DOB18 v Minister for Home Affairs

Introduction 96 This appeal is from the orders of a judge of this Court made on 17 October 2018. 97 As summarised by the primary judge, the appellant sought judicial review of a decision dated 15 February 2018. That decision, which cancelled the appellant's visa, was made by the Minister for Home Affairs and Immigration and Border Protection (the Minister) under s 501BA of the Migration Act 1958 (Cth) (the Act). The decision was made 15 months after a decision by the Administrative Appeals Tribunal (AAT) under s 501CA of the Act to revoke an earlier decision by the Minister's delegate under s 501(3A) of the Act to cancel the appellant's visa. 98 As found by the primary judge, the appellant has lived in Australia since 2000, having arrived here when he was aged 21. In 2004, he applied for a protection visa and claimed that he would be persecuted in his home country based on his homosexuality. 99 On 16 November 2006, he was granted a Class XA subclass 785 temporary protection visa, due to his stated homosexuality. 100 In November 2009, this visa was replaced by a Class CD subclass 851 resolution of status visa. It was this visa which the Minister cancelled on 15 February 2018. 101 On 27 April 2016, the appellant's then visa was mandatorily cancelled by the Minister's delegate acting under s 501(3A) of the Act after the appellant was convicted in the District Court of New South Wales of "supply prohibited drug greater than indictable quantity (not cannabis)" and sentenced to imprisonment for two years and eight months. Another Ministerial delegate subsequently declined to revoke that cancellation decision under s 501CA(4). The non-revocation decision was the subject of an application for merits review to the AAT which, on 24 November 2016, set aside the delegate's decision and ordered that the visa cancellation decision be revoked. 102 In light of the AAT's decision, the appellant was released from immigration detention. It was 15 months later (on 15 February 2018) that the Minister made his decision under s 501BA to cancel the appellant's visa. It took another six weeks for the Department to notify the appellant of the Minister's decision. These delays, the primary judge said, were unexplained. They did not then form part of the application for judicial review to this Court.

The Minister's reasons 103 The reasons provided by the Minister, as required by s 501G, set out why the Minister was satisfied that the appellant did not pass the character test and why the Minister was satisfied that it was in the national interest to cancel the appellant's visa. The statement also set out the Minister's reasons for not exercising his residual discretion under s 501BA not to cancel the visa even though the Minister was satisfied both that the appellant did not pass the character test and that it was in the national interest to cancel his visa. These reasons included international non-refoulement obligations. 104 The appellant did not dispute the Minister's finding that he did not pass the character test having regard to the combined effect of ss 501(6)(a) and 501(7)(c). 105 The proceeding before the primary judge insofar as presently relevant related to the appellant's claims that the Minister fell into jurisdictional error in his reasoning with respect to Australia's non-refoulement obligations. 106 The parts of the Minister's statement of reasons relevant to this appeal are as follows: International non-refoulement obligations 75. [The appellant] submits that he would face harm if returned to [redacted] and that he urgently seeks a 'non refoulement order.' I note also [the appellant's] visa history, including grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality. 76. In his letter of 29 April 2016, [the appellant] stated he believed the view towards homosexuality in [redacted] was worse than in 2006 and his life would be in 'very real danger' if he returned there. [The appellant] further stated he would be targeted by Islamic extremists in [redacted]. [The appellant] attached two media articles to his letter to demonstrate relevant circumstances in [redacted], including a Sydney Morning Herald article dated [redacted] that reported on the fatal stabbing of the editor of [redacted] first LGBT magazine. 77. [The appellant] raised similar fears in his personal details form dated 22 August 2014, noting he would be 'killed (stoned to death) without a doubt' if returned. 78. The AAT, in its decision record of 24 November 2016, did not make a finding regarding [the appellant] and Australia's non-refoulement obligations. I note the AAT stated it was likely [the appellant] would face discrimination and persecution in [redacted] if his sexual orientation became known and suppressing his sexuality to avoid persecution would be an 'onerous burden'. 79. I note that the effect of s501E(2) of the Act is that [the appellant] would not be prevented from lodging a protection visa application following a decision by me to cancel his current visa. 80. I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the appellant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application. 81. My conclusion in this respect is based on my awareness that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. Furthermore, to reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires 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 s501. I am therefore confident that [the appellant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa. 82. I have also considered [the appellant's] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant's] claims are such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].

The statutory provisions 107 The relevant statutory provisions were as follows: 501BA Cancellation of visa - setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister - natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable under Part 5 or 7 (5) A decision under subsection (2) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (2), see section 501G.

The reasons of the primary judge 108 The paragraphs of the reasons of the primary judge referred to in the grounds of appeal, together with their immediate context, are as follows: 23 Direction 75 does not bind the Minister, but it binds other decision-makers, including Ministerial delegates. I accept the Minister's submission that the making of Direction 75 caused the Minister to express his confidence in [81] of the Statement of Reasons that the applicant would have the opportunity to have his protection claims fully assessed in the course of an application for a protection visa. This is because Direction 75 is legally binding on, inter alia, delegates and reinforces the Department's practice in processing protection visa applications to consider the application of the protection-specific criteria before proceeding to consider other criteria, such as character-related criteria. As noted above, however, Direction 75 does not bind the Minister. 24 Secondly, and not without some hesitation, I accept the Minister's submission that the fact that Direction 75 does not bind him personally has no material consequence in this proceeding. That is so for the following reasons. (i) The proper construction of the Minister's statement of reasons 25 It is to be noted that, in [80] of his statement of reasons, the Minister said that it was unnecessary for the purposes of his s 501BA decision to determine whether non-refoulement obligations were owed to the applicant as the applicant could apply for a protection visa and, in that event, the issue of any non-refoulement obligations "would be fully considered in the course of processing the application". The language "would be" is clear and unambiguous. It implicitly contemplates the possibility that a future protection visa application might be considered and determined by the Department or by the Minister personally. 26 The applicant seized on the fact that the immediately succeeding paragraph ([81] of the statement of reasons) is directed exclusively to the Minister's evaluation of what would happen if a future protection visa application were considered and determined by his Department. It is in that context that reference is made by the Minister to his awareness of the Department's practice of considering protection-specific criteria before turning to criteria such as character-related criteria, and that this practice was reinforced by the legally binding nature of Direction 75. The applicant emphasised that the Minister made no specific reference in his statement of reasons to the possibility that he might personally consider and determine any protection visa application by the applicant and that the Minister was not legally bound to act in accordance with Direction 75. 27 It is true that the statement of reasons is silent on the possibility that the Minister might personally be involved in determining any protection visa application by the applicant and that, if he were, he is not bound by Direction 75. It is equally true that the Minister does not state that he will not become personally involved in the consideration of any such visa application. I do not consider, however, that these omissions from the Minister's statement of reasons reveal jurisdictional error. 28 On a fair reading of the Minister's statement of reasons (consistently with the approach required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), the Minister appears to have contemplated that it was likely that any such application would be considered by the Department and not himself personally. 