LOGAN J:
36 It was the American novelist, Joseph Heller, who inspired, via the title of his novel, "Catch 22" and his highlighting in it of the paradoxes presented in wartime, military aviation service, the taking up into the English language in the 20th century of the expression of that same name. This expression, "Catch 22" is now defined by the Oxford Dictionary to mean a situation "which cannot be resolved because the conditions necessary for its resolution are paradoxical or conflicting. Also more generally: a situation in which a favourable or successful outcome is impossible; a no-win situation, a tricky or intractable problem or dilemma". "Catch 22" is an accurate and pithy way of describing a proposition that lies at the heart of the appellant's submissions.
37 In giving his reasons for cancelling the appellant's visa under s 501BA of the Migration Act 1958 (Cth) (the Act), the Minister voiced an understanding, the correctness of which was upheld by the learned primary judge, that he was not obliged to consider the subject of the appellant's expulsion or return or "refoulement" (to adopt the international refugee law term, derived from diplomatic French) to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. That was because the appellant was not barred from subsequently applying for a protection visa and the subject of his refoulement would then arise for consideration. The appellant submitted that, in making his cancellation decision in the national interest, the Minister had chosen to advert to risk to the community and had concluded that he presented a risk. That same subject, so the appellant submitted, was a relevant consideration in relation to whether or not he was entitled to be granted a protection visa. Thus, so he submitted, even though he could later apply for such a visa, it was inevitable that any later application must fail, irrespective of whatever conclusion was reached as to Australia's having a protection obligation to him, based on a well-founded fear of persecution if returned. That was said to be the consequence of the conclusion already reached by the Minister with respect to risk; hence the attraction of the description, "Catch 22".
38 I have had the advantage of reading in draft the reasons for judgment of Robertson J. His Honour has summarised the background facts, the earlier history of this case, the reasons of the learned primary judge and the submissions of the parties. He has also set out the pertinent provisions of the Act. All of this I gratefully adopt. I repeat only such as is necessary to explain my reasoning. Subject to what follows, I agree with Robertson J.
39 There is nothing in s 501BA of the Act that expressly requires that the Minister consider the subject of refoulement. That is not to say that he cannot permissibly consider that subject, such is the breadth of the term "national interest" in s 501BA(2)(b) of the Act.
40 The appellant accepted that the breadth of the term "national interest" was such as to permit the Minister's adverting to such a risk. He submitted that, having chosen so to do and reached a conclusion as to risk to the community, it followed from s 36(1C)(b) of the Act that the Minister could not consign to the later determination of any application for a protection visa, the subject of refoulement. He submitted that the Minister was obliged in the circumstances to advert to that subject in conjunction with his taking into account that risk.
41 Article 33 of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (Refugee Convention) deals with the subject of the refoulement of a refugee. It provides:
Article 33
Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
42 Australia is a signatory to the Refugee Convention but, as the Act currently stands, our parliament has chosen to define who constitutes a refugee and the nature and extent of Australia's obligation not to expel or return ("refoule") a refugee not by the incorporation by reference of the Refugee Convention but rather by domestic statutory prescription.
43 Materially, that prescription is found in s 36 of the Act. In s 36(1C) it is stated:
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see Section 5M.
44 Satisfaction that Australia has a protection obligation is a necessary but not sufficient basis for the granting of a protection visa enabling lawful residence in Australia. If, in considering his protection visa application, the Minister or a delegate considered that the appellant is a danger to the Australian community, he would not satisfy the criterion specified in s 36(1C)(b). That would have the consequence that the Minister (or a delegate) would be obliged, by s 65(1)(b) of the Act, to refuse his protection visa application.
45 It would necessarily follow from the presence of s 197C, so the appellant's submission went, that refoulement would not arise for later consideration at the time of the appellant's deportation, as required by s 198 for those non-citizens without a valid visa.
46 The Refugee Convention contains no definition of "particularly serious crime". In the United States of America, the relevant legislation mirrors Article 33 of the Refugee Convention and thus contains no definition of "particularly serious crime". In that country, the absence of a definition has led to the gradual development by the Board of Immigration Appeals of criteria for determining what constitutes a "particularly serious crime" and to the recognition that a case-by-case analysis of these criteria, not the name of the crime itself, is determinative: Yousefi v Immigration and Naturalization Service 260 F.3d 318 (4th Cir. 2001) at 329-330.
