Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 206 (27 November 2020)

Last Updated: 27 November 2020

[2020] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S158 of 2020

B e t w e e n -

MOHAMED DRAME

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 NOVEMBER 2020, AT 9.32 AM

Copyright in the High Court of Australia
MR L.J. KARP: Thank you, your Honour, I appear for the plaintiff. (instructed by Parish Patience Immigration Lawyers)

MR G.R. KENNETT, SC: May it please the Court, I appear with my learned friend, MR B.D. KAPLAN, for the defendant. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Karp.

MR KARP: Thank you, your Honour. Your Honour, I rely on the application filed on 10 September 2020.

HER HONOUR: Yes. Just to be clear, Mr Karp, that is the original application. There was an amended application filed. Am I right in my understanding you are not proceeding on that?

MR KARP: That is correct, your Honour. After that was filed, there was a flurry of activity and as a result of that activity, the amended application has not been pressed.

HER HONOUR: Yes, thank you, Mr Karp. Now, just in terms of matters of evidence, do I understand that you read the affidavit of the plaintiff which I think was sworn on – just bear with me a moment – 9 September 2020?

MR KARP: That is correct, your Honour, yes, I do.

HER HONOUR: I also understand that you read the affidavit of Michael Terence Jones that was affirmed on 8 September 2002.

MR KARP: Yes, your Honour, I do, but only to the following extent.

HER HONOUR: Yes.

MR KARP: Paragraphs 1 and 2 down to the words “some 300 pages of documents” in paragraph 2.

HER HONOUR: Yes.

MR KARP: I do not read the exhibits, but I do read paragraph 3 to the end of the affidavit. The evidence in the exhibits is covered in – was reproduced in Ms Warner Knight’s affidavit which I understand that my learned friend will be reading.

HER HONOUR: I see. Yes, I will just..... Mr Kennett, do you have any objection to the plaintiff’s affidavit or the affidavit of Mr Jones in the respects in which it is read?

MR KENNETT: No, your Honour.

HER HONOUR: Yes, thank you. And am I right, Mr Karp, that completes the evidence that you are placing before the Court on the application?

MR KARP: Yes, it is, your Honour.

HER HONOUR: Yes. I will just inquire, Mr Kennett, am I right in thinking that you read the affidavit of Elizabeth Warner Knight affirmed on 22 October 2020?

MR KENNETT: Yes, your Honour, that is right.

HER HONOUR: I think a further affidavit by Ms Knight was filed. Do I take it in light of the determination not to proceed on the amended application, you rely only on Ms Knight’s first affidavit?

MR KENNETT: Yes, your Honour, that is right.

HER HONOUR: Yes. That completes your evidence, Mr Kennett?

MR KENNETT: Yes.

HER HONOUR: Yes. Any objection to any part of Ms Knight’s affidavit, Mr Karp?

MR KARP: No objection, your Honour.

HER HONOUR: Yes, very well. Well, you can proceed on the basis that I have read that material. Yes, Mr Karp.

MR KARP: Thank you, your Honour. Could I first take you briefly to the statutory context which is relevant to both the extension of time application and the proposed substantive matter.

HER HONOUR: Yes.

MR KARP: Your Honour of course will no doubt be familiar with section 501(3A) of the Migration Act.

HER HONOUR: Yes.

MR KARP: And it is common ground that the plaintiff did not pass the character test.

HER HONOUR: Yes.

MR KARP: His criminal history is at page 28 of Ms Warner Knight’s affidavit.

HER HONOUR: He did not pass the character test because he had for the purposes of section 501(7) a substantial criminal record, is that so; and because he was serving a sentence of imprisonment full‑time in a custodial institution.

MR KARP: That is correct, your Honour, yes.

HER HONOUR: Yes, I understand.

MR KARP: Your Honour will also be familiar with section 501CA(4) ‑ ‑ ‑

HER HONOUR: Yes.

MR KARP: ‑ ‑ ‑ and that he did make a request – did make representations that the decision to cancel his visa should be revoked under 501CA(4)(b)(ii). His representations are at pages 84 to 99 of Ms Warner Knight’s affidavit, or the exhibit thereto, and the delegate’s decision was to refuse to revoke.

HER HONOUR: Yes.

MR KARP: He then had nine days to apply to the AAT, pursuant to section 506B. An email was sent to the prison where he was serving time asking it to ensure that the notification was passed to the plaintiff. That is at page 1 of the exhibit to Ms Warner Knight’s affidavit. But the uncontradicted evidence of the plaintiff was that he did not receive the notification of non‑revocation.

HER HONOUR: Yes.

MR KARP: Now, the Minister relies on Migration Regulation 2.55 which deems receipt, and the effect of that is that it would render invalid any application to the AAT after the period permitted by 506B for nine days. However, obviously a person who has no knowledge of a decision made against their interests cannot be expected to initiate proceedings to protect those interests.

HER HONOUR: Yes.

MR KARP: So, with respect to the Minister’s reliance on regulation 2.55 in opposing the application to extend time that, with great respect, denies the reality of the situation.

HER HONOUR: I understood, Mr Karp, that to the fore in the Minister’s opposition to an order under section 486A(2) extending the 35‑day period in which to bring an application for the remedies that the plaintiff seeks, it is the Minister’s contention that neither of your grounds disclose an arguable basis for the grant of the relief and it would follow that, if satisfied of that, I would not be satisfied that it was necessary in the interests of the administration of justice to extend time. That, as I take it, is the way the Minister principally puts his opposition to the order extending time.

