Did the Acting Minister err in not giving active consideration to implications of breach of Australia’s international non-refoulement obligations as part of consideration of national interest under S 501A(2)(e) of the Migration Act, 1958 (Cth)?

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 (9 November 2021)

Intro:-

There are two proceedings before the Court. The first proceeding is an appeal by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Acting Minister) from orders made by a judge of the Court on 23 December 2020 (CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855). The second proceeding concerns two grounds in an Amended Originating application in the original jurisdiction of the Court.

The appeal and Grounds 5 and 5A of the application raise similar issues concerning decisions made, in the case of the appeal, by the Acting Minister and, in the case of the application, by the Minister under s 501A(2) of the Migration Act 1958 (Cth) (the Act) and the construction and application of that subsection and, in particular, the condition in s 501A(2)(e) dealing with the national interest.

Facts:-

CWY20

The respondent to the Acting Minister’s appeal is described as CWY20.

The respondent is a national of Afghanistan and he arrived at Christmas Island in July 2013. He was taken into immigration detention. On 21 August 2013, he was granted a Bridging E (Class WE) visa and released into the community.

In December 2013, the respondent was charged with multiple offences of a sexual nature against children and he was remanded in custody. His Bridging visa was cancelled under s 116 of the Act.

On 3 March 2014, the respondent was convicted on seven separate counts involving indecent assaults on young females. He was sentenced to a total term of imprisonment of 56 months, with a fixed term of 14 months imprisonment. After the respondent had served his sentence, and while he was in immigration detention, he applied for a Safe Haven Enterprise (Class XE) visa. On 20 July 2017, a delegate of the then Minister for Home Affairs refused the respondent’s application. The respondent sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 25 October 2017, the Tribunal set aside the delegate’s decision. The Minister then decided to set aside the Tribunal’s decision under s 501A(2) of the Act, but this decision was subsequently quashed following legal proceedings.

On 16 July 2020, the Acting Minister made another decision to set aside the Tribunal’s decision under s 501A(2) of the Act and it is this decision which was the subject of the application for judicial review considered by the primary judge.

After setting out a number of introductory matters relevant to the respondent’s application and addressing the conditions in s 501A(2)(c) and (d), that is, the character test which the respondent clearly failed to pass, the Acting Minister turned to consider the national interest.

The Acting Minister commences his consideration of the national interest by noting that the national interest is not defined for the purposes of s 501A and by noting the guidance offered by the authorities about the meaning of the concept of national interest as follows:

(1) The national interest is a different concept to the public interest;

(2) The decision as to what is or is not in the national interest is entrusted by the Act to the Minister to determine according to his or her own satisfaction which must be attained reasonably (Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 188 FCR 326 (Madafferi)); and

(3) In considering the national interest under s 501A(2), the Minister may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant passes the character test and the crime or crimes may be of such seriousness as to found the satisfaction that it is in the national interest that a person’s visa be cancelled (Madafferi at [86]; Minister for Immigration and Multicultural Affairs v Gunner [1998] FCA 831; (1998) 84 FCR 400 at 409 (Gunner); Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Re Patterson) at [79] per Gaudron J).

The Acting Minister states that he had regard to the representations made by the respondent’s representative. He then expresses the conclusion that matters of national interest include, among other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct and any disposition imposed by the Court in respect of that conduct and that matters of national interest can include a consideration of the risk of a person reoffending and the harm which could result if such a risk eventuated.

The Acting Minister then turned to consider the nature and seriousness of the respondent’s criminal conduct, the risk that he would reoffend and the extent of the likely harm should he do so. It is not necessary for the determination of the issues on the appeal to set out the details of the Acting Minister’s consideration of these matters. It is sufficient to note that the Acting Minister concluded that it was in the national interest to refuse to grant the respondent’s application for a visa and that there is no reference in this part of the Acting Minister’s written reasons to Australia’s international non-refoulement obligations.

The Acting Minister said, having found that the respondent did not pass the character test and that it was in the national interest to refuse to grant the respondent’s visa, he would then address his discretion “to refuse to grant [the respondent’s] visa, taking into account factors that I considered weighed against and in favour of refusing [the respondent’s] visa”. In that context, the Acting Minister considered the following matters: (1) his assessment of the expectations of the Australian community as to whether the respondent should hold a visa; (2) the relevance of, impact or effect of Australia’s international non-refoulement obligations; (3) the effect on the respondent’s family in Afghanistan (i.e., a spouse and five children) of a decision to refuse the respondent’s application for a visa and his continuing detention; and (4) the strength, nature and duration of the respondent’s ties to Australia.

The Acting Minister then set out his conclusions. He referred to “countervailing considerations” which he said included non-refoulement obligations. The Acting Minister said that he had regard to the limited length of time in which the respondent has made a contribution to the Australian community, the resulting impacts of prolonged detention and the impact of a refusal decision on the respondent’s family unit in Afghanistan.