29 It may reasonably be inferred, however, that the Minister was well aware that s 65 of the Act also empowered him personally to make a decision in respect of any valid application for a protection visa (see s 46) as required by s 47 of the Act. If that occurred, the Minister would be obliged, in the context of making a determination under s 65 of the Act, to consider the relevance, if any, of Australia's non-refoulement obligations in respect of the applicant. This is what the Minister apparently had in mind when he made the unambiguous statement in [80] that "the existence of otherwise of non-refoulement obligations would be fully considered in the course of processing" any future protection visa application (emphasis added). Arguably, such an unequivocal statement could have implications for procedural fairness requirements in the event that the statement was not honoured in the future and the applicant was not given a prior opportunity to comment upon the proposal not to honour the statement (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [45]-[48] per Kiefel, Bell and Keane JJ). 30 It may also reasonably be inferred that the current Minister was aware of the unequivocal statement made by his predecessor when s 197C was inserted in the Act in 2014, that "asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations…". (ii) The importance of the different stages of decision-making under the Act 31 I do not consider that, in the context of this proceeding, the Minister was obliged to take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the Minister was engaged. The Minister was explaining why he had exercised his power under s 501BA, which is necessarily an earlier stage in a potentially broader decision-making process which might see the applicant lodge another application for a protection visa as he would be entitled to do having regard to s 501E(2) of the Act. If the applicant makes a valid visa application as defined in s 46 of the Act, the Minister (or a delegate) is statutorily obliged to either grant or refuse the visa under s 65. If it transpires that the applicant makes a valid application and it is refused by the Minister personally and the Minister fails to have due regard to Australia's non-refoulement obligations, the applicant will be entitled to challenge that decision by way of judicial review (as to which see, by way of analogy, NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944). As matters stand at present, however, I do not accept the applicant's submission that the Minister's statement of reasons in respect of his decision under s 501BA displays jurisdictional error as alleged by ground 1. (iii) Other relevant first instance decisions 32 The need to appreciate the different stages of decision-making under the Act is at the heart of a trio of recent first instance decisions of the Court, upon which the Minister relied. 33 Those decisions are Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) per Flick J; Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) per Logan J and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J. Each of those decisions involved challenges to decisions made under s 501CA(4) to not revoke a mandatory visa cancellation decision. I consider, however, that the reasoning is also relevant to the process of decision-making under s 501BA. 34 In Ali, in response to a similar submission to that which the applicant advances here, Flick J emphasised that the relevant decision-making process under s 501CA(4) required a state of satisfaction to be formed, not as to whether a person satisfied the criteria for the grant of a visa under s 36(2), but rather a state of satisfaction as to whether there was "another reason" why the original decision should be revoked (see Ali at [28]). His Honour then added at [31] that, if the applicant were to apply in the future for a visa (including a protection visa), and it was considered by the Minister personally, then the Minister would be confronted with the need, at that time, to consider whether the application should again be refused on the basis of non-satisfaction of the character test and/or whether the applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia. His Honour then concluded at [33]-[34]: 33. But these are all decision to be made and - if necessary - reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised - and was in fact exercised - by reference to the facts and circumstances then prevailing. 34. Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to: • the sequence in which claims would be resolved in accordance with Direction No 75. Nor does the reasoning process expose any misunderstanding, or even say anything with respect to: • the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so. 35 Justice Flick's reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]. As the judgment in Turay was published in Court on the day of the hearing of this matter, the parties were given leave to file brief post-hearing supplementary submissions on its relevance to this proceeding. Contrary to the applicant's submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making, such as that presented by the Minister's decision here under s 501BA. (b) Ground 2 36 This ground is closely related to ground 1, save that the emphasis is upon the alleged misunderstanding by the Minister when he stated in [80] of his statement of reasons that non-refoulement obligations would be fully considered in the course of processing the application. The applicant contended that there was a real and substantial risk that if he submitted a valid protection visa application, it would fail, largely because of the ineligibility criteria set out in provisions such as s 36(1C)(b) and (2C)(b)(ii) of the Act as well as the requirement that the decision-maker be satisfied that grant of the visa is in the national interest (referring to reg 785.227 in Sch 2 of the Migration Regulations 1994 (Cth)). The applicant emphasised that there was no material before the Court to indicate that the Minister would exercise his non-compellable powers under s 195A or 197AB of the Act and that the legal effect of ss 198 and 197C was that the applicant would have to be removed from Australia if he were refused a visa, citing DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 at [26]-[27] per North ACJ. 37 I reject these submissions for similar reasons to those given above for rejecting ground 1. It is premature to speculate whether or not full consideration will be given to Australia's non-refoulement obligations in respect of any future visa application by the applicant.

The grounds of appeal 109 The grounds of appeal are as follows: 1. The primary judge erred in: (a) accepting the respondent's submission (at [24]) that the fact that Direction 75 does not bind him personally has no material consequence in this proceeding; (b) finding (at [29]) that if the appellant were to make a valid application for a protection visa, the respondent would be obliged, in the context of making a determination under s 65 of the Migration Act 1958 (the Act) to consider the relevance, if any, of Australia's non-refoulement obligations in respect of the appellant; (c) finding (at [31]) that if the appellant were to make a valid application for a protection visa and it is refused by the respondent personally and the respondent fails to have due regard to Australia's non-refoulement obligations, the applicant will be entitled to challenge that decision by way of judicial review; and/or (d) finding (at [31], and see also at [35] and [37]) that the respondent was obliged to take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the respondent was engaged (and in this respect the Court should find that the decisions in Ali v Minister for Immigration and Border Protection [2018) FCA 650; Greene v Assistant Minister for Home Affairs [2018] FCA 919 and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 were wrongly decided). 2. The primary judge ought to have found that: (a) if the appellant were to make a valid application for a protection visa and such an application were determined by the respondent personally, the respondent would not be legally obliged to consider the relevance, if any, of Australia's non­refoulement obligations in respect of the appellant but could (and would be bound to) lawfully refuse the protection visa in the (likely) event that the conditions specified ins 36(1B)(b) and/or s 36(2C)(b)(ii) and/or cl 785.227 of Sch 2 to the Migration Regulations 1994 are not met; and/or (b) in any event, Australia's non-refoulement in respect of the appellant would play a qualitatively different role in any determination of a protection visa application under s 65 of the Act to the role they might play as a discretionary consideration in the context of a decision made under s 501BA of the Act (as explained, in respect of s 501CA of the Act, in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [49], [73] and [96]); and (c) by reason of his failure to appreciate the matters set out in (a) and/or (b) above, the respondent fell into jurisdictional error in failing to carry out the task required by s 501BA of the Act, in that his decision was based on an incorrect understanding of the law, namely that: (i) non-refoulement obligations would, necessarily as a matter of law, be considered in assessing any future visa application by the appellant; and/or (ii) the existence or otherwise of non-refoulement obligations would be "fully considered" in the course of processing the application. 3. The appellant seeks leave to advance the following further ground which was not raised before the primary judge. The primary judge ought to have found that the respondent had fallen into jurisdictional error because: (a) on a proper construction of s 501BA of the Act, any decision under s 501BA(2) must be made within a reasonable time of the original decision (as defined in s 501BA(1) of the Act); and (b) the respondent made the decision under review 15 months after the original decision, which was not within a reasonable time.

The submissions of the parties 110 In his written submissions, the appellant said the appeal raised two issues: (a) first, that the primary judge erred in reaching the conclusion that the Minister had not fallen into jurisdictional error in reasoning that it was unnecessary to determine whether non-refoulement obligations are owed in respect of the appellant. This ground involved determining whether the Minister made one or more errors of the kind discussed in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16 ); (b) second, if the Court granted leave, that the Minister fell into jurisdictional error in making the decision under s 501BA outside a reasonable time for the making of such a decision. This ground was not raised before the primary judge.

The grounds relating to non-refoulement obligations 111 These grounds were divided by the appellant into two parts. 112 The appellant submitted that the Minister had made what was referred to as the first misunderstanding in BCR16. It was that the Minister had assumed that an assessment of non-refoulement obligations would be made in a future protection visa application, when that would not necessarily occur. As Bromberg and Mortimer JJ explained in BCR16, the appellant submitted, the structure of decision making on a protection visa application under s 65 of the Act was very different to the decision to be made under s 501CA(4). While the revocation power required matters to be weighed in the balance, the power under s 65 required a visa to be granted if the Minister was satisfied certain criteria were met and to be refused otherwise. The mandatory criteria for a protection visa included character and security requirements likely to be pertinent to the situation of a person whose visa had been cancelled and the cancellation not revoked under s 501CA(4). It followed that a protection visa might be refused without non-refoulement obligations being considered, if the Minister or a delegate first found that other criteria were not satisfied. The appellant referred generally to BCR16 at [37]-[52] and [67]-[69]. 113 In the present case, the appellant submitted, the Minister had also reached the conclusion, at [80], albeit in the context of a decision under s 501BA(2) rather than s 501CA(4), that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the appellant, because the appellant was able to make a valid application for a protection visa "in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application". 114 The appellant submitted that the primary judge erred in finding that the Minister had not fallen into jurisdictional error in reaching that conclusion. That was so for two reasons: (a) first, the primary judge erred in reaching the conclusion that non-refoulement considerations would be (necessarily, as a matter of law) considered in any future protection visa application that the appellant might bring, even if the application were determined by the Minister personally; (b) secondly, the primary judge erred in relying upon the different stages of decision-making under the Act. That reasoning had no regard to the qualitatively different role that non-refoulement obligations might play in the context of determining a protection visa application, compared to the role they might play in relation to a determination under s 501BA(2).

Claimed error in relation to an obligation to consider non-refoulement on any future protection visa application 115 As to the first of these errors, the appellant submitted that, as the primary judge noted at [22], Direction 75 was not in place when BCR16 was decided and requires Ministerial delegates considering an application for a protection visa to first assess whether refugee and complementary protection criteria are met before considering ineligibility criteria, including character (and, it should be added, security) criteria. 116 Direction 75, however, does not bind the Minister himself, as the primary judge noted at [23]. The appellant submitted that as a matter of law, any future application for a protection visa which the appellant might make may be determined by a delegate of the Minister (s 496 of the Act), but it may also be determined by the Minister himself. Were the application to be determined by the Minister, there would be nothing legally requiring the Minister to assess whether non-refoulement obligations are owed in respect of the appellant. Instead, as the majority found in BCR16, the Minister might determine to refuse such an application on other criteria without making any assessment of non-refoulement or the criteria in ss 36(2)(a) or (aa) of the Act: see, eg, BCR16 at [90] and [96]. 117 The appellant submitted that, as the primary judge found at [27]-[28], while the statement of reasons was silent on the possibility that the Minister would determine a future protection visa by the appellant, the Minister appeared to have contemplated that it was likely that any such application would be considered by the Department and not by himself personally. That in itself did not matter, because the error identified in BCR16 was about what would necessarily, as a matter of law, occur, not about the likely future course of events: see Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [73]. The Minister's reasoning in this respect was said by the applicant to be indistinguishable from that impugned in BCR16: as the primary judge found at [29], the Minister made an unambiguous statement that non-refoulement obligations would be fully considered in the course of processing any future protection visa application. 118 The appellant submitted that the primary judge's error was his acceptance, at [24], albeit "not without some hesitation", of the Minister's submission that the fact that Direction 75 did not bind him personally had no material consequence in the proceeding. This acceptance appeared to have been based upon the primary judge's reasoning, at [29], that if the Minister made a decision personally about any future protection visa application made by the appellant, "the Minister would be obliged, in the context of making a determination under s 65 of the Act, to consider the relevance, if any, of Australia's non-refoulement obligations in respect of the [appellant]." No authority was given by his Honour for this statement, and it ran contrary to the reasoning of the majority in BCR16. Accordingly, his Honour erred. 119 Similarly, the appellant submitted, the primary judge erred in finding, at [31], that if the Minister considered an application for a protection visa made by the appellant personally and did not have "due regard" to Australia's non-refoulement obligations, the appellant would be entitled to challenge the decision by way of judicial review. Again, the appellant submitted, this ran contrary to the clear finding in BCR16 that the Minister could lawfully refuse a protection visa without making any assessment of non-refoulement obligations. Neither of the two decisions referred to at [31] by the primary judge (NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944) supported the proposition that refusal of a protection visa on character or security grounds without assessing non-refoulement obligations involved jurisdictional error or an error of law. 120 The appellant submitted the primary judge ought to have found that the Minister had fallen into jurisdictional error of the first kind identified in BCR16, namely a misunderstanding of law in assuming that non-refoulement obligations would necessarily, as a matter of law, be assessed in the course of any future protection visa application. 121 The Minister submitted that the appellant's submissions that the Minister's reasoning was indistinguishable from that impugned in BCR16, because the Minister made an unambiguous statement that non-refoulement obligations would be fully considered in the course of processing any future protection visa application, did not properly characterise either the reasons for decision of the Minister or the reasons for judgment of the primary judge. 