MR KARP: Well, that is the principal opposition, your Honour, but as I understood my friend’s response, he did also rely on regulation 2.55 and ‑ ‑ ‑

HER HONOUR: .....the fact that under the statutory scheme the plaintiff is deemed to have received the notification.

MR KARP: Yes.

HER HONOUR: I understand that.

MR KARP: Yes, but ‑ ‑ ‑

HER HONOUR: You might take it, Mr Karp, subject to anything Mr Kennett may put to me, for the present I would accept the unchallenged evidence that the plaintiff did not in fact receive the notification would be an adequate explanation for the delay in commencing proceedings to challenge the delegate’s decision.

MR KARP: Thank you, your Honour.

HER HONOUR: Mr Karp, it seems to me that the critical issue is really the question of whether or not, as the Minister contends, the grounds on which the applicant is advanced are arguable. That is the critical issue to the question of the extension.

MR KARP: Very well, your Honour. In that case I will move directly to ground 1 of the substantive matter.

HER HONOUR: Yes.

MR KARP: If I can make two observations about section 501CA(4)(b)(ii); the first is that there is no limitation on what may be another reason why the original decision should be revoked, in terms. Second, there is no requirement that another reason be one put forward by the applicant for revocation. Now, there is authority in this Court for the proposition that an administrator may be obliged to go beyond the case articulated by the applicant, or in this case the plaintiff, if the unarticulated claim is apparent on the face of the material before him or her, and that is DWN027 which is cited in the application and I would ask your Honour to go to paragraph 17 of that judgment.

HER HONOUR: Yes.

MR KARP: Paragraph 17 says that:

Although an administrative tribunal’s process is to some extent inquisitorial and, depending on the nature and circumstances of a given application, a tribunal may be obligated to go beyond the case articulated by the applicant, the obligation to do so is confined to unarticulated claims which are apparent on the face of the material before the tribunal.

Citing the Federal Court judgment in NABE.

HER HONOUR: Yes. Mr Karp, I do note in that respect that their Honours in DWN027 go on to refer to approval to Justice Kirby’s observations in Dranichnikov v Minister for Immigration and Multicultural Affairs at paragraph 78 of his Honour’s reasons in which his Honour notes that:

The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.

Whilst it may be accepted, Mr Karp, that an occasion may present itself in which an unarticulated claim that is plainly evident on the face of the material before the decision‑maker requires assessment by the decision‑maker, that is not to say that the decision‑maker is, as it were, to make an applicant’s case. I raise this with you in this context. You rely on the circumstance that the delegate noted that your client entered Australia as an eight‑year‑old child on a – I think it is a Class XB Subclass 200 (Refugee) visa.

MR KARP: Yes.

HER HONOUR: The delegate has, looking at the position some 16 years later ‑ ‑ ‑

MR KARP: Yes.

HER HONOUR: ‑ ‑ ‑ your contention carries with it that the mere circumstance of the entry on a visa described as a Subclass 200 (Refugee) visa, without more, raised a claim to engage Australia’s non‑refoulement obligations.

MR KARP: I think it is more than that, your Honour.

HER HONOUR: Yes.

MR KARP: The delegate himself – or I think it was a him – said at paragraph 48 at page 22 of Ms Warner’s affidavit that as such as the applicant – or the plaintiff arrived on the Subclass 200 visa, his:

circumstances may give rise to international non‑refoulement obligations.

HER HONOUR: Yes.

MR KARP: Now, the plaintiff also at page 94 of that document described himself or his family as a refugee, or as refugees. That can be seen right at the bottom of those pages.

HER HONOUR: Can you give me the paragraph number? In the way I prepared my papers, it is more convenient for me to look at another copy of the delegate’s reasons. So if you give me the paragraph number, Mr Karp.

MR KARP: Paragraph 48, your Honour.

HER HONOUR: Paragraph 48?

MR KARP: Yes.

HER HONOUR: Yes, I have noted that.

MR KARP: Yes. And in his handwritten – I am sorry, your Honour?

HER HONOUR: Mr Karp, in the succeeding paragraph the delegate notes that the plaintiff was:

born in a refugee camp when his parents fled the civil war in Liberia.

MR KARP: Yes.

HER HONOUR: I think the delegate elsewhere makes reference to the plaintiff’s mother’s affidavit that was tendered at the sentence proceedings.

MR KARP: Yes.

HER HONOUR: One gets an account there of the family’s movements leading to coming to Australia against a background of the town in which they were then living in Liberia being attacked by soldiers associated I think with the notorious Charles Taylor.

MR KARP: Yes.

HER HONOUR: The matter that I am raising with you is, as a matter of common knowledge, the civil war in Liberia is not – or was not continuing at the date the delegate made his decision. A number of years had passed and presumably many things had changed. But your contention is, notwithstanding that, the characterisation of the visa itself amounted to an unarticulated claim to engage Australia’s international non‑refoulement obligations?

MR KARP: Well, I would put it this way, your Honour, that the nature of the visa itself raised an issue as to whether Australia’s non‑refoulement obligations were engaged and there cannot be said to be a claim as such because there was nothing articulated, either overtly or implicitly, that the non‑refoulement obligations were engaged. But the delegate himself raised the issue and, having raised the issue, my submission is that it was required to be considered. Now, as your Honour says, the civil war in Liberia, or at least that civil war in Liberia, has passed into history. The notorious Mr Taylor is now serving a life sentence for his crimes. But the delegate did not know why in 2004/2005 the plaintiff and his family were given protection in Australia.

