Back at the Border: When Protection Ends at Departure — Lessons from Plaintiff S15/2025
Jason Donnelly and Chris Honnery
25.07.2025
Overview
Plaintiff S15/2025 concerned an application in the High Court’s original jurisdiction brought on behalf of a Syrian refugee who was refused a resident return visa under s 501(1) of the Migration Act 1958 (Cth).
Shortly before the final hearing, the Minister for Immigration and Citizenship conceded that the decision to refuse the Plaintiff’s visa was affected by jurisdictional error. Consequently, the matter was resolved by consent, such that the High Court will not deliver a judgment that would have considered the Executive’s responsibilities in respect of refugees permanently residing in Australia who seek to re-enter the country following a temporary departure. This post unpacks the central issues in the case, including the scope of Australia’s non-refoulement obligations and potential 'constructive refoulement', considers the implications of the Minister’s concession, and analyses the impugned decision to identify lessons for practitioners.
Background
The Plaintiff was granted a Subclass 866 Protection (Class XA) visa (a permanent protection visa) in 2011. Last year, he travelled to Saudi Arabia for the Hajj pilgrimage.
Because more than five years had passed since the Plaintiff’s protection visa had been granted, he could not use his protection visa to travel overseas by dint of cl 866.511 in sch 2 of the Migration Regulations 1994 (Cth) and s 82 of the Act. Instead, he travelled from Australia to Saudi Arabia on an ‘Titre de Voyage’ Convention Travel Document issued by the Australian Government issued in accordance with pt 2 div 1 of the Australian Passports Determination 2015 (Cth) and was required to apply for a resident return visa to re-enter Australia. That visa was ultimately refused by a delegate of the Minister under s 501(1) of the Act, which confers a discretionary power to refuse a visa if the visa applicant does not satisfy the Minister that they pass the character test.
The impugned decision
Despite the fact the most serious sanction the Plaintiff has received in Australia is a Community Correction Order, the delegate found he does not pass the character test according to s 501(6)(d)(i) of the Act on the basis that there was a risk that he would ‘engage in criminal conduct in Australia’. Consequently, the discretionary power to refuse the Plaintiff’s visa under s 501(1) of the Act, which enables the refusal of a visa if a visa applicant does not satisfy the Minister that they pass the character test, was enlivened.
The critical aspect of the delegate’s decision to exercise the discretion to refuse the plaintiff’s visa was the assessment of the legal consequences of the decision. In response to the Department of Home Affairs’ notice of intention to refuse his visa, the Plaintiff had submitted:
he is currently stuck in Saudi Arabia, with his Saudi visa having expired as it is only valid for the duration of the Hajj Season. He is without any legal right to work or any form of financial assistance or institutional support, and is unable to obtain another visa in Saudi Arabia;
if his visa is refused, he faces possible deportation to Syria as Saudi Arabia is not a signatory or party to the Refugees Convention and has a history of deporting refugees to countries from which they fled; and
refusal of his visa could amount to constructive refoulement by Australia, in breach of the Refugee Convention, and the obligations Australia recognised in relation to the applicant in 2011, and be damaging to Australia’s international reputation.
The delegate considered that Australia’s non-refoulement obligations could not be engaged because the Plaintiff was not in Australia. The delegate reasoned that it was open for the Plaintiff to apply for a Refugee and Humanitarian (Class XB) visa (Class XB visa), wherein any protection claims would be considered before any other visa criteria, such as character or security concerns. The delegate did not give the legal consequences of the decision any weight in the Plaintiff’s favour in considering visa refusal under s 501(1) ‘pending any future full assessment of relevant claims’.
Application to the High Court
The delegate’s reasoning in relation to the legal consequences of a refusal decision was the focus of the Plaintiff’s High Court application, which comprised three grounds.
