High Court: Decision-makers can 'defer' consideration of non-refoulement obligations when assessing whether to revoke a visa cancellation decision made on character grounds
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Summary
Where a person’s visa is mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act), s 501CA provides a procedure for the Minister to invite the former visa holder to make representations if they consider the cancellation decision should be revoked. A Direction issued under the Migration Act lists considerations to be taken into account by delegates of the Minister when deciding whether to revoke a mandatory visa cancellation, including "international non-refoulement obligations". Whether the person is someone to whom Australia may have non-refoulement obligations is a relevant consideration because a decision not to revoke the visa cancellation will ordinarily leave the person in immigration detention and liable to removal from Australia.
In May 2022, the High Court of Australia addressed the question of how and to what extent a decision-maker is required to consider representations that raise a potential breach of Australia's international non-refoulement obligations, when determining if there is "another reason" to revoke a mandatory visa cancellation. A majority of the Court found that while the Minister or delegate is "required to read, identify, understand and evaluate … representations … raising a potential breach of Australia’s international non-refoulement obligations", ultimately, it is permissible for the decision-maker to ‘defer’ substantive consideration of any non-refoulement claims on the basis that they can be subsequently assessed in an application for a protection visa.
Facts
The plaintiff was a citizen of the Republic of South Sudan. In 2006 he entered Australia with a Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa. This class of visa is distinct from a protection visa, which is the class of visa available for refugees who seek asylum in Australia and are recognised as engaging non-refoulement obligations. More than a decade after his arrival in Australia, the plaintiff was convicted of two counts of unlawful assault and sentenced to an aggregate term of 12 months' imprisonment. His visa was then cancelled on the basis that he had a substantial criminal record and was serving a full-time custodial sentence (the Cancellation Decision). As required under s 501CA(3)(b) of the Migration Act, the plaintiff was invited to make representations to the Minister about whether the Cancellation Decision should be revoked. The plaintiff subsequently filed representations stating that the Cancellation Decision should be revoked because, among other things, if he were returned to South Sudan he would face persecution, torture and death.
Following consideration of the plaintiff's representations, a delegate of the Minister decided, pursuant to s 501CA(4) of the Migration Act, not to revoke the visa cancellation (the Non-Revocation Decision). The delegate was not satisfied that the plaintiff passed the character test, or that there was "another reason" why the Cancellation Decision should be revoked. Under the heading "international non-refoulement obligations", the delegate stated that they considered it was unnecessary to determine whether non-refoulement obligations were owed. This was because, according to the delegate, it was open to the plaintiff to apply for a protection visa, and the existence or otherwise of non-refoulement obligations would be fully assessed in the course of consideration of that visa application.
The plaintiff completed his custodial sentence and was subsequently detained in an immigration detention facility. He applied for a protection visa, which was refused two years later. Despite the delegate finding there was a real risk of destitution, extortion, kidnapping, and possible death upon the plaintiff's return to South Sudan, the protection visa application was refused on grounds relating to the plaintiff’s criminal record (ss 36(1C)(b) and 36(2C)(b)(ii) of the Migration Act) leaving the plaintiff in immigration detention. The plaintiff subsequently applied to the High Court for a writ of certiorari to quash the Non-Revocation Decision, and a writ of mandamus (an injunction) compelling the Minister to exercise the powers under s 501CA(4) of the Migration Act according to law.
The High Court's decision
The key question to be answered in this special application centred on how and to what extent the decision-maker was required to consider the plaintiff's representations on non-refoulement.
The majority of the Court did not consider it was Parliament's intention that the broad discretionary power under s 501CA(4) of the Migration Act be restricted by requiring the decision-maker to treat every statement within written representations made by a former visa holder as a mandatory relevant consideration. But equally, the decision-maker could not ignore the plaintiff's representations on non-refoulement obligations. On this issue, the majority of the Court confirmed decision-makers are "required to read, identify, understand and evaluate … representations … raising a potential breach of Australia’s international non-refoulement obligations". However, at least in the dissenting view of Justices Edelman and Gleeson, the scope of this "evaluation" was construed very narrowly.