47 In Australia, because of amendments to the Act made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Act No 135 of 2014), the position is different. In s 5M of the Act, "particularly serious crime" has been expressly defined by our parliament:
Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
In turn, s 5 of the Act defines both "serious Australian offence" and "serious foreign offence". Of these, it is only necessary to set out the definition of "serious Australian offence":
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
The term "serious drug offence" is not defined. Another amendment made by Act No 135 of 2014 was to insert into the Act s 36(1C).
48 The presence in the Act of these definitions makes it unnecessary to detail the criteria developed in the United States for determining what is a "particularly serious crime". However, a corollary of the development of those criteria in the United States has been a conclusion that whether an alien is a danger to the community is subsumed into this determination. There is a consistent line of authority in United States Circuit Courts that no separate finding as to an alien's "dangerousness" is required. The view is taken there that the phrase "having been convicted" in Art 33 is descriptive of the alien and does not connect by a conjunction with the phrase, "constitutes a danger to the community". In other words, the view in that country is that Art 33 creates a "cause and effect" relationship between a "particularly serious crime" and the existence of a danger: Ahmetovic v Immigration and Naturalization Service 62 F.3d 48 (2nd Cir. 1995) at 53.
49 That United States view of the construction of Art 33 of the Refugee Convention is not shared in Australia. At a time prior to the amendment of the Act by Act No 135 of 2014, Jagot and Barker JJ made this observation in relation to Art 33 of the Refugee Convention in SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174 (SZOQQ), at [52]:
Second, it is not enough that a refugee be finally convicted of a "particularly serious crime" before the refugee loses the protection against refoulement in Art 33(1). In addition, the relevant decision-maker must find that the refugee, having been so convicted, constitutes a danger to the community.
It is plain enough from this observation that their Honours did not consider that an alien visa holder's conviction in respect of a "particularly serious crime" led, consequentially and without a need separately to advert to danger to the community, to eligibility for expulsion or return. A like view of the meaning of Art 33(2) is evident, at [14], in the judgment of Flick J in SZOQQ:
The ordinary meaning of the terms of Art 33(2) simply requires an assessment to be made as to whether a person constitutes "a danger to the community of that country".
50 The Full Court's judgment in SZOQQ was reversed on a subsequent appeal to the High Court by the visa applicant: SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577. In that appeal, the correctness of the view expressed by the members of the Full Court that Art 33 of the Refugee Convention did not entail a balancing exercise was not questioned. Rather, the appeal succeeded on a basis not argued either before the Full Court or earlier in the course of proceedings (attention not having earlier been directed to observations made in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 that the operation of Art 33(2) of the Refugee Convention was not translated into the then s 36(2) so as to provide for the extinguishment of extant protection obligations).
51 As a matter of construction, s 36(1C)(b) of the Act takes up the language found in the second limb of the exceptions posited in Art 33(2) of the Refugee Convention. As drafted, s 36 does not posit a "balancing exercise" between the visa criteria there specified. The present appeal was conducted by the parties on the footing that it does not.
52 Further, that conclusion seems to me necessarily to follow from the observations made by the Full Court in SZOQQ about Art 33. The Full Court decided that Art 33(2) of the Refugee Convention did not require that a State Party decision maker must engage in a balancing exercise between the danger to the refugee if returned and the danger to the host community as a sequel to the alien's having been convicted of a particularly serious crime. As is evident from each of the judgments delivered in the Full Court, that view did not coincide with that of a number of eminent commentators about the Refugee Convention but was considered nonetheless to follow from the text of Art 33.
53 These features of Art 33(2) and, more particularly, s 36(1C)(b) of the Act were essential planks in the appellant's submissions. In light of the Minister's conclusion (Reasons, [70]) that, "I find there remains an ongoing risk, albeit low, of [the appellant] reoffending", it was submitted that, necessarily, any future protection visa application by him would, inevitably, be refused. That refusal would be obligatory even if it were accepted that he was a person to whom a protection obligation was owed. So it was, he submitted, that there could be no postponing by the Minister of the subject of refoulement if the Minister chose, in the context of considering the national interest, to advert to risk to the Australian community.
54 The position adopted by the Minister in his reasons was not happenstance. It reflected, as did the Minister's submissions in the original jurisdiction and before us, a very particular understanding of the course and effect of prior authority. The same, with respect, may be said of the reasons for judgment of the learned primary judge in upholding the correctness in law of the Minister's position.
