Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCATrans 44 (20 March 2020)

Last Updated: 24 March 2020

[2020] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S270 of 2019

B e t w e e n -

APPLICANT S270/2019

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

Application for special leave to appeal

BELL J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 MARCH 2020, AT 10.14 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE, SC: If the Court pleases, I appear with my learned friend, MR S.G. LAWRENCE, on behalf of the applicant. (instructed by Purcell Lawyers)

MS R.S. FRANCOIS: If the Court pleases, I appear for the respondent Minister. (instructed by Mills Oakley)

BELL J: Thank you. As a preliminary matter, Mr Prince, there was some question raised as to whether these proceedings ought be anonymised, which is why the matter was called in the way that it was. Can you assist us with that?

MR PRINCE: Yes, your Honours. I think I can say it was not anonymised below. I think that may be because 91X probably does not apply because no application for a protection visa under section 36 of the Migration Act has been made.

EDELMAN J: There is still the inherent power of the Court ‑ ‑ ‑

MR PRINCE: Of course. We would not oppose a pseudonym at all, subject to the difficulties ‑ ‑ ‑

EDELMAN J: Do you see one, though?

MR PRINCE: I do not have instructions, your Honours, but I do not oppose it subject to the difficulties that might arise in terms of identifying the decision below, which this Court would be concerned with which would obviously have to be accommodated somehow given the precedential effect of the decision.

BELL J: Ms Francois, what is your submission in this respect?

MS FRANCOIS: I do not have instructions ‑ ‑ ‑

BELL J: Yes.

MS FRANCOIS: On the facts we say no protection issue arises, but I appreciate that the Court does not want to create a sur place claim should I be wrong in that submission.

BELL J: Indeed, and on a view the proposed second ground raises issues which might broadly be described as raising a protection consideration.

MS FRANCOIS: Your Honour, I think I have instructions to say it is a matter for the Court. I will make submissions that it does not arise but it is a matter for the Court.

BELL J: Yes, thank you, Ms Francois. The Court is disposed to make an order anonymising the proceedings. For the present the application was called as “A v Minister for Immigration and Border Protection”. An appropriate pseudonym will be accorded to the application and we can address, if need be, consideration of the way the matter has been dealt with below.

MR PRINCE: Yes your Honours.

BELL J: Yes, thank you. Mr Prince.

MR PRINCE: Thank you, your Honours. In this matter there are two grounds as your Honours have seen. One, if I might call in a shorthand way, is the ground arising out of the analysis by his Honour Justice Greenwood in dissent which we say ‑ ‑ ‑

GORDON J: Is this about whether he is drug free or not?

MR PRINCE: About how that interplays with the requirement to have regard to the representations that were made to the Minister under 501CA. So there is a divergence between his Honour Justice Greenwood and the majority because his Honour, correctly, in my respectful submission, saw that there were two matters that needed to be addressed.

Firstly, there was the question of whether or not the representations had been engaged with by the decision‑maker as opposed to the way the majority dealt with the matter, which was through the prism of Muggeridge, which was all about irrationality, and that divergence, in my respectful submission, is part of the consequence of the development of the law by this Court away from categories or lists in Craig towards a more single ‑ ‑ ‑

GORDON J: Generic.

MR PRINCE: ‑ ‑ ‑ theory of everything, when it comes to judicial - jurisdictional error. So, with great respect to the majority, his Honour Justice Greenwood was clearly correct in applying the new world that is emerging from Hossain and the approach of looking at whether or not limitations and the scope of authority have been exceeded by focusing on whether or not a key component of the representations had been addressed and, here, the key component of the representations was drug free.

Now, that issue gives rise to interesting tensions between parts of Hossain and parts of SZMTA, going through back to SZIZO, about materiality and the line with merits review because what your Honours will have seen in the way the majority of the Full Court in this case approached the matter and, indeed, the way that my learned friend’s submissions in reply approach the matter, what is really happening is there is a remaking of the Minister’s decision. There is a re‑characterisation of how the Minister took into account the drug free period. I can take your Honours in more detail to that if you Honours require, but that is the essence of the difference.

