AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCATrans 17 (17 February 2023)

Last Updated: 21 February 2023

[2023] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M49 of 2022

B e t w e e n -

AIO21

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 17 FEBRUARY 2023, AT 2.30 PM

Copyright in the High Court of Australia
GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR D.J. HOOKE, SC appears with MR S.H. HARTFORD DAVIS and MR L.G. MORETTI for the applicant. (instructed by Hearn Legal)

MR C.L. LENEHAN, SC appears with MR G.J. JOHNSON for the first respondent. (instructed by Australian Government Solicitor)

GAGELER J: There is a submitting appearance for the second respondent. Mr Hooke.

MR HOOKE: May it please the Court. Your Honours, this application raises an important question about the operation of section 501CA(4) of the Migration Act. As the exchange of written submissions exposes, the real question is whether this Court’s decision in Plaintiff M1 v The Minister has been correctly understood by the Full Court. Their Honours have read Plaintiff M1 as standing for the proposition that Australia’s unenacted international non‑refoulement obligations will never be a mandatory relevant consideration where Direction 65 comes to be applied – including to persons whose protection visas have been cancelled.

In our submission, the Full Court’s decision was affected by an error that can be conveniently found in the reasons of that Court at paragraph 51, which your Honours will find at application book page 100, where their Honours, having in paragraph 50 identified that this case is:

different to Plaintiff M1 in at least two relevant ways –

which their Honours identify, went on to say:

Whilst the present case and Plaintiff M1 concern materially different situations, the Tribunal in the present case, in considering whether there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii), was not required to take Australia’s international non‑refoulement obligations unenacted in Australia into account as a mandatory relevant consideration –

Your Honours see their reliance on subparagraph (2) of paragraph [9] of the majority’s reasons and paragraphs 17 to 20 to which we will come in due course. Their Honours continued:

The Tribunal was not required “to be satisfied that there had been changes of circumstances in Algeria that were both fundamental and durable so as to engage Art 1C of the Refugees Convention” in considering Australia’s international non‑refoulement obligations as required by Direction 65.

Your Honours see that those two limbs of paragraph 51 reflect the two special leave applications that we present to the Court. If your Honours are satisfied with that statement as a summary of this Court’s ratio in Plaintiff M1 and how it applies in the case of a cancelled protection visa, then we accept that your Honours will not grant special leave.

EDELMAN J: Mr Hooke, even if your submission on that is right, is not the difficulty for you that the Tribunal did consider the findings by the ITOA that it had been:

a considerable period of time since the Applicant left Algeria and the country has seen considerable improvement –

and that the applicant would no longer be “targeted”?

MR HOOKE: Your Honour, could I answer that in a couple of ways and on a couple of levels. First of all, the finding of the ITOA was that there had been what is called “considerable improvement in the general situation”, whatever that might mean. But more importantly – and this slides from the second special leave question – in our submission, in circumstances that are obtained here where the applicant had been granted a protection visa – not a temporary protection visa as was the case in QAAH, which we distinguish, but a full protection visa – and on the basis under the statute as it stood at the time that he was a refugee under the Convention, having satisfied Article 1A.

In our submission, the correct inquiry at that point was not to consider afresh whether he was entitled to be declared a refugee now or even more stringently, as the ITOA did, whether he would satisfy the strictures of section 36 of the Act as it now stands. But having regard to his recognised status on a final basis – that is, final for the purposes of what I will call a permanent protection visa – whether that status was ceased by reference to the cessation provisions in Article 1C of the Convention, and we say that because the basis upon which his entitlement to the protection visa was recognised in 2001 was through the prism of the entry provision – if I can describe it that way – in Article 1A. So, in our submission ‑ ‑ ‑

EDELMAN J: How could the status not have ceased to exist if there was no longer any real chance of being subject to significant harm?

MR HOOKE: Your Honour, the distinction we draw between the two questions is that they approach the inquiry from a different standpoint, and they ask a different question. The entry provision, if I can call it that, approaches the question in terms of whether there is now a “well-founded fear”, et cetera. The cessation provision asks an inversion of that question, which, to use the description in the authorities, whether there has been a substantial and enduring change in the circumstances such that he can no longer claim a fear of persecution or harm.

So, the questions are, in a sense, the inversions of each other, and they readily lend themselves, in our submission, to a different answer. And the question that the ITOA and the Tribunal asked themselves was whether, if it were considered now, he would attract protection, rather than whether the accepted basis for his entitlement to protection was the subject of substantial and enduring change so as to satisfy Article 1C.

GAGELER J: Mr Hooke, do you accept that if you cannot show reasonable prospects on what you describe as your second special leave question, the present case is an inappropriate vehicle for dealing with the first?

MR HOOKE: I think I am bound to, your Honour, yes. Yes. But we say it is an important question, and it is one that, in our submission, when one juxtaposes the two distinct inquiries, can plainly lead to a different outcome even on the same set of facts ‑ ‑ ‑

GAGELER J: Yes.

MR HOOKE: ‑ ‑ ‑ because of the nature of the inquiry and its purpose at the time in which it is made. So, we say that there is substance in the second ground, and it is an important question of international refugee law and one that, with respect, the Federal Court has not engaged with consistently with high authority, in particular, from the United Kingdom where those provisions have been considered and fairly clearly explained in the cases we have collected in the application for special leave. And that, in our submission, is a matter that calls for clarification by this Court and, in our submission, correction.