First, that the delegate had misunderstood the law. While s 36A of the Act stipulates the sequence in which decisionmakers must consider the criterion for a protection visa, s 36A does not apply to a Class XB visa, which is not a ‘protection visa’ as defined by s 35A. By assuming the Plaintiff’s claims would necessarily be considered in a prospective Class XB visa application the delegate elided the distinction between a protection visa and a Class XB visa and erred in a manner akin to BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [43] because there was no provision preventing the refusal of a Class XB visa on character grounds without consideration of the substantive protection claims (cf s 36A of the Act).
Second, it was alleged the delegate failed to consider the Plaintiff’s submissions regarding the consequences of a visa refusal decision leaving him in Saudi Arabia, holding an expired visa and at risk of being returned to Syria. The Plaintiff applying for a Class XB visa would not consider his immediate hardship in Saudi Arabia arising from a refusal decision, which fell to be considered separately to the issue of whether he could be returned to Syria in breach of Australia’s non-refoulement obligations.
Third, the Plaintiff submitted the delegate’s approach of deferring consideration of his claims and attributing no weight to the legal consequences of the decision was illogical, lacked any evident and intelligible justification and was plainly unjust given:
any Class XB visa application would not consider his claims regarding the immediate hardship he faced living in Saudi Arabia and would focus on his situation vis-à-vis his home country Syria;
applying for another visa would prolong his precarious situation in Saudi Arabia and increase his risk of deportation to Syria;
Class XB visas are subject to annual caps, such that any XB visa could be refused, or be significantly delayed, due to quotas in Australia's Humanitarian Programme, as explained by the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [7]–[8].
Constructive refoulement
The principle of non-refoulement forms an essential protection in international human rights jurisprudence and refugee law. The principle precludes signatory states to the Refugee Convention from removing individuals from their jurisdiction, or effective control, when there are substantial grounds for believing the person could be at risk of persecution if returned to their country of origin.
A key issue underscoring grounds two and three of the Plaintiff’s application was the concept of ‘constructive refoulement’, and Australia being indirectly responsible for the Plaintiff’s refoulement, as they were aware that a visa refusal decision exposed him to being returned to Syria where he faced persecution.
The delegate purported to address this issue by finding Australia’s non-refoulement obligations were not engaged because the Plaintiff was not in Australia. The Plaintiff submitted this approach was erroneous as the obligation to prevent refoulement is not contingent upon a person's physical presence in Australia when a protection finding has been made in respect of them and a decision to refuse their visa directly influences their risk of harm.
The Plaintiff cited High Court authority and academic articles in support of this argument. For example, the High Court confirmed in the offshore processing case Plaintiff M61E/2010 v Commonwealth (2010) 243 CLR 319 at [27] that Australia’s protection obligations under the Act encompass not returning a person ‘indirectly’ to a country where they face persecution. Additionally, Sir Elihu Lauterpacht CBE QC and Daniel Bethlehem considered the scope and content of the principle of non-refoulement in their publication, ‘The Scope and Context of the Principle of Non-Refoulement: Opinion given to the United Nations High Commissioner for Refugees, 20 June 2001’ and explained “The responsibility of the Contracting State [i.e. the signatory to the Refugee Convention] for its own conduct and that of those acting under its umbrella is not limited to conduct occurring within its territory.” See further “The Scope and Context of the Principle of Non-Refoulement”: Opinion given to the United Nations High Commissioner for Refugees, 20 June 2001 at [62]–[67].
In this case, Australia had recognised the Plaintiff as a refugee and its responsibilities to him were not extinguished because he travelled temporarily outside of the territory. Australia’s existing obligations were underscored by the fact the Plaintiff travelled to Saudi Arabia on an ‘Titre de Voyage’ Convention Travel Document, which was based on the Plaintiff having been recognised as a refugee in accordance with the Australian Passports Determination.
The issuance of a Convention travel document illuminated the delegate’s error in reasoning that Australia’s non-refoulement obligations, as implemented in the Act, ‘cannot be engaged’ because he was not in Australia. While the Plaintiff needed to apply for a visa to return to Australia because the travel facility on his protection visa had expired, his refugee status did not dissipate merely because he was offshore. To the contrary, the Plaintiff’s refugee status was encapsulated in his Convention Travel Document and was an integral factor that fell to be considered in assessing the legal consequences of a decision to refuse his visa.
