HONOURS THESIS FINAL Bindable MarginsABSTRACT Australia owes non-refoulement obligations to...

FROM CANCELLATION TO REMOVAL: AUSTRALIA’S COMPLEX

MIGRATION REGIME AND ITS IMPLICATIONS FOR AUSTRALIA’S NON-

REFOULEMENT OBLIGATIONS IN CHARACTER CASES

Lillian Robb

THESIS PRESENTED FOR THE BACHELOR OF LAWS EMBEDDED HONOURS

AT MURDOCH UNIVERSITY

WORDS 20,919

DECLARATION

To the best of my knowledge, this thesis contains no material written or published by another person

except where due reference is made. Further, this thesis contains no material which has been submitted

for the award of any degree in any other University.

____________________________

Lillian Robb

ACKNOWLEDGEMENTS

I would like to extend a warm acknowledgement to my supervisors, Associate Professor Mary Anne

Kenny and Dr Jo Goodie. Their ability to guide, inspire, and support my work was invaluable.

I would also like to extend an acknowledgement to my family and friends who kept me sane, proofread

my work, listened to me talk about this topic for hours on end, and did everything I needed to carry me

through this year. The support I received this year was phenomenal and the list of names would be far

to long to reproduce here. However, I would like to extent a particular acknowledgement to my Mum,

who jumped in to help with anything and everything that came up, to Kieran, who provided endless

emotional support, and to my honours buddy Ethan.

ABSTRACT

Australia owes non-refoulement obligations to non-citizens who are protected under the Refugee

Convention, the Convention Against Torture, and the International Covenant on Civil and Political

Rights. Australia’s adherence to non-refoulement obligations relies primarily on the operation of The

Migration Act 1958 (Cth) which regulates the coming into, and presence of, non-citizens in Australia.

This thesis focuses on a network of interrelated provisions within the Migration Act 1958 (Cth) which

deal with non-citizens who are found to be of ‘bad character’ due to the commission of crimes in

Australia. This thesis examines each of the character related provisions in the Migration Act 1958 (Cth)

moving from the time at which a non-citizen’s criminal behaviour is first considered, to the possible

removal of a non-citizen from Australia. To achieve this examination, this thesis explores the character

cancellation and refusal provisions contained in s 501 of the Migration Act 1958 (Cth), the exclusion

clauses contained in ss 36(1C) and 36(2C)(b) which exclude non-citizens from the grant of a protection

visa due to commission of ‘particularly serious crimes’, and the provisions in s 197C which affect the

availability of the removal powers in cases where non-citizens are owed non-refoulement obligations

by Australia.

This thesis concludes that there exists a number of potential pathways by which a non-citizen may

become subject to removal from Australia despite being owed non-refoulement obligations by

Australia. Additionally, it is concluded that the procedural safeguards in place are not sufficient to

ensure that non-citizens who are found to be of ‘bad character’ will not be removed from Australia in

breach of non-refoulement obligations. It is considered that this possibility exists despite an apparent

understanding, on the part of the Australian Parliament, that this legislation, and the recent 2014

amendments, would not result in the removal of non-citizens in breach of non-refoulement obligations.

TABLE OF CONTENTS

I INTRODUCTION ................................................................................................................... 1

A Introducing the Hypothetical Applicants ........................................................................................ 3 B Structure of this Thesis ................................................................................................................... 5 C Situating the Work .......................................................................................................................... 6 D Note on the Chronology of Cases ................................................................................................... 7

II BACKGROUND ..................................................................................................................... 8

A Non-Refoulement in International Law .......................................................................................... 8 B The Role of s 36 in the Migration Act .......................................................................................... 11

PART A ..................................................................................................................................... 16

III CHARACTER CANCELLATIONS .......................................................................................... 16

A The Character Cancellation Provisions ........................................................................................ 17 1 Alfie’s Application .................................................................................................................... 18

2 Betty’s Application ................................................................................................................... 19

B Consideration of Non-refoulement ............................................................................................... 19 1 Principles Found in Case Law ................................................................................................. 20

2 Policy: Ministerial Direction 65 ............................................................................................... 26

C Concluding Remarks ..................................................................................................................... 28

IV THE LINK BETWEEN S 36 AND S 501: A VITAL ASSUMPTION ............................................ 29

A Subject Matter, Scope and Purpose of the Act ............................................................................. 29 B Factual Assumption ...................................................................................................................... 30

1 Effect for s 501 Decision Makers .............................................................................................. 32

2 Has this Flaw Been Remedied? ................................................................................................ 33


PART B ..................................................................................................................................... 36

V APPLICATION UNDER S 36: DISCONNECT BETWEEN SS 36(1C) AND 36(2C)(b) AND

INTERNATIONAL LAW ............................................................................................................... 36

A The Refusal of Charlie’s Application for a Protection Visa in Domestic Law ............................ 37 B Comparing the Domestic Provisions to International Law ........................................................... 40

1 The Refugee Convention ........................................................................................................... 40

2 Policy and the Refugee Convention .......................................................................................... 44

3 Complementary Protection: The CAT and ICCPR ................................................................... 45

4 Policy and Complementary Protection ..................................................................................... 46


VI APPLICATION UNDER S 36: THE USE OF S 501 TO REFUSE PROTECTION VISA

APPLICATIONS .......................................................................................................................... 48

A Betty’s Application ....................................................................................................................... 48 B Criticisms ...................................................................................................................................... 49 C Concluding Remarks ..................................................................................................................... 51

PART C ..................................................................................................................................... 53

VII THE EFFECT OF S 197C ..................................................................................................... 53

A The Mechanism for Removal of Non-Citizens Under the Migration Act .................................... 53 B Consideration of s 197C in DMH16 ............................................................................................. 54 C Judicial Consideration of DMH16 ................................................................................................ 56

1 Decision Makers at s 501 – Balancing of Considerations ........................................................ 56

2 Decision Makers at s 501 – Ministerial Direction 65 ............................................................... 57

3 Effect on the Cases of Alfie, Betty and Charlie ......................................................................... 58

D Concluding Remarks .................................................................................................................... 58

VIII ADHERING TO AUSTRALIA’S NON-REFOULEMENT OBLIGATIONS DESPITE S 197C ............ 60

A The Passage of s 197C .................................................................................................................. 60 B How Will the Legislation Uphold Australia’s Non-refoulement Obligations? ............................ 64

1 Protection Visa Application Process ........................................................................................ 65

2 Personal Powers of the Minister .............................................................................................. 66


IX CONCLUSION ..................................................................................................................... 71

BIBLIOGRAPHY ......................................................................................................................... 74

ANNEXURES .............................................................................................................................. 91

A Alfie’s Application ....................................................................................................................... 92 B Betty’s Application ....................................................................................................................... 93 C Charlie’s Application .................................................................................................................... 94 D Timeline of Key Cases and Legislative Changes ......................................................................... 95

TABLE OF DEFINED TERMS AND ABBREVIATIONS

1 Migration Act 1958 (Cth), s 496(1). 2 Migration Act 1958 (Cth), s 496(1A). 3 Immigration detention is further defined in Migration Act 1958 (Cth), s 5(1). 4 Migration Act 1958 (Cth), s 13. 5 Migration Act 1958 (Cth), s 14. 6 Migration Act 1958 (Cth), s 15.

Applicant An applicant refers to any non-citizen who has made a visa application.

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

Decision Maker A decision maker is any individual making a decision under the Migration Act. This could mean the Minister, the Assistant Minister, or a delegate of the Minister.

Delegate of the Minister

A delegate of the Minister is a person to whom the Minister has delegated the powers under the Migration Act.1 Delegates of the Minister can exercise the powers of the Minister under the Migration Act, but are bound to follow Ministerial Directions in doing so.2

ICCPR International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1979).

Immigration Detention An unlawful non-citizen can be held in detention under s 196 of the Migration Act. This is referred to as immigration detention.3 Immigration detention is administrative in nature but can be indefinite.

Lawful/Unlawful non-citizens

A lawful non-citizen is a non-citizen who is in Australia and who holds a visa in Australia.4 An unlawful non-citizen is any non-citizen in Australia who is not a lawful non-citizen.5 A non-citizen whose visa is cancelled (for example, it cancelled for character under s 501) will immediately become an unlawful non-citizen.6

Minister

The Minister refers to the Minister whose portfolio includes the Migration Act. For the time period discussed in this thesis this means the Minister for Immigration and Citizenship between 2007 and July 2013, The Minister for Immigration, Multicultural Affairs and Citizenship from July 2013 to September 2013, The Minister for Immigration and Border Protection from September 2013 to

7 Migration Act 1958 (Cth), s 499. 8 Migration Act 1958 (Cth), ss 499(2), 496(1A). 9 Migration Act 1958 (Cth), ss 499(2), 496(1A). 10 For more information on this subclass of visa see Chapter II; Migration Regulations 1994 (Cth), Sch 2. 11 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 1A read together with the Protocol to the Convention Relating to the Status of Refugees 1967, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

December 2017, The Minister for Home Affairs from December 2017 to August 2018, and the Minister for Immigration, Citizenship and Multicultural Affairs from August 2018.

Ministerial Direction

A Ministerial Direction is a Direction given by the Minister under s 499 of the Migration Act.7 The Directions provide guidance to delegates of the Minister in exercising powers of the Minister under the Migration Act.8 The Directions are binding on all delegates of the Minister in making a decisions covered by a Direction.9

PAM3

Policy and Advice Manual 3. This document is a policy document published by the Department to guide assist practitioners and decisions makers. PAM3 is amended regularly. The most recent PAM3 was published on 21 September 2018 and is the one relied on in this thesis. However, older versions of PAM3 are used at some points to illustrate policy shifts.

Protection Visa A protection visa is a permanent visa granted under s 36 of the Migration Act to non-citizens seeking protection in Australia. A protection visa is a subclass 866 visa.10

Receiving Country The receiving country is the country of nationality or the country of habitual residence of a non-citizen.

Refugee

A refugee is a person who cannot return to their home country of nationality or habitual residence owing to a well-founded fear of persecution for reasons of race, religion, ethnicity, membership of a particular social, or political opinion.11 Refugees are protected under international law by the Convention on the Status of Refugees. The primary United Nations body responsible for the protection of refugees is UNHCR.

UNHCR The Office of the United Nations High Commissioner for Refugees.

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I INTRODUCTION

Australia has made a number of commitments to abide by international obligations under a variety of

human rights treaties.12 In migration matters, the key obligation among these is the obligation of non-

refoulement. This is the obligation not to return people to countries where their life or freedom may be

threatened,13 where they face cruel, inhumane or degrading treatment,14 or where they face persecution

for reasons of race, religion, ethnicity, membership of a particular social group, or political opinion.15

A failure to respect these obligations could result in serious consequences for the individuals affected.

For Australia, the obligation of non-refoulement is central to the protection of the human rights of non-

citizens. Australia has made an ongoing commitment to respect the obligations of non-refoulement. In

fact, Australia was one of the earliest parties to the Refugee Convention and a key player in the creation

of an international legal regime for the protection of refugees and human rights more generally

following the Second World War.16

Australia’s adherence to non-refoulement obligations relies primarily on the operation of The Migration

Act 1958 (Cth) (‘Migration Act’) which regulates the coming into, and presence of, non-citizens in

Australia.17 It is the sole legislative instrument responsible for managing the right of non-citizens to

enter or remain in Australia. It also provides the power to remove non-citizens from Australia in the

absence of a right to stay.18 This thesis, at its core, asks whether the Migration Act is capable of giving

effect to Australia’s international non-refoulement obligations by preventing the removal of non-

citizens when removing them would breach those obligations.

This thesis focuses on non-citizens who are found to be of ‘bad character’ due to the commission of

crimes in Australia. The Migration Act contains a network of interrelated provisions to deal with people

12 A list of treaties to which Australia is a signatory is published at: Department of Foreign Affairs and Trade, Government of Australia, Treaties, <https://info.dfat.gov.au/Info/Treaties/Treaties.nsf/WebView?OpenForm& Seq=3>. 13 International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Articles 6, 7. See also, Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Articles 6, 37. 14 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 3. 15 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 33. 16 Mary Crock, ‘Refugees in Australia: Of Lore, Legends and the Judicial Process’ (Speech delivered at the Annual Colloquium of the Australian Judicial Conference, Darwin, 31 May 2003), 3. 17 Migration Act 1958 (Cth), s 4. 18 Migration Act 1958 (Cth), s 198.

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of ‘bad character’. To explain these provisions, this thesis follows the journey of three hypothetical

applicants through the character provisions of the Migration Act. They are in a hazardous position. They

are owed non-refoulement obligations by Australia which arise because each applicant holds a fear of

harm on return to their home country. However, these applicants have also had their visas cancelled or

refused as a result of criminal conduct. The thesis follows these hypothetical applicants from the time

at which their criminal offending is first considered under the Migration Act, through to the conclusion

of each applicant’s case and their potential removal from Australia. Throughout their applications,

Australia’s non-refoulement obligations are considered by a range of decision makers and pass through

a network of provisions and developing case law. By following the applicants, the complexity of these

provisions is explored.

This thesis argues that the overall scheme of the Migration Act is not able to ensure that a full and

thorough consideration of Australia’s non-refoulement obligations occurs in character cases. This

leaves open the possibility that non-citizens who are owed non-refoulement obligations in Australia are

removed from Australia or face indeterminate and indefinite detention. The three hypothetical

applicants explored in this thesis represent potential pathways by which a non-citizen may become

subject to removal from Australia despite being owed non-refoulement obligations by Australia. This

occurs as a result of complex relationships between character related provisions, disconnect between

the domestic legislation and international law, and a lack of procedural safeguards.

The Migration Act was substantially altered in 2014 through the Migration and Maritime Powers

Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (‘Amendment Act’). The

Amendment Act introduced a number of provisions which relate to Australia’s adherence to non-

refoulement obligations. The Explanatory Memorandum, debates of parliament, and parliamentary

inquiries accompanying the passage of the Amendment Act (collectively referred to as ‘parliamentary

materials’) contain discussions about the impact of the Amendments on Australia’s adherence to non-

refoulement obligations. Schedule 5 of the Amendment Act aims to “clarify Australia’s international

law obligations”.19 Schedule 5 achieves this by codifying Australia’s interpretation of international non-

refoulement obligations in the Migration Act and introducing s 197C which clarifies the availability of

the power to remove a non-citizen in circumstances where the non-citizen is owed non-refoulement

obligations.20 The introduction of s 197C into the Migration Act compounds the issues identified in the

operation of the Migration Act by allowing the removal of non-citizens who do not hold visas but who

are owed non-refoulement obligations by Australia.

19 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 9. 20 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 9.

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Section 197C states that Australia’s non-refoulement obligations in relation to a non-citizen will not

prevent that non-citizen’s removal from Australia.21 Under this new provision, an officer must remove

a non-citizen from Australia irrespective of the existence of, or assessment of, Australia’s non-

refoulement obligations. The provision was introduced in order to overcome a series of High Court

Cases which prevented the removal of a non-citizen from Australia in cases where they were owed non-

refoulement obligations.22 The parliamentary materials surrounding the introduction of s 197C state that

a non-citizen will not be removed in breach of Australia’s non-refoulement obligations despite the

introduction of s 197C. This is made possible because the parliamentary materials state the Migration

Act will provide a full consideration and assessment of Australia’s non-refoulement obligations before

removal is considered.23 However, this thesis argues that the mechanisms relied on by the parliamentary

materials to provide this assessment are not capable of ensuring that a non-citizen is not removed in

breach of Australia’s non-refoulement obligations.

This thesis argues that the Migration Act, as it currently stands, cannot guarantee a full and thorough

consideration of Australia’s non-refoulement obligations in all cases. It is concluded that the Migration

Act is not capable of upholding Australia’s commitment to non-refoulement obligations without a

mechanism by which a non-citizen can avoid removal from Australia on the basis that they are owed

non-refoulement obligations. As such, there exists a contradiction between the statements made in the

parliamentary materials and the operation of the Migration Act. This contradiction cannot be resolved

unless s 197C is removed, the character provisions of the Migration Act are amended, or the Australian

Parliament expresses an intention to operate in breach of international non-refoulement obligations in

character cases.

A Introducing the Hypothetical Applicants

Each of the hypothetical applicants takes a slightly different path through the character provisions of

the Migration Act. However, they all have two things in common. Firstly, they are people to whom

Australia owes non-refoulement obligations, and secondly, they have all committed crimes in Australia.

A flowchart illustrating the process of each of the applicant’s cases is provided in Annexures A – C to

21 Migration Act 1958 (Cth), s 197C; As interpreted in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (North J). See also, Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1139]-[1142]. 22 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1135]. 23 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1142].

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assist the reader. All of the applicants’ cases are hypothetical, although some elements are taken from

the facts of key cases.

Alfie is a national of Iran.24 He is a Sunni Kurd and has been accused of apostasy in Iran. If he returns,

he could face ‘entrenched discrimination’ due to being a Kurd and prosecution for the crime of

apostasy.25 The Federal Court has characterised the fear of harm facing a Sunni Kurd on return to Iran

as being “of the gravest kind”.26 The type of harm that he may suffer if he returns ranges from

discrimination, to detention in an Iranian prison, and to punishment for the crime of apostasy which,

although unlikely, could be the death penalty.27 A flowchart to assist the reader in understanding the

process of Alfie’s application is contained in Annexure A.

Betty is a national of Cameroon.28 She comes from the Northwest Region which is one of two

Anglophone (English speaking) regions in Cameroon. Betty has come to Australia on a student visa

and is studying at a university in Perth. During her stay, riots and violence break out in Cameroon. The

problems in her country began when the Anglophone teachers, students and lawyers began protesting

against the marginalisation of the Anglophone population.29 The country is then plunged into chaos

when armed separatist groups from the Anglophone areas take on the Francophone (French speaking)

security forces of the Cameroonian government. If Betty returns she fears that she will be targeted by

the Francophone armed forces as she is an Anglophone. Additionally, she fears that she might be pulled

into the chaos and harmed by the Anglophone armed separatist groups on suspicion of passing

information to the Francophone forces. The harm she could suffer ranges from discrimination as an

Anglophone, to an inability to return to her home due to the violence, physical harm in the violence, or

24 Alfie’s protection claim is based on the case of NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. However, the crime he commits, and the details of his application have been created for the purposes of explanation. 25 The Kurdish people are an ethnic minority in Iran residing, predominantly, in the North-West of the Country. A Sunni Kurd is a Kurd whose religion is Sunni Muslim. The Australian Department of Foreign Affairs and Trade publishes reports to assist with protection status determinations for refugee and complementary protection claims. The most recent report on Iran provides information on the situation for Sunni Kurds in Iran. This includes information about discrimination, torture and the death penalty. See Department of Foreign Affairs and Trade, DFAT Country Information Report Iran (7 June 2018). See also, Article 19, Iran: Executions of Kurdish Prisoners Must Stop Immediately (15 August 2016) for information on the executions of Kurdish prisoners in Iran. See also NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 which is the case on which Alfie’s claims for protection are based. 26 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [2] (Allsop CJ and Katzmann J). 27 See Department of Foreign Affairs and Trade, DFAT Country Information Report Iran (7 June 2018), 40. See also NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [2] (Allsop CJ and Katzmann J). 28 Betty is a purely fictional character created for the purposes of explanation. The details of her protection claims are based on reports regarding the situation in Cameroon. See generally, Amnesty International, A Turn for the Worse: Violence and Human Rights Violations in Anglophone Cameroon (2017). 29 Amnesty International, A Turn for the Worse: Violence and Human Rights Violations in Anglophone Cameroon, (2017), 9.

5

detention by parties on either side of the conflict. At the most extreme, she fears that she could be killed

in the conflict. Annexure B contains a flowchart to assist the reader in understanding the process of

Betty’s application.

Charlie is from Afghanistan.30 Charlie arrived in Australia by boat at Christmas Island and was then

held in immigration detention in Darwin.31 He faces a real chance of being persecuted by the Taliban if

he returns on account of his Hazara ethnicity and involvement with foreign troops in Afghanistan.32 He

is considered a spy and an infidel by the Taliban33 and he fears that he may be killed by them if he

returns. The reader may refer to Annexure C for a flowchart of Charlie’s application.

B Structure of this Thesis

This thesis is in three parts. Each part introduces a distinct provision and its application in character

cases. The provisions of the Act will be explained through their application to the hypothetical

applicants. Each provision will be introduced in chronological order, that is, the order in which they are

applied in the cases of the hypothetical applicants. In this way, the structure of the thesis documents the

journey of the hypothetical applicants through the Migration Act, from the point at which the character

concern first arises to the potential removal of each applicant from Australia.

Part A introduces s 501 of the Migration Act. This provision can be used to refuse or cancel a visa

where the non-citizen has committed a crime. This provision is often the first provision applied

following the commission of a crime by a non-citizen. Chapter III will introduce the process of

cancellation or refusal under s 501 which involves an exercise of discretion. This chapter will establish

that Australia’s non-refoulement obligations will not be considered in every s 501 decision regarding a

non-citizen to whom Australia owes non-refoulement obligations. The cases of Alfie and Betty will be

introduced to illustrate the distinction between a case in which non-refoulement obligations are

considered and a case in which they are not. Chapter IV will examine a crucial assumption made by

section 501 decision makers in cases where non-refoulement obligations are not considered. The

assumption is that Australia’s non-refoulement obligations will be considered at a later stage when the

non-citizens makes an application for a protection visa under s 36 of the Migration Act. This chapter

30 Charlie an amalgamation of the five applicants in NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44, and the applicant in NKWF v Minister for Immigration and Border protection [2018] FCA 409. 31 Charlie arrived in Australia prior to 2014 and his case was not affected by the 2014 changes to the status of unauthorised maritime arrivals. His application proceeds in the same manner as the applicants in NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44. 32 See NKWF v Minister for Immigration and Border protection [2018] FCA 409, [7] (Siopis J); NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44, [36], [45], (Buchanan J). 33 See NKWF v Minister for Immigration and Border protection [2018] FCA 409.

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will delve into case law and commentary surrounding the soundness of this assumption and the practice

of deferring consideration of non-refoulement obligations to s 36 determinations.

Part B moves to the provisions in s 36 of the Migration Act and examines the ability of this provision

to provide a full and thorough consideration of non-refoulement obligations in character cases. Chapter

V examines the ineligibility criteria in s 36. These provisions operate to exclude non-citizens who have

committed ‘particularly serious crimes’ and are a ‘threat to the Australian community’ from the grant

of a protection visa. These provisions are applied to Charlie’s case. His case is used to illustrate a

disconnect between s 36 exclusion criteria and international law. This application is used to illustrate

that these provisions can operate to exclude a non-citizen from the grant of a protection visa despite

them being owed non-refoulement obligations by Australia. Chapter VI illustrates that a non-citizen can

also be refused a protection visa under s 36 through the use of s 501 of the Migration Act. These

provisions will be explained using the example of Betty’s application. Betty’s application is used to

illustrate that this can result in a non-citizen being refused the grant of a protection visa despite being

owed non-refoulement obligations by Australia.

Part C of the thesis explores the introduction of s 197C into the Migration Act. As introduced above, s

197C affects the availability of the removal powers in relation to non-citizens who are owed non-

refoulement obligations by Australia. Chapter VII will introduce the operation of s 197C and explain

the interpretation of s 197C in the Federal Court. This chapter will also explore the effect that s 197C

may have on decision makers in s 501, and explain the possible impact of this in the cases of Alfie and

Betty. Chapter VIII will explore the passage of s 197C and the parliamentary materials surrounding its

introduction. Additionally, this chapter will explain the procedural safeguards in place to prevent the

removal of non-citizens in breach of Australia’s non-refoulement obligations despite the introduction

of s 197C. It is concluded that, although these safeguards can prevent the removal of non-citizens in

character cases, they are not capable of ensuring that removal is prevented in all cases.

C Situating the Work

This thesis draws predominantly from primary sources including legislation, parliamentary debates, and

decisions of the High Court and Federal Court. This thesis will also look to decisions of the

Administrative Appeals Tribunal (‘AAT’) where the changes are recent and where there does not yet

exist a body of case law from higher courts. It should be noted that AAT cases do not form a legal

precedent so they are not binding on the AAT or on any court. However, they can be helpful in exploring

the initial reactions to important shifts in law and to shed light on the types of argument that may arise

in the Federal Court in the near future.