55 The course of prior authority has its Hegelian qualities. It was once thought at intermediate appellate level in this Court that "… by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act", such that it was not, "open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Refugee Convention": M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at [71]-[72]. That view did not find later favour with the High Court, as Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61/2010E) and Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Plaintiff M70/2011) attest. In Plaintiff M70/2011, Gummow, Hayne, Crennan and Bell JJ, referring to a passage in Plaintiff M61/2010E at [27] and emphasising in so doing, "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", stated, at [94]:
… for Australia to remove a person from its territory, whether to the person's country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugee Convention.
56 Parliament's response to Plaintiff M61/2010E and Plaintiff M70/2011 was the insertion into the Act by an amendment made by Act No 135 of 2014, of, materially, the present s 197C.
57 The importance of a non-refoulement obligation, as part of the taking up in the Act of Australia's subscription to the Refugee Convention, as well as the particular focus of s 197C on the removal obligation found in s 198 of the Act, persuaded me, in the exercise of original jurisdiction in Le v Minister for Immigration and Border Protection (2015) 237 FCR 516, that consideration of refoulement must be relevant in the context of an anterior decision by the Minister under s 501(2) of the Act to cancel the visa of a person who had been accepted here as a refugee. Not so said the Full Court on appeal - Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (Le) - it is possible (s 501E) to lodge a later application for a protection visa and the question of whether a protection obligation is owed to the person and thus whether a non-refoulement obligation exists can be considered then.
58 Then came BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16). In that case, an Assistant Minister, evidently relying upon the Full Court's judgment in Le, characterised the claim of the appellant in that case to fear harm as possibly giving rise to international non-refoulement obligations but said it was unnecessary to determine whether such obligations were owed because the appellant could apply separately for a protection visa. The Assistant Minister did not acknowledge that any protection visa application made by the appellant could be refused on character grounds before non-refoulement claims were considered. That point had not arisen for consideration in Le. The absence of that acknowledgement was regarded by the Full Court as a distinguishing feature and one productive of jurisdictional error by the Assistant Minister. This same error was identified in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 but it is unnecessary further to refer to that case.
59 The riposte by the Minister to BCR16 was to issue, pursuant to s 499 of the Act, Direction 75 which, as he stated in his reasons in the present case, required that "decision-makers who are considering an application for a protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s 501". That riposte was held sufficient by Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali). In turn, in Greene v Assistant Minister for Home Affairs [2018] FCA 919 I and, in Turay v Assistant Minister for Home Affairs [2018] FCA 1487, Farrell J considered that Ali had been correctly decided. In the present case, the learned primary judge regarded this trilogy of cases as applicable by analogy to a decision under s 501BA of the Act and applied them to hold that the Minister declining to consider refoulement was not, for the reasons given by the Minister, productive of jurisdictional error.
60 Assuming that they are correctly decided, I respectfully agree with the learned primary judge that, though each of this trilogy of cases concerned a decision made under s 501CA(4), each is applicable by analogy to a decision made under s 501BA of the Act.
61 Relying on an observation as to balancing and qualitative difference, made by Bromberg and Mortimer JJ in BCR16 at [48] - [50], the appellant submitted that this trilogy of cases was not correctly decided. The relevant passage in BCR16 is:
48. We also accept the appellant's submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia's non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.
49. In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be "satisfied" of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be "satisfied" to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.
50. For example, if the Minister is satisfied that the appellant has been "convicted by a final judgment of a particularly serious crime" and "is a danger to the Australian community" (the criterion in s 36(1C)(b)), then s 65 compels the Minister to refuse to grant a protection visa. Whether the risk of harm to the appellant in Lebanon might be real, it will avail the appellant nought if other visa criteria are found not to be satisfied.
62 While I am receptive to the submission that the trilogy of cases was not correctly decided, I am not at all so persuaded.
63 That the granting or refusal of a visa pursuant to s 65 of the Act is qualitatively different to the exercise of a discretionary power by the Minister under s 501BA of the Act, as here, or under s 501CA(4), as in the trilogy of cases, may, for the reasons given in BCR16 at [48] - [50], readily be accepted. What is found in s 65 of the Act is a statutory power that must be exercised in a particular way, by the granting or refusal of a visa, depending on a state of administrative satisfaction as to whether the criteria for the visa concerned are or are not met. It entails no "balancing exercise": SZOQQ.
