34. The first ground asserts that the appellant was denied procedural fairness by the Minister’s failure to put the appellant on notice that the Minister might make a decision which would, contrary to Art. 12(4) of the ICCPR, arbitrarily deprive the appellant of the right to enter or remain in Australia. The appellant submits that a legitimate expectation arose that the Minister would observe relevant international obligations, including under Art. 12(4), when making a decision under s 501CA(4) of the Act.

35. Article 12(4) of the ICCPR provides that, “No one shall be arbitrarily deprived of the right to enter his own country.”

36. It is apparent that the Minister did not draw the attention of the appellant to Art. 12(4), nor invite comment from the appellant upon any proposed departure from the Article. It is not apparent that the Minister was under any obligation to do so.

37. The appellant’s argument relies upon a number of premises, including the following:

1. (1) The ratio decidendi of Teoh is that, subject to any contrary intention expressed by the legislature or executive, a legitimate expectation arises that the decision-maker will act in conformity with Australia’s international treaty obligations, irrespective of whether or not the affected person is aware of such obligations; and if the decision-maker proposes to make a decision inconsistent with any such obligations, the decision-maker must notify the affected person of the proposed departure and give the person an opportunity to make submissions against that course.

2. (2) That ratio has not been overruled by the High Court, so that lower courts are bound to apply it.

3. (3) In respect of decisions under s 501CA(4) of the Act, that legitimate expectation and obligation of procedural fairness has not been displaced by any contrary intention expressed by the legislature or the executive.

4. (4) The Minister’s decision to not revoke the cancellation decision departed from Art. 12(4) of the ICCPR by arbitrarily depriving the appellant of the right to enter his own country, Australia.

5. [Page 325] (5) The Minister’s failure to give the appellant an opportunity to comment upon that departure was material to the outcome of the decision.

38. In Teoh, the High Court considered a decision made under s 6(2) of the Act, which then conferred a broad discretion to grant a residence permit if particular criteria were satisfied, or to refuse a residence permit. The respondent, who had several Australian children, was refused a residence permit on the basis that he was not of good character. The case concerned whether a legitimate expectation arose that the decision-maker would act consistently with Art. 3(1) of the CROC, which required that the best interests of the children be a primary consideration, and whether procedural fairness required that the decision-maker give the respondent an opportunity to present a case against acting inconsistently with that expectation.

39. Chief Justice Mason and Justice Deane held at 290-2:

(Emphasis added, citations omitted.)

40. The reasoning of Toohey J in Teoh was similar. His Honour observed at 302 that, “there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation”.

41. Justice Gaudron reached the same conclusion, reasoning at 304-5 that Art. 3(1) of the CROC gave expression to a fundamental human right, and created an expectation that the obligation would be given effect. Her Honour indicated that position may not necessarily apply to other treaties or conventions, “not in harmony with community values and expectations”.

42. The doctrine of legitimate expectations has since been rejected by obiter dicta statements of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [25], [61]-[63], [81]-[83], [116]-[121] and [140]-[148], Plaintiff S10/2011 v. Minister for Immigration and Citizenship (2012) 246 CLR 636 at [65] and Minister for Immigration and Border Protection v. WZARH (2015) 256 CLR 326 at [28]-[30].

43. In addition, to the extent that Teoh suggests as a general principle that the ratification of an international treaty gives rise to a presumption or expectation that the executive government will act consistently with the treaty, even in the absence of legislation adopting the treaty as part of domestic law, that reasoning was strongly doubted by a majority of the High Court in Lam at [95]-[96], [98], [120]-[121] and [147].

44. The High Court has not directly overturned Teoh. An earlier ratio of the High Court is not overturned by later dicta of the High Court: cf. Viro v. R (1978) 141 CLR 88 at 151. Further, in Jacob v. Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200 at 207, 217 and Western Export Services Inc. v. Jireh International Pty Ltd (2011) 86 ALJR 1; [2011] HCA 45 at [3]-[4], the High Court firmly rejected the capacity of lower courts to adjudge its decisions to have been impliedly overruled.

45. However, there is some difficulty in identifying the ratio of Teoh. The critical passages from the reasons of Mason CJ and Deane [Page 327] J give rise to uncertainty as to the width of the ratio. Those passages contain a mixture of some statements that appear to be confined to the CROC and others that appear to extend more generally to other treaties. For example, their Honours stated at 291, “ratification of a convention is a positive statement … that the executive government and its agencies will act in accordance with the Convention”. Their Honours continued, “[t]hat positive statement is an adequate foundation for a legitimate expectation … that administrative decision-makers will act in conformity with the Convention …”. The reference to “a convention” was to conventions generally, whereas the references to “the Convention” were specifically to the CROC. Justice Toohey made the general statement at 301 that, “the assumption of such an obligation may give rise to legitimate expectations”, but his Honour’s later references were specifically to the CROC. Justice Gaudron’s reasoning was confined to the status of the children as Australian citizens and the CROC.

46. In Amohanga v. Minister for Immigration and Citizenship (2013) 209 FCR 487, Edmonds J considered an argument similar to the argument presented in this appeal, that the applicant had a legitimate expectation that he would not, contrary to Art. 12(4) of the ICCPR, be arbitrarily deprived of the right to enter his own country. However, Edmonds J considered that the ratio of Teoh is limited to the principle of a legitimate expectation arising that a decision-maker will act consistently with the CROC. His Honour held at [37] that as Teoh had not considered the ICCPR, the Court was not bound to apply the decision in respect of the ICCPR.

47. The High Court did not directly refer to the ICCPR in Teoh. In light of the uncertainty as to the width of the ratio of Teoh, the narrow approach taken by Edmonds J in Amohanga should be accepted. It follows that Teoh does not establish that a legitimate expectation arises that Art. 12(4) of the ICCPR will be observed, nor that procedural fairness requires that the affected person be given an opportunity to make submissions as to why the Minister should not depart from Art. 12(4).

48. Even if the ratio of Teoh were understood as a broad principle that a legitimate expectation arises that a statutory decision-maker will act in conformity with Australia’s international obligations, it was made clear in Teoh that a legitimate expectation is subject to any contrary indication by the legislature or executive. That qualification reflects the fundamental principle that the content of any obligation of procedural fairness depends upon the particular statutory context and the particular facts and circumstances of the case: see SZBEL v. Minister for [Page 328] Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. As was observed by the High Court in DQU16 v. Minister for Home Affairs (2021) 95 ALJR 352; [2021] HCA 10 at [19], the relevant question is not what the ICCPR provides, but the statutory question posed by the relevant provisions.

49. Section 501(3A) of the Act requires cancellation of a visa that has been granted to a person, in specified circumstances. Section 501CA(4) allows revocation of that cancellation. These are cognate provisions and should be considered together.

50. Article 12(4) of the ICCPR applies to protect a person from being “arbitrarily deprived” of the right to enter “his own country”. In Nystrom v. Australia (Communication No 1557/2007), the United Nations Human Rights Committee stated at para 3.2 that the concept of “his own country” is broader than “country of his nationality”, and at para 7.4 that the latter invites consideration of matters such as long-standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere. It can be accepted that, in some circumstances, Australia may be a person’s “own country” for the purposes of Art. 12(4) even though that person is not a citizen of Australia but holds a permanent visa.

51. Section 4(2) states that, “this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain”. Under s 14, a non-citizen who is in the migration zone without holding a valid visa is an unlawful non-citizen. Sections 189 and 196 require detention of unlawful non-citizens followed by removal from Australia. The obvious intention of ss 501(3A) and 501CA(4) is that some non-citizens will be deprived of their right to enter or remain in Australia.

52. Section 501 “applies indifferently to all visas”, as was observed in KDSP v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 at [282]. Sections 501(3A) and 501CA(4) are not confined to recent entrants to Australia, but apply also to non-citizens who have lived in Australia for most or all of their lives and have no connection with another country other than formal citizenship. It can be accepted that, in some cases, Australia will be a visa holder’s “own country”, and that the cancellation of the visa will mean that the person is deprived of the right to enter their “own country”.

53. As to what amounts to “arbitrary” deprivation under Art. 12(4), in Nystrom, the Committee stated at para. 7.6 that, “there are few, if any, circumstances in which deprivation of the right to enter one’s own [Page 329] country could be reasonable”. The Committee seemed to be equating “unreasonableness” with “arbitrariness”. In that case, the author’s visa had been cancelled under s 501(2) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v. Nystrom (2006) 228 CLR 566 at [3] and [72]. In circumstances where the decision to remove or deport the author had been made years after his convictions and release from prison and at a time when he was undergoing rehabilitation, the Committee ruled that the author’s deportation was arbitrary.

54. For the reasons that follow, ss 501(3A) and 501CA(4) of the Act are inconsistent with any obligation upon the Minister to draw Art. 12(4) of the ICCPR to the attention of the relevant person and give the person an opportunity to make submissions as to why the Minister should not depart from that Article. The regime created under these provisions is quite different to the broad discretion under the version of s 6(2) of the Act that was considered in Teoh.

55. In the first place, there are strong indications that Parliament considered that decisions made under ss 501(3A) and 501CA(4) would not be arbitrary and, therefore, would not be inconsistent with Art. 12(4). In Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 38, the plurality held that courts should, “favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty”. That is because, as Mason CJ and Deane J explained in Teoh at 287, in the enactment of a statute, Parliament is regarded, prima facie, as intending to give effect to Australia’s obligations under international law.

56. Section 501(3A) is carefully drafted. It requires the Minister to be satisfied of the existence of specific conditions before the power to cancel can be exercised, namely that the person has been sentenced to a term of imprisonment of at least 12 months, or has been convicted or found guilty of at least one sexually based offence involving a child, and is serving a sentence of imprisonment on a full-time basis in a custodial institution. Although s 501(5) excludes the rules of natural justice in relation to a decision under s 501(3A), that reflects the mandatory nature of the cancellation decision and the provision of a later opportunity to make representations as to revocation. In Falzon v. Minister for Immigration and Border Protection (2018) 262 CLR 333, Gageler and Gordon JJ observed at [89] that, “the purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of Parliament, should not be permitted to remain in Australia”. Accordingly, the purpose of s 501(3A) is to protect the Australian community.

[Page 330] 57. Section 501CA(4) allows a cancellation decision made under s 501(3A) to be revoked where representations are made and the Minister is satisfied that the person passes the “character test”, or there is “another reason why the original decision should be revoked”. Subsections 501CA(1)-(3) impose obligations of procedural fairness upon the Minister that must be complied with after the cancellation decision, but before a decision is made under s 501CA(4). Sections 476 and 476A provide for judicial oversight of the legality of visa cancellation decisions. Under Australian law, an administrative decision that is arbitrary may constitute a jurisdictional error and be liable to be quashed: see Minister for Immigration and Citizenship v. SZMDS (2010) 240 CLR 611 at [130], [135].

58. That Parliament considered the provisions do not arbitrarily deprive a person of the right to remain in Australia is strongly suggested by the assumption that Parliament intends to give effect to Australia’s obligations under international law, taken together with the protective purpose of s 501(3A), the confinement of the provision to persons who have committed serious criminal offences and are currently serving a sentence of imprisonment on a full-time basis, the opportunity to seek revocation, the ability of the Minister to revoke the cancellation, and other legal protections.

59. There is another indication that Parliament considered that decisions made under ss 501(3A) and 501CA(4) would not infringe Art. 12(4) of the ICCPR. Section 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires that a member of Parliament who proposes to introduce a Bill must cause a statement of compatibility to be prepared. The statement must include an assessment of whether the Bill is compatible with human rights, including, under s 3(1), human rights recognised or declared by the ICCPR. The Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), which introduced ss 501(3A) and 501CA into the Act, attached a Statement of Compatibility with Human Rights prepared by the Minister for Immigration and Border Protection. That statement discussed the potential incompatibility of the Bill with Arts. 6(1), 7, 9(1), 12(1), 13, 14(6) and (7), 17, 21, 22(1) and (2), 23(1), 24(1) and 26 of the ICCPR. It did not mention Art. 12(4). The inference to be drawn is that the Minister, and Parliament by passing the Bill, did not consider the Bill to be incompatible with Art. 12(4).

60. It may also be observed that the power to cancel a visa under s 501(3A) can only be exercised while the person is serving a sentence of imprisonment on a full-time basis in a custodial institution. In [Page 331] Nystrom, the Committee found that deprivation of the author’s right to enter Australia was arbitrary where the cancellation of the visa had occurred “a number of years” after his release from prison. Although this is a relatively minor factor, it does demonstrate that the circumstances in Nystrom are distinguishable from any that may arise under ss 501(3A) and 501CA(4).

61. Parliament plainly saw the power to cancel a visa under s 501(3A), taken together with the power to revoke the cancellation decision under s 501CA(4), as rational, necessary, confined, reasonable, proportionate, and not arbitrary. Parliament must be understood to have considered that these provisions are not inconsistent with Art. 12(4) of the ICCPR.

62. In WZARH, the plurality held at [30] that, “the real question” is, “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”.

63. In Lam, McHugh and Gummow JJ observed at [101] that the judgments in Teoh had accepted that unenacted international obligations are not mandatory relevant considerations. In Applicant S270/2019 v. Minister for Immigration and Border Protection (2020) 94 ALJR 897; [2020] HCA 32, the plurality held at [33] that any non-refoulement obligation owed under Art. 33 of the Convention Relating to the Status of Refugees (Refugees Convention) is not a mandatory relevant consideration under s 501CA(4), and continued at [36]:

64. Similarly, in Minister for Immigration and Border Protection v. DRP17 (2018) 267 FCR 492, the Full Court held at [47]:

(Citations omitted.)

65. In Minister for Immigration and Border Protection v. Maioha (2018) 267 FCR 643, the Full Court, referring to DRP17, held at [48]:

(see also Pennie v. Minister for Home Affairs [2019] FCAFC 129 at [12]; Hong v. Minister for Immigration and Border Protection (2019) 269 FCR 47 at [66]-[70]; Tohi v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [60]).

66. Unless Australia’s international treaty or convention obligations are raised in, or clearly arise from, the representations, the Minister is not required to consider them when making a decision under s 501CA(4) of the Act. The Minister has no general or abstract duty to invite representations concerning such obligations.

67. The appellant’s proposition is that procedural fairness requires that the Minister notify any person whose visa is cancelled under s 501(3A) of the existence of Art. 12(4), inform the person that an adverse decision under s 501CA(4) may not conform with that Article and invite the person to make submissions upon that matter. That proposition cannot be accepted in light of the view taken by Parliament that ss 501(3A) and 501CA(4) are not inconsistent with Art. 12(4) and the legislative intention that the Minister is not required to consider Australia’s international obligations unless they arise from the representations made.

68. It is unnecessary to consider whether the appellant was arbitrarily deprived of the right to enter his own country.

69. It is unnecessary to consider whether, upon Art. 12(4) of the ICCPR being raised in the representations in a particular case, it would be open to the Minister to decide that “another reason” for revocation is that the cancellation of the visa would contravene Art. 12(4). That issue was not argued.

70. It is also unnecessary to consider the Minister’s further argument that Direction No 79 indicates an intention by the executive that [Page 333] there can be no expectation that Art. 12(4) of the ICCPR will be complied with.

71. The primary judge was correct to hold that ss 501(3A) and 501CA(4) evince a clear, legislative intention inconsistent with any proposition that the Minister must notify the person of Art. 12(4) of the ICCPR and provide an opportunity to a person to make submissions upon why it should not be departed from. The appellant’s first ground of appeal must be rejected.

72. The second ground is that Art. 12(4) of the ICCPR is a mandatory relevant consideration for the Minister when making a decision under s 501CA(4) of the Act, and that the Minister failed to take that consideration into account.

73. As has been discussed, McHugh and Gummow JJ held in Lam at [101] that Teoh had accepted that unenacted international obligations are not mandatory relevant considerations: see also Snedden v. Minister for Justice (2014) 230 FCR 82 at [147]. In Applicant S270/2019 v. Minister for Immigration and Border Protection (2020) 94 ALJR 897; [2020] HCA 32, the plurality held at [33] that any non-refoulement obligation owed under Art. 33 of the Refugees Convention is not a mandatory relevant consideration for s 501CA(4) of the Act.

74. There is nothing in the text, subject matter, scope or purpose of s 501CA(4) of the Act which requires that Art. 12(4) of the ICCPR must be taken into account, unless raised in, or clearly arising from, representations made to the Minister.

75. The appellant’s alternative ground of appeal must be rejected.