EDELMAN J: It not only gets to materiality though if there is an error, and is the error that you say that was made by the majority that in 501CA(4) the majority treated the representations as a whole – implicitly treated them as a whole rather than individually, at least with respect to the most important of the representations?

MR PRINCE: Precisely, and that error carries through to the way in which the reply has been advanced by the Minister in this case.

EDELMAN J: Does that not then mean that if one looks at application book 72, paragraph 121, that the statement of law set out there by Justice Greenwood cannot be accepted unqualified?

MR PRINCE: Well, I do not - in my respectful submission, his Honour Justice Greenwood does not put it as unqualified because if your Honours go to paragraph 123 ‑ ‑ ‑

EDELMAN J: Yes, yes ‑ ‑ ‑

MR PRINCE: His Honour has clearly said – and there is a tension in the Full Court of the Federal Court about how this is to be applied because – which needs to be resolved, in my respectful submission - there is the statement of Justice Robertson in Goundar at 122, which your Honours can see, that no:

particular statement” contained in the representations should be characterised as a mandatory relevant consideration –

Unfortunately, the words “mandatory relevant consideration” are an appeal back to the old type of list approach, but that gets extrapolated by both the majority and the respondent in this case to equivalent that no one line needs to be looked at. But there is a world of difference between saying that not every line needs to be looked at and saying not any line needs to be looked at. That is the difference, in my respectful submission, between the majority and Justice Greenwood. Justice Greenwood is correct, in my respectful submission.

GORDON J: Do you have a problem in relation to this ground - in relation to the facts, though, given the way the majority dealt with the facts - and facts in this sense, that you have, as I read it, at application book 86 to 87, a number of factual matters which would make this a pretty unusual vehicle to consider these matters: “the offending occurred in 2010, some six years” after he was allegedly drug free - and they go on. There is a litany of them.

MR PRINCE: Yes, and actually that underscores the utility of this as a vehicle because the findings of the Minister are so at odds with the facts that it must be clear, it is clear, that he has not had regard to the fact that the applicant had been drug free since 2004 because if you accept that the applicant had been drug free since 2004 then the finding of the Minister in paragraph 98 of the reasons that the applicant had not had a chance to rehabilitate in the community makes no sense.

GORDON J: But that was not just referring to the drug activity - that was referring to his other criminal activity. That was a broader concept, was it not?

MR PRINCE: In my respectful submission, no, your Honour. If your Honour goes to paragraph 98 of the reasons of the Minister, which is at page 16 of the book, reading that fairly and seeing that what starts with the word “Notwithstanding” in the second ‑ ‑ ‑

GORDON J: I think you have to read that in the context of the paragraph as a whole, it starts with:

I take into account [A]’s remorse and progress towards rehabilitation –

which must be broader than just, I think, the drug taking, and then it goes on to say:

Notwithstanding this, I also note his history . . . and that his rehabilitation has not been tested in the community.

MR PRINCE: Yes, but, in my respectful submission, that “rehabilitation not tested in the community” is clearly dealing with the history of drug addiction and if your Honour ‑ ‑ ‑ ‑

BELL J: Mr Prince, may I just raise with you the preceding paragraph, which addresses in terms the risk of recidivism, the suggested lack of respect for Australian laws, the recognition of the warning given in 2007, all against the background of the commission of the offence in 2010, which on a view was among the most serious in the criminal history, and not suggested to have anything to do with drugs.

MR PRINCE: Your Honours, a key issue is the protection of the Australian community, and that is necessarily a forward‑looking exercise. In that forward‑looking exercise, as Justice Greenwood points out, it is the question of whether or not he remains – is free of drugs or whether he has rehabilitated from drug use is a critical factor in dealing with the question of risk of recidivism, because by its nature on a realistic consideration, if the Minister has taken the view that he has not really been off the drugs outside of gaol before then of course he is going to take the view that there is a greater risk of recidivism, and that is where he says that it is has not been tested in the community – tested in the community means outside of gaol, and so ‑ ‑ ‑

GORDON J: This sounds like a fact‑specific application, does it not?

