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[2017] FCAFC 96
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BCR16 
v Minister for Immigration and Border Protection [2017] FCAFC 96 (13 June 2017)
Last Updated: 13 June 2017
FEDERAL COURT OF AUSTRALIA
BCR16 v Minister for Immigration and
Border Protection [2017] FCAFC 96
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Appeal from:
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File number:
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VID 1059 of 2016
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Judges:
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BROMBERG, DAVIES AND MORTIMER JJ
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Date of judgment:
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Catchwords:
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MIGRATION – exercise of power under s
501CA(4) of the Migration Act 1958 (Cth) – appellant made
representations in accordance with s 501CA(3) to the Assistant Minister that he
feared harm if forced to return to his country of nationality – Assistant
Minister failed
to consider appellant’s claim to fear harm in
circumstances where appellant could apply for protection visa – whether
exercise of revocation power under s 501CA(4) requires consideration of a claim
to fear harm in the applicant’s country of nationality in circumstances
where applicant may
apply for protection visa – consideration of whether
there is an order in which the criteria for a protection visa must be
considered
– discussion of Minister for Immigration and Border Protection v Le
[2016] FCAFC 120; (2016) 244 FCR 56 – appeal allowed
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Legislation:
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Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85
(entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature
28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for
signature 16 December 1996, 999 UNTS 171 (entered into force 23 March
1976)
Protocol Relating to the Status of Refugees, opened for signature 31
January 1967, 606 UNTS 267 (entered into force 4 October 1967)
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Cases cited:
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Mazid v Minister for Immigration and Multicultural and Indigenous
Affairs [2002] FCA 1641
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Date of last submissions:
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14 December 2016
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Registry:
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Victoria
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Division:
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General Division
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National Practice Area:
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Administrative and Constitutional Law and Human Rights
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Category:
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Catchwords
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Number of paragraphs:
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130
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Counsel for the Appellant:
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Solicitor for the Appellant:
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Clothier Anderson & Associates
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Counsel for the Respondent:
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Mr P R D Gray QC with Ms J Lucas
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Solicitor for the Respondent:
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Australian Government Solicitor
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ORDERS
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VID 1059 of 2016
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BETWEEN:
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BCR16 Appellant
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AND:
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MINISTER FOR IMMIGRATION AND BORDER
PROTECTION
Respondent
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JUDGE:
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BROMBERG, DAVIES AND MORTIMER JJ
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DATE OF ORDER:
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13 JUNE 2017
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THE COURT ORDERS THAT:
- The
appeal be allowed.
- The
orders of the primary judge made on 17 August 2016 be set aside.
- In
lieu thereof, order that the Assistant Minister’s decision dated 7
September 2015 be set aside, and the matter remitted for
determination according
to law.
- The
respondent pay the appellant’s costs of the appeal.
REASONS FOR
JUDGMENT
BROMBERG AND MORTIMER JJ:
- This
appeal concerns a matter of importance about the correct approach to be taken to
the exercise of the discretionary power in s 501CA(4) of the Migration Act
1958 (Cth), where the person affected by a mandatory cancellation of her or
his visa under s 501(3A) raises, as a reason in favour of revocation of the visa
cancellation, a fear of harm in her or his country of nationality.
- We
have had the advantage of reading the reasons of Davies J in draft. Her Honour
has summarised the general background to this appeal,
and the relevant
legislative provisions. We differ from her Honour on the outcome of the appeal,
because of the view we have taken
about the appellant’s second ground of
appeal. For the reasons set out below, in our opinion the appeal should be
allowed.
THE APPELLANT’S CIRCUMSTANCES AND THE ASSISTANT
MINISTER’S DECISION
- The
facts and background concerning the appellant, his criminal offending,
conviction and sentencing, his migration status, and the
course leading to the
cancellation of his visa and the Assistant Minister’s decision not to
revoke that cancellation, are set
out in the decision of the primary judge at
[13]-[42]. We do not repeat them here, or aspects of the legislative scheme,
unless it
is necessary to explain our reasoning. In particular, we do not repeat
the factual and evidentiary matters to which his Honour refers
concerning the
first ground of appeal, because we have not found his Honour’s decision to
be affected by any error in this
respect.
- However,
as to the second ground of appeal, where in our opinion the primary judge did
err, it is critical to examine the terms of
the representations made by the
appellant pursuant to s 501CA(3) of the Migration Act after the
mandatory cancellation of his Partner (Temporary) (Class UK) (Subclass 820) visa
on 6 February 2015. Those representations
were made in several different
documents, in response to an invitation under s 501CA(3). As is generally the
case, the invitation sent out to individuals in the appellant’s
circumstances did not indicate whether
the Assistant Minister intended to make
this decision personally, or through a delegate. The identity of the
decision-maker affected
the operation of what was then Direction No. 65 –
Visa refusal and cancellation under s 501 and revocation of mandatory
cancellation of a visa under s 501CA – a direction given by the
Minister under s 499 of the Migration Act and, by force of s 499(2A)
binding on delegates and merits review tribunals, but not binding on the
Minister or Assistant Minister personally.
- As
part of the invitation to make representations, the appellant was required to
complete what was described as a “Revocation
Request Form”, which
was in evidence. Again the form was structured in the alternative, giving the
individual affected no idea
whether the decision was to be made personally by
the Assistant Minister or by a delegate and therefore no idea whether the
matters
in Direction 65 were given force and effect through s 499 or not. It was
not argued that the failure to give notice to the appellant, at the time he was
putting forward his representations,
whether this decision would be made by a
person bound by Direction 65 or the Assistant Minister, was a denial of
procedural fairness.
The answer to that question may be left for another
day.
- On
this form, the appellant handwrote the following (identifying information
removed):
I urge the Minister of Immigration to intervene in this
matter under section 501 as reasons why the mandatory cancellation of my visa
should be revoked.
I have a daughter [redacted] who is the age 2 years (2 months) born on
[redacted]. It will be too dangerous for me and my daughter
to move overseas. I
am very remorseful many with strong family values. It is difficult for me to
travel constantly with my family
overseas as the current civil war in Lebanon is
getting very dangerous. I am a husband and father to a family who desperatly
need
my support on a social and psychological.
- In
another section of the form, the appellant was asked:
Do you have any concerns or fears about what would
happen to you on return to your country of citizenship?
If yes, please describe your concerns and what you think will happen to you if
you return
- The
appellant ticked “Yes” to the first question. As to the
amplification of this, he answered:
Lebanon is currently unsafe for myself and Alawites. If
I return I will then be harmed and possibly killed by insurgents and militants
who hate Lebanese Alawites. Also Lebanon is not a safe country for me, my wife
and daughter it is very dangerous.
- The
appellant’s representatives submitted a great deal of country information
about the situation in Lebanon for Alawites, as
well as the high levels of
sectarian violence in Lebanon. They also made written representations on a
number of matters covered by
Direction 65 (at this time, still not knowing
whether the decision was to be made by a delegate or the Assistant Minister
personally).
Those representations included the following:
- Evidently, it would not be in the best interest of the
child if the applicant was forced to leave Australia and return to his war
torn
part of Lebanon where he would face extreme challenges just to survive in the
current political and social environment. Extremist
sectarian groups are
targeting minority groups and driving them out of their homes and villages, if
not slaughtering them. With the
desire for the family unit to be together no
matter what the circumstances, the applicant could not bear the thought of
having his
spouse and child exposed to the very real threats posed by extremist
terrorist groups in the region, or even living in a country
where they are
culturally unaccustomed, and constantly living in fear of their lives.
The applicant belongs to a minority religious sect currently facing severe
persecution from the same radical extremists mentioned
above, and would be faced
with grave danger if forced to return. There is also a huge absence of
Government protection from the extremists
for this minority religious sect, and
there are no reallocation options available to them.
- In
this context, the appellant also made a further personal representation, as well
as those made on his behalf by his representatives.
He said:
Dear Sir/Madam.
I [the appellant], urge the dicision maker to take in consideration that I
cannot find any place in Lebanon to be safe for me and
my family, neither can I
start new life and work safely, mainly because I am from the allawite
minority.
My people is facing huge danger dew to the impact of the syrian civil war on
Lebanon, there was a lot of kidnapping shooting and
killing to people in Lebanon
only because the belong to alawite religion.
I have greater concern to the safety of my wife and daughter had they have to
live there that is totally unacceptable risk for me
and for my family to
take.
Yours faithfully
[the appellant]
(Identifying information removed.)
- None
of these representations, comprising the “reasons” under s 501CA(4)
put forward by the appellant, refer to Australia’s non-refoulement
obligations in terms.
- The
Minister’s senior counsel accepted that there was a requirement, in the
circumstances of this case, for the Assistant Minister
to consider, in a
meaningful way, the reasons in favour of a revocation given by the appellant in
his correspondence. That concession
was properly made.
- By
the time the briefing note was prepared, it is apparent a decision had been
taken that the Assistant Minister personally would
consider how to exercise the
discretion under s 501CA(4). The evidence does not reveal the time at which
this decision was made, nor its manner.
- The
briefing note carries a sub-heading of “International non-refoulement
obligations”, and it is only under this heading
that the matters to which
we have referred at [6] to [10] above are referred to. They are referred to by
way of a short summary of
some of the claims, and there are cross-references to
documents attached to the briefing note. There is then this statement, by way
of
summary (at [58]):
[the appellant] has made claims that may give rise to
international non-refoulement obligations. However [the appellant] is able to
make a valid application for another visa. In particular I note that [the
appellant] is not prevented by s501E of the Migration Act from making an
application for a Protection visa. Thus it is unnecessary to determine whether
non-refoulement obligations are owed
to [the appellant] for the purposes of
determining whether or not to revoke the mandatory visa cancellation decision.
(Identifying information removed.)
- The
briefing note consists of 120 paragraphs. This paragraph is the only paragraph
which deals with the claims we have set out at
[6] to [10] above.
- The
Assistant Minister’s statement of reasons for her decision follows the
format of the briefing note. In her statement of
reasons, there is also a
heading “International non-refoulement obligations”. Nothing from
the briefing note, nor any
other material, is there set out. The Assistant
Minister does not refer to any of the material to which we have referred at [6]
to
[10] above, nor to the country information. Rather, she states (at
[19]):
[the appellant] has made claims that may give rise to
international non-refoulement obligations. However [the appellant] is able to
make a valid application for another visa. In particular I note that [the
appellant] is not prevented by s501E of the Act from making an application for a
Protection visa. Thus it is unnecessary to determine whether non-refoulement
obligations
are owed to [the appellant] for the purposes of this decision.
(Identifying information removed.)
THE PRIMARY JUDGE’S REASONS
- After
transfer of the proceeding from the Federal Circuit Court to the Federal Court,
the appellant’s amended application raised
two grounds, which were set out
in the primary judge’s reasons at [7]:
The applicant seeks judicial review of the Decision on
two grounds:
(a) First, the applicant contends that the Minister denied the applicant
procedural fairness, constructively failed to exercise her
jurisdiction, or
otherwise failed to carry out her statutory task, by failing lawfully to
consider a ‘reason’ claimed
by the applicant as to why the
cancellation decision should be revoked, namely the best interests and
protection of the applicant’s
two-year old daughter.
(b) Secondly, the applicant contends that the Minister constructively failed to
exercise her jurisdiction, or otherwise failed to
carry out her statutory task,
by failing lawfully to consider a ‘reason’ claimed by the applicant
as to why the cancellation
decision should be revoked, namely that his removal
from Australia to Lebanon would breach Australia’s non-refoulement
obligations
under international law.
- His
Honour then summarised his findings on these two grounds at [8], which led to
the dismissal of the appellant’s judicial
review application:
For the reasons that follow, neither ground is made out.
