What happened
SZQRB, a national of Afghanistan of Hazara ethnicity and Shia Muslim faith, left his home in Jaghori District, Ghazni Province, in February 2010 because he feared the Taliban would kill him on account of his ethnicity, religion and later-claimed imputed political opinion ([15]-[16]). He travelled through Pakistan, Malaysia and Indonesia before boarding a vessel intercepted by Australian authorities. On 23 May 2010 he was taken to Christmas Island, an excised offshore place, and detained under s 189(3) of the Migration Act 1958 (Cth) as an offshore entry person and unlawful non-citizen ([17]-[18]).
On 30 October 2010 SZQRB requested a Refugee Status Assessment (RSA). A delegate rejected the claim on 17 February 2011. SZQRB sought Independent Merits Review (IMR). On 15 August 2011 the IM Reviewer affirmed the delegate's decision, recommending that SZQRB not be recognised as a person to whom Australia owes protection obligations under the Refugees Convention ([20]). SZQRB commenced judicial review in the Federal Magistrates Court. On 3 February 2012 Cameron FM dismissed the application ([21]). No appeal was filed within time.
On 28 February 2012 the Minister, on his own motion, granted SZQRB a temporary safe haven (subclass 449) visa and a bridging E visa, leading to his release from detention ([22]). An International Treaties Obligations Assessment (ITOA) was completed on 22 March 2012. It concluded that SZQRB's removal to Afghanistan would not breach Australia's non-refoulement obligations under the Convention Against Torture (CAT) or the International Covenant on Civil and Political Rights (ICCPR) ([23]). SZQRB was notified that his case would not be referred to the Minister for personal intervention.
On 23 August 2012 a pre-removal clearance confirmed that removal would not raise non-refoulement concerns ([26]). SZQRB's bridging visa expired on 28 August 2012 and he was again detained under s 189(1) ([27]-[28]). On 21 September 2012 the Department provided a submission to the Minister recording the negative RSA, IMR, ITOA and pre-removal clearance. The Minister signed a decision record stating that, on the basis of those documents, return to Afghanistan was consistent with Australia's obligations under the Refugees Convention, ICCPR and CAT. However, "whether or not that view is correct, and irrespective of" any legal or factual error in the IMR, ITOA or pre-removal clearance or "any other circumstance", the Minister decided not to consider or further consider the exercise of his personal non-compellable powers, including under ss 91L and 195A ([32]).
SZQRB immediately sought an extension of time to appeal Cameron FM's February 2012 decision and an injunction. Both were refused by Buchanan J on 21 September 2012 ([34]). The next day SZQRB commenced fresh proceedings in the Federal Magistrates Court seeking, among other relief, to quash the Minister's 21 September 2012 decision and an interlocutory injunction. Riley FM granted the interlocutory injunction on 22 September 2012, restraining removal pending hearing and determination of the proceeding ([37]). The proceeding was removed to the Federal Court under s 39 of the Federal Magistrates Act 1999 (Cth). Tracey J directed that the application for leave to appeal the interlocutory injunction and the substantive proceeding be heard by a Full Court ([9]-[11]).
At the hearing on 2 November 2012 counsel for SZQRB submitted that SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 was plainly wrong. The Full Court was reconstituted as a bench of five. SZQRB sought leave to further amend his originating application to add grounds attacking the Minister's decision as involving prejudgment, extraneous purpose and failure to have regard to s 36(2)(aa). The Minister opposed amendments that would re-litigate the IMR (already the subject of unsuccessful judicial review and refused extension of time) but did not oppose amendment to challenge the ITOA ([46]-[57]).
Lander and Gordon JJ (with whom Besanko, Jagot and Flick JJ agreed on the outcome) held that the ITOA was affected by two jurisdictional errors: application of the wrong standard of proof and denial of procedural fairness ([248], [262]). They granted a declaration that the ITOA was not made according to law and an injunction restraining removal until SZQRB's claims under s 36(2)(aa) had been assessed according to law and the Minister had decided he is not a person to whom Australia owes protection obligations under that provision. Leave to appeal the interlocutory injunction was refused because the substantive relief achieved the same practical effect ([286]). The Minister was ordered to pay SZQRB's costs.