Now, those circumstances may or may not be related to the civil war. They may or may not be wholly or partially related to personal attributes or activities on the part of a member of the family. In those circumstances, the issue having been raised, it was required in consideration of whether there was another reason for revoking the cancellation to have been considered.

HER HONOUR: Can I just take up with you one aspect of your argument on this ground which contends that – just bear with me one moment. You contend that the delegate was on notice of the possibility that the plaintiff may have a non‑refoulement claim and that it is asserted the plaintiff is not a person in a position to articulate that claim necessarily.

MR KARP: Yes.

HER HONOUR: It is that aspect I wanted to take up with you, Mr Karp. That is a bare assertion in the application. As I understand it, part of your argument contends that there was an obligation on the delegate to make further inquiries in the circumstances and that his failure to do so amounts to jurisdictional error.

MR KARP: Yes.

HER HONOUR: When one looks at the material before the delegate one sees that, amongst other things, the plaintiff put forward a letter of support from the President of the Federation of Liberian Communities in Australia. I just raise the matter because on what basis would one conclude that the plaintiff was not in a position to advance any claim that he might to engage Australia’s protection obligations based on circumstances in Liberia, when there was material before the delegate to suggest that he was in some way active within the Liberian community. I think the delegate referred to the support of the Liberian community in Australia.

MR KARP: Yes. Well, firstly, your Honour, as your Honour said, the plaintiff came to Australia at the age of eight. He was a young child. It could not be assumed that he would know the basis upon which his family were given protection in Australia. Secondly, the fact that he came to Australia as a young child meant that it could not be assumed that he would be aware of the circumstances in Liberia, nor could it be assumed that the people who gave him support in the Liberian community would know of the circumstances or the reason why Australia gave his family protection.

HER HONOUR: I am sorry, Mr Karp, perhaps I could take this up with you. Accepting that the plaintiff may not know the reasons why his family was given protection in 2004, and accepting that perhaps his mother may not know those reasons, the issue of whether the plaintiff engages Australia’s protection obligations would be looked at at the present time and in relation to the foreseeable future. The matter that I am really raising with you is that it is not self‑evident that members of the Liberian community in Australia, particularly someone such as the President as the Federation of Liberian Communities, might not at least have some understanding of what are the circumstances in Liberia at the present time that bear on questions of the likelihood that a person returning to Liberia such as the plaintiff might suffer harm.

MR KARP: Yes, and that would only go so far as to – well, would only go so far as to indicate whether a person in the position of the plaintiff, without looking at his personal family history or other matters, would suffer harm. It would not go to the personal aspects of any claim that he may have, and that would depend on a member of the community who may not be aware of the requirements of the legislation making effectively an application for a claim on behalf of the plaintiff and, with respect, that cannot be expected. Essentially, what I infer that your Honour is suggesting is that another person writing in support of the plaintiff make claims on his behalf.

HER HONOUR: No, I am not suggesting that, Mr Karp.

MR KARP: I am sorry, your Honour.

HER HONOUR: What I am raising with you is the absence of an evidentiary support for the proposition that the plaintiff was not in a position to articulate any basis upon which he either fears persecution in Liberia or considers he would be at risk of harm were he to be removed to Liberia. That is the matter I am raising with you.

MR KARP: And my response to your Honour is that it cannot be assumed that he would know the circumstances of his family coming here and it cannot be assumed that he would know – or have first‑hand experience of the situation in Liberia which pertains to his family.

HER HONOUR: All right. As I understand it, you rely on the analysis in Ali v Minister for Home Affairs ‑ ‑ ‑

MR KARP: Yes.

HER HONOUR: ‑ ‑ ‑ which I note is [2020] FCAFC 109; (2020) 380 ALR 393, for your argument on ground 1. The decision of this Court in Applicant S270/2019 (2020) 94 ALJR 897 was published after Ali and on a view addresses the very ground that you seek to rely on in a way that forecloses it.

MR KARP: On one view, your Honour. On another view, it does not, and in fact it supports my argument. If I could ask your Honour to go to paragraph [33] of S270.

HER HONOUR: Yes.

MR KARP: Their Honours say, or the majority of the Court says that:

Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of ‑ ‑ ‑

HER HONOUR: Mr Karp, it is difficult to hear you when you are facing away from the microphone.

MR KARP: I am sorry, your Honour.

HER HONOUR: I know it is difficult. But you invite me to read paragraph [33]?

MR KARP: Yes, and the words – or the part that is most pertinent is the last sentence of that paragraph.

HER HONOUR: Where their Honours say that ‑ ‑ ‑

MR KARP: Yes, “where the materials do not include” ‑ ‑ ‑

HER HONOUR: Their Honours effectively say there is nothing in the text of the provision:

that requires the Minister to take account of any non‑refoulement obligations . . . where the materials do not include, or the circumstances do not suggest, a non‑refoulement claim.

MR KARP: Yes.

HER HONOUR: This brings us back to whether the circumstances here suggested a non‑refoulement claim. You seek to distinguish the plaintiff’s situation from the situation of Applicant S270 on that basis, do you?

MR KARP: I do, your Honour, and I would submit again that paragraph 48 of the delegate’s decision ‑ in that paragraph the delegate clearly identifies the issue of a non‑refoulement claim.