122 The Minister submitted that, as the primary judge correctly observed at [22], the reasons given by the Minister in the present case "are expressed in significantly different terms from those in either BCR16 or BHA17." Here, the Minister did not merely say, without more, that whether non-refoulement obligations were owed to the appellant "would be" considered in the context of making a decision on a valid application for a protection visa (at [80]); importantly, he went on to state, at [81], the reasons for that conclusion. Those reasons were, in the Minister's submission, as follows: • First, the Minister's "awareness" of his department (Department)'s "practice" to process applications for protection visas by considering the "protection-specific criteria" (that is to say, the non-refoulement criteria in s 36(2)) before any other criteria; and • Secondly, the fact that this practice is "reinforce[d]" by Direction 75, issued pursuant to s 499 of the Act, which requires decision-makers to assess whether a protection visa applicant is owed non-refoulement obligations before considering the other criteria for the grant of such a visa. 123 The making of Direction 75 was said to have caused the Minister to be "confident" that the appellant "would have the opportunity to have his protection claims fully assessed" in the event that he made a valid application for a protection visa: [81]. Far from evincing a misunderstanding of the law, the Minister's reasons at [80]-[81], read as a whole, indicated that he considered it likely that any application for a protection visa would be considered by one of his delegates: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister submitted the primary judge was correct to characterise the Minister's reasons in this way at [28]. There would otherwise be little, if any, utility in the Minister's discussion of the effect of Direction 75. Nor would any contrary construction of his reasons sit comfortably with the use of the adverb, "[t]herefore", in the final sentence in [81] shortly after the reference to "decision-makers" (relevantly, delegates) being required by Direction 75 first to assess a protection visa applicant's non-refoulement claims before considering other criteria. Contrary to appellant's submissions, it could not be ignored that it was, as the primary judge held, in the Minister's contemplation that any future application for a protection visa would likely be determined by a delegate; rather, it suggested that the Minister did not make the assumption (as had been made in BCR16 and BHA17) that the appellant's non-refoulement claims would, necessarily as a matter of law, be considered no matter who the decision-maker would be. 124 The Minister submitted that another available construction of his reasons was that he appreciated the possibility that, if he were to perform the duty in s 47(1) of the Act personally to consider any valid protection visa application, he might not consider the appellant's non-refoulement claims, but that it was likely that he would do so. The Minister noted that the words "confident" and "opportunity" conveyed something less than certainty. On one view, they suggested that, if the Minister personally considered any application for a protection visa, it was likely that he would first turn his mind to the appellant's non-refoulement claims, but they also left open the possibility that those claims might not be considered. The Minister did not, for example, say that if he were personally to determine any application for a protection visa, the law necessarily required him first to consider the appellant's non-refoulement claims. Not even the final sentence in [80] of the Minister's reasons went that far. Even if read in isolation, the Minister's statement in that sentence did not reveal any wrong assumption as to the applicable law in the event that he considered an application for a protection visa. 125 The Minister submitted that, contrary to the appellant's submission, the primary judge did not say at [29] that the structure of the legislation applicable to the determination of a valid application for a protection visa (relevantly, ss 46, 47 and 65 of the Act and criteria in Sch 2 to the Migration Regulations 1994 (Cth)) required the Minister personally to consider the relevance, if any, of Australia's non-refoulement obligations owed to the appellant. It could be inferred that the primary judge was well aware of the effect of this Court's judgment in BCR16, that Direction 75 did not bind the Minister personally, and that s 65 of the Act empowered him to make a decision on an application for a protection visa. The balance of the primary judge's reasons at [29] shed light on what his Honour meant by the statement which the appellant sought to impugn in his submissions. There, relying on the judgment of the plurality in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [45]-[48], the primary judge reasoned that the "unequivocal statement" made by the Minister in the final sentence in [80] of his reasons "could have implications for procedural fairness requirements in the event that the statement was not honoured in the future and the applicant was not given a prior opportunity to comment upon the proposal not to [do so]". Accordingly, the primary judge should be taken to be saying, in the second sentence at [29], that the Minister would be bound by, or "obliged" not to depart from, his earlier representation to the appellant that non-refoulement obligations would be considered if a valid application for a protection visa were made, unless notice were given to him that the Minister was proposing not to do so. It was not necessary for the purposes of this appeal, the Minister submitted, to determine whether the primary judge's application of WZARH was apt in this context. At the very least, the Minister submitted, his Honour's reasoning did not indicate that he misunderstood BCR16 or misconstrued the provisions of the Act. 126 Nor, the Minister submitted, contrary to the appellant's submission, did the primary judge's reasoning at [31] reveal error. The sentence which the appellant sought to impugn conveyed no more than the fact that if the Minister personally considered a valid application for a protection visa but did not have regard to Australia's non-refoulement obligations, the appellant would be entitled to challenge that decision in judicial review proceedings instituted in this Court (provided that the decision met the description in s 476A(1)(c)) or in the Federal Circuit Court of Australia. The judgment of Moshinsky J in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944, to which the primary judge referred at [31], was one illustration of his Honour's point. In that case, it was held that the Minister, in making a decision under s 501A(2) of the Act to refuse to grant a protection visa to the applicant, fell into jurisdictional error in that he misunderstood the legal consequences of his decision, being the operation of ss 197C and 198 of the Act. 127 The Minister submitted it might also be that the primary judge's reasoning at [31] was shaped by what his Honour said in the preceding paragraph about the government's policy not to remove from Australia a person to whom non-refoulement obligations were owed. Given the importance of appreciating the different stages of decision-making under the Act, the Minister submitted it was neither necessary, nor appropriate, to speculate as to the grounds of review that the appellant might advance in the event that he made a valid application for a protection visa and it were considered, and refused, by the Minister personally.

Claimed error in relying upon the stage of decision-making 128 The appellant next submitted that the second ground of judicial review before the primary judge, as recorded by the primary judge at [11], was that the Minister had wrongly assumed that the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing a future protection visa application. The primary judge, at [37], rejected this ground on the basis that it was "premature to speculate whether or not full consideration will be given to Australia's non-refoulement obligations in respect of any future visa application by the [appellant]". This statement referred back to earlier reasoning of the primary judge, at [31], to the effect that the Minister was not obliged to "take the matter any further than he did in his statement of reasons, having regard to the particular stage of decision-making with which the Minister was engaged"; the appellant also referred to the primary judge's reasons at [35]. 129 That reasoning, in turn, relied upon three recent first instance decisions in Ali v Minister for Immigration and Border Protection [2018] FCA 650; Greene v Assistant Minister for Home Affairs [2018] FCA 919; and Turay v Assistant Minister for Home Affairs [2018] FCA 1487. 130 The appellant submitted that this line of reasoning was in error and should not be endorsed by this Court. 