The other aspect, of course, is that, your Honours, at no stage until very faintly in oral submissions before the Full Court did the Minister suggest that there was any question of materiality or that the pursuit of the matter would be futile. It is only in oral submissions without a notice of contention in the Full Court that that submission was raised at all. And, as the primary judge said, it is against that background that there is very much at stake for the applicant if he is not able to have these questions answered according to law, as we submit it is, and the Minister before the primary judge, as her Honour recalled it properly, did not suggest otherwise.

So, the belated appeal to materiality, in our submission, is not something that your Honours would give significance to. It is not something that has loomed large for the Minister until very latterly there. But it probably tells a loud tale.

Your Honours, in terms of the first special leave question, that is, the construction of M1, we have drawn attention in our writing to the care that was taken in M1 to emphasise – as indeed the questions posed for the Court in that case draw attention to – to emphasise that the reasoning and the answers that were given were predicated expressly on the basis that the plaintiff in that case was free to validly apply for a protection visa under the Act.

Your Honours see that in the chapeau to question 1 and in the terms of the answer, both in the chapeau and in numbered paragraph 3 in answer 1. And your Honours see it in a number of places in the reasons of the Court in paragraphs 8, 9, 11, 21, 28, 30, 32, 33, 34, 39 – I will not go on, but the Court was ‑ ‑ ‑

GAGELER J: A lot of paragraphs, Mr Hooke.

MR HOOKE: There were – I am sorry, your Honour?

GAGELER J: No, go ahead. We have those numbers.

MR HOOKE: I think the delay cut us both out, your Honour. In any event, in our submission, what the majority made pellucid in M1 was that the case was not intended to have an effect in cases of the kind with which we are here concerned. That is something that the Full Court has not had regard to, in our submission, and the authority that the decision in this case . . . . . . on judges of the Federal Court, on the Tribunal, on the Federal Circuit and Family Court and, of course, on ministerial delegates. So ,it is an important consideration.

GAGELER J: So, in short, you say the decision in M1 simply does not speak to this aspect of Direction 65, and it really is just a question of construing – is it subparagraphs (5) and (6) of paragraph 14.1 of that Direction?

MR HOOKE: Yes, your Honour. In its barest form, yes. That is the first question ‑ ‑ ‑

GAGELER J: That is the nub of it, yes.

MR HOOKE: I am sorry, your Honour?

GAGELER J: I said, that is the nub of it.

MR HOOKE: That is the nub of it, your Honour – and correcting the error of the Full Court in this case. Your Honours, if I can then turn to Direction 65. Your Honours will have seen that the Minister has sent up copies of Directions 90 and 99, which succeeded Direction 79. Direction 79 was in like terms to Direction 65. We accept that the form of Direction 99 limits the direct significance of this case, but we say that, as your Honours would be well aware, there is a substantial body of decisions made under Directions 65 and 79 which are still in the system and the question retains significant importance and scope. Your Honours, at clause 14(1)(a) of Direction 65, the Direction says that:

In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account –

including “International” – and we emphasise that word – “non‑refoulement obligations”. In our submission, the use of the word “International” here, in tandem with section 46(1)(b) of the Acts Interpretation Act, means that “non‑refoulement obligations” is to be given the meaning given to the term in section 5 of the Act, which, as your Honours know, includes non‑refoulement obligations that may arise because Australia is party to, relevantly, the Refugees Convention. So, we say the default position under clause 14(1)(a), informed by the definition in section 5, is that delegates are required in the context of a protection visa to consider non‑refoulement obligations under international law.

There is further explanation of what that involves in clause 14.1(1), which explains that non‑refoulement obligations come from Conventions to which Australia is a party, including the Refugees Convention. The important distinction – and this is the one that bit in M1 – in clause 14.1(4), that:

Where a non‑citizen makes claims which may give rise to international non‑refoulement obligations and that non‑citizen would be able to make a valid application for another visa . . . it is unnecessary to determine –

et cetera. So, that was the subclause that bit in M1 and it has no application here. Subclauses (5) and (6), as your Honour Justice Gageler points out, deal with the situation in which the applicant finds himself and provides a detailed regiment for addressing the very matters that the Full Court found were excluded from mandatory consideration because of M1. In our submission, those subparagraphs disengage M1 and, in our submission, it was because of those paragraphs that the Court in that case was so careful to
emphasise that its answers and reasons were directed, but only to a situation where it was not a protection visa under consideration.

EDELMAN J: Your construction of subsection (6), in a nutshell, is that the requirement is to seek an assessment of international treaty obligations, and it is not a requirement to seek an assessment of Australia’s interpretations of those international treaty obligations.

MR HOOKE: Yes. Indeed, your Honour. The international treaty obligations, of course, include Article 1C of the cessation provisions. So, it is in those circumstance, we say, that the Direction itself mandates the consideration of the international obligations and which provides the mechanism for doing so. Your Honours, I note the time. I have already, I think, addressed the second question as far as I need, and we otherwise rely on our writing.

May it please the Court.

GAGELER J: Thank you, Mr Hooke. At this point, we will adjourn momentarily to consider the course we will take.

AT 2.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.54 PM:

GAGELER J: We do not need to call on you, thank you, Mr Lenehan.

In our opinion, there are insufficient prospects of success to warrant the grant of special leave to appeal on the second ground. In those circumstances, the case is not an appropriate vehicle for consideration of the first ground. The application for special leave to appeal is refused with costs.

The Court will now adjourn until 3.30 pm.

AT 2.54 PM THE MATTER WAS CONCLUDED