MR PRINCE: In my respectful submission, the issue of principle is the approach which avoids a merits debate. So really this 501 argument about not taking into account representations is the cutting edge of where merits starts to rub up against judicial review. Here, as Justice Greenwood correctly said, the issue is what representations were made and where is the indication that the Minister gave proper and genuine consideration to them.

Here, the only reason that the factual milieu starts to look messy is because the respondent and the majority have endeavoured to look at a different way that the Minister could have reached the same conclusion regardless of whether or not the 2004 drug use had stopped. Can I just give your Honours quickly a reference to where that is evident in the majority’s decision – that is in paragraph 176 at page 86 ‑ ‑ ‑

GORDON J: Well, that is the proposition I put to you, that is, that it is to be read as extending beyond his addiction to drugs.

MR PRINCE: Yes, but in this case what their Honours say is that the recidivism, that is the 2010 offence - it is important to remember that the offences up until 2006 have been the subject of a revocation already - so the 2010 offence is critical; that is the incidence of recidivism. Then it says that the recidivism – there was no finding that the:

recidivism was wholly explained by his addiction to drugs.

But not even the majority can disaggregate the proposition that somehow the 2010 act of recidivism was partly explained by addiction of drugs and that, as Justice Greenwood correctly found, clearly brings into play the failure to have regard to or deal with or engage with the representation that from 2004 he was drug free and in the community for a large number of years, and continued to be drug free from 2004.

So, in my respectful submission there is – and then your Honours also see the problem that the majority attempt to overcome by again coming back to 2010, in paragraph 183 at page 87, that the alternative basis that was put forward, which really is not anything that the Minister said, was that the reference to the Minister concluding that if the applicant were to “relapse” into drug addiction after returning to Vietnam, there being limited services, that language acknowledges the appellant had recovered from his addiction. But the critical thing – it does not acknowledge when.

So it is consistent with the rehabilitation not having been tested in the community and the Minister assuming that he was rehabilitated in gaol after committing the recidivist offence, but that is not the point. The point is he had recovered from drug addiction in 2004 before the recidivist offence. Justice Greenwood was right to say that that was a critical factor that should have been looked at, and it raises the important question of how one deals with these 501 questions which necessarily turn on the representations that have been made.

BELL J: Mr Prince, are you going to take us to your second point? That might be ‑ ‑ ‑

MR PRINCE: Yes, thank you, your Honours. The second point is stark in terms of principle. It raises issues coming out of BCR16 v Minister for Immigration and the issue of principle is whether the Minister can defer consideration under 501 of obligations arising under the Refugee Convention to be dealt with in section 36 of the Act which, in my respectful submission, is an impermissible compartmentalisation of the Act because just as the Convention of the Rights of the Child is relevant to the exercise of the power under 501, so too are Australia’s international obligations under the Refugee Convention. They cannot be eschewed or put to one side.

GORDON J: Did you say they were raised here?

MR PRINCE: Yes, they were. They were not raised with the eloquence of using the word “refoulement”, but as your Honours see from the decision of Justice Greenwood, the material before the Minister was replete with references to my client being a refugee from Vietnam. His wife was a refugee. They met in a refugee camp, they escaped Vietnam when they were children, they ‑ ‑ ‑

EDELMAN J: Mr Prince, assuming you are right about that for the moment one would then turn to the cessation provisions of the Refugees Convention as the proper approach that ought to have been taken, including the exception to those cessation provisions. Does not that exception that provided this paragraph should not apply to a refugee falling under section A of this article – was able to invoke compelling reasons arising out of the previous persecution and so on - does that not invite almost exactly the same consideration as was put before the Minister?