Decision of Primary Judge

The primary judge said that, in the particular circumstances of the case before him, the implications of Australia acting in breach of its international non-refoulement obligations arose squarely on the basis of the materials before the Acting Minister and the findings which the Acting Minister made. His Honour held that what he described as the “very serious consequence for Australia” of a decision by the Acting Minister to refuse to grant the respondent a visa, being that the respondent would be refouled in breach of Australia’s obligations under international law, had to be confronted and assessed by the Acting Minister in assessing the national interest as required by s 501A(2). His Honour immediately went on to say that ultimately, however, it would be a matter for the Acting Minister to determine whether or not, despite putting Australia in breach of its obligations under international law, it was nevertheless in the national interest to refuse to grant the respondent a visa (PJ at [119]).

The primary judge said that whilst the seriousness of the respondent’s criminal conduct, the sentence he received, the risk that he would reoffend and the harm to the Australian community if such risk eventuated are all matters which could be considered by the Acting Minister in his assessment of the national interest, so are the implications of Australia breaching its non-refoulement obligations and returning a person to his country of origin where there was an accepted risk that he would be killed. His Honour referred to a number of authorities in which it had been recognised that Australia’s international reputation and standing fall within the ordinary meaning of the expression “national interest”: Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838 at [45] per Kenny J; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959 at [33] per Tamberlin J; Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at [91]. His Honour also referred to the observations of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh) at 291 concerning the significance to be accorded to the ratification by Australia of an international convention.

The primary judge said he found that, in the particular circumstances of this case, Australia’s international obligations relating to non-refoulement are an important part of the national interest for the purposes of s 501A(2) of the Act. His Honour’s use of the word “found” is not accidental. The case was not argued before him as a failure to take into account a mandatory relevant consideration and his Honour’s conclusions were clearly based on the particular circumstances of the case.

The primary judge considered that the structure of s 501A(2) was significant in that it highlighted the distinct and separate pre-conditions to the exercise of the Acting Minister’s power to refuse to grant a visa to a person. His Honour said the following (at [134]):-

... On the proper construction of s 501A(2), and having regard to the Acting Minister’s findings that refusing the applicant a visa and returning him to his country of origin would put Australia in breach of its non-refoulement obligations and expose the applicant to the risk of being killed, the Acting Minister, acting reasonably and with a correct understanding of the law, ought to have addressed those matters at an earlier stage of the decision-making process and before he addressed his residual discretion. Having regard to Australia’s reputation in the international community and its obligations under international law, breach of Australia’s non-refoulement obligations and the ramifications thereof were relevant to the Acting Minister’s assessment of the national interest at an earlier stage of the decision-making process. ...

The primary judge held that the Acting Minister fell into jurisdictional error by assessing the question of the national interest on an erroneously narrow basis and that the error could be described alternatively as reasoning unreasonably, or failing to act upon a correct understanding of the law (PJ at [136]).

The primary judge said that the stage at which the Acting Minister considered the implications of Australia acting in breach of its international non-refoulement obligations was significant. Had the Acting Minister considered Australia’s breach of its non-refoulement obligations as part of the national interest, he may have given the national interest a different weight or, in the alternative, he may have reached a different conclusion as to whether he was satisfied that the refusal was in the national interest. The Acting Minister’s misunderstanding of the concept of national interest gave rise to a possible distortion in the subsequent balancing exercise (PJ at [136]–[137])

QJMV

The applicant in the proceeding is described as QJMV and the respondents are the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and the Commonwealth of Australia.

The following facts are taken from the documents before the Court and are not in dispute. The applicant is a citizen of Afghanistan and between July 2011 and February 2020, he lived in Australia as the holder of a permanent residence visa being first, a Protection (Class XA) (Subclass 866) visa and then a Subclass 155 Resident Return Five Year visa.

On 6 February 2020, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act. On 7 May 2020, the Tribunal set aside the delegate’s decision and decided not to exercise the power in s 501 of the Act to cancel the applicant’s visa.

The reason the applicant does not pass the character test is briefly, but for present purposes, adequately, explained by the Tribunal as follows:

In late 2015 QJMV was found guilty of two charges of ‘Indecent act with child under 16’, relating to an incident that occurred on 26 January 2015. The Court dealt with QJMV’s offending without conviction and by imposing an 18-month Community Corrections Order (“CCO”). He was subsequently convicted in April 2017 of contravening the CCO and two counts of ‘Fail to comply with reporting obligations,’ which was dealt with by way of a fine;

The Minister’s reasons in the application are structured in a similar way to the Acting Minister’s reasons in the appeal.

