Applicant S270/2019 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gageler J.
• Judgment Date: 09 September 2020
• Neutral Citation: [2020] HCA 32
• Docket Number: S270/2019
• Court: High Court
• Date: 09 September 2020

[2020] HCA 32

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ

S270/2019

Applicant S270/2019

Appellant

and

Minister for Immigration and Border Protection

Respondent

Representation

S E J Prince SC with S G Lawrence and I Chatterjee for the appellant (instructed by Purcell Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with R S Francois for the respondent (instructed by Mills Oakley)

Migration Act 1958 (Cth), ss 501(3A), 501CA.

Immigration — Visas — Cancellation of visa — Revocation of cancellation — Where s 501(3A) of Migration Act 1958 (Cth) provides that Minister must cancel visa if satisfied person does not pass character test because they have substantial criminal record and person is serving sentence of imprisonment on full-time basis — Where s 501CA(4) provides that Minister may revoke decision to cancel visa if conditions in s 501CA(4)(a) and (b) are met — Where s 501CA(4)(a) requires that person makes representations in accordance with invitation from Minister — Where s 501CA(4)(b) requires that Minister is satisfied person passes character test or there is another reason why decision should be revoked — Where appellant held visa which was not protection visa — Where appellant's visa cancelled under s 501(3A) and Minister declined to revoke cancellation under s 501CA(4) — Whether Minister obliged to, and failed to, consider whether non-refoulement obligations were owed to appellant when exercising power under s 501CA(4).

Words and phrases — “another reason”, “cancellation”, “discretion”, “fear of persecution”, “international law”, “mandatory relevant consideration”, “non-refoulement”, “refugee”, “revocation”, “substantial criminal record”, “sufficient evidence”, “visa”.

ORDER

Appeal dismissed with costs.

1 Kiefel CJ and Gageler J. The facts relevant to this appeal are set out in the reasons of Nettle, Gordon and Edelman JJ. At issue on this appeal is the decision of the respondent (“the Minister”) not to revoke the cancellation of the appellant's visa. The sole ground upon which special leave was granted was that the Minister was obliged to and failed to consider whether non-refoulement obligations were owed to the appellant when exercising the discretionary power under s 501CA(4) of the Migration Act 1958 (Cth).

2 This was a ground which had not been raised in the courts below. On the application for special leave to appeal, it was submitted by counsel for the appellant that the ground “arises on the materials in evidence below”, which is to say that it was capable of determination by this Court on the available evidence. Unfortunately that has not proved to be the case.

3 The appellant's ground of appeal required him to establish, in the first instance, that protection obligations such as those owed to a refugee were or are owed to him. It is only if such obligations were or are owed that an issue as to whether the appellant could be returned to Vietnam without harm could arise. Much of the argument on the appeal was directed to whether there was sufficient evidence to permit a conclusion to be reached on that initial premise. But there were other difficulties with the state of the evidence.

4 The appellant accepted that even if he established that the Minister was required to consider Australia's non-refoulement obligations and that the failure to do so constituted jurisdictional error, he would need to show that there was at least a possibility that the Minister's consideration of that issue would have resulted in a decision to revoke the cancellation of the visa 1. But there was no sufficient evidence from which the Minister could have concluded that if the appellant was now returned to his country of origin he remained at risk of harm. Such evidence as there was suggests that much has changed since he left Vietnam.

5 It follows that the question of principle which underpinned the grant of special leave does not arise. In the absence of a factual context we do not consider it either necessary or appropriate to comment upon whether s 501CA(4) of the Migration Act might oblige the Minister to consider whether non-refoulement obligations are owed when deciding whether to revoke a decision to cancel a visa that is not a protection visa. To answer what is in the circumstances largely a hypothetical question is not useful and may mislead.

6 In our view the proper course is to revoke the grant of special leave, dismiss the application for special leave and order the appellant to pay the costs of the application and this hearing.

7 NETTLE, GORDON AND EDELMAN JJ. This appeal from a decision of the Full Court of the Federal Court concerns the validity of the decision of the respondent (“the Minister”) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the appellant's Class BB Subclass 155 Five Year Resident Return visa, which is not a protection visa.

8 The appellant was granted special leave to appeal on one ground to the effect that when exercising the discretionary power under s 501CA(4) to revoke the cancellation of the visa, the Minister was obliged to, and failed to, consider whether non-refoulement obligations were owed to the appellant.

9 Three questions were raised on appeal: did the material before the Minister raise the issue of whether Australia owed any non-refoulement obligations with respect to the appellant; if so, did the Minister decide to defer consideration of that issue because any such obligations could be considered if the appellant made an application for a protection visa; and, finally, whether the Minister was required to consider Australia's non-refoulement obligations in making a decision under s 501CA(4) of the Migration Act.

10 For the reasons that follow, the appeal should be dismissed. The appellant made no claim to fear persecution or serious harm so as to raise the issue of whether Australia owed any non-refoulement obligations and, in the circumstances of this matter, non-refoulement obligations were not a mandatory relevant consideration under s 501CA(4) of the Migration Act.

Facts

11 The appellant was born in Vietnam but left Vietnam aged seven. After eight years in a refugee camp in Hong Kong and aged 15, the appellant arrived in Australia on 7 June 1990 on a humanitarian visa 2. The visa did not have as a criterion that the appellant was entitled to protection under the Convention

relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees (“the Refugees Convention”) 3

12 On 15 November 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa. On 22 November 1994, on that visa, the appellant departed Australia for Vietnam and then returned to Australia on 9 February 1995.

13 The appellant is married to an Australian citizen, a woman he met as a child in the refugee camp in Hong Kong. They have three children, all Australian citizens.

14 The appellant also has a lengthy criminal record. On 27 August 2004, the appellant was sentenced at the Sydney District Court for five offences including aggravated break and enter with intent and received various sentences of imprisonment aggregating to a total effective sentence of four years and six months' imprisonment with a non-parole period of two years and six months. On 13 September 2013, the appellant was sentenced at the Sydney District Court for an offence of aggravated break and enter with intent in company (which had occurred on 10 December 2010) and sentenced to six years' imprisonment with a non-parole period of three years and six months (“the 2013 Sentencing”).

Cancellation of visa

15 On 26 April 2016, the appellant's visa was cancelled pursuant to s 501(3A) of the Migration Act because he was serving a sentence of imprisonment of 12 months or more and therefore had a substantial criminal record 4 (“the decision”).

16 On that same day, 26 April 2016, the appellant was sent a notice of the decision, a copy of Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“Ministerial Direction 65”) and a number of other enclosures including a revocation request form.

17 Ministerial Direction 65 was explained in the notice of decision in these terms:

“the Minister has issued [Ministerial Direction 65] which identifies issues that are relevant to the revocation consideration. A copy of [Ministerial] Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.

Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow [Ministerial] Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by [Ministerial] Direction 65, although [Ministerial] Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.” (emphasis added)

It will be necessary to return to the Direction later in these reasons.

Request to revoke cancellation of visa

18 The appellant filled out the revocation request form on 12 May 2016 and sent the revocation request to the...