HER HONOUR: Does your.....depend on there being a relevant difference in the circumstances between Applicant S270 and the plaintiff because of the nature of the visa on which each entered Australia? I raise the matter, Mr Karp, because it is somewhat unclear to me, seeing in the joint reasons on page 899 of the report a reference in footnote 2 to the fact that the proceedings had been conducted below on the understanding that the applicant entered Australia:

on a Funded Special Humanitarian (subclass K4B12) visa. On appeal . . . the Minister contended that the [applicant was likely to have] arrived in Australia on a Code 200 (Refugee) visa. The appellant accepted that the [matter] could be ‑

determined on that basis. It was just unclear to me if there is a relevant distinction that you make between the Code 200 (Refugee) visa that in 1990 provided for the entry into Australia of Applicant S270, and the Subclass 200 (Refugee) visa that in 2004 provided for the entry of your client into Australia.

MR KARP: Your Honour, the visa subcategories or subclasses appear to be the same. However, their Honours in S270 – and I think this might be clearest in the judgment of the Chief Justice and Justice Gageler ‑ ‑ ‑

HER HONOUR: Again, Mr Karp, if you are facing ‑ ‑ ‑

MR KARP: I am sorry, your Honour, I am using two computers and I am leaning towards the other one.

HER HONOUR: Yes, I understand the difficulty, but I cannot hear you when you are looking at the computer.

MR KARP: I am sorry, your Honour. Yes, their Honours the Chief Justice and Justice Gageler said at paragraph [3] that:

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.

The initial premise being that non‑refoulement obligations were owed. Their Honours I think later remarked that certain circumstances in Vietnam where that particular plaintiff had come from were markedly different.

Now, the circumstances in.....may, depending on the reasons why this family came to Australia, may or may not be markedly different so far as they are concerned. So, although the subclass visa is the same, or appears to be the same, the circumstances would appear to be different and – and I have to go back to paragraph 48 of the delegate’s decision – he identified the issue of whether protection obligations were owed.

HER HONOUR: The delegate identified that as a possibility and then concluded that it was unnecessary for the delegate to determine that question because the plaintiff is able to apply for a protection visa. Now, am I right in understanding, Mr Karp, it is not in issue that the plaintiff is a person who is able to apply for a protection visa?

MR KARP: He could apply for a protection visa, your Honour, but my argument is that so far as the delegate relied on Direction 79 which permitted the delegate purportedly not to assess protection obligations when they were – if they were raised, the relevant part of Direction 79 is invalid for the reasons set out at paragraph 25 of the originating application.

HER HONOUR: How.....with the analysis in the joint reasons in Applicant S270 where their Honours at paragraph [34] note that:

non‑refoulement is addressed separately in the Act in provisions concerning the grant of protection visas . . . it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds –

by reference to non‑refoulement obligations.

MR KARP: Yes, your Honour, and the last sentence of paragraph [34] says:

It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non‑refoulement claim is made in a revocation request.

HER HONOUR: So you would say that the contention that the mere fact of entry 16 years before the determination on a Subclass 200 (Refugee) visa amounts to a request for revocation of a cancellation decision on the ground of non‑refoulement?

MR KARP: Your Honour, had the delegate not identified the issue, I would have no case. But the delegate did identify the issue and the delegate may have had information or knowledge of the situation in Liberia or West Africa generally. He did not say so because possibly – possibly he did not say so because he found that he was not required to address the issue. But the fact that he did raise the issue suggests, in my submission – or requires, in my submission, that the issue be addressed.

HER HONOUR: Now, that it requires the issue be addressed, is that because the obligations under the international instruments to which Australia is a party respecting non‑refoulement do not precisely mirror the incorporation of our international non‑refoulement obligations into domestic law under the Act? Is that the argument?

MR KARP: That is one aspect of the argument, your Honour, yes.

HER HONOUR: Is it.....argument because the vice in not considering non‑refoulement at the point of a revocation decision is that Australia’s international non‑refoulement obligations may in some respects be broader than Australia’s protection obligations incorporated in domestic law?

MR KARP: Yes, your Honour, it is. But can I say this also, your Honour ‑ ‑ ‑

HER HONOUR: May I just go one step further with you, Mr Karp? Accepting for the present that it may be relevant to consider, among other factors, that Australia has obligations under international instruments to which it is a party that in some respects are broader than the incorporation of those obligations in domestic law, what would make that consideration a mandatory relevant consideration?

MR KARP: If I could take a minute to consider that, your Honour. Your Honour, there are no stated mandatory considerations in the Peko‑Wallsend sense in section 501CA(4)(b)(ii). However, I would submit that it would be a mandatory consideration that arguments and issues raised in the revocation request or issues identified by the person making the decision are mandatory considerations simply on the basis that it is implicit in the fact that a ‑ ‑ ‑

HER HONOUR: I am sorry, Mr Karp.

MR KARP: I am sorry. It is implicit in the fact that a request is made for revocation that arguments and issues which are put forward or are identified in the request for revocation when considered.....be considered.

HER HONOUR: Yes, all right, I think I have the argument.

MR KARP: The only other part of the argument, your Honour, is the making of inquiries, and if I.....that in paragraphs 27 and 29 of the initiating application.

HER HONOUR: This is where you distinguish the plaintiff’s case factually from a case such as SZIAI ‑ ‑ ‑

MR KARP: That is correct, your Honour.

HER HONOUR: ‑ ‑ ‑ and you rely on that decision for the proposition that in some circumstances the failure to make an obvious inquiry about a matter that can be readily ascertained may involve a constructive failure to exercise jurisdiction?

MR KARP: Yes, your Honour.

