear", does not advance the appellant's case. Australia's non-refoulement obligations are forward‑looking. On a fair reading of the material before the Minister, the appellant made no claim that gave any reason to require the Minister to consider Australia's non‑refoulement obligations. As the Minister submitted, the only available inference from the material the appellant submitted in support of his revocation request is that he does not have any such fear. The appellant's contention that he refrained from referring to his fears of returning to Vietnam in his responses to the Department because of the terms of Ministerial Direction 65 should be rejected. There is no finding, and nothing before this Court to suggest, let alone support a finding, that the appellant decided against including material to support his non‑refoulement claims because of the terms of that Direction. As the factual summary records, the appellant was provided with the Assessment and asked to comment on the Assessment, which he did. The material provided by the appellant to the Department stated that he and his wife fled the "post-war terrors" in Vietnam and that they both suffered traumatic experiences in a refugee camp in Hong Kong, at a young age, for a number of years. The fear described by the appellant may be accepted. But the fear in issue is more specific. The question is whether the appellant now has a subjective or well-founded fear of persecution in Vietnam. None has been identified. And, in any event, the contention that the appellant refrained from referring to his fears pertinent to his non-refoulement claims because of the terms of Ministerial Direction 65 was not raised below. Had it been, it could have been tested by the Minister in cross‑examination, which is no longer possible now. In the result, it would be unjust to permit the appellant to raise it for the first time on appeal. Similarly, the appellant's contention that the Minister was obliged to consider whether the appellant had ceased to be a refugee in accordance with Art 1C of the Refugees Convention does not arise. Even if the appellant falls within Art 1C(5) of the Refugees Convention (and it is unnecessary to decide that question), the material he provided to the Department did not suggest that the Refugees Convention still applies despite Art 1C(5) or that there are compelling reasons, arising out of previous persecution, for him refusing to avail himself now of the protection of Vietnam. In light of these conclusions, it is unnecessary to address the other issues raised in this appeal. It is, however, appropriate to say something further about s 501CA(4). Non-refoulement obligations not a mandatory relevant consideration under s 501CA(4) 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. 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. 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. It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non‑refoulement claim is made - as in this case - non-refoulement does not need to be considered in the abstract. In those circumstances, it would only need to be considered at a later time, if the applicant applied for a protection visa. The appellant has not done so. Conclusion and order For these reasons, the appeal is dismissed with costs.
Applicant S270/2019
Minister for Immigration and Border Protection
Appeal dismissed with costs.