BFM16's submissions
64 BFM16 made the following submissions in support of the first ground:
65 In the 2017 AAT decision record, the AAT found that BFM16 is a person in respect of whom Australia has protection obligations because he is a refugee who has a well-founded fear of persecution in his CoO for reasons of his religion: see [157] below.
66 Article 33(1) of the Refugees Convention expressly prohibits States from "expel[ling] or return[ing] a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened" on account of a reason which includes a person's religion.
67 In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [27] the High Court said (footnotes omitted):
First and foremost among those contextual reasons is that, read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. In some respects, as was explained in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the provisions of the Migration Act may, at times, have gone beyond what would be required to respond to those obligations. It is not necessary to explore those issues here. Rather, what is presently significant is that the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.
68 When (in item 6 on the cover page) the Minister was asked if he would like to consider alternative management options pursuant to ss 195A and 197AB of the Migration Act, the Minister selected the response "no submission required": see item 6 of the table at [38] above. That meant that the Department was required to remove BFM16 from Australia as soon as reasonably practicable: see s 198(6) of the Migration Act. Removal was to take place notwithstanding Australia's non-refoulement obligations: see s 197C of the Migration Act. Refoulement would be to his CoO as BFM16 has no right of residence elsewhere, which would be in breach of Australia's international obligations.
69 At R[14], the Minister noted that the terms of s 501A(2) make it clear that national interest considerations are separate and distinct from the question of whether or not a person passes the character test; that "national interest" is not defined for the purposes of s 501A; that Courts have generally been reluctant to attempt to define the meaning of "national interest" in statutory contexts; and that the "national interest" is different to the "public interest".
70 The Minister's power to override the 2018 AAT decision and refuse BFM16 a protection visa under s 501A(2) of the Migration Act is triggered by the "national interest" consideration in s 501A(2)(e).
71 At R[20], the Minister said that he considered that the matter of "national interest" includes, among other things, the seriousness of criminal conduct and any disposition imposed by a court and that it includes a consideration of the risk of reoffending and the harm that could flow from it if the risk eventuated. The Minister reached his conclusion that it was in the national interest to refuse to grant BFM16's visa at R[102] having had regard to those matters.
72 The Minister therefore did not take into account the consequences for the national interest of BFM16's refoulement. That conclusion is supported by these matters:
(1) Breach of Australia's international obligations by reason of BFM16's refoulement or the consequent damage to Australia's international reputation if it did so are not mentioned in that part of the Reasons which deals with the "national interest".
(2) Under s 501G of the Migration Act, the Minister is obliged to give reasons for his decision made under s 501A(2). The Minister's written reasons may and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account. If something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at [16] (Allsop CJ and Katzmann J) and [172]-[177] (Buchanan J) relying on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [5] (Gleeson CJ), [37] (Gaudron J), [69], [89] (McHugh, Gummow and Hayne JJ) and [133] (Kirby J); and s 25D of the Acts Interpretation Act 1901 (Cth) and s 501G of the Migration Act.
(3) As the Reasons in BFM16's case are otherwise comprehensive, it must be inferred that the matters referred to under the heading "national interest" and its sub-headings were the Minister's reasons for finding (at R[102]) that it was in the national interest that BFM16 not be granted a protection visa.
73 After considering the national interest, the Minister turned to consider issues relevant to his exercise of discretion. At R[114], the Minister says that he accepts the AAT's finding that BFM16 had "a fear of persecution" in his CoO for reasons of his religion. R[117] suggests that the Minister considered the consequences for BFM16 of ss 197C and 198 of the Migration Act in exercising his discretion. However these aspects of the Reasons do not demonstrate that the Minister considered the consequence for the national interest of Australia refouling BFM16 in breach of its international obligations.
74 BFM16 acknowledged that what constitutes the national interest is largely a political question (referring to Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 (Plaintiff S156/2013) at [40]) but submitted that it is not beyond judicial scrutiny. BFM16 relied on the High Court's decision in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) (Graham) at [57] as follows (footnotes omitted):
The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself".
75 BFM16 relied on the reasons of Rares J in FRH18 v Minister for Home Affairs [2018] FCA 1769; (2018) 266 FCR 413 (FRH18) for the proposition that, when reaching a decision under s 501A(2) of the Migration Act, breach of international obligations is a necessary consideration in the assessment of the national interest such that the failure to consider it amounts to jurisdictional error. BFM16 notes "close factual similarities" and differences between FRH18's case and BFM16's case:
(1) In FRH18's case, the Minister had circled the option on the cover page which indicated that he did want a briefing on alternative management non-compellable powers. The Minister indicated that he did not want such a briefing in BFM16's case. However, Rares J drew the inference that notwithstanding that the Minister had indicated that he wanted a briefing on alternative management, the only rational viewpoint, given his other reasons, that the Minister could have had was that he was never going to exercise a non-compellable power to allow FRH18 to stay in Australia: FRH18 at [53], [57]. It is that conclusion which bring FRH18's case and BFM16's case into line with each other and effectively created the same factual matrix. The result is that in both cases, if the visa was refused, the applicant would need to be removed from Australia as soon as reasonably practical.
