Plaintiff M1/2021 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Keane,Gordon,Steward JJ.,Gageler J.,Edelman J.,Gleeson J.
• Judgment Date: 11 May 2022
• Neutral Citation: [2022] HCA 17
• Docket Number: M1/2021
• Court: High Court

[2022] HCA 17

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

M1/2021

Plaintiff M1/2021

Plaintiff

and

Minister for Home Affairs

Defendant

Representation

R C Knowles QC and C Mintz for the plaintiff (instructed by Corrs Chambers Westgarth)

C L Lenehan SC with B D Kaplan for the defendant (instructed by Australian Government Solicitor)

Migration Act 1958 (Cth), ss 36, 501, 501CA, 501E.

Immigration — Visas — Cancellation of visa — Revocation of cancellation — Where plaintiff's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) — Where plaintiff made representations seeking revocation of cancellation decision under s 501CA(4) — Where representations raised potential breach of Australia's international non-refoulement obligations — Where delegate of Minister decided there was not “another reason” to revoke cancellation decision under s 501CA(4)(b)(ii) — Where delegate considered it unnecessary to determine whether non-refoulement obligations owed because plaintiff could make valid application for protection visa — Where delegate considered existence or otherwise of non-refoulement obligations would be fully assessed in course of processing protection visa application — Whether, in deciding whether there was “another reason” to revoke cancellation decision, delegate required to consider plaintiff's representations raising potential breach of Australia's non-refoulement obligations — Whether delegate failed to exercise jurisdiction conferred by s 501CA(4) — Whether delegate denied plaintiff procedural fairness — Whether delegate misunderstood Migration Act and its operation.

Words and phrases — “another reason”, “domestic law”, “due process”, “international non-refoulement obligations”, “mandatory relevant consideration”, “procedural fairness”, “protection visa”, “read, identify, understand and evaluate”, “reasonable consideration”, “representations concerning non-refoulement”, “requisite level of engagement”.

ORDER

The questions of law stated for the opinion of the Full Court in the Special Case filed on 28 April 2021 be answered as follows:

• 1. In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff's representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia's international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?

  Answer:

  In deciding whether there was “another reason” to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for a protection visa under the Migration Act:

  • (1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;

  • (2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

  • (3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

• 2. In making the Non-Revocation Decision:

  • (a) did the Delegate fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act?

  • (b) did the Delegate deny the plaintiff procedural fairness?

  • (c) did the Delegate misunderstand the Migration Act and its operation?

    Answer:

    • (a) No.

    • (b) No.

    • (c) No.

• 3. Is the Non-Revocation Decision affected by jurisdictional error?

  Answer:

  Does not arise.

• 4. Should the period of time fixed by s 486A(1) of the Migration Act and rr 25.02.1 and 25.02.2 of the High Court Rules 2004 (Cth) within which to make the Application be extended to 5 January 2021?

  Answer:

  No.

• 5. What, if any relief, should be granted?

  Answer:

  None.

• 6. Who should pay the costs of, and incidental to, the Special Case?

  Answer:

  The plaintiff.

1 Kiefel CJ, Keane, Gordon and Steward JJ. The plaintiff was born in the Republic of the Sudan and is a citizen of the Republic of South Sudan. On 3 June 2006, the plaintiff entered Australia as the holder of a Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa, which is not a protection visa 1.

2 On 19 September 2017, the plaintiff was convicted of two counts of unlawful assault and was sentenced to an aggregate term of 12 months' imprisonment. On 27 October 2017, the plaintiff's visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) because a delegate of the then Minister for Immigration and Border Protection 2 (“the Minister”) was satisfied that the plaintiff had been sentenced to a term of imprisonment of 12 months or more and therefore had a substantial criminal record 3, and that he was serving a full-time custodial sentence (“the Cancellation Decision”). On that same day, 27 October 2017, an officer of the Department of Immigration and Border Protection notified the plaintiff of the Cancellation Decision and, under s 501CA(3)(b) of the Migration Act, invited him to make representations to the Minister about revocation of the Cancellation Decision.

3 The plaintiff sought revocation of the Cancellation Decision. His representations to the Minister stated, among other things, that if he were returned to South Sudan he would face persecution, torture and death. Further, in a subsequent letter, the plaintiff relevantly stated:

“[D]ue to ‘non-refoulment obligations’, I didn't think it was possible to force me back to South Sudan, even if I wasn't making the effort I've been making to better myself. I spoke to my mother last night, and she tells me that the situation in regards to my tribe … remains fundamentally unchanged to the killing since we fled there just over 20 years ago … I'm outright scared about the prospect of being forced back to South Sudan. I had to leave there, along with the rest of my family, because our lives were in danger, and I don't understand why you would want to send me to my death?”

4 On 9 August 2018, a delegate of the Minister (“the Delegate”) made a decision, pursuant to s 501CA(4) of the Migration Act, not to revoke the

Cancellation Decision because they were not satisfied that the plaintiff passed the character test or that there was “another reason” why the Cancellation Decision should be revoked (“the Non-Revocation Decision”). The Delegate stated that they had considered the plaintiff's representations and documents submitted in support of his representations and, relevantly, that included representations that he would “be captured, tortured and killed” if returned to South Sudan because of his ethnicity

5 Under the heading “International non-refoulement obligations”, the Delegate stated that they considered it was unnecessary to determine whether non-refoulement obligations were owed in respect of the plaintiff because the plaintiff could make a valid application for a protection visa and the existence or otherwise of non-refoulement obligations would be fully assessed in the course of processing such an application.

6 In September 2018, the plaintiff completed his custodial sentence and he has been detained in immigration detention since then. Also in September 2018, the plaintiff applied for a protection visa. Two years later, in September 2020, a delegate of the Minister refused that application.

7 After obtaining legal advice in late 2020, the plaintiff filed out of time an application for a constitutional or other writ in this Court seeking, among other things, a writ of certiorari to quash the Non-Revocation Decision and a writ of mandamus, or an injunction, to compel the Minister to exercise the power under s 501CA(4) of the Migration Act according to law (“the Application”).

8 The plaintiff and the Minister agreed to state questions of law for the opinion of the Full Court. The primary question presented by the Special Case is whether, in deciding whether there was “another reason” to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, the Delegate was required to consider the plaintiff's representations which raised a potential breach of Australia's international non-refoulement obligations where the plaintiff was able to make a valid application for a protection visa. Ultimately, what divided the parties was not if those representations should have been considered by the Delegate, but how.

9 For the reasons that follow, in deciding whether there was “another reason” to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, where the plaintiff remained free to apply for a protection visa under the Migration Act:

• (1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;

• (2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

• (3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a...