64 In contrast, a "balancing exercise" as between competing considerations is permitted (but not mandated) under s 501BA, as it is under s 501CA(4), in the exercise of the respective discretionary powers. That s 501BA might permissibly admit of the Minister, under the overall rubric of a consideration of the "national interest", undertaking, if he chooses, a "balancing exercise" as between whether a person is a refugee and whether that person is a danger to the community does not mean that he is obliged to undertake such an exercise. He certainly would not be obliged to undertake such a "balancing exercise" in order to comply with Australia's subscription to the obligation found in Art 33 of the Refugee Convention. That is because, in light of SZOQQ, Art 33 entails no "balancing exercise".
65 Further, it does not follow from this "qualitative difference" that the Minister was obliged, in exercising in relation to the appellant the discretionary power conferred by s 501BA, to advert to whether Australia owed a protection obligation to him. Such a conclusion would be inconsistent with the reasoning in Full Court's judgment in Le. The Minister's decision under s 501BA does not prevent the appellant from making a later application for a protection visa: s 501E(2)(a) of the Act. If the appellant chooses to apply for a protection visa, Direction 75 will oblige all delegates first to consider whether they are satisfied that the refugee and complementary protection criteria are met before considering ineligibility criteria. That is also, on the evidence, a departmental practice of which the Minister is aware.
66 It was submitted though that the Minister might make the protection visa application decision personally and that s 499 of the Act does not bind him to follow Direction 75. In Re Patterson; ex parte Taylor (2001) 207 CLR 391, Gummow and Hayne JJ observed, at [220], "The central purpose of responsible government is secured by the requirement in s 64 of the Constitution for administration of the departments of State by Ministers who are members of one or other Houses of the Parliament." Under our system of responsible government, the departmental practice of which the Minister is aware is the practice for which he is responsible to Parliament. It is not just the department's practice; it is the Minister's practice. The Minister has deliberately announced this practice to the appellant in explaining why, in relation to the exercise of the power under s 501BA, he has chosen not to advert to non-refoulement considerations. The appellant is entitled to expect, in relation to any protection visa application that he may make in the future, that, as a matter of procedural fairness, the Minister will follow this announced practice, should the Minister come to consider that application personally: Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1. In these circumstances, it is nothing to the point that Direction 75 does not, in terms, bind the Minister. That direction confirms the Minister's policy for the department for which he is responsible to Parliament. At the time when the Minister made his decision under s 501BA of the Act, there was no reason to anticipate that, if a protection visa application were made, either he or a delegate within his department would do anything other than first consider whether the appellant was a person to whom a protection obligation was owed (or a person entitled to complementary protection).
67 I see no reason to regard the trilogy of cases mentioned about the effect of Direction 75 as wrongly decided.
68 It should not be concluded that favourable satisfaction in relation to one or the other of the protection visa criteria will be rendered futile by the conclusion reached for the purposes of the Minister's s 501BA national interest assessment. There are a number of reasons why that is so.
69 First and foremost, the Minister has not, in making his national interest assessment, even purported to assess whether, in terms of s 36(1C)(b), the appellant "is a danger to the Australian community". Contrary to the assumption underpinning the appellant's submissions, it should not be assumed that the Minister's inability to "rule out the possibility of further offending" (Reasons, [100]), which informed his conclusion that the appellant represented "an unacceptable risk of harm to the Australian community" (Reasons, [102]), is to be assimilated with the subject for satisfaction posited by s 36(1C)(b) of the Act. The point raised is, superficially, a straightforward matter of language but, as will be seen, deceptively so and productive of much controversy in international refugee law. Perhaps surprisingly, it has not hitherto been the subject of detailed judicial consideration in Australia.
70 The observation made in Plaintiff M61/2010E at [27], that the Act as it then stood 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" remains true of the Act in its present form. This is especially evident in the present s 36 of the Act. Thus, even if the Minister (or a delegate) is satisfied in terms of s 36(2)(a) of the Act that a person is "a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee", the obligation to grant that person a protection visa will not arise if the Minister is satisfied that one or the other (or each) of the criteria specified in s 36(1C) is applicable to that person. In this way, the criteria in s 36(1C) can be seen to take up an exception found in Art 33 of the Refugee Convention in relation to the non-refoulement of a refugee.
71 As to the principle of non-refoulement, a Canadian academic, Dr Hilary Cameron has observed in her recent work, Refugee Law's Fact-Finding Crisis: Truth, Risk and the Wrong Mistake (Cambridge University Press, 2018), at p 180:
At the beating heart of refugee law is a moral judgement: when a person fleeing persecution has reached safety, it is wrong to return them home to their waiting persecutors. Rabbi Dr Isaac Lewin, addressing the delegates at the drafting of the Convention, proposed that Jewish law had long recognised that this "ethically unsurpassed" judgement should bind "all humanity". He noted that the prophet Amos, writing nearly three millennia earlier, had felt that "God would never forgive" two communities that had committed the sin of sending Refugee home to face torment. "We therefore have a precedent for the present convention dating back from the eighth century BCE."
[Footnotes omitted]
In her work, Dr Cameron also cites with approval this description of the non-refoulement principle, "the cornerstone of international protection of refugees" (p 181, fn 41 referencing Walter Kälin, Martina Caroni, Lukas Heim, "Article 22, para. 1 1951 Convention" in Andreas Rimmermann, ed, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol & Commentary (Oxford: Oxford University Press, 2011) 1327 at p 1395). Such, truly, is the nature and purpose of the international obligation found in the Refugee Convention, to which the Act is responsive.
72 The meaning to afford "danger" in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27. The word "danger" can mean "risk" but also carries with it the meaning of "the condition of being exposed to the chance of evil; risk, peril" (Oxford Dictionary). As is observed in respect of the word, "danger" in Garner's Modern English Usage, "Idiomatically speaking, one runs a risk, not a danger." Yet, as a matter of ordinary experience of English idiom, the word, "danger" on a public warning sign conveys a very different and heighted sense of potential peril than would the word, "risk". Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, "risk" in prominence. "Danger" and "risk" are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, "danger", as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.
73 This understanding of the import of the word "danger" accords with the understanding in the United States of its meaning as used in the other limb of the exception to non-refoulement, "is a danger to the security". In Yusupov v Attorney General of the United States 518 F.3d 185 (3d Circuit, 2008) at 201-202, a submission made on behalf of the United States Attorney-General that a "danger" could be found merely if a person may pose a danger to security was rejected with the court holding that the provision only applies to an individual who actually is a danger.
74 In context, the word "danger" as it appears in s 36(1C)(a), "is a danger to Australia's security", must carry the same meaning as it does in s 36(1C)(b).
75 This does not mean that the "danger" must be proved to demonstration. In s 36(1C), it is a subject for Ministerial "satisfaction". That is a congruent legislative response to the requirement found in Art 33 of the Refugee Convention that there exist "reasonable grounds for regarding". But the satisfaction must be that the person is and will into the indefinite future be a danger, not that the person once was a danger.
76 In Australia, an influential case in relation to the subject of "danger" as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434; AATA 512 (WKCG). The Tribunal was constituted by The Hon Deputy President B Tamberlin QC, as he became after retirement from this Court. Both as a member of this Court and in his earlier career at the Bar the Deputy President enjoyed a high reputation, which doubtless explains why his reasons in WKCG have proved influential. The learned Deputy President observed (at [25] - [26]):
25. The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
26. Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
…
30. Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a "real probability" of harm being caused to the community.
31. The language of the Article directs attention to the expression "danger". This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant's level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression "danger" involves a lesser degree of satisfaction than that required by the expression "probable."
[Emphasis added]
77 SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.
78 That, as is observed in WKCG, the question of whether a person constitutes a "danger" is one of fact and degree necessarily determined in the circumstances of a particular case may be accepted. So, too, may it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour's approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that "danger" must be determined in the circumstances of a given case.
79 WKCG and EWG17 were the only cases to which we were referred by the parties in the course of submissions in this appeal in relation to Australian consideration of the word, "danger" as used either in Art 33 or s 36(1C).
