FEDERAL COURT OF AUSTRALIA

DRP17 v Minister for Immigration and Border Protection [2018] FCA 523

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the Applicant can bring his application for judicial review be enlarged to 12 September 2017.

2.    There issue absolute in the first instance a writ of certiorari directed to the Respondent to quash the decision of 15 June 2017.

3.    There issue absolute in the first instance a writ of mandamus directed to the Respondent to exercise the power in s 501CA(4) of the Migration Act 1958 (Cth) according to law.

4.    The Respondent pay the Applicant’s costs in this Court as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This is an application for an extension of time to bring an application for judicial review of a decision made on 15 June 2017 by the Assistant Minister for Immigration and Border Protection (‘Assistant Minister’) under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). The Assistant Minister decided under that section that he would not revoke an earlier decision of a delegate of the Minster for Immigration and Border Protection (‘the Minister’) to cancel the Applicant’s Protection visa. The Applicant’s Protection visa had been cancelled because he failed the ‘character test’ on account of his having a ‘substantial criminal record’ within the meaning of s 501(7). Relevantly, it provides:

‘(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

…’

2    The Applicant has such a record. On 18 January 2016, he was sentenced to a total of two years’ imprisonment with a non-parole period of 12 months for assaulting his partner. The assault consisted of choking her and plunging her hands into a pot of boiling water. He was also sentenced at the same time for two other counts of assault, one count of stalking and intimidating and one count of breaching of an Apprehended Violence Order. The assaults occurred in the family home at a time when the Applicant’s two children were present.

3    It was on 1 February 2017 that a delegate of the Minister decided to cancel the Applicant’s Protection visa under s 501(3A). Relevantly, it provides:

‘501    Refusal or cancellation of visa on character grounds

…

(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

…’

4    It was paragraph 7(c) (set out above at [1]) which applied.

5    Even where the revocation has been, as it was here, mandatory, there nevertheless exists a discretionary power in the Minister to revoke such a decision under s 501CA. It provides:

‘501CA 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 non‑disclosable 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.’

6    After the Applicant’s visa was cancelled, a view was formed that the Assistant Minister held ‘relevant information’ within the meaning of subs (2). The information consisted of the original decision record of a delegate of the Minister under which the Applicant, his partner and their then one year old son had been granted Protection visas so that they would not have to return to the People’s Republic of China. The Applicant was invited to comment on this by letter dated 24 May 2017. The Applicant responded by letter dated 1 June 2017. Relevantly, the letter said:

‘I am writing this letter in response to the correspondence I received from Natoinal Character Consideration Centre (NCCC). The information in this correspondence consists of:

Protection (Class XA) Visa Decision Record dated 13 November 2009

Our son, Ze Xiang YU, was born on 25th January 2008. At that time, my partner and I were all under 18 yeras old. A fear that we could get the punishment if we were back to China led us to apply the Protection Visa in Australia. After a careful consideration, a delegate of the Minister for Immigration granted our son, Ze Xiang YU, a subclass 866 (Protection) visa. My partner and I were also granted the same visa as members of the family unit.’

(errors in original)

7    On 15 June 2017, the Assistant Minister decided that he would not revoke the earlier decision of the delegate to cancel the Applicant’s Protection visa. The Assistant Minister signed a statement of reasons as his own.

8    One of the matters which decision-makers subordinate to the Minister (and, probably, the Assistant Minister) were bound to take into account under s 501CA(4) was the question of whether the Commonwealth had any non-refoulement obligations in respect of the Applicant. When a decision to cancel a visa is made by a delegate or, on review, by the Administrative Appeals Tribunal, both are bound by Direction No 65 made by the Minister under s 499(1) of the Act to consider Australia’s non-refoulement obligations.

9    Subsections 499(1) and (2A) provide:

‘499 Minister may give directions

(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)     the exercise of those powers.

…

(2A)     A person or body must comply with a direction under subsection (1).

…’

10    In turn, cl 14.1 of Direction No 65 requires such decision-makers to take into account the Commonwealth’s non-refoulement obligations.

11    The Assistant Minister arguably is not himself, however, one of the officials bound by the Direction No 65. It has not yet been decided whether a Minister (as opposed to any other official) acting under s 501CA(4) of the Act must have regard to Australia’s non-refoulement obligations or the complementary protection regime referred to in s 36(2A) of the Act. It is not, however, necessary to decide that matter now. This is because in this case the Assistant Minister did in fact consider the Commonwealth’s non-refoulement obligations in the following terms:

‘21.    I note that Mr YU makes no submissions in relation to non-refoulement obligations. Nonetheless, given that Mr YU holds a Protection visa, I have considered the extent to which he may be owed such obligations.

22.    Mr YU holds his Protection visa by virtue of s.36(2)(b), that is he is a member of the same family unit as a non-citizen to whom Australia owes protection. Mr YU is not owed that protection himself but rather as a result of obligations owed to his son.

23.    In light of the absence of any submissions from Mr YU and the nature of his eligibility for his Protection visa, I do not consider that Australia owes any international non-refoulement obligations to Mr YU.’

12    The material which was placed before the Assistant Minister to assist him in making this decision consisted of:

(a)    a Ministerial memorandum canvassing the matter; and

(b)    the draft reasons for the Assistant Minister’s proposed decision.

13    The relevant portion of (b) which dealt with non-refoulement is set out above at [11]. The only part of the Ministerial memorandum dealing with non-refoulement was in the following terms:

‘42.    The Refugee Review Tribunal found Mr YU’s son was owed protection obligations. Mr YU was granted a Protection visa on 13 November 2009 as a member of the family unit. Mr YU has not made non-refoulement claims as part of his request for revocation.’

(emphasis added, cross-references omitted)

14    It seems, therefore, that the only material which was before the Assistant Minister on the issue of whether Australia had an obligation not to refoul the Applicant was (a) the fact that he had not asserted such a claim; and, (b) the fact that he held his Protection visa as a member of a family unit and was not the primary person to whom the underlying protection obligations had originally been owed.

15    However, a finding that Australia did not owe non-refoulement obligations to the Applicant necessarily required a finding that there was no real risk the Applicant would suffer significant harm upon return to China: cf s 36(2)(aa) of the Act. This necessary finding is unrelated to the question of whether a person who has been granted a Protection visa as a member of a family unit might at the time of that application have independent claims for protection as a refugee (cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA1; 211 CLR 441 at 455-457 [23]-28]). Rather, it is an inquiry concerned with the risk of harm faced by the Applicant in China if refouled given his actions in this country in originally applying for, and obtaining, a Protection visa. This is quite a different inquiry.

16    There was no evidence before the Assistant Minister upon which any finding on that inquiry could be based. The fact that the Applicant made no such submission said nothing about the scope of Australia’s obligations under international law which could not be affected by what the Applicant did, or did not, say to the Assistant Minister. The fact that the Applicant was granted a visa as member of a family unit was not evidence of the risk of harm to the Applicant upon return to China. There was nothing before the Assistant Minister which said anything about the risk of harm to a Protection visa holder on their return to China (whether as a refugee or as the member of a family unit). Accordingly, there was no evidence for the Assistant Minister to find that Australia did not owe international non-refoulement obligations to the Applicant.

17    It is an error of law to make a finding for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [90]-[91]; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. In this case that error of law was made in the course of assessing Australia’s non-refoulement obligations. I am satisfied that the ensuing error was jurisdictional. It went to the core of the Assistant Minister’s decision not to revoke the Minister’s original decision to cancel the Applicant’s visa.

18    Alternatively, the Assistant Minister failed to ask himself the right question. This was not whether Australia owed non-refoulement obligations as a result of the facts which grounded the Applicant’s earlier Protection visa application (being a family member of an accepted refugee). Rather, the right question was whether such obligations arose on account of what would happen to him if returned to China (being a person who had applied for a Protection visa in Australia). That could not be answered without considering the significance of the fact that the Applicant had successfully applied for a Protection visa which allowed him permanently to flee China.

19    It is then necessary briefly to mention the remaining grounds. The first was that the Assistant Minister had failed to take into account a mandatory relevant consideration. However, the consideration was not identified and in the absence of such an explanation, I can see no viable ground of review. Secondly, it was said that the Minister had denied the Applicant natural justice. However, this was not in any way developed. Thirdly, it was argued that it was legally unreasonable to find that there was a likelihood that the Applicant would re-offend. However, this argument was not further developed. Fourthly, it was submitted that s 501(3A) was constitutionally invalid. Judgment in this case was postponed until this issue was resolved by the High Court. On 7 February 2018 it held that s 501(3A) was valid: Falzon v Minister for Immigration and Border Protection [2018] HCA 2. Accordingly, I cannot accept that argument.

20    No point was taken by the Minister that the Assistant Minister had not been joined to the proceeding. I accordingly grant relief against the Minister.

21    I make the following orders:

1.    The time in which the Applicant can bring his application for judicial review be enlarged to 12 September 2017.

2.    There issue absolute in the first instance a writ of certiorari directed to the Respondent to quash the decision of 15 June 2017.

3.    There issue absolute in the first instance a writ of mandamus directed to the Respondent to exercise the power in s 501CA(4) of the Migration Act 1958 (Cth) according to law.

4.    The Respondent pay the Applicant’s costs in this Court as taxed or agreed.

Associate:

Dated:    18 April 2018