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Commentary is not extensively used in this thesis. This is partly because the law being discussed is

recent and shifting resulting in very little relevant commentary. However, this thesis relies heavily on

the work of Peter Billings who published an article this year comprehensively exploring the current law

in this area.34 Additionally, there is commentary that examines the use of character tests in Australian

legislation generally,35 and of the use of s 501 more specifically.36 These articles provide an interesting

and compelling backdrop to this thesis, but do not engage in a discussion of case law or deconstruct the

operation of the Migration Act as done here. This makes them of limited utility in adding to the structure

of the argument presented in this thesis.

D Note on the Chronology of Cases

The cases referred to in this thesis do not follow a clear chronological order. This means that there is

some shifting between different time periods in this thesis. Section 197C was introduced in 2014 but

was not the subject of major judicial commentary between 2014 and 2017. This is the three-year period

during which the majority of the cases discussed in Part A were decided. In 2017, a decision of the

Federal Court was handed down which brings new significance to s 197C. Part C discusses the

introduction of the provisions in 2014 and the decisions since 2017 that have considered it. A timeline

of the key cases and legislative changes is provided in Annexure D to assist in clarifying this timeline.

34 Billings, above n 34. 35 See, eg, Peter Billings, ‘Regulating Crimmigrants Through the ‘Character Test’: Exploring the Consequences of Mandatory Visa Cancellation for the Fundamental Rights of non-citizens in Australia’, (2018) Crime Law and Social Change 1; Khanh Hoang, ‘The Rise of Crimmigration in Australia: Importing Laws and Exporting Lives’ in Kerry Carrington, Russell Hogg, John Scott, and Maximo Sozzo (eds) Palgrave Handbook of Criminology and the Global South (Palgrave Macmillan, 2018); Susan Rimmer, ‘Dangers of Character Tests Under Australian Migration Laws’ (2010) 17 Australian Journal of Administrative Law 229. 36 See eg, Billings, above n 34; Peter Billings, ‘Regulating Crimmigrants Through the ‘Character Test’: Exploring the Consequences of Mandatory Visa Cancellation for the Fundamental Rights of non-citizens in Australia’, (2018) Crime Law and Social Change 1; Chantal Bostock, ‘Procedural Fairness and the AAT’s Review of Visa Cancellation Decisions on Character Grounds’ (2010) 17 Australian Journal of Administrative Law 77; Chantal Bostock, ‘Cancelling Visas on Character Grounds: a Fundamentally New Direction Has Been Made Governing s 501 Visa Cancellations’ (2009) 47(9) Law Society Journal 66; Savitri Taylor, ‘Exclusion from Protection of Persons of 'Bad Character': Is Australia Fulfilling Its Treaty based Non refoulement Obligations?’ (2002) 8(1) Australian Journal of Human Rights 83; Michael Grewcock, ‘Punishment, Deportation and Parole: The Detention and Removal of Former Prisoners Under Section 501 Migration Act 1958’ (2011) 44(1) Australia and New Zealand Journal of Criminology 56; Michael Grewcock, ‘Conviction, Detention and Removal: The Multiple Punishment of Offenders Under s 501 Migration Act’ (2009) UNSW Law Research Paper No. 2009-49; D Mercurio and F Millevoi, ‘Out of Character: The Impact of the 2011 Amendments to the Character Test’ (2013) 26(1) Journal of Refugee Studies 47; Kerry Murphy, ‘AAT Review of Character Cases: Section 501’, (2003) 13 Immigration Review 9; Commonwealth Ombudsman, The Department of Immigration and Border Protection: The Administration of Section 501 of the Migration Act 1958 Own Motion Report (2016).

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II BACKGROUND

A Non-Refoulement in International Law

Non-refoulement derives from the term refouler in French meaning to drive back or repel.37 The term

refers to a doctrine in International law which restricts the rights of states to ‘expel or return’ non-

citizens in cases where the non-citizens ‘life or freedom’ would be threatened.38 The Doctrine of Non-

refoulement is a fundamental principle of international law39 and forms a vital element of the

international communities’ protection of the Human Rights of migrants. Australia’s non-refoulement

obligations arise from the Convention Relating to the Status of Refugees 195140 as amended by the

Optional Protocol to the Convention Relating to the Status of Refugees 196741 (collectively referred to

as the ‘Refugee Convention’). Australia ratified the Convention on 22 Jan 1954 and acceded to the

optional protocol on 13 December 1973.42 Australia also has non-refoulement obligations under the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984

(‘CAT’),43 International Covenant on Civil and Political Rights 1966 (‘ICCPR’),44 and from customary

37 McAdam, Jane and Goodwin-Gill, Guy, The Refugee in International Law (Oxford University Press, 3rd ed, 2011), 201. 38 Ibid. 39 Ibid, 211-215. 40 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 33. 41 Optional Protocol to the Convention Relating to the Status of Refugees 1967, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). 42 United Nations High Commissioner for Refugees, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, (2015). 43 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 3. 44 International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Articles 6, 7.

9

international law.45 Each of these sources46 of the non-refoulement obligations is slightly different in

content.

The notion that a persecuted non-citizen should not be returned to a country where they will be harmed

first arose in the early to mid-nineteenth century during a time of mass movement in Europe, South

America, and the Ottoman Empire.47 However the doctrine crystallised with the drafting of the Refugee

Convention.48 The Convention was adopted by the United Nations Conference of Plenipotentiaries on

the Status of Refugees and Stateless Persons in 1961.49 This Convention forms the cornerstone of the

international protection for the human rights of migrants.50 Since the drafting of the Refugee

Convention, the doctrine of non-refoulement under the Refugee Convention has become part of

customary international law51 binding all states even where they are not signatories to it. Under the

Refugee Convention, a person who is able to meet the definition of a ‘refugee’ is then covered by the

protections in the Refugee Convention. Refugees are people who fear persecution for reasons of race,

religion, ethnicity, membership of a particular social group or political opinion.52 The obligation of non-

refoulement protects this group by requiring states to admit a non-citizen claiming the protection of the

Refugee Convention and to provide a mechanism to determine their status.53 If the non-citizen meets

the definition of a refugee, Article 33(1) of the Refugee Convention states that a contracting state should

not expel or return that person in any manner whatsoever to the frontiers of territories where his life or

45 United Nations High Commissioner for Refugees, Summary Conclusions on Non-Refoulement: Global Consultations on International Protection, Lisborn Expert Roundtable (3-4 May 2001); United Nations High Commissioner for Refugees, Summary Conclusions on Non-Refoulement: Global Consultations on International Protection, Cambridge University Expert Roundtable (9-10 July 2001). For a detailed explanation of the content of the principle of non-refoulement in customary international law see: Sir Elihu Lauterpacht, and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003), [217]-[253]. 46 Non-refoulement obligations also arise under the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Articles 6, 37. However, this treaty is outside the scope of this thesis thesis as the applicants explored in this thesis. 47 McAdam and Goodwin-Gill, above n 37, 202. 48 McAdam and Goodwin-Gill, above n 37, 203. 49 United Nations Conference of Plenipotentiaries on the Statues of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Sixteenth Meeting, UN doc A/CONF.2/SR.16 (23 November 1951). 50 A Grahl-Madsen, The Status of Refugees in International Law Volume 2 (AW Sijthoff, Leiden, 1972), 93-94; A Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press, Oxford, 2011), 1334-1335. 51 McAdam and Goodwin-Gill, above n 37, 354; United Nations High Commissioner for Refugees, Summary Conclusions on Non-Refoulement: Global Consultations on International Protection, Cambridge University Expert Roundtable (9-10 July 2001). 52 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 1A. 53 McAdam and Goodwin-Gill, above n 37, 215.

10

freedom would be threatened.54 Most states will fulfil their obligations under the Refugee Convention

by granting visas to non-citizens who meet the definition of a refugee.

Since the drafting of the Refugee Convention, the doctrine of non-refoulement has grown as a concept

in international law.55 It is now included in international human rights treaties beyond the Refugee

Convention. An express prohibition on refoulement is contained in the CAT,56 while an implied

prohibition on refoulement is contained in the ICCPR.57 The obligations of states under these treaties

can also be served through the grant of visas to non-citizens in need of protection. Providing protection

for people who are owed non-refoulement obligations under these treaties is known as ‘complementary

protection’.58 Complementary protection operates to protect non-citizens who are in need of protection

from serious human rights violations in their countries of origin but who do not fall within the, relatively

narrow, grounds for protection provided by the Refugee Convention.59

The nature of Australia’s obligations under the Refugee Convention differ slightly from the obligations

under the CAT and ICCPR. There is no exception to the obligation of non-refoulement under the CAT

and ICCPR.60 However, the obligation of non-refoulement under the Refugee Convention is not

absolute. Firstly, the Refugee convention excludes from protection two groups of people through two

distinct mechanisms. Individuals who are found not to be deserving of the protection of the Refugee

Convention are excluded from the definition of a Refugee by Article 1F of the Convention.61 This

54 McAdam and Goodwin-Gill, above n 37, 211-215. 55 McAdam and Goodwin-Gill, above n 37, 202-205. 56 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 3; Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003), [238]. 57 International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Articles 6, 7; Lauterpacht, Sir Elihu and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003), [238]. 58 McAdam and Goodwin-Gill, above n 37, 285; United Nations High Commissioner for Refugees, Refugee Protection in International Law - UNHCR's Global Consultations on International Protection (2003), 2. 59 United Nations High Commissioner for Refugees, Filling the Protection Gap: Current Trends in Complementary Protection in Canada, Mexico and Australia, Research paper No 238 (31 May 2012), 2: Citing United Nations High Commissioner for Refugees, Providing International Protection Including Through Complementary Forms of Protection, UN Doc EC/55/SC/CRP.16 (2 June 2005), 21. 60 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 3; International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Articles 6, 7. 61 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV (December 2011), [140]. See also Standing Committee of the Executive Committee of the

11

applies to people who have committed war crimes, crimes against humanity, crimes contrary to the

purposes of the United Nations, or who have committed a serious non-political crime before entering

the receiving country.62 If a non-citizen falls into one of these categories then they are not a refugee and

will not be entitled to the protections of the Refugee Convention.63 Secondly, the Refugee Convention

contains exceptions to the principle of non-refoulement. Although a non-citizen may be a Refugee, it

is an exception to the obligations of non-refoulement if they pose a threat to the security of the receiving

country or the safety of the community of that country.64 This exclusion is contained in Article 33(2) of

the Refugee Convention.

In Australian domestic law non-refoulement is defined, for the purposes of the Migration Act, in s 5(1)

as including non-refoulement obligations that arise because Australia is a party to the Refugee

Convention, or the Convention Against Torture and any obligation under customary international law

that are similar in kind.65 Australia’s non-refoulement obligations are discussed in the case law and

parliamentary materials accompanying the Amendment Act. Australia’s obligations of non-refoulement

under the different treaties discussed in this chapter are often referred to collectively in these sources.

However, sometimes a distinction is made between Australia’s non-refoulement obligations under the

Refugee Convention and Australia’s non-refoulement obligations under treaties additional to the

Refugee Convention. The distinction between these different non-refoulement obligations is

particularly apparent in the mechanism of the grant of a protection visa under s 36 of the Migration

Act.66

B The Role of s 36 in the Migration Act

Section 36 is vitally important in allowing the Migration Act to give effect to Australia’s international

non-refoulement obligations under both the Refugee Convention and the CAT and ICCPR. This section

provides the mechanism by which a non-citizen can apply for a protection visa in Australia. Protection

High Commissioner’s Programme, Note on the Exclusion Clauses, 47th Session, UN doc EC/47/SC/CRP.29 (30 May 1997), [3]. 62 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 1F. 63 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 1A(2); United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV (December 2011), 140; Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Ch 7. 64 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 33(2). 65 Migration Act 1958 (Cth), s 5(1). 66 See Chapter V.

12

visas are permanent visas granted to non-citizens who Australia finds are owed non-refoulement

obligations. This is the primary mechanism by which non-citizens owed non-refoulement obligations

can be given the right to stay in Australia.67 To be granted a protection visa, a non-citizen must satisfy

all the criteria contained in s 36. The section has two paths, a non-citizen can apply for a protection visa

on the grounds that they are a refugee, or they can apply under the ‘complementary protection’

provisions which allow visas to be granted to non-citizens who are owed non-refoulement obligations

under other CAT and ICCPR.68 Both paths for the grant of a protection visa require, broadly speaking,

a finding that the applicant will suffer harm if they return to their home country.69 This requires an

assessment of the likelihood of that harm occurring.70 To establish these elements, the non-citizen will

be able to provide to the decision maker a detailed statement outlining the situation their home country,

the risk of harm that they fear on return, and the types of harm they are likely to face. This may be

accompanied by county information to support their claims. Through this, the decision maker can make

a determination about whether the applicant is owed non-refoulement obligations by Australia based on

the evidence presented.

For a non-citizen to be granted a protection visa on the basis that they meet the definition of a Refugee,

the non-citizen must satisfy the criteria in s 36(2)(a). For the purposes of s 36(2)(a), a refugee is defined

under s 5H of the Migration Act. Section 5H(1) establishes that a refugee is a person “outside their

country of nationality or country of habitual residence”71 and who is “unable or unwilling to avail

themselves of the protection of their home country owing to a well-founded fear of persecution”.72 The

term well-founded fear is then defined in Section 5J which adds that there must be a ‘real chance’ that

the non-citizen would be persecuted if they returned,73 that the persecution is due to their “race, religion,

67 There are other mechanisms for certain groups of people including temporary protection under the TPV and SHEV visa system. These allow for short term visas to be granted to Unauthorised Maritime Arrivals. Additionally, Humanitarian Visas may be granted to people recognised as Refugees before arriving in Australia. 68 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), 1, [63]. 69 For refugee ground the harm must be serious as defined in s 5J(5) of the Migration Act: Migration Act 1958 (Cth), s 5J(4)(b). For complementary protection the harm must be significant as defined in s 36(2A) of the Migration Act: Migration Act 1958 (Cth), s 36(2)(aa). 70 For refugee ground this requires that the fear be ‘well founded’ under s 5H(1) and defined in s 5J of the Migration Act. Establishing ‘well founded’ involves a ‘real chance’ test contained in s 5J(1)(b) and explained in Chan v Minister for Immigration and Ethnic Affairs [1989] 21 ALD 139 and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] 191 CLR 559: Migration Act 1958 (Cth), s 5J. For complementary protection this requires that the harm is a ‘necessary and foreseeable consequence’ of the applicant being removed and that there is a ‘real risk’ of the harm occurring as defined in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505: Migration Act 1958 (Cth), s 36(2)(aa). 71 Migration Act 1958 (Cth), 5H(1)(b). 72 Migration Act 1958 (Cth), 5H(1)(a). 73 Migration Act 1958 (Cth), 5J(1)(b).

13

nationality, membership of a particular social group or political opinion”.74 These provisions reflect the

definition of a Refugee in Article 1A of the Refugee Convention.75

The provisions in s 36(1)(a) are intended to codify Australia’s interpretation of its non-refoulement

obligations under Refugee Convention.76 Before the 2014 Amendment Act, s 36 referred directly to the

definition of a refugee contained in the Refugee Convention. It stated that it was a criteria for the grant

of a protection visa that the applicant was a non-citizen ‘in respect of whom… Australia has protection

obligations under the Refugee Convention’.77 However, in 2014 the Amendment Act removed this

reference to the Refugee Convention and introduced, instead, the definition of a refugee into s 5H.78

The provision now operates as an “independent and self-contained statutory framework which

articulates Australia’s interpretation of its protection obligations under the Refugee Convention”79 and

‘codify’ these obligations within sections of the Migration Act.80

For a non-citizen to be granted a protection visa under the complementary protection regime, the non-

citizen must satisfy the criteria in s 36(2)(aa). This involves a finding that there are “substantial grounds

for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from

Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.81

Significant harm, for the purposes of this finding, may involve an “arbitrary deprivation of his or her

life”,82 the “death penalty”,83 “torture”,84 “cruel or inhuman treatment or punishment”,85 or “degrading

74 Migration Act 1958 (Cth), 5J(1)(a). 75 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1243]; See also Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Ch 7. 76 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [2]. See also Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Ch 7. 77 Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Chapter 7, [7-3]. See, also, Plaintiff M47/2012 v Director General of Security and Ors (2012) 251 CLR 1, [39] (French CJ), [99]-[100] (Gummow J) discussing the role of s 36 in relation to the Migration Act prior to 2014. 78 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1243]. See also Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Ch 7. 79 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 10. 80 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 10. 81 Migration Act 1958 (Cth), s 36(2)(aa). 82 Migration Act 1958 (Cth), s 36(2A)(a). 83 Migration Act 1958 (Cth), s 36(2A)(b). 84 Migration Act 1958 (Cth), s 36(2A)(c). 85 Migration Act 1958 (Cth), s 36(2A)(d).

14

treatment or punishment”.86 Section 36(2)(aa) is intended to provide protection from return for non-

citizens who engage Australia’s non-refoulement obligations under treaties additional to the Refugee

Convention.87 The provisions provide arrangements for adhering to Australia’s non-refoulement

obligations under the ICCPR and CAT88 by creating a system for considering the claims of non-citizens

and reflecting Australia’s longstanding commitment to protecting those at risk of serious human rights

abuses.89

As described in Part A of this chapter, the Refugee Convention contains two exclusions. The first

excludes non-citizens from the definition of a refugee if they are ‘underserving’ of the protections of

the Refugee Convention. The second, creates an exception to non-refoulement obligations in cases

where the non-citizen poses a threat to the community or security of the receiving state. Both of these

exclusions are also codified within the s 36 provisions. A non-citizen will not meet the definition of a

refugee in s 5H of the Migration Act where the Minister has “serious reasons for considering”90 that

they have “committed a crime against peace, a war crime or a crime against humanity”,91 “a serious

non-political crime before entering Australia”,92 or where the non-citizen has been guilty of “acts

contrary to the purposes and principles of the United Nations”.93 These provisions are intended to codify

the first type of exclusion contained in the Refugee Convention.94 These same exclusions are also

applied to the complementary protection criteria.95

Additionally, it is a criterion for the grant of a protection visa that a non-citizen is not a “danger to the

Australia community”96 having been convicted of a “particularly serious crime”,97 or a “danger to

Australia’s Security”.98 These provisions reflect the exceptions to the obligation of non-refoulement

86 Migration Act 1958 (Cth), s 36(2A)(e). 87 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), 1. 88 The provision also provides arrangements for non-refoulement under the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Articles 6, 37: however, a detailed discussion of this treaty is outside the scope of this thesis. 89 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), 1. 90 Migration Act 1958 (Cth), s 5H(2). 91 Migration Act 1958 (Cth), s 5H(2)(a). 92 Migration Act 1958 (Cth), 5H(2)(b). 93 Migration Act 1958 (Cth), s 5H(2)(c). 94 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 10. 95 Migration Act 1958 (Cth), s 36(2C)(a). 96 Migration Act 1958 (Cth), s 36(2C)(b)(ii). 97 Migration Act 1958 (Cth), s 36(2C)(b)(ii). 98 Migration Act 1958 (Cth), s 36(2C)(b)(i).

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contained in Article 33(2) of the Refugee Convention.99 These provisions also apply to both claims

under the refugee criteria and the complementary protection criteria.100

The place of s 36 in the Migration Act is further explained in Chapter IV. Additionally, the ability of s

36 to reflect the exclusion principles in the Refugee Convention, and the ability of s 36 to provide visas

to non-citizens owed non-refoulement obligations, is explores in Chapters V and VI.

99 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [12]. See also Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Ch 7, [7.52], [7.3]-[7.34]. 100 Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Policy Refugee and Humanitarian, The Protection Visa Processing Guidelines, Part 13, [4.57.2].

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PART A

III CHARACTER CANCELLATIONS

This Part introduces the character provisions in s 501 of the Migration Act. These provisions allow the

Minister to cancel or refuse a visa when a non-citizen fails the ‘character test’. The cancellation of a

visa means that the visa immediately ceases to be in effect101 and the non-citizen is ‘unlawful’102 in

Australia and vulnerable to removal.103 These provisions have become the principle mechanism used to

manage non-citizens in Australia in criminal cases.104 Section 501 is important for the discussion in this

thesis in two primary ways. Firstly, for a non-citizen a visa cancellation under s 501 may be the first

step in a process that ultimately ends in removal. In the cases of Alfie and Betty, the cancellation of

their visas under s 501 alters their status from ‘lawful’ non-citizens with a right to remain in Australia

to ‘unlawful’ non-citizens who are vulnerable to removal. Secondly, the visa cancellation decision is

the first opportunity for Australia’s non-refoulement obligations to be considered in relation to removal

in character cases. In both Alfie and Betty’s cases, the decision maker is made aware of Australia’s

non-refoulement obligations towards them and this plays a role in the exercise of the cancellation power

in s 501.

Section 501 decisions all involve an exercise of discretion and Australia’s non-refoulement obligations

form an important element of the exercise of that discretion. The obligation to consider Australia’s non-

refoulement obligations is derived from both case law and Ministerial Direction 65. However, decision

makers are not required to consider Australia’s non-refoulement obligations in all cases. This Part will

look at the cases of both Alfie and Betty to illustrate the application of four principles that determine

whether a s 501 decision maker should consider Australia’s non-refoulement obligations in exercising

their discretion.105 Their cases illustrate the factors which distinguish a case in which non-refoulement

obligations are considered from a case in which they are not.

101 Migration Act 1958 (Cth), s 82(1). 102 Migration Act 1958 (Cth), s 14. 103 Migration Act 1958 (Cth), s 198. 104 Chiam, Christopher, ‘Characterising Migration Directions as Legislative Instruments: Implications for Judicial Review’ (2018) 24 Australian Journal of Administrative Law 234, 33: Citing Senate Legal and Constitutional References Committee, Parliament of Australia, Administration and Operation of the Migration Act 1958 (2006), [9.30]. 105 The principles are derived from Ministerial Direction 65 and the case law delineating the mandatory relevant considerations a decision maker exercising s 501 discretion should take into account. The four principles are: The decisions maker must consider the legal consequence of the cancellation decision being made, the decision maker must consider the practical consequence of the cancellation decision, the decision maker need not consider non-refoulement obligations if it is open to the non-citizen to apply for a protection visa in the future, and that non-

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A The Character Cancellation Provisions

Section 501 empowers the executive to cancel or refuse the visa of any non-citizen who does not pass

the ‘character test’. All non-citizens are potentially subject to section 501.106 Section 501 provides four

different cancellation or refusal powers. The first two are contained in ss 501(1) and 501(2). These

provisions are discretionary and require a balancing of considerations. The discretion under s 501(1) is

enlivened when the applicant does not satisfy the decision maker that they pass the character test when

applying for a visa.107 In this instance, the Minister or a delegate of the Minister may refuse the visa

(‘refusal decisions’). Section 501(2) applies where the non-citizen is already holding a visa. Under this

provision the Minister or a delegate of the Minister may cancel the visa of the non-citizen if they

reasonably suspect that the non-citizen does not pass the character test and the non-citizen is not able

to satisfy the decision maker that they pass the character test (‘cancellation decisions’).108 The

‘character test’ is contained in s 501(6) of the Migration Act.

Under s 501(6), a non-citizen does not pass the character test if they have a “substantial criminal

record”,109 the non-citizen has been “convicted of an offence in immigration detention”,110 is part of an

“organization involved in criminal conduct”,111 is “suspected of involvement in trafficking or crimes of

international concern”,112 is found guilty of “sexual offences involving a child”,113 or has been charged

with crimes of genocide,114 crimes against humanity115 or war crimes.116 In addition, a non-citizen will

fail the character test if they are not of good character having regard to their “past and present criminal

and general conduct”,117 or there exists a risk that if the non-citizen remained in Australia118 they would

compellable ‘alternative management options’ open to the Minister in the future are a matter of speculation and do not affect the Minister’s obligations to consider the legal and practical consequences of the decision. See Chapter III. 106 Chiam, Christopher, ‘Characterising Migration Directions as Legislative Instruments: Implications for Judicial Review’ (2018) 24 Australian Journal of Administrative Law 234, 33. 107 Migration Act 1958 (Cth), 501(1). 108 Migration Act 1958 (Cth), 501(2). 109 Migration Act 1958 (Cth), 501(6)(a). Substantial Criminal Record is further defined in Migration Act 1958 (Cth), s 501(7). 110 Migration Act 1958 (Cth), 501(6)(aa). 111 Migration Act 1958 (Cth), 501(6)(b). 112 Migration Act 1958 (Cth), 501(6)(ba). 113 Migration Act 1958 (Cth), 501(6)(e). 114 Migration Act 1958 (Cth), 501(6)(f)(i). 115 Migration Act 1958 (Cth), 501(6)(f)(ii). 116 Migration Act 1958 (Cth), 501(6)(f)(iii). 117 Migration Act 1958 (Cth), 501(6)(c). 118 Migration Act 1958 (Cth), 501(6)(d).