Why the court decided this way
The court grounded its decision in the legislative scheme and the High Court's reasoning in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 and Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144. The Migration Act contains "an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken" in the Refugees Convention, CAT and ICCPR ([135], citing Plaintiff M61 at [27]). Section 36(2)(aa), inserted with effect from 24 March 2012, expressly recognises complementary protection obligations where the Minister has "substantial grounds for believing" there is a "real risk" the non-citizen will suffer "significant harm" as defined in s 36(2A), which includes arbitrary deprivation of life ([67]-[98]).
The ITOA expressly adopted departmental policy that the necessary chance of harm must be on the "balance of probabilities" and "more likely than not", a higher threshold than the "real chance" test applicable to Refugees Convention claims ([240]). The court held that the correct test for s 36(2)(aa) is the same "real risk" test applied to s 36(2)(a) claims (citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the Minister's concession in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147) ([242]-[246]). Use of the wrong standard was jurisdictional error.
Separately, the ITOA relied on country information, post-submission reports and the January 2011 Memorandum of Understanding between Australia, Afghanistan and UNHCR without putting that material to SZQRB for comment, even though the assessor regarded it as credible, relevant and significant ([250]-[261]). This breached the procedural fairness obligation recognised in Plaintiff M61 at [78] and [91]: where an assessment is conducted to inform the Minister whether removal would breach non-refoulement obligations and affects the claimant's liberty, the assessor must disclose material that may bear on the claims ([262]).
The Minister's decision record of 21 September 2012 relied on the flawed ITOA while stating the decision stood "irrespective of" any legal or factual error or "any other circumstance" ([32], [218]). The court held that this did not preclude relief. While mandamus and certiorari do not lie in respect of non-compellable powers under ss 46A, 91L or 195A (Plaintiff M61 at [99]-[100]), a declaration that the ITOA was not made according to law was appropriate to inform the Minister that SZQRB's claims under s 36(2)(aa) had not been lawfully assessed ([264]). An injunction restraining removal was also appropriate because s 198 does not authorise removal of an unlawful non-citizen whose claims for complementary protection have not been assessed according to law (Plaintiff M70 at [95]-[96], [239]) ([270]-[271]). Once the Minister has detained a person under s 189 for the purpose of assessing claims, that assessment must be completed lawfully before removal can occur; the Act assumes compliance with non-refoulement obligations before return ([269]-[271]).
SZQDZ was not plainly wrong; it correctly applied Plaintiff M61 in holding that the Minister is not compellable to have regard to an RSA or IMR ([201]-[208]). However, SZQDZ did not govern the present case, which concerned removal on the basis of a flawed ITOA rather than the Minister's obligation to consider recommendations ([209]). The interlocutory injunction granted by Riley FM was not justified on the grounds she gave (she was bound by SZQDZ and could not treat Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616 at [59] as casting doubt on it), but leave to appeal was refused because the substantive relief made the appeal pointless ([275]-[286]).
Before and after state of the law
Before this judgment the law was settled by Plaintiff M61 that RSA and IMR processes, adopted after the 29 July 2008 announcement ending the Pacific Strategy, were undertaken for the purpose of the Minister considering whether to exercise non-compellable powers under ss 46A and 195A. Those processes had to accord procedural fairness and apply correct legal principles because they prolonged detention and informed the Minister's consideration ([141]-[153]). Plaintiff M61 also established that mandamus does not lie to compel the Minister to consider or reconsider exercising those powers, and that declarations could issue where processes were flawed ([159]-[164]). Plaintiff M70 confirmed that s 198 could not be used to remove offshore entry persons claiming protection before their claims had been assessed according to law, lest Australia breach non-refoulement obligations ([191]-[199]).
SZQDZ held that an IMR recommendation was not a "migration decision" to which s 477 time limits applied and that the Minister was not bound to take an IMR into account when considering ss 46A or 195A ([172]-[177]). The present judgment affirmed SZQDZ was not plainly wrong but clarified its limits: it did not authorise removal on the basis of a flawed ITOA assessing complementary protection claims introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) which inserted s 36(2)(aa) and s 36(2A) with effect from 24 March 2012 ([96]-[100]).