(2) In both cases:
(a) The determination of the national interest is dealt with before the exercise of discretion;
(b) It is the ongoing risk that the applicant would potentially engage in criminal conduct which is determinative of the national interest;
(c) International non-refoulement obligations are referred to in the context of the exercise of discretion;
(d) The Minister accepts the findings made by the administrative decision-maker (the AAT in BFM16's case and the Department in FRH18's case) that Australia owes the applicant non-refoulement obligations;
(e) Findings are made in FRH18 in identical terms as R[115], [116] and [118] (see [55] above); and
(f) The Minister's consideration makes reference to the possibility of significant harm to the applicant and makes a comment in exactly the same terms to R[139] and [140] (see [56] above).
76 BFM16 noted the following features of the decision in FRH18:
(1) At [36], Rares J noted the Minister's submission (which is similar to the Minister's submissions in this case) that the power under s 501A(2) is personal to the Minister, it confers a wide discretion to decide what was in the national interest and it is not appropriate to seek to discern some unstated requirement that he has to consider specific factors that are personal to the applicant, relying on Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (Nystrom) at [125]-[129] (Heydon and Crennan JJ), with whom Gleeson CJ at [1] and Gummow and Hayne JJ at [39]-[41] agreed.
(2) At [42], Rares J sets out the passage from Graham at [57] and, at [43], Rares J noted that the High Court held (in Graham at [59]) that the Minister had to evaluate the material to which he had regard reasonably in forming his state of satisfaction as to the national interest in exercising his discretion under s 501(3).
(3) At [44], Rares J referred to NBMZ at [17] and [177] and Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 (Le) at [46] and [60]-[61] and noted that, by reason of his knowledge that Australia has currently existing non-refoulement obligations in respect of the applicant, the Minister had an obligation to take into account the legal consequences of a decision to cancel a visa under s 501(2) having regard to ss 48B, 189, 195A, 196, 197AB, 197C and 198 of the Migration Act.
(4) At [45], Rares J said (emphasis in BFM16's submissions):
Although their Honours discussed this issue using the expression "mandatory consideration", they did not do so because the Migration Act made it obligatory for the Minister to have regard to the most recent known material relevant to whether there was a likelihood of the visa holder becoming subject to indefinite detention or refoulement if the visa were revoked. Rather, the Minister's obligation to have regard to these matters arose because this consequence was the most up to date material before him relevant to his consideration of the detriment to the applicant from the exercise of his power to cancel the visa under s 501(2): Peko-Wallsend [(1986) 162 CLR 24] at 44-45 per Mason J with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue; which I applied in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at [27]-[42] in a manner approved by Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [75]-[77]; and see too S156/2013 [(2014) 254 CLR 28 at 46-47] [39]-[43] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
(5) At [46], Rares J states his opinion that "[t]he nature of the issues relevant to the Minister exercising his or her personal power under ss 501(1), (2), or (3) or 501A(2) to cancel a visa and the consequences for the individual concerned are materially similar, save that in the cases of ss 501(3) and 501A(2), the Minister must also be satisfied that the cancellation is in the national interest".
(6) At [47] Rares J rejected the Minister's submission recorded in FRH18 at [36], on the basis that s 197C, as currently enacted, did not exist in 2006 (when Nystrom was decided).
(7) At [49], [50], [52], Rares J said (emphasis in the original):
49 In the applicant's case, the Minister's reasons revealed what he understood that he was deciding and why he had decided to delay considering how Australia's non-refoulement obligations could be addressed. However wide the scope of the Minister's discretion to consider what is in the national interest, the question whether to make a decision that would have the prima facie effect of putting Australia in breach of its non-refoulement obligations owed in public law to other nations party to treaties with Australia whence those obligations derive, suggests that this factor must be considered (and not put to one side) by the Minister in exercising the power under s 501A(2) (cf: Graham [(2017) 347 ALR 350 at 363-364] [57], [59]).
50 Moreover, the presence of s 197C made it necessary for the Minister to consider the existence and impact of Australia's non-refoulement obligations in relation to the applicant at the time the Minister was considering the cancellation of the applicant's visa under s 501A(2). The Minister was bound to have regard to Australia's non-refoulement obligations because of the subject-matter, scope and purpose of the discretion that s 501A(2) confers on the Minister to cancel a visa. That is because, if the decision is adverse for the visa holder, the exercise of the discretion will cause that person detriment. The Minister was bound to evaluate the existing non-refoulement obligations reasonably in deciding whether to cancel the applicant's partner visa, including if it would be possible to meet those obligations in the way he suggested in [106] of his reasons, in light of a finding that any risk of the applicant reoffending required the cancellation of his visa.