18

“engage in criminal conduct, harass, molest or intimidate”, “represent a danger to the Australian

community”,119 “incite discord in the community”,120 or “vilify a segment of the Australian

community”.121

In addition to the discretionary powers under ss 501(1) and 501(2), there are circumstances in which

the cancellation decision is mandatory (‘mandatory cancellation decisions’).122 This power is

contained in s 501(3A) and states that Minister or a delegate of the Minister must cancel the visa of a

non-citizen who fails the character test where the non-citizen is currently serving a sentence of

imprisonment and has a substantial criminal record,123 or where the non-citizen has been convicted of

sexual offences against a child.124 Once the visa is cancelled, the non-citizen may request a revocation

of the cancellation decision under s 501CA of the Migration Act (‘revocation decisions’). The decision

to revoke a mandatory cancellation decision is discretionary.

The final cancellation power can only be exercised by the Minister personally.125 This power allows the

Minister to cancel or refuse a visa if the non-citizen has a substantial criminal record, where the

individual is convicted of sexual offences involving a child, where the individual is serving a sentence

of imprisonment,126 or where the Minister reasonably suspects that the individual fails the character

test, and cancellation is in the national interest.127

1 Alfie’s Application

Alfie arrived in Australia from Iran and immediately applied for a protection visa under s 36 of the

Migration Act. He was found to be a person to whom Australia owed non-refoulement obligations and

was granted a protection visa. After a few years in Australia, Alfie was convicted of three assaults. The

charges resulted from three occasions in which he fought with a friend. He pled guilty to the offences,

and on the third occasion was sentenced to 12 months’ imprisonment. Towards the end of his sentence

he received notice that his visa has been cancelled under s 501(3A).

119 Migration Act 1958 (Cth), 501(6)(v). 120 Migration Act 1958 (Cth), 501(6)(iv). 121 Migration Act 1958 (Cth), 501(6)(d)(iii). 122 Migration Act 1958 (Cth), 501(3A)(b). 123 Migration Act 1958 (Cth), 501(3A)(i). 124 Migration Act 1958 (Cth), 501(3A)(ii). 125 Migration Act 1958 (Cth), 501(4). 126 Migration Act 1958 (Cth), 501(3). 127 Migration Act 1958 (Cth), 501(3).

19

The decision to cancel Alfie’s protection visa is a mandatory cancellation decision. He received written

notice of the decision. Alfie’s visa was cancelled because Alfie holds ‘substantial criminal record’ as

defined in s 501(7) because his term of imprisonment was for 12 months.128 On this basis, the delegate

of the Minister was required to cancel the visa.129 The notice invited Alfie to make representations to

the Minister to have the mandatory cancellation decision revoked130 by explaining that he basis he

passes the character test131 or by raising another reasons why the decision should be revoked.132 Alfie

responds to the notice to request that the cancellation decision be revoked because he is owed non-

refoulement obligations by Australia which constitutes a reason why the cancellation decision should

be revoked.133

2 Betty’s Application

Betty came to Australia on a student visa. During her stay in Australia she is charged with possession

of cannabis. She pled guilty and was fined. Betty received notice that the Minister is considering

cancelling her student visa under s 501(2). She provided the decision maker with information about

why she may be owed non-refoulement obligations by Australia due to the situation in Cameroon.

B Consideration of Non-refoulement

The decision in both Alfie and Betty’s cases involves the exercise of discretion. The discretions require

the decision maker to weigh up a range of considerations derived from both case law and Ministerial

Direction 65. In both cases, the decision maker must decide whether to consider Alfie and Betty’s claims

that they are owed non-refoulement obligations by Australia. The following discussion will explain a

cluster of cases which provide guidance as to how the legislative framework operates. These cases

explain a framework to determine whether or not consideration of Australia’s non-refoulement

obligations is required in an exercise of discretion under s 501. At the conclusion of these cases it can

be seen that the consideration of Australia’s non-refoulement obligations differs between Alfie and

Betty’s case. This fact highlights how the consideration of non-refoulement obligations shifts with

different factual scenarios.

128 Migration Act 1958 (Cth), s 501(7)(c). 129 Migration Act 1958 (Cth), s 501 (3A). 130 Migration Act 1958 (Cth), s 501CA(1)(3)(b). 131 Migration Act 1958 (Cth), s 501CA(4)(b)(i). 132 Migration Act 1958 (Cth), s 501CA(4)(b)(ii). 133 See, eg, BCR16 v Minister for Immigration and Border Protection [2016] FCA 965, [3]-[4] (Moshinsky J).

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1 Principles Found in Case Law

The complexity of deciding whether to consider Australia’s non-refoulement obligations was addressed

by the Full court of the Federal Court in Minister for Immigration and Border Protection v Le (‘Le’)134

The Court comprehensively summarized the preceding decisions with the objective of extracting and

formulating a list of considerations that impact whether or not Australia’s non-refoulement obligations

are mandatory relevant considerations in a discretionary decision under s 501.135 The Court found that

the preceding decisions present a consistent approach despite the complexity of a range of factual

scenarios.136 The Full Court formulated a series of “relevant principles” which amalgamated the

principles from those decision.137 This section will break down that decision into four overarching

‘principles’ and explain the situations in which they operate.

(a) Principle 1: The Legal Consequence of the Decision

The first and most fundamental principle is that the decision maker must consider the legal consequence

of their decision under s 501. This principle arises out of the decision in NBMZ v Minister for

Immigration and Border Protection (‘NBMZ’)138 where the Full Court of the Federal Court unanimously

held that a failure to consider the legal consequence of a decision under s 501 constituted jurisdictional

error rendering the decision invalid.139 Determining the legal outcome of the decision being made

involves an enquiry into the potential journey of the applicant’s case through the various provisions of

the Migration Act.

In NBMZ the applicant had been refused a protection visa under s 501(1)140 due to a conviction of

damaging Commonwealth property while in immigration detention.141 The issue of Australia’s non-

134 [2016] FCAFC 120. 135 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61] (Allsop CJ, Griffiths and Wigney JJ): See also BMX15 v Minister for Immigration and Border Protection [2016] 244 FCR 153, [58]-[78] (Bromberg J). 136 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [60] (Allsop CJ, Griffiths and Wigney JJ); See also Billings, above n 34, 231. 137 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61], (Allsop CJ, Griffiths and Wigney JJ). 138 [2014] FCAFC 38. 139 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [17]-[18] (Allsop CJ, Katzmann J), [177]-[179] (Buchanan J); see also NBNB v Minister for Immigration and Border Protection 220 FCR 44. 140 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [164]-[167] and [178] (Buchanan J), [7]-[10] (Allsop CJ, Katzmann J). 141 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [43] (Buchanan J) (Allsop CJ and Katzmann J agreeing).

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refoulement obligations was enlivened because the applicant was an Iranian national142 who, as a Sunni

Kurd, had been accused of the capital crime of apostasy in Iran.143 Australia had conducted an

Independent Protection Assessment of the applicant in which the assessor had found that the applicant

was a person to whom Australia owed protection obligations.144 Due to Australia’s obligations under

the Refugee Convention, The Court held that the applicant could not be returned to Iran145 and that this

fact would prevent his removal.146 As a result, the Full Court engaged in a discussion of what would

face the applicant after the refusal of his visa to determine what the legal consequence of the decision

would be.

The Full Court found that the legal consequence of the cancellation decision in the case of NBMZ was

indefinite detention in Australia. To reach this conclusion the Court considered ss 196, 189 and 198 of

the Migration Act and read them consistently with the decision of the High Court147 in Al-Kateb v

Godwin (‘Al-Kateb’).148 Section 198 of the Migration Act provides that an officer must remove an

unlawful non-citizen from Australia as soon as is “reasonably practicable”.149 Section 189 of the

Migration Act authorises an officer to detain an unlawful citizen150 and s 196 requires that the individual

remains in detention until he or she is removed from Australia.151 The Full Bench of the High Court in

Al-Kateb considered the relationship between these three provisions.152 The Court found that these

sections allowed for the indefinite detention of a non-citizen if removal from Australia was not

142 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [2] (Allsop CJ, Katzmann J), [37] (Buchanan J). 143 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [2] (Allsop CJ, Katzmann J). 144 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [40]-[41] (Buchanan J) (Allsop CJ, Katzman J agreeing). 145 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [2]-[3] (Allsop CJ, Katzmann J), [37], [121]-[122] and [135]-[139] (Buchanan J). 146 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [95]-[96] (Buchanan J), [13]-[14] (Allsop CJ and Katzman J): Citing NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 222 CLR 16 [22]-[23] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan, Heydon JJ)(Kirby J agreeing); Plaintiff M70/2001 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [92]-[94] (Gummow, Hayne, Crennan, Bell JJ); Plaintiff M47/2012 v Director General of Security and Ors [2012] 251 CLR 1 [39] (French J), [99]-[100] (Gummow J), [401] (Crennan J). 147 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [106] (Buchanan J), [17] (Allsop CJ and Katzmann J): Citing Al-Kateb v Godwin [2004] 219 CLR 562. 148 [2004] 219 CLR 562. 149 Migration Act 1958 (Cth), s 198. 150 Migration Act 1958 (Cth), s 189. 151 Migration Act 1958 (Cth), s 196. 152 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [106] (Buchanan J), [17] (Allsop CJ and Katzmann J): Citing Al-Kateb v Godwin [2004] 219 CLR 562.

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reasonably practicable in the foreseeable future.153 In NBMZ the Court found that they were bound by

the decision in Al-Kateb.154 The Court held unanimously that the applicant in NBMZ would not be

removed from Australia in breach of Australia’s non-refoulement obligations,155 making removal of the

applicant unworkable.156 As such, the legal outcome of the decision to refuse the applicant a visa was

indefinite detention.157 This affected the discretion to be exercised by the decision maker by requiring

the decision maker to consider the impact that indefinite detention would have on the applicant.158

Alfie’s Application

Applying the principle as set out in NBMZ, the decision maker in Alfie’s case must consider the legal

outcome of the decision to revoke the cancellation of Alfie’s visa. In doing so, the decision maker must

determine what the legal outcome of the revocation decision is. This involves an analysis of Alfie’s

circumstances. Alfie is statute barred from applying for a further visa in Australia if his visa is cancelled.

This is due to the operation operation of s 501E which states that a non-citizen cannot apply for another

visa, other than a protection visa, after refusal or cancellation under s 501.159 Additionally, Alfie is

statute barred from applying for a protection visa by the operation of s 48A of the Migration Act which

states that an applicant cannot apply for a protection visa after a refusal or cancellation of a protection

visa.160 This leaves Alfie with no option to apply for a further visa in Australia and so he will be an

unlawful non-citizen subject to the operation of ss 189, 196 and 198. As a result, the legal consequence

of the decision is either removal from Australia or indefinite detention.161

153 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [106] (Buchanan J), [17] (Allsop CJ and Katzmann J): Citing Al-Kateb v Godwin [2004] 219 CLR 562. 154 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [108] (Buchanan J), [3] (Allsop CJ and Katzmann J). 155 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [95]-[96] (Buchanan J), [13]-[14] (Allsop CJ and Katzmann J): Citing NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 222 CLR 16 [22]-[23] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan, Heydon JJ)(Kirby J agreeing); Plaintiff M70/2001 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [92]-[94] (Gummow, Hayne, Crennan, Bell JJ); Plaintiff M47/2012 v Director General of Security and Ors [2012] 251 CLR 1 [39] (French J), [99]-[100] (Gummow J), [401] (Crennan J). 156 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [121]-[122] and [135]-[139] (Buchanan J), [3] (Allsop CJ, Katzmann J). 157 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [169] and [177] (Buchanan J), [3] (Allsop CJ, Katzmann J). 158 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [164]-[167] and [178] (Buchanan J), [7]-[10] (Allsop CJ, Katzmann J). 159 Migration Act 1958 (Cth), s 501E. 160 Migration Act 1958 (Cth), s 48A. 161 See, eg, NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 where the applicant was also barred from a further visa application.

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The decision maker in Alfie’s case exercised their discretion with this outcome in mind. In deciding

whether to revoke the cancellation decision, the decision maker acknowledged that Alfie is owed non-

refoulement obligations by Australia. The decision maker then considered that Alfie will probably face

indefinite detention in Australia if the mandatory cancellation decision is not revoked. The decision

maker ultimately decided that, although Alfie is likely to suffer adverse consequences from detention,

the cancellation decision should not be revoked due to the violent and repeated nature of Alfie’s crimes

and the lack of mitigating circumstances in his case. Alfie’s visa remains cancelled and he is, from this

point, an unlawful non-citizen in Australia although he is owed non-refoulement obligations by

Australia. Alfie is statute barred from making any further visa application in Australia and he has no

further opportunity to raise Australia’s non-refoulement obligations to a decision maker to prevent his

removal. Alfie’s case will be picked up again in Chapters VII and VIII where the mechanism for his

removal from Australia and the potential avenues for preventing his removal will be explored.

(b) Principle 2: The Practical Consequence of the Decision

The second principle is derived from the case of Cotterill v Minister for Immigration and Border

Protection (‘Cotterill’)162 and adds to the first principle. It clarifies that the decision maker must

consider the practical outcome of the decision as well as the legal outcome.163 In Cotterill the applicant

suffered a combination of serious health concerns which prevented the applicant from flying.164 The

Full Court of the Federal Court found that the Minister had fallen into jurisdictional error by failing to

consider that the applicant may face indefinite detention as a result of not being to fly.165 This decision

was made by analogy to NBMZ,166 however it extended the application of the principle in NBMZ to the

practical effect of the applicant’s circumstances.167

162 [2016] 150 ALD 252. 163 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61(e)] and [56] (Allsop CJ, Griffiths and Wigney JJ): Citing Cotterill v Minister for Immigration and Border Protection [2016] 150 ALD 252, [123] and [131] (Kenny and Perry JJ), [107] (North J). 164 Cotterill v Minister for Immigration and Border Protection [2016] 150 ALD 252, [41] (North J). 165 Cotterill v Minister for Immigration and Border Protection [2016] 150 ALD 252, [123] and [131] (Kenny and Perry JJ), [107] (North J). 166 Cotterill v Minister for Immigration and Border Protection [2016] 150 ALD 252, [132] (Kenny and Perry JJ), [104] (North J). 167 Cotterill v Minister for Immigration and Border Protection [2016] 150 ALD 252, [132] (Kenny and Perry JJ), [106] (North J).

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(c) Principle 3: The Applicant’s Ability to Apply for Another Visa

The third principle was formulated by the Full Court of the Federal Court in Ayoub v Minister for

Immigration and Border Protection (‘Ayoub’).168 In this decision the Court distinguished the earlier

case of NBMZ. As described above, the applicant in NBMZ was statute barred from applying for a

protection visa.169 In those circumstances the decision maker was required to consider the consequences

of the decision to cancel the visa which were removal or indefinite detention. However, in Ayoub the

applicant was not prevented from applying for a protection visa following the cancellation decision.170

In this case, the Full Court found that Australia’s non-refoulement obligations and the prospect of

indefinite detention were not mandatory relevant considerations.171 The Full Court reasoned that

Australia’s non-refoulement obligations would be considered in a later protection visa application172

and this made it unnecessary to consider them until that point. The Full Court stated that in this varied

circumstance:

Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.173

To reach this determination The Court built on the principle in NBMZ by distinguishing that case to

take account of a variation in factual circumstances.174 The decision in Ayoub moves consideration of

Australia’s non-refoulement obligations to a ‘different step in the statutory scheme’175 and is reliant on

the understanding that an application for a Protection Visa involves a consideration of Australia’s non-

168 (2015) 231 FCR 513. The Full Court, constituting Flick, Griffiths and Perry JJ, delivered a joint judgement. 169 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [47] (Allsop CJ, Griffiths and Wigney JJ): Citing NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1. 170 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [45] (Allsop CJ, Griffiths and Wigney JJ): Citing Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [28] (Flick, Griffiths and Perry JJ). 171 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [28] (Flick, Griffiths and Perry JJ). 172 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [19], [28] (Flick, Griffiths and Perry JJ). 173 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [19] (Flick, Griffiths and Perry JJ). 174 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [46] (Allsop CJ, Griffiths and Wigney JJ): Citing NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [17] (Allsop CJ and Katzmann J), [177] (Buchanan J). 175 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [45] (Allsop CJ, Griffiths and Wigney JJ).

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refoulement obligations and indefinite detention where relevant.176 This principle can be explained by

comparing the cancellation decision in Betty’s case to Alfie’s case.

Betty’s Application

Betty’s case is distinguishable from Alfie’s because Betty can apply for a protection visa following the

cancellation of her student visa.177 Betty has not previously held a protection visa in Australia because

she arrived in Australia from a safe country and was not a person to whom Australia owed non-

refoulement obligations at that time. Her country is now dangerous and she now has grounds for the

grant of a protection visa.178 Like Alfie, Betty is statute barred from applying for many permanent visas

due to the operation of s 501E.179 However, s 501E does not prevent her from applying for a protection

visa180 and, unlike Alfie, Betty is not statute barred from applying for a protection visa under s 48A

because she has not previously applied for one.181 Like Alfie, Betty raises the fact that Australia may

owe her non-refoulement obligations. She does this in the form of a submission to the decision maker

in which her fears of returning to Cameroon are explained. The decision maker in Betty’s case does not

consider whether Australia owes Betty non-refoulement obligations. The decision maker cancels

Betty’s visa on the basis of her criminal offending. In making this decision, the decision maker explains

in their reasons that Betty can apply for a protection visa and that Australia’s non-refoulement

obligations will be assessed at that future time.

(d) Principle 4: The Impact of Non-Compellable Personal Powers of the Minister

The fourth and final principle relates to non-compellable personal powers of the Minister referred to as

‘alternative management options’.182 These include the power of the Minister to grant a visa to a person

in detention under s 195A or to allow an applicant to apply for a protection visa despite being statute

barred from making an application under s 48A by exercising the power in s 48B.183 Both powers, in ss

176 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61(e)] (Allsop CJ, Griffiths and Wigney JJ). 177 See, eg, COT15 v Minister for Immigration and Border Protection (No 1) [2015] 236 FCR 148 in which the applicant arrived in Australia on a child visa then raised possible non-refoulement obligations when the cancellation decision reached the tribunal stage. The applicant was not statute barred from applying for a protection visa and non-refoulement was not a mandatory relevant consideration in the cancellation decision. 178 See generally Sur Plase Refugees. 179 Migration Act 1958 (Cth), s 501E. 180 Migration Act 1958 (Cth), s 501E(2). 181 Migration Act 1958 (Cth), s 48A. 182 See eg, DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [8] (North ACJ); NKWF v Minister for Immigration and Border Protection [2018] FCA 409 [30] (Siopis J). 183 Migration Act 1958 (Cth), s 48B.

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48B and 195A, provide a mechanism by which the Minister can intervene at the conclusion of a visa

cancellation to ameliorate the possibility of someone being removed or held in indefinite detention.

Section 195A can operate once a non-citizen is placed in immigration detention following a visa

cancellation to allow the Minister to prevent the non-citizens’ removal or detention by granting them a

visa. Additionally, s 48B can operate in cases like Alfie’s to allow a non-citizen to apply for a protection

visa despite him being statute barred from making an application. If successful, the non-citizen will

then not be subject to detention or removal. However, the possibility that the Minister may choose to

use these powers is a matter of speculation.184 For this reason, a decision maker under s 501 is to assume

that the consequence of their decision is removal or indefinite detention and weigh this outcome in

exercising their discretion.185 Unless there exists some material which indicates a real possibility that

the Minister is considering exercising his/her personal powers in favour of the applicant,186 then it

cannot be assumed that the non-citizen will receive a visa at some future time.187

The principles described in these cases establish the scenarios in which a decision maker is required to

consider Australia’s non-refoulement obligations in a s 501 decision. However, the application of these

principles is a complex exercise which requires an understanding of all the cases discussed in this

chapter.188 A cogent expression of these principles is provided in Ministerial Direction 65 in which the

principles are explained for decision makers exercising powers under s 501. The Ministerial Direction

is binding on decision makers exercising discretion under s 501 unless the contents of the Direction are

inconsistent with the Migration Act.189 As such, the Ministerial Direction acts to reflect the principles

in the case law to guide decision makers in applying those principles.

2 Policy: Ministerial Direction 65

The four principles described above have been developed through the case law and are reflected in

Ministerial Direction 65.190 Ministerial Direction 65 was issued by the then Minister for Immigration

184 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [4] (Allsop CJ and Katzmann J), [128]-[131] (Buchanan J). 185 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61(f)] (Allsop CJ, Griffiths and Wigney JJ). 186 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61(f)] (Allsop CJ, Griffiths and Wigney JJ); NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [4]. 187 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [4] (Allsop CJ and Katzmann J), [131] (Buchanan J). 188 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [61] (Allsop CJ, Griffiths and Wigney JJ). 189 Migration Act 1958 (Cth), s 499. 190 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014. The Ministerial Direction is a policy document issued by the Minister and does not carry the

27

and Border Protection, Scott Morrison in 2014.191 Ministerial Directions are issued under the authority

of s 499 of the Migration Act192 and are binding on all decision makers under s 499(2A) of the Migration

Act.193 The purpose of the direction is to “guide decision-makers performing functions or exercising

powers under section 501 of the Migration Act”.194 It provides important guidance to decision makers

which is not provided by the wording of the Migration Act itself.195 The direction is the most recent

iteration of a series of directions in relation to the exercise of power under s 501.196

The Direction lists Australia’s international non-refoulement obligations as one of the ‘other

considerations’ to be considered when exercising a discretion under s 501, it does not list them as a

‘primary consideration’.197 The Direction then provides guidance on how and when to consider

Australia’s non-refoulement obligations. Each of the directions discussed are repeated in three places

in Ministerial Direction 65 so that the guidance is expressed in relation to each of the three types of

discretionary decision governed by the Direction (cancellation, refusal and revocation decisions). At

paragraphs 10.1(5)-(6), 12.1(5)-(6) and 14.1(5)-(6) the Direction states:

If … the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa…

In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the [Migration] Act means that, if the person’s Protection visa application

weight of law. It is not binding on the Minister or the assistant Minister, but only on a delegate of the Minister; See Migration Act 1958 (Cth), s 499(2); See also, Chiam, above n 106. 191 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, 1. 192 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [6.1(4)]. 193 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [6.1(4)]. 194 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [6.1(4)]. 195 Chiam, above n 106, 33. 196 Ibid. 197 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [10.1], [12.1], and [14.1].

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were refused, they would face the prospect of indefinite immigration detention.198

This direction reflects the first principle from NBMZ described above.199 Additionally, at paragraph

10.1(4), then again in paragraphs 12.1(4) and 14.1(4) the Direction States:

Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa should be cancelled.200

This is consistent with the third principle described above.201 Combined, these directions summarise the

legal principles articulated by the courts in a succinct, clear and binding manner.

C Concluding Remarks

Although Australia’s non-refoulement obligations form a critical part of the exercise of discretion under

s 501, consideration of Australia’s non-refoulement obligations does not play a part in every s 501

decision. The analysis of both Alfie and Bettie’s applications alongside one another illustrate that the

two applications are distinguishable by the ability of the non-citizen to apply for a protection visa. This

factor differentiates a case in which Australia’s non-refoulement obligations will be considered, as in

Alfie’s case, and a case in which they will not, as in Betty’s case. For cases in which the non-citizen

can apply for a protection visa, consideration of Australia’s non-refoulement obligations is deferred to

the future visa application. This creates a link between the exercise of discretion under s 501 and the

future consideration of a non-citizen’s case under s 36.

198 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [10.1(5)-(6)], [12.1(5)-(6)] and [14.1(5)-(6)]. 199 See Page 20 above. 200 Ministerial Direction 65 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [10.1(4)], [12.1(4)], and [14.1(4)]. 201 See Page 24 above.

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IV THE LINK BETWEEN S 36 AND S 501: A VITAL ASSUMPTION

The four principles explained above exempt a decision maker from considering Australia’s non-

refoulement obligations under s 501 if the non-citizen is able to apply for a protection visa under s 36.

This chapter explores the relationship between s 501 decision making and the ability to apply for a

protection visa under s 36. This chapter will explain how the subject matter, scope and purpose of the

Migration Act informs the principles described above. Additionally, this chapter will explore the factual

assumption that Australia’s non-refoulement obligations will necessarily be considered in a s 36

protection visa application.202

A Subject Matter, Scope and Purpose of the Act

The cases described in Chapter II consider what constitutes a mandatory relevant consideration in s 501

decisions according to the approach explained by Mason J in Minister for Aboriginal Affairs v Peko-

Wallsend Ltd (‘Peko-Wallsend’).203 In Peko-Wallsend Mason J states that the “factors which the

decision-maker is bound to be consider”204 if not explicitly stated “must be determined by implication

from the subject matter, scope and purpose of the Act”.205

Within the Migration Act, s 36 is a provision introduced to give consideration to Australia’s non-

refoulement obligations by codifying Australia’s interpretation of those obligations.206 The Migration

Act responds to Australia’s international non-refoulement obligations by granting protection visas under

s 36. This reading of the role of s 36 is expressed by the Full Bench of the High Court in Plaintiff

M61/2010E v Commonwealth (‘Plaintiff M61’)207 where the unanimous judgement states:

[T]he text and structure of the [Migration] Act proceed on the footing that the [Migration] Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason208

202 See generally, Billings, above n 34, 231. 203 [1986] 162 CLR 24. 204 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24, [39] (Mason J). 205 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24, [39] (Mason J): See also Swan Hill Corporation v Bradbury (1937) 56 CLR 746 [757]-[758] (Dixon J). 206 See Chapter II: The Role of s 36 in the Migration Act. 207 (2010) 241 CLR 319. 208 Plaintiff M61/2010E v Commonwealth (2010) 241 CLR 319, [27] (Gummow, Hayne, Heydon, Crennan, Kiefel, and Bell JJ).

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The Full Court of the Federal Court in COT15 v Minister for Immigration and Border Protection (No

1) (‘COT15’)209 engaged in a discussion of the subject matter, scope and purpose of the Migration Act

in which they referred to the judgements of Ayoub, NBMZ, and Plaintiff M61.210 The Full Court states:

The subject matter, scope and purpose of the [Migration] Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The [Migration] Act contemplates that those obligations will be considered in the context of a protection visa application.211

This statement was later endorsed by the Full Court of the Federal Court in Le.212

The role of s 36 in codifying Australia’s interpretation of international non-refoulement obligations

makes it uniquely suited to the task of providing a consideration of Australia’s non-refoulement

obligations in any given case. Within the scheme of the Migration Act, it is more suited to that

determination than s 501 which serves a different role in the Migration Act. As such, it is a sound

application of Mason J’s reasoning to defer consideration of Australia’s non-refoulement obligations

forward to s 36 in cases where this is possible. However, this reading of the Act does assume that

Australia’s non-refoulement obligations will be considered by a s 36 decision maker.

B Factual Assumption

The Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection

(‘BCR16’)213 identified the factual assumption relied on by s 501 decision makers as being an

assumption that “non-refoulement obligations will be examined during the protection visa

determination process”.214 In their majority decision Bromberg and Mortimer JJ held that the

assumption that non-refoulement would be considered during a s 36 determination was wrong as a

matter of law.215 Their decision sparked a number of cases in the Federal Court which have examined

209 [2015] 236 FCR 148. 210 COT15 v Minister for Immigration and Border Protection (No 1) [2015] 236 FCR 148, [33]-[38] (North, Collier and Flick JJ). 211 COT15 v Minister for Immigration and Border Protection (No 1) [2015] 236 FCR 148, [38] (North, Collier, and Flick JJ). 212 Minister for Immigration and Border Protection v Le [2016] 244 FCR 56, [49], [41] (Allsop CJ, Griffiths and Wigney JJ), [86] (Bromberg J); See also BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, [61] (Bromberg and Mortimer JJ). 213 (2017) 248 FCR 456. 214 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, [65] (Bromberg and Mortimer JJ) 215 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, [37] (Bromberg and Mortimer JJ); Decision Affirmed by Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC

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this assumption in detail.216 The flaw which led to the Full Court’s decision has since been remedied

by Ministerial Direction 75.217 However, there still remains some questions as to whether the

introduction of the Ministerial Direction is a sufficiently strong remedy to ensure the soundness of the

factual assumption.218

The failure of the factual assumption identified by the Full Court of the Federal Court in BCR16 related

to the order of consideration under s 36.219 The majority found that the Migration Act did not require a

decision maker to consider the elements of s 36 in any prescribed order.220 Section 65 of the Migration

Act states that the Minister is to refuse the grant of the visa if the Minister is not satisfied that the

applicant meets all of the criteria prescribed by the Migration Act or the Migration Regulations 1994

(Cth) (‘Migration Regulations’).221 This includes a number of ‘public interest criteria’222 contained in

Schedule 4 to the Migration Regulations.223 The public interest criteria are a set of requirements which

relate to character and security concerns. These criteria must be met before a visa is granted otherwise

the Minister must refuse the visa application under s 65.224 The character element of the public interest

criteria requires that the non-citizen is able to pass the ‘character test’225 which is contained in s 501(6)226

of the Migration Act.227

68 (Robertson, Moshinsky and Bromwich JJ); Special leave to appeal this decision to the High Court has been dismissed: Minister for Immigration and Border Protection v BCR 16 [2017] HCA Trans 240. 216 Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J); Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J); Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Farrel J); DOB18 v Minister for Home Affairs [2018] FCA 1523 (Griffiths J). 217 Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J); applied in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J); Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Farrel J); and DOB18 v Minister for Home Affairs [2018] FCA 1523 (Griffiths J). 218 Billings, above n 34. 219 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (Mortimer and Bromberg JJ, Davies J dissenting). 220 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 [36]-[37] (Mortimer and Bromberg JJ, Davies J dissenting). 221 Migration Act 1958 (Cth), s 65(1)(a)(ii). 222 The provisions in this regulation apply by reason of the operation of cl 866.225 of sch 2 to Migration Regulations 1994 (Cth): See BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, [43] (Bromberg and Mortimer JJ), [126] (Davies J); Ali v Minister for Immigration and Border Protection [2018] FCA 650, [14] (Flick J). 223 Migration Regulations 1994 (Cth) sch 4. 224 Migration Act 1958 (Cth), s 65(1)(b). 225 Migration Regulations 1994 (Cth) sch 4, cl 4001. 226 See Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Refugee and Humanitarian, Protection Visas – all application processing guidelines, ch 4, [4.57.2]. 227 See Chapter III Subsection A: The Character Cancellation Provisions for a detailed description of the character test in Migration Act 1958 (Cth), s 501(6).

32

The concern raised by the Full Court in BCR16 was that decision makers could refuse an application

and “never reach an active consideration of the criteria in s 36(2)(a) and (aa)”.228 This could come about

in two ways. Firstly, the decision maker may consider s 65, and thus the character criteria in the

Migration Regulations, before considering the claims under s 36(2)(a) and (aa) of the Migration Act. In

this instance, the decision maker could refuse the visa application based on a failure of the non-citizen

to satisfy the character test without making a finding as to Australia’s non-refoulement obligations.

Secondly, it is open to the decision maker to consider the exclusionary principles contained in ss 36(1C)

and 36(2C)(b) before considering the inclusionary principles in s 36(2)(a) and (aa).229 In this case, again,

the decision maker could refuse the application on the basis that the applicant is excluded from the grant

of a protection visa, without assessing Australia’s non-refoulement obligations.230

1 Effect for s 501 Decision Makers

The decision in BCR16 was judicial review of a s 501 revocation decision made by the Assistant

Minister.231 The applicant had his visa cancelled under s 501(3A), a mandatory cancellation decision.232

The applicant raised fears for his safety on return to Lebanon as a reason why the mandatory

cancellation decision should be revoked.233 However, the Assistant Minister decided not to revoke the

cancellation decision which resulted in the applicant losing his visa.234 The applicant was not statute

barred from making an application for a protection visa under s 36 which led the Assistant Minister to

find that a consideration of his claims that Australia owed him non-refoulement obligations was

unnecessary in the revocation decision.235 The applicant sought judicial review of the revocation

228 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, [44] (Bromberg and Mortimer JJ) quoted in Billings, above n 34, 227. 229 For cases in which a decision maker under s 36 has considered character criteria before other criteria see, eg, Mazid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1641 and Lam v Minister for Immigration and Multicultural Affairs (2000) 104 FCR 454 cited in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, [52]. 230 For further explanation on how an applicant may be refused a protection visa on character grounds alone, see Steyn v Minister for Immigration and Border Protection [2017] FCA 1131, [11] (Jagot J). 231 Appeal from BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 (Moshinsky J). 232 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [100] (Davies J) (Bromberg and Mortimer JJ agreeing). 233 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [100] (Davies J) (Bromberg and Mortimer JJ agreeing), [22] (Bromberg and Mortimer JJ): Citing s 501CA(4)(b)(ii). 234 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [1] (Bromberg and Mortimer JJ). 235 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [18] (Bromberg and Mortimer JJ), [122] (Davies J).

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decision and, although he was unsuccessful at first instance, the review was successful before the Full

Court of the Federal Court.236

The Assistant Minister had made a decision consistent with the cases discussed in Chapter III which

rely on the assumption that s 36 will provide a consideration of Australia’s non-refoulement obligations.

The majority in BCR16 critiqued the basis on which the Minister had sought to avoid consideration of

Australia’s non-refoulement obligations in the revocation decision by focusing on the validity of the

assumption made by the Assistant Minister.237 The majority held that the decision of the Assistant

Minister indicated “a connection … between the premise (that the appellant has capacity to apply for a

protection visa) with the Assistant Minister’s conclusion (that it was unnecessary to determine non-

refoulement)” (parenthesis in original).238 In doing so, the majority identified the assumption and stated

“[t]hat connection was said to be the assumption that Australia’s non-refoulement obligations will be

examined during the protection visa determination process”.239 The majority found that the lack of a

prescribed order by which the elements of s 36 were determined rendered this assumption incorrect in

fact and law.240 On this basis, the Assistant Minister had made an error in the revocation decision under

s 501.241 This clarified that s 501 decision makers could not rely on the assumption that Australia’s non-

refoulement obligations would be considered in s 36 protection visa applications.

2 Has this Flaw Been Remedied?

The position of the Federal Court has shifted since the decision in BCR16. The Minister issued

Ministerial Direction 75 in response to BCR16 in September 2017.242 The Direction includes a

prescribed order of considerations for decision makers in s 36. The Direction states “The decision-

maker must first assess the applicant’s refugee claims with reference to s 36(2)(a) and any

complementary protection claims with reference to section 36(2)(aa) before considering any character

236 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456 (Bromberg and Mortimer JJ, Davies J dissenting). 237 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [34] (Bromberg and Mortimer JJ). 238 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [35] (Bromberg and Mortimer JJ). 239 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [35] (Bromberg and Mortimer JJ). 240 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456 [91] (Bromberg and Mortimer JJ). 241 BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456 [91] (Bromberg and Mortimer JJ). 242 Ali v Minister for Immigration and Border Protection [2018] FCA 650, [18] (Flick J).

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or security concerns.”243 The introduction of Ministerial Direction 75 was considered by Flick J in Ali

v Minister for Immigration and Border Protection (‘Ali’).244 Justice Flick’s reasoning was then adopted

and applied by Logan J in Greene v Assistant Minister for Home Affairs (‘Greene’).245 In both cases the

applicants made arguments along the lines of BCR16. It was argued that a decision to defer

consideration of non-refoulement from a s 501 decision was erroneous because non-refoulement

obligations may not be considered under s 36. In both cases the Court found that the decision maker

had made no such error. Rather, the decision maker had referred to the new Direction 75 and thus had

understood,246 correctly, that Australia’s non-refoulement obligations would be considered at s 36 as

established by Ministerial Direction 75.247

In a postscript to his 2018 article Billings states that references to policy and guidelines are not sufficient

to remedy the failures identified in BCR16.248 He provides two reasons. The first is that the prescribed

order of assessment in the policy and guidelines is non-binding.249 This argument has since been raised

by the applicant in DOB18 v Minister for Home Affairs (‘DOB18’)250 who brought attention to the fact

that a Ministerial Direction is not binding on the Minister or Assistant.251 The applicant submitted that

it was open to the Minister to personally consider and determine a s 36 application and that, in this

instance, the Minister would not be bound to make the decision in accordance with Ministerial Direction

75.252 This ground was unsuccessful and Griffiths J found that the Minister had contemplated that the

243 Minister for Immigration and Border Protection (Cth), Direction [No 75] – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2c)(b), 6 September 2017, Div 2. 244 [2018] FCA 650: applied by Logan J in Greene, then by Farrel J in Turay v Assistant Minister for Home Affairs [2018] FCA 1487 and Griffiths J in DOB18 v Minister for Home Affairs [2018] FCA 1523. 245 [2018] FCA 919. 246 The Procedures Advice Manual 3 provides guidelines for a prescribed order of considerations. It is states that it is the policy of the department to asses whether the applicant meets the criteria in s 36(2)(a) or s 36(2)(aa) prior to consideration of the requirements in s 36(1C). It further states that if the applicant meets all of these criteria, then the decision maker may consider the public interest criteria in PIC 4001: Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Refugee and Humanitarian, Protection Visas – all application processing guidelines, pt 12, [4.53.2]. However, these guidelines are not binding on any decision maker: See generally Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92, [63]-[64] (Perry J). Additionally, these guidelines were not referred to by any of the decisions cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650, [18] (Flick J); Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J), Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Farrel J), or DOB18 v Minister for Home Affairs [2018] FCA 1523 (Griffiths J). As such, I have decided against going into these policy statements. 247 Greene v Assistant Minister for Home Affairs [2018] FCA 919, [19] (Logan J); Ali v Minister for Immigration and Border Protection [2018] FCA 650 [20], [30] (Flick J). 248 Billings, above n 34, 233. 249 Billings, above n 34, 233. 250 [2018] FCA 1523. 251 DOB18 v Minister for Home Affairs [2018] FCA 1523, [22], [26] (Griffiths J); Migration Act 1958 (Cth), s 499(2). 252 DOB18 v Minister for Home Affairs [2018] FCA 1523, [22], [26] (Griffiths J).

35

protection visa decision would be made by the Department and not by himself personally.253 However,

in making this finding Griffiths J expressed some hesitation stating “[s]econdly, and not without some

hesitation, I accept the Minister’s submission that the fact that Direction 75 does not bind him personally

has no material consequence in this proceeding”.254 The applicant in DOB18 to the potential for a

decision to be made at the department that does not follow the prescribed order of assessment in

Ministerial Direction 75. Whether this happens or whether this plays part in future decisions remains to

be seen. Billing’s second criticism was that the proposed order prescribed by Ministerial Direction 75

is not dictated by the scheme of the Migration Act and cannot be used to avoid the implied legal

requirement to correctly understand the Migration Act’s operation and effects.255 This criticism has not

been explored by the recent cases mentioned and may be a discussion explored in future case law or

commentary.


The case law and Ministerial Direction introduced in Chapter III allows s 501 decision makers to defer

consideration of Australia’s non-refoulement obligations from s 501 decisions, to s 36 by not

considering Australia’s non-refoulement obligations in cases where an applicant can apply for a visa

under s 36. This practice of deferring consideration of Australia’s non-refoulement obligations is based

on two things; the subject matter, scope and purpose of the Migration Act; and the factual assumption

that Australia’s non-refoulement obligations will be considered in a s 36 decision. Section 36 was

introduced to give consideration to Australia’s non-refoulement obligations. As such, s 36 is more

appropriate for a consideration of Australia’s non-refoulement obligations than s 501. The courts have

read the mandatory relevant considerations of a decision maker in s 501 in light of the subject matter,

scope and purpose of the Migration Act and determined that s 501 decision makers should not be bound

to consider Australia’s non-refoulement obligations when it is open to the non-citizen to apply for a

protection visa under s 36. Additionally, although the factual assumption that Australia’s non-

refoulement obligations will be considered under s 36 has been the subject of criticism, it is the current

view of the Federal Court that it is a sound assumption.

253 DOB18 v Minister for Home Affairs [2018] FCA 1523, [28] (Griffiths J). 254 DOB18 v Minister for Home Affairs [2018] FCA 1523, [24] (Griffiths J). 255 Billings, above n 34, 233: Citing Steyn v Minister for Immigration and Border Protection [2017] FCA 1131, [18]-[19]; Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] 256 FCR 50, [56]-[64]; BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288, [60]-[67]. See also Chiam, Christopher, ‘Characterising Migration Directions as Legislative Instruments: Implications for Judicial Review’ (2018) 24 Australian Journal of Administrative Law 234 in which the author discusses the use of Ministerial Directions as legislative instruments in relation to s 501 decisions; See also BMX15 v Minister for Immigration and Border Protection [2016] 244 FCR 153 in which Bromberg J states, obiter dicta at [86], that referring consideration of Australia’s non-refoulement obligations to s 36 decisions could result in ‘practical unfairness’.

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PART B

V APPLICATION UNDER S 36: DISCONNECT BETWEEN SS 36(1C)

AND 36(2C)(b) AND INTERNATIONAL LAW

The previous two chapters outlined the validity of the practice of deferring consideration of Australia’s

non-refoulement obligations from s 501 decisions to s 36 decisions. This chapter moves on to the

determination under s 36 to examine the fullness and thoroughness of the consideration of Australia’s

non-refoulement obligations provided by that provision. Non-refoulement at international law is not

absolute. The Refugee Convention contains exclusions from the benefit of non-refoulement obligations

through Article 33(2) of the Convention.256 The provisions in s 36 are intended to codify Australia’s

international non-refoulement obligations including the exclusionary principles contained in Article

33(2).257 This chapter engages in a comparison of s 36 and the international law. The comparison will

be made using the example of Charlie, the third hypothetical applicant. Charlie’s application illustrates

that s 36 does not accurately reflect Australia’s non-refoulement obligations at international law. This

results in Charlie being refused a protection visa despite being owed non-refoulement obligations by

Australia.

As introduced in Chapter II, non-refoulement obligations vary between the Refugee Convention and

the CAT and ICCPR. Most notably, non-refoulement obligations under the Refugee Convention are

subject to exclusionary principles for non-citizens of bad character while non-refoulement obligations

under the CAT and ICCPR are not. For this reason, the comparison of s 36 and international law will

be considered in two parts. Firstly, the exclusion from the grant of a protection visa under s 36 will be

compared to the exclusion from the protection of non-refoulement obligations contained in Article 33(2)

of the Refugee Convention. Secondly, the application of exclusion clauses to the complementary

protection criteria in s 36 will be examined in light of the observation that Charlie is owed non-

refoulement obligations under the CAT and ICCPR to which there is no exception.

256 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 33(2). 257 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [12]. See also Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, Ch 7, [7.52], [7.3]-[7.34].

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A The Refusal of Charlie’s Application for a Protection Visa in Domestic Law

The refusal of Charlie’s application for a protection visa under s 36 is crucial to the comparison between

domestic legislation and international law. As such, this section will explain the process by which

Charlie’s protection visa application is refused. Charlie is an example of a non-citizen whose case was

not considered under s 501 before his application for a protection visa. For this reason, his protection

visa application was the first opportunity for a decision maker to have regard to Australia’s obligations

of non-refoulement towards him. Charlie arrived in Australia by boat after travelling from Afghanistan.

He landed on Christmas Island and was placed in immigration detention. While Charlie was in

immigration detention, he was involved in a riot during which he damaged property inside the detention

centre.258 He pled guilty and was convicted of damage to Commonwealth property. Charlie was

sentenced to a 12 month good behaviour bond and ordered to pay for the damage caused.259

While Charlie was in detention an Independent Protection Assessor260 found that Charlie is a person to

whom Australia owes non-refoulement obligations.261 On the recommendation of this assessor, the

Minister allowed Charlie to apply for a protection visa under s 36 of the Migration Act.262 In determining

Charlie’s application, the decision maker looked first to whether Charlie met the criterion in s 36(a) or

36(aa).263 These are the positive criteria for the grant of a protection visa.264 The decision maker

determined that Charlie is a refugee under the definition contained in s 5H.265 As such, he met the

criteria for the grant of a protection visa under s 36(a).266 The decision maker additionally found that

258 See NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44. 259 NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44, [12] (Buchanan J, Allsop CJ and Katzmann J agreeing). 260 See, generally, Joint Standing Committee on Australia’s Immigration Detention Network, Parliament of Australia, Final Report (2012), Ch 6. 261 Charlie is an amalgamation of applicants in NBNB: for details of the assessment of those applicants by an Independent Protection Assessor see NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44, [13], [23], [36], [45], [53], [61] (Buchanan J, Allsop and Katzmann JJ agreeing); see generally Joint Standing Committee on Australia’s Immigration Detention Network, Parliament of Australia, Final Report (2012), Ch 6. 262 By exercising the power of the Minister under Migration Act s 46A; see also NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44 [29], [38], [47], [55], [63] (Buchanan J)(Allsop and Katzmann JJ agreeing). 263 This is the order of assessment laid out in both Ministerial Direction 65 and PAM3: Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014; Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Refugee and Humanitarian, Protection Visas – all application processing guidelines, pt 12, [4.53.2]. 264 See Chapter II for information about these provisions. 265 Migration Act 1958 (Cth), s 5H. See Chapter II for an introduction to this provision. 266 Migration Act 1958 (Cth), s 36(2)(a).

38

Charlie was owed non-refoulement obligations under the CAT and ICCPR making him eligible for the

grant of a protection visa under s 36(aa).267

Following the determination that Charlie met the positive criteria for the grant of a protection visa, the

decision maker moved on to look at the exclusionary principles contained in ss 36(1C) and 36(2C)(b).

Sections 36(1C)(b) and 36(2C)(b)(ii)268 require the decision maker to determine whether Charlie is a

“danger to the Australian community having been convicted by final judgement of a particularly serious

crime”.269 The definition of a particularly serious crime is contained in s 5M of the Migration Act.270 It

states that a particularly serious crime in ss 36(1C)(b) and 36(2C)(b)(ii) can be the commission of either

a serious Australian offence, or a serious foreign offence.271 The definition of a serious Australian

offence is further defined in s 5(1) of the Migration Act as meaning:

“serious Australian offence” means an offence against a law in force in Australia, where:

(a) the offence: (i) involves violence against a person; or (ii) is a serious drug offence; or (iii) involves serious damage to property; or

(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and

(b) the offence is punishable by: (i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years; or (iii) imprisonment for a maximum term of not less than 3 years.

Charlie’s conviction meets this definition of serious Australian offence. Damage to Commonwealth

property meets the criterion in 5(1)(a)(iii). Additionally, the crime for which Charlie is convicted

qualifies as serious under s 5(1)(b) due to the penalty that can be imposed for damaging Commonwealth

property. The determination of whether a crime meets the criterion in s 5(1)(b) requires that the decision

267 The normal process of a protection visa application would involve the decision maker deciding whether the applicant meets the criteria for the grant of a protection visa under s 36(a), and considering the criteria in s 36(aa) only if the applicant is not eligible under s 36(a). This means that a decision maker would be unlikely to make a finding that Charlie is eligible for a protection visa under s 36(aa) alongside their finding in relation to s 36(a). Although not the usual decision making process, it assists with the discussion of the exclusion clauses to look at ss 36(a) and 36(aa) together as the exclusion clauses operate in the same way for both provisions. The distinction is largely immaterial as a case like Charlie’s would meet the criteria in s 36(aa) despite the lack of an express finding to that effect. However, there are examples of the two criteria being considered alongside one another, See, eg, LKQD and Minister for Immigration and Border Protection (Migration) [1918] AATA 2710. 268 Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Policy Refugee and Humanitarian, The Protection Visa Processing Guidelines, Part 13, [4.57.2]: states that provisions in s 36(1C) and 36(2C)(b) are mirror provisions and the same considerations and findings should apply. 269 Migration Act 1958 (Cth), s 36(1C)(b). 270 Migration Act 1958 (Cth), s 5M. 271 Migration Act 1958 (Cth), s 5M.

39

maker have regard to the sentence that may be imposed for that that type of offence, not the punishment

that was actually imposed in the case at hand.272 The maximum sentence for damage to Commonwealth

property is 10 years imprisonment.273 As such, although Charlie was not himself sentenced to a term of

imprisonment for over 3 years, the offence qualifies as a serious Australian offence and thus qualifies

as a particularly serious crime for the purposes of ss 36(1C)(b) and 36(2C)(b)(ii).

The second limb of the exclusion criteria involves a consideration of whether Charlie is a danger to the

Australian community.274 To make this determination the decision maker used a test articulated by

Deputy President Tamberlin QC in WKCG v Minister for Immigration and Citizenship275 and applied

by the Federal Court.276 The decision maker determined whether Charlie posed “a real or significant

risk or possibility of harm to one or more members of the Australian community”. 277 This involves both

a present and forward looking analysis of the danger posed278 and requires the decision maker to take

into account all the circumstance of the case.279 In Charlie’s case the decision maker looked to a past of

mental illness and previous violent behaviour. The decision maker found that Charlie had been unstable

due to psychiatric illness which resulted, at times, in violence towards the people around him.280 On this

basis, the decision maker found that Charlie posed a significant risk of harm to members of the

Australian community and made the finding that this harm could continue to occur in the future.281

Charlie was refused the grant of a protection visa.

272 Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Ch 14 Danger to Australia’s Security or Community of Australia s 36(1C), [14.3]. 273 Crimes Act 1914 (Cth), s 29. 274 This aspect of Charlie’s case differs from the case of NBNB (on which other elements of Charlie’s claim are based). There was no suggestion that any of the 5 applicants in NBNB were a risk to the Australian community; NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44, [81] (Buchanan J, Allsop CJ and Katzmann J agreeing). 275 (2009) 110 ALD 434. 276 See, eg, EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (Collier J). 277 WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434, [31]. 278 WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434: Citing Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, [100]. 279 WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434, [31]. 280 This aspect of Charlie’s case is based on the applicants in LKQD and Minister for Immigration and Border Protection (Migration) [1918] AATA 2710 and MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68. 281 See, eg, LKQD and Minister for Immigration and Border Protection (Migration) [1918] AATA 2710; See also MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68.

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B Comparing the Domestic Provisions to International Law

1 The Refugee Convention

The exclusion from the protection of non-refoulement obligations under the Refugee Convention

applies to non-citizens who pose a threat to the security or community of the country in which they are

seeking refuge.282 This section focuses on the second of two exclusions in Article 33(2). Article 33(2)

states that “The benefit of the present provision [non-refoulement] may not, however, be claimed by a

refugee whom …. having been convicted by a final judgment of a particularly serious crime, constitutes

a danger to the community of that country”.283 This exclusion applies to non-citizens who pose a “threat

to the community of the country”284 and requires two things. Firstly, the non-citizen must be found to

be a “danger to the community”285 and, secondly, the non-citizen must have been convicted of a

“particularly serious crime”.286 This exclusion principle is in place to deal with refugees who may pose

a danger to the receiving state287 or present a future risk to the receiving state.288

To be excluded from the protection of non-refoulement under the Refugee Convention a refugee must

satisfy the exclusionary criteria contained in Article 33(2). However, the seriousness of the

consequences to a refugee being returned to their country combined with the humanitarian nature of

non-refoulement obligations gives rise to the conclusion that this exception must be interpreted

restrictively289 and with particular caution.290 The principles in Article 33(2) were recognised by the

delegates of the Plenipotentiaries on the status of Refugees and Stateless persons to be exceptional in

282 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV (December 2011), 4, 116. 283 Ibid. 284 Ibid. 285 Ibid. 286 Ibid. 287 Ibid. 288 Ibid, 4. 289 United Nations High Commissioner for Refugees, Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees (6 January 2006), 4: Citing Nehemiah Robinson, Convention Relating to the Status of Refugees - Its History, Contents and Interpretation: A Commentary (UNCHR, ed, 1997), 136-137. 290 United Nations High Commissioner for Refugees, UNHCR Note on the Principle of Non-Refoulement (November 1997), 4; Sir Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement (Opinion) [Global Consultations on International Protection/Second Track] (20 June 2001), 159; United Nations High Commissioner for Refugees, Refugee Protection in International Law - UNHCR's Global Consultations on International Protection (2003), 12.

41

nature.291 The inclusion of these provisions was accompanied by reluctance and concern that the

provisions may prejudice the efficiency of the non-refoulement principles as a whole.292 This further

contributes to the view that the exclusion principles should be approached with caution and applied

restrictively.293

The material consideration in establishing whether a non-citizens falls within the exception to non-

refoulement contained in Article 33(2) of the Refugee Convention relates to the danger that a refugee

may pose to the community of the receiving state.294 At international law this requires a number of

considerations. First, the danger to the community must be ‘serious’.295 This finding must be grounded

on an objectively reasonable suspicion based on evidence, and must involve substantial threatened

harm.296 This determination refers to the future danger that the non-citizen poses to the community.297

Although the past actions of the individuals may form part of the determination, the finding must be

forward looking.298 This determination additionally requires a consideration of individual

circumstances and proportionality in balancing the interest of the state with those of the individual

concerned.299 The decision maker must consider the seriousness of the danger posed, the likelihood of

the danger being realised, the imminence of the danger, and the nature and seriousness of the risk of

291 The Convention relating to the status of Refugees was adopted at the Conference of Plenipotentiaries on the Status of Refugees and Stateless persons. As such, the comments of delegates at this conference provide important context to the Refugee Convention and its operation. United Nations Conference of Plenipotentiaries on the Statues of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Sixteenth Meeting, UN doc A/CONF.2/SR.16 (23 November 1951), 8. 292 United Nations High Commissioner for Refugees, Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees (6 January 2006), 4: Citing United Nations Ad Hoc Committee on Refugees and Stateless Persons, Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session, Geneva, 14 August to 25 August 1950, UN doc E/AC.32/8 (25 August 1950), 13; United Nations Ad Hoc Committee on Refugees and Stateless Persons, Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Forteith Meeting Held at the Palais des Nations, Geneva, on Tuesday, 22 August 2950, at 2:30 p.m, UN doc. E/AC.32/SR.40 (22 August 1950), 31; and United Nations Conference of Plenipotentiaries on the Statues of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Sixteenth Meeting, UN doc A/CONF.2/SR.16 (23 November 1951), 8. 293 United Nations High Commissioner for Refugees, Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees (6 January 2006), 4. 294 Sir Elihu Lauterpacht, and Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement (Opinion) [Global Consultations on International Protection/Second Track] (20 June 2001), 181. 295 United Nations High Commissioner for Refugees, Refugee Protection in International Law - UNHCR's Global Consultations on International Protection (2003), 12; See also Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3. 296 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3. 297 Lauterpacht and Bethlehem, above n 294, 164. 298 Ibid. 299 Ibid, 183.

42

refoulement.300 Additionally, the return of the individual must be the last resort available for dealing

with the danger posed to the community.301 These factors make for a high bar that must be satisfied at

international law for a non-citizen to be found to be a danger to the community of the receiving state.

In the domestic legislation there is very little jurisprudence on what constitutes a danger to the

Australian community.302 However, a case like Charlie’s raises questions about whether the bar is as

high in the Australian legislation as it is under the Refugee Convention. Harm caused by psychiatric

illness is likely manageable which raises questions about whether Charlie’s removal is the last resort

available for dealing with the danger he poses. It is questionable whether the harm that Charlie poses is

‘serious’ and whether there is a sufficient ‘likelihood’ of the danger being realised. This is particularly

questionable when these factors are weighed against the seriousness of the risk of refoulement in

Charlie’s case.

The second central element of Article 33(2) of the Refugee Convention exception is the requirement

that the non-citizen is convicted of a particularly serious crime.303 In cases where the conduct does not

meet the requirement of being a particularly serious crime, then the future risk to the community does

not arise for consideration.304 In other words, a risk to the community of the receiving country will not

be sufficient without a finding that the crime concerned is particularly serious in nature. The types of

crime that are likely to be covered by the serious crime definition can range and include inter alia

murder, rape, armed robbery, and arson.305 Under the Refugee Convention a crime, for the purposes of

exclusion, will not be characterised as particularly serious merely because of the nature of the crime. A

finding that the crime is ‘serious’ will depend on the circumstances surrounding the commission of the

crime.306

300 Ibid, 178; United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV (December 2011), 156-157. 301 United Nations High Commissioner for Refugees, Refugee Protection in International Law - UNHCR's Global Consultations on International Protection (2003), 12. 302 McAdam and Goodwin-Gill, above n 37, 237. 303 For examples of a what constitutes a particularly serious crime in Australia see A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 [3]-[5]; and Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95, [100] reversed on other grounds in Minister for Immigration and Multicultural Affairs v Betkoshabeh (1999) 55 ALD 609. However, note that these cases were decided before the legislative changes in 2014 when the content of Article 33(2) was not codified in s 36(1C). 304 Lauterpacht and Bethlehem, above n 294, 183. 305 Ibid, 186: Citing United Nations High Commissioner for Refugees, The Refugee Convention, 1951: The Travaux préparatoires analysed with a Commentary by Dr Paul Weis (1990), 342; McAdam and Goodwin-Gill, above n 37, 238. 306 McAdam and Goodwin-Gill, above n 37, 238.

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This is at odds with the definition of a particularly serious crime in the Australian legislation. Under s

5M of the Migration Act, as discussed earlier in this chapter, the seriousness of the crime committed

involves a determination of the seriousness of the type of crime rather than a determination of the

particulars of the crime actually committed. Jane McAdam and Guy Goodwin-Gill state that an

approach which looks at the penalty imposed alone will likely be arbitrary and inconsistent with

international law.307 They state that the determination of what constitutes a particularly serious crime in

the context of the exception to non-refoulement obligations ought to involve an assessment of all of the

circumstances including the nature of the offence, the background to its commission, the behaviour of

the individual and the actual terms of any sentence imposed.308 The criteria in the Australian legislation

look only to the type of crime committed and the penalty which can be imposed, but do not include a

consideration of the wider circumstances surrounding the commission of the crime.

This distinction between the definition at international law and in the domestic legislation could have

an impact in cases like Charlie’s. Charlie was convicted of a crime considered to be particularly serious

because the maximum possible sentence for damaging Commonwealth property is 10 years and the

type of crime he committed involved property damage. However, Charlie was not sentenced to any

term of imprisonment for the crime that he actually committed which was fairly minor. Additionally,

the circumstances of the crime show an individual in immigration detention which can have the effect

of exacerbating behaviour such as this.309 If Charlie’s crime was considered in the context of all of these

factors, a decision maker may not have considered this crime to be ‘serious’. For these reason, Charlie’s

crime may not be serious enough to meet the high bar for exclusion from the protection of non-

refoulement obligations at international law. This results in Charlie being refused a protection visa

despite being owed non-refoulement obligations under the Refugee Convention.

307 Ibid, 239. 308 Ibid, 239-240. 309 See LKQD v Minister for Immigration and Border Protection [2018] AATA 2710 and MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68 in which it was submitted that the applicant’s behaviour was due, in part, to his being held in immigration detention. See also NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 and NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44 regarding crimes during riots in immigration detention. See also Billings, above n 34, 231 writing about the potential for criminal conduct to result from time and circumstance of detention; citing MZYYO v Minister for Immigration and Citizenship 214 FCR 68; D Mercurio and F Millevoi, ‘Out of Character: the impact of the 2011 amendments to the character test’ (2013) 26(1) Journal of Refugee Studies 47, 36–37; Bull, Melissa, et al, ‘Sickness in the System of Long-Term Immigration Detention’ (2013) 26(1) Journal of Refugee Studies 47; Urahman v Semrad [2012] NTSC 95, [32] (Southwood J).

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2 Policy and the Refugee Convention

The Explanatory Memorandum to the introduction of s 36(1C) explains that the provisions in s 36(1C)

are intended to reflect Article 33(2) of the Refugee Convention.310 However, policy statements in

relation to this point have shifted in the past year. Before 25 May 2018 PAM3 stated “[A] finding that

… s 36(1C) is not satisfied”311 which is a provision “consistent with Articles 33(2) of the Refugee

Convention”312 will mean that the applicant “will not engage Australia’s non-refoulement obligations

arising under the Refugee Convention”.313 This statement appears to reflect the position outlined in the

Explanatory Memorandum. That is, the wording of s 36(1C) codifies Article 33(2) of the Refugee

Convention meaning that a non-citizen who satisfies s 36(1C) also satisfies the exclusion principles

under the Refugee Convention and is not owed non-refoulement obligations under international law.

This was a statement at odds with the findings made in this chapter.

Although there was no change in the legislation, the policy contained in PAM3 shifted on 25 May 2018.

PAM3 now states only that “there may be instances when a [protection visa] application is refused but

they will nevertheless engage Australia’s non-refoulement obligations, including where they fail to meet

… s 36(1C)”.314 The PAM does not provide examples of cases in which this may occur, however,

differences in the definition of a ‘particularly serious crime’ between s 36(1C) and Article 33(2) of the

Refugee Convention can cause this result as explored in this chapter. Additionally, Ministerial Direction

75, which provides guidance for decision makers relying on s 36(1C), directs that the refusal of a

protection visa on the grounds of s 36(1C) does not extinguish Australia’s non-refoulement obligations

in all instances.315 The direction states that a refusal of a protection visa because someone is a danger

to the Australian community does not necessarily mean that they will be removed from Australia.316

Ministerial Direction 75 is also recent having been given in September 2017. The Ministerial Direction

does not supply examples of either of these cases, however, these statements provide an

acknowledgement that s 36(1C) does not necessarily operate to exclude people who are not owed non-

310 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 12. 311 Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 13 April 2018, Refugee and Humanitarian, Protection Visa Processing Guidelines, Part 12 – Exclusion, Character and Security, [4.53.1]. 312 Ibid. 313 Ibid. 314 Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Refugee and Humanitarian, Protection Visa Processing Guidelines, Part 11 – Protection obligations criteria, [4.39.4]. 315 Minister for Immigration and Border Protection (Cth), Direction [No 75] – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2c)(b), 6 September 2017, Part 1. 316 Ibid.

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refoulement obligations by Australia. Although the reason for the change in these policy statements is

unclear, they both provide an acknowledgement that supports the findings in this chapter. However, it

is also unclear exactly how the acknowledgement that s 36(1C) does not extinguish Australia’s non-

refoulement obligations effects the operation of the removal powers in s 197. This question will be

explored further in Part C.

3 Complementary Protection: The CAT and ICCPR

Charlie is also owed non-refoulement obligations by Australia under the CAT317 and ICCPR.318 These

obligations, as introduced in Chapter II, are without exception. There is no exclusion from the protection

of these treaties for non-citizens who have committed crimes.319 Charlie would face harm on return to

Afghanistan which engages these obligations. He is vulnerable to possibly deprivation of life,320

torture,321 or cruel and inhuman treatment of punishment322 at the hands of the Taliban.323 This is a

situation which faces many refugees. Jane McAdam and Guy Goodwin-Gill state that a non-citizen who

fears persecution will likely also fear at least inhuman or degrading treatment or punishment if not

torture.324 As such, a non-citizen who is excluded from the protection of the obligations of non-

refoulement under the Refugee Convention may nonetheless be owed protection from return under the

CAT and ICCPR.325

However, although Australia’s non-refoulement obligations under the CAT and ICCPR are without

exception, Charlie is excluded from the grant of a protection visa under s 36(2)(aa). Australia’s non-

refoulement obligations under the CAT and ICCPR are served in Australian law through the

complementary protection regime contained in s 36(2)(aa).326 However, to be granted a protection visa

on the grounds of complementary protection criteria Charlie would be required to meet the criterion in

317 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 3. 318 International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Articles 6, 7. 319 See Chapter II. 320 Migration Act 1958 (Cth), s 36(2A)(a). 321 Migration Act 1958 (Cth), s 36(2A)(b). 322 Migration Act 1958 (Cth), s 36(2A)(d). 323 See, eg, NKWF v Minister for Immigration and Border protection [2018] FCA 409, [7] (Siopis J); NBNB v Minister for Immigration and Border Protection [2014] 220 FCR 44, [36], [45], (Buchanan J). 324 McAdam and Goodwin-Gill, above n 37, 243. 325 Ibid. 326 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, [61].

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s 36(2C)(b)(ii).327 As explained above, this provision is identical to the provision in s 36(1C).328 As

such, Charlie would be unsuccessful under s 36 despite being owed non-refoulement obligations by

Australia under the CAT and ICCPR.329

4 Policy and Complementary Protection

The fact that non-refoulement obligations under the CAT and ICCPR are without exception is expressly

stated in a number of domestic policy statements. The Explanatory Memorandum to the introduction of

the complementary protection criteria expresses an understanding that “Australia’s obligations under

the ICCPR and CAT are absolute and cannot be derogated from”.330 However the Explanatory

Memorandum also states that Australia must “balance the delivery of its humanitarian program with

[the] protection [of] the Australian community”331 To address the failure of the legislation to provide a

protection visa to all people owed non-refoulement obligations on complementary protection grounds,

the Explanatory Memorandum states that “even if a non-citizen is considered ineligible to be granted a

protection visa under s 36, Australia will be bound by its international obligations not to remove that

non-citizen”.332 That applicant will instead “be managed towards case resolution…taking into

account…Australia’s non-refoulement obligations”.333 Ministerial Direction 75 additionally

acknowledges, as mentioned above, that a refusal to grant a protection visa to someone who is a danger

to the Australian Community does not necessarily mean that that person should be removed from

Australia.334 PAM3 makes a very clear statement relating to this fact. It states:

The subsections in s 36(2C)(b), although similarly worded, do not relate to any exceptions to obligations of non-refoulement. This is because there are no exceptions to Australia’s non-refoulement obligations under the ICCPR and CAT. Instead, a finding that there are serious reasons for considering that an applicant falls within either of those

327 Migration Act 1958 (Cth), s 36(2C). 328 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [87]-[88]; See also Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018, [10.36]. See also, Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Policy Refugee and Humanitarian, The Protection Visa Processing Guidelines, Part 13, [4.57.2] which states that provisions in s 36(1C) and 36(2C)(b) are mirror provisions and the same considerations and findings should apply. 329 McAdam, Jane, Submission No 35 to Senate Select Committee Inquiry into Ministerial Discretion in Migration Matters (2004). See also, McAdam, Jane, ‘Australian Complementary Protection: A Step-By-Step Approach’ (2011) 33 Sydney Law Review 687 for a detailed comparison of Australia Complementary Protection Criteria and international obligations under treaties including the CAT and ICCPR. 330 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [90]. 331 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [90]. 332 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [89]. 333 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [90]. 334 Minister for Immigration and Border Protection (Cth), Direction [No 75] – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2c)(b), 6 September 2017.

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subsections only means that they are taken not to satisfy the criterion in s 36(2)(aa) and will therefore be ineligible for a [protection visa] if they do not satisfy the criteria in one of the other subsections in s 36(2).

Therefore, an applicant who comes under the provisions in either of the subsections in s 36(2C)(b) may nevertheless engage Australia’s non-refoulement obligations.335

In practice this raises questions about whether a non-citizen can be removed if that non-citizen fails to

be granted a protection visa but is owed non-refoulement obligations under the CAT and ICCPR. These

questions will be discussed in Part C of this thesis which examines the mechanisms in place to prevent

the removal of a non-citizen in these circumstances.


Section 36 operates to codify Australia’s international obligations, however, s 36 does not ensure that

all non-citizens who are owed non-refoulement obligations are granted a protection visa. This can

happen in two ways. Firstly, the provisions in s 36(1C) do not accurately reflect the exclusion principles

contained in the Refugee Convention due to the disconnect between the definitions of ‘particularly

serious crime’ and ‘danger to the Australian community’ in the Australian legislation as compared to

in the Refugee Convention. Secondly, the legislation applies this same exclusion to the grant of the

complementary protection criteria in s 36(1)(aa). This excludes non-citizens from the grant of a

protection visa on complementary protection grounds despite there being no such exception at

international law. The result is that non-citizens can be refused the grant of a protection visa in Australia

despite being owed non-refoulement obligations under both the Refugee Convention, and under the

CAT and ICCPR. What this serves to show is that, while s 36 codifies Australia’s non-refoulement

obligations to some degree, the section does not operate to allow for the grant of a protection visa in all

circumstances in which a non-citizen is owed non-refoulement obligations.

335 Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Refugee and Humanitarian, Protection Visa Processing Guidelines, Part 11 – Protection obligations criteria, [4.39.4].

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VI APPLICATION UNDER S 36: THE USE OF S 501 TO REFUSE

PROTECTION VISA APPLICATIONS

This chapter illustrates a second way in which s 36 may fail to provide a full and thorough consideration

of Australia’s international non-refoulement obligations. A protection visa application under s 36 can

be refused where the non-citizen fails the character test in s 501(6). As introduced in Chapter III, the

provisions in s 501(6) are broad and cover a range of categories of criminal offending. Unlike the

provisions in ss 36(1C) and 36(2C)(b), the character test in s 501(6) does not reflect the exclusion

principles in the Refugee Convention. However, a non-citizen who does not pass the character test in s

501(6) can be refused the grant of a protection visa through the refusal powers in s 501(1), or on the

basis that they do not meet the criteria in s 65 of the Act. This results in a non-citizen being refused the

grant of a protection visa despite being owed non-refoulement obligations by Australia.

A Betty’s Application

Australia’s non-refoulement obligations were not considered during the cancellation of Betty’s student

visa under s 501. Her fears of returning to Cameroon have not yet been fully considered by any decision

maker. Following the cancellation of her student visa, Betty made a protection visa application under s

36 of the Migration Act. The decision maker considered that she satisfies all the criteria in s 36(2)(a)

and found that she is a person to whom Australia owes non-refoulement obligations. Direction 75 directs

that the decision maker should first consider whether the applicant is excluded from the grant of a

protection visa under s 36(1C) or 36(2C)(b).336 Betty is not excluded under these provisions because

her crime was not ‘serious’337 and she was not found to be a ‘danger to the Australian community’.338

However, the decision maker refuses Betty’s application under s 501(1)339 because she does not pass

the character test in s 501(6).340 This is the second time that Betty’s case was considered under s 501

336 Minister for Immigration and Border Protection (Cth), Direction [No 75] – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2c)(b), 6 September 2017. 337 Migration Act 1958 (Cth), s 36(1C)(b) and 36(2C)(b)(ii). 338 Migration Act 1958 (Cth), s 36(1C)(b) and 36(2C)(b)(ii). 339 See Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 13 April 2018, Refugee and Humanitarian, Protection Visa Processing Guidelines, Part 12 – Exclusion, Character and Security, [4.57.2]-[4.57.3]: a decision maker can refuse the grant of a protection visa because they fail the character test under s 501(6) by using the power in s 501(1) or by refusing the application in s 65(1)(b). If the decision maker decides to use s 501(1) then the case must be referred to a VACCU for further character tests before the case is decided. For this reason, PAM3 states that the power under s 65(1)(b) should be used rather than s 501(1). Both of these methods of refusal apply the same character test (the s 501(6) character test) so, for the purposes of this paper, it is not material which of the powers is being exercised. 340 For examples of cases in which this has happened see, eg, NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44, WASB v Minister for Immigration and Border Protection (2013) 217 FCR 292.

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provisions. This time, Australia’s non-refoulement obligations were considered as a factor in the

decision.341 The decision maker weighs Betty’s fear of return to Cameroon against the factors contained

in Ministerial Direction 65 and exercises his/her power to refuse Betty’s protection visa.342

Betty is not excluded from the grant of a protection visa under ss 36(1C) or 36(2C)(b), and her offending

does not meet the high bar for exclusion from the protection of non-refoulement under the Refugee

Convention.343 Unlike the provisions in ss 36(1C) and 36(2C)(b), the provisions in s 501 do not set out

to codify Australia’s non-refoulement obligations, and are not interpreted consistently with Australia’s

international obligations.344 Although there is some overlap between s 501 grounds and the exclusion

grounds in the Refugee Convention,345 there are also a range of circumstances in which a non-citizen

would fail to pass the character test in s 501(6) despite not meeting the ‘particularly serious crime’ and

‘danger to the Australian community’ criteria.346 The crime of drug possession is unlikely to be not

sufficiently ‘serious’ to exclude Betty from the protection of non-refoulement under the Refugee

Convention. As a result, Betty’s protection visa application is refused despite her being owed non-

refoulement obligations under the Refugee Convention.

B Criticisms

The refusal of protection visas using the character test s 501(6) has been the subject of criticism. Peter

Billings draws attention to non-citizens who will ‘automatically fail’ the character test after being

convicted of a criminal offence while in immigration detention, or during the act of escaping

immigration detention, regardless of the “gravity of the crime, sentence imposed, or danger they present

to the community”.347 He presents the argument that these individuals are subject to refusal for the grant

of a protection visa which limits their access to protection visas and asylum in Australia despite being

341 See Chapter III. Following the cancellation of Betty’s visa, she will be statute barred from making a further visa application under both s 501E and s 48A. As such, her fears of non-refoulement will be considered by the decision maker. 342 See Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018, Refugee and Humanitarian, Protection Visas – all application processing guidelines, ch 4, pt 1, [4.1]. 343 See discussion in Chapter IV. 344 See WASB v Minister for Immigration and Border Protection (2013) 217 FCR 292, [38]-[43] (Barker J); cited in Billings, above n 34, 230. 345 Billings, above n 34, [229]: citing Plaintiff M47/2012 v Director General of Security and Ors (2012) 251 CLR 1, [40] (French CJ), [191] (Hayne J), [380] (Crennan J). 346 See Billings, above n 34, 229-231; see also, Savitri Taylor, ‘Exclusion from Protection of Persons of 'Bad Character': Is Australia Fulfilling Its Treaty based Non refoulement Obligations?’ (2002) 8(1) Australian Journal of Human Rights 83. 347 Billings, above n 34, 230: Billings provides the example of NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 as a case in which this has occurred. See also, Savitri Taylor, ‘Exclusion from Protection of Persons of 'Bad Character': Is Australia Fulfilling Its Treaty based Non refoulement Obligations?’ (2002) 8(1) Australian Journal of Human Rights 83, 88.

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owed non-refoulement obligations. Peter Billings also argues that the standard of proof in s 501 is too

low in comparison to the standard of proof required under the Refugee Convention.348 This, too,

contributes to the potential for refusal of a protection visa applications in cases where non-citizens are

owed non-refoulement. Additionally, Savitri Taylor argues that the Migration Act should be “amended

so that … the separate powers of refusal and cancellation of visas on character grounds contained in [s]

501… do not apply to protection visas”349 to avoid the consequence that protection visas will be refused

in cases where non-citizens are owed non-refoulement obligations.350

In addition, the ability to use s 501(1) to refuse a protection visa application creates a bizarrely

convoluted process within the Migration Act. This is a criticism raised by Peter Billings351 and which

is well illustrated by Betty’s case. Betty’s student visa was cancelled because she failed the character

test in s 501(6). No finding was made as to Australia’s non-refoulement obligations at that time because

of her ability to apply for a protection visa under s 36. However, the finding that Betty did not pass the

character test in s 501(6) meant that her protection visa application was “doomed to failure on character

grounds”.352 Although her case has already been considered under s 501, she went through the process

of making an additional visa application which ultimately resulted in her case being again considered

under s 501 and refused.

The ability to refuse a protection visa on the grounds that a non-citizen does not pass the character test

in s 501(6) is also significant in relation to Charlie’s application. This can be illustrated if we slightly

alter the facts of Charlie’s case and imagine that Charlie was not excluded from the grant of a protection

visa under ss 36(1C) and 36(2C)(b). Despite this change, Charlie would still be refused the protection

visa. Charlie would fail the character test in s 501(6) because his crimes were committed in immigration

detention,353 and as a result his protection visa application could be refused. This illustrates that, even s

36 is amended so that ss 36(1C) and 36(2C)(b) reflect the exclusion provisions in Refugee Convention,

a non-citizen may still be refused a protection visa despite being owed non-refoulement obligations.

348 Billings, above n 34, 229. 349 Savitri Taylor, ‘Exclusion from Protection of Persons of 'Bad Character': Is Australia Fulfilling Its Treaty based Non refoulement Obligations?’ (2002) 8(1) Australian Journal of Human Rights 83, 91. However, note that article was written before the inclusion of ss 36(1C) and 36(2C)(b) and that changes have been made to s 501 since this time also. 350 Taylor, above n 349, 91. 351 Billings, above n 34, 231. 352 Ibid. 353 Migration Act 1958 (Cth), s 501(6)(aa). See, eg, NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44, discussed in Billings, above n 34, 230.

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The opportunity for a non-citizen to be left without a visa due to the operation of s 501 has been

discussed in relation to the issue of indefinite detention. These discussions often relate to visa

cancellations under s 501, rather than refusals for a protection visa using s 501. However, they do

acknowledge and discuss that s 501 does not reflect international law and can result in non-citizens

being unlawful despite being owed non-refoulement obligations. As discussed in Part A, the refusal of

a visa in a case where non-citizen is owed non-refoulement obligations can be indefinite detention. This

has been described as a state of ‘legal limbo’354 for those refugees and has led to a great deal of criticism

in relation to the dangers and legality of long term detention.355 These include questions relating to

double jeopardy, which arises when a non-citizen has served time for a criminal conviction and then

also held in lengthy but administrative immigration detention,356 and questions surrounding Australia’s

adherence to international obligations under the Refugee Convention.357 The prospect of indefinite

detention is not within the scope of this paper. However, Part C of this paper explores the possibility of

removal for this group of people.


This chapter establishes that a protection visa application may be refused on the grounds that a non-

citizen does not pass the character test in s 501(6) of the Migration Act. This allows protection visa

applications to be refused in cases where non-citizens are owed non-refoulement obligations by

Australia. The option of refusing a protection visa application due to a failure to satisfy the character

354 See NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [121]-[122] (Buchanan J); Billings, above n 34, 226. 355 See, eg, Melissa Bull, et al, ‘Sickness in the System of Long-Term Immigration Detention’ (2013) 26(1) Journal of Refugee Studies 47; Joyce Chia, ‘Back to the Constitution: The Implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38 UNSW Law Journal 628. 356 See, eg, Michael Grewcock, ‘Conviction, detention and removal: the multiple punishment of offenders under s 501 Migration Act’ (2009) UNSW Law Research Paper No. 2009-49; Michael Grewcock, Michael, ‘Punishment, deportation and Parole: The Detention and Removal of Former Prisoners Under Section 501 Migration Act 1958’ (2011) 44(1) Australia and New Zealand Journal of Criminology 56; Grewcock, Michael, ‘Conviction, detention and removal: the multiple punishment of offenders under section 501 Migration Act’ (Paper presented to the Australian and New Zealand Society of Criminology Conference, Perth, 24 November 2009); Grewcock, Michael, ‘Multiple punishments: the detention and removal of convicted non-citizens’ (Paper presented to Australian and New Zealand Critical Criminology Conference, Melbourne, 8-9 July 2009); See also discussion in Falzon v Minister for Immigration and Border Protection [2018] 351 ALR 61 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 357 See, eg, Human Rights Council Working Group on Arbitrary Detention, Opinion No 50/2018 concerning Edris Cheraghi (Australia), UN Doc A/HRC/WGAD/2018/50 (1 October 2018). Mr Cheraghi was held in detention due to a failure to meet he character test in s 501(6) after being charged with a criminal offence. He was not convicted of any crime. The working group has found his detention to be arbitrary and recommends that the Government review the Migration Act in light of international obligations; See also Taylor, above n 349; Savitri Taylor, ‘Australia’s Implementation of its Non-Refoulement Obligations under the Convention Against Torture and other Cruel Inhumane or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights’ (1994) UNSW Law Journal 433.

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test in s 501(6) creates an odd process by which a non-citizen, who has already been considered against

s 501, is again considered against the criteria in s 501 during a distinct visa application process. Further,

it allows for the refusal of a visa based on a broad character test immediately after a non-citizen has

successfully established that they can pass the, much narrower, character tests in s 36(1C) and

36(2C)(b). As such, there is a doubling up of character provisions being applied to s 36 visa applications.

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PART C

VII THE EFFECT OF S 197C

The three hypothetical applicants are all non-citizens and none of them holds a valid visa. This makes

them all ‘unlawful’ non-citizens under the Act.358 Under s 198 of the Migration Act, unlawful non-

citizens should be removed from Australia as soon as is “reasonably practicable”.359 This chapter will

introduce the mechanism by which all three hypothetical applicants can be removed from Australia. In

particular, this chapter will examine s 197C which was introduced in 2014 to clarify the availability of

removal powers in cases where non-citizens are owed non-refoulement obligations. Although was the

subject of little judicial commentary when first introduced, the decision of North ACJ in DMH16 v

Minister for Immigration and Border Protection (‘DMH16’)360 gave this provision a new significance

in 2017. This chapter will look at s 197C in light of it’s interpretation in that case. As discussed in

earlier chapters, all three of the hypothetical applicants are owed non-refoulement obligations by

Australia. This chapter will explore the impact, if any, of those obligations on the availability of the

removal power in the cases of Alfie, Betty and Charlie.

A The Mechanism for Removal of Non-Citizens Under the Migration Act

The power to remove non-citizens is contained in s 198 of the Migration Act.361 A series of High Court

decisions established that removal from Australia would not be ‘reasonably practicable’ in cases where

a non-citizen was owed non-refoulement obligations362 and that Australia would not remove an

individual to any country in breach of international obligations.363 This resulted in indefinite detention

for the non-citizens affected.364 However, in 2014 the Amendment Act sought to overcome the decisions

358 Migration Act 1958 (Cth), ss 14, 15. 359 Migration Act 1958 (Cth), s 198. 360 (2017) 253 FCR 576. 361 Migration Act 1958 (Cth), s 198. 362 Al-Kateb v Godwin (2004) 219 CLR 562; cited in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [106]-[109] (Buchanan J). 363 See NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161, [22]-[23] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan, and Heydon JJ); Plaintiff M70/2001 v Minister for Immigration and Citizenship (2011) 244 CLR 144, [92]-[94] (Gummow, Hayne, Crennan, and Bell JJ); Plaintiff M47/2012 v Director General of Security and Ors (2012) 251 CLR 1, [39] (French CJ), [99]-[100] (Gummow J), [401] (Crennan J); Plaintiff M61/2010E v Commonwealth (2010) 241 CLR 319 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ). See also Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 in which extended to obligations under the CAT and ICCPR. 364 See, eg, NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 [105]-[109] (Buchanan J), [15]-[17] (Allsop CJ, Katzmann J).

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of these decisions of the High Court365 and remove the connection s 198 and an assessment of

Australia’s non-refoulement obligations.366 The Amendment Act sought to make it clear that the

removal power in s 198 of the Migration Act arises independently of an assessment Australia’s non-

refoulement obligations.367 To achieve this, the Amendment Act inserted s 197C.368 Section 197C states:

Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.369

B Consideration of s 197C in DMH16

Section 197C was mentioned in Federal Court cases following its inclusion into the Act in 2014

however, no findings were made as to its interpretation or impact.370 Decision makers continued to

assume that a non-citizen would not be removed in breach of Australia’s non-refoulement obligations

despite s 197C, and that the legal and practical outcomes of refusing or cancelling a visa would be

indefinite detention.371 This shifted in 2017 when North ACJ held in DMH16 that the correct

365 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1132]-[1137]. 366 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1138]. 367 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1141]. 368 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1138]-[1141]. 369 Migration Act 1958 (Cth), s 197C. 370 The interpretation of s 197C was considered by Rares, Perram and Griffiths JJ in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125, [36]-[52] but was found not to apply in those proceedings. The case was then appealed to the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (French CJ, Kiefel, Bell Gageler, Keane, Nettle, and Gordon JJ) in which it was unanimously held, at [15]-[16], that s 197C was applicable to the applicant. However, it was held, at [15]-[16] that was no need to give consideration to the content of s 197C as the party concerned was not being considered for removal. Section 197C was then considered by Allsop CJ, Griffiths and Wigney JJ in Minister for Immigration and Border Protection v Le [2016] FCAFC 120, [60] in which The Court noted that s 197C would be a material issue in earlier stages in the decision making process (such as in s 501 cancellation decisions). However, the Court did not make any findings as to the extent or nature of the possible impact. 371 See, especially, ALN17 v Minister for Immigration and Border Protection [2017] FCA 726; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; Minister for Immigration and Border Protection v Le [2016] FCAFC 120. See also SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 (Rares, Perram, and Griffiths JJ) in which it was held that s 197C did not prevent the applicant being detained

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understanding of s 197C, when read in conjunction with an officer’s duty to remove under s 198, was

that a non-citizen would be removed from Australia immediately372 even if that removal was in breach

of Australia’s international non-refoulement obligations.373 As such, any reference to the prospect of

indefinite detention is an erroneous reference to the situation as it would have existed before the

introduction of s 197C.374 Acting Chief Justice North’s reasoning in DMH16 was subsequently applied

by Siopis J in NKWF v Minister for Immigration and Border Protection375 and Moshinsky J AQM18 v

Minister for Immigration and Border Protection.376

The applicant in DMH16 was in a position similar to that of the hypothetical applicants in this thesis.

He was a citizen of Syria who arrived in Australia on a child visa in 2005.377 His visa was then cancelled

under s 501(2) when he was sentenced to three years imprisonment for intentionally causing serious

injury.378 He applied for a protection visa which was refused under s 501(1) because he failed the

character test contained in s 501(6).379 However, the applicant had been found to be a person to whom

Australia owed non-refoulement obligations,380 as such, he was an unlawful non-citizen owed non-

refoulement obligations by Australia.381 It was the finding of His Honour that the operation of s 197C

abrogated Australia’s non-refoulement obligations assumed under international law.382 His Honour

found that the applicant would be removed to Syria in contravention of Australia’s non-refoulement

obligations.383 His Honour’s decision threw into doubt the understanding that Australia would not

remove people in breach of Australia’s non-refoulement obligations.384

while alternative management options were considered (overturned on other grounds in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653). 372 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [26] (North ACJ). Acting Chief Justice North’s reasoning as subsequently applied in NKWF v Minister for Immigration and Border Protection [2018] FCA 409 (Siopis J) and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 (Moshinsky J). 373 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [30] (North ACJ). 374 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [24], [30] (North ACJ). 375 [2018] FCA 409. 376 [2018] FCA 944. 377 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [3] (North ACJ). 378 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [4] (North ACJ). 379 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [6]; For a description of how a protection visa can be refused using the powers in s 501 see Chapter VI. 380 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [12] (North ACJ). 381 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [30] (North ACJ). 382 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [27] (North ACJ). 383 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [30] (North ACJ). 384 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [12] (North ACJ).

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C Judicial Consideration of DMH16

1 Decision Makers at s 501 – Balancing of Considerations

The decision in DMH16 has the potential to impact decision makers under s 501 of the Migration Act.

As of yet there has been little consideration of the impact of s 197C, as interpreted in DMH16, at the

Federal Court level.385 However, there are decisions of the AAT which consider the kind of impact that

the decision in DMH16 may have on s 501 decision makers.386 These decisions indicate that the serious

consequences for a non-citizen arising out of DMH16 may have the effect of slightly shifting the

exercise of discretion under s 501 so that the balance of considerations weighs a little heavier in the

applicant’s favour.

As introduced in Part A, the discretion under s 501 requires a balancing of the various considerations

against one another.387 This includes a weighing up of the legal and practical consequences of the

decision being made against the other considerations in s 501.388 In DMH16 North ACJ stated that, had

the Minister understood the grave consequence of the cancellation decision, then he may have avoided

this result by deciding not to cancel the visa.389 Recent decisions at the AAT have engaged in this

balancing act as required by Ministerial Direction 65. In some of these decisions, the decision makers

have considered the grave consequences of removing a non-citizen in breach of non-refoulement

obligations and have exercised their discretion in the favour of the non-citizen.390 However, there have

385 DMH16 was applied in NKWF v Minister for Immigration and Border Protection [2018] FCA 409 (Siopis J) and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 (Moshinsky J). The decision in DMH16 was also considered in TCWY v Minister for Immigration and Border Protection [2017] FCA 1276, [68]-[70] however Robertson J did not apply DMH16 because the applicant was not owed non-refoulement obligations. North ACJ’s reasoning in DMH16 was also referenced by Robertson, Moshinsky and Bromwich JJ in BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288, [46]-[48] but was not considered due to the applicant’s success on other grounds. Additionally, the decision in DMH16 was considered in BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456, [57]-[58] by Bromberg, Davies and Mortimer JJ however the Full Court noted that the scope and content of s 197C was to be left for another day. 386 See NDFN and Minister for Immigration and Border Protection (Migration) [2017] AATA 892; Ahmed v Minister for Immigration and Border Protection [2017] AATA 1908; Mehdi v Minister for Immigration and Border Protection [2017] AATA 2029; XFKR v Minister for Immigration and Border Protection [2017] AATA 2385; PRHR v Minister for Immigration and Border Protection [2017] AATA 2782; BHKM v Minister for Immigration and Border Protection [2018] AATA 3; FTYC and Minister for Immigration and Border Protection [2018] AATA 20; KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684; ZMBZ v Minister for Immigration and Border Protection (Migration) [2018] AATA 1869. 387 See Chapter III. See generally, Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014. 388 See Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014. 389 DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [30] (North ACJ). 390 See NDFN and Minister for Immigration and Border Protection (Migration) [2017] AATA 892; Ahmed and Minister for Immigration and Border Protection (Migration) [2017] AATA 1908; FTYC and Minister for

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also been decisions of the AAT which have weighed against the applicant despite the very serious

potential consequences.391

2 Decision Makers at s 501 – Ministerial Direction 65

The decision in DMH16 has also had an effect on the weight to be given to Ministerial Direction 65.

Section 499(2) of the Migration Act does not give the Minister the power to make written directions

which would be inconsistent with the Migration Act or the Regulations.392 In light of this, decisions of

both the Federal Court and AAT have considered sections in Ministerial Direction 65 which are

inconsistent with s 197C of the Migration Act as interpreted in DMH16. 393

There are two sections of the direction under scrutiny for inconsistency with the Migration Act. The

first inconsistent statement is made in Paragraph 10.1(2) (and duplicated in paragraphs 12.1(2), and

14.1(2)) which states “[t]he existence of non-refoulement obligation[s] does not preclude cancellation

of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the

cancellation of their visa, to the country in respect of which the non-refoulement obligations exists”.394

The second statement is made in paragraph 10.1(6) (and duplicated in paragraphs 12.1(6) and 14.1(6))

and states “[g]iven that Australia will not return a person to their country of origin if to do so would be

inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196

of the Migration Act means that, if the person’s Protection visa were cancelled, they would face the

prospect of indefinite immigration detention”.395

Immigration and Border Protection [2018] AATA 20; BFXK and Minister for Immigration and Border Protection [2018] AATA 886. 391 See ZMBZ and Minister for Immigration and Border Protection (Migration) [2018] AATA 1869; Mehdi and Minister for Immigration and Border Protection (Migration) [2017] AATA 2029. 392 Migration Act 1958 (Cth), s 499(2). 393 TCWY v Minister for Immigration and Border Protection [2017] FCA 1276, [57] (Robertson J); PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782 (22 December 2017), [107]; BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3 (8 January 2018), [8]: FTYC and Minister for Immigration and Border Protection (Migration) [2018] AATA 20 (16 January 2018), [7]: KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684 (28 March 2018), [41]: BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886 (16 April 2018); For further discussion on the concept unlawful Ministerial Directions in relation to s 501 see Chiam, above n 106, 36. 394 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [10.1(2)]. 395 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, [10.1(6)].

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The inconsistencies between Ministerial Direction 65 and the Migration Act were articulated clearly by

Deputy President Rayment of the AAT396 when he stated “that which clause 14.1(2) says will never

occur … was held to be contrary to the dictates of s 197C”.397 As such “The advice given in clause

14.1(2) is not consistent with s 197C of the Migration Act as interpreted by North ACJ in DMH16”.398

Justice Robertson considered these directions in TCWY v Minister for Immigration and Border

Protection. 399 His Honour held that the inconsistencies require decision makers to disregard the content

of the direction and, in so doing, weigh the consequences of removal from Australia in their discretion

rather than assuming that a non-citizen will not be removed.400 His Honour found that where the

legislative scheme required consideration of s 197C, a failure to consider it and it’s operation would

constitute jurisdictional error401 despite the decision being made in keeping with the guidance in

Direction 65.402

3 Effect on the Cases of Alfie, Betty and Charlie

The inclusion of s 197C would not alter the decision making process applied to the hypothetical

applicants. The decision makers who considered Alfie and Betty’s cases under s 501 would have been

required to consider that a decision to refuse or cancel a visa may result in their removal from Australia

in breach of non-refoulement obligations. Given the severity of the outcome, the decision makers may

have been more likely to exercise their discretion in favour of the applicants. However, the shift for s

501 decision makers is slight and it is likely that the hypothetical applicants would be left in the same

position as they are now.

D Concluding Remarks

Section 197C, as interpreted in DMH16, allows the removal of an unlawful citizen from Australia in

breach of non-refoulement obligations. This interpretation may have the effect of altering the weight to

396 Decisions of the AAT are not binding on either the AAT or any Court. 397 Ahmed and Minister for Immigration and Border Protection (Migration) [2017] AATA 1908, [56]. 398 Ahmed and Minister for Immigration and Border Protection (Migration) [2017] AATA 1908, [56]. 399 [2017] FCA 1276 (Robertson J). 400 TCWY v Minister for Immigration and Border Protection [2017] FCA 1276, [58] (Robertson J). 401 TCWY v Minister for Immigration and Border Protection [2017] FCA 1276, [58] (Robertson J). 402 TCWY v Minister for Immigration and Border Protection [2017] FCA 1276, [37] (Robertson J). For further consideration of the inconsistencies between the Ministerial Direction and the Migration Act at the AAT see Ahmed and Minister for Immigration and Border Protection (Migration) [2017] AATA 1908, [55]; PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782, [107]; KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684, [93], [96]; BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886, [139].

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be given to non-refoulement obligations as a consideration in discretionary decisions under s 501.

However, this impact is not so significant that it would have substantially altered the applications of

either Alfie or Betty. However, this reading of s 197C raises questions in relation to the cases of the

hypothetical applicants. Section 197C creates the possibility that all three of the hypothetical applicants

may be removed from Australia under s 198 despite being owed non-refoulement obligations. The next,

and final, chapter of this thesis will consider this possibility by examining the passage of s 197C to

further understand its operation and the safeguards that are in place to prevent the removal of non-

citizens who are owed non-refoulement obligations. Additionally, the chapter will ask whether the

safeguards that are in place are sufficient to prevent the removal of non-citizens like Alfie, Betty and

Charlie.

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VIII ADHERING TO AUSTRALIA’S NON-REFOULEMENT OBLIGATIONS

DESPITE S 197C

Section 197C, as interpreted in DMH16, has the potential to allow the removal of non-citizens from

Australia in breach of Australia’s non-refoulement obligations. In so doing, s 197C removes a

safeguard. It takes away the opportunity for Australia’s non-refoulement obligations to prevent the

removal of people who fall through the cracks in earlier provisions of the Migration Act. However, the

parliamentary materials accompanying the passage of s 197C suggest that Australia will continue to

respect non-refoulement obligations after the introduction of s 197C. This chapter will first delve into

the parliamentary materials and passage of s 197C to explore the suggestion that Australia will not

remove non-citizens in breach of non-refoulement obligations despite the introduction of s 197C.

Secondly, this chapter will lay out the legislative scheme surrounding s 197C to ask whether there are

sufficient safeguards in place to ensure that non-citizens are not removed in breach of Australia’s non-

refoulement obligations in character cases.

A The Passage of s 197C

This section delves into the parliamentary debates accompanying the passage of s 197C. The decision

of North ACJ in DMH16 provides a reading s 197C which is in stark contrast with the picture painted

both in these debates and in the parliamentary materials more broadly. As introduced in Chapter VII, s

197C is also inconsistent with Ministerial Direction 65 in the interpretation of North ACJ.403 This is

surprising given that the Ministerial Direction was issued within a week of the introduction of s 197C

into the Act.404 In light of these inconsistencies, this chapter examines the passage of s 197C with the

aim of exploring whether the effect of s 197C was foreseen by parliament.

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy

Caseload) Bill 2014 (‘Amendment Bill’) was commended to the House of Representatives by Scott

403 See Chapter VII. See also, TCWY v Minister for Immigration and Border Protection [2017] FCA 1276, [57] (Robertson J); PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782 (22 December 2017), [107]; BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3 (8 January 2018), [8]: FTYC and Minister for Immigration and Border Protection (Migration) [2018] AATA 20 (16 January 2018), [7]: KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684 (28 March 2018), [41]: BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886 (16 April 2018). 404 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, 1.

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Morrison as the Minister for Immigration and Border Protection at that time.405 Mr Morrison introduced

Schedule 5, which contains s 197C, by stating that it will “make clear that the removal power is

available independent of assessments of Australia’s non-refoulement obligations”.406 He goes on to

state:

Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant's protection claims has been concluded.407

Following this statement, the introduction of s 197C was mentioned by only one Member of Parliament.

That was Mr Marles, as Shadow Minister for Immigration and Border Protection. In voicing support

for s 197C, Mr Marles stated:

‘This is a situation where people have gone through their assessment process, having sought to invoke Australia’s protection obligations …. but ultimately, having been found not to be a genuine refugee, in the normal sense of events the removal powers of the act would then take effect and those persons would be facilitated back to the country from which they came.’408

Both of these statements suggest an understanding that the removal powers under s 197C will effect

non-citizens who have had their claims of non-refoulement assessed. The statement of Mr Marles

suggests that he reads s 197C as affecting non-citizens who are ‘found not to be genuine refugees’.

Neither statement suggests an understanding that s 197C may operate to allow the removal of non-

citizen who are owed non-refoulement obligations. Additionally, when the Bill moved to the Senate the

potential impact of s 197C was mentioned by only three Senators. All three expressed concern about s

197C and potential breaches of human rights, but none of them explored s 197C in any great depth.409

405 Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014), [1.1]. 406 Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014, 10546 (Scott Morrison, Minister for Immigration and Border Protection). 407 Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014, 10546 (Scott Morrison, Minister for Immigration and Border Protection). 408 Commonwealth, Parliamentary Debates, House of Representatives, 22 October 2014 (Richard Marles MP). 409 Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10279 (Joe Ludwig); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10283 (Lee Rhiannon); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10291 (Christopher Ketter).

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The Bill was also referred for consideration by an inquiry of the Senate Standing Committee on Legal

and Constitutional Affairs.410 A number of submissions expressed concern about the effect of the

introduction of s 197C stating that s 197C was not in keeping with Australia’s international obligations

under the Refugee Convention411 and that it created an increased risk of people being returned in breach

of Australia’s non-refoulement obligations.412 However, these concerns were raised in only 6 of the 243

submission received by the Committee413 and form only a small part of the report of the Committee.414

410 Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014), [1.1]. 411 Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014), [3.37]: Citing Law Council of Australia, Submission No 129 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 35; Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 1; Institute of International Law and Humanities, Melbourne Law School, and the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW, Submission No 167 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 12. 412 Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014), [3.37]: Citing Law Council of Australia, Submission No 129 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 35; Australian Red Cross, Submission 164 Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 17. 413 Law Council of Australia, Submission No 129 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014); Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014); Castan Centre for Human Rights Law, Submission No 137 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014); Department of Immigration and Border Protection, Submission 171 Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014); Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014); Institute of International Law and Humanities, Melbourne Law School, and the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW, Submission No 167 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014). 414 Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014), 28-29, [3.37]-[3.4].

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The lack of attention given to s 197C in the Debates and Senate Standing Committee Inquiry may be

due, in part, to the large number of Amendments proposed in the Bill and the position of s 197C within

the Bill. Schedule 5 contained, along with s 197C, the proposal to remove reference to the Refugee

Convention from s 36 of the Migration Act.415 The Report of the Committee appears to combine the

impact of s 197C with this change to s 36.416 In contrast to the attention given to s 197C, changes to s

36 were discussed much more broadly in the debates.417 In fact, the deletion of Schedule 5 was proposed

due to the changes that it would make to s 36, but no mention was made of s 197C.418 Additionally, the

Bill introduced a swath of legislative changes which may have had been of concern to Senators and

Members of Parliament. The changes included the introduction of temporary protection visa options for

the 30,000 unauthorised maritime arrivals held in detention, amendments made to combat people

smuggling, the introduction of the fast track assessment process, and changes to the status of children

born to unauthorised maritime arrivals.419 It may simply be that the changes introduced were so

numerous that s 197C was not of central concern.

Additionally, the lack of attention given to the introduction of s 197C could indicate that the full impact

of s 197C as interpreted by DMH16 was not foreseen when this legislation was passed. The passage of

the Bill was accompanied by statements in both the Explanatory Memorandum and the, attached,

Statement of Compatibility with Human Rights which indicates that the legislation proposed would not

breach Australia’s non-refoulement obligations. The Statement of Compatibility with Human Rights

states that “Anyone who is found to engage Australia’s non-refoulement obligations will not be

415 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), sch 5. 416 Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014), 28, [3.36]. 417 Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9982 (Claire Moore); Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9985 (Sarah Hanson-Young); Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9988 (Ian Macdonald); Commonwealth Parliamentary Debates, Senate, 4 December 2014, 10260 (Kim Carr); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10267 (Janet Rice); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10271 (Alex Gallagher); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10279 (Joe Ludwig); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10283 (Lee Rhiannon); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10291 (Christopher Ketter); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10294 (Peter Whish-Wilson); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10298 (Scott Ludlam); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10303 (Lisa Singh). 418 Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10271 (Senator Hanson-Young); Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10319. 419 See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).

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removed in breach of those obligations”.420 It additionally states that “the Government is not…seeking

to avoid obligations”421 and that “[w]hilst on its face the measure may appear to be inconsistent with

non-refoulement obligations under the CAT and the ICCPR…anyone who is found through visa or

ministerial intervention processes to engage Australia’s non-refoulement obligations will not be

removed in breach of those obligations”.422 Additionally, this sentiment is reflected in the submission

made by the Department of Immigration and Border Protection to the Standing Committee’s inquiry

into the Amendment Bill,423 the Explanatory Memorandum,424 the Second Reading speech of Scott

Morrison (quoted above), and in Policy.425 In light of this material, the impact of s 197C as interpreted

in DMH16 may not have been foreseen in the passage of this provision. In the next section, these

materials will be explored further by examining the mechanisms relied on to support the statement that

non-citizens will not be removed in breach of non-refoulement obligations.

B How Will the Legislation Uphold Australia’s Non-Refoulement Obligations?

The parliamentary materials introduced above state that “Australia will continue to meet it’s non-

refoulement obligations through other mechanisms”.426 The materials present two mechanisms by

which Australia’s non-refoulement obligations will be considered prior to removal427 and which can

operate to prevent non-citizens being removed in breach of non-refoulement obligations. First, the

materials suggest that all claims of non-refoulement will be assessed through the protection visa process

before removal is considered.428 Second, it is proposed that the personal powers of the Minister, or

420 Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 5, 29. 421 Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 28. 422 Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 28. 423 Department of Immigration and Border Protection, Submission 171 Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 17. 424 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1142]. 425 Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014, 10.1(2), 12.1(2), 14.1(2), 10.1(6), 12.1(6), 14.1(6). 426 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1142]. 427 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1146]. 428 Department of Immigration and Border Protection, Submission 171 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the

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alternative management options’,429 can provide a safeguard to prevent the removal of non-citizens in

breach of non-refoulement obligations.430

1 Protection Visa Application Process

The Explanatory Memorandum states that Australia’s adherence to non-refoulement obligations will be

served through the protection visa application process.431 This is a suggestion repeated in the Statement

of Compatibility with Human Rights.432 Additionally, it is reflected in the statement of Scott Morrison

(quoted above) when he says that s 197C operates in respect of non-citizens “once the assessment of

the applicant's protection claims has been concluded”.433 However, it was illustrated in Part B of this

paper that s 36 may fail to provide a full and thorough consideration of Australia’s non-refoulement

obligations in character cases. The cases of both Betty and Charlie illustrate that non-citizens who are

owed non-refoulement obligations may not be granted a visa under this provision. As a result, both

Betty and Charlie are subject to removal in breach of Australia’s non-refoulement obligations despite a

full assessment under s 36. Additionally, Alfie’s case illustrates that not all non-citizens owed non-

refoulement obligations will be considered under s 36 following commission of a crime in Australia.

Alfie’s visa was cancelled under s 501, and he was not able to make a further application under s 36.

As a result, he does not hold a visa despite being owed non-refoulement obligations. Further, the

discussion in Chapter IV illustrates that there exist some concerns surrounding whether all applications

under s 36 will involve an active consideration of Australia’s non-refoulement obligations in all cases.

These examples illustrate that there are pathways by which a non-citizen owed non-refoulement

obligations may be subject to the operation of s 197C despite a full assessment of those obligations

under s 36.

Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 17; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1142]. 429 See eg, DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [8] (North ACJ); NKWF v Minister for Immigration and Border Protection [2018] FCA 409 [30] (Siopis J). 430 Department of Immigration and Border Protection, Submission 171 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 17; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1144]-[1145]. 431 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1142], [1146]. 432 Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 28. 433 Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014, 10546 (Scott Morrison, Minister for Immigration and Border Protection).

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2 Personal Powers of the Minister

The personal powers of the Minister include a range of powers under the Migration Act. These powers

are sometimes referred to as ‘alternative management options’,434 or ‘Minister’s public interest

powers’.435 This part of the paper will focus on two powers, ss 48B and 195A,436 which are within this

category.437 The personal powers of the Minister are relied on to prevent the removal of non-citizens

from Australia in breach of Australia’s non-refoulement obligations in the form of a safeguard

mechanism. The Explanatory Memorandum to the Amendment Act states, “Australia’s non-

refoulement obligations will be met through…the use of the Minister’s personal powers in the Migration

Act”.438 This is also restated in the Statement of Compatibility with Human Rights attached to the

Explanatory Memorandum.439 The use of the Minister’s personal powers is also relied on in the

Explanatory Memorandum to the complementary protection provisions.440 In this context, the personal

powers are relied on to prevent the removal of non-citizens who are protected by non-refoulement

obligations under the CAT and ICCPR. It states that an applicant who is owed protection under these

provisions will not be removed, but instead will be “managed towards case resolution…taking into

account…Australia’s non-refoulement obligations”.441 This applies to people in situations like Charlie’s

who are ineligible for the grant of a protection visa due to criminal conduct, despite the non-refoulement

obligations under the CAT and ICCPR being without exception.

434 See eg, DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, [8] (North ACJ); NKWF v Minister for Immigration and Border Protection [2018] FCA 409 [30] (Siopis J). 435 See, eg, Department of Immigration and Border Protection, Submission 171 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 17. 436 See, eg, The Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1142]. 437 The parliamentary materials also refer to s 46A: See Department of Immigration and Border Protection, Submission 171 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), 17; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1142]. However, this thesis does not enter into a discussion of that power for two reasons. Firstly, s 46A provides the power to allow an unauthorised maritime arrival to apply for a protection visa. As such, this power can used to prevent the removal of unauthorised maritime arrivals but does not apply to non-citizens after a character cancellation. The discussion surrounding the removal of unlawful maritime arrivals is not within the scope of this paper. Secondly, the discussion surrounding s 48B covers the same concerns that would be raised in a discussion surrounding s 46A. 438 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1142]. This is further stated at Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 9, [1136], [1142] and [1146]. 439 Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 20. 440 Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth), [90]. 441 Ibid.

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These sections can operate as a safeguard because each power can be used when a non-citizen is in

detention awaiting removal, or where a non-citizen has exhausted all available visa options under the

Migration Act. At this point, the Minister may exercise his/her power under one of these sections and

prevent the removal of the non-citizen. Each of the personal powers of the Minister operates differently.

They have in common the ability to prevent removal in the case of non-refoulement, however the

mechanism by which this is achieved varies between the powers.

(a) Section 48B

Under this provision, the Minister may allow a non-citizen to apply for a Protection Visa despite them

being statute barred from doing so under s 48A.442 This allows the non-citizen to have their case

reconsidered against the criteria in s 36. As an example, Alfie is statute barred by s 48A from applying

for a protection visa under s 36. The Minister could decide that it is in the public interest to allow Alfie

to apply under s 36 for a protection visa despite s 48A. Although this power may be very useful in some

cases, in character cases it seems unlikely that the non-citizen would be granted a protection visa

following the exercise of this power. In Alfie’s case, Alfie would likely be refused the grant of a

protection visa as it has already been established that he doe not pass the character test contained in s

501(6).443 If the Minister exercised this power in Alfie’s case, it would be the second time his case is

considered against the criteria in s 501. Additionally, the outcome would be unlikely to change. Alfie

would still be an unlawful non-citizen despite being owed non-refoulement obligations by Australia.

(b) Section 195A

Under s 195A the Minister may grant a visa to a person in detention444 if he considers it to be in the

public interest to do so.445 The Explanatory Memorandum to the Amendment Bill suggests that the

Minister may exercise this power to grant a visa and ensure that a non-citizen is not removed in breach

442 Migration Act 1958 (Cth), s 48B. 443 See discussion of Alfie’s case in Chapter III. 444 Migration Act 1958 (Cth), s 195A(1). Note that the Minister may also exercise power under s 197AB of the Migration Act to make a ‘residence determination’. In NKWF v Minister for Immigration and Border Protection [2018] FCA 409 Justice Siopis states at [30] that the alternative management options are two fold, including both ss 195A and s 197AB. However, s 197AB is not referenced in the Explanatory Memorandum. Additionally, the exercise of this power does not add any further issues to those discussed in this chapter generally. For these reasons, this paper does not engage in a discussion of that provision. 445 Migration Act 1958 (Cth), s 195A(2).

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of Australia’s non-refoulement obligations.446 This would operate to prevent the non-citizen’s removal

by providing them with a visa to remain in Australia.

(c) Do These Powers Provide a Safeguard?

These powers are all non-compellable.447 A number of submissions made to the Senate Standing

Committee inquiry into the Amendment Bill criticise the reliance on non-compellable powers to ensure

compliance with non-refoulement obligations.448 In particular, the non-compellable nature of the

powers means that there is no requirement that the powers be exercised fairly or at all.449 A submission

to the inquiry by the Human Rights Law Centre states:

Personal, non-compellable and non-reviewable ministerial discretion is an inadequate safeguard against wrongful return to persecution. Strong, clear and legally-enforceable protection, not personal discretion, is required to guarantee fundamental rights.450

Similarly, the submission of the Australian Human Right Commission states that the personal and non-

compellable powers of the Minister are an insufficient safeguard to protect Australia’s non-refoulement

obligations.451 This submission cites the case of Minister for Immigration and Citizenship v SZQRB452

in which the Minister decided that he would not exercise any personal powers to grant the applicant a

446 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1144]. 447 See generally Senate Select Committee, Parliament of Australia, Inquiry into Ministerial Discretion in Migration Matters (2004), ch 2. 448 Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014); Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014). 449 Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [41]: Citing Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636. See also Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [25]-[26]: Citing Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. 450 Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [43]. 451 Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [25]-[26]: Citing Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 as an example of a case in which non-compellable personal powers are an insufficient safeguard. 452 (2013) 210 FCR 505.

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visa or allow him to apply for a visa even though his removal to Afghanistan would be in breach of

Australia’s non-refoulement obligations.453 The submission relies on this example to show that a non-

compellable power cannot be relied on to prevent the removal of a non-citizen in all cases.454

As introduced above, The Statement of Compatibility with Human Rights and Explanatory

Memorandum state that the purpose of the removal powers is to remove “failed asylum seekers or other

non-citizens who do not hold a visa that allows them to remain in Australia and whose protection claims

have already been assessed”.455 However, the removal powers may be exercised irrespective of whether

there has been an assessment of Australia’s non-refoulement obligations.456 Additionally, the

Explanatory Memorandum makes it clear that a non-citizen will not be able to challenge their removal

on the basis that their claims of non-refoulement have not been assessed.457 The submission of the

Human Rights Law Centre to the Senate Standing Committee inquiry into the Amendment Bill also

states that the only way to know if the non-citizen would face a risk of harm on return to their home

country is to thoroughly assess the claims, however Amendment Act seeks to return non-citizens

regardless of whether this has been done.458 This lack of assessment could be very problematic in

situations like Betty’s. For example, if Betty had failed to apply for a protection visa in the requisite

time following her visa cancellation, she would be subject to removal with no assessment of non-

refoulement obligations being made.459 In this instance, she would be unable to challenge the decision

on the grounds that there had been no assessment of protection obligations.460

453 Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [24]: Citing Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, [33], [110] (Lander and Gordon JJ). 454 Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [24]. 455 Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 28; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1136]-[1137]. 456 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1130]. 457 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1141], [1146]. 458 Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014), [40]. 459 Non-refoulement obligations arise irrespective of whether there has been any formal assessment of non-refoulement obligations. See, eg, Lauterpacht and Bethlehem, above n 294, 161. 460 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1146].

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Additionally, the ability of the Minister to exercise one of these personal powers to prevent the removal

of a non-citizen is reliant on the Minister becoming aware of the removal of the non-citizen and being

aware that the non-citizen is owed non-refoulement obligations. The Minister may not be made aware

of the fact that the applicant is owed non-refoulement obligations where there has been no positive

assessment of those obligations in relation to the non-citizen. To compound these concerns, an officer

is not required to consider whether the non-citizen being removed is owed non-refoulement obligations

before removal.461 An officer is also under no obligation to check whether the Minister has considered

exercising any personal powers.462 Combined, these factors leave open the possibility that the Minister

will not be made aware of the case or the non-refoulement obligations owed before the removal occurs.


The passage of s 197C was accompanied by general statements that Australia would not remove non-

citizens in breach of Australia’s non-refoulement obligations. However, both s 36 and the personal

powers of the Minister cannot ensure that non-refoulement obligations are addressed before a non-

citizen is removed. As such, the safeguards relied on in the parliamentary materials are not sufficient to

prevent removal in character cases and the scheme of the Migration Act cannot ensure this outcome.

The possibility that s 197C may compel removal in breach of non-refoulement obligations was not

debated by parliament in passing this Bill. This may be because this outcome wasn’t foreseen or because

the Bill contained other elements of concern to Members of Parliament and Senators. The Migration

Act does not provide a mechanism to support the statements made during the passage of s 197C. This

creates a contradiction between the statements that Australia will not remove non-citizens in breach of

non-refoulement obligations and the operation of the legislation in reality.

461 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1132]. 462 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), [1132], [1146].

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IX CONCLUSION

The character provisions in the Migration Act are complex and interrelated. Under international law,

Australia owes non-refoulement obligations to non-citizens who are protected under the Refugee

Convention, CAT and ICCPR. This obligation requires that Australia does not return non-citizens owed

non-refoulement obligations to the countries in which they face harm. However, the Migration Act in

its current form does not ensure this. The three hypothetical applicants explored in this thesis represent

potential pathways by which a non-citizen may become subject to removal from Australia despite being

owed non-refoulement obligations by Australia. This possibility is left open due to the failures of ss 501

and 36(1C) and 36(2C)(b) to provide a full and thorough consideration of Australia’s non-refoulement

obligations in all cases. This weakness in the legislation is compounded by the introduction of s 197C.

The passage of s 197C was accompanied by a range of parliamentary materials which suggested that

the introduction of s 197C would not result in the removal of non-citizens in breach of Australia’s non-

refoulement obligations. However, the operation of s 197C, as interpreted in DMH16, combined with

the flaws in the character provisions of the Migration Act and the lack of procedural safeguards creates

a contradiction. That is, the contradiction between the continuing commitment of the Australian

government to respect Australia’s non-refoulement obligations and the operation of the Migration Act.

This failure is troubling when it is considered that the Australian parliament passed this legislation

under the apparent understanding that its passage would not result in the removal of non-citizens in

breach of those obligations.

The contradiction which exists between the operation of the Migration Act and Australia’s continuing

commitment to avoid returning non-citizens in breach of non-refoulement could be resolved in a number

of ways. Resolving this contradiction could be achieved through the creation of a mechanism by which

a non-citizen can avoid removal from Australia on the basis that they are owed non-refoulement

obligations. This could be achieved by repealing s 197C. However, the repeal of this section in isolation

would result in indefinite, indeterminate immigration detention for people affected by character. This

outcome raises a distinct set of legal questions relating to the legality of such detention and Australia’s

human rights obligations with respect to immigration detention.463 Alternatively, a strengthening of the

personal powers of the Minister could be considered to create a more reliable safeguard to prevent

removal when non-refoulement obligations are owed. The strengthening of personal, ultimately

discretionary, powers of the Minister brings with it another distinct set of legal questions. Relying on

the discretion of the Minister to ensure compliance with Australia’s international obligations may not

463 See above, in Chapter VI, subsection B.

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provide a sufficiently certain mechanism to ensure compliance with those obligations.464 To provide a

sufficient safeguard, the powers would need to ensure that every case of a non-citizen owed non-

refoulement obligations is brought to the attention of the Minister, and that the exercise of the powers

is both compellable and reviewable.

The repeal of s 197C and the strengthening of the powers of the Minister to prevent removal are both

changes which focus on the removal mechanisms. However, there are also changes that could be

considered to amend the provisions in ss 501 and 36. Strengthening these provisions could ensure that

a full and thorough consideration of Australia’s non-refoulement obligations occurs. This would, in

turn, ensure that Australia’s non-refoulement obligations are fully and thoroughly considered before a

non-citizen faces removal and would have the effect of significantly reducing the risk of a non-citizen

being removed in breach of non-refoulement obligations.

Major changes would be required to strengthen s 36 such that a non-citizen who is claiming the

protection of non-refoulement is given a full and thorough consideration of their case. To ensure that

non-citizens who are owed non-refoulement obligations under the Refugee Convention are not refused

protection visas, the provisions in s 36(1C) need to be shifted so that they more accurately reflect the

provisions contained in s 33(2) of the Refugee Convention. This could be achieved by amending the

definition of ‘particularly serious crime’ and ‘danger to the community’ to definitions reflecting the

narrow interpretation applied by international law. Additionally, strengthening s 36 would require a

shift in the complementary protection criteria such that exclusions on character grounds do not apply to

non-citizens owed non-refoulement obligations under the CAT and ICCPR. These two changes would

bridge the disconnect between the Australian legislation and international law. However, these changes

would not be sufficient to achieve the goal of strengthening s 36 unless changes are made such that

failing the character test in s 501(6) is no longer a ground for the refusal of a protection visa.465

Changes are also needed in s 501. As was illustrated by Alfie’s case, not all non-citizens owed non-

refoulement obligations are considered under s 36 after being convicted of crimes. As such, amending

the provisions in s 36 would not apply to every character cancellation case. This could be amended by

allowing non-citizens owed non-refoulement obligations to apply for a protection visa following the s

501 cancellation. This would require an exception to s 48A in character cancellation cases. Although

the Minister has the power to allow this to occur under s 48B, this power is non-compellable and

464 See, eg, Senate Select Committee, Parliament of Australia, Inquiry into Ministerial Discretion in Migration Matters (2004). See also, the discussion regarding the reliance on the personal powers of the Minister under s 417 of the Migration Act to ensure compliance with Australia’s complementary protection obligations prior to the 2011 legislative changes: United Nations High Commissioner for Refugees, Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”), UN Doc PPLA/2005/02 (June 2005). 465 This suggestion is also made by Savitri Taylor in ‘Taylor, above n 349, 90.

73

requires a public interest finding. Strengthening the provisions of the Migration Act would require that

the option of applying for a protection visa is open to all non-citizens owed non-refoulement obligations

following the cancellation of any visa on character grounds.

The Migration Act, as it currently stands, does not guarantee compliance with Australia’s non-

refoulement obligations in character cases. Without significant changes to the Migration Act or a

significant shift in Australia’s commitment to avoid the removal of non-citizens in breach of non-

refoulement obligations, there exists a contradiction between the operation of the Migration Act and the

commitment of the Australian Government. This legislation, which has the potential to result in grave

impacts on human rights, was passed through a parliament which was not fully cognisant of its impact.

Additionally, it’s passage was accompanied by parliamentary materials that did not accurately reflect

the operation or potential impact of the legislation.

74

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Bostock, Chantal, ‘The Effect of Ministerial Directions on Tribunal Independence’ (2011) 18 Australian Journal of Administrative Law 161

Bostock, Chantal, ‘Procedural Fairness and the AAT’s Review of Visa Cancellation Decisions on Character Grounds’ (2010) 17 Australian Journal of Administrative Law 77

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Bull, Melissa, et al, ‘Sickness in the System of Long-Term Immigration Detention’ (2013) 26(1) Journal of Refugee Studies 47

Burke, David, ‘Preventing Indefinite Detention: Applying the Principle of Legality to the Migration Act’ (2015) 37 Sydney Law Review 159

Chia, Joyce, ‘Back to the Constitution: The Implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38 UNSW Law Journal 628

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Crock, Mary, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian

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Freckelton, Alan, ‘The Benefit of Law, the Devil and the Jia Litigation’ (2015) 23 Australian Journal of Administrative Law 37

Grewcock, Michael, ‘Punishment, Deportation and Parole: The Detention and Removal of Former Prisoners Under Section 501 Migration Act 1958’ (2011) 44(1) Australia and New Zealand Journal of Criminology 56

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Grewcock, Michael, ‘Conviction, Detention and Removal: The Multiple Punishment of Offenders Under s 501 Migration Act’ (2009) UNSW Law Research Paper No. 2009-49

Kneebone, Susan, ‘Before the High Court: Ruddock and Others v Taylor’ (2005) 27(1) Sydney Law Review 143

Kosař David, ‘Inclusion Versus Exclusion or Vice Versa: What the Qualification Directive and the Court of Justice Do (Not) Say’ (2013) 25(1) International Journal of Refugee Law 87

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Mercurio, D and F Millevoi, ‘Out of Character: The Impact of the 2011 Amendments to the Character Test’ (2013) 26(1) Journal of Refugee Studies 47

Murphy, Kerry, ‘AAT Review of Character Cases: Section 501’ (2003) 13 Immigration Review 9

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Pert, Alison, Stephanie Abi Hanna and Cassandra Smith, ‘Le v Minister for Immigration and Border Protection (2016) FCA 1473’ (2016) 34 Australian Year Book of International Law 239

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Taylor, Savitri, ‘Exclusion from Protection of Persons of 'Bad Character': Is Australia Fulfilling Its Treaty based Non-Refoulement Obligations?’ (2002) 8(1) Australian Journal of Human Rights 83

Taylor, Savitri, ‘Australia’s Implementation of its Non-Refoulement Obligations Under the Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights’ (1994) UNSW Law Journal 433

Taylor, Savitri, ‘Guarding the Enemy From Oppression: Asylum-Seeker Rights Post-September 11’ (2002) 26 Melbourne University Law Review 396

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Bagaric, Mirko et al, Migration and Refugee Law in Australia: Cases and Commentary (Cambridge University Press, 2007)

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Lauterpacht, Sir Elihu and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003)

McAdam, Jane and Guy Goodwin-Gill, The Refugee in International Law (Oxford University Press, 3rd

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Robinson, Nehemiah, Convention Relating to the Status of Refugees - Its History, Contents and Interpretation: A Commentary (UNCHR, ed, 1997)

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C Reports

Amnesty International, A Turn for the Worse: Violence and Human Rights Violations in Anglophone Cameroon (2017)

Article 19, Iran: Executions of Kurdish Prisoners Must Stop Immediately (15 August 2016)

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Senate Legal and Constitutional References Committee, Parliament of Australia, Administration and Operation of the Migration Act 1958 (2006)

77

Senate Standing Committee on Constitutional Legal Affairs, Parliament of Australia, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Bill 2014 [Provisions] (2014)

Senate Select Committee, Parliament of Australia, Inquiry into Ministerial Discretion in Migration Matters (2004)

United Kingdom: Home Office, Exclusion (Article 1F) and Article 33(2) of the Refugee Convention Version 6.0 (2016)

D Cases

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227

AAE16 v Minister for Immigration and Border Protection [2017] FCCA 2667

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

Ahmed v Minister for Immigration and Border Protection [2017] AATA 1908

AIN17 v Minister for Immigration and Border Protection [2017] FCA 907

AKZ15 v Commonwealth [2015] FCCA 3285

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Al-Kateb v Godwin (2004) 219 CLR 562

ALN17 v Minister for Immigration and Border Protection [2017] FCA 726

Andrwas v Minister for Home Affairs [2018] AATA 1965

Anyoun and Minister for Immigration and Border Protection (Migration) [2018] AATA 174

AQM18 v Minister for Immigration and Border Protection [2018] FCA 944

ASP15 v Commonwealth (2016) 248 FCR 372

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

AZAFQ v Minister for Immigration and Border Protection [2015] 147 ALD 121

AZAFQ v Minister for Immigration and Border Protection [2016] 152 ALD 421

BCR16 v Minister for Immigration and Border Protection [2016] FCA 965

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456

Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463

78

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288

BHKM v Minister for Immigration and Border Protection [2018] AATA 3

BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153

BPX17 v Minister for Immigration and Border Protection [2018] FCA 763

Broadbent v Minister for Immigration and Border Protection [2018] FCA 173

Candemir v Minister for Home Affairs [2018] FCA 1360

CBYQ v Minister for Immigration and Border Protection (Migration) [2018] AATA 91

Chan v Minister for Immigration and Ethnic Affairs [1989] 21 ALD 139

Cotterill v Minister for Immigration and Border Protection [2016] 150 ALD 252

COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148

COT15 v Minister for Immigration & Anor [2015] FCCA 1407

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

DEY16 v Minister for Immigration and Border Protection (2016) 244 FCR 510

Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292

DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576

DOB18 v Minister for Home Affairs [2018] FCA 1523

EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536

Falzon v Minister for Immigration and Border Protection [2018] 351 ALR 61

FTYC and Minister for Immigration and Border Protection [2018] AATA 20

FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] 256 FCR 50

Jaffarie v Director-General of Security (2014) 226 FCR 505

Jayba and Minister for Immigration and Border Protection (Migration) [2018] AATA 385

79

JSDW and Minister for Immigration and Border Protection (Migration) [2017] AATA 2420

KDSP and Minister for Immigration and Border Protection (Migration) [2017] AATA 2169

Khan v Minister for Immigration and Ethnic Affairs [1897] 14 ALD 291

KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684

KRJF v Minister for Immigration & Anor [2018] FCCA 150

Le v Minister for Immigration and Border Protection (2015) 237 FCR 516

LKQD v Minister for Immigration and Border Protection [2018] AATA 2710

Maut v Minister for Home Affairs [2018] AATA 2754

Mazid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1641

Mehdi v Minister for Immigration and Border Protection [2017] AATA 2029

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v BCR16 [2017] HCA Trans 240

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

Minister for Immigration and Border Protection v Le [2016] 244 FCR 56

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653

Minister for Immigration and Border Protection v SZTZI [2016] 259 CLR 180

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Minister for Immigration and Multicultural Affairs v Betkhoshabeh [1999] 55 ALD 60

MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557

MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68

80

M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 85 ALD 597

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161

NBMB v Minister for Immigration & Citizenship [2008] 100 ALD 118

NBMT v Minister for Immigration and Border Protection [2012] FCA 508

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44

NDFN and Minister for Immigration and Border Protection (Migration) [2017] AATA 892

NKWF v Minister for Immigration and Border Protection [2018] FCA 409

Plaintiff M47/2012 v Director General of Security and Ors (2012) 251 CLR 1

Plaintiff M61/2010E v Commonwealth (2010) 241 CLR 319

Plaintiff M70/2001 v Minister for Immigration and Citizenship (2011) 244 CLR 144

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] 251 CLR 322

Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] 253 CLR 219

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92

PRHR v Minister for Immigration and Border Protection [2017] AATA 2782

Price v Elder [2009] 97 FCR 218

Re BHYK and Minister for Immigration and Citizenship [2010] AATA 662

Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] 214 CLR 1

Re Michael Jayba and Minister for immigration and Border Protection [2017] AATA 7470

Steyn v Minister for Immigration and Border Protection [2017] FCA 1131

Stowers v Minister for Immigration and Border Protection [2018] FCA 485

Suleiman v Minister for Immigration and Border Protection (2018) FCA 594

SVWW v Minister for Immigration and Border Protection [2018] AATA 1870

81

Swan Hill Corporation v Bradbury (1937) 56 CLR 746

SZOQQ v Minister for Immigration and Border Protection (2013) 251 CLR 577

SZOQQ v Minister of Immigration and Citizenship (2012) 200 FCR 174

SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1

SZTAL v Minister for Immigration and Border Protection [2016] 243 FCR 556

SZVBN v Minister for Immigration and Border Protection (2017) 254 FCR 393

TCWY v Minister for Immigration and Border Protection [2017] 158 ALD 27

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

Uelese v Minister for Immigration and Border Protection [2016] 248 FCR 296

Vabaza v MIMIA (unreported, Federal Court of Australia, Goldberg J, 27 February 1997)

WASB v Minister for Immigration and Border Protection (2013) 217 FCR 292

WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434

XFKR v Minister for Immigration and Border Protection [2017] AATA 2385

ZMBZ v Minister for Immigration and Border Protection (Migration) [2018] AATA 1869

E International Cases

Al-Sirri v Secretary of State, Home Department [2013] 1 AC 745

Ezokola v Canada [2013] 2 SCR 678

Febles v Canada [2014] 3 SCR 431

Haj Khalil v Canada [2008] 4 FCR 53

Kindler v. Canada [1991] 2 SCR 779

Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Soering v United Kingdom (1989) 11 EHRR 439

F Legislation

Crimes Act 1914 (Cth)

Explanatory Memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth)

82

Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Statement of Compatibility with Human Rights, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

G Quasi Legislative Materials

Administrative Appeals Tribunal, Practice Direction - AAT Guide to Refugee Law, 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 21 September 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 22 August 2018



Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 1 July 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 1 June 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 25 May 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 13 April 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 18 March 2018

Department of Immigration and Border Protection (Cth), Policy and Advice Manual 3, 1 January 2018

83

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014

Minister for Immigration and Border Protection (Cth), Direction [No 75] – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2c)(b), 6 September 2017

H Treaties

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Optional Protocol to the Convention Relating to the Status of Refugees 1967, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

International Covenant on Civil and Political Rights 1966, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

I Hansard

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9982 (Claire Moore)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9985 (Sarah Hanson-Young)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9988 (Ian Macdonald)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9993 (Penny Wright)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9994 (Zed Seselja)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 9998 (Linda Reynolds)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 10002 (Chris Back)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 10006 (Nick Xenaphon)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 10009 (John Madigan)

Commonwealth, Parliamentary Debates, Senate, 3 December 2014, 10009 (Matthew Canavan)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10260 (Kim Carr)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10263 (Susan Lines)

84

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10267 (David Bushby)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10267 (Janet Rice)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10271 (Alex Gallagher)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10275 (Christine Milne)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10279 (Joe Ludwig)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10283 (Lee Rhiannon)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10287 (Jan McLucas)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10291 (Christopher Ketter)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10294 (Peter Whish-Wilson)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10298 (Scott Ludlam)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10303 (Lisa Singh)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10307 (Ricky Muir)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10308 (Deb O’Neil)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10312 (Glenn Lazarus)

Commonwealth, Parliamentary Debates, Senate, 4 December 2014, 10319 – in committee

Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014 (Scott Morrison, Minister for Immigration and Border Protection)

Commonwealth, Parliamentary Debates, House of Representatives, 22 October 2014 (Richard Marles MP)

Commonwealth, Parliamentary Debates, House of Representatives, 22 October 2014 (Roy Wyatt MP)

Commonwealth, Parliamentary Debates, House of Representatives, 22 October 2014 (Giles Andrew MP)

Commonwealth, Parliamentary Debates, House of Representatives, 22 October 2014 (Melissa Price MP)

Commonwealth, Parliamentary Debates, Joint Standing Committee on Migration, Review Process Associated with Visa Cancellations Made on Criminal Grounds, 27 June 2018

Commonwealth, Parliamentary Debates, Joint Standing Committee on Migration, Review Process Associated with Visa Cancellations Made on Criminal Grounds, 16 July 2018 – 17 July 2018

85

Commonwealth, Parliamentary Debates, Joint Standing Committee on Migration, Review Process Associated with Visa Cancellations Made on Criminal Grounds, 23 July 2018 – 24 July 2018

Commonwealth, Parliamentary Debates, Joint Standing Committee on Migration, Review Process Associated with Visa Cancellations Made on Criminal Grounds, 15 August 2018

Commonwealth, Parliamentary Debates, Joint Standing Committee on Migration, Review Process Associated with Visa Cancellations Made on Criminal Grounds, 12 September 2018

Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014, 10546 (Scott Morrison, Minister for Immigration and Border Protection)

Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1240

J Submissions to Parliamentary Inquiries

Administrative Appeals Tribunal, Submission No 22 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Asylum Seeker Resource Centre, Submission No 13 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Attorney-General’s Department, Submission No 34 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Australian Human Rights Commission, Submission No 163 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

Australian Human Rights Commission, Submission No 11 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Australian Red Cross, Submission 164 Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

Castan Centre for Human Rights Law, Submission No 137 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

Crock, Mary, Submission No 34 to Senate Select Committee, Inquiry into Ministerial Discretion in Migration Matters (2004)

Department of Home Affairs, Submission No 29 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Department of Immigration and Border Protection, Submission 171 Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

86

Human Rights Law Centre, Submission No 166 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

Institute of International Law and Humanities, Melbourne Law School, and the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW, Submission No 167 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

Law Council of Australia, Submission No 30 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Law Council of Australia, Submission No 129 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

McAdam, Jane, Submission No 35 to Senate Select Committee Inquiry into Ministerial Discretion in Migration Matters (2004)

Refugee Council of Australia, Submission No 6 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Refugee and Immigration Legal Centre, Submission No 165 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

Refugee Legal, Submission No 35 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

SCALES Community Legal Centre, Submission No 24 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

United Nations High Commissioner for Refugees, Submission No 138 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [Provisions] (24 November 2014)

United Nations High Commissioner for Refugees, Submission No 15 to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration Amendment (Complementary Protection and Other Measures) Bill 2015 (3 December 2015)

Victoria Legal Aid, Submission No 19 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

Visa Cancellations Working Group, Submission No 33 to Joint Standing Committee on Migration, Inquiry into Review Processes Associated with Visa Cancellations made on Criminal Grounds (2018)

87

K United Nations Documents

Committee Against Torture, Mutombo v Switzerland, UN Doc. CAT/C/12/D/12/1993 (27 April 1994)

European Council on Refugees and Exiles, Background Paper for the International Course on the Application of Article 1C and Article 1F of the 1951 Convention Relating to the Status of Refugees (19 January 2003)

European Council on Refugees and Exiles, Position on the Interpretation of Article 1 of the Refugee Convention (1 September 2000)

Executive Committee of the United Nations High Commissioner for Refugees, Determination of Refugee Status, EXCOM Conclusions No. 8 (XXVIII) (12 October 1977)

Executive Committee of the United Nations High Commissioner for Refugees, Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection, EXCOM Conclusions No. 103 (LVI) (7 October 2005)

Executive Committee of the United Nations High Commissioner for Refugees, Conclusion on Local Integration, EXCOM Conclusions No. 104 (LVI) (7 October 2005)

Human Rights Council Working Group on Arbitrary Detention, Opinion No 50/2018 concerning Edris Cheraghi (Australia), UN Doc A/HRC/WGAD/2018/50 (1 October 2018)

Mutombo v Switzerland, UN Doc. CAT/C/12/D/12/1993

Roger Judge v Canada, CCPR/C/78/D/829/1998

Standing Committee of the Executive Committee of the High Commissioner’s Programme, Note on the Exclusion Clauses, 47th Session, UN doc EC/47/SC/CRP.29 (30 May 1997)

United Nations Ad Hoc Committee on Refugees and Stateless Persons, Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Forteith Meeting Held at the Palais des Nations, Geneva, on Tuesday, 22 August 2950, at 2:30 p.m, UN doc. E/AC.32/SR.40 (22 August 1950)

United Nations Ad Hoc Committee on Refugees and Stateless Persons, Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session, Geneva, 14 August to 25 August 1950, UN doc E/AC.32/8 (25 August 1950)

United Nations Conference of Plenipotentiaries on the Statues of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Sixteenth Meeting, UN doc A/CONF.2/SR.16 (23 November 1951)

United Nations Human Rights Committee, General Comment 20, UN doc HRI/HEN/1/Rev1 (28 July 1994)

United Nations High Commissioner for Refugees, Additional UNHCR Observations on Article 33(2) of the 1951 Convention in the Context of the Draft Qualification Directive (December 2002)

88

United Nations High Commissioner for Refugees, Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees (6 January 2006)

United Nations High Commissioner for Refugees, Asylum claims and drug offences: the seriousness threshold of Article 1F(b) of the 1951 Convention relating to the status of refugees and the UN Drug Conventions (1 March 2005)

United Nations High Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, UN Doc HCR/GIP/03/05 (4 September 2003)

United Nations High Commissioner for Refugees, Building In Quality: A Manual on Building a High Quality Asylum System (September 2011)

United Nations High Commissioner for Refugees, Cancellation of Refugee Status, UN Doc PPLA/2003/02 (March 2003)

United Nations High Commissioner for Refugees, Filling the Protection Gap: Current Trends in Complementary Protection in Canada, Mexico and Australia, Research paper No 238 (31 May 2012)

United Nations High Commissioner for Refugees, Global Consultations on International Protection/Third Track: Asylum Processes (Fair and Efficient Asylum Procedures), UN Doc EC/GC/01/12 (31 May 2001)

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV (December 2011)

United Nations High Commissioner for Refugees, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate (1 September 2005)

United Nations High Commissioner for Refugees, Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”), UN Doc PPLA/2005/02 (June 2005)

United Nations High Commissioner for Refugees, Refugee Protection in International Law - UNHCR's Global Consultations on International Protection (2003)

United Nations High Commissioner for Refugees, Providing International Protection Including Through Complementary Forms of Protection, UN Doc EC/55/SC/CRP.16 (2 June 2005)

United Nations High Commissioner for Refugees, Refugee Status Determination, UN Doc EC/67/SC/CRP.12 (31 May 2016)

United Nations High Commissioner for Refugees, The Refugee Convention, 1951: The Travaux préparatoires analysed with a Commentary by Dr. Paul Weis (1990)

United Nations High Commissioner for Refugees, Summary Conclusions on Non-Refoulement: Global Consultations on International Protection, Lisborn Expert Roundtable (3-4 May 2001)

89

United Nations High Commissioner for Refugees, Summary Conclusions on Non-Refoulement: Global Consultations on International Protection, Cambridge University Expert Roundtable (9-10 July 2001)

United Nations High Commissioner for Refugees, UNHCR's Expert Witness Testimony before the Inter-American Court of Human Rights, Hearing in the case of Pacheco Tineo vs. Bolivia, (19 March 2013)

United Nations High Commissioner for Refugees, UNHCR intervention before the Supreme Court of Canada in the case of Manickavasaga General of Canada (Respondents) (8 March 2001)

United Nations High Commissioner for Refugees, UNHCR Note on the Principle of Non-Refoulement (November 1997)

L Media Releases

United Nations High Commissioner for Refugees (UNHCR), ‘UNHCR statement: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill’ (Media Release, 26 September 2014)

M Internet Sources

Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Can Australia deport refugees and cancel visas on ‘character grounds’? (22 March 2017) <http://www.kaldorcentre.unsw.edu.au/publication/can-australia-deport-refugees-and-cancel-visas-character-grounds>

Department of Foreign Affairs and Trade, Government of Australia, Treaties, <https://info.dfat.gov.au/Info/Treaties/Treaties.nsf/WebView?OpenForm&Seq=3>

Department of Home Affairs, Key Visa Cancellation Statistics (2018) <https://www.homeaffairs.gov.au/about/reports-publications/research-statistics/statistics/key-cancellation-statistics>

Goodwin-Gill, Guy, Introductory Note: Convention Relating to the Status of Refugees and the Protocol Relating to the Statues of Refugees (2008) United Nations Audio-visual Library of International Law <www.un.org/law/avl>

N Other

Crock, Mary, ‘Refugees in Australia: Of Lore, Legends and the Judicial Process’ (Speech delivered at the Annual Colloquium of the Australian Judicial Conference, Darwin, 31 May 2003)

Grewcock, Michael, ‘Conviction, detention and removal: the multiple punishment of offenders under section 501 Migration Act’ (Paper presented to the Australian and New Zealand Society of Criminology Conference, Perth, 24 November 2009)

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Grewcock, Michael, ‘Multiple punishments: the detention and removal of convicted non-citizens’ (Paper presented to Australian and New Zealand Critical Criminology Conference, Melbourne, 8-9 July 2009)

91

ANNEXURES

92

A Alfie’s Application

Alfie leaves Iran. He has

been accused of apostacy

and fears for his life if he

returns.Alfie applies for a protection

visa and is granted a

permanent visa in Australia.

s 36Alfie

travels to

Australia

Alfie is convicted of a sexual

assault against a child and

serves a sentence of

imprisonment.

Alfie recieves notice that the

Minister has cancelled his

protection visa under s

501CA of the Act. This was a

mandatory cancellation

decision.

s 501

The Minister considers

whether or not to revoke the

cancellation decision. TheMinister considers

Australia's nonrefoulementobligations.

X X

Alfie is statute barred

from applying for

another protection

visa by s 48A.

Alfie is statute barred

under s 501E from

applying for any

permanent visa except a

protection visa.

Initial Visa Application

Visa Cancellation

Next Steps

The Minister may decide to

grant Alfie a visa under s

195A if he finds that it is in

the public interest.

The Minister may

exercise his power under

s 48B and allow Alfie to

apply for a protection

visa.

Alfie is detained until his

removal from Australia is

'resonably practicable'.

Australia's nonrefoulementobligations are not considered

in the removal process.

Alternative Management Options

93

B Betty’s Application

Betty leaves Cameroon to study

in Perth. The country is safe

when she leaves.

Betty is convicted of crimes in

Australia during her studies.


Betty holds a student visa in

Australia allowing her to study

and work in Australia.

Betty Travels

to Australia

Visa Cancellation

Betty is statute barred

under s 501E from

applying for any

permanent visa except

a protection visa.

Second Visa Application

Next Steps

Betty is statute

barred from

applying for

another protection

visa by s 48A.


X

X

The Minister may decide

to grant Betty a visa under

s 195A if he finds that it is

in the public interest.

The Minister may exercise

his power under s 48B to

allow Betty to apply for

another protection visa in

Australia.

Betty's visa is cancelled under

s 501. Nonrefoulement is notconsidered because Betty canapply for a protection visa.

s 501

Betty applies for a protection

visa under s 36. Her

application is refused using the

s 501. Nonrefoulement isconsidered.

s 36

Betty is detained until her


'reasonably practicable'.



94

C Charlie’s Application

Arrival and Detention

Charlie leaves

Afghanistan.

Charlie applies for protection

visa in Australia. Australia'snonrefoulement obligationsare considered however he

is not granted a visa.

s 36


Charlie is detained until his


'reasonably practicable'.



The Minister may

decide to grant Charlie a

visa under s 195A if he

finds that it is in the

public interest.

The Minister may exercise

his powers under s 48B

and allow Charlie to apply

for a protection visa.

Charlie is statute barred

under s 501E from

applying any permanent

visa except a protection

visa.

Charlie is statute barred from

applying for another protection

visa by s 38A.

Next steps

Charlie travels to

Australia by boat

and arrives at

Christmas Island.

He is involved in a riot and is later

convicted of damaging commonwealth

property.


XX

Charlie is placed in immigration

detention in Darwin. An

independant merits assessment

finds that Charlie is a person towhom Australia owes nonrefoulement obligations.

95

D Timeline of Key Cases and Legislative Changes

Part C Cases: consideration of s197C.

2014

2015

2016

2017

2018

Section 197C introduced bythe Migration and Maritime PowersLegislation Amendment (Resolvingthe Asylum Legacy Caseload) Act

2014

NBMZ v Minister for Immigration andBorder Protection (2014) 220 FCR 1

DMH16 v Minister for Immigrationand Border Protection (2017) 253

FCR 576

Ayoub v Minister for Immigration andBorder Protection [2015] 231 FCR 513

COT15 v Minister for Immigration andBorder Protection (No 1) [2015] 236

FCR 148

Cotterill v Minister for Immigration andBorder Protection [2016] 150 ALD 252

Minister for Immigration and BorderProtection v Le [2016] 244 FCR 56

NKWF v Minister for Immigration andBorder Protection [2018] FCA 409

AQM18 v Minister for Immigrationand Border Protection [2018] FCA

944

Part A Cases: deferringconsideration of nonrefoulement

to s 36.

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