(c) The Acting Minister's jurisdictional error
116 As has been emphasised above, the expression "the national interest" is a broad and evaluative one, but it is not unbounded. The Acting Minister noted in his statement of reasons that his state of satisfaction as to what is or is not in the national interest is a question which has been entrusted to the Minister by the Parliament, but he then correctly acknowledged that this satisfaction "must be attained reasonably". Moreover, the requisite satisfaction must be reached on a correct understanding of the law.
117 Consideration of the question of the national interest can be affected by the particular circumstances of the case, including any representations made by an applicant on that subject. It is to be recalled that a feature of the power conferred by s 501A(2) is that it must be exercised in accordance with natural justice requirements, which include an affected person having an opportunity to make representations prior to a decision being made whether or not to exercise the power. That is not say, however, that in attaining the state of mind as to whether or not he or she is satisfied for the purposes of s 501A(2)(e) that the refusal of a visa is in the national interest, the Minister has only to address any such representations made by the affected person on the subject of the national interest. The Minister's task is wider than that because he or she is obliged to have a correct understanding of the law, which necessarily involves the Minister having to address any relevant component of the national interest which arises squarely on the material before the Minister. This may include representations made by the applicant on that subject, but it is not necessarily confined to consideration of such representations.
118 It should be reiterated that the applicant in this case did raise the issue of non-refoulement in his representations to the Minister but, consistently with the structure of Direction 79 and the Department's encouragement to follow that structure, those submissions were not under the heading of "national interest" (see [17] to [22] above).
119 In the particular circumstances of this case, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Acting Minister and the findings he made. Those findings involved an acceptance by the Acting Minister that Australia owed non-refoulement obligations in relation to the applicant, and that refusing him the visa would put Australia in breach of those obligations because necessarily the applicant 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 the applicant the visa meant that the applicant would be refouled in breach of Australia's obligations under international law. That very serious consequence for Australia had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). Ultimately, however, it would be a matter for the Acting Minister to determine whether or not, despite putting Australia in breach of its obligations under international law, it was nevertheless in the national interest to refuse the applicant a visa.
120 The Minister erroneously confined his assessment of the national interest by simply focusing upon the seriousness of the applicant's criminal conduct, the sentence he received, the risk of him reoffending and the harm to the Australian community if such a risk eventuated. Those matters were relevant to an assessment of the national interest, but so were the implications of Australia breaching its non-refoulement obligations and returning a person to his country of origin where there was an accepted risk that he would be killed.
121 It has been recognised in other cases that Australia's international reputation and standing falls within the ordinary meaning of the expression "national interest". For example, in Applicant M 117 of 2007, in determining whether cancellation of the visa was in the national interest for the purposes of s 501(3), the Minister took into account under the rubric of the national interest that Australia's international reputation and good standing would be damaged if the nation provided, or was seen to provide, a safe haven for people who have committed serious crimes in another country, or are wanted to face charges for such crimes. At [45], Kenny J described the damage to Australia's international reputation that might result from allowing a non-citizen to remain in the country to be a matter which "plainly falls within the ordinary conception of national interest".
122 In Wong at [33], after observing that the primary determination of what is in the national interest is for the Minister and not for the Court, Tamberlin J observed that the expression "national interest" can include a consideration of Australia's position as a nation in relation to other nations. His Honour said that immigration is an area which necessarily involves Australia's relationship with nationals or persons from other countries and their admission into (or removal from) Australia. His Honour added at [33] that this relationship "can involve the perceptions by other nations of Australia as a member of the international community and such perceptions can be of great significance to Australia". To similar effect, see the Full Court's observations in Ali at [91], which are set out at [84] above.
123 It is apposite to note what Mason CJ and Deane J said in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 291. After acknowledging that the provisions of an international treaty which has been ratified by Australia do not form part of domestic law unless validly incorporated by statute, their Honours nevertheless emphasised the significance of Australia ratifying an international convention. Their Honours said that such ratification "is not to be dismissed as a merely platitudinous or ineffectual act", but rather is to be viewed as "a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention".