HER HONOUR: It must follow, on your argument, that you contend that it was open to the delegate to make at least an inquiry concerning what were the reasons that informed the grant of the visa in 2004 and to follow from that inquiry to consideration of the present position, as it were, in Liberia of a person such as the plaintiff. Do I get that correctly?

MR KARP: I think so, your Honour. Essentially the argument is that this is an obvious inquiry about an issue which arose in the delegate’s consideration and was required to be considered in the exercise of his or her jurisdiction, yes.

HER HONOUR: Yes, I understand, Mr Karp. Does that complete your submissions on the first ground?

MR KARP: It does, your Honour. So far as the second ground is concerned, I would rely on the written argument, but just point your Honour to the psychological evidence.

HER HONOUR: Perhaps before we come to that, can I just take up with you ground 2 is framed in terms that the delegate erred by failing to consider evidence both given by the plaintiff’s mother and the psychological evidence concerning the plaintiff’s mental state in the delegate’s finding at paragraph 58 of his decision.

MR KARP: Yes, your Honour.

HER HONOUR: Now, what is it – do I understand from the way the argument is developed, you are contending that in light of the evidence of the plaintiff’s mother and the psychological evidence it was irrational or illogical for the delegate to make the finding at paragraph 58 such that no reasonable decision‑maker could have made such a finding? Is that the way it is attacked as an error going to jurisdiction?

MR KARP: No, your Honour, it is the fact as – going back to the argument I made about a requirement implicit in 501CA(4)(b)(ii) that evidence – sorry, that argument put forward and that would include evidence put forward in support of an application must be considered that information which is pertinent to the case which was not considered is an error regarding jurisdiction. Another way of putting this is that it was not open for the delegate to make the finding at 58 without considering that evidence.

HER HONOUR: I see. Well, yes, perhaps you had better take me to the delegate’s reasons.

MR KARP: Yes, paragraph 58 of the delegate’s reasons.

HER HONOUR: Paragraph 58, yes.

MR KARP: Yes, your Honour. It says:

no reported health concerns or diagnosed medical issues that might ‑ ‑ ‑

HER HONOUR: I am sorry, I cannot hear you.

MR KARP: I am sorry, your Honour.

HER HONOUR: Can you repeat it? I am sorry, it is difficult.

MR KARP: Yes. The delegate says that the plaintiff has:

no reported health concerns or diagnosed medical issues that might impinge on his ability to gain employment . . . would not be at a disadvantage in terms of his employability due to his age.

His age being 24. Now, the mother’s affidavit before the sentencing judge, which is at pages 101 to 105, goes very clearly into the format that the plaintiff suffered as a result of being kidnapped and made to be a child soldier at the age of seven, including that he did not talk for three months afterwards after he came back. There was psychological evidence before the sentencing judge ‑ ‑ ‑

HER HONOUR: Mr Karp, the delegate at paragraph 11 summarises the claims that are made and in the summary the delegate refers to the history of the plaintiff’s kidnap and the sequelae which is that it has had “a lasting impact on his mental health”. Does the delegate come back to that anywhere in the discussion of the facts? I am sorry, Mr Karp, I just see I think at paragraph 30 the delegate notes the sentencing judge’s acceptance of that aspect of the plaintiff’s claim.

MR KARP: Yes, and also at paragraphs 27 and 28 – I am sorry, 26 to 28 ‑ ‑ ‑

HER HONOUR: Paragraphs 26 to 28?

MR KARP: Yes. The delegate goes into some detail about his traumatised history and the psychological evidence‑ ‑ ‑

HER HONOUR: Yes.

MR KARP: ‑ ‑ ‑ which was put before the sentencing judge. Now, in my submission, in view of that evidence which was recognised by the delegate, it simply was not open for the delegate at paragraph 58 to reach the conclusions that he did reach without directing attention to the evidence that he actually did cite.

HER HONOUR: But the evidence to which the delegate referred included the plaintiff’s account of having made a positive contribution to the community through his employment and his volunteer work and to his – that is, the plaintiff’s history of employment. Why would one read paragraph 58 as other than a conclusion that no reported health concerns or diagnosed issues were such as to impinge on the ability to gain employment?

MR KARP: Because the delegate was referring to employment in Liberia, which is a very different circumstance to employment in Australia.

HER HONOUR: I see, yes.

MR KARP: Your Honour, I do not think I can take that matter any further.

HER HONOUR: All right.

MR KARP: Unless I can further assist, those are my submissions.

HER HONOUR: Thank you Mr Karp. Mr Kennett.

MR KENNETT: Your Honour, I do not want to say anything separately about the extension of time issue.

HER HONOUR: Yes.

MR KENNETT: We have touched on it in the written submissions, but as your Honour has noted, our main objection to the extension relates to the substantive merits of the grounds, so I propose to go straight to those.

HER HONOUR: Thank you.

MR KENNETT: Might I deal with ground 2 first, and briefly.

HER HONOUR: Yes.

MR KENNETT: We address it in paragraphs 21 and 22 of our written submissions. As your Honour has noted in exchanges with my learned friend, the delegate acknowledges, in paragraph 11 of his reasons, a claim in relation to mental health issues, and really, most of what is said at paragraphs 26 to 36 of the delegate’s reasons, your Honour has been to some of it, bears on those issues and grapples with the psychological evidence. And then, your Honour, what is said at paragraph 58, now our learned friend put orally, at least initially, that this was a case of a failure by the delegate to consider part of the representations.

