Non-refoulement obligations & s 501CA(4): Part 4

Federal Court: In the context of s 501BA(2), FCAFC had held in Ibrahim that: Minister conflated non-refoulement with the protection obligations under Migration Act; error was material because the internal relocation principle, which formed part of the non-refoulement obligations, no longer formed part of the protection obligations under the Act. In DGI19: FCA held Ibrahim applied to s 501CA(4); but Minister argued it should be distinguished on the basis that DGI19 did not argue to Minister the difference between the non-refoulement obligations and the protection obligations under the Act for the purposes of the relocation principle; FCA did not distinguish Ibrahim, holding that it was "not incumbent on an applicant proleptically to deal with the possibility of relocation". With respect, FCA seems to have ignored the existence of DGI19, which had been delivered 4 days before. Omar (first instance) wrongly decided?

DGI19, a previous decision of a single judge of the Federal Court, contained the following paragraph (emphasis added in this article):

84    Secondly, the Minister submits that: the factual circumstances of this matter are distinct from those in Ibrahim; in that case, international relocation principles could have potentially had a bearing on the existence of non-refoulement obligations owed at international law to the appellant; those principles would not, however, affect an assessment of the appellant’s ability to satisfy the protection obligation criteria in s 36(2) of the Migration Act; on that basis the Full Court held that conflation of Australia’s non-refoulement obligations at international law with the protection obligation criteria in s 36(2) was material to the outcome of the Assistant Minister’s decision: Ibrahim at [115]. Here, on the other hand, the Minister submits, no issue of internal relocation would or could properly arise on the basis of the applicant’s representations; any purported conflation by the Minister (which is denied) was not material and did not give rise to jurisdictional error: see Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [28]-[31]; Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [45]-[46]. In my view, these matters do not provide a basis for distinguishing Ibrahim. First, as stated at [80] above, the misunderstanding as to the operation of the Migration Act was material and constitutes a jurisdictional error because there is the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion. Secondly, it is not incumbent on an applicant proleptically to deal with the possibility of relocation. Thus, there was and is potential for the application of the principle in this case. Thirdly, Parliament’s decision not to reflect the “internal relocation principle” in the visa criterion in s 36(2)(a) is not the only respect in which there is a substantial divergence between the content of Australia’s non-refoulement obligations and the protection visa criteria. Another example is Parliament’s decision to require an applicant to satisfy the decision-maker that a person has a specific “intention” to cause him or her certain kinds of harm in order to satisfy the visa criterion in s 36(2)(aa): see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [4]-[5].

The "proleptically" point first arose in the context of whether or not it was incumbent upon DGI19 to proactively argue to the Minister the relocation principle as a distinguishing factor between non-refoulement obligations and protection obligations under the Migration Act.

DGI19 was not expressly mentioned in the present decision, which was handed down just 4 days after DGI19. However, it appears that counsel for the Applicant in the present case was the same counsel representing the applicant in DGI19, as the FCA observed as follows in the present case:

27    Thirdly, I note the submission that it would be entirely speculative for the Court to determine that the Assistant Minister’s suggested mistakes made no difference to the outcome. It was said, for example, that it was not incumbent on the applicant “proleptically to deal with the possibility of relocation”...

The above suggests that the use of the term "proleptically" in DGI19 was employed by counsel representing DGI19 and therefore adopted by the FCA in that decision.

With respect, if it was indeed counsel who employed that term in DGI19, it appears that either counsel used the term "proleptically" for different purposes in each case or that counsel used the term for the same purpose in each case, but the FCA in the present case misinterpreted that purpose, for the following reasons.

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