Justice deferred: Plaintiff M1/2021 v Minister for Home Affairs
Chris Honnery
30.05.2022
‘A sentence of death.’ The title of Edelman J’s dissenting judgment in Plaintiff M1/2021 v Minister for Home Affairs (M1) captures the stakes of visa cancellation matters in which a former visa holder claims to face serious harm in their country of origin.
In M1, the High Court addressed whether a decision maker is required to consider claims 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 under s 501CA of the Migration Act 1958 (Cth) (the Act). By majority, the High Court held that it is permissible to ‘defer’ consideration of non-refoulement claims raised in a request to revoke a visa cancellation on the basis that these claims will be assessed in a protection visa application.
This post examines the cases leading up to M1 and the differing approaches among High Court Judges in resolving the questions of law stated for the Court in the special case. It also considers the ramifications of the majority’s finding that the reasoning underlying no fewer than 24 decisions of the Federal Court of Australia or the Full Federal Court ‘should not be adopted’ (at [32]), as well as the practical consequences of the decision.
The legal framework
Where a person’s visa is mandatorily cancelled on character grounds under s 501(3A) of the Act, s 501CA provides for a procedure wherein the Minister invites the person to make representations about why the cancellation of their visa should be revoked. The Direction issued by the Minister under s 499 of the Act that was in force when the impugned decision in M1 was made, Direction 65, listed considerations to be taken into account by delegates when deciding whether to revoke a mandatory visa cancellation. These included ‘international non-refoulement obligations.’ The vexed interpretation of that term was the subject of a previous post I authored on AUSPUBLAW. The Act (s 5) defines non-refoulement obligations as Australia’s obligations arising from international instruments including the Convention relating to the Status of Refugees (Refugees Convention), while Direction 65 states the Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act (that is, the narrower protection visa criteria).
Ali: unlawful deferment
In Ali v Minister for Home Affairs (2020) (Ali), the Full Federal Court considered an analogous scenario to that which arose in M1 (the facts of which are described below). The appellant claimed in his revocation request that he feared persecution and harm if returned to Ethiopia. In deciding not to revoke the visa cancellation, the Assistant Minister reasoned that ‘it was unnecessary to determine whether non-refoulement obligations are owed… for the purposes of the present decision, as [Mr Ali] is able to make a valid application for a protection visa.’ The Full Federal Court unanimously upheld all three grounds of the appeal:
The ‘failure to consider’ error was upheld because the Assistant Minister was not entitled to ‘carve off’ consideration of non-refoulement for possible examination at a later stage and had erred by assuming representations about the harm the applicant faces if removed from Australia would necessarily be considered in any protection visa application.
The ‘identical manner of consideration’ error was upheld because the Assistant Minister assumed Australia’s non-refoulement obligations would be considered in the same way when deciding whether to revoke the cancellation of a visa as they would be in a protection visa application.
The ‘absence of full consideration’ error was upheld because the Assistant Minister erred by assuming Australia’s non-refoulement obligations would be fully considered in a protection visa application. In actuality, only the criteria in s 36(2)(a) of the Act would be considered and not the impact of breaching these obligations on Australia’s reputation.
S270: an implied overruling of Ali?
In the subsequent judgment of Applicant S270/2019 v Minister for Immigration and Border Protection (2020) (S270), a majority of the High Court cast doubt on the correctness of Ali, without expressly addressing it. As Bell J would euphemistically state in the single judge case of Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020), S270 was ‘not easily reconciled’ with Ali.
S270 concerned a different factual scenario to that which arose in Ali, and later in M1. In S270 the Vietnamese appellant did not make any claim to fear persecution or other serious harm in his request that the cancellation of his visa be revoked. Further, there was insufficient evidence to ground such a claim. Accordingly, Kiefel CJ and Gageler J found the question that underpinned the grant of special leave did not arise – that is, whether the Minister was obliged to and failed to consider whether non-refoulement obligations were owed when exercising the discretionary power under s 501CA(4) of the Act. In revoking the grant of special leave, their Honours stated that given the factual context it was not ‘necessary or appropriate to comment upon whether s 501CA(4) of the 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.’ They added that ‘to answer what is in the circumstances largely a hypothetical question is not useful and may mislead’ (at [5]).
The majority (Nettle, Gordon and Edelman JJ) dismissed the appeal, finding that as the appellant did not make any claim to fear persecution or serious harm in his revocation request and no such claim arose on the materials, the Minister was not required to consider whether Australia owed non‑refoulement obligations. So much is non-contentious. The majority then stated (at [35]):
If a non-citizen affected by cancellation seeks to raise the issue of non-refoulement and remains free to apply for a protection visa, the Minister is not required to consider non-refoulement unless a claim for a protection visa is made.
Although obiter, this passage ostensibly contradicted the Full Federal Court’s reasoning in Ali and the earlier case of Ibrahim v Minister for Home Affairs (2019). However, the majority did not refer to either of those judgments. Further, the majority found it unnecessary to decide whether consideration of a non‑refoulement claim made in a revocation request can be ‘deferred’ on the basis that it could be considered in a potential protection visa application (at [34]). This was despite deferral appearing to be the logical consequence of permitting the non-consideration of non-refoulement claims if the former visa holder can apply for a protection visa. Against this backdrop, the special case of M1 was referred for the opinion of the Full Court of the High Court.
The majority judgment in M1
The facts of M1 were akin to Ali. In requesting that the mandatory cancellation of his visa be revoked, the plaintiff submitted that he would face serious harm, and even death, if returned to South Sudan, and that his removal would breach Australia's international non-refoulement obligations. In deciding not to revoke the cancellation, a delegate of the Minister refused to consider those representations on the basis that:
it is unnecessary to determine whether non-refoulement obligations are owed … for the purposes of the present decision as he is able to make a valid application for a protection visa in which case the existence or otherwise of non-refoulement obligations would be fully considered. (Quoted at [85] of the judgment).
The delegate’s reasoning displayed clear Ali-style errors. That is, unless the High Court rejected the correctness of Ali and the line of related cases leading up to that decision.
A majority of the High Court confirmed that decision-makers are ‘required to read, identify, understand and evaluate … representations …raising a potential breach of Australia’s international non-refoulement obligations.’ However, in contrast to Ali, the majority held that it was permissible to defer assessing non-refoulement obligations on the basis they will be assessed in a protection visa application.
The majority addressed the extensive line of Federal Court decisions in which Ali-style jurisdictional errors were found to have occurred due to decision-makers:
conflating Australia's non-refoulement obligations under international law with the criteria for a protection visa as codified in the Migration Act;
not appreciating the differences between how non-refoulement obligations may be considered for the purposes of s 501CA(4) of the Act and the protection visa process; and/or
not understanding that the protection visa process does not call for full exploration of whether Australia is in breach of non-refoulement obligations under international law.
The majority found that such reasoning overlooked that Parliament had made a choice about the extent to, and manner in which, Australia's international non-refoulement obligations are incorporated into the Act. They held that the reasoning that it was not open to a decisionmaker to defer consideration of non-refoulement obligations to the protection visa process should not be adopted.
By proceeding on the basis that non‑refoulement obligations could be assessed in accordance with the mechanism chosen by Parliament for responding to protection claims, the delegate had provided a reasonable and rational justification for not giving weight to non‑refoulement obligations as ‘another reason’ for revoking the visa cancellation. In terms of the delegate’s particular approach in accepting the plaintiff ‘would face hardship arising from tribal conflicts were he to return’ to South Sudan, the majority found this constituted adequate consideration of the representations (at [40]). Justice Gageler agreed with the majority’s reasoning, diverging only as to the exact formulation of the first question stated.
A sentence of death? The dissenting judgments
Justice Edelman did not accept that the delegate ‘considered’ the plaintiff’s representations by reaching a considered view not to consider them. His Honour found that the delegate had failed to consider non-refoulement matters, as well as the precise basis upon which the claim of non-refoulement was put, which included the harm underlying the non-refoulement claim. His Honour characterised the Minister's submissions as paying only ‘lip service’ to the requirement that the plaintiff’s extremely grave representations as to what would happen to him if returned to South Sudan be considered (at [51]). Justice Edelman also stated that when it comes to issues of interpretation and application of the terms and meaning of the Migration Act, ‘the High Court should pause for serious thought before concluding that such a large swathe of decisions of the Federal Court should be overturned’ (at [53]).
In a separate dissent, Gleeson J found that the finding the plaintiff would face ‘hardship’ in South Sudan had no relation to his representations and was perhaps the result of the decision-maker using a template. In her Honour’s view, ‘deferring’ the assessment of non-refoulement obligations failed to respond to the plaintiff's representations and resulted in a practical injustice that could not be remedied via a subsequent protection visa application directed towards the grant of a different visa that was affected by different considerations (at [115]).