MR PRINCE: No, your Honour, because the compelling circumstances in 501 are directed to the protection of the Australian community and the compelling circumstances in the context of the Refugee Convention are obviously in the context of that Convention. Obviously the threshold in 1C – the revocation provisions of the Refugee Convention are quite different to whatever is considered either in section 36 down the track, or in 501. Section 501 is a much different statutory test, but more importantly ‑ ‑ ‑

EDELMAN J: But the factors you rely upon are his decades of residence in Australia as a consequence of being a child refugee, his Australian children, his wife being resident in Australia, and the trauma and dislocation of his life flowing from post‑war events. Would not all of those be matters that would be considered in any event?

MR PRINCE: No – they are, but they are considered in a different framework.

EDELMAN J: Yes.

MR PRINCE: That is the point and the framework here has not ever been analysed by the Minister and it is really the Minister who has to do it ‑ ‑ ‑

GORDON J: It is those three points, as I understand it. First, that it was a matter that was to be considered under 501CA(4). Here there was material before the Minister that put him or her on notice that they were in a sense – it was a matter to be taken into consideration, and third, if it had it would lead to different considerations than were addressed by the Minister in the way it was assessed. Are they the three?

MR PRINCE: Yes.

GORDON J: So there is a question of principle, a question of notice and there is a question of determination?

MR PRINCE: Correct. No doubt the Minister might raise a question of materiality.

GORDON J: Well, that is what Justice Edelman is asking you about, so that is why - application has with it probably two limbs.

MR PRINCE: Yes.

GORDON J: The actual application and then the manner in which it is then determined.

MR PRINCE: Yes, it inevitably raises that issue, and we would say that if one takes the original Hossain formulation of materiality, which is that it could not possibly change – sorry, it has to be a situation where it could not possibly change a result. We do not fall into that camp. The facts are clear about that in my respectful submission. So that is the second ground. Does that assist your Honours?

BELL J: Yes, thank you, Mr Prince. Ms Francois. Ms Francois, we would be assisted by hearing from you, but confining your submissions to the second proposed ground.

MS FRANCOIS: Your Honours, ground 2, insofar as it gives rise to a question about Article 1C(5) and (6), the exceptions to cessation is about compelling and compassionate circumstances arising from the persecution that led you to be a refugee. In this case, although the applicant used the word “refugee” it is loose; he has never been assessed as a refugee within the meaning of the Convention. Secondly, the trauma that he experienced that is referred to in the material arises from his eight years in a refugee camp in Hong Kong, after he was sent there by his parents in about 1982, away from poverty in Vietnam.

So there are a range of facts which we do not know about how to apply that particular exemption, that is, what was his claim to be a refugee, did he experience trauma of a kind that might fall within that exemption, and on the facts the only trauma that arose was in Hong Kong, which is not the place he is being sent back to.

Further, the Minister did have before him two assessments done by his Department, one in relation to protection obligations, one in relation to a full range of Australia’s international obligations, and what is set out in the written submissions correctly is that the submission to the Minister said nothing had arisen on those assessments, that is true, so there had been an assessment in front of the Minister before he makes his decision that no non‑refoulement obligations arise and there is then the completely correct statement that the applicant is not barred from applying for a protection visa, which he has not, because he has never applied for one before. So he could still do that if anything arose.

So this is not a BCR‑type of case where an applicant makes a claim to say “Please do not send me back to Nigeria, I am a Christian, and if you send me to the north I am going to suffer some terrible harm”, and the Minister says “I do not need to look at that, that will be done in a protection visa”, and then you have the gap between what might a protection visa be and what might a non‑refoulement obligation be.

EDELMAN J: So, your submission is that Ministerial Direction No 65 needs to be read even as a direction not to consider but as a direction that it is not always necessary to consider the Convention.

