Did the Minister’s failure to put the appellant on notice that a decision may be made contrary to Australia’s international obligation under Art 12(4) of the International Covenant on Civil and Political Rights constitute a denial of procedural fairness?

Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141 (12 August 2021)

Intro:-

This is an appeal against the judgment of a single judge of this Court in Ratu v Minister for Home Affairs [2020] FCA 1779.

Facts:-

The appellant is a citizen of Fiji. He arrived in Australia in 1985, as a four year old child. In 1999, he was granted a Certain Unlawful Non-Citizens (Class AG Subclass 833) visa.

In 2001, the appellant was sentenced to a term of 16 years of imprisonment for murder. He was released from prison in 2016, but was sentenced to 14 months’ imprisonment in 2018 for various offences against his partner, including assault occasioning bodily harm.

On 21 May 2018, a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) of the Act (the cancellation decision).

The appellant was invited under s 501CA(3)(b) of the Act to make representations seeking revocation of the cancellation decision, and the appellant took up that invitation. On 22 July 2020, the Minister made the decision to not revoke the cancellation decision.

The appellant then applied to the Federal Court of Australia for judicial review of the Minister’s non-revocation decision. That application was dismissed by the primary judge on 11 December 2020.

The Minister’s decision

The Minister began by considering s 501CA(4)(b)(i) of the Act, and concluded that, by the operation of ss 501(6)(a) and (7)(c), the appellant had a “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more. The Minister was therefore not satisfied that the appellant passed the “character test”.

The Minister then turned to the question of whether there was “another reason” why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act. The Minister summarised the reasons articulated by the appellant and then considered those reasons along with other relevant matters.

The Minister stated that, in conformity with Art 3 of the Convention on the Rights of the Child (CROC), he had treated the best interests of the appellant’s minor children as a primary consideration. The Minister concluded that it was in the best interests of the children for the cancellation decision to be revoked.

The Minister concluded that the appellant represented an unacceptable risk of harm to the Australian community, and that the protection of the Australian community outweighed the best interests of the children and other minor family members and other considerations. The Minister was not satisfied that there was “another reason” why the cancellation decision should be revoked.

The Minister considered that there was an ongoing risk that the appellant would re-offend, and that if he re-offended in a similar manner, it could result in physical and psychological harm to a member or members of the Australian community.

It may be noted that the appellant did not make any representation to the Minister concerning the application of Art 12(4) of the ICCPR, and that the Minister did not consider that Article.

The submissions

The appellant observes that in Teoh, the High Court held that the visa holder had a legitimate expectation that the Minister would comply with Art 3(1) of the CROC and that the legitimate expectation arises regardless of whether the visa holder was aware of Art 3(1). The Minister was obliged to invite comment from the visa holder upon a proposed departure from that Article. The appellant submits that the ratio decidendi of Teoh extends to relevant provisions of other international treaties, including Art 12(4) of the ICCPR. The appellant submits that the Minister’s decision to not revoke the cancellation decision under s 501CA(4) of the Act involved a departure from Art 12(4), but the Minister had denied the appellant procedural fairness by failing to invite comment upon whether the obligation should be observed.

The appellant’s second ground asserts that Art 12(4) of the ICCPR is a mandatory relevant consideration which the Minister was bound to consider. The appellant submits that where an administrative decision affects an international obligation, the obligation may constitute a mandatory relevant consideration. The appellant submits that the appellant’s arrival in Australia as a young child and absence of connections with Fiji readily suggest a need to consider Art 12(4).

Issues:-

a) Did the primary judge err in failing to hold that the appellant was denied procedural fairness by the Minister’s failure to put the appellant on notice that the Minister might make a decision that would, contrary to Art 12(4) of the ICCPR, arbitrarily deprive the appellant of the right to enter or remain in Australia?

b) Was Art 12(4) is a mandatory relevant consideration which the Minister failed to take into account?

