Authorities
18 In the course of oral submissions, counsel for Mr Ibrahim made it clear that he is not arguing "non-refoulement obligations, risk of harm" is a mandatory relevant consideration in terms of the exercise of the power in s 501BA(2). That is not how he puts the argument. The argument in relation to both Grounds is that the Assistant Minister was bound to proceed on the basis of a correct understanding of the law, but that he failed to do so.
19 Mr Ibrahim referred to a long line of cases which articulate the principle that a decision-maker must proceed by reference to a correct understanding of the law starting with R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430 per Latham CJ. In Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391, Gummow and Hayne JJ said (at [196]):
In the absence of any evidence providing a further explanation of the reasons, or the parts of the reasons, for the respondent making her cancellation decision of 30 June, it is to be taken that she exercised her discretion under s 501(3) to cancel the prosecutor's transitional (permanent) visa on an erroneous footing. This is that, if she did cancel the visa, the legislation required there then to be given to the prosecutor, in terms of par 14 of the minute, "an opportunity to make representations seeking revocation of [that] decision". The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.
20 In Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22, Gageler and Keane JJ said (at [33]):
The "satisfaction" required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. …
(Citation omitted.)
21 Finally, in Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350, the High Court said (at [68]):
The Minister's reasons for his decisions to cancel the visas of the plaintiff and the applicant refer repeatedly to the Minister having taken into account information described variously as "protected information under section 503A" and "information which is protected from disclosure under section 503A". The inference to be drawn is that the Minister made the decisions on the understanding that s 503A was valid in its entirety and operated to prevent the Minister from in any circumstances being required to divulge or communicate the information including to a court engaged in the judicial review of the decisions. That understanding was in error. The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information. As in Re Patterson; Ex parte Taylor, where the error of the Minister was a failure to appreciate that there would be no opportunity to seek revocation of the decision, "[t]he result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)".
(Citations omitted.)
22 Both parties referred at some length to the decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 (BCR16). In that case, the Assistant Minister made a decision under s 501CA(4) of the Act not to revoke the cancellation of the appellant's visa under s 501(3A) of the Act. The appellant had submitted to the Assistant Minister that another reason why the cancellation should be revoked was that he feared that he would be harmed if he was forced to return to his home country. The Assistant Minister did not consider that claim because she considered that whether Australia owed non-refoulement obligations to the appellant could be raised and would be considered were the appellant to make an application for a protection visa and that he was not prevented from making such an application.
23 Bromberg and Mortimer JJ found that the Assistant Minister had proceeded by reference to two "misunderstandings" of the law (at [66]). The first was that she had misunderstood the course of decision-making under the Act with respect to an application for a protection visa and the fact was that such an application may be refused by reference to character criteria without any need to give consideration to Australia's non-refoulement obligations (at [67]-[69]). Secondly, the Assistant Minister had erred in deciding that the fear of harm identified by the appellant did not extend beyond the scope of Australia's non-refoulement obligations (at [70]-[73]).
24 It is convenient for me to set out how Bromberg and Mortimer JJ dealt with the second "misunderstanding" because a similar error is said to have been made by the Assistant Minister in this case. Their Honours said (at [70]-[73]):
If contrary to the opinion we have expressed above, there was no misunderstanding by the Assistant Minister of the course any application for a protection visa by the appellant could be likely to take, we would in any event accept the appellant's alternative submission that an error of the kind identified by Robertson J in Goundar is present in the Assistant Minister's reasoning process.
Both the briefing note, and the Assistant Minister's reasons, move immediately to describing the relevant issue as "whether non-refoulement obligations are owed to [the appellant]". We respectfully agree with Robertson J in Goundar that the harm comprehended by such obligations, whether under the Refugees Convention or under CAT and the ICCPR, does not describe the universe of harm which could be suffered by a person on return to her or his country of nationality. Rather, those international instruments are directed at state parties' obligations to avoid particular kinds of harm befalling a person who may be returned to her or his country of nationality (and in the case of the Refugees Convention, for particular reasons).
Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to "non-refoulement". It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister's reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia's international non-refoulement obligations. Whether or not the harm the appellant feared had a "private quality" as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia's international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a "reason" the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task.
We reject the Minister's submission that it is enough to avoid error on the part of the Assistant Minister that there was a "real possibility" the risk of serious or significant harm to the appellant might be addressed during consideration of any protection visa application he made. There are several reasons for this. First, as we have noted above, the kind of harm identified by the appellant was not restricted to harm as that concept is understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations. Second, as we have noted above, the role of the consideration of whether serious or significant harm might befall the appellant in Lebanon (for Convention or non-Convention related reasons) has a quite different place in a discretionary decision about revocation, to the place it may have, if reached, in a protection visa assessment. In the former, it need not have any particular quality to affect the exercise of discretion - the weight of the prospect of harm is a matter for the Assistant Minister rather than part of any fixed visa criterion. That is in stark contrast to the role these matters play under s 65 of the Act.
25 On 5 September 2017, the Minister gave Direction No 75 under s 499 of the Act. The Direction requires that a decision-maker dealing with an application for a protection visa must consider first, those aspects of the claim relating to refugee status and complementary protection.
26 In Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali), the Assistant Minister had decided under s 501CA(4) not to revoke a cancellation under s 501(3A). The unsuccessful applicant sought judicial review. He argued that the Assistant Minister had made a similar error to that made by the Assistant Minister in the case of BCR 16.
27 Flick J rejected the argument. His Honour noted the existence of Direction No 75 and he rejected the submission that the Assistant Minister had proceeded by reference to an incorrect understanding of the law. By reason of Direction No 75, the applicant's claims to refugee status or complementary protection or both would be considered and it was on that basis that the Assistant Minister proceeded (emphasis added).
28 It seems that the applicant in Ali put some further arguments as to difficulties that might confront the Minister or Assistant Minister in dealing with an application for a protection visa or other kind of visa. With respect, I find the description of the arguments somewhat difficult to follow. However, Flick J's conclusion is, with respect, clear. His Honour's conclusion is expressed in the following passage (at [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.
29 It is unnecessary to address his Honour's treatment of the second ground of judicial review in Ali.
30 Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) also involved an application for judicial review of a decision of the Assistant Minister under s 501CA(4) to refuse to revoke a decision to cancel a visa under s 501(3A). The applicant in Greene applied for judicial review and one of the grounds was the Assistant Minister's failure to take into account a relevant consideration, namely, Australia's non-refoulement obligations. It seems that a similar submission was put to the Assistant Minister as had been put in Ali and was dealt with by the Assistant Minister in the same way. Upon a similar argument being put to Logan J, his Honour said that he agreed with the approach taken by Flick J in Ali and would follow it (at [19]).
31 In Ibrahim (No 2), White J applied the reasoning in BCR16 which concerned an exercise of the power in s 501CA(4) to an exercise of the power in s 501BA(2). In this case, the Assistant Minister did not suggest that such an approach was in error. In dealing with a submission by the Assistant Minister that it should be inferred that the Assistant Minister had made an assumption as to the manner in which an application for a protection visa, if made, would be dealt with (that the question of non-refoulement obligations would be considered before the other criteria for such a visa), White J said (at [61]):
Fifthly, as counsel for the Applicant submitted, it seems improbable that an Assistant Minister having a correct understanding of the Act would have thought it unnecessary to consider the non-refoulement submission in the context of s 501BA(2) because of an expectation that it would, in the ordinary course, be considered in the context of an application for a protection visa. That is because such an Assistant Minister would also have understood that that consideration would be of no utility for the Applicant given that his application would in any event have to be refused on character grounds. One would not readily impute such an intention to the Assistant Minister.