124 Finally, the meaning of the concept of "the national interest" was the subject of a decision by the Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559. Section 34(2) of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) (Canada) conferred a power on the Minister to provide ministerial relief in respect of a permanent resident or foreign national who is "inadmissible" on security grounds specified in s 34(1). Sub-section 34(2) provided that the specified grounds for inadmissibility in the previous sub-section do not apply to a permanent resident or foreign national "who satisfies the Minister that their presence in Canada would not be detrimental to the national interest".
125 The term "national interest" was not defined in the legislation. The appellant had been denied Convention Refugee status on the basis that he lacked credibility. He then married a Canadian national and applied for permanent residence. His visa application was refused on the basis that he was "inadmissible" because of his membership of a terrorist organisation. There is nothing in the Court's reasons for judgment to suggest that the principle of non-refoulement was raised by the appellant.
126 The Court noted at [65] that there was no dispute between the parties that the term "national interest" refers to matters which are of concern to Canada and Canadians. This included public safety and national security, matters which had been relied upon by the Minister, but the Court added at [65] that consideration of the "national interest" was not confined to those matters alone. Other matters within the term were identified by the Court as "the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply".
127 The Supreme Court traced the legislative history of s 34(2), which included a 2001 Senate Committee report on the relevant Bill. At [71], the Court set out the following passage from that report (emphasis in original):
The Committee recognizes that Bill C-11 represents a major overhaul of Canada's immigration and refugee protection legislation, and it will thus likely set the standard for many years to come. The Committee also fully appreciates that the current context in which the Bill is being considered is one of heightened security concerns following the profoundly tragic events of 11 September 2001 in the United States. In this con-text the Committee realizes that the Bill must embody a balance that will respect the needs and rights of individuals while simultaneously serving the public interest particularly with respect to security concerns and meeting Canada's international obligations.
128 Significantly, after setting out that passage, the Supreme Court then stated at [72] (emphasis added):
This passage certainly highlights the IRPA's role in "serving the public interest… with respect to security concerns". However, it does not limit the national interest to security concerns. It also highlights the fact that meeting Canada's international obligations (including, presumably, obligations stemming from rules of customary and conventional international human rights law) is an important part of the national interest.
129 After referring to several matters which were relevant to the task of statutory construction, including the structure and context of s 34, the Supreme Court concluded at [82] that "… in determining whether a person's continued presence in Canada would not be detrimental to the national interest, the Minister must consider more than just national security and whether the applicant is a danger to the public or to the safety of any person".
130 The Court stated at [87] that ultimately, "which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister…".
131 The Court also referred to Guidelines which had been issued to officers who assessed "national interest" requests. The Court held at [88] that the Minister had not acted unlawfully in the particular case by relying predominantly on national security and public safety considerations. This is because the Minister's reasons indicated that he did not "exclude the other important considerations in the Guidelines or any analogous considerations".
132 While recognising, of course, that the observations of the Supreme Court were directed to the expression "national interest" in a different statutory context and related to different facts from those in the present proceeding, I consider that they broadly support the views I have expressed in these reasons for judgment as to the breadth of the term "the national interest" in s 501A(2). I find that, in the particular circumstances of this case, Australia's international obligations relating to non-refoulement are an important part of the national interest for the purposes of that provision.
133 It is plain from the terms of the Acting Minister's statement of reasons in the present proceeding that he appreciated and accepted that, as a consequence of his decision to refuse the applicant the visa, the applicant would be returned to his country of origin, where he was at risk of being killed. The Minister also made clear that he recognised that his decision would place Australia in breach of its international non-refoulement obligations in the particular circumstances of the applicant's case.
134 It may be noted that the Acting Minister stated at [112] of his statement of reasons that he had given "considerable weight" to the risk that the applicant would be killed if he were returned to his country of origin, but he concluded that the existence of non-refoulement obligations in this case was outweighed by the national interest considerations which he had taken into account. The difficulty with this approach, in the particular circumstances of the applicant's case, is that consideration of Australia's non-refoulement obligations and the implications for Australia if those obligations were breached were only weighed in the balance by the Acting Minister when it came to the question of how he should exercise his residual discretion. It is worth reemphasising that s 501A(2) is structured in a way which highlights the distinct and separate pre-conditions to the exercise of the Minister's power to refuse to grant a visa to a person. On the proper construction of s 501A(2), and having regard to the Acting Minister's findings that refusing the applicant a visa and returning him to his country of origin would put Australia in breach of its non-refoulement obligations and expose the applicant to the risk of being killed, the Acting Minister, acting reasonably and with a correct understanding of the law, ought to have addressed those matters at an earlier stage of the decision-making process and before he addressed his residual discretion. Having regard to Australia's reputation in the international community and its obligations under international law, breach of Australia's non-refoulement obligations and the ramifications thereof were relevant to the Acting Minister's assessment of the national interest at an earlier stage of the decision-making process. The structure of s 501A(2) is significant.