The Minister’s concession
Days before the scheduled hearing, the Minister conceded the delegate’s decision was affected by jurisdictional error because it was illogical to consider that it would be ‘open’ for the Plaintiff to apply for a Class XB visa. In particular, the Minister accepted that the delegate did not logically address the fact that a protection finding had previously been made in relation to the Plaintiff and that if he applied for the Class XB visa, he would be required to satisfy significant additional criteria (not required for the resident return visa) including those in subclause 200.211 and 200.226 of Schedule 2 of the Regulations.
The Minister’s concession means the issues of constructive refoulement, and the extra-territorial scope of Australia’s non-refoulement obligations, will not be scrutinised by the High Court.
Conclusion
The proceedings in Plaintiff S15/2025 underscore the chronic tension between Australia’s domestic character-based exclusion powers under s 501(1) of the Act and the country’s continuing, and fundamentally extra-territorial, non-refoulement obligations once refugee status has been recognised.
By treating the Plaintiff’s offshore location as a jurisdictional firewall against the operation of those obligations, the delegate adopted an unduly territorial conception of non-refoulement that is at odds with High Court authority (Plaintiff M61E, for example) and respected international commentary. That misconception then infected the balancing exercise under s 501, leading the delegate to give ‘no weight’ to legal consequences that were, in substance, the very mischief the Refugee Convention exists to avert—indirect return (constructive refoulement) to persecution.
The delegate’s reliance on the hypothetical availability of a Class XB visa merely disguised this analytical error, because that pathway is not a protection visa as defined by ss 35A–36A and, critically, remains vulnerable to character refusal before protection claims are assessed.
Equally significant is the way the decision illustrates the practical fragility of refugee status granted in Australia once the travel facility on a protection visa expires. The applicant’s inability to rely on the original Subclass 866 protection visa, coupled with the mandatory need for a new resident return visa, created a procedural ‘trapdoor’ through which s 501 could be activated without anything approaching the seriousness of criminality that ordinarily prompts such reliance—the highest sanction on the applicant’s record being a Community Correction Order.
This exposes a structural lacuna: recognised refugees can be stranded abroad, their Convention travel documents notwithstanding, if a delegate elects to treat prior protection findings as irrelevant to the s 501 discretion. Had the matter proceeded to judgment, the High Court could have clarified whether, and to what extent, executive decisionmakers must integrate pre-existing protection findings into the public-interest calculus when exercising migration discretions with foreseeable removal consequences.
The Minister’s eleventh-hour concession neutralised that opportunity, but it also tacitly affirms that a lawful exercise of the s 501 discretion cannot ignore (or postpone) consideration of constructive refoulement risks simply because the applicant is outside Australia or could lodge some other application. In doing so, the case reinforces an emerging judicial theme—seen recently in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273—that decisionmakers must grapple substantively with downstream legal consequences, rather than deflecting them through procedural possibilities or sequencing arguments.
For practitioners, the lesson is twofold: first, to press hard on the logical chain between existing refugee recognition and any proposed character-based refusal that would place the person at the mercy of a third state; and second, to challenge reasoning that treats alternative visa pathways as a panacea without addressing their practical accessibility or compatibility with Australia’s prior protection commitments. Absent a High Court ruling, the normative content of those principles remains shaped by concessions—but the concessions themselves reveal what the law, properly applied, already demands.
Associate Professor Dr Jason Donnelly and Mr Chris Honnery, counsel for the Plaintiff.
Suggested citation: Jason Donnelly and Chris Honnery, ‘Back at the Border: When Protection Ends at Departure — Lessons from Plaintiff S15/2025’ (25 July 2025) <https://www.auspublaw.org/blog/2025/07/back-at-the-border-when-protection-ends-at-departure-lessons-from-plaintiff-s15/2025>