Deeper analysis of M1
The line of overturned Federal Court authority emphasised the qualitative differences between the deliberative processes involved in a decision as to whether to revoke a visa cancellation, on the one hand, and whether to approve a protection visa application, on the other. Left untouched by the High Court decision in M1 is a line of Federal Court authority to the effect that a decision-maker is obliged to take into account the likely consequences of a visa cancellation – which may include return to a country where a person faces a real risk of harm. The majority’s reasoning in M1 that Parliament has chosen the extent to, and manner in, which Australia's international non-refoulement obligations are incorporated into the Act, does not seem to fully address a decision-maker’s failure to appreciate the deliberative differences between protection visa grant and visa cancellation, and the consequences of the latter. This is because the evaluative judgment in deciding whether a visa cancellation should be revoked accords a degree of decisional freedom that does not exist in determining whether an applicant satisfies the protection visa criteria. As the Full Court identified in BCR16 v Minister for Immigration and Border Protection (2016) – the first in the line of cases that led to Ali and M1 – when deciding whether to revoke a mandatory visa cancellation a decision-maker can ‘give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified’ (at [49]). This is quite distinct to the binary assessment of whether the criteria for a protection visa is satisfied. When a decision-maker is deciding whether to revoke the cancellation of a visa, protection claims may be an integral consideration in ensuring people subject to visa cancellations on character grounds have their circumstances assessed proportionately. Taking account of the mere capacity to apply for a protection visa is very different from properly engaging with all articulated consequences of visa cancellation, including the possibility of harm.
It is also hard to see how the facts underlying the plaintiff’s claims in M1 were adequately considered by the delegate. The majority confirmed that ‘it may be necessary for the decisionmaker to take account of the alleged facts underpinning the [deferred] claims’, ostensibly picking up the reasoning of Robertson J in DOB18 v Minister for Home Affairs (2019). In that case, His Honour identified a distinction between considering the risk of harm and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction was predicated on a difference between the claims, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state). A five-Judge bench of the Full Federal Court subsequently confirmed in Minister for Home Affairs v Omar (2019) that a decision-maker
must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” [for revoking the visa cancellation]. (At [34]).
The plaintiff in M1 submitted ‘I will either get killed, or persecuted then killed, or tortured then killed’ if returned to South Sudan (quoted at [48] and [59] of the judgment). As Edelman J stated, at its highest, the delegate’s consideration of these life or death matters ‘was no more than a passing euphemism; five words in the middle of the delegate's decision, where the delegate said that the plaintiff would suffer “hardship arising from tribal conflicts”’ (at [52]). Compare that level of engagement with the finding in cases such as Hands v Minister for Immigration and Border Protection (2018), which concerned the cancellation of the visa of a New Zealand citizen who had lived in Australia since the age of three. There, the Minister found that Mr Hands ‘may experience some emotional and psychological hardship’ and only ‘short term hardship’ (emphasis added). The Full Federal Court quashed the Minister’s decision. In the leading judgment, Allsop CJ stated ‘where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people’ (at [3]). As Edelman J observed in M1, ‘perfunctory references to "hardship" comprised fewer words of the 69 substantive paragraphs in the delegate's reasons… than the delegate's discussion of how long the plaintiff had worked in Australia as a meat worker’ (at [89]).
The practical problems with deferment
M1 also showcases the practical problems of postponing consideration of protection claims. The plaintiff did apply for a protection visa after his revocation request was refused. Unsurprisingly, despite the delegate accepting the plaintiff would be ‘forced into destitution, extorted, kidnapped, and possibl[y] killed’, the protection visa was refused – more than two years after the decision not to revoke the visa cancellation was made (at [62]). This was because M1’s offending – which was the basis for the mandatory cancellation of his visa – engaged the ineligibility criteria under s 36(1C)(b) of the Act, which stipulates that a protection visa will not be granted to a person the Minister considers is a danger to Australia's security; or having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
The plaintiff in M1 is now among a cohort of people who are detained indefinitely in immigration detention, subject only to the Minister’s personal, non-compellable – [and based on the writer’s experience, chimerical] – power to grant a visa or arrange community detention under ss 195A and 197AB of the Act respectively. M1’s experience accords with that of at least 215 people who have applied for a protection visa since 2015 after the mandatory cancellation of their visa was not revoked. Based on Department of Home Affairs FOI logs, none of these people have been granted a protection visa after applying for one. This highlights the artificiality of deferring the consideration of protection claims to a protection visa application which is doomed to fail on character grounds – often many years later.
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Chris Honnery practises in administrative law, judicial review, migration law and refugee law.
Suggested citation: Chris Honnery, ‘Justice deferred: Plaintiff M1/2021 v Minister for Home Affairs’ on AUSPUBLAW (30 May 2022) <https://www.auspublaw.org/blog/2022/05/justice-deferred-plaintiff-m1/2021-v-minister-for-home-affairs>