It is worth noting that the psychological evidence was not something put forward in any way within the four corners of the representations. That material was contained in the package of background material that the department had provided to the delegate. Be that as it may, the essential proposition, as your Honour has noted, was acknowledged, and the evidence that had a bearing on it was considered in some detail, albeit not referred to directly in the part of the reasons that is complained about, paragraph 58. So, it is not a case, we would say, of a failure to consider something raised by the representations. Later, in his oral submission ‑ ‑ ‑

HER HONOUR: I am sorry, Mr Kennett, can I just interrupt just to clarify, in paragraph 11 of the delegate’s reasons, one bullet point refers to the circumstance of the plaintiff’s kidnap as a child and the lasting effect that has had on his mental health.

MR KENNETT: Yes.

HER HONOUR: When you said that the psychological evidence was not part of his representation, I am not sure that I understand that. I had taken it that in paragraph 11 the delegate is summarising the various matters advanced in support of the revocation claim and that seemed to me to include his psychological health.

MR KENNETT: Yes, that is so. The point that I was making, and maybe it is picky, was that, to the extent that that proposition is supported by psychological reports, those reports were not put before the delegate by the plaintiff.

HER HONOUR: I see.

MR KENNETT: They arrived as part of the bundle of material that the department obtained and gave to the delegate. That is all.

HER HONOUR: I understand.

MR KENNETT: When we come to paragraph 58, as your Honour has observed, it makes an observation directed to employment, and an observation which one can say has a reasonable foundation in what had been said earlier about the plaintiff’s ability to be employed and to make a contribution to the community despite his mental health difficulties. Paragraph 58, as we emphasise in the written submissions, needs to be read in that light and not as a general dismissal ‑ ‑ ‑

HER HONOUR: Yes.

MR KENNETT: ‑ ‑ ‑ of what had been said about psychological issues, and of course, those issues had been canvassed in some detail elsewhere in the reasons, and it is not to be supposed that the delegate had somehow forgotten them when he came to write paragraph 58. That is what I wanted to say about ground 2.

HER HONOUR: Yes, thank you.

MR KENNETT: What I proposed to do in relation to ground 1 was to try to tease out some strands of reasoning or – doctrine might be putting it too highly, but doctrine, I suppose, that surround this ground, and similar arguments that have been made in other cases ‑ ‑ ‑

HER HONOUR: Yes.

MR KENNETT: ‑ ‑ ‑ which have concerned suggestions that a decision‑maker in this context is required to have regard to potential non‑refoulement obligations. Your Honour has been referred to the key statutory provision, which is section 501CA(4), which of course speaks in very general terms of the Minister needing to be satisfied as to whether there is another reason why the visa should not be cancelled.

The first line of reasoning that might be relevant is the traditional Peko‑Wallsend type mandatory considerations thinking. In that sense, a mandatory consideration is an issue or factor that is required to be included in the analysis and given weight, and that, of course, as we know, derives from the subject matter, scope, or purpose of the legislation.

So, to the extent that mandatory considerations are identified, they are identified as part of the process of statutory construction, and prima facie at least they depend on the statute and not on the facts of particular cases. In that regard, what the majority said in Plaintiff S270 has some relevance, where their Honours referred to:

the subject matter, scope or purpose –

of the section and said:

There is nothing –

in that:

that requires the Minister to take account of any non‑refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa –

That much, of course, we respectfully endorse, and then their Honours qualify that with the words at the end of paragraph 33. We would respectfully query whether the qualification is necessary in light of what I have just been saying, but it appears to have been included so as to avoid, sensibly, saying more than needed to be said here to deal with that case.

Now, relevant to the Peko-Wallsend type analysis also is what their Honours say in paragraphs 34 and 35 about ‑ and your Honour has touched on this ‑ about the existence of quite a detailed regime in the Act for dealing with non‑refoulement obligations. The fact that the Act sets forth a very particular way in which it responds to Australia’s international obligations stands against, we would suggest, the suggestion that those obligations are also implicitly a mandatory factor in the exercise of general decision‑making powers such as this one. Paragraph 34, we note, is qualified by the final sentence in perhaps a similar way to the way paragraph 33 was qualified. But we would also note that paragraph 35 seems to be expressed more absolutely.

HER HONOUR: Well again, I mean, Mr Karp’s argument in dealing with each of those paragraphs of the joint reasons is, by contrast with Applicant S270, here there was a refoulement claim because the delegate perceived there to be that possibility, albeit it was not articulated by the plaintiff.

MR KENNETT: Yes, yes. And the point I have reached in relation to a Peko‑Wallsend type analysis is to say that, even if that issue had been completely ignored or inadequately attended to, or indeed, put to one side, as one might say it was, that would not be a failure to take into account a mandatory consideration in the traditional way in which one understands that line of authority. The second line of ‑ or field of discourse here is the notion that because the revocation power is triggered by the making of a representation, it follows that the decision‑maker has to engage with the content of the representations.

We accept, certainly, that much. And the Federal Court has proceeded on that basis in a very large number of decisions, which are discussed in Ali, and I, of course, do not want to take your Honour through those, but could I just note that paragraph [46] of Ali sets out a lengthy extract from another Full Court decision called GBV18, which your Honour may find a useful compendium of propositions that the Federal Court has arrived at in this connection.

HER HONOUR: Yes, thank you.

MR KENNETT: The main point that we would seek to make in relation to that is that the fact that the decision‑maker is required to give attention to what is said in the representations does not, of itself, make the contentions in the representations mandatory in that Peko‑Wallsend sense.