MS FRANCOIS: Yes, and in this case this was not a matter where that had not been assessed by the Minister’s Department, so the Minister had before him as annexure K to his reasons, not reproduced in the application book, the two assessments. So one was quite long, one was two pages, two assessments were before him that supported the submission that said there are no non‑refoulement obligations assessed in the broader context - that is what was before the Minister.

For the applicant to be granted special leave this Court would be left with some very difficult unanswered factual questions because it was never raised below in that you could not assess how Article 1C(5) and (6) apply because you do not know what is the trauma that arose in Vietnam, what is it that might invoke those compelling and compassionate circumstances arising from that trauma in Vietnam?

GORDON J: Does that address the third question that I put to Mr Prince rather than the first and second?

MS FRANCOIS: Sorry, your Honour ‑ ‑ ‑

GORDON J: Well, I said there seemed to be three elements. There seemed to be a question of principle, that is, did it need to be raised; secondly, was how you would assess it and then, third, the application of it. You seem to be addressing the third rather than the first and second.

MS FRANCOIS: So, I apologise, I will be more clear. We say it did not need to be addressed as a matter of principle because it was not raised. It was not raised by the applicant and it was not raised on the material.

BELL J: And was not raised because you say no assessment has been made that the applicant is a refugee.

MS FRANCOIS: Yes, there has been no claim to have any well‑founded fear of persecution for any of the Convention reasons. None of that was raised in his statement. None of that is in the material.

EDELMAN J: There would not need to be an assessment that the claimant is a refugee, would there?

MS FRANCOIS: You would, because for him to fall within the Refugees Convention you need to identify which particular characteristic he is so that you can understand that he falls within the Convention and, thus, that the Article 1C(5) and (6) apply.

EDELMAN J: If the applicant made claims that could potentially fall within Article 1C then would it not then be necessary to consider the Convention in the context of the application?

MS FRANCOIS: If the applicant at some point when he had filled in his form that said what do you fear and the applicant said I fear going back to Vietnam because I am from the north and my parents were part of whichever political faction and that faction is still active ‑ ‑ ‑

GORDON J: Is that right? I just want to make sure that I understand it. At paragraph 3.13 and 3.14 of the special leave application, the applicant puts forward a set of facts about his - the applicant’s entry into Australia and the way in which the Australian Government had dealt with this kind of applicant. So, is it absolutely necessary that there be this claim “I am a refugee and I must set it out”? That is why I think the principle – the first question is quite important. What is it that has to be raised? Is it that I have to say I am a refugee?

MS FRANCOIS: You would at least need to raise ‑ ‑ ‑

GORDON J: So are 3.13 and 3.14 sufficient, is what I am asking.

MS FRANCOIS: No, we would say not.

GORDON J: I see.

EDELMAN J: He does use the word “refugee” - numerous times.

MS FRANCOIS: He does. He was in a refugee camp, so his parents – I mean, there are lots of people who sit in UNHCR refugee camps who are ultimately assessed not to be refugees.

EDELMAN J: Yes, but they are all ‑ ‑ ‑

GORDON J: That is why I raised 3.13 with you.

EDELMAN J: They are all strong indications that he is raising something equivalent to a claim of refugee status.

MS FRANCOIS: It is never – I guess the difficulty is that his family sent him there at the age of eight. So we know that someone in his family – and it is described as being in rural poverty in Vietnam – had sent him away. We do not know the reason. He is then in that camp. There is the possibility that there is a refugee claim and I understand that is what is being put to me. But the basis for that claim is never articulated by the applicant and it is never apparent from the materials.

So the Minister has before him – and he is not ignoring the possibility that there might be something arising. His Department conducts a protection assessment and an international obligations assessment to make sure that the type of point your Honours are putting to me, arising from those facts, does not arise here.

There is a recognition that there could be something that arises. But there is nothing in the material that then gives rise to any particular claim under the Convention and there is nothing in what the applicant says that gives rise to any particular claim. I accept that, prima facie, some inquiry was called for but it was addressed in this case with those two assessments by the Department.

