THE REMAINING GROUNDS OF REVIEW
36 The first ground of review proceeds from the premise that in exercising the power conferred by s 501CA(4) of the Act, the Minister was required to proceed on a correct understanding of the law and the legal consequences of the decision. It alleges that the Minister misunderstood the course of any protection visa application Mr Hernandez may have been entitled to make in four respects:
i. the Minister failed to appreciate the role played by the consideration of Australia's international non-refoulement obligations as a reason for revoking the cancellation decision as distinct from the different role played by consideration of the 'protection criteria' in the course of determining an application for a protection visa; and/or
ii. the Minister failed to appreciate that his refusal to consider whether non-refoulement obligations were owed would mean that the Applicant would be deprived of any opportunity to have that issue considered as bearing upon the question of whether cancellation of his Class BB (Subclass 155) Five year Resident Return visa was in the national interest and whether that visa should be cancelled in the exercise of a discretion; and/or
iii the Minister failed to appreciate the Applicant's potential inability to satisfy the criteria in public interest criteria 4001 and/or the criteria in s 36(1C) of the Migration Act, the potential effect of the Minister's own decision on that issue, and that the legal and/or probable consequence of such inability, by reason of ss 197C and 198 of the Migration Act, was that the Applicant could be removed to El Salvador, including in breach of Australia's international non-refoulement obligations, without any further discretionary consideration of those obligations or the national or public interest in Australia's complying with them; and/or
iv the Minister incorrectly assumed that 'the existence or otherwise of non-refoulment obligations would be fully considered' in the event that the applicant made an application for a protection visa, when that was not so because the criteria under s 36 of the Migration Act 1958 (Cth) which must be considered on an application for a protection visa differ substantially from, and do not reflect, Australia's non-refoulement obligations; …
37 The second ground of review is that:
In the alternative to ground 1, the Minister's decision was affected by [jurisdictional] error in that:
a. If the Minister proceeded on a correct understanding that the exercise involved in the determination of a protection visa application by reference to the 'protection criteria' is a qualitatively different exercise from the consideration of Australia's international non-refoulement obligations in the exercise of the discretion conferred by s 501CA (including that meeting the criteria in s 36(2) will not assist the Applicant if the grant of the visa is refused by reason of his failure to meet another criterion), then the Minister, in identifying the mere fact that the Applicant may apply for a protection visa as the basis for not substantively considering Australia's non-refoulement obligations in the course of the exercise of the power in s 501CA, failed to identify a rational basis for not considering those claims in the exercise of that power. …
38 It is submitted that these errors are material because they led the Minister to find that it was unnecessary to determine whether non-refoulement obligations were owed to Mr Hernandez and so led to a failure to consider (or making findings about) whether deporting him to El Salvador would be inconsistent with those obligations.
39 Before turning to some common issues arising on these grounds it is desirable to survey the provisions of the Act bearing on Mr Hernandez's immigration status and the significance (or non-significance) of any non-refoulement obligations that may be owed to him.
40 A consequence of the cancellation decision was that Mr Hernandez was an unlawful non-citizen within the meaning of s 14 of the Act. As an unlawful non-citizen, Mr Hernandez was liable to be taken into immigration detention: s 189. Section 196 relevantly requires that he be held there until he is removed from Australia under s 198 or s 199 or deported under s 200, or granted a visa. Section 198(2A) is to the effect that an officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen has made representations to the Minister in accordance with an invitation issued under s 501CA in relation to the revocation of a decision to cancel his or her visa, and the Minister has decided not to revoke the cancellation decision. Mr Hernandez is presently in that position as a consequence of the decision presently under review.
41 Had the Minister revoked the cancellation decision, Mr Hernandez's visa would have been reinstated, with the consequence that he would not be liable to detention, deportation or removal in accordance with the above provisions.
42 Section 197C provides:
Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
43 For the purposes of s 197C, the phrase "non-refoulement obligations" is defined in s 5 to include a non-refoulement obligation that may arise because Australia is a party to certain international agreements, namely the Refugees Convention, the Covenant and the Convention Against Torture, each of which is separately defined. It is common ground that Australia would owe obligations under international law not to return Mr Hernandez to El Salvador if he is a refugee within the meaning of Article 1A(2) of the Refugees Convention, namely a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
44 As the Minister correctly identified, Mr Hernandez was (and remains) entitled to apply for a protection visa notwithstanding the cancellation decision: Act, s 501E(2).