After the judgment, ITOAs (and equivalent assessments of complementary protection claims) must apply the "real risk" test, not a departmental "balance of probabilities" gloss ([246]-[248]). Procedural fairness obligations in such assessments are more onerous than those applying to the Refugee Review Tribunal under s 424A(3)(a); country information that post-dates an applicant's submissions and is regarded as credible, relevant and significant must be put to the applicant ([262]). A ministerial decision record that relies on an ITOA while stating the decision is made "irrespective" of error does not prevent a court granting a declaration that the ITOA is invalid and an injunction under s 23 of the Federal Court of Australia Act 1976 (Cth) or the court's implied power to preserve the subject matter of the proceeding to prevent removal that would breach non-refoulement obligations ([280]-[282], [270]-[272]). The judgment reinforces that s 198 removal is not available until claims under both s 36(2)(a) and s 36(2)(aa) have been lawfully assessed. The temporary safe haven visa and Subdivision AJ issues were left for the High Court ([107]).
Key passages with plain-English translation
Paragraph [246]: "The test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan."
Plain English: The court rejected the ITOA's "more likely than not" test. For complementary protection the law uses the same "real chance" test that applies to ordinary refugee claims. Anything less than a real chance of significant harm (including arbitrary killing) does not engage Australia's obligations.
Paragraph [262]: "The ITOA was completed after SZQRB made his written submission and before the Country Information that was relied upon was put to SZQRB. SZQRB was never asked to comment upon the MOU or its effectiveness. … The process that led to the ITOA was flawed in that the assessor failed to accord SZQRB procedural fairness by bringing to his attention information that the ITOA might rely upon for concluding that returning SZQRB would not breach Australia's non-refoulement obligations under the CAT or ICCPR."
Plain English: The assessor used fresh reports and the tripartite MOU that SZQRB never saw. Because that material mattered to the outcome, fairness required that he be told about it and given a chance to answer. Not doing so made the whole ITOA unlawful.
Paragraph [270]: "Once the Minister has detained an unlawful non-citizen for the purpose of assessing that unlawful non-citizen's claims for protection, the Minister must complete that assessment before the Minister removes that non-citizen from Australia. The Migration Act assumes that the Minister will comply with Australia's international obligations under the Refugees Convention, the CAT and the ICCPR, before the Minister allows a non-citizen to be returned to the country of his nationality, in circumstances where the non-citizen claims that there is a real risk that he will be persecuted or suffer substantial harm."
Plain English: If the Department locks someone up to check their protection claims, it cannot later say "never mind the check" and deport them. The Act is built on the idea that Australia will honour its promises not to send people back to face death or torture. A flawed check means removal is not yet lawful.
Paragraph [32] (the Minister's decision record, quoted at [32] and analysed at [218]): "However, whether or not that view is correct, and irrespective of: (1) whether or not any legal or factual error was made by the Independent Merits Reviewer; (2) whether or not any legal or factual error was made by the officers who undertook the International Treaties Obligation Assessment or the Pre-removal clearance; or (3) any other circumstance; I have decided not to consider, or not to further consider, the exercise of any of my personal non-compellable public interest powers under the Act with respect to [SZQRB]…"
Plain English: The Minister said he thought return was safe, but even if he was wrong and even if the papers he relied on were legally or factually defective, he still would not lift the bar or grant a visa. The court held this could not cure the underlying invalidity of the ITOA for the purpose of removal.
What fact patterns trigger this precedent
The precedent is triggered whenever an unlawful non-citizen who entered at an excised offshore place after the excision time has been detained under s 189 and has made claims that removal would expose him to a real risk of significant harm within s 36(2A) (arbitrary deprivation of life, death penalty, torture, cruel or degrading treatment). It applies where an ITOA or equivalent assessment concludes there is no non-refoulement obligation but (a) applies a "balance of probabilities" or "more likely than not" standard rather than the real risk test, or (b) relies on country information, MOUs or post-submission material not put to the claimant for comment where that material is regarded by the assessor as credible, relevant and significant.
