FEDERAL COURT OF AUSTRALIA

FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal made on 7 April 2017 be set aside.

2.    The matter be remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein.

3.    Unless a party notifies the Court in writing by 12.00 pm on Friday 19 October 2018, indicating opposition to this order as to costs, the respondent pay the applicant’s costs of and in connection with the proceeding, as agreed or assessed.

THE COURT FURTHER ORDERS THAT:

1.    It being necessary to prevent prejudice to the proper administration of justice, the name of the applicant is not to be published.

2.    The name of the applicant is to be substituted by the pseudonym “FKP18” in all documents filed and all orders made in this proceeding prior to the date of these orders.

3.    No person other than a party to the proceeding is to be permitted to inspect the documents filed in this proceeding without the leave of the Court.

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

REASONS FOR JUDGMENT

KENNY J:

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the respondent Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of his visa under s 501(3A).

2    The applicant was born in 1983 in the former Yugoslavia. It was common ground that he was a citizen of Bosnia-Herzegovina.

3    The applicant was a young boy when war broke out in the former Yugoslavia in the early 1990s. Conflict in the region continued until about 2001. The applicant stated how he was affected by war in a written statement that he submitted to the Tribunal. The applicant entered Australia on 3 April 2001. It was common ground between the parties at the hearing that he entered as the holder of a Refugee and Humanitarian (Class XB) Subclass 200 visa (formerly a “Refugee and Humanitarian (Migrant) (Class BA) Subclass 200 visa”). The applicant has remained in Australia since 2001.

4    The applicant’s visa was cancelled on 20 March 2015 pursuant to s 501(3A) of the Migration Act. Section 501(3A) relevantly provides that the Minister must cancel a visa if the Minister is satisfied that the visa holder does not “pass the character test because of the operation of …. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)” and is serving a sentence of imprisonment. The Minister was satisfied that the applicant did not pass the character test on account of s 501(6)(a) since the applicant had a substantial criminal record as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more. This was because the applicant had been convicted of burglary on 6 March 2009 and sentenced to 18 months imprisonment.

5    Section 501CA(4)(a) of the Migration Act provides that the Minister may revoke a cancellation decision under s 501(3A), if an applicant makes representations in accordance with an invitation under s 501CA(3)(b) and the Minister is satisfied that he or she passes the character test, or “that there is another reason why the original decision should be revoked”: see s 501CA(4)(b)(ii).

6    On 17 April 2015, the applicant in this proceeding made representations seeking revocation of the cancellation decision in accordance with s 501CA(4)(a), relying on s 501CA(4)(b)(ii). His representations were unsuccessful. On 24 February 2016 the Minister, by his delegate, refused to revoke the cancellation decision. On 14 March 2016 the applicant applied to the Tribunal for review of that decision. The applicant, who by this time was in immigration detention, appeared and gave evidence to the Tribunal by video-conference at the Tribunal hearing on 17 and 18 October 2016. The applicant was, however, unsuccessful before the Tribunal. He applied for judicial review of the Tribunal’s decision in this Court.

JUDICIAL REVIEW GROUNDS

7    The applicant applies for judicial review on the following grounds:

1.    The Tribunal erred, in relation to the Applicant’s claims concerning international non-refoulement obligations, by:

a.    denying him procedural fairness, or failing to carry out its task required under s 501CA(4) of the Migration Act 1958 (Cth) (the Act);

Particulars

The Applicant made claims concerning Australia’s international non-refoulement obligations, but the Tribunal did not deal with those claims.

b.    further or alternatively, failing to have regard to those claims, such claims being a mandatory relevant consideration.

2.    The Tribunal erred by failing to consider the Applicant’s evidence about his conduct in immigration detention.

3.    The decisions of the delegate and the Tribunal were invalid, because s 501(3A) of the Act, on which both decisions depended, was itself invalid because it purported to confer judicial power on the Minister, contrary to Chapter III of the Commonwealth Constitution.

Particulars

    The Applicant refers to and repeats the arguments of Mr Falzon in Falzon v Minister for Immigration and Border Protection (Case No S31/2017) which is presently pending before the High Court of Australia.

8    Only the first and second grounds were addressed at the hearing.

9    The third ground was not addressed at the hearing, since its outcome turned on the outcome of the case of Falzon v Minister for Immigration and Border Protection (Case No S31/2017) in the High Court, as discussed below. The High Court has since given judgment in that matter. The applicant has confirmed that he did not wish to make any further submissions.

10    It should be borne in mind in considering the applicant’s challenge to the Tribunal’s decision that, like the delegate, in reviewing the delegate’s decision, the Tribunal was bound by the provisions of Ministerial Direction No 65. Direction No 65 was made under s 499 of the Migration Act.

Ground 1 – denial of procedural fairness; failure to consider relevant consideration; failure to carry out statutory task

11    At the time that consideration was first being given by the Minister’s Department to cancellation of the applicant’s visa, the applicant wrote to the Department, saying that:

Returning to Bosnia is not an option for me, I fear that I will die, there is still a lot of turmoil and conflict between the people.

12    At the Tribunal hearing, submissions were made on the applicant’s behalf about the relevance of international non-refoulement obligations. In the applicant’s statement of issues, facts and contentions (at [80]), it was said:

Other considerations

Non-refoulement obligations

As the Applicant came to Australia on a refugee visa his circumstances gave rise to a non-refoulement obligation at the time. It is submitted that [the applicant] would be at risk of harm if returned to Bosnia and Herzegovina because of the circumstances in which he came to leave that country.

13    In the applicant’s written statement before the Tribunal, the applicant said that his life would be in danger if he were returned to Bosnia-Herzegovina and that he “could get executed”.

14    In oral submissions, Mr Hughan, who appeared for the applicant at the Tribunal hearing, submitted that the existence of any non-refoulement obligations was a factor to be taken into account in reaching the decision on review, and that there was a risk of error if the Tribunal failed to take that matter into account.

15    I interpolate here that Mr Brown, who appeared for the Minister in the current proceeding, drew attention to the fact that the applicant had never held a Protection (Class XA) visa (commonly referred to as a protection visa) but had entered Australia with what is now called a Refugee and Humanitarian (Class XB) Subclass 200 visa. It does not seem to me, however, that much turned on this point.

16    A subclass 200 visa is a “Refugee visa”. Clause 200.21 in Schedule 2 to the Migration Regulations 1994 (Cth) sets out the criteria to be satisfied at the time of application, which include criteria that, broadly speaking, resemble the criteria for refugee status in a protection visa application, and which might be thought to indicate the existence of non-refoulement obligations, at least at the time of the grant of the visa. The same criteria were to be satisfied at the time of decision: see clause 200.221. This is not to say, of course, that the grant of a visa of the kind the applicant received inevitably involved non-refoulement obligations, or that any such obligations remained at the time of the Tribunal’s decision. It does not seem to me, however, that the Minister could derive more than this from the nature of the visa the applicant formerly held.

17    Nor could the Minister derive any relevant support in this case from the way in which the applicant made his claim. It is clear that the Tribunal understood that the applicant’s claims included that a non-refoulement obligation arose in respect of him, and that this was how the applicant intended his claims to be understood. Whether or not the applicant’s claim gave rise to any existing non-refoulement obligations depended in the first place on the Tribunal’s assessment of the evidence and the facts as it found them to be. It was for the Tribunal to consider the significance of that claim, by reference to the evidence available to it, unless it was justified in declining, as it did, to enter into consideration of the issue at all.

18    In its reasons for decision, under the heading “International non-refoulement obligations”, the Tribunal stated as follows:

59.    Paragraph 14.1(1) of Direction 65 states:

14.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision makers should follow the tests enunciated in the Act.