45 A non-citizen may make an application under s 45 of the Act for a visa of a particular class. The Minister must consider a valid visa application: s 47. Subject to exceptions that do not presently apply, s 65(1) provides that, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section … 501 (special power to refuse or cancel) …
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
46 The criteria for the grant of a protection visa include those prescribed in s 36 of the Act. It relevantly provides:
36 Protection visas - criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
…
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds, that:
…
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
47 The phrase "particularly serious crime" is defined non exhaustively in s 5M as follows:
5M 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.
48 The criteria for a protection visa also include those prescribed in cl 866.225 of Sch 2 to the Migration Regulations 1994 (Cth), which include "public interest criteria 4001" in Sch 4 (PIC 4001), namely:
Either:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
49 In addition to these provisions, s 501(1) of the Act confers powers on the Minister to refuse to grant a visa of any kind:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate - natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Decision of Minister - natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
50 A person (other than the Minister) exercising the power under s 65 of the Act must follow a course of decision making prescribed in a direction issued by the Minister under s 499. Direction 75 came into effect on 1 September 2017. Its stated purpose is to:
… direct decision-makers to refuse applications using section 36(1C) or 36(2C)(b) rather than to refer the case for consideration under section 501 where an applicant presents a danger to Australia's security or to the community. …
51 Part 2 of Direction 75 directs decision-makers to assess applicants who raise character or security concerns to proceed in the following way:
1. The decision-maker must first assess the applicant's refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision maker finds the claims do not meet the refugee or complementary protection criteria, the decision maker must refuse to grant the visa.
2. Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).
3. Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
a) Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia's non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4. If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501
5. The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
52 As Robertson J said in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [185], there is a difference between claims of a risk of harm or hardship 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.
53 In light of that distinction, an issue arises as to whether the representations made by Mr Hernandez in response to the invitation given under s 501CA(3) of the Act ought to have been understood by the Minister to have included not only a claim to fulfil the criterion in s 36 of the Act, but a discrete claim to the effect that Australia owed an obligation under international law not to return him to El Salvador.
54 In my view, the submissions ought to have been so understood, notwithstanding that they contained no express reference to Australia's international law obligations and no express reference to their source. The submissions clearly asserted facts that, if accepted, they would have the consequence that Mr Hernandez was to be regarded as a refugee in accordance with international agreements to which Australia is a party. The representation ought reasonably to have been understood to include an assertion by Mr Hernandez that he was a person to whom non-refoulement obligations were owed.
55 I am fortified in that conclusion by the circumstance that the Minister was not in fact under any misapprehension that the existence of non-refoulement obligations was indeed an issue that Mr Hernandez had raised. Paragraphs [18] and [19] of the Minister's reasons relate to that discrete issue, whereas [20] (the subject of the third ground of review) relates to the different question of the claimed risk of harm "outside the non-refoulement context". By those passages, the Minister correctly recognised the distinction to which Robertson J referred in DOB18. He correctly understood Mr Hernandez to assert that non-refoulement obligations were advanced as a reason why the cancellation decision should be revoked.
56 A material failure to consider that question would constitute jurisdictional error. That is not because the existence of non-refoulement obligations is to be regarded as a mandatory relevant consideration in every case falling for the Minister's consideration under s 501CA(4) in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. It is simply a reflection of the fact that in the present case the existence of the obligation was a matter of significance that had in fact been advanced as a reason why the cancellation decision should be revoked. On the facts, the Minister's power under s 501CA(4) was conditioned by a requirement that he consider it.
57 Failure to comply with that condition will not satisfy the threshold of materiality unless it can be shown that compliance with the condition could have resulted in the making of a different decision: Hossain at [31]; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] (Kiefel CJ, Gageler and Keane JJ).
58 This case is one in which questions concerning the identification of error and the assessment of materiality of the error are difficult to disentangle. Perhaps that is because the Minister exposed his thinking as to why his express refusal to engage with the issue was a permissible course for him to take. The parties' submissions (reflected in the manner in which the second and third grounds of review are expressed) focused upon alleged flaws in the Minister's stated explanation for failing to make a finding concerning the obligations that might be owed to Mr Hernandez at international law. The submissions focused on two related issues.