The fact pattern also includes a ministerial decision record under ss 91L or 195A that relies on the flawed ITOA while stating the decision stands "irrespective" of legal or factual error. Removal is then scheduled under s 198(2) or s 198(8). The precedent catches both Afghan Hazara claims involving Taliban targeting and similar claims from other nationalities where complementary protection is in issue. It does not apply to pure Refugees Convention claims already determined by an IMR that has been the subject of unsuccessful judicial review and refused extension of time; those cannot be re-litigated in a later proceeding ([57]-[58]). It is engaged only where the claimant remains an unlawful non-citizen after any bridging or temporary safe haven visa expires and where the Minister has not lifted the bar under s 46A(2) or s 91L(1).
How later courts have treated it
The judgment itself treats Plaintiff M61 as establishing that assessments informing the Minister's consideration of non-compellable powers must be procedurally fair and apply correct legal principles because they prolong detention and affect liberty ([141]-[153]). It treats Plaintiff M70 as confirming that s 198 cannot authorise removal before claims (including complementary protection claims) have been lawfully assessed, lest Australia breach non-refoulement obligations ([191]-[199]). SZQDZ is treated as correctly decided on the point that the Minister is not compellable to have regard to an IMR or ITOA when deciding whether to exercise ss 46A, 91L or 195A, but the present judgment limits SZQDZ to its own facts: it does not permit removal on the basis of a demonstrably flawed ITOA assessing s 36(2)(aa) claims ([209], [330]).
The court treats Chan as supplying the "real chance" test that governs both s 36(2)(a) and s 36(2)(aa) claims ([242]). MZYYL is treated as confirming that the Minister had accepted in that appeal that the real chance test applies to complementary protection, reinforcing that the ITOA's departmental policy was contrary to law ([243]). The judgment treats the Federal Magistrate's reliance on Plaintiff S10 at [59] as mistaken; that passage does not cast doubt on SZQDZ or permit a Federal Magistrate to depart from Full Court authority ([278]).
Because the judgment is a decision of a five-judge Full Court that expressly considers and applies earlier High Court and Full Court authority without overruling SZQDZ, later courts are expected to treat its holdings on the real risk test, procedural fairness in ITOAs, and the availability of declaratory and injunctive relief to prevent unlawful removal as binding. The court leaves open whether certiorari can quash an IMR or ITOA ([116]) and whether the Minister's grant of a temporary safe haven visa was for an improper purpose ([104]-[107]), noting the latter issue was before the High Court.
Still-open questions
The judgment leaves open whether certiorari can issue to quash an IMR or ITOA where the Minister is not compellable to have regard to it (Plaintiff M61 at [100] left the point undecided; the present court notes it remains open at [116]). It also leaves undecided whether the Minister's grant of a temporary safe haven visa on his own motion was for the collateral purpose of engaging Subdivision AJ and triggering s 198(8), noting that issue is before the High Court ([107]).
The precise form of declaratory and injunctive relief was left for further submissions; the court indicated it would not grant an injunction in the broad form sought by SZQRB that would require the Minister to decide afresh and wait 35 days plus any further litigation period ([61]-[62]). The court did not decide whether the Federal Magistrates Court, as a court of record but not a superior court, possesses the full implied power to grant interlocutory injunctions to preserve the subject matter of litigation ([284]).
The interaction between the "irrespective" clause in the Minister's decision record and the lawfulness of detention under s 189 where the sole purpose of detention shifts from assessment to removal on the basis of a flawed ITOA is not fully resolved; the court holds only that removal cannot lawfully occur until a lawful assessment has been completed ([269]-[271]). Whether a ministerial decision expressed as being made "irrespective of any other circumstance" could ever be lawful where the Minister has in fact been provided with, and formed a view upon, detailed country information and protection assessments is left for future cases; the court holds only that on the present facts the flawed ITOA could not support removal.
The corrigendum issued on 22 March 2013 corrected references in paragraphs 213 and 220 from "Sri Lanka" to "Afghanistan", confirming that the applicant's nationality and the country of proposed removal remained Afghanistan throughout ([Corrigendum]). The broader question whether the Minister can lawfully decide never to consider exercising s 91L in respect of nationals of particular countries, even where credible claims of arbitrary deprivation of life exist, is not answered; the court describes the submission as "disturbing" but finds it unnecessary to resolve given the facts ([352]-[353]).