In addition, your Honours, I should add that this is not a case where the Minister put to one side this consideration. So, whatever the special leave question is, it cannot be that the Minister deferred it saying that it is going to be dealt with in a protection visa.

BELL J: That is because, you say, the two assessments were made. Is that it?

MS FRANCOIS: Yes, and his reasoning never was you have made a claim but I put that to one side because you may address that in a protection visa. He, in fact, has before him the reverse which is, we have done the assessments as to whether or not any non‑refoulement obligations are raised – the broader assessment and then the statement in the submissions says he could apply for a protection visa because he is not barred. That is just a statement of fact. So, it is the reverse of BCR16 in that there has been as assessment of the broader range of questions and what is being noted is that a protection visa remains as a possibility for this applicant after this visa is – the non‑revocation is affirmed.

BELL J: Thank you, Ms Francois.

MS FRANCOIS: Unless I can be of further assistance.

BELL J: Thank you. Mr Prince.

MR PRINCE: Thank you, your Honours. At page 120 of the book, your Honours, is the submissions in reply. Can I just ask your Honours to have regard to what the applicant was directed to make submissions on by reason of Ministerial Direction No 65 and the underlined portion at the bottom of the page:

it is unnecessary to determine whether non‑refoulement obligations are owed to that citizen –

presumably non‑citizen:

for the purpose of determining whether the cancellation of their visa should be revoked”.

He was told he should only address the matters that you are allowed to address under 65. So, in my respectful submission, there clearly has been a view taken that the obligations arising under the Refugee Convention are not necessary to be determined on the point. The question about whether ITOAs or the like were done, that is a forward‑looking exercise as opposed to the exercise of determining whether the cessation provisions of the Refugee Convention are engaged and, therefore, Australia is released from its obligations under the Refugee Convention which is a different proposition.

As it stands, Australia, in my respectful submission, has treated this man as a refugee. It has engaged in a process which her Honour Justice Stone accepted, prima facie, would suggest the person is a refugee and her Honour very carefully analyses the historical events arising out of the departure of coalition forces from Vietnam. So, he is, prima facie, a refugee. Nobody has said that the Refugee Convention no longer applies to him.

BELL J: Can I just interrupt you, Mr Prince. When you say he is prima facie a refugee, what are we to make of the submissions respecting annexure K to the submission put before the Minister?

MR PRINCE: Simply that a reassessment is being done about whether he engages. So that does not proceed from the assumption that he already is a refugee and, indeed, the Minister’s approach is you have to establish again that you are a refugee, whereas our proposition is no, you do not, we already are a refugee, and we have been accepted as a refugee and not only
that, our wife has been accepted as a refugee, and there are more obligations in the Refugee Convention than simply whether or not the person is going to face danger when they arrive.

BELL J: When you say that the applicant has already been accepted as a refugee, that is a submission that the nature of the visa granted to him dealt with at paragraph - in the footnote to paragraph 3.13 of your submissions, carries with it, as it were, an acceptance that he was a refugee within the meaning of the Convention at that time?

MR PRINCE: Precisely, and that is because of the history of the comprehensive plan of action which was put in place by those countries that left Vietnam after the war, to deal with refugees coming out of Vietnam after the war, and dealing with those people who were in refugee camps in Hong Kong after the war, after the coalition forces left.

So Justice Stone really does a very wonderful analysis of that history in SZEEG, which I commend to your Honours. At the very least, this issue about whether or not Australia owed obligations to him under the Refugee Convention needed to be dealt with by the Minister in exercising power under 501G as a matter of principle.

BELL J: Thank you, Mr Prince. There will be a grant of special leave in this matter. That grant of leave is confined to ground 2. What is the estimated length?

MR PRINCE: Say, half a day, your Honours.

BELL J: Yes. Do you agree with that, Ms Francois?

MS FRANCOIS: Yes, your Honour.

BELL J: Yes, very well. Special leave is granted confined to ground 2.

AT 10.49 AM THE MATTER WAS CONCLUDED