In summary, my reasons are as follows:
(a) In relation to the first ground, it is clear from the Statement of Reasons
that the Minister did, at least to some extent, consider
the best interests of
the applicant’s daughter; indeed, the Minister found that the best
interests of the daughter would be
served by revocation. Further, the Statement
of Reasons is to be read with the Issues Paper, which was taken into account by
the
Minister. This demonstrates that the best interests of the
applicant’s daughter were considered. The applicant contends that
the
Minister erred by not assessing whether there was a real chance (more than a
theoretical possibility) that the daughter would
be harmed in Lebanon if (as the
Minister accepted) the applicant’s wife and daughter relocated there.
However, the Minister’s
reasons indicate she accepted the possibility of
sectarian violence and consequent hardship to the applicant’s family if
they
were to relocate to Lebanon. As the applicant accepts, the Minister was
not obliged to conduct some sort of inquiry. The Minister
was not required to
make a finding on the level of risk that would be faced by the daughter in
Lebanon.
(b) In relation to the second ground, in the Statement of Reasons the Minister
stated that the applicant was able to make a valid
application for a protection
visa and thus it was unnecessary to determine whether non-refoulement
obligations were owed in respect
of the applicant. It is common ground that the
statement that the applicant was able to apply for a protection visa was (and
still
is) correct. The applicant contends that the Minister’s analysis
betrays error; the statutory consequence of the Minister’s
decision was
that the applicant was required to be removed from Australia as soon as
reasonably practicable (s 198); by reason of s 197C, upon the making
by the Minister of her decision, there was no obligation for the Minister or any
officer to consider Australia’s
non-refoulement obligations under
international law before removing the applicant. In my view, in circumstances
where the visa the
subject of cancellation was a partner visa, and the applicant
was able to apply for a protection visa, it was open to the Minister
to decide
that it was unnecessary for her to determine the applicant’s claim based
on Australia’s non-refoulement obligations
and to leave this to be
assessed in the course of a protection visa application. The legal framework of
the Act and its operation
in the applicant’s circumstances were such that
the applicant was (and is) able to make an application for a protection visa.
Consistently with the Minister’s submissions, it is to be expected that
the applicant’s non-refoulement claims would
be assessed in the course of
determination of an application for a protection visa by the applicant (albeit
that, even if accepted,
they may not lead to the grant of a protection
visa).
THE AMENDED NOTICE OF APPEAL
- On
appeal to this Court, the appellant sought leave to rely on two amended grounds
of appeal which counsel frankly conceded had some
new aspects or, as counsel put
it, were more finely developed than the grounds before the primary judge. The
appellant had already
been granted leave to rely on an amended notice of appeal,
and the Minister was content to deal with all matters raised by the appellant,
so the appeal proceeded on that basis.
- Those
amended grounds were:
- The
Court erred by failing to conclude that the Assistant Minister denied the
Appellant procedural fairness, constructively failed
to exercise her
jurisdiction, or otherwise failed to carry out her statutory task, by failing
lawfully to consider a ‘reason’
claimed by the Appellant as to why
the Delegate’s visa cancellation decision should be
revoked.
....
- The
Court erred by failing to conclude that the Assistant Minister denied the
Appellant procedural fairness, constructively failed
to exercise her
jurisdiction, or otherwise failed to carry out her statutory task, by failing
lawfully to consider a ‘reason’
claimed by the Appellant as to why
the Delegate’s visa cancellation decision should be revoked. Further or
alternatively, the
Assistant Minister failed to take into account the Act and
its operation in making her decision, or misunderstood the Act and its
operation
in making her decision.
- Each
of the grounds was particularised in a way which reflected the way the arguments
were put on behalf of the appellant in written
submissions and at the hearing of
the appeal. We set those out in more detail below.
RESOLUTION
- The
legislative power in issue is one which imposes a duty on the Minister (or
Assistant Minister) to cancel the visa of a person
who fits within the terms of
s 501(3A). A discretionary power to revoke that cancellation arises in the
circumstances set out in s 501CA(4) and, in practical terms, the real
discretionary considerations subsist in the terms of s 501CA(4)(b)(ii) –
whether “there is another reason why the original decision should be
revoked”.
- The
two powers are distinct from ss 501(3) and 501C(4), whereby a person’s
visa may be cancelled by the Assistant Minister without affording procedural
fairness and that decision
may be revoked only in the very limited circumstance
of the person satisfying the Assistant Minister he or she passes the
“character
test” set out in s 501(6) (see, generally, the Full Court
decision in Taulahi v Minister for Immigration and Border Protection
[2016] FCAFC 177 at [50]- [51]).
- In
the case of s 501(3A) and s 501CA(4)(b)(ii), a wide discretion is given to the
Assistant Minister to revoke a cancellation she or he was duty bound to
make.
Ground 1: Assistant Minister’s approach to the best
interests of the appellant’s daughter
- At
[32]-[42], the primary judge set out in detail the material before the Assistant
Minister as contained in the Issues Paper prepared
by the Department, and the
Assistant Minister’s reasons for decision. As the primary judge noted at
[38], the Assistant Minister
said in her reasons at [11] that she had
“assessed all of the information set out in the Issues Paper and its
attachments”,
and that in particular she had considered the
appellant’s “representations and the documents” submitted by
him.
The primary judge was, with respect, correct to find that the Assistant
Minister’s reasons therefore needed to be read together
with the Issues
Paper.
- The
part of the Assistant Minister’s reasons which the appellant sought to
impugn by this ground is as follows (identifying
details removed):
- I
accept that [the appellant’s daughter] is an Australian citizen, given
that she was born in Australia and her mother was an
Australian citizen at the
time of her birth.
- I
accept [the appellant’s] claims that his wife and child will move to
Lebanon with him if he is removed from Australia. I
find that [the
appellant’s] claims of danger to his daughter if she were to relocate with
him to Lebanon due to sectarian violence
in that country, to be untested.
- I
accept that [the appellant’s] daughter is suffering some financial and
emotional hardship and dislocation during [the appellant’s]
absence as a
father, due to his wife needing to work whilst leaving their child with her
parents. I accept that this hardship will
continue if [the appellant] remains
separated from his family, is removed from Australia and his family do not
relocate to Lebanon
with him.
- I
find that the best interests of [the appellant’s daughter] would be served
by the revocation of the cancellation decision.
- The
appellant’s argument centred on the finding by the Assistant Minister in
the last sentence of [16], and in particular the
characterisation of the claims
as “untested”. At [63], the primary judge found this word was used
by the Assistant Minister
to mean “unevaluated”, a finding the
appellant relied on, and the Minister accepted on the appeal.
- The
appellant submitted that if by “untested” the Assistant Minister
meant “unevaluated” then in accordance
with what the appellant
submitted the Full Court’s decision in Wan v Minister for Immigration
and Multicultural Affairs [2001] FCA 568; 107 FCR 133 required by way of an
evaluation of the best interests of the child, the Assistant Minister could not
be said to have identified
the best interests of the appellant’s daughter,
nor to have assessed the weight to be given to them. That was because the
Assistant
Minister needed to evaluate the material submitted by the appellant
and make a determination about the likelihood of risks to the
daughter if, as
the Assistant Minister found, she would return to Lebanon with her father. In
contrast, the appellant submitted,
the Assistant Minister did make likelihood
assessments about the appellant’s risk of re-offending, and did not leave
these
matters “untested”.
- As
Davies J points out at [110]-[111] of her Honour’s reasons, the decision
under review in Wan was of quite different content and character to the
Assistant Minister’s decision in the present case. That can be seen from
[31] of the Full Court’s reasons:
Even if we are wrong in concluding that the Tribunal did
not identify what the best interests of the children indicated that it should
decide with respect to Mr Wan’s application for a visa, the conclusion is,
in our view, inescapable that the Tribunal did not
treat the best interests of
the children as ‘a primary consideration’ in its determination.
First, the Tribunal does
not anywhere in its written reasons for decision
describe the best interests of the children as ‘a primary
consideration’.
The Tribunal's reference to the ministerial direction is
not, in our view, sufficient to negate the significance of this omission
as the
Tribunal also refers to a ministerial direction and to a migration series
instruction which do not suggest that the best interests
of affected children
are a primary consideration. Secondly, the Tribunal in [34] of its reasons for
decision (see [17] above) appears
to describe matters touching on the interests
of the children as ‘subsidiary matters’. Moreover, in the same
paragraph
the Tribunal finds that matters touching on the interests of the
children do not ‘outweigh the strength of community expectations’.
That is, the Tribunal does not in fact treat the best interests of the children
as a primary consideration but rather treats considerations
touching on
community expectations as considerations which should prevail unless
‘outweighed’ by other considerations.
As Mason CJ and Deane JJ
pointed out in Teoh at 292:
‘A decision-maker with an eye to the
principle enshrined in the Convention would be looking to the best interests of
the children
as a primary consideration, asking whether the force of any other
consideration outweighed it.'’
- Moreover,
the primary judge’s approach to this argument was correct. At [62], his
Honour said:
Fourthly, in relation to the applicant’s
submission that the Minister was required to consider whether the reason put
forward
by the applicant (namely that, if the cancellation decision were not
revoked, his daughter would go to Lebanon with him and she would
face danger
there as a consequence of sectarian violence) was a good reason to revoke the
cancellation, but ‘abdicated her
function of assessing whether there was a
real chance ... that the daughter would be harmed’, I do not think it was
incumbent
on the Minister to make a finding on the level of risk that would be
faced by the daughter, in circumstances where the Minister concluded
that the
best interests of the child would be served by revocation of the cancellation
decision. It would be very difficult, if
not impossible, to do so on the basis
of the material provided. The applicant accepts that the Minister was not
obliged to conduct
some sort of inquiry. It is apparent from the reasons as a
whole that the Minister accepted that sectarian violence was a possibility
and
proceeded on this basis. That the Minister accepted that sectarian violence was
a possibility is clear from the sentence in
paragraph 24 of the Statement of
Reasons quoted in paragraph [41] above; it is also implicit in the finding (at
paragraph 18 of the
Statement of Reasons) that the best interests of the
daughter would be served by revocation. I think this provided a sufficient
basis to conduct the weighing exercise necessary to reach a
conclusion.
- We
respectfully agree. Read with [63] of his Honour’s reasons, no error is
disclosed. The Assistant Minister’s finding
that the best interests of the
appellant’s daughter would be served by revocation of the cancellation
decision (including because
otherwise the daughter would go to Lebanon with her
father and face dangers of sectarian violence) was sufficient identification
of
what the daughter’s best interests required. It was, however, then open to
the Assistant Minister to conclude that other
considerations outweighed these
interests, which is the conclusion she reached. Contrary to the
appellant’s submissions, we
do not consider the Assistant Minister set up
the risks to the Australian community as the principal consideration, and then
looked
at whether any other matter (such as the daughter’s interests in
revocation of the cancellation decision) outweighed these
risks. The reasons do
not bear out that contention. The reasons may be somewhat conclusionary and not
as detailed as they could be,
but they do not suffer from the erroneous approach
the appellant alleges.
Ground 2: the Assistant Minister’s approach to the risk
of harm to the appellant in Lebanon
- As
we have noted above, the way the appellant put the other “reason”
for the purposes of s 501CA(4) did not in terms include any contentions about
non-refoulement, being an obligation imposed on a State under international law
–
notably and most relevantly by Art 33 of the Refugees Convention
(Convention Relating to the Status of Refugees, done at Geneva on 28 July
1951 as amended by the Protocol Relating to the Status of Refugees, done
at New York on 31 January 1967). Rather, the appellant’s representations
focussed on his fears of the harm that would
face him in a practical and day to
day sense if he were forced to return to Lebanon.