80 My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about "danger".
81 It is not evident from the Deputy President's reasons in WKCG that he was referred to a judgment of the Court of Appeal for England and Wales, EN (Serbia) v Secretary of State for the Home Department [2010] QB 633; [2009] EWCA Civ 630 (EN (Serbia) v Secretary of State for the Home Department), which was decided earlier in 2009. EN (Serbia) v Secretary of State for the Home Department has since become the leading United Kingdom authority on the meaning of Art 33 of the Refugee Convention. That case reveals a sharp difference of views as to the meaning of Art 33(2) as between the United Nations High Commissioner for Refugees (UNHCR) and the leading academic commentator on the Refugee Convention, Professor Hathaway, on the one hand and the Court of Appeal on the other. The Court of Appeal declined to place any "very serious" gloss on the word "danger" in Art 33. The nature of the disagreement between the Court of Appeal and the UNHCR and Professor Hathaway is apparent from the judgment of Stanley Burnton LJ, at [41] - [45], with whom Hooper and Laws LJJ agreed. The passage concerned is somewhat lengthy but needs to be set out in full, because of its pertinence, by analogy, to the construction of s 36(1C)(b) of the Act:
41. The claimants submitted that it is necessary to interpret article 33(2) narrowly and restrictively. Their submission has the support of impressive authority. Sir Elihu Lauterpacht QC and Daniel Bethlehem QC state in their Joint Opinion to the UNHCR The scope and content of the principle of non-refoulement (2001, revised 2003), at paras 186 and 191:
"186. This double qualification - particularly and serious - is consistent with the restrictive scope of the exception and emphasises that refoulement may be contemplated pursuant to this provision only in the most exceptional of circumstances …"
"191 Regarding the word 'danger', as with the national security exception, this must be construed to mean very serious danger. This requirement is not met simply by reason of the fact that the person concerned has been convicted of a particularly serious crime. An additional assessment is called for which will hinge on an appreciation of issues of fact such as the nature and circumstances of the particularly serious crime for which the individual was convicted, when the crime in question was committed, evidence of recidivism or likely recidivism, etc."
42. In Hathaway, The Rights of Refugee under International Law Cambridge University Press (2005), p 352, Professor Hathaway stated:
"… the Refugee Convention accepts that in extreme and genuinely exceptional cases, the usual considerations of humanity must yield to the critical security interests of the receiving state. Thus, if the demanding criteria of article 33(2) are satisfied, an asylum state may, assuming there is no other option, remove a refugee convicted of a particularly serious crime who poses a danger to the host community's safety - even if the only option is to send the refugee to his or her country of origin."
43. In my judgment, these authorities, and in particular the Lauterpacht and Bethlehem joint opinion, add an unjustified gloss to article 33(2). To construe "danger" as restricted to "very serious danger" is to add words that the member states did not include. It is to change the meaning of a negotiated settlement. In Brown v Stott [2003] 1 AC 681, Lord Bingham of Cornhill said, with reference to the Human Rights Convention at p 703:
"In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept."
44. This passage was cited by Lord Brown of Eaton-under-Heywood in his speech in R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063 with reference to the Refugee Convention, at para 85:
"It is one thing to invite this House to construe the Convention as a living instrument generously and in the light of its underlying humanitarian purposes; quite another to urge your Lordships effectively to rewrite it so as to create a fresh entitlement to refugee status based upon no more than historic fear and present compelling reasons for non-return, with no need at all for any current fear of persecution. That would be to distort entirely the language and structure of the text and in my judgment do a serious disservice to the cause of human rights generally."
45. These remarks apply with equal force here. Moreover, I see no need for any gloss on the express words of article 33(2). The words "particularly serious crime" are clear, and themselves restrict drastically the offences to which the article applies. So far as "danger to the community" is concerned, the danger must be real, but if a person is convicted of a particularly serious crime, and there is a real risk of its repetition, he is likely to constitute a danger to the community.
82 I do not, with respect, doubt that, like Art 33(2), no gloss should be put on the word "danger" as it appears in s 36(1C) of the Act. But it does not, in my view follow from this that the sentiments evident in the Joint Opinion to the UNHCR The Scope and Content of the Principle of Non-Refoulement of Sir Elihu Lauterpacht QC and Daniel Bethlehem QC (2001, revised 2003) and the view expressed by Professor James Hathaway in his work, The Rights of Refugee under International Law (2005), in the quoted passage from EN (Serbia) v Secretary of State for the Home Department, are entirely without merit. In my view, those sentiments and that view are, effectively, taken up by the understanding that, as a matter of ordinary English usage, "danger" carries a qualitatively different meaning to "risk". It may be that this is what is intended to be conveyed by Stanley Burnton LJ in his references to "the danger must be real" and "real risk".
83 In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a "risk", perhaps small. In my view, read in context, "danger" in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about "danger". In my view, it carries a narrower and more restrictive meaning that just "risk".
84 That a narrower and more restrictive meaning is to be given to "danger" is additionally supported by the following, in my view. Article 1F of the Refugee Convention excludes from the Convention's application, and thus from the protections for which it provides:
any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
In Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982; [1999] INLR 36, the Supreme Court of Canada confirmed what a reading of the Refugee Convention would in any event suggest, which is that Art 1F and Art 33(2) serve different purposes; Art 1F excludes from the Convention a person who may or may not fall within the definition of "refugee", whereas Art 33(2) permits the refoulement of a person who is a refugee but in respect of who there are reasonable grounds for believing that that person is a danger to national security or a danger to the community.
85 Within the Act, s 5H(2) in the definition of "refugee" can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2013] 1 AC 745, at [16], the United Kingdom's Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same "potential consequences" rationale should, in my view, inform the construction of s 36(1C) of the Act.
86 For completeness, I should record that there is a more wide-ranging survey of international jurisprudence concerning the meaning of "Danger to the community" to be found in Chapter 4, section 4.2.3 of Joseph Rikhof's work, The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law (2012). However, that survey reveals no jus cogens, no norm accepted by the international community of states, as to the meaning to afford the word, "danger" in Art 33(2) of the Refugee Convention.
87 Other difficulties about an uncritical acceptance of all that is stated in WKCG arise from that part of the passage quoted to which I have given emphasis. That there is a "danger" is, necessarily in my view, a conclusion based on an assessment of the present "level of risk". But that does not mean that the word, "danger" carries a meaning that differs from case to case. Its meaning is fixed, but whether it is present in respect of, materially, a person applying for a protection visa will depend on the circumstances of the given case. Further, the reference to "a lesser degree of satisfaction than that required by the expression "probable" antedate and are inconsistent with the observations made by Flick and Perry JJ about administrative fact finding in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555. The state of satisfaction in respect of the subject to which s 36(1C)(b) of the Act is directed must be one reasonably open on the evidence before the Minister, not one which "no rational or logical decision maker could arrive on the same evidence": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [130] per Crennan and Bell JJ. With respect, to use the word "probable" in relation to administrative fact finding is to borrow "from the universe of discourse which has civil litigation as its subject": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282.
88 The other reasons why the Minister's s 501BA decision about the appellant does not ordain that a later protection visa application must fail may be more shortly stated. Quite apart from a very different touchstone, the decision in respect of any protection visa application will necessarily have to be made in the future and on the material then to hand. Its focus will be on whether then and into the indefinite future the appellant presents a danger to the community, not whether he once did. The Minister's s 501BA decision is irrelevant to the making of that future decision. Further, it should not be assumed that either the Minister or a delegate would regard it otherwise and fail to have regard to the merits of the protection visa application.
89 In short then, the appellant is not subject to any "Catch 22', should he apply in the future for a protection visa.
90 Proposed Ground 3 need not be addressed, as leave to raise this ground was refused at the hearing of the appeal.
91 The jurisprudential dynamic engendered by the sheer volume of cases arising under the Act with which this Court presently deals was such that the parties sought leave to make supplementary written submissions relating to two cases which had been decided in the original jurisdiction after the reservation of judgment on the appeal. These cases were Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Ezegbe) and Omar v Minister for Home Affairs [2019] FCA 278 (Omar). Leave was granted to make such submissions.
92 Ezegbe adds nothing which advances any of the appellant's grounds of appeal. As, with respect, correctly did the learned primary judge, in Ezegbe Perram J declined to speculate as to what might be the fate in the future of any subsequent protection visa application. Further, for reasons given above, in relation to the "danger to the community" criterion for satisfaction, any such application made in the future would fall to be measured by a very different and more demanding touchstone than the Minister permissibly chose to set for himself in exercising his national interest discretion.
93 As to Omar, I assume in the appellant's favour and without expressing any view, one way or the other, on that subject, that it was correctly decided. On that assumption, the point which found favour, non-engagement with a subject raised by the representation, does not arise in this case. That is, as the Minister submitted, for two reasons. The first is that the appellant disavowed at the hearing of the appeal any submission that the Minister was obliged to consider whether protection obligations were owed to the appellant. The second is that the subject was not one raised by the appellant in the submission which he chose to make to the Minister in relation to the exercise of the s 501BA(2) power.
94 I join with Robertson J in expressing gratitude to counsel for the appellant who appeared pro bono on a referral certificate issued by the Court.
95 For these reasons, I would dismiss the appeal.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.