…
52 As the Minister's reasons demonstrated at [86], [132] and [134]-[135], he regarded as determinative, the existence of the likelihood, however remote, of the applicant reoffending if the visa were not cancelled. He found (at [132]) that "I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm" (emphasis added). Although the Minister asserted that he had considered Australia's non-refoulement obligations in respect of the applicant (at [133]) he found that these, and other factors favouring the status quo, did not outweigh the national interest considerations based on the risk that the applicant posed to the Australian community by the mere possibility that he might reoffend if the visa were not cancelled. The "consideration" in [106] was perfunctory and not carried out with any reasoning or analysis, given the Minister's conclusion about the applicant's risk of reoffending.
BFM16 says that the same reasoning as employed by Rares J in FRH18 applies equally to his case.
(8) At [58]-[59], Rares J said (emphasis added):
58 The Minister stated in [106] that, after cancellation of the partner visa, he still would have "alternative management options in relation to" the applicant. However, that statement could not amount to proper, genuine or realistic consideration of whether it would be in the national interest to exercise the power in s 501A(2) to cancel the applicant's visa. Because the Minister had formed the view that the possibility of the applicant reoffending in the future was unacceptable, the grant of another visa or residence determination was out of the question because the risk of the applicant reoffending would be unchanged. Accordingly, any future "consideration" of the exercise of the Minister's personal non-compellable powers to grant another visa or make a residence determination would necessarily result in a negative decision. Once that occurred, ss 197C and 198(2A) would entail the applicant's removal from Australia as soon as reasonably practicable. Nor could the Minister continue to hold the applicant in immigration detention in the hope that the reason (the real chance of persecution of Christians in the applicant's situation in Pakistan) for existence of the non-refoulement obligations might cease to exist at some indefinite further time: M61/2010E [(2010) 243 CLR 319 at 353] [76]-[77].
59 In the present context, once the Minister decides to cancel a visa under s 501A(2), s 197C makes irrelevant the existence of non-refoulement obligations to the duty of an officer to remove the person from Australia. Accordingly, having regard to the subject-matter, scope and purpose of the Act, a decision to cancel under s 501A(2) may cause Australia to be in breach of its international non-refoulement obligations under treaties that this country has entered into so as to make it necessary to take this into account as a relevant consideration in the determination of what is or is not in the national interest.
(9) BFM16 says the finding in FRH18 at [59] is the "central determinative factor" and the factual similarities between FRH18's case and BFM16's case, when properly understood, are so close that FRH18 is not distinguishable and the reasoning employed by Rares J should be followed.
(10) At [60], Rares J said:
60 I agree with the analysis of Moshinsky J in AQM18 [[2018] FCA 944] at [80]-[89] that, in a similar case to this, the Minister, in substance, had misunderstood, and therefore failed to take into account the legal consequences of his decision. That was because he had not considered how, in light of the cancellation of the visa and ss 197C and 198, any "alternative management option" could lead to an outcome other than refoulement by force of ss 197C and 198: see too DMH16 v Minister for Immigration and Border Protection [(2017) 253 FCR 576 at 581] [26]. In the applicant's case here, after cancelling the visa the Minister circled that he wished to discuss the alternative management options. This reinforces the conclusion that the Minister did not think through, indeed even consider, how, if at all, these could be engaged to enable Australia to comply with its international non-refoulement obligations.
77 In AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424 (Besanko, White and Thawley JJ) (AQM18 FCAFC) the Full Court upheld a cross appeal from the decision of Moshinsky J in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. Contrary to Moshinsky J's findings, Besanko and Thawley JJ considered that the Minister's statement of reasons in that case revealed that he had understood that the consequence of his decision was that AQM18 would be refouled despite Australia's non-refoulement obligations.
78 BFM16's case is distinguishable from AQM18's case because in BFM16's case the Minister did not appreciate the fact that BFM16's refoulement would be a breach by Australia of its obligations to the international community under the Refugees Convention and he did not take that fact into account in his assessment of the national interest.
79 The Minister's failure to refer to the consequential breach of Australia's international obligations as part of his assessment of the national interest is consistent only with the Minister not understanding that this was the necessary consequence of his decision so that he did not take it into account. The failure to have regard to the legal consequences of a decision to refuse a visa may constitute a jurisdictional error: see NBMZ at [6]-[10] and [18] (Allsop CJ and Katzmann J) and [164]-[167] (Buchanan J).