Analysis:-

Ground 1: Denial of procedural fairness

Article 12(4) of the ICCPR provides that, “No one shall be arbitrarily deprived of the right to enter his own country”.

It is apparent that the Minister did not draw the attention of the appellant to Art 12(4), nor invite comment from the appellant upon any proposed departure from the Article. It is not apparent that the Minister was under any obligation to do so.

However, there is some difficulty in identifying the ratio of Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20. The critical passages from the reasons of Mason CJ and Deane J give rise to uncertainty as to the width of the ratio. Those passages contain a mixture of some statements that appear to be confined to the CROC and others that appear to extend more generally to other treaties. For example, their Honours stated at 291, “ratification of a convention is a positive statement...that the executive government and its agencies will act in accordance with the Convention”. Their Honours continued, “[t]hat positive statement is an adequate foundation for a legitimate expectation...that administrative decision-makers will act in conformity with the Convention...”. The reference to “a convention” was to conventions generally, whereas the references to “the Convention” were specifically to the CROC. Justice Toohey made the general statement at 301 that, “the assumption of such an obligation may give rise to legitimate expectations”, but his Honour’s later references were specifically to the CROC. Justice Gaudron’s reasoning was confined to the status of the children as Australian citizens and the CROC.

In Amohanga v Minister for Immigration and Citizenship [2013] FCA 31, Edmonds J considered an argument similar to the argument presented in this appeal, that the applicant had a legitimate expectation that he would not, contrary to Art 12(4) of the ICCPR, be arbitrarily deprived of the right to enter his own country. However, Edmonds J considered that the ratio of Teoh is limited to the principle of a legitimate expectation arising that a decision-maker will act consistently with the CROC. His Honour held at [37] that as Teoh had not considered the ICCPR, the Court was not bound to apply the decision in respect of the ICCPR.

The High Court did not directly refer to the ICCPR in Teoh. In light of the uncertainty as to the width of the ratio of Teoh, the narrow approach taken by Edmonds J in Amohanga should be accepted. It follows that Teoh does not establish that a legitimate expectation arises that Art 12(4) of the ICCPR will be observed, nor that procedural fairness requires that the affected person be given an opportunity to make submissions as to why the Minister should not depart from Art 12(4).

Even if the ratio of Teoh were understood as a broad principle that a legitimate expectation arises that a statutory decision-maker will act in conformity with Australia’s international obligations, it was made clear in Teoh that a legitimate expectation is subject to any contrary indication by the legislature or executive. That qualification reflects the fundamental principle that the content of any obligation of procedural fairness depends upon the particular statutory context and the particular facts and circumstances of the case: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

There are strong indications that Parliament considered that decisions made under ss 501(3A) and 501CA(4) would not be arbitrary and, therefore, would not be inconsistent with Art 12(4). In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38, the plurality held that courts should, “favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty”.

Although s 501(5) excludes the rules of natural justice in relation to a decision under s 501(3A), that reflects the mandatory nature of the cancellation decision and the provision of a later opportunity to make representations as to revocation. In Falzon v Minister for Immigration and Border Protection [2018] HCA 2, Gageler and Gordon JJ observed at [89] that, “the purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of Parliament, should not be permitted to remain in Australia”. Accordingly, the purpose of s 501(3A) is to protect the Australian community.

Section 501CA(4) allows a cancellation decision made under s 501(3A) to be revoked where representations are made and the Minister is satisfied that the person passes the “character test”, or there is “another reason why the original decision should be revoked”. Subsections 501CA(1)-(3) impose obligations of procedural fairness upon the Minister that must be complied with after the cancellation decision, but before a decision is made under s 501CA(4). Sections 476 and 476A provide for judicial oversight of the legality of visa cancellation decisions. Under Australian law, an administrative decision that is arbitrary may constitute a jurisdictional error and be liable to be quashed: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [135].