HER HONOUR: Yes.

MR KENNETT: Because, of course, the representations may say things that are completely irrelevant. So, although the Minister, the decision‑maker, has to give those representations proper respect and understand what they say, it does not follow that everything in them has to be given weight in the decision. Unless the contentions are already mandatory, go to matters that are already mandatory considerations, the decision‑maker retains some level of decisional freedom to say that they are irrelevant and to discount them. Justice Colvin makes that distinction in one of the many cases that Ali refers to, he makes it in a case called Viane [2018] FCAFC 116 at paragraphs 69 to 70.

Now, the Ali line of cases are not directly relevant here because nothing was said in the body of the representations as to non‑refoulement obligations, and on this line of authority, what is critical is the case that is advanced, is the case that is positively advanced, we would say, so it would not ‑ again speaking within the scope of this line of cases ‑ it would not avail the plaintiff to say that the question of non‑refoulement was raised by the circumstances of the case.

We do note that DWN027, which has been referred to, speaks in a more general way of a decision‑maker, and in that case it was a tribunal, being required to address issues arising from the material, but as your Honour rightly noted in exchanges with my learned friend in connection with that, that speaks to matters arising from the material, and it does not suggest that this does not import any requirement that the decision‑maker go beyond the material and conduct research on his or her own behalf.

Here, of course, the delegate was not given any facts by the plaintiff about the current situation in Liberia, or anywhere else, for that matter. If he was obliged to make an inquiry, the subject matter of the inquiry was really everything in relation to a potential non‑refoulement claim, and we do not take SZIAI to suggest that that sort of inquiry might be required as an aspect of the exercise of jurisdiction.

One could ask, rhetorically, what was the delegate supposed to do with a claim, or a potential non‑refoulement claim that had no material put forward to support it, and the answer, presumably, would be that the delegate, if forced to make a decision, would have to say, well, I am not satisfied that non‑refoulement obligations exist. The third area, the third set of issues in relation to ground 1 is those which arise from the ministerial direction, which your Honour has in the material behind Ms Warner Knight’s affidavit.

HER HONOUR: Yes.

MR KENNETT: The direction begins at page 137 of that bundle, and the part that is important is section 14, which starts at page 155.

HER HONOUR: Yes.

MR KENNETT: This is a direction issued by the Minister under section 499, so it is binding on delegates, including the present decision‑maker. Paragraph 14 says that:

other considerations must be taken into account where relevant.

And those include:

International non‑refoulement obligations –

And those obligations are then the subject of a bit more detail in clause 14.1. Now, 14.1 paragraph (1) explains what these obligations are. And it says at the end that:

The Act reflects Australia’s interpretation of those obligations and, where relevant, decision‑makers should follow the tests enunciated in the Act.

Then, of relevance to the present case in particular is paragraph (4), which says that where claims are raised, and that would include claims being raised by the circumstances of the case, if the:

non‑citizen would be able to make a valid application for another visa . . . it is unnecessary to determine whether non‑refoulement obligations are owed –

And then paragraph (5) distinguishes the situation where it is a protection visa that is being cancelled. And your Honour will have seen the delegate’s reasons, and the delegate really did exactly what paragraph (4) counsels decision‑makers to do.

HER HONOUR: Does one read paragraph (4) as a direction not to consider whether non‑refoulement obligations are owed in a circumstance where the person has the ability to apply for a protection visa or leaving it to the delegate to decide either to consider them or not? What is the ‑ ‑ ‑

MR KENNETT: I am not aware that that has ever been tested, your Honour, but I am fairly sure my client’s position would be that it is leaving it open ‑ ‑ ‑

HER HONOUR: Leaving it open.

MR KENNETT: ‑ ‑ ‑ to the decision‑maker, not giving a positive instruction not to consider.

HER HONOUR: Yes.

MR KENNETT: But now the delegate in paragraph 50 of his reasons takes the position that is indicated by 14.1(4) and then he says ‑ he gives an explanation in support of that in paragraph 51, which accords quite closely with what the majority Justices said in paragraphs 34 and 35 of S270, which indicates why we would say this aspect of the direction is not inconsistent with the Act. It is put against us that the direction is invalid in this respect, and it would be the case that the direction would be ultra vires if it purported to authorise a decision‑maker to ignore something which, on a proper analysis, is mandatory.

HER HONOUR: Yes.

MR KENNETT: But, for reasons I have sought to indicate, non‑refoulement obligations are not mandatory considerations in that sense, at least in a case like this. It is worth noting that the ‑ to jump back to Ali, the Minister’s ‑ that was a decision by a Minister who, of course, was not bound by this direction but who reasoned in a way that was very, very similar to what the direction suggests.

HER HONOUR: Yes.

MR KENNETT: It is paragraph [7], I think it is, of Ali’s Case ‑ yes, paragraph [7] sets out the crucial part of the Minister’s reasons. Ali was a case where, of course, a claim of non‑refoulement obligations had been squarely raised in the representations and in some detail which is different to the present case, but if Ali is to be taken as saying things about the statute at [99] to [100] ‑ ‑ ‑

HER HONOUR: It is difficult to reconcile with the analysis in the joint reasons.

MR KENNETT: Yes, yes, quite so. And we would make the same point about paragraphs [114] and [115], which suggest that the Minister erred by postponing the question of non‑refoulement to a later decision, in circumstances where that later decision would be made under the Migration Act criteria rather than the international law criteria, per se.