131 The appellant referred to BCR16 at [48]-[50], where the majority discussed the qualitatively different exercise involved in a decision under s 501CA(4) of the Act compared to s 65 of the Act, and submitted that analysis applied equally to a decision under s 501BA(2) of the Act. He submitted that in the context of a s 501BA(2) assessment, the fact that Australia owed non-refoulement obligations in respect of the appellant, if established, may have real significance in the weighing of factors as to whether, in the national interest, the original decision should be set aside. However, if, as had occurred, non-refoulement was not considered and the original decision was set aside, it would avail the appellant nought in a protection visa application that Australia may owe non-refoulement obligations in respect of him. Irrespective of those matters, he was likely to be denied a protection visa, as he was likely not to satisfy (at least) the criterion in s 36(1C) of the Act: see BCR16 at [50]. 132 The appellant submitted the majority in BCR16, at [73] and [96], identified the Minister's failure to appreciate the different role which non-refoulement obligations might play in a s 501CA(4) assessment (or, by parity of reasoning, a s 501BA(2) assessment), and the role which they might play in the assessment of a protection visa application under s 65 of the Act, as a separate and distinct jurisdictional error (albeit not separately identified as one of the two articulated "misunderstandings"). 133 The appellant submitted the reasoning of the primary judge at [31], [35] and [37], and of the judges in Ali, Greene and Turay did not engage with, and could not be reconciled with, this aspect of the reasoning in BCR16. In fairness to the judges in Ali, Greene and Turay, it did not appear to the appellant that this aspect of BCR16 was drawn to their Honours' attention. Nor, in fairness to the primary judge, was the point put precisely this way below. 134 The appellant submitted that, contrary to the reasoning of the primary judge at [37] and [39], this approach did not involve "speculation" as to what might or might not occur in future decision-making. What was at issue was whether the Minister's state of satisfaction under s 501BA was reached on a correct understanding of the law. The Minister's statement of reasons exposed no appreciation of the different role that non-refoulement obligations would play in a decision under s 65 of the Act on a future protection visa application, compared to the role they may play in relation to the exercise of discretion under s 501BA. Nor did Minister demonstrate any appreciation, in concluding that non-refoulement obligations "would be fully considered", of the likelihood (not mere speculation) that a person in the position of the appellant, whose visa had been cancelled because the Minister has personally formed the view that the Australian community "should not tolerate any further risk of harm" arising from the appellant's continued presence in Australia (statement of reasons at [100]) will not be granted a protection visa, even if non-refoulement obligations are found to be owed in respect of him. 135 The appellant submitted that to consign non-refoulement obligations as a matter to be considered only in the context of a protection visa application was likely to render them irrelevant and useless to the appellant. Such a course may well lead to refoulement or indefinite detention. That conclusion followed from the structure of the Act, in particular ss 36, 65, 189, 196, 197C and 198. The Minister's failure to have regard to or appreciate these matters, in concluding that non-refoulement obligations "would be fully considered" in a future protection visa application by the appellant, amounted to jurisdictional error. The appellant submitted the primary judge erred in failing to so find. 136 The Minister submitted that this ground, seen in the light of the appellant's present submissions, advanced a point that was not raised before the primary judge. This appeared to be accepted by the appellant. Without making any concession as to whether the point was sufficiently arguable, the Minister did not oppose a grant of leave. 137 The appellant's argument, in the Minister's submission, was that the primary judge made an appellable error in holding that the Minister's decision was not based on an incorrect understanding of the law because, as Bromberg and Mortimer JJ held in BCR16 (at [49]), "s 65 involves a qualitatively different exercise" from "the discretionary exercise for which s 501CA(4) calls", the latter permitting consideration of "the nature and quality of ... risks ... [that] are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa)." 138 The Minister submitted there were three difficulties with this ground. 139 First, it was not self-evident that a misunderstanding of the "national interest" in s 501BA(2)(b) was evidenced by the Minister's having reasoned, as this Court should infer he did at [79]-[81], that non-refoulement obligations were best considered in the context of an application for a protection visa, where the very purpose of that visa is to provide safe haven to a non-citizen who feared serious harm or significant harm if returned to his or her receiving country. 140 The Minister submitted there was nothing in the text or context of s 501BA(2)(b) that required the Minister "to have regard to or appreciate" "the different role that non-refoulement obligations would play in a decision under s 65 of the Act on a future protection visa application, compared to the role they may play in relation to the exercise of discretion under s 501BA", as submitted by the appellant. The effect of the appellant's argument was that the Minister's consideration of the "national interest" must involve an assessment of non-refoulement in the manner described by the majority in BCR16 at [49], [73] and [96]. The difficulty with this argument, however, the Minister submitted, was that it betrayed the language of s 501BA(2)(b), which did not provide that the Minister must have regard to considerations of the kind discussed in BCR16 when deciding whether cancellation of a visa was in the national interest. If the appellant was arguing that non-refoulement (in the sense described in BCR16) should be implied in s 501BA(2)(b) as a mandatory relevant consideration, he had not demonstrated, in the manner required by law, that the subject matter, scope and purpose of the Act, which relevantly provides for a regime for the Minister personally to exercise a discretionary power to cancel visas in the national interest, compelled that implication. Indeed, the fact that the national interest was a broad, evaluative concept militated against any such implication. Acceptance of the appellant's argument would also have the curious consequence that the Minister would be required personally to have regard to whether Australia owed non­refoulement obligations to the appellant in the context of assessing where the national interest lay in exercising the power in s 501BA(2), before they were considered again in the context of an application for a protection visa. 141 Second, the Minister submitted, the appellant's reliance on BCR16 in the present case was misplaced and inconsistent with a series of judgments of Full Courts, including for example: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [10]-[30] per Flick, Griffiths and Perry JJ; AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [69]-[70] per Allsop CJ, Robertson and Griffiths JJ; Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 at [41]-[65] per Allsop CJ, Griffiths and Wigney JJ. 142 Those cases supported the proposition that, if a non-citizen has had a visa refused or cancelled, but he or she may subsequently make a valid application for a protection visa, the immediate legal consequences of the decision (to which the Minister was required to have regard) did not include refoulement, contrary what appeared to be suggested by the use in the appellant's submissions of the words "may well lead". The majority in BCR16 neither purported to cast doubt upon, nor to overrule, any of these cases. The reasoning in these cases, the Minister submitted, applied equally to s 501BA(2). Accordingly, the Minister was not required to consider, in the exercise of his power in s 501BA(2), whether Australia owed non- refoulement obligations to the appellant. 143 Third, the Minister submitted, the cases upon which the primary judge relied in rejecting these grounds below at [31]-[37] emphasised the importance of the different stages of decision-making under the Act much like the Full Court authorities just referred to. As the primary judge correctly observed at [35], they recognised "the need to avoid speculation as to what might or might not occur in future decision-making" when considering an application for judicial review of a decision made under, relevantly, s 501BA(2) of the Act. 144 The Minister submitted that certain matters raised by the appellant in this aspect of his submissions were inconsistent with the approach taken in each of the cases cited by the primary judge. Whether the appellant was or was not likely to be successful, if a valid application for a protection visa were to be made (as the Minister considered could be made at [79] of his reasons), was not to the point. It certainly did not supply a sufficient basis to read into s 501BA(2) of the Act a duty on the part of the Minister to assess whether the appellant was somebody to whom Australia owed protection obligations. 