- The
appellant contends the Assistant Minister did not address those reasons, and
further contends that [19] of the Assistant Minister’s
reasons (set out at
[16] above) is wrong in law and in fact.
- Relying
on NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38;
220 FCR 1 and NBNB v Minister for Immigration and Border Protection
[2014] FCAFC 39; 220 FCR 44, at [13] of his written submissions, the
appellant expressed the argument in the following way:
The Minister did not give proper, genuine and realistic
consideration to a representation that identified a ‘reason’ as
to
why the cancellation decision should be revoked. The basis upon which the
Minister sought to avoid consideration of that representation
(i.e., that
non-refoulement obligations would necessarily be considered if the appellant
made an application for a protection visa)
involved a misunderstanding of the
Act and its operation.
(Footnote omitted.)
- In
oral submissions, counsel for the appellant developed this argument by
submitting that the use of the word “thus” in
[19] of the Assistant
Minister’s reasons indicated a connection in the Assistant
Minister’s reasoning 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). That connection was said
to be the assumption that non-refoulement obligations will be examined during
the protection visa determination process. The appellant contends that is wrong
as a matter of law and has not been proven as a matter
of fact by the Minister.
- Although
the appellant accepts that the criteria for a protection visa at the relevant
time specified in s 36(2) of the Migration Act were intended, at least in
part, to give effect to Australia’s non-refoulement obligations under the
Refugees Convention, and
under the CAT (Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10
December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) and the ICCPR
(International Covenant on Civil and Political Rights, opened for
signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)), he
submits that there was, at the time of the Assistant Minister’s decision,
nothing in
the Act or in the Migration Regulations 1994 (Cth) which
governed the manner in which the Minister (or the Minister’s delegates)
were required to consider whether the criteria
for a protection visa were
satisfied, for the purposes of the task in s 65 of the Migration Act.
There was, he submitted, nothing to govern the order in which the criteria
needed to be considered. The logical consequence, the
appellant submitted, was
that the Minister and the Minister’s delegates were free to decide the
manner in which a protection
visa application would be considered, the steps
taken in that consideration, and the order in which criteria for a protection
visa
would be evaluated.
- That
submission should be accepted. At the time of the Assistant Minister’s
decision, s 65 provided:
65 Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a
visa, the Minister:
(a) if satisfied
that:
(i) the health criteria for it
(if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have
been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when
granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents
and destroying identity documents),
91WB (applications for protection visas by
members of same family unit), 500A (refusal or cancellation of temporary safe
haven visas),
501 (special power to refuse or cancel) or any other provision of
this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the
application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note 1: Section 84 allows the Minister to suspend the processing of applications
for visas of a kind specified in a determination made under that section.
Section 86 prevents the Minister from granting a visa of a kind specified in a
determination under section 85 if the number of such visas granted in a
specified financial year has reached a specified maximum number.
Note 2: See also section 195A, under which the Minister has a noncompellable
power to grant a visa to a person in detention under section 189 (whether or not
the person has applied for the visa). Subdivision AA, this Subdivision,
Subdivision AF and the regulations do not
apply to the Minister’s power
under that section.
Note 2: Decisions to refuse to grant protection visas to fast track review
applicants must generally be referred to the Immigration
Assessment Authority:
see Part 7AA.
(2) To avoid doubt, an application put aside under
section 94 is not taken for the purposes of subsection (1) to have been
considered until it has been removed from the pool under subsection
95(3).
- In
decision-making on a protection visa application, satisfaction that the visa
criteria are met, or not met, compels a result one
way or the other. This point
was made by Gummow J in Plaintiff M47/2012 v Director-General of Security
[2012] HCA 46; 251 CLR 1 at [136]:
It is plain from the terms of the section that s 36(2)
of the Act does not purport to cover “completely and exclusively”
the criteria for the grant of a protection visa. Section 31(3) explicitly
provides for the prescription by the Regulations of other criteria. It follows
that an applicant to whom the Minister
is satisfied Australia has protection
obligations under the Convention yet may fail to qualify for a protection visa.
(Footnote omitted.)
- And
Hayne J at [180]:
All the requirements of s 65(1) are important. It may be
possible to refer, as the parties’ arguments sometimes suggested, to some
of them as positive (satisfying
the health criteria) and others as negative (the
grant “is not prevented” by certain considerations). But a
distinction
between positive and negative requirements or criteria is not
helpful for present purposes. What is presently important is that s 65(1)
directs attention to different requirements.
- See
also Heydon J at [265]-[266].
- More
recently, in Plaintiff S297/2013 v Minister for Immigration and Border
Protection [2014] HCA 24; 255 CLR 179 at [34], Crennan, Bell, Gageler and
Keane JJ said:
The decision to be made by the Minister in performance
of the duty imposed by s 65 is binary: the Minister is to do one or other of two
mutually exclusive legally operative acts – to grant the visa under s
65(1)(a), or to refuse to grant the visa under s 65(1)(b) – depending on
the existence of one or other of two mutually exclusive states of affairs (or
‘jurisdictional facts’)
– the Minister’s satisfaction of
the matters set out in each of the sub-paragraphs of s 65(1)(a), or the
Minister’s non-satisfaction of one or more of those matters. The decision
is not made, the duty is not performed, and
the application is not determined,
unless and until one or other of those legally operative acts occurs: that is to
say, unless and
until the Minister either grants the visa under s 65(1)(a) or
refuses to grant the visa under s 65(1)(b). The Minister grants a visa by
causing a record of it to be made (s 67).
(Footnote omitted.)
- Thus,
the Act envisages non-satisfaction of health criteria could result in a duty to
refuse a visa. There is nothing in the scheme
to prevent or preclude health
criteria being examined first.
- Pertinently
there is also nothing in the legislative scheme to prevent the character
criteria to which s 65(1)(a)(ii) refers being considered first. The Minister or
the Minister’s delegates could decide to examine, first, the criteria in
public
interest criteria 4001 (which applies by reason of cl 866.225 of Schedule
2 to the Migration Regulations), and which provides:
4001
Either:
(a) the person satisfies the Minister that the person passes the character test;
or
(b) the Minister is satisfied, after appropriate inquiries, that there is
nothing to indicate that the person would fail to satisfy
the Minister that the
person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite
reasonably suspecting that the person does not pass
the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite
not being satisfied that the person passes the character
test.
- The
appellant’s protection visa application could therefore be refused under s
65 purely on character grounds pursuant to public
interest criteria 4001 (a) or
(b), and the Minister or the Minister’s delegate would, lawfully, never
reach active consideration
of the criteria in s 36(2)(a) and (aa), nor would the
s 501(1) discretion ever have been engaged.
- Likewise,
s 36(1B) and (1C) are also mandatory criteria. They provide:
(1B) A criterion for a protection visa is that the
applicant is not assessed by the Australian Security Intelligence Organisation
to be directly or indirectly a risk to security (within the meaning of section 4
of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person
whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s
security; or
(b) having been convicted by a final judgment of a particularly serious crime,
is a danger to the Australian community.
- Neither
of these criteria involve any consideration of the protection obligation
criteria in s 36(2) of the Act.
- In
our opinion these aspects of the Act support the appellant’s contentions
on this ground of appeal.
- We
also accept the appellant’s submissions that the circumstances in which
consideration of non-refoulement occurs are quite
different as between an
exercise of the revocation power in s 501CA(4) and an exercise of power under s
65 of the Migration Act. The revocation power is discretionary, and the
risk of significant harm to the appellant in Lebanon (whether for a Convention
reason
or otherwise, both may be relevant) would be a matter to be weighed in
the balance by the Assistant Minister. That returning an individual
to a country
where there is a real possibility of significant harm, or a real chance of
persecution, may contravene Australia’s
non-refoulement obligations, is
also a matter to be weighed in the balance of deciding whether to revoke a
mandatory visa cancellation.
Its place in an exercise of discretionary power is
quite distinct, and is capable of playing a quite different role in the exercise
of the statutory discretion.
- In
contrast, both in terms of text and of authority, s 65 involves a qualitatively
different exercise. In the task required by s 65, the Minister or his delegates
are to be “satisfied” of certain criteria, some of which, if
considered, may involve assessing
the risk of harm to a visa applicant if
returned to her or his country of nationality. The delegate, or the Minister,
may or may
not be “satisfied” to the requisite level about the
existence of any such risk, or about its nature or quality. Non-satisfaction
requires refusal of the visa. In the discretionary exercise for which s 501CA(4)
calls, as we point out elsewhere in these reasons, the nature and quality of the
risks which can permissibly be considered are much
broader, and are not
restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for
the exercise of the s 501CA(4) discretion, the Minister or his delegate is able
to give greater weight to a small risk, if on the material the decision-maker
reasonably
determines that is justified. Such is the nature of a discretionary
power. It is quite distinct from the task in s 65.
- For
example, if the Minister is satisfied that the appellant has been
“convicted by a final judgment of a particularly serious
crime” and
“is a danger to the Australian community” (the criterion in s
36(1C)(b)), then s 65 compels the Minister to refuse to grant a protection visa.
Whether the risk of harm to the appellant in Lebanon might be real, it
will
avail the appellant nought if other visa criteria are found not to be satisfied.
- The
distinction between the way s 65 operates and the way a discretionary power in s
501CA operates can be starkly illustrated by examining the appellant’s
circumstances, as they appear on the evidence before the Court
on the appeal. In
the appellant’s circumstances, the Assistant Minister found (at [44] of
her reasons) that the appellant’s
crimes were of a “very serious
nature” and were of a “violent nature”. She found the
“Australian community
could be exposed to great harm should [the
appellant] re-offend in a similar fashion”. She found (at [45]) the
appellant presented
an “unacceptable risk of harm” to the Australian
community, so much so that despite the best interests of his young daughter,
the
appellant’s family and social networks, his bonds in Australia, his
employment history all weighing in favour of revocation,
protection of the
Australian community outweighed these matters.
- In
our opinion, given the Assistant Minister’s existing, personal findings
about the appellant, the probability that the Minister,
or the Minister’s
delegate, may refuse a protection visa to the appellant on character grounds,
and that the scenario submitted
by the appellant will come to fruition, is real.
Otherwise, there would be the most egregious of inconsistencies in a serious
aspect
of administrative decision-making about the operation of the character
provisions in the Migration Act. As the appellant submitted, a sequence
of decision-making with character issues considered ahead of other criteria is
apparent even
from reported cases in the area, reported cases representing but a
small proportion of the administrative decisions actually made:
see for example
Mazid v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 1641 and Lam v Minister for Immigration and Multicultural
Affairs [2000] FCA 1226; 104 FCR 454. One can readily imagine why this is so
– an applicant who poses real character concerns so far as the Minister or
his delegates
are concerned is unlikely to be granted a visa, and it makes much
administrative sense for this to be dealt with as an initial consideration.
That
is not to say it must be done this way. Rather, the point is, the scheme of the
Act permits – and, one might say, contemplates
– it.
- For
the reasons we set out below at [60] to [70], we consider the appellant’s
submission has force, and should be accepted.
It is necessary to navigate the
relevant authorities in some detail to develop how, consistently with those
authorities, the Assistant
Minister’s reasoning in declining to consider
whether there was a real possibility of significant harm befalling the appellant
in Lebanon constituted a jurisdictional error.
- As
part of his contention on this ground, the appellant also submitted – as
an “additional strand” – that
once a protection visa refusal
was final, the mandatory removal provisions of ss 189, 196 and 198 would
apply, as would the terms of s 197C of the Act.
-
Section 197C provides:
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.
- In
this way, the appellant contended, any consideration of non-refoulement
obligations after the refusal of a protection visa would
be precluded by the
terms of the Migration Act.
- We
prefer not to determine this case on a ground dealing with the proper
construction of s 197C, which is a large issue and should await an appropriate
case for consideration. We note that North ACJ has dealt with some aspects
of
the effects of s 197C in DMH16 v Minister for Immigration and Border
Protection [2017] FCA 448. The text of the Explanatory Memorandum to the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum
Legacy Caseload) Bill 2014 (which inserted s 197C) at [1132]-[1146] is
mostly a policy statement rather than explanatory of the proper construction of
s 197C,
and we consider it to be of no relevance.
- Given
our conclusion on the principal way in which the appellant puts this ground, the
scope and effect of s 197C can be left for
another day.
Jurisdictional error identified
- Before
turning to the authorities, we should identify the passage in the Assistant
Minister’s reasons where the jurisdictional
error is revealed. It is in
[19] itself.
- By
the appellant’s representations, which we have set out at [6] to [10]
above, a “reason” has been put to the Assistant
Minister for the
purposes of the exercise of her revocation power under s 501CA(4). The Assistant
Minister states it is “unnecessary
to determine” whether
non-refoulement obligations are owed, because the appellant can make a
protection visa application. It is the Assistant Minister’s linkage
between her refusal to consider
the “reason” put to her by the
appellant, and the way the Act will operate if a protection visa application is
made,
which reveals the error. The Assistant Minister’s expression of her
understanding about the operation of the Migration Act and the
consideration of risks of harm to the appellant during consideration of a
protection visa application is incorrect, or at
least incomplete. Further, the
Assistant Minister’s characterisation of the “reason” as
“international non-refoulement
obligations” is also incorrect, and
an incomplete and inaccurate description of what the appellant was putting
forward as a
“reason” for the purposes of the exercise of the power
in s 501CA(4).
- Although
reasonable minds may differ on appropriate characterisations of jurisdictional
error in many circumstances, in our opinion
the appellant is correct to submit
in this case the argument is not about mandatory relevant considerations. That
is, it is not to
contend that the scope, subject-matter and purpose of the
revocation power in s 501CA(4) requires that Australia’s non-refoulement
obligations be taken into account (see Minister for Aboriginal Affairs v
Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40 (per Mason J)).
This is a distinct point from the one made by the Full Court in
NBMZ.
- Rather,
the error can be characterised as either a denial of procedural fairness or as a
failure to carry out the task required under
s 501CA(4). In relation to denial
of procedural fairness, see Picard v Minister for Immigration and Border
Protection [2015] FCA 1430 at [42], although in that case the procedural
fairness challenge failed for reasons summarised by Tracey J at [44]-[47]. In
our opinion,
that characterisation would not be appropriate in the present case,
because this was not a situation where, in her decision, the
Assistant Minister
took into account material from another source which was critical and relevant
to the appellant personally, but
did not disclose it. Rather, the Assistant
Minister formed a view she did not have to address, or turn her mind to, the
risk of serious
or significant harm that might be faced by the appellant on
return to Lebanon because that could be dealt with through another process,
if
the appellant chose to apply for a protection visa. This was the Assistant
Minister’s reasoning – no more than that,
and as the authorities
establish, she generally is not obliged to disclose her reasoning process ahead
of making a decision or to
provide a “running commentary”: see
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 63; 228 CLR 152 at [48]; Minister for Immigration and
Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9] (French CJ and Kiefel
J); Durani v Minister for Immigration and Border Protection [2014] FCAFC
79; 314 ALR 130; CQG15 v Minister for Immigration and Border Protection
[2016] FCAFC 146 at [92]- [93].
- The
error could also be characterised as a failure to carry out the task required
under s 501CA(4) which requires consideration of whether there is
“another reason” to revoke the visa cancellation. The appellant
submitted
that where a person raises “another reason” under
s 501CA(4)(b)(ii), part of the discharge of the Assistant Minister’s
task is to consider the reason raised, on a correct understanding of the
law. He
relied on Goundar v Minister for Immigration and Border Protection [2016]
FCA 1203 at [54], per Robertson J.
- Goundar
was a case with some basic similarities on the facts to this case, although
Robertson J’s reasoning hinged on a distinction
between consideration of a
risk of harm that engaged Australia’s protection obligations and a risk of
harm which did not: see
[47] of his Honour’s reasons. At [53], Robertson J
identified the jurisdictional error as one relating to a misunderstanding
of
“the scope of the harm with which a Protection visa is concerned or the
applicability of a Protection visa to the risk of
harm to which the
applicant’s representations referred”.
- This
led Robertson J to conclude at [54]:
The harm claimed by the applicant was not on the face of
it Convention-related harm because it had a private quality, and the claimed
harm was not coterminous with the significant harm referred to in s 36(2)(aa) as
defined in s 36(2A) of the Migration Act. The Minister proceeded on the
basis that he did not need to consider the representation of risk of harm
because of the line of authority
summarised in Le at [41]-[65]. That error had a
material effect on the Minister’s decision in that it was on that basis
that
he did not consider the claimed risk of harm and risk to the
applicant’s safety. The satisfaction referred to in s 501CA(4) is a
state of mind which must be formed on a correct understanding of the law: see
Wei at [33] and the authorities referred to in
footnote 30 to the reasons of
Gageler and Keane JJ. That is an implied condition of the valid exercise of that
power. Here there
was an incorrect understanding of the law. The case is one
of jurisdictional error.
(Emphasis added.)
- The
appellant in this appeal relied on the part of the passage we have emphasised in
the extract above. He submitted in the appellant’s
case, the Assistant
Minister had misunderstood the course of any consideration of a protection visa
application made by the appellant,
and that issues concerning risk of harm might
never be reached. In his written submissions, putting to one side the argument
about
s 197C which we do not propose to determine, the appellant identified two
misunderstandings of the law. The first was that the “Minister
considered
that non-refoulement obligations would ‘necessarily’ be considered
in the event that the appellant was to
make an application for a protection
visa”, when this was not the case. The second was that “the Minister
considered
that the subject of the appellant’s representation could, in
their entirety, be met by the availability to the appellant, on
application, of
a protection visa”, when this was not the case.
- The
first misunderstanding – identified as a misunderstanding of the likely
course of decision-making under the Migration Act – is one that we
accept is made out, for the reasons we have expressed at [42] to [52] above,
together with what we set out
below.
- The
language at [58] of the briefing note to the Assistant Minister (which we have
set out at [14] above) is materially identical
to the passage at [19] in the
Assistant Minister’s reasons, which we have extracted at [16] above.
Therefore, even on the assumption
that the Assistant Minister read and agreed
with the statements in the briefing note, her reasoning relevantly goes no
further than
what is at [19] of her reasons. There is no evidence of
consideration of the course of decision-making on a protection visa application
made by a person in the appellant’s position: that is, a person whose visa
had been cancelled under the mandatory terms of
s 501(3A), and a person whom the
Assistant Minister had personally decided should not be subject to a favourable
revocation decision under
s 501CA, because of the risk of harm he posed to the
Australian community. The Assistant Minister’s reasons do not advert to
the character
criteria for a grant of a protection visa. Her reasons disclose no
consciousness that the appellant’s protection visa application
may be
required to be refused because of non-satisfaction of character criteria, so
that considerations of risk of harm might never
be reached.
- A
person in the appellant’s position would be applying for a protection visa
in a very particular set of circumstances. The
scheme of the Act intends that a
person in his position be subject to automatic cancellation of his current visa
on character grounds,
and that he be compelled to seek a favourable exercise of
discretion to have it reinstated. A person in his position has failed to
persuade the Assistant Minister such a course should be taken because the
Assistant Minister has given primary weight to character
concerns and the risk
posed by the appellant, in the Assistant Minister’s opinion, to the
Australian community. In order for
the scheme of the Act to retain any integrity
and consistency, those particular considerations would inevitably intrude on any
decision-making
process in relation to an application for a protection visa. The
Assistant Minister’s reasons disclose no awareness of this.
- If
contrary to the opinion we have expressed above, there was no misunderstanding
by the Assistant Minister of the course any application
for a protection visa by
the appellant could be likely to take, we would in any event accept the
appellant’s alternative submission
that an error of the kind identified by
Robertson J in Goundar is present in the Assistant Minister’s
reasoning process.
- Both
the briefing note, and the Assistant Minister’s reasons, move immediately
to describing the relevant issue as “whether
non-refoulement obligations
are owed to [the appellant]”. We respectfully agree with Robertson J in
Goundar that the harm comprehended by such obligations, whether under the
Refugees Convention or under CAT and the ICCPR, does not describe
the universe
of harm which could be suffered by a person on return to her or his country of
nationality. Rather, those international
instruments are directed at state
parties’ obligations to avoid particular kinds of harm befalling a person
who may be returned
to her or his country of nationality (and in the case of the
Refugees Convention, for particular reasons).
- Here,
as we have noted several times in these reasons, the appellant did not describe
the harm he feared by reference to “non-refoulement”.
It may well be
the case that the harm he identified was not viewed as having a sufficient
likelihood to bring him within either kind
of international protection
obligations. Or, it may be the nature of the harm he feared was necessarily
outside either kind of international
protection obligations. The Assistant
Minister’s reasons disclose no understanding of those possibilities.
Rather, her reasons
betray two misunderstandings: first that the appellant was
identifying non-refoulement obligations as a concept when he had not;
and second
that the harm he feared was necessarily within that protected by
Australia’s international non-refoulement obligations.
Whether or not the
harm the appellant feared had a “private quality” as the harm
identified in Goundar, there were other reasons it might be harm outside
the kind covered by Australia’s international non-refoulement obligations.
Nevertheless, the harm as the appellant expressed it was put forward by him as a
“reason” the Assistant Minister should
revoke the cancellation. She
did not consider it. Her failure to do so flowed from the misunderstandings we
have identified and is
properly characterised as an error of a jurisdictional
kind because it went to the lawful discharge of her task.
- We
reject the Minister’s submission that it is enough to avoid error on the
part of the Assistant Minister that there was a
“real possibility”
the risk of serious or significant harm to the appellant might be addressed
during consideration of
any protection visa application he made. There are
several reasons for this. First, as we have noted above, the kind of harm
identified
by the appellant was not restricted to harm as that concept is
understood in either set of domestic protection obligations, or in
either kind
of international non-refoulement obligations. Second, as we have noted above,
the role of the consideration of whether
serious or significant harm might
befall the appellant in Lebanon (for Convention or non-Convention related
reasons) has a quite
different place in a discretionary decision about
revocation, to the place it may have, if reached, in a protection visa
assessment.
In the former, it need not have any particular quality to affect the
exercise of discretion – the weight of the prospect of
harm is a matter
for the Assistant Minister rather than part of any fixed visa criterion. That is
in stark contrast to the role these
matters play under s 65 of the Act.
- Third,
the Minister relies on the Full Court in Minister for Immigration and Border
Protection v Le [2016] FCAFC 120; 244 FCR 56 at [61(f)]), where the Court
said, in the context of a discussion about the range of personal powers
available to the Minister in the Migration Act:
This difficulty [i.e that the powers are
non-compellable] may be overcome in a case where, at the time consideration is
being given
to the exercise of the powers under s 501(1) or s 501(2), there
is some material which indicates the real possibility of the Minister
exercising his or her personal powers in favour of the affected person...
(Emphasis added.)
- This
extract does not assist the Minister’s argument. On its face, the Court
was referring to a circumstance where there was
evidence tending to prove a
possibility the Minister might exercise non-compellable powers. Translating that
to the current circumstances,
there is no evidence the Minister would consider
the risk of harm to the appellant if he made a protection visa application.
Thus,
the level of proof required is not raised. Connected to this, it is clear
that the Court cannot speculate about the course decision-making
might take
other than by reference to two factors: the scheme of the Act; and any evidence
before the Court. On the former, it is
clear, as the appellant submits, that no
particular process for the assessment of protection visa criteria is dictated by
the scheme
of the Act – that is, the scheme of the Act does not suggest or
require that the criteria in s 36(2)(a) and (aa) be addressed first, or at all.
On the latter, the evidence is overwhelming that the Assistant Minister has
decided (after
the scheme of the Act itself determined) that the appellant is a
person of such character concern that he should not be permitted
to remain in
Australia. That evidence suggests a probability that any protection visa
application would be decided on character grounds.
Le and other Full Court authority
- It
remains for us to deal with the Full Court decisions in Le, and
NBMZ, and the authorities to which they refer.
- The
first matter to note about the Full Court’s decision in Le is the
first paragraph of its reasons:
The central issue in the appeal is whether the primary
judge erred in finding that Australia’s non-refoulement obligations to
the
respondent were a mandatory consideration in exercising the Minister’s
power under s 501(2) of the Migration Act 1958 (Cth) to cancel the
respondent’s visa.
- Le
concerned an exercise of the Minister’s personal discretionary
cancellation power under s 501(2) of the Act. The argument put to the Full
Court, and on which its decision and reasons are based, was a mandatory
considerations argument:
this is confirmed at [17] of the Full Court’s
reasons.
- In
Ms Le’s case, after her conviction and sentence to eight years’
imprisonment in 2000 in relation to trafficking in
dangerous drugs, the Minister
assessed whether to cancel her visa in 2007, and decided not to do so. The
Minister then considered
cancellation again in 2014, after Ms Le had been
convicted and imprisoned for a second time in relation to trafficking of drugs.
This time, the Minister decided to cancel her visa. The statement of reasons
given by the Minister on the second occasion described
Ms Le as having arrived
in Australia “as a refugee”, and described the assessment of
non-refoulement obligations in connection
with the first cancellation decision.
The statement of reasons then stated:
Ms LE has not made any claims in relation to the current
character consideration process that require assessment in relation to
Australia’s
international non-refoulement obligations, however she is able
to make a valid application for another visa. I note that Ms LE is
not prevented
by s48A of the Migration Act from making an application for a Protection visa.
Thus it is unnecessary to determine whether non-refoulement obligations are owed
to Ms LE for the purposes of determining whether her visa should be
cancelled.
- The
Full Court summarised its conclusion on the argument put at [41]:
In our view, this was not a mandatory relevant
consideration under s 501(2) in circumstances where it remained open to Ms Le to
make an application in Australia for a protection visa, at which point
compliance
with Australia’s non-refoulement obligations (and the prospect
of her indefinite detention) would have to be considered by
the Minister. It is
critical to this analysis that, as the Minister acknowledged in both paragraph
48 of his statement of reasons
and in his submissions to the Court, there is no
legal impediment to Ms Le applying in Australia for a protection
visa.
- At
[42], the Full Court stated its analysis was consistent with the Full
Court’s approach in both Ayoub v Minister for Immigration and Border
Protection [2015] FCAFC 83; 231 FCR 513 and COT15 v Minister for
Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148.
- Noting
that Allsop CJ was a member of the majority in NBMZ and of the Full Court
in Le, in Le at [46]-[47], the Full Court said this about
NBMZ:
Nothing in Ayoub casts doubt on the correctness
of the central finding by Allsop CJ and Katzmann J in NBMZ at [17] that,
in considering whether or not to refuse a protection visa under s 501(1) of the
Migration Act to a person who had been assessed as having the status of a
refugee for the purposes of the Refugees Convention, the Minister is
obliged to
take into account the legal consequences of his decision (and, to similar
effect, see Buchanan J at [177]).
Significantly, in NBMZ, the appellant had been assessed as a refugee for
the purposes of the Refugees Convention and had applied for a protection visa.
The Minister exercised his discretion under s 501(1) to refuse that application.
By operation of s 48A of the Migration Act (and subject to the
Minister’s discretion under s 48B) the appellant was precluded from
lodging in Australia a fresh application for a protection visa. As a person who
was an unlawful
non-citizen, the appellant had to be detained (s 189) and
removed from Australia as soon as reasonably practicable (s 198). Under s 195A,
the Minister had a discretion to grant a detainee a visa where the Minister
thought that it was in the public interest to do so
(whether or not a visa
application had been made), but as each member of the Full Court in NBMZ
pointed out, there was no reference in either the Department’s briefing
paper or in the Minister’s statement of reasons
to the possibility or
willingness of the Minister to contemplate granting the appellant a visa under
that provision. The Full Court
found that, in these circumstances, the matter
should be determined on the hypothesis that the appellant would be indefinitely
detained
and any question of a visa being granted under s 195A was a matter of
speculation. Thus it was in those particular circumstances that the Full Court
found in NBMZ that the Minister was obliged, in considering the exercise
of his power under s 501(1), to take into account the legal consequences of his
decision to refuse the protection visa on character grounds, which consequences
included the prospect of the appellant being detained indefinitely in
Australia.
- Thus,
it is clear that NBMZ, which concerned exercise of the discretionary
power under s 501(1) of the Act, has been interpreted by the Full Court in
Le as also dealing with a mandatory considerations argument, which arose
in circumstances where there was no evidence of a real possibility
the Minister
might exercise his personal powers under s 195A to release the appellant in
NBMZ from detention. We note the consideration was described as
“the legal consequences of [the Minister’s] decision”
which,
in NBMZ was said to be indefinite detention. At [58], the Full Court in
Le also noted that in NBMZ, the visa which had been refused was a
protection visa so that the appellant in that case was barred by s 48A from
applying for a second protection visa unless the Minister exercised the personal
discretion in s 48B. This, it can be inferred from what was said in Le at
[58], serves further to identify why on the facts of NBMZ, the Full Court
found the “real possibility” of indefinite detention to be a legal
consequence and in turn part of a
mandatory consideration concerning the legal
consequences of the Minister’s decision.
- Their
Honours then considered another Full Court decision, Cotterill v Minister for
Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29, in which a
failure by the Minister to consider the prospect that the appellant in
Cotterill would be indefinitely detained was also found to be a
jurisdictional error. Cotterill was a cancellation decision under s
501(2) of the Act. There was material before the Minister to the effect the
appellant could not be removed after cancellation of his visa
because of the
state of his health, thus the prospect of indefinite detention was raised. In
Le at [58], the Full Court said this about the outcome in
Cotterill, in the context of emphasising that none of the previous Full
Court decisions suggested that “in exercising the power under
s 501(2),
the Minister must in every such case take into account the prospect of
indefinite detention as an aspect of the legal consequences of such a
decision”
(emphasis in the original):
The facts in Cotterill do not suggest that there
was any factual basis for the appellant in that case to make an application for
a protection visa either
in Australia or elsewhere. The prospect of his
indefinite detention in Australia related to his ill-health and not to
Australia’s
non-refoulement obligations.
- Finally,
the Full Court in Le considered AZAFQ v Minister for Immigration and
Border Protection [2016] FCAFC 105; 243 FCR 451, (Allsop CJ, Robertson and
Griffiths JJ), which had been handed down after judgment in Le was
reserved, and distinguished it because it did not involve the cancellation of a
protection visa.
- It
is true that the Full Court in Le then said, at [60]:
To sum up, we do not consider that there is any material
inconsistency in the Full Court decisions referred to above. These decisions
illustrate the potential complexity of the issues. There is a potentially wide
range of factual circumstances which can arise when
consideration is being given
to the exercise of the significant powers in s 501(1) and (2). Those factual
circumstances may relate to the individual’s personal circumstances, which
can themselves vary enormously.
The matter is further complicated by the
possibility that the individual’s legal status as an unlawful non-citizen
(which necessarily
flows from the cancellation decision and the operation of s
501F) might change because, for example, the person has a right to apply for
another visa, including a protection visa. The consideration
of any such
subsequent protection visa application will require an assessment of
Australia’s non-refoulement obligations and
the prospects of the person
being detained indefinitely. Another relevant factor is whether, at the time of
considering the exercise
of the powers in s 501(1) or s 501(2), there is any
material which is relevant to the likelihood of the Minister exercising his or
her personal powers under provisions
such as s 195A to grant the person a visa
(even in the absence of a visa application) which would have the effect of
bringing to an end that person’s
detention and displace the duty to remove
the person under s 198. Another relevant matter is the operation of s 197C of
the Migration Act, which makes plain that Australia’s non-refoulement
obligations are not a relevant consideration when an officer comes to discharge
the statutory duty imposed by s 198 to remove an unlawful non-citizen as soon as
reasonably practicable. Necessarily, therefore, to the extent that that issue is
material
it must be addressed at an earlier stage in the decision-making
process.
- The
statement in the middle of that paragraph (“[t]he consideration of any
such subsequent protection visa application will
require an assessment of
Australia’s non-refoulement obligations and the prospects of the person
being detained indefinitely”)
must be read in the context of the entire
paragraph. Arguments such as those put in this appeal were not put to the Full
Court in
Le, and their Honours’ obiter use of the phrase
“will require an assessment” should be understood in that
light.
- Further,
the context of NBMZ and the cases to which the Full Court referred in
Le was whether the exercise of a discretionary power (refusal or
cancellation of a visa under s 501(1) or (2)) was conditioned by a mandatory
consideration: namely, the legal consequences (and, at least per North J at
[107] in Cotterill, the “practical” consequences) for a
particular person of exercising the discretion to refuse or cancel a visa.
Indefinite
detention as a legal consequence was identified, in the particular
case, as a real possibility and thus formed part of the relevant
consideration.
- The
possibility, in some cases, of a further visa application in the form of a
protection visa application was raised in the passage
extracted from Le
at [88] above as a factual circumstance which, in a given case, may affect
whether and how the spectre of indefinite detention is
to be taken into account
as a “mandatory” relevant consideration.
- That
is expressly not the context in which the appellant’s contentions are
framed. This is not an appeal about mandatory considerations,
and what facts or
evidence may need to be taken into account by a decision-maker where such a
consideration arises. We do not understand
any of the authorities expressly to
identify Australia’s international non-refoulement obligations as part of
the now established
mandatory consideration of “the legal
consequences” of a refusal or cancellation under s 501(1) or (2). Indeed,
the Minister’s argument is quite the opposite. The courts in these cases
were simply not asked to grapple with
the argument now put to this Court: namely
that the legislative scheme which centres on s 65 does not require the s
36(2)(a) and (aa) criteria to be addressed in considering a protection visa
application if a decision-maker elects to consider other criteria
first, and
finds other criteria not satisfied. At that point the duty to refuse
crystallises, and may do so without s 36(2)(a) and (aa) having been addressed at
all, or without having addressed in particular what might be comprehended by the
phrase “Australia’s
non-refoulement obligations”, itself a
difficult phrase within the scheme of Act as it now exists, including s 197C
.
- Although
refusal on character grounds under s 501 is contemplated by s 65(1)(a)(iii) as
one of the circumstances which would “prevent” the grant,
relevantly, of a protection visa, and thus might be thought
indirectly to
incorporate into the assessment under s 65 of the matters now found to be
mandatory considerations under s 501 (i.e. the legal consequences of refusal or
cancellation on character grounds), this only serves to confirm the point we are
seeking
to explain. A decision-maker who is determining whether to refuse a
protection visa under s 501(1) on character grounds must, the authorities ending
with Le tell us, take into account the legal consequences of such a
refusal which may – in a given case – include a person being
held in
indefinite detention. Why a person may be detained indefinitely may vary –
as Cotterill demonstrates, and may or may not have anything to do with
risks of harm in a person’s country of nationality. It may, for many
such
persons, be because they are stateless and there is nowhere to return them to.
It is not possible, even through the terms of
s 65(1)(a)(iii) read with s
501(1), to find that the risk of harm to a person which by the Refugees
Convention, CAT or the ICCPR Australia is obliged at international
law to avoid,
will necessarily fall for active consideration by the decision-maker.
- Therefore,
the ratio of Le and the cases which precede it concerning s 501(1) does
not alter our opinion about the nature of the jurisdictional error made by the
Assistant Minister in her decision about the
appellant.
- Further,
the Full Court’s observations in Le at [58] also do not take
account of the factors which were found by Robertson J to be determinative in
Goundar, again because such arguments were not advanced in
Le.
- Nor
are any of the cases ending with Le concerned with a discretionary
revocation under s 501CA, where possible future harm was put forward by a
person as “another reason” for revocation, for the purposes of s
501CA(4). That matter alone marks out decisions under s 501CA from this
line of authority. These factors combine to render the line of authority
culminating in Le distinguishable from the present circumstances of the
appellant.
- Accordingly,
we respectfully conclude that [75] of the primary judge’s reasons is in
error. To be fair to his Honour, as the
appellant’s counsel frankly
conceded, the appellant’s arguments on the appeal had new aspects and were
more finely developed.
His Honour was asked to deal with the asserted error in
the Assistant Minister’s reasons in a different context.
- Although
his Honour recognises in that paragraph the appellant might be refused a
protection visa on character grounds, this is after
his Honour has said
“However, it is difficult to see how the applicant could be refused a
protection visa without there being
an assessment of his non-refoulement
claims”. As we have attempted to show, there is nothing in the legislative
scheme which
compels assessment or decision on the appellant’s claims to
fear harm in Lebanon before he is refused a protection visa. As
we have also
sought to show, on the evidence before the Court, it seems improbable (because
it would be wholly inconsistent with
the Minister’s decisions about the
appellant to date) that the appellant could be found to satisfy the character
criteria,
and this would lead to a requirement to refuse a protection visa under
s 65. Further, his Honour’s reasons do not deal with the points made by
Robertson J in Goundar, which stem from the way the appellant in this
case put his “reason” to the Minister. Nor does his Honour grapple
with
the distinction between risk of harm as an ingredient in positive
satisfaction of protection obligations criteria in s 36 and risk of harm as a
discretionary factor, with no particular threshold to be met, as part of
“another reason” put forward
by an appellant under s 501CA(4). We
have found all those matters persuasive of the existence of jurisdictional error
in the Assistant Minister’s reasons.
CONCLUSION
- In
our opinion, the appeal should be allowed on the basis of ground 2 of the
amended notice of appeal. The decision of the primary
judge should be set aside,
and in lieu thereof orders should be made setting aside the Assistant
Minister’s decision on 7 September
2015, remitting the matter for
consideration of the exercise of the power under s 501CA(4) of the Migration
Act according to law. Whether it is to be considered by a delegate, or by
the Minister or Assistant Minister, will be a matter for administrative
decision. The Minister should pay the appellant’s
costs.
I certify that the preceding ninety-seven (97)
numbered paragraphs are a true copy of the Reasons for Judgment herein of the
Honourable
Justices Bromberg and
Mortimer . |
Associate:
Dated: 13 June 2017
REASONS FOR JUDGMENT
DAVIES J:
INTRODUCTION
- Under
s 501(3A) of the Migration Act 1958 (Cth) (“the Act”),
the Minister for Immigration and Border Protection (“the
Minister”) must cancel a visa that has been granted to a person if the
Minister is satisfied that the person does not pass the character
test
prescribed in s 501(6) because the person has been sentenced to, and is
serving, a term of imprisonment of 12 months or more on a full time basis: see
also
s 501(6)(a) and s 501(7)(c). If the Minister makes a decision under s
501(3A) to cancel a person’s visa, the Minister must give the person
notice of the decision and invite the person to make representations
to the
Minister about revocation of that decision: s 501CA(3) of the Act. Under s
501CA(4), the Minister may revoke the cancellation decision if representations
are made and the Minister is satisfied either that the person
passes the
character test prescribed in s 501(6), or “that there is another reason
why the [cancellation] decision should be revoked”: s 501CA(4)(b) of the
Act. If the Minister revokes the decision, the decision is taken not to have
been made: s 501CA(5) of the Act.
- The
appellant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa in
November 2011. In February 2015, the visa was cancelled
under s 501(3A)
following the appellant’s convictions for recklessly causing serious
injury and recklessly causing injury for which he was
sentenced to, and was
serving, a term of imprisonment of more than 12 months. The appellant was
notified of the cancellation decision
and invited to make representations to the
Minister as to why the cancellation decision should be revoked. The appellant
made representations
to the Minister in response. The matters put by the
appellant to the Minister included that:
(a) it would be in breach of Australia’s
non-refoulement obligations to force him to return to Lebanon because he will be
at
risk of harm there due to sectarian violence against the minority Alawite
sect of which he and his family are members; and
(b) it was in his daughter’s best interests that the cancellation decision
be revoked because, if he returned to Lebanon, his
wife and daughter would
relocate with him, and his daughter would also be at risk of harm there due to
the sectarian violence.
- The
Assistant Minister, who considered the representations, did not revoke the
cancellation decision. The Assistant Minister was not
satisfied that the
appellant passed the character test having regard to his convictions and
sentence to imprisonment, and was not
otherwise satisfied that there was another
reason why the cancellation decision should be revoked.
- The
appellant sought judicial review of that decision, claiming that the Assistant
Minister had denied the appellant procedural fairness,
constructively failed to
exercise her jurisdiction, or otherwise failed to carry out her statutory task,
by failing properly to consider
the appellant’s reasons as to why the
cancellation decision should be revoked. In respect of the claim that the
appellant’s
forcible return to Lebanon would be in breach of
Australia’s non-refoulement obligations, the appellant also claimed that
the
Assistant Minister had failed to take into account the Act and its operation
in making her decision, or misunderstood the Act and
its operation in making her
decision.
- The
primary judge held that the grounds of review were not made out and dismissed
the application. The appellant has appealed the
dismissal of that application
and for the reasons that follow, the appeal should be dismissed.
LEGISLATION
- Section
501 relevantly provides as follows:
Decision of Minister or delegate – natural
justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not
satisfy the Minister that the person passes the character
test.
Note: Character test
is defined by subsection (6).
(2) The Minister may cancel a visa that has been
granted to a person if:
(a) the Minister
reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the
character test.
...
(3A) The Minister must cancel a visa that has been granted to a person
if:
(a) the Minister is satisfied that
the person does not pass the character test because of the operation
of:
(i) paragraph (6)(a)
(substantial criminal record), on the basis of paragraph (7)(a), (b) or
(c); or
(ii) paragraph (6)(e) (sexually based offences involving a child);
and
(b) the person is serving a sentence
of imprisonment, on a fulltime basis in a custodial institution, for an offence
against a law
of the Commonwealth, a State or a
Territory.
...
Character test
(6) For the purposes of this section, a person does not pass the character
test if:
(a) the person has a substantial criminal
record (as defined by subsection (7));
or
...
Substantial criminal record
(7) For the purposes of the character test, a person has a
substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months
or more; or ..
...
- Section
501CA provides:
Cancellation of
visa—revocation of decision under subsection 501(3A) (person serving
sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the
original decision) under subsection 501(3A) (person serving
sentence of imprisonment) to cancel a visa that has been granted to a
person.
(2) For the purposes of this section, relevant information
is information (other than nondisclosable information) that the Minister
considers:
(a) would be the reason, or a part of
the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just
about a class of persons of which the person or other person
is a
member.
(3) As soon as practicable after making the
original decision, the Minister must:
(a) give the person, in the way that the
Minister considers appropriate in the
circumstances:
(i) a written notice that sets
out the original decision; and
(ii) particulars of the relevant information;
and
(b) invite the person to make
representations to the Minister, within the period and in the manner ascertained
in accordance with
the regulations, about revocation of the original
decision.
(4) The Minister may revoke the original decision
if:
(a) the person makes representations
in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the
character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be
revoked.
(5) If the Minister revokes the original
decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the
period:
(a) beginning when the original
decision was made; and
(b) ending at the time of the revocation of the original
decision;
is lawful and the person is not entitled to make any
claim against the Commonwealth, an officer or any other person because of the
detention.
(7) A decision not to exercise the power conferred by subsection (4)
is not reviewable under Part 5 or 7.
Note: For notification of decisions under
subsection (4) to not revoke, see
section 501G.
GROUND 1: THE BEST INTERESTS OF THE CHILD
- Ground
1 challenges the correctness of the primary judge’s finding that there was
no legal error in the reasoning of the Assistant
Minister concerning her
consideration of the best interests of the appellant’s daughter.
- The
Assistant Minister found that the best interests of the appellant’s
daughter were served by revoking the cancellation decision
but concluded that
the appellant represents an unacceptable risk of harm to the Australian
community and that the protection of the
Australian community outweighed the
best interests of his child: [13], [18], [43] and [45] of the Assistant
Minister’s Statement
of Reasons for Decision under s 501CA of the Act
(“Statement of Reasons”). The reasoning of the Assistant
Minister was as follows:
- I
accept that [the appellant’s daughter] is an Australian citizen, given
that she was born in Australia and her mother was an
Australian citizen at the
time of her birth.
- I
accept [the appellant’s] claims that his wife and child will move to
Lebanon with him if he is removed from Australia. I find that [the
appellant’s] claims of danger to his daughter if she were to relocate with
him to Lebanon due to sectarian
violence in that country, to be
untested.
- I
accept that [the appellant’s daughter] is suffering some financial and
emotional hardship and dislocation during [the appellant’s]
absence as a
father, due to his wife needing to work whilst leaving their child with her
parents. I accept that this hardship will
continue if [the appellant] remains
separated from his family, is removed from Australia and his family do not
relocate to Lebanon
with him.
- I
find that the best interests of [the appellant’s daughter] would be served
by the revocation of the cancellation decision.
...
- In
considering whether, in light of [the appellant’s] representations, I was
satisfied that there is another reason why the
original cancellation decision
should be revoked, I gave primary consideration to the best interests of [the
appellant’s] child
and have found that her best interests would be best
served by the revocation of the mandatory visa cancellation decision.
- On
the other hand, in considering whether I was satisfied that there is another
reason why the original decision should be revoked,
I gave significant weight to
the very serious nature of the crimes committed by [the appellant], that of
“RECKLESSLY CAUSE
SERIOUS INJURY” and “RECKLESSLY CAUSE
INJURY”, which are of a violent nature. I am also mindful of the
principle
that persons who commit serious crimes should expect to forfeit the
privilege of remaining in Australia. Further, I find that the
Australian
community could be exposed to great harm should [the appellant] re-offend in a
similar fashion. I could not rule out
the possibility of further offending by
[the appellant].
- In
reaching my decision about whether I am satisfied that there is another reason
why the original decision should be revoked, I concluded
that [the appellant]
represents an unacceptable risk of harm to the Australian community and that the
protection of the Australian
community outweighed the best interests of his
child, as a primary consideration, and any other considerations as described
above.
These include bonds, employment, charity and familial to Australia, and
the hardship [the appellant], his family and social networks
will endure in the
event the original decision is not revoked.
(emphasis added)
- Whilst
paragraph [16] records that the Assistant Minister found the appellant’s
claim that his daughter will be at risk of harm
from sectarian violence in
Lebanon to be untested, it is apparent that the Assistant Minister accepted
“the possibility of
sectarian violence”, as the Assistant Minister
referred to that possibility in considering the effect of non-revocation on
the
appellant’s family if they relocated with him to Lebanon: [24] and [27] of
the Statement of Reasons.
- The
appellant argued that the Assistant Minister fell into legal error in her
reasoning because it was apparent from paragraph [16]
of the Statement of
Reasons that the Assistant Minister had not evaluated the risk of harm to the
appellant’s daughter, beyond
recognising the possibility of sectarian
violence. It was argued that the Assistant Minister needed to evaluate the
potential for
harm if the best interests of the appellant’s daughter were
to be treated as a primary consideration of equal significance
with the
protection of the Australian community, in deciding whether that countervailing
consideration outweighed the best interest
of the appellant’s daughter.
In written submissions, the appellant argued that:
Applying the principles in Wan v Minister for
Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, the Minister by
failing to make an assessment of the probability or gravity of the risks facing
the [appellant’s] daughter,
disabled herself from assessing the weight to
be given to the daughter’s interests, and therefore did not consider
whether
the daughter’s interests outweighed (or was outweighed by) other
considerations, including the protection of the Australian
community.
It was submitted that, without an evaluation of the probability or gravity of
the risk of sectarian violence facing the appellant’s
daughter if she
returned to Lebanon, there was an asymmetry between the treatment of the best
interests of the child as a primary
consideration on the one hand and the
Assistant Minister’s consideration of the risk to the community posed by
the appellant.
The appellant argued that the Assistant Minister’s
acknowledgment of the “possibility” of sectarian violence “was
no more than that” and did not represent any meaningful evaluation of
risk. The failure to evaluate the risk of harm, beyond
acceptance of harm as a
possibility, was said to amount to jurisdictional error.
- The
primary judge rejected these contentions and, with respect, correctly concluded
at [62] of his Honour’s reasons for decision
that it was not incumbent on
the Assistant Minister to make a finding on the level of risk that would be
faced by the appellant’s
daughter in circumstances where the Assistant
Minister concluded that her best interests would be served by revocation of the
cancellation
decision. The decision in Wan v Minister for Immigration and
Multicultural Affairs [2001] FCA 568, (2001) 107 FCR 133 (“Wan v
Minister for Immigration and Multicultural Affairs”) does not
support the appellant’s contention that the treatment of the best
interests of the appellant’s child
as a primary consideration required an
evaluation of the risk of harm beyond the possibility of harm to the
appellant’s daughter
if she returned to Lebanon. In Wan v Minister for
Immigration and Multicultural Affairs, the Full Court held that the Tribunal
had denied the applicant procedural fairness by failing to act on the basis that
the best interests
of the applicant’s children were a primary
consideration in the exercise of the discretion to grant or refuse a visa. It
was
held that the treatment of a child’s best interests as a primary
consideration in making a decision affecting a child requires
the Minister first
to identify what the best interests of the child indicate should be the decision
made, and then to assess whether
any other considerations outweigh the
child’s best interests. The Full Court stated at [32]-[34]:
- An
identification by the Tribunal of what the best interests of Mr Wan’s
children required, and a recognition by the Tribunal
of the need to treat such
interests as a primary consideration, would not have led inexorably to a
decision by the Tribunal to adopt
a course in conformity with those
interests. That is, even had the Tribunal concluded that the best
interests of the children indicated
that Mr Wan should be granted a visa, it was
legally open to it to refuse to grant Mr Wan a visa. Provided that the
Tribunal did
not treat any other consideration as inherently more significant
than the best interests of Mr Wan’s children, it was entitled
to conclude,
after a proper consideration of the evidence and other material before it, that
the strength of other considerations
outweighed the best interests of the
children. However, it was required to identify what the best interests of
Mr Wan’s children
required with respect to the exercise of its discretion
and then to assess whether the strength of any other consideration, or the
cumulative effect of other considerations, outweighed the consideration of the
best interests of the children understood as a primary
consideration.
- The
written reasons of the Tribunal suggest that it regarded the expectations of the
Australian community as a primary consideration
(indeed, it might be thought,
the primary consideration) in the exercise of the discretion to grant or to
refuse to grant Mr Wan
the visa for which he had applied. The Tribunal was
entitled to regard the expectations of the Australian community as a primary
consideration provided that it did not overlook that, on the procedure which it
had adopted, procedural fairness demanded that it
act on the basis that the best
interests of Mr Wan’s children were a consideration of equal significance
(that is, also a primary
consideration). So, for example, the Tribunal
might have concluded that the best interests of Mr Wan’s children required
that
Mr Wan be granted the visa, but that the damage to their interests that
would flow from his being refused the visa would be of only
slight or moderate
significance. If the Tribunal had also concluded that the expectations of
the Australian community were that
a non-citizen who engaged in conduct of the
kind engaged in by Mr Wan would not be granted a visa, and that a decision to
grant such
a visa would be a most serious affront to the expectations of the
Australian community, it would have been entitled to conclude that,
in the
circumstances of the case, the best interests of the children were outweighed by
the strength of community expectations.
- Nothing
in the Tribunal’s written reasons for decision, however, suggest that it
undertook an exercise of the above kind. It
did not act on the basis that
the best interests of the children were a primary consideration in the exercise
of the discretion to
grant, or to refuse to grant, Mr Wan the visa for which he
had applied. To the extent that it gave consideration to the interests
of
the children, it did not give proper, genuine and realistic consideration to
their best interests. ...
The appellant relied on these passages, and particularly [33], for the
proposition that the Assistant Minister could not weigh the
best interests of
the child against the countervailing consideration of the risk to the community
posed by the appellant, which was
evaluated by the Assistant Minister, without
also evaluating the probability or gravity of the potential harm to the
appellant’s
daughter if she returned to Lebanon. Those passages do not
support that proposition.
- First,
this case is not analogous to Wan v Minister for Immigration and
Multicultural Affairs. In Wan v Minister for Immigration and
Multicultural Affairs, the Tribunal had not identified what the best
interests of the children called for and nowhere in its written reasons for
decision
did the Tribunal describe the best interests of the children as a
primary consideration. The Court thus concluded that the Tribunal
had not acted
on the basis that best interests of the child were a primary consideration. In
this case, the Assistant Minister did
identify what the best interests of the
appellant’s daughter called for and expressly found that the best
interests of the
appellant’s daughter would be served by the revocation of
the cancellation decision. In forming that view, the appellant’s
claim
that his daughter will face danger in Lebanon from sectarian violence was a
relevant matter for the Assistant Minister to consider,
and the reasons show
that the claim was not ignored, or overlooked, by the Assistant Minister. To
the contrary, it is apparent from
the fact that the Assistant Minister accepted
that there was the possibility of sectarian violence that the Assistant Minister
did
consider that claim in deciding that the child’s best interests were
served by revoking the cancellation decision. Furthermore,
the Assistant
Minister did state that she gave primary consideration to the best interests of
the appellant’s daughter in weighing
up the countervailing
considerations.
- Secondly,
the fact that the Assistant Minister had not evaluated the probability or
gravity of the risk of harm to the appellant’s
daughter if she relocates
to Lebanon does not mean that the best interests of the appellant’s child
were not weighed up, or
unable to be weighed up, as a primary consideration, as
against the consideration of the protection of the Australian community.
The
passages in Wan v Minister for Immigration and Multicultural Affairs on
which the appellant relied were concerned with the different point that the task
of taking into account the best interests of
the child as a primary
consideration requires the decision-maker to identify what the best interests of
the child are. In this case,
the Assistant Minister’s Statement of
Reasons met the requirements set out in Wan v Minister for Immigration and
Multicultural Affairs in identifying prior to carrying out the weighing
exercise that it was in the child’s best interests to revoke the
cancellation
decision, having accepted, amongst other things, that the child
would return to Lebanon with the appellant and that there was the
possibility of
sectarian violence in Lebanon.
- Thirdly,
although the Assistant Minister concluded that the best interests of the
appellant’s child were served by revoking
the cancellation decision, she
was, nonetheless, entitled to conclude on the material before her, that the
cancellation decision
should not be revoked because of the risk of the appellant
committing further offences and causing serious harm to the Australian
community. The weighing up of the competing considerations was a matter for the
Assistant Minister and to the extent that the appellant
takes issue with the
weight that the Assistant Minister gave to the risk of harm to the community
posed by the appellant over the
best interests of the appellant’s
daughter, there is no reviewable error: Brown v Minister for Immigration and
Border Protection [2015] FCAFC 141; (2015) 149 ALD 485 at [35]‒[36].
The reasons do not indicate that the Assistant Minister did not, in fact, treat
the best interests of the appellant’s
child as a primary consideration in
that weighing up exercise.
- Accordingly
I would dismiss ground 1 of the appeal.
GROUND 2: INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
- The
Assistant Minister’s Statement of Reasons dealt with the appellant’s
claim that he would be exposed to harm in Lebanon
if the cancellation decision
was not revoked in the following paragraph:
[19] [The appellant] has made claims that may give rise
to international nonrefoulement obligations. However, [the appellant] is
able to make a valid application for another visa. In particular I note that
[the appellant]
is not prevented by s 501E of the Act from making an application
for a Protection visa. Thus it is unnecessary to determine whether
nonrefoulement obligations are owed to [the appellant] for the purposes
of this decision.
- The
appellant submitted that the primary judge erred in not finding jurisdictional
error in the reasoning of the Assistant Minister
in relation to the
non-refoulement claim.
- It
was argued that the Assistant Minister proceeded on the basis of the law stated
in Ministerial Direction No. 65 (“Direction 65”), namely that
if the appellant’s visa remained cancelled, Australia would not return the
appellant to Lebanon if to
do so would be inconsistent with its international
nonrefoulement obligations, and not on the basis of the law following the
enactment
of s 197C of the Act. It was argued that the Assistant Minister
misunderstood the law, as the law had changed with the enactment of s 197C.
Prior to the enactment of s 197C an unlawful non-citizen in respect of whom
Australia owed non-refoulement obligations faced the prospect of indefinite
immigration
detention. By force of s 197C of the Act, the duty of an officer
under s 198 of the Act to remove the appellant from Australia as soon as
reasonably practicable arises irrespective of whether Australia has
nonrefoulement obligations in respect of the appellant and for that purpose, it
is irrelevant that Australia may have nonrefoulement
obligations in respect of
the appellant.
- Section
197C of the Act relevantly provides as follows:
197C Australia’s
nonrefoulement obligations irrelevant to removal of unlawful noncitizens under
section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has
nonrefoulement obligations in respect of an unlawful noncitizen.
(2) An officer’s duty to remove as soon as reasonably practicable
an unlawful noncitizen under section 198 arises irrespective of whether
there has been an assessment, according to law, of Australia’s
nonrefoulement obligations in
respect of the
noncitizen.
- Section
198 of the Act (as it was at the relevant time) relevantly provided:
198 Removal from Australia of unlawful
non-citizens
...
Removal of unlawful non-citizens in other circumstances
...
(2A) An officer must remove as soon as reasonably practicable an unlawful
noncitizen if:
(a) the non-citizen is covered by
subparagraph 193(1)(a)(iv); and
(b) since the Minister’s decision (the original decision) referred to in
subparagraph 193(1)(a)(iv), the non-citizen has not
made a valid application for
a substantive visa that can be granted when the non-citizen is in the migration
zone; and
(c) in a case where the non-citizen has been invited, in accordance with
section 501C, to make representations to the Minister about revocation of the
original decision—either:
(i) the non-citizen has not
made representations in accordance with the invitation and the period for making
representations has
ended; or
(ii) the non-citizen has made representations in accordance with the invitation
and the Minister has decided not to revoke the original
decision.
Note: The only visa that the non-citizen
could apply for is a protection visa or a visa specified in regulations under
section 501E.
...
(5A) Despite subsection (5), an officer must not remove an unlawful non-citizen
if:
(a) the non-citizen has made a valid
application for a protection visa (even if the application was made outside the
time allowed
by subsection 195(1)); and
(b) either:
(i) the grant of the visa has
not been refused; or
(ii) the application has not been finally
determined.
...
- Section
193(1) (as it was at the relevant time) relevantly provided:
193 Application of law to certain non-citizens while
they remain in immigration detention
(1) Sections 194 and 195 do not apply to a person:
(a) detained under subsection
189(1):
(i) ...; or
(ii) ...; or
(iii) ...; or
(iv) because of a decision the Minister has made personally under section 501,
501A or 501B to refuse to grant a visa to the person or to cancel a visa that
has been granted to the person;
or
...
- The
appellant argued that there was no information before the Assistant Minister to
suggest that it was not reasonably practicable
to remove the appellant
immediately and no information to suggest that the appellant could be removed to
a country other than Lebanon.
Accordingly, it was argued, the statutory effect
of the Assistant Minister’s decision was that the appellant was required
to be removed to Lebanon immediately, irrespective of whether his removal would
breach any nonrefoulement obligations owed by Australia.
- Whilst
Direction 65 was one of the documents reviewed by the Assistant Minister in
making her decision, it does not appear from her
Statement of Reasons that she
based her decision on the law as it stood prior to the enactment of s 197C of
the Act. Rather, it is apparent that paragraph [19] of the Assistant
Minister’s Statement of Reasons was predicated upon
what was stated in a
briefing note to her. The briefing note to the Assistant Minister under the
heading “International NonRefoulement
Obligations” included the
following paragraph:
[The appellant] has made claims that may give rise to
international nonrefoulement obligations. However [the appellant] is able to
make a valid application for another visa. In particular I note that [the
appellant] is not prevented by s 501E of the Migration Act from making an
application for a protection visa. Thus it is unnecessary to determine whether
nonrefoulement obligations are owed
to [the appellant] for the purposes of
determining whether or not to revoke the mandatory visa cancellation decision.
- The
briefing note identified that it was unnecessary to determine whether
nonrefoulement obligations are owed to the appellant because
the appellant is
able to make a valid application for a protection visa and, it is implicit,
because whether the appellant’s
claims gave rise to nonrefoulement
obligations would be assessed in consideration of the protection visa.
Accordingly, I reject
the first argument based on Direction 65.
- Furthermore,
I respectfully agree with the primary judge that there was no legal error based
on the statutory effect of ss 197C and 198 of the Act. The primary judge
accepted “by parity of reasoning with NBMZ v Minister for Immigration
and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1” that in the
case of a decision under s 501CA(4) whether or not to revoke the
cancellation of a protection visa, one of the considerations is the statutory
consequences of non-revocation
of the cancellation of the visa. The primary
judge stated at [74]:
The statutory framework in which the Minister made her
decision preserved the ability of the applicant to make an application for
a
protection visa. The applicant contends that the statutory consequence of a
decision not to revoke was (in light of the enactment
of s 197C) that the
applicant was required to be returned to Lebanon irrespective of whether this
would breach Australia’s non-refoulement
obligations. The applicant
submits that the Minister fell into jurisdictional error by not considering this
statutory consequence.
But I think it is necessary to consider the statutory
consequences of the decision by reference to the framework of the Act as a
whole, including the provisions which preserve the applicant’s ability to
apply for a protection visa. I do not think it was
a mere matter of speculation
(cf NBMZ at [4]) that the applicant would apply for a protection visa.
As noted above, he had provided a body of material in support of his
non-refoulement claims. The position of the applicant in the present case is
different in several respects from that of the applicant
in NBMZ. In
that case, the applicant had been assessed to be a refugee and the Minister had
refused, under s 501(1), to grant him a protection visa. The statutory
consequence of that decision in the context of the provisions of the
Migration Act as they stood at the relevant time was that the applicant
faced the prospect of indefinite detention. In the present case, the visa
that
had been cancelled was a partner visa, and the applicant had (and has) the
ability to apply for a protection visa. In these
circumstances, to focus on ss
197C and 198, namely the requirement to remove the applicant irrespective of
Australia’s non-refoulement obligations, is to adopt too narrow
a frame of
reference in considering the statutory consequences of a decision not to
revoke.
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC
38; (2014) 220 FCR 1 (“NBMZ v Minister for Immigration and
Border Protection”) is authority that the Minister must take into
account the Act and its operation in making a decision. To make a decision
without taking into account what Parliament has prescribed by way of legal
consequence is to fail to take into account the legal
framework of the decision
and to commit jurisdictional error. In the present case, the legal consequences
of the decision not to
revoke the cancellation decision included the operation
of ss 197C and 198 of the Act. However, the line of Full Court authority
supports the conclusion that it does not follow that because of the operation
of
ss 197C and 198 of the Act that the Assistant Minister was thus obliged to
consider the appellant’s non-refoulement claim in deciding whether
to
revoke the cancellation decision: Minister for Immigration and Border
Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56
(“Minister for Immigration and Border Protection v
Le”); Ayoub v Minister for Immigration and Border Protection
[2015] FCAFC 83, (2015) 231 FCR 513 (“Ayoub v Minister for
Immigration and Border Protection”) ; COT15 v Minister for
Immigration and Border Protection (No 1) [2015] FCAFC 190, (2015) 236 FCR
148 (“COT15 v Minister for Immigration and Border Protection (No
1)”).
- In
Minister for Immigration and Border Protection v Le a visa holder had her
visa cancelled under s 501(2) on character grounds. In issue was whether
Australia’s non-refoulement obligations were a mandatory consideration in
determining
whether or not to cancel the respondent’s visa. The Full
Court held that whether Australia had nonrefoulement obligations
to the visa
holder was not, in that case, a mandatory consideration under s 501(1) or (2) in
circumstances where it remained open to Ms Le to make an application for a
protection visa, at which point compliance with
Australia’s
nonrefoulement obligations would need to be considered. However the Full
Court also went on to state that the position is different where the person
whose visa application has been refused or whose visa has been cancelled under s
501(1) or (2) is prevented by the Act from applying in Australia for a
protection visa. In such a case, the Minister’s obligation
to consider
the legal consequences of a decision in the circumstances under either of those
provisions would necessarily include
consideration of Australia’s
non-refoulement obligations because of the operation of s 197C and s 198 of the
Act. The Full Court held that this analysis was consistent with the approach in
both Ayoub v Minister for Immigration and Border Protection and COT15
v Minister for Immigration and Border Protection (No 1). In BMX15 v
Minister for Immigration and Border Protection [2016] FCA 1183, (2016) 244
FCR 153, Bromberg J at [85] observed that there is no basis for any relevant
distinction to be drawn between ss 501(1) and (2) and s 501CA(4) in
relation to whether the Minister was bound to consider Australia’s
nonrefoulement obligations at the time of exercise of
the power.
- This
is not the type of case referred to in Minister for Immigration and Border
Protection v Le where the Minister would be obliged to consider
Australia’s non-refoulement obligations in considering whether to revoke
the
cancellation of the appellant’s visa. In the present case, it is
clear from paragraph [19] of the Assistant Minister’s
reasons that the
Assistant Minister did take into account that the appellant was not prevented
from making an application for a protection
visa if she did not revoke the
cancellation decision. It is correct that it was (and is) open to the appellant
to apply for a protection
visa at any time (s 501E of the Act). If such an
application is made, then the appellant cannot be removed from Australia if the
grant of the visa has not
been refused or the application has not been finally
determined: s 198(5A). But if such an application was made, Australia’s
non-refoulement obligations to the appellant will be a mandatory consideration,
making it unnecessary for the Assistant Minister to consider whether Australia
has non-refoulement obligations to the appellant in
exercising her power under s
501CA(4) to revoke the cancellation of the appellant’s visa: Minister
for Immigration and Border Protection v Le at [44], [61(e)], [64];
COT15 v Minister for Immigration and Border Protection (No 1)at [38];
AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105,
(2016) 243 FCR 451 at [69]. I therefore also reject the second argument
advanced by the appellant supporting his claim of legal error in the Assistant
Minister’s
reasoning at paragraph [19], namely that the Assistant Minister
proceeded on the misunderstanding that the non-refoulement obligations
would
“necessarily” be considered in the event that the appellant applied
for a protection visa.
- It
was also argued even if the appellant applied for a protection visa, the
appellant’s nonrefoulement claim would not necessarily
be assessed as part
of the determination of the protection visa because the appellant might lawfully
be refused a visa on the basis
that he does not satisfy amongst other things,
the “non-protection criterion” in cl 866.225(a) of Schedule 2 to the
Migration Regulations 1994 (Cth) (“the
Regulations”). Clause 866.225(a) requires an applicant to satisfy
“public interest criterion 4001” of Schedule 4 to the Regulations
(“PIC 4001”) relating to the character test, namely,
either:
(a) the person satisfies the Minister that
the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is
nothing to indicate that the person would fail to satisfy
the Minister that the
person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite
reasonably suspecting that the person does not pass
the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite
not being satisfied that the person passes the character
test.
- It
was submitted that the appellant plainly would not satisfy PIC 4001(a) or (b)
and there is no basis to suspect that the appellant
would satisfy PIC 4001(c) or
(d). Thus, the argument went, the application for a protection visa can be
refused without any assessment
of nonrefoulement obligations. The primary judge
rejected that contention, stating that it was difficult to see how the appellant
could be refused a protection visa without there being an assessment of his
nonrefoulement claims. His Honour stated that “it may be accepted
that, even if the [appellant] established his claim that Australia owes
nonrefoulement obligations under international law, he may nevertheless
be refused a protection visa on character grounds under s 501(1)”. But,
his Honour stated, “based on the material before the Court, it was to be
expected that the appellant’s
nonrefoulement claims would be
assessed as part of the determination of a protection visa application by the
[appellant]”. His Honour was correct
to so hold.
- An
applicant to whom Australia has protection obligations under the Act might
lawfully be refused a visa on the basis that he or she
does not satisfy a
non-protection criterion: Plaintiff M47/2012 v Director General of Security
[2012] HCA 46, (2012) 251 CLR 1. However, it does not follow that a
protection visa application made by the appellant could be determined by the
Minister without
consideration of the appellant’s claim that he is at risk
of harm in Lebanon due to sectarian violence. In the circumstances,
the
exercise of statutory power would require the Minister to consider
Australia’s protection obligations to the appellant,
notwithstanding that
the appellant may nevertheless be refused a protection visa on character
grounds: Minister for Immigration and Border Protection v Le at
[44], [61(e)], [64].
- Thirdly,
it was argued, some of the harm feared by the appellant may not be harm covered
by the criteria for a protection visa. It
was submitted that the Assistant
Minister assumed, wrongly, that the “subject of the [appellant’s]
representation could,
in their entirety, be met by the availability to the
[appellant], on application, of a protection visa”: cf Goundar v
Minister for Immigration and Border Protection [2016] FCA 1203. In that
case, Robertson J found legal error in the Minister’s decision not to
revoke a cancellation decision by reason that
the Minister had proceeded on the
erroneous basis that he did not have to consider the applicant’s
representation that he faced
a risk of harm because, the Minister said, the
claim could be dealt with later in any application for a protection visa,
whereas
in fact, in that case, the feared harm was not for a reason that comes
under the Convention reason. Goundar v Minister for Immigration and
Border Protection is distinguishable in this case. The harm identified by
the appellant in this case was sectarian violence occurring to him, being
a
Convention related harm. There is therefore no basis for the appellant to
assert that the Assistant Minister committed the same
error as identified by
Robertson J Goundar v Minister for Immigration and Border
Protection.
- Accordingly
I would also dismiss ground 2 of the
appeal.
|
I certify that the preceding thirty-three (33) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Davies.
|
Associate:
Dated: 13 June 2017
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