59 The first was whether the Minister was correct to assume that the existence of non-refoulement obligations would be fully assessed in the course of determining any application for a protection visa Mr Hernandez may make. Counsel for Mr Hernandez identified differences between the statutory definition of the word "refugee" and the definition of the word "refugee" for the purposes of the Convention. The Full Court identified one such difference in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [106] (White, Perry and Charlesworth JJ). The difference identified in Ibrabhim supported the conclusion that the Minister had wrongly equated the statutory and Convention refugee definitions in a way that materially affected the outcome in that case. The reasoning of the Full Court reflects the way that the grounds for judicial review were expressed in that case, both as to the existence of the error and as to its materiality.
60 In this case it has not been shown that the claims made by Mr Hernandez might be such as to satisfy the definition of a refugee for the purposes of the Convention, but not for the purpose of the Act. To the extent that there is a difference between the tests for a person's status as a "refugee" under the Act on the one hand and in accordance with an international agreement on the other, the difference is not one upon which the outcome of this application for review turns.
61 The second issue was whether there was any legal or practical difference between a case where non-refoulement obligations are identified in the course of exercising the power conferred by s 501CA(4) of the Act and a case where such obligations are identified in the course of exercising the power conferred by s 65 on an application for a protection visa.
62 In my view there is a material difference.
63 Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing "another reason" why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia's reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia's obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.
64 On the other hand, if the decision-maker responsible for assessing Mr Hernandez's visa application were to make findings of fact giving rise to non-refoulement obligations at international law, the existence of those obligations would be irrelevant to the exercise of the mandatory power conferred by s 65. The decision-maker would be compelled under s 65(1)(b) to refuse to grant the visa if not satisfied that the requirements of s 65(1)(a) were met.
65 The course of decision making under Direction 75 exposed Mr Hernandez to the probable consequence that he may be refused a protection visa notwithstanding that he was a person to whom Australia owed non-refoulement obligations under international law. That is because none of the matters falling for determination under s 65(1)(a) turned on the existence or non-existence of refoulement obligations as the case may be. Whilst the issue might arise if the matter were referred to the Minister for consideration under s 501 of the Act (and so return full circle to the Minister's attention), Direction 75 directed the decision-maker not to make any such referral without first determining whether the visa application should be refused by reference to s 36(1C) or s 36(2C)(b). The circumstance that Mr Hernandez was a person to whom Australia owed non-refoulement obligations would be irrelevant in determining either character related criteria. Moreover, the circumstance that Mr Hernandez was liable to be deported in accordance with s 197C of the Act in contravention of Australia's obligations under international law would be an irrelevant consideration in determining whether the protection visa should or should not be granted in the exercise of the bifurcated power conferred by s 65. I should add that on this application it was not submitted by the Minister that s 197C rendered non-refoulement obligations an irrelevant consideration in the exercise of the power conferred under s 501CA(4) and the Minister did not in fact proceed on that basis in exercising the power.
66 These circumstances illuminate the materiality of the Minister's error in failing to give active intellectual engagement to the particular matters Mr Hernandez had advanced as reasons for exercising, in his favour, the only statutory power then under consideration.
67 Turning now to the second ground for judicial review, I am satisfied that the reasons advanced by the Minister for refusing to consider Mr Hernandez's claim to be a person to whom non-refoulement obligations were owed are irrational in the relevant sense. That is because identification of non-refoulement obligations per se in the course of determining a visa application could not affect the outcome of a decision under s 65 of the Act and so could be of no benefit to Mr Hernandez.
68 In my view, the error I have identified above is material, whether or not the Minister was conscious of the consequences of not deciding for himself the non-refoulement issue. If the Minister did correctly appreciate the consequence, it would be irrational to point to the protection visa application process as a reason not to decide the question, and ground 2 would be upheld. If the Minister did not appreciate the consequence, that may support a conclusion that the contentions underpinning ground 1 should be upheld, but I do not consider it necessary to go so far. It is sufficient to conclude that the decision was affected by jurisdictional error because of a material failure to consider the non-refoulement issue. The application for judicial review should be allowed on that additional basis.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.