The introduction is followed by a discussion of whether or not the applicant meets the character test. The Minister then considers the national interest and the directions he gives himself about the concept of the national interest are, for all intents and purposes, the same as the directions the Acting Minister gave himself in the decision which is the subject of the appeal.

The Minister considers the nature and seriousness of the applicant’s criminal conduct, the risk of the applicant reoffending and the extent of the likely harm should he do so. It is not necessary for me to set out the details. It is sufficient to note that the Minister concluded that it was in the national interest to cancel the applicant’s visa and that there is no reference in that part of his reasons to the implications of Australia breaching its non-refoulement obligations.

The Minister then describes the meaning of the discretion in exactly the same way as the Acting Minister did in the decision which is the subject of the appeal. The Minister considers the following matters in the context of the discretion: (1) the best interests of the applicant’s four minor children who, with his spouse, are resident in Afghanistan and how they might be affected by the cancellation of his visa; (2) the Minister’s assessment of the expectations of the Australian community as to whether the applicant should hold a visa; (3) the strength, nature and duration of the applicant’s ties to Australia; (4) the impact of the cancellation of the applicant’s visa on Australian business interests; (5) the impact of the cancellation of the applicant’s visa on those affected by his offending; (6) the impediments the applicant will face if he is removed from Australia and returned to Afghanistan; and (7) Australia’s international non-refoulement obligations.

Issues:

1) CWY20 - it is alleged that the primary judge erred in fact by finding that the Acting Minister deferred consideration of the significance of Australia breaching its international non-refoulement obligations to the last stage of his decision-making process and in failing to find that the Acting Minister considered the implication of Australia breaching its international obligations in assessing the national interest, but concluded that it was not material to his assessment of the national interest

2) QJMV - The applicant submitted that the Minister must set aside the original decision and cancel a visa that has been granted to a person if each of the matters in s 501A(2)(c), (d) and (e) are satisfied and there is no discretion to refrain from setting aside the original decision and cancelling the visa. In other words, once the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest, then the Minister must set aside the original decision and cancel the visa. The applicant submitted that the Minister clearly proceeded on the basis that he had a discretion to cancel the applicant’s visa taking into account the factors that he considered weighed against and in favour of cancelling the applicant’s visa. In so doing, the Minister misunderstood the law and that constituted a jurisdictional error.

Consideration:-

Is there a discretion under S 501A(2) of the Act?

The respondent in the appeal did not raise this argument before the primary judge. His Honour proceeded on the basis that there is a discretion after the matters in s 501A(2)(c), (d) and (e) have been considered. He identified (correctly in my view) the difference between the discretion under s 501A(2) and the evaluative exercise or task required by s 501(2)(e). His Honour said (PJ at [79]):

"I do not consider that the Minister’s residual discretion whether or not to exercise the power of refusal or cancellation is of a similar character to the satisfaction which has to be found as to whether or not refusal or cancellation is in the national interest. The former may properly be described as a discretionary power. The latter is of a different character. In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment, as the plurality acknowledged in Graham at [57]. ..."

It is clear that the Minister, whose decision is the subject of the application, proceeded on the basis that there is a discretion under s 501A(2) of the Act. The Minister said:-

"Having found that [the applicant] does not pass the character test and that it is in the national interest to cancel [the applicant’s] visa, and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to cancel [the applicant’s] visa, taking into account factors that I considered weighed against and in favour of cancelling [the applicant’s] visa ..."

The Acting Minister used almost identical words in his reasons which are the subject of the appeal.

I have reached the conclusion that there is a discretion under s 501A(2) of the Act.

At what stage in the decision-making process did the acting ministes consider Australia's non-refoulment obligations?

In the appeal, the primary judge said that he rejected the Acting Minister’s contention in his supplementary submissions that it should be inferred from the Acting Minister’s statement of reasons that he did turn his mind to the implications of Australia breaching its non-refoulement obligations in assessing whether or not it was in the national interest to refuse the visa, but concluded that it was not material to his assessment of that particular subject. His Honour said that there was nothing in the statement of reasons which supported such an inference (PJ at [135]). The primary judge went on to say that, in any event, the Acting Minister, acting rationally and reasonably, could not have concluded that Australia’s breach of its international obligations was immaterial to his assessment of Australia’s national interest. These two conclusions are challenged in the grounds of appeal, the first in Ground 1A and the second in Ground 2B. The essence of the Acting Minister’s argument seems to be that the primary judge ought not to have found that the Acting Minister did not consider the significance of Australia’s non-refoulement obligations in his assessment of the national interest, albeit he concluded that they were not material to his assessment of that issue.

Earlier in his reasons, the primary judge explained his reasons for reaching the conclusions he did (at [25]–[26]):

25 The Acting Minister provided a detailed statement of reasons in support of his decision. The structure of the statement of reasons leaves no room to doubt that the Acting Minister proceeded on the basis that Australia’s non-refoulement obligations were only relevant to the question whether he should exercise his residual discretion to refuse to grant the visa. The statement of reasons indicates that the Acting Minister (correctly) viewed his decision-making task under s 501A(2) as involving several separate and distinct stages, including separate stages relating to good character, national interest and his residual discretion.