That Parliament considered the provisions do not arbitrarily deprive a person of the right to remain in Australia is strongly suggested by the assumption that Parliament intends to give effect to Australia’s obligations under international law, taken together with the protective purpose of s 501(3A), the confinement of the provision to persons who have committed serious criminal offences and are currently serving a sentence of imprisonment on a full-time basis, the opportunity to seek revocation, the ability of the Minister to revoke the cancellation, and other legal protections.

There is another indication that Parliament considered that decisions made under ss 501(3A) and 501CA(4) would not infringe Art 12(4) of the ICCPR. Section 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires that a member of Parliament who proposes to introduce a Bill must cause a statement of compatibility to be prepared. The statement must include an assessment of whether the Bill is compatible with human rights, including, under s 3(1), human rights recognised or declared by the ICCPR. The Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), which introduced ss 501(3A) and 501CA into the Act, attached a Statement of Compatibility with Human Rights prepared by the Minister for Immigration and Border Protection. That statement discussed the potential incompatibility of the Bill with Arts 6(1), 7, 9(1), 12(1), 13, 14(6) and (7), 17, 21, 22(1) and (2), 23(1), 24(1) and 26 of the ICCPR. It did not mention Art 12(4). The inference to be drawn is that the Minister, and Parliament by passing the Bill, did not consider the Bill to be incompatible with Art 12(4).

Parliament plainly saw the power to cancel a visa under s 501(3A), taken together with the power to revoke the cancellation decision under s 501CA(4), as rational, necessary, confined, reasonable, proportionate, and not arbitrary. Parliament must be understood to have considered that these provisions are not inconsistent with Art 12(4) of the ICCPR.

In Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32, the plurality held at [33] that any non-refoulement obligation owed under Art 33 of the Convention Relating to the Status of Refugees (Refugees Convention) is not a mandatory relevant consideration under s 501CA(4), and continued at [36]:

"It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non-refoulement claim is made – as in this case – non-refoulement does not need to be considered in the abstract."

In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216, the Full Court, referring to DRP17, held at [48]:

"It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made..."

(see also Pennie v Minister for Home Affairs [2019] FCAFC 129 at [12]; Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [66]- [70]; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [60]).

Unless Australia’s international treaty or convention obligations are raised in, or clearly arise from, the representations, the Minister is not required to consider them when making a decision under s 501CA(4) of the Act. The Minister has no general or abstract duty to invite representations concerning such obligations.

In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216, the Full Court, referring to DRP17, held at [48]:

"The appellant’s proposition is that procedural fairness requires that the Minister notify any person whose visa is cancelled under s 501(3A) of the existence of Art 12(4), inform the person that an adverse decision under s 501CA(4) may not conform with that Article and invite the person to make submissions upon that matter. That proposition cannot be accepted in light of the view taken by Parliament that ss 501(3A) and 501CA(4) are not inconsistent with Art 12(4) and the legislative intention that the Minister is not required to consider Australia’s international obligations unless they arise from the representations made."

Ground 2: Failure to take into account a mandatory relevant consideration

The second ground is that Art 12(4) of the ICCPR is a mandatory relevant consideration for the Minister when making a decision under s 501CA(4) of the Act, and that the Minister failed to take that consideration into account.

As has been discussed, McHugh and Gummow JJ held in Lam at [101] that Teoh had accepted that unenacted international obligations are not mandatory relevant considerations: see also Snedden v Minister for Justice [2014] FCAFC 156 at [147]. In Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32, the plurality held at [33] that any non-refoulement obligation owed under Art 33 of the Refugees Convention is not a mandatory relevant consideration for s 501CA(4) of the Act.

There is nothing in the text, subject matter, scope or purpose of s 501CA(4) of the Act which requires that Art 12(4) of the ICCPR must be taken into account, unless raised in, or clearly arising from, representations made to the Minister.

The appellant’s alternative ground of appeal must be rejected.

Conclusion:-

The appeal must be dismissed.

The appellant should pay the respondent’s costs of the appeal.