60.    [The applicant] told the Tribunal that as he came to Australia on a refugee visa, which is the subject of the cancellation decision, non-refoulement obligations are relevant. He said that he would be at risk of harm if returned to Bosnia and Herzegovina because of the circumstances in which he came to leave that country. In his written statement he claimed that his life would be in danger and he …could get executed...He agreed that he has not made an application for a protection visa.

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5)    If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determined that section 48A does not apply to them – sections 48A and 48B of the Act refer).

62.    In AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at 443 the Full Federal Court of Australia noted that the applicant was able to apply for a protection visa while in the migration zone, and the assessment of such an application would require an up-to-date assessment of the conditions in the applicant’s country of origin. [The applicant’s] circumstances are similar to the extent that he was able to make an application for a protection visa. In Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at 69-71 and 72 the Full Federal Court referred to AZAFQ and held that Australia’s non-refoulement obligations are not a mandatory consideration under s 501(2) of the Act where an application for a protection visa can be made subsequently in Australia.

63.    Accordingly Australia’s non-refoulement obligations do not assist [the applicant] in this case.

The parties’ submissions

19    The applicant submitted that the Tribunal erred in failing to consider his submission that he would be at risk of harm if returned to Bosnia-Herzegovina, bearing in mind the circumstances in which he came to leave that country and that he feared execution if he were returned there. The applicant also submitted that there was an error in the Tribunal’s statement that consideration of the matter was not mandatory because “an application for a protection visa can be made subsequently in Australia”: Tribunal reasons at [62].

20    The applicant argued that, having regard to the decision of the Full Court of this Court in BCR16 v Minster for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, the deferral of consideration of non-refoulement obligations for the reason suggested was either a breach of procedural fairness or a failure by the Tribunal to perform the task required of it. The applicant submitted that BCR16 was not relevantly distinguishable from his case. The applicant argued that although the decision-maker in his case was the Tribunal, and did not use precisely the same language as the Assistant Minister in BCR16, for the reasons explained by Bromberg and Mortimer JJ in BCR16, the Tribunal’s decision was affected by jurisdictional error.

21    The applicant also contended that the Tribunal erred in not considering the effect of s 197C of the Migration Act which, so it was said, “precludes consideration of non-refoulement considerations in the event that a protection visa application is either refused (for whatever reason, including without having regard to the tests in section 36) or not made”. The applicant also argued that the Tribunal failed properly to apply paragraph 14 of Direction No 65, in so far as it required that a decision-maker other than the Minister must have regard to international non-refoulement obligations; and that, insofar as Direction No 65 stated in paragraph 14.1(4) that it was unnecessary to determine non-refoulement obligations, it was contrary to law, as explained in BCR16.

22    The applicant submitted that the Tribunal’s reliance on AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 and Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 was misplaced; that both cases were distinguishable since both concerned non-revocation decisions made by the Minister personally; and that Direction No 65 did not bind the Minister but did bind the Tribunal.

23    Accordingly, the applicant submitted that the Tribunal’s failure to assess the claimed non-refoulement obligations was a jurisdictional error, because of BCR16 and Direction No 65. The applicant characterised the jurisdictional error as either a denial of procedural fairness, a failure to have regard to a mandatory relevant consideration, or a failure to carry out the task required by s 501CA(4) of the Migration Act.

24    The Minister submitted that the decision in BCR16 had no application in the present circumstances because it extended only to decisions that the Minister or Assistant Minister made personally and that were not subject to Direction No 65. The Minister submitted that the majority in BCR16 did not address decision-making under s 501CA(4) by a delegate, or by the Tribunal standing in the shoes of a delegate, where both the delegate and the Tribunal were bound by that Direction. The Minister submitted that paragraph 14.1(4) of Direction No 65 “reflects the Department of Immigration and Border Protection’s operational practice, which is to always consider non-refoulement claims made in the context of any protection visa application, regardless of any other potential basis upon which a Protection visa might be determined”. Therefore, so the Minister submitted, “[d]ecision-makers who are subject to