26 It is evident from that part of the Acting Minister’s reasons relating to his assessment of the national interest that he gave no consideration in that assessment to the fact that he accepted that, in the applicant’s circumstances:

(a) Australia owed international non-refoulement obligations;

(b) refusal of the visa meant that the applicant would be removed to his country of origin in breach of those obligations; and

(c) there was a risk that the applicant would be killed if he returned to his country of origin.

The Acting Minister submitted that the primary judge’s error was in treating the statement of reasons as though it represented a “series of siloed decisions” about each of the statutory integers from which it was legitimate to infer that, because non-refoulement obligations were dealt with in the later section dealing with the discretion, they were not considered in the earlier section dealing with the national interest.

The Acting Minister submitted that it should not be inferred from the absence of reference in the national interest section of his reasons to Australia’s non-refoulement obligations that he excluded them from consideration. The proper inference, in all the circumstances, is that he chose not to give weight to Australia’s non-refoulement obligations in relation to the national interest.

I reject the Acting Minister’s submissions.

The starting point is that the Acting Minister asserts that the proper inference is that he considered Australia’s non-refoulement obligations in his assessment of the national interest. That requires on his part an active intellectual process (see the discussion in Carrascalao at [45]–[46]) and active consideration is not to be equated with merely reading a document, although the latter is clearly relevant (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [29]). It is true that active consideration is not necessarily measured by the amount of time spent on the issue or the detail or extent of the reasons dealing with the issue. Nevertheless, to assert that it is not significant that the absence of reference to a matter in reasons, or, in this case, in a particular part of the reasons, is because although the matter was actively considered, it was considered irrelevant, is really to proceed by assuming the answer sought.

The Acting Minister’s written reasons follow a logical structure and are detailed and closely reasoned.

I refer to the summary of those reasons set out above (at [36]–[42]). I reiterate and add the following:-

(1) The Acting Minister dealt with the national interest in the manner set out above (at [37]–[39]), before he said:-

In sum, having regard to the above, including [the respondent’s] criminal history and the risk to the Australian community, I conclude that it is in the national interest to refuse to grant [the respondent’s] visa application.

There is no reference in the Acting Minister’s reasons to that point to Australia’s non-refoulement obligations and no indication that the Acting Minister gave active consideration to those obligations to that point.

(2) The Acting Minister then proceeded to consider the discretion under s 501A(2) in the manner summarised above (at [40]).

(3) Having set out the matters he considered were relevant to the discretion, including Australia’s non-refoulement obligations, the Acting Minister then set out his conclusions. He reiterated his conclusions that the respondent did not pass the character test and that it was in the national interest that the respondent’s visa be refused “[h]aving given full consideration to all of the information before me in this case”. This latter reference is a reference to the information he considered in that part of his reasons dealing with the national interest and not a reference to those matters and the matters he considered were relevant to the discretion, including Australia’s non-refoulement obligations. That is clear from the context. First, having made that statement, he immediately proceeds in three paragraphs to summarise the matters previously discussed in that part of his reasons dealing with the national interest. Secondly, the Acting Minister went on to say that the “above consideration”, which is a reference to his conclusion with respect to the national interest, “outweighed the countervailing considerations in [the respondent’s] case including non-refoulement obligations”.

For these reasons, the primary judge’s conclusion that the Acting Minister did not give active consideration to Australia’s non-refoulement obligations in his assessment of the national interest is correct. This is a factual finding and I do not consider the reference to Carrascalao, a different case with different reasons and issues, to be of assistance.

Conclusion:-

The primary judge was clearly right to conclude that the step in the decision-making process at which the Minister considers the implications of Australia breaching its non-refoulement obligations is important. He noted, correctly in my view, that had the Acting Minister considered the implications of Australia breaching its non-refoulement obligations as part of his consideration of the national interest, there was at least a possibility that he may have given different weight to the national interest when balancing it with other considerations which were relevant to the exercise of his discretion. Furthermore, as the primary judge noted (PJ at [136]) there was at least a possibility that the Acting Minister may have reached a different conclusion on whether he was satisfied that the refusal was in the national interest and, if the precondition in s 501(2)(e) to the exercise of his power was not met, he would not have progressed to consider his residual discretion.

For these reasons, the appeal must be dismissed.

In those circumstances, the same conclusion follows in the case of the application as follows in the case of the appeal. In the application, that is that the Minister made a jurisdictional error in his decision made on 7 December 2020 in that he did not attain his state of satisfaction under s 501A(2)(e) as to the national interest reasonably.