HER HONOUR: That produces a curious outcome in that a person might apply for a protection visa and have the claim rejected on the basis that, in some respects, the incorporation of Australia’s non‑refoulement obligations in domestic law is narrower than in the international instruments’, and yet, at the point of cancellation of the person’s visa, have the broader international obligations brought into play.

MR KENNETT: Yes, yes.

HER HONOUR: Which seems, on one view, a surprising outcome.

MR KENNETT: Yes, there would be some awkwardness there, to say the least. It would be possible for a decision‑maker, given the breadth of the tests of the evaluative exercise in subsection (4), possible for a decision‑maker to decide, notwithstanding that the person does not qualify for a protection visa, I am going to give weight to the fact that Australia would be breaching its international obligations and would attract criticism for that, one could imagine a decision like that.

HER HONOUR: Accepting that to be the case, it is, on one view, a quantum leap to say there is jurisdictional error in the failure to reason in that way.

MR KENNETT: Yes, your Honour, we would say that, because we would say it is equally open to a decision‑maker ‑ and this is what the direction counsels decision‑makers to do ‑ to say ‑ or to reason along lines that says, well, I am prepared to regard non‑refoulement obligations as a relevant factor entitled to weight to the extent that Australia’s domestic law gives effect to them and no further. That, we would say, is an equally valid form of reasoning.

HER HONOUR: Yes.

MR KENNETT: So that, to the extent that Ali suggests that the latter is somehow erroneous, we would say that is also rather difficult to square with what is said in Plaintiff S270, and, indeed, with the statutory scheme.

HER HONOUR: Yes, yes.

MR KENNETT: Those are the matters I wanted to raise in relation to ground 1, your Honour.

HER HONOUR: Yes.

MR KENNETT: Those are the submissions of the Minister.

HER HONOUR: Yes. Thank you, Mr Kennett. Yes, Mr Karp. Mr Karp, I am sorry, I think you might be on mute at the moment.

MR KARP: I am sorry, your Honour.

HER HONOUR: Not at all.

MR KARP: Yes. In my submission, ground 1, and I will simply address on ground 1 ‑ ‑ ‑

HER HONOUR: Yes.

MR KARP: ‑ ‑ ‑ is not a relevant consideration case, it is a failure to consider case. Now, so far as what is required to be considered is concerned, I think I have already submitted that there is no requirement that another reason for revocation be one put forward by the applicant, it can arise on the materials and the evidence before the person making the decision, and in those circumstances, citing the Nauru Case, in my submission it follows that issues raised, clearly raised, must be considered. Now, how they must be considered in a case such as this would be a matter for the person making the decision.

It would, as I have submitted, be required, at least initially, to find the materials upon which the plaintiff was admitted into Australia. That may require further inquiries, it may require an interview of the plaintiff, it may require other things, but until those papers, those documents, are obtained, the delegate would not know where else to go.

Now, so far as Direction 79 goes, and I thank my friend for taking your Honour to page 155 of Ms Warner Knight’s affidavit, I would agree with my friend that subparagraph (4) of paragraph 14.1 gives the delegate, or the Tribunal, indeed, a discretion as to whether or not to consider these non‑refoulement obligations. But, as I have previously submitted, the legislation itself does not limit other reasons to what was actually advanced by the plaintiff, and in my submission that where that discretion is permitted by paragraph 14.1(4) is invalid in that it artificially restricts the considerations which the delegate, in this case, was required to consider in the exercise of its jurisdiction.

HER HONOUR: Mr Karp, if the delegate was not required to consider non‑refoulement obligations, and the delegate was mindful that Australia may owe such obligations to the plaintiff but chose to consider that that was a matter that could be addressed in a protection application, where do you
say the error in jurisdiction lies? I am just raising with you ‑ as I understand, you disavow that it was a mandatory relevant consideration.

MR KARP: What I am disavowing, your Honour, is that the – I am drawing a distinction between mandatory relevant consideration issues and the requirement that evidence and claims must be considered. Now, the distinction may be artificial, but insofar as my friend’s submissions go as to mandatory relevant considerations, that, in my submission, does not matter. What was required to be considered were the issues and the claims made and raised by the application by the papers before the delegate.

HER HONOUR: But.....in the way you now put your argument, where is the error that goes to the delegate’s jurisdiction in saying there may be a non‑refoulement issue here, but I am going to not address it because if there is such an issue it can be dealt with in an application for a protection visa. Where is the difficulty with that?

MR KARP: Your Honour, the difficulty is section 501CA(4)(b)(ii) requires the Minister to consider whether he is satisfied whether there is another reason why the original decision should be revoked, that other reason need not be raised by the applicant, it can be raised by the materials or the issues identified by the delegate. If such an issue is raised, which it was here, in my submission, it is required to be considered as a matter of construction of the statute. If there is not a reason why the original decision could be revoked, and an issue was identified, the statute requires that that reason be addressed.

HER HONOUR: All right. Thank you.

MR KARP: Unless I can further assist your Honour, those are my submissions.

HER HONOUR: Yes, thank you.

I propose to reserve my decision on this application and give judgment at 2.15 pm on Monday, 30 November in Canberra.

MR KARP: I am sorry, your Honour, I just missed the date.

HER HONOUR: Monday, 30 November at 2.15 pm in Canberra, I will deliver my reasons in the matter and make orders.

In the meantime, would you adjourn the Court to 2.15 pm on Monday, 30 November in Canberra.

AT 11.03 AM THE MATTER WAS ADJOURNED