135 I reject the Acting Minister's contention in his supplementary submissions that it should be inferred from his statement of reasons that he did turn his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether or not it was in the national interest to refuse the visa, but concluded that it was not material to his assessment of that particular subject. Nothing in the statement of reasons supports such an inference and in any event 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.
136 In my view, the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis. The error can be described alternatively as reasoning unreasonably or failing to act upon a correct understanding of the law. The Acting Minister's decision to, in effect, defer consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process (i.e. as to how his residual discretion should be exercised), meant that, when it came to weigh national interest considerations against other matters which were favourable to the applicant, the weighing was distorted. This was because the Acting Minister's assessment of the national interest could have been different if he had factored into his assessment of the national interest the implications of Australia acting in breach of its international non-refoulement obligations. In other words, if the Acting Minister had directly confronted this issue in the earlier stage of his decision-making when assessing the national interest, there was at least a possibility that he may have given different weight to the national interest when subsequently balancing it with other considerations which were relevant to the exercise of his residual discretion. Further, there was at least a possibility that the 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, would not have progressed to consider his residual discretion.
137 The need for the Acting Minister to adopt and apply a correct understanding of the national interest is all the more important because it is natural to assume that considerable weight will be given to the assessment of the national interest when that matter comes to be weighed against other considerations which are relevant in the later stage of the decision-making process, being the residual discretion. It is not easy to think of many cases in which a Minister, having assessed that it is in the national interest to refuse to grant or to cancel a visa, will regard this assessment of the national interest as being outweighed by other considerations which arise under the rubric of the residual discretion. This highlights the fundamental importance of the responsible Minister properly understanding the wide ambit of the concept of the national interest so as to avoid any distortion in the subsequent balancing exercise.
138 It is the Minister's task ultimately to conduct that balancing exercise, but the task must be carried out according to relevant legal principles. The Court cannot generally review the merits of the Acting Minister's assessment of the national interest. That is substantially a matter for him. However, the formation of that assessment is susceptible to judicial review for jurisdictional error. It is important that each stage of the decision-making process (which includes the separate and distinct pre-conditions in s 501A(2)(c) to (e)) be conducted reasonably and on a proper legal basis, with a correct understanding of the meaning and application of relevant statutory concepts. The legal requirements for the Acting Minister to act reasonably and to have a correct understanding of the Act when forming the state of satisfaction required by s 501A(2)(e) are separate from any issue of mandatory relevant considerations (see Ibrahim Full Court at [114]).
139 Finally, I reject the Acting Minister's submission that the applicant had to adduce evidence to support his claim that the Acting Minister's decision would harm Australia's reputation in the eyes of other countries because the decision was taken in knowledge that it constituted a breach of Australia non-refoulement obligations. The "national interest" is sufficiently broad to include Australia's reputation on the international stage, but the applicant's case did not turn only on that proposition. The applicant contended that, having entered into international Conventions which contained non-refoulement obligations, it was in the national interest for Australia to honour its international law obligations. That "national interest" is both inward looking and outward looking, as is reflected in what Mason CJ and Deane J said in Teoh at [34]. Moreover, not only did Australia ratify the relevant Conventions, but solemn assurances were given in the extrinsic material and in Direction 79 regarding Australia's commitment to honouring those non-refoulement obligations. The Court is entitled to take judicial notice of the fact that acting inconsistently with international law obligations and those solemn assurances may undermine confidence both within Australia and externally. Moreover, as Mr Wood pointed out in oral address, the "fact that Australia is contemplating breaching its voluntary assumed [international] legal obligations, is not rendered of no significance by any perceived difficulty in proving the precise, practical impact that that would have for Australia's reputation".
140 For all these reasons, I consider that the Acting Minister fell into jurisdictional error.