145 In any event, the Minister submitted, contrary to the appellant's submissions, it was not necessarily the case that any application for a protection visa would be refused. It might be, for example, that a different decision maker, at some unspecified time in the future, based on circumstances which may well differ from those confronting the Minister in February 2018, would determine that the appellant met the criteria in s 36(1C). Accordingly, it could not be said that the Minister's not having had regard to non-refoulement at the time of exercising the discretionary power in s 501BA(2) "will avail the appellant nought in a protection visa application that Australia may owe non-refoulement obligations in respect of him" or "is likely to render [non­refoulement] irrelevant and useless" (as submitted by the appellant). 146 While judgment was reserved, on 14 March 2019 the Court granted the parties leave to file short written submissions on two recent judgments: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 and Omar v Minister for Home Affairs [2019] FCA 279. Those submissions were provided on 21 March 2019. 147 The appellant submitted that Omar directly supported his case: the relevant misunderstandings in that case were based upon the same passages of BCR16 on which the appellant relied, being BCR16 at [48]-[52], [73] and [96]. In the judgment in Omar, Mortimer J summarised those passages as identifying "the different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared to their role as, in effect, incidents of one criterion (the 'protection criterion') in the requirements for the grant of a protection visa". The ratio of Omar, the appellant submitted, was equally applicable to a decision under s 501BA(2). 148 The Minister submitted that the judgment in Omar was distinguishable as that case involved the Minister, in the exercise of power under s 501CA(4)(b)(ii), failing "to engage with representations made by the applicant about 'another reason' put forward by [him] as to why the cancellation decision should be revoked" (at [13]). Those representations canvassed non-refoulement (at [17], [35]-[39], [50]) but the Minister did not have regard to them for the reason that they were likely to be considered, in accordance with Direction 75, in the course of deciding a valid protection visa application (at [18]). Her Honour held that such reasoning involved jurisdictional error, in that the Minister was required to, but did not, consider the applicant's representations as to non-refoulement being a reason why the power in s 501CA(4)(b)(ii) should be exercised in his favour in order to perform the statutory task required by that provision (at [27], [34], [46], [48], [50], [59] (penultimate sentence), [78] (penultimate sentence), [81], [82] (final sentence)). The Minister submitted that the present case was very different. It did not involve any question as to whether, in exercising the power under s 501BA(2), the Minister was required to consider whether Australia owed protection obligations to the appellant. Indeed, such an argument was expressly disavowed by the appellant at the hearing. Nor, unlike Omar, did the present case involve the appellant having made submissions to the Minister to the effect that, in exercising his power under s 501BA(2), he should have regard to non-refoulement. The lawful exercise of that power did not require the Minister to describe the differences that non-refoulement might play in that context compared with their role in deciding a protection visa application under s 65(1). 149 The appellant submitted that the decision in Ezegbe was not on point. Nowhere in that case, the appellant submitted, did the Court address or reject the submissions made on this appeal. 150 The Minister submitted that parts of the reasoning in Ezegbe were applicable to grounds 1(d), 2(b) and (c)(ii) in the appellant's notice of appeal. In relation to those grounds, it was put by the appellant in writing that the Minister did not "demonstrate any appreciation" of the "likelihood" that a person in the appellant's position, in respect of whom the Minister had concluded the Australian community should not tolerate any further risk of harm, "will not be granted a protection visa". Submissions to the same effect were made by the appellant at the hearing. The Minister submitted that the applicant in Ezegbe made the same submissions, albeit in the context of the exercise of power under s 501CA(4). In Ezegbe, Perram J concluded, at [25], that the fact that "the Minister's reasons do not disclose an awareness on his part that any application for a protection visa faced a real risk of being refused on character grounds under s 36(1C)(b)" did not involve a jurisdictional error, and in this respect the Minister referred also to Ezgebe at [26].

Proposed ground 3 151 Turning to the failure to make the decision within a reasonable time ground, the appellant submitted the Court should permit the appellant to raise this point on appeal, notwithstanding that it was not raised before the primary judge. An appellate court may permit a point of law to be raised before it for the first time upon facts which were admitted or proved beyond controversy, where it is expedient in the interests of justice to do so: Suttor v Gondowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497. Such a point may not be taken where evidence could have been led in the court below which could have prevented the point from succeeding. But this was not such a case. The appellant relied upon one uncontroversial factual matter: the exercise of power under s 501BA nearly 15 months after the appellant had been released into the community. No evidence to explain the delay could have been given which would have rendered the delay reasonable. The unreasonableness arose because of the impact such a delayed decision would have on the appellant (and other visa holders); it did not turn upon the diligence or otherwise of the Minister or his subordinates. 152 The appellant submitted that there was no express stipulation as to the time within which the Minister's power under s 501BA of the Act is to be exercised. That being so, the appellant submitted it was implied that the power was to be exercised within a reasonable time of the original decision: see Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 4; 255 CLR 179 at [37]; Koon Wing Lau v Calwell [1949] HCA 65; 80 CLR 533 at 573-574 per Dixon J. Such an implication was made notwithstanding that there is no duty upon the Minister to exercise the power under s 501BA: cf Koon Wing Lau. 153 The appellant submitted that what was a reasonable time will depend upon the facts: Koon Wing Lau at 574. The test was whether there were circumstances which a reasonable person might consider render the delay justified and not capricious: ASP15 v Commonwealth of Australia [2016] FCAFC 145; 248 FCR 372 at [21]. 154 Because the time limit was implied as a matter of statutory construction, what was reasonable will be informed by the purpose and scheme of the relevant legislation: BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [23]-[24]. 155 Applying these principles, the appellant submitted, it was plain that the delay in making the decision under s 501BA in the present case was unreasonable. The purpose of the Act, relevantly, was to regulate, in the national interest, the presence in Australia of non-citizens: s 4(1). To that end, the Act prescribed a scheme by which non-citizens may be granted and enjoy the benefit of permission to remain in Australia, in the form of a visa: s 4(2). The appellant's visa was a permanent visa by which the appellant enjoyed a range of benefits and entitlements (see BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [27]). Possession of a permanent visa to remain in Australia allows a non-citizen to plan for a life in Australia and to make life decisions accordingly. 156 The appellant submitted that ss 501(3A) and 501CA of the Act set out a regime whereby visa holders serving a full time sentence of imprisonment of 12 months or more will face automatic cancellation of their visa. However, they have an opportunity to pursue revocation of the cancellation. The intention is that the person will move from criminal custody straight to immigration detention while revocation is pursued: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [49]. The Act required promptitude in the giving of notice to a person that their visa has been cancelled (s 501CA(3)); in the making of an application to revoke the cancellation (s 501CA(4) and Migration Regulations reg 2.52(2)(b)); in the making of an application to the AAT for review (s 500(6B)); and in the making of a decision by the AAT (s 500(6L)). 