The majority observed that the Migration Act distinguishes between Australia's non-refoulement obligations under international law, and the form in which those obligations are interpreted and implemented in Australian domestic law. As such this case confirmed, following earlier decisions, that for the purposes of the Migration Act as a whole, claims that relate to unenacted international non-refoulement obligations could not be mandatory relevant considerations attracting judicial review for jurisdictional error.
To the extent that Australia's non-refoulement obligations are given effect in the Migration Act and the former visa holder's claims relate specifically to those domestic law obligations, the majority found that it is open to a decision-maker assessing revocation of a mandatory visa cancellation to defer any substantive assessment of whether Australia has non-refoulement obligations in respect of the former visa holder. This finding was made on the basis that those claims could be subsequently assessed separately in a protection visa application.
The dissenting judgments
Justice Edelman and Justice Gleeson provided dissenting judgments, finding that the delegate had not reasonably evaluated the plaintiff's representations as a whole. According to this dissenting view, a delegate could not have "considered" the plaintiff’s representations by deciding to defer evaluation of the substantive claims in question. Their Honours did not consider it was reasonable for the delegate to decline to substantively evaluate the plaintiff's repeated pleas not to expose him to serious consequences.
Justice Edelman's dissenting view was that the plaintiff was entitled to have reasonable consideration given to his representations that he would be persecuted, tortured, and killed. This entitlement followed not merely as a matter of principle, based upon considerations of dignity and humanity, but also as a matter of authority, noting a long line of precedent in the Federal Court, including the Full Court of the Federal Court. Noting that the consequences of persecution, torture, and death are the most devastating consequences that could be encountered by a person facing removal from Australia, his Honour characterised the Minister's submissions as paying only ‘lip service’ to the requirement to consider the plaintiff’s extremely grave representations.
Commentary
The ramifications of the majority’s findings in this case are significant both legally and practically. The decision has attracted considerable debate around whether the majority view that ultimate decision-making responsibility can be deferred is reasonable, or, as the title of Justice Edelman's dissenting judgment warns, whether such a view effectively permits "a sentence of death".
From a legal perspective, the majority in this case found that the reasoning underlying at least 24 decisions of the Federal Court or the Full Federal Court “should not be adopted”. As highlighted in Justice Edelman's dissenting judgment, the Federal Court has developed significant expertise in the field of migration law, including in relation to issues of interpretation and application of the terms and meaning of the Migration Act. However, following M1, a strong line of Federal Court authority on the application of s 501CA(4) of the Migration Act has been overturned.
Curiously, the majority judgment in M1 did not fully engage with the differences in decision-making processes related to visa cancellations and protection visas respectively. For example, in deciding whether a visa cancellation should be revoked under s 501CA of the Act decision-makers have a degree of freedom to weigh up a broad range of factors. This kind of discretion is not available to decision-makers considering an application for a protection visa, who are instead required to refuse the application if a criterion for the visa is not satisfied.
The practical consequences of the decision are therefore also significant. As explained in Justice Gleeson's dissenting view, ‘deferring’ the assessment of non-refoulement obligations essentially meant the decision-maker failed to respond to the plaintiff's representations. In the view of Justice Gleeson, this practical injustice could not be remedied through a subsequent protection visa application – which, it was observed, is a different process affected by different considerations.
In practice, the delegate’s decision to defer consideration of non-refoulement obligations also meant declining to engage substantively with a matter that may have weighed strongly in favour of revoking the visa cancellation, and therefore may have led to the plaintiff being released from custody at the end of his sentence (rather than being transferred to immigration detention pending the outcome of the protection visa application some two years later).
In this case, the plaintiff in M1 did apply for a protection visa after his revocation request was refused. That application was unsuccessful, despite a positive finding in relation to non-refoulement obligations, and the plaintiff in M1 is now among the cohort of people held in indefinite immigration detention.
The full case can be read here.