International obligations a mandatory consideration under s 501A(2)(e)?

The Federal Court (FCA) said as follows:

1    This is an application to quash a decision of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, first, setting aside a decision of the Administrative Appeals Tribunal directing that the applicant be granted a protection visa and, second, refusing to grant the applicant a protection visa.

2    The Minister’s decision was made under s 501A(2) of the Migration Act 1958 (Cth) (Migration Act) which provides that the Minister may set aside a decision of a delegate or Tribunal not to refuse to grant or cancel a visa and to instead refuse to grant or cancel a visa if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

34    ... The Minister accepted that the applicant would have to be detained until removed from Australia or granted a visa: [218]. He accepted that the applicant could not be removed to South Sudan given s 197C(3) of the Migration Act, and that the prospects of finding another country willing to receive him were poor. Accordingly, the applicant faced “the prospect of immigration detention for an indefinite period”. That prospect was subject to the applicant being invited to apply for a Bridging R (Class WR) visa under s 501E(2)(b) (as prescribed by reg 2.12AA of the Migration Regulations 1994 (Cth)), the Minister granting another visa under s 195A, or the Minister making a residence determination under s 197AB.

35    In respect of ground two, the applicant contended that these were not “bona fide or rational” possibilities given the Minister’s finding at [237] that he could not “rule out the possibility of further criminal conduct by [the applicant]. The “Australian community should not tolerate any risk of further harm”.

39    In AEM20 at [108]–[116] Katzmann J referred to the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276 at [48] in which his Honour held that no Minister, acting reasonably, having decided to refuse a protection visa, could at the same time consider that an application for another visa had any prospect of being granted before the applicant’s removal in accordance with s 198 “as soon as reasonably practicable” after the decision.

40    ... Katzmann J [concluded in relation to s 501] in AEM20 that, having found that the risk of harm to the Australian community posed by the applicant’s continuing presence in Australia was unacceptable, the prospect that he might be granted a visa under s 195A was fanciful, and the Minister’s opinion “that Australia’s non‑refoulement obligation to the applicant could be addressed by the use of his non-compellable power to grant him a visa in the public interest was infected by jurisdictional error” (at [113] and [117])...

Some of the questions to the FCA were as follows:

Question 1: Can it be said that "any violation of Australia’s international obligations is capable of bearing upon Australia’s national interest"?

Question 2: If the answer to Question 1 is 'yes', does it follow that, "in evaluating the national interest, each and every decision-maker, irrespective of the statutory and factual context, had to consider any violation of Australia’s international obligations as part of the consideration of the national interest"?

Question 3: Is the decision of Rares J in BAL19 distinguishable here because operation of s 197C(3) of the Migration Act 1958 (Cth), which removes the obligation on an officer to remove the Applicant from Australia as soon as reasonably practicable?

Question 4: Was Katzmann J’s conclusion in AEM20 distinguishable here because that conclusion "relates to an exercise of power under s 501 of the Migration Act, not an exercise of power calling for an evaluation of the national interest as required by s 501A(2)"?

Question 5: Were the possibilities described at [34] bona fide or rational, as the "Minister was saying that a Minister has these powers and might exercise them in the future"?

Question 6: Were the possibilities described at [34] bona fide or rational, as Ministers may change their minds?

Question 7: When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, can the difference between an inevitable and a potential breach of Australia’s international non-refoulement obligations be ignored?

Question 8: Does the High Court's decision in Plaintiff M1 indicates that "CWY20 and ENT19 should not be treated as persuasive authority in respect of Ministerial decisions made after the enactment of s 197C(3)" of the Migration Act 1958 (Cth)?

Question 9: Is it reasonably arguable that "the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may ... [be a] breach of Australian law?

Question 10: Is there incongruity in the proposition "that a matter may not be a mandatory relevant consideration under the terms of the Act, but that a failure to consider that matter may involve jurisdictional error in the particular circumstances of the case on the ground of legal unreasonableness (as well as, I note, possibly denial of procedural fairness)"?

The FCA answered those questions as follows: