The Applicant's Proposed Appeal
13 I indicated to counsel for the applicant at T26/27 that I proposed to deal with the application for extension on the basis that, if I was minded to grant it, I would at the same time proceed to deal with the appeal founded on the draft amended application which was Ex 'HHH 9' to the applicant's affidavit (Ex 1), and that his submissions should be articulated on that premise.
14 The applicant's amended application (Ex 'HHH 9') only raises one ground. It is raised in the following terms:
'The Tribunal misconstrued and misapplied the law. Alternatively, the Tribunal failed to take into account [a] relevant consideration.'
This was particularised in the following way:
'i) Under Australia's international obligations, the applicant's mother was permitted to settle in Australia as a refugee. She was unable to bring the applicant, then two years old, with her.
ii) The applicant's mother sponsored the applicant and brought him to reside in Australia when the applicant was 12 years old.
iii) Delegated legislation (Ministerial Direction 41) requires that "relevant international obligations" are to be considered and considered as a "Primary consideration" in the exercise of the discretion to cancel the applicant's visa.
iv) Australia's international obligations include the obligation to permit the unit of a refugee's family (see the 1951 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons; the United Nations Convention Relating to the Status of Refugees; the International [Covenant] on Civil and Political Rights).
v) The Tribunal failed to consider - as a primary consideration - Australia's international obligations to the applicant's mother to permit and maintain the unity of the applicant's mother's family.'
15 So understood, the only ground that the applicant would rely on if I were to grant an extended period in which to make his application to the Court for review of the Tribunal's decision, would be that the Tribunal failed to consider - as a primary consideration - what he asserted were Australia's international obligations to his mother as a refugee to permit and maintain the unity of her family, and that the Tribunal's failure to consider this obligation - as a primary consideration - resulted in the Tribunal's decision being vitiated by jurisdictional error.
16 No such argument was put to the Tribunal or, if it was, it was not referred to by the Tribunal when it considered the fourth of the primary considerations - any relevant international obligations (clause 10(1)(d) of Direction 41) - see [47] of the Tribunal's Reasons, where the Tribunal observed that the only submission 'was in respect of Australia's obligations under the Refugees Convention and to the right to freedom of religious belief under Article 18 of the International Covenant on Civil and Political Rights'.
17 Clause 10(1)(d) of Direction 41 refers to certain international obligations which are to be considered, but clearly these are not intended to be exhaustive:
'(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).'
18 Clause 10.4 of Direction 41 provides:
'10.4 International obligations
(1) Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
(2) Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.
Note: Notwithstanding international obligations, the power to refuse to grant a visa or cancel a visa must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.'
19 Clause 10.4.2 of Direction 41 further provides:
'10.4.2. Convention and the Protocol Relating to the Status of Refugees
(1) In cases where issues of protection pursuant to the Refugees Convention are raised by the person or are clear from the facts of the case, they must be given consideration.
(2) If Article 33(1) of the Refugees Convention applies, consideration is to be given to whether the benefit of that provision may not be claimed by the person because of Article 33(2) of the Refugees Convention.'
20 While cl 10.4.3 of Direction 41 refers to other relevant international obligations in the following terms:
'10.4.3 Other relevant international obligations
(1) The following are to be considered:
(a) The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);
(b) The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and
(c) The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.'
21 Direction 41 makes no reference to an international obligation of Australia to the applicant's mother to permit and maintain the unity of her family, by reason of her status as a refugee, which must be considered and weighed as a primary consideration.
22 Direction 41 does, of course, list among the seven other considerations to which regard is to be had:
(1) family ties, the nature and extent of any relationships (cl 11(3)(a)); and
(2) hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia (cl 11(3)(e)),
but the Tribunal had regard to these other considerations at [52] and [57] to [59] of its Reasons.
23 In the course of oral submissions, counsel for the applicant, not without some hesitation, identified the source of the international obligation which he claimed Australia owed to the applicant's mother, as a refugee, and to which he claimed the Tribunal had no regard as a primary consideration, as being the International Covenant on Civil and Political Rights ('ICCPR'). The ICCPR was signed on 18 December 1972 and ratified on 13 August 1980 by Australia. Indeed, it is referred to in cl 10(1)(d)(ii) of Direction 41: see [16] above; and in cl 10.4.3(1)(a) of Direction 41: see [20] above. But the only provision of the ICCPR that has any relevance to a principle of permitting and maintaining family unity of a person is Article 23.1. It provides:
'The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.'
However, this provision, like the Universal Declaration of Human Rights, is cast more in terms of declaration than obligation and is to be contrasted with the terms of obligation cast by Article 6 (right to life) or Article 7 (freedom from torture and cruel inhuman or degrading treatment or punishment).
24 The principle of family unity is not incorporated in the Refugees Convention, but was the subject of Recommendation B, included in the Final Act of the Conference of Plenipotentiaries of 1951, as one commentator has put it - 'an indication of the wish of the signatories to retain freedom in these matters': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [21]. In that case, the High Court said (at [21], [23] and [25]):
'That freedom is expressed in the Australian legislation in the distinct treatment of refugee claims and dependent claims by family unit members …
The distinction … apparent on the face of s 36 of the Act … went … beyond observance of the international obligations imposed by the Refugees Convention.'
25 In my view, neither Article 23.1 nor any other provision of the ICCPR imposes an international obligation on Australia to the applicant's mother, as a refugee, to permit and maintain the unity of her family. It follows, in my view, that the failure of the Tribunal to have regard to that matter as a primary consideration was not a failure at all; and certainly did not infect the Tribunal's decision with jurisdictional error.
26 In any event, as noted in [22] above, the Tribunal did have regard to such matters - family ties, the nature and extent of any relationships (cl 11(3)(a)); and hardship likely to be experienced by the applicant and his immediate family members lawfully resident in Australia (cl 11(3)(e)) albeit under the head of 'other considerations' rather than 'primary considerations'. Nevertheless, as Bennett J concluded in Mordechai v Minister for Immigration and Citizenship [2011] FCA 986 at [58] - [60], this does not involve any error of law on the part of the Tribunal.