157 The power under s 501BA(2) was enlivened only where there had been a favourable decision by either a delegate of the Minister or the AAT to revoke a cancellation. Such a decision would ordinarily result in the release of a visa holder from immigration detention into the community. The decision was not subject to the rules of natural justice and was not subject to merits review: ss 501BA(3), 501BA(5). 158 The appellant submitted that what was a "reasonable period of time" in relation to such a decision must take into account that a visa holder with respect to whom the decision was made was very likely to have recently spent a period of time in immigration detention, following an additional period of time in full time imprisonment, but to have since been released. The person would, no doubt, have resumed making the usual life plans on the basis that their visa has been restored to them and that they are permitted to remain in Australia. 159 The appellant submitted that a delay of, in the present case, nearly 15 months from the time of the AAT decision to the Minister's decision (and a further delay of 6 weeks until the appellant was notified of the decision) cannot be regarded as reasonable. A reasonable person would regard such a delay as unjustified and capricious, having regard to the prejudicial impact of the delay on the appellant. A reasonable person in the position of the appellant would expect, more than 12 months after the AAT decision, that their visa position was secure. 160 In relation to ground 3, in respect of which the appellant require leave, the Minister submitted that leave should be refused. First, the Minister submitted, the ground was misconceived and did not have sufficient prospects of success to warrant the grant of leave. Unlike the legislation under consideration in Koon Wing Lau, the Minister submitted, the words "upon" or "until" did not appear anywhere in s 501BA. And unlike s 7(1)(a) of the War­time Refugees Removal Act 1949 (Cth), which required the Minister to perform an act within a particular time, the Minister was not required to consider the exercise of the power in s 501BA and the exercise of that power cannot be compelled by the issue of a writ of mandamus. Moreover, by force of s 501BA(3), and unlike the legislation in Koon Wing Lau, the Minister was not obliged to afford procedural fairness to a person the subject of a decision made under s 501BA(2). Koon Wing Lau did not support the bald propositions that "it is implied that the power [in s 501BA] is to be exercised within a reasonable time of the original decision [under s 501CA]" or that "[s]uch an implication is made notwithstanding that there is no duty upon the Minister to exercise the power under s 501BA". As Moshinsky J observed in AQM18 at [64] and [69], the principle derived from cases such as Koon Wing Lau (and applied in Plaintiff S297) was apt in cases where a public duty remained unperformed after a reasonable period of time had elapsed. That was not the present case. Accordingly, the Minister submitted, the appellant was unable to establish that the exercise of the discretionary power in s 501BA(2) was conditioned by a requirement that it be performed within a reasonable time of a decision made under s 501CA(4). 161 Second, the Minister submitted, the proposed ground was not sufficient to attract the relief sought by the appellant in his notice of appeal. Plaintiff S297 established that the appropriate remedy where a statutory duty had not been performed within a reasonable time was a writ of mandamus. Even assuming that a writ of mandamus could issue to compel the Minister to make a decision under s 501BA(2), it would be futile to grant relief in the present case as a decision had been made. 162 Third, the Minister submitted, it was not at all self-evident that the passage of 15 months between the date of the AAT's decision and the date of the Minister's decision in and of itself amounted to unreasonable delay. What was reasonable was, in part, a question of fact the answer to which would depend on the circumstances of the case. Had the point, which the appellant now sought to take, been raised below, the Minister could have adduced evidence to show what steps were taken in the period between the decisions of the Tribunal and the Minister. That, alone, was a compelling reason to refuse to grant leave to the appellant. 163 Fourth, the Minister submitted, no explanation, let alone an adequate one, had been provided by the appellant, by way of affidavit, as to the reasons why this ground was not advanced below. The appellant was represented by solicitors and counsel before the primary judge and had amended his originating application on 27 July 2018. The point could have been, but was not, taken at least at that time. In the event that leave was granted, the Minister sought an opportunity to adduce evidence, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), to meet this ground before it was determined.

Claimed error in relation to an obligation to consider non-refoulement on any future protection visa application 164 I turn first to consider the ground that the primary judge erred in concluding that the Minister had not made a jurisdictional error in relation to an obligation to consider non-refoulement as part of any future application by the appellant for a protection visa. 165 In my opinion, in the relevant part of his reasons, the Minister was not setting out a legal proposition but looking to what would in fact be the future course of decision-making if the appellant made a valid application for a protection visa. 166 I would therefore reject the appellant's proposition that the Minister erred in assuming that non-refoulement obligations would necessarily, as a matter of law, be assessed in the course of any future protection visa application. 167 While I accept that Direction 75 does not bind the Minister, and does bind other decision-makers addressing the question of whether or not to grant a protection visa, I do not see that as establishing error. Although in the case of a decision by the Minister there would be nothing in the legislation or in Direction 75 to require the Minister first to assess whether the refugee and complementary protection criteria are met, the appellant has not established that the Minister would be likely to make such a decision personally. 168 The appellant appears to accept that the Minister made no jurisdictional error if as a matter of fact any future application for a protection visa is to be decided by persons other than the Minister, such as by officers of the Department. 169 Since I have concluded that the Minister, at [80]-[81] of his reasons, was not setting out a legal proposition but a factual proposition as to the future if a protection visa application was made by the appellant, in my opinion it would be for the appellant at trial to show both that it was likely the Minister personally would make a decision on the protection visa application and that as a matter of fact the Minister would not consider the application of the protection specific criteria before proceeding with any consideration of other criteria. The appellant has not done this. 170 In BCR16, the Assistant Minister said no more than that the appellant was able to make a valid application for another visa: "Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of this decision." 171 The majority accepted the submission on behalf of the appellant that at the time of the decision in that case there was nothing in the Act or in the Migration Regulations which governed the manner in which the Minister or the Minister's delegates were required to consider whether the criteria for a protection visa were satisfied for the purposes of the task in s 65 of the Act. The logical consequence, the majority accepted, was that the Minister and the Minister's delegates were free to decide the manner in which a protection visa application would be considered, the steps taken in that consideration, and the order in which criteria for a protection visa would be evaluated: see the reasons for judgment at [36]-[37]. 172 In the present case, in my opinion, the circumstances were different, both in terms of what the Minister as decision-maker said and the procedures shown to apply to the assessment of any future protection visa application lodged by the appellant. 173 This ground therefore fails.

Claimed error in relying upon the stage of decision-making 174 In my opinion, the articulation of this point as the primary judge erring, at [11], in failing to find jurisdictional error on the part of the Minister in finding that the existence or otherwise of non-refoulement obligations would be fully considered if the appellant made a protection visa application is not sustainable. There is no reason to doubt that those obligations would then be considered and considered fully. 175 The appellant's real point of substance is a different one. It is that the consideration of whether or not Australia has non-refoulement obligations in respect of the appellant should be considered in the exercise of the Minister's discretion under s 501BA as in those circumstances it may have real significance in the weighing of factors as to whether the original decision should be set aside. That consideration may have no ultimate significance in terms of the grant of a protection visa. An illustration of that point is the appellant's submission that, if applied for, a protection visa would be likely to be refused because, as stated in s 36(1C)(b) of the Act, a criterion for a protection visa is that the applicant is not a person to whom the Minister considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. By s 5M, the reference to a particularly serious crime includes a reference to a crime that consists of the commission of a serious Australian offence. 176 In my opinion, therefore, the appellant's complaint is as to the consequences for him of a cancellation of a visa by the Minister under s 501BA on the one hand coupled with, on the other hand, the possible non-grant of a protection visa, if applied for, even though it may be established at such a time that Australia has non-refoulement obligations to the appellant. 177 I would also assume that the appellant's point is not, contrary to the reference to the national interest in his written submissions, limited to the Minister's satisfaction as to the national interest but goes also to the discretion s 501BA(2) confers on the Minister, which may be exercised so as not to set aside the original decision and cancel a visa even where he is satisfied that the person does not pass the character test and that the cancellation is in the national interest. 178 It is worth noting what is not involved in this claimed error on the part of the Minister. 179 To be put to one side is any reliance on procedural fairness since s 501BA(3) provides that the rules of natural justice do not apply to a decision under s 501BA(2). 180 Neither would the issue seemed to be about mandatory relevant considerations: see BCR16 at [61]. The appellant expressly disclaimed reliance on mandatory relevant considerations. It would, I think, be difficult to characterise as a mandatory relevant consideration in the exercise of the Minister's power under s 501BA(2) what may happen to the appellant if he were to apply for a protection visa and that protection visa were refused. 181 Nor is this claimed error the same as that made out in BCR16. That was a case where the majority held, at [67], that the Minister had incorrectly understood the law in considering that non-refoulement obligations would necessarily be considered in the event that the appellant was to make an application for a protection visa, when this was not the case. As I have explained, the Minister did not make that error in this case. I would therefore not conclude on that basis that the Minister has failed to carry out the task required of him by s 501BA(2): compare BCR16 at [63]. 182 I do not accept the appellant's submission that the Minister erred in the exercise of his discretion under s 501BA(2) in stating that non-refoulement obligations would be fully considered in a future protection visa application because he did not have a correct understanding of the law. That incorrect understanding was said to be in two respects, on the appellant's submission. First, the Minister was said to have misunderstood the different role that non-refoulement obligations would play in any decision under s 65 compared to the role they may play in relation to the exercise of discretion under s 501BA. Second, the Minister was said to have failed to appreciate that the appellant was likely not to be granted a protection visa even if non-refoulement obligations were found to be owed in respect of him because of the Minister's present finding, in his reasons for decision at [100], that the Australian community "should not tolerate any further risk of harm" in respect of the appellant. 183 In my opinion, the appropriate analysis in the present case involves an appreciation that the Minister did not say, at [80]-[81], that he was refusing to take into account in the exercise of the power under s 501BA(2) that the appellant claimed he would face harm. Indeed, at [82], the Minister said that he accepted that regardless of whether the appellant's claims were such as to engage non-refoulement obligations, the appellant would face hardship arising from his stated homosexuality were he to return to Bangladesh. This was in the context where, at [75]-[78], the Minister had noted the appellant's earlier submission that he would face harm if returned to Bangladesh and the Minister had noted the appellant's visa history, including the grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality. The Minister also noted that the appellant had said that his life would be in "very real danger" if he returned to Bangladesh. This was the harm and hardship which the Minister addressed at [82]. 184 If the Minister had not addressed that matter, my view would have been that the Minister may well have failed to complete his statutory task and thereby made a jurisdictional error of a similar, although not identical, kind to that considered in BCR16. 185 In circumstances where the decision maker has assessed the prospect that the person in question is likely to apply for a protection visa and there is no impediment to that person doing so, that assumption not being the subject of any dispute in the present appeal, I do not regard the references to non-refoulement obligations as demonstrating an incorrect understanding of the law. In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand. 186 In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2). 187 The distinction I have described finds support in, and is consistent with, the reasoning in cases raised by the parties. 188 Although the facts and statutory context in Ezegbe were different to the present case, the dispositive reasoning, at [28], is not dissimilar to the reasoning which I consider to be applicable. The conclusion in that case was that by simply refusing to deal with any of the issues about what would happen to Mr Ezegbe if he were returned to Nigeria, the Minister had failed to exercise the power. This was because part of the case Mr Ezegbe had been putting to the Minister in his representations under s 501CA(4) for why his visa should not be cancelled was the fact that he would be harmed if returned to Nigeria. In the present case, the issue of harm arose on the facts found to exist by the Minister. As I have explained, if the Minister had failed to consider that issue, he may have fallen into jurisdictional error. 189 In Omar the ground that was upheld was that the Assistant Minister failed to carry out his statutory task under s 501CA because he failed to engage with representations made by the applicant about "another reason" put forward by the applicant as to why the cancellation decision should be revoked. The Assistant Minister relevantly did not do this on the basis of what was referred to as the first misunderstanding, identified at [27], being that the application of Direction 75 to any decision-making process under s 65 when a protection visa application is made "is not a substitute for consideration of non-refoulement under section 501CA". The reasoning at [46], that under s 501CA(4) the Assistant Minister was not authorised to simply carve out aspects of the representations made and particular "reasons" advanced, and decline to deal with them, would apply, mutatis mutandis, in other circumstances to those of the present appeal in respect of decision-making under s 501BA, as I have endeavoured to explain. 190 As to those parts of BCR16 referred to in Omar, it will be recalled that both cases concerned a decision under s 501CA(4), where different considerations may arise stemming from the place of representations by the visa applicant under that section, and that the discretion to revoke arises, on the common alternative where passing the character test is not in issue, where the Minister is satisfied that there is "another reason why the original decision should be revoked": see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13. Thus in Omar, the nature and content of submissions made to the Minister on behalf of the applicant was one of the matters which contributed to Mortimer J's conclusion. 191 In my opinion, what was said by the majority in BCR16 at the passages relied on by the present appellant, [48]-[52], [73] and [96], stems from the fact, as found by their Honours at [15], that the only paragraph that dealt with the appellant's claims of harm was the paragraph in the reasons of the Assistant Minister saying that it was unnecessary to determine whether non-refoulement obligations were owed for the purposes of the decision under s 501CA(4). Indeed, the analysis by the majority at [73] focused on the Minister's failure to consider the risk of serious or significant harm (rather than the characterisation of that risk as engaging non-refoulement obligations or not), noting that the kind of harm identified by the appellant was not restricted to harm as that concept was understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations. 192 In Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9, where also the relevant decision was made by the Assistant Minister under s 501CA(4), the Full Court rejected, at [87], the contention of the Minister that the decision of the Full Court in BCR16 was plainly wrong. In part this turned on issues relating to the characterisation of the Assistant Minister's reasons. What was there referred to as the 'first misunderstanding' was an assumption by the Assistant Minister that non-refoulement obligations would necessarily be considered in the event that the appellant made a protection visa application. A similar assumption was made in BHA17. The Full Court, at [80], did not reach a concluded view in relation to the 'second misunderstanding' identified by the majority in BCR16. 193 While I accept the appellant's submission that the role that non-refoulement obligations might play in a protection visa application is very different to the role they might play in a s 501BA determination, I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minister accepted that the appellant would face hardship if returned to Bangladesh - the factual basis said to engage non-refoulement obligations - and took that hardship into account. 194 This ground fails.

Proposed ground 3 195 The Court refused leave to the appellant to rely on his proposed ground 3. The proposed ground was not a pure question of law but one where the Minister reasonably said that he would have wished to adduce evidence before the primary judge if this proposed point had been taken there. That was a sufficient basis on which to refuse leave. Even the reasonable person posited by the appellant would need to have the full facts before concluding whether or not there was unreasonable delay. The Court also noted that there was no explanation of the circumstances in which the point was not taken before the primary judge, when the appellant was represented by solicitors and counsel.

Conclusion and orders 196 In my opinion, the appeal should be dismissed with costs. 197 I express my gratitude to counsel for the appellant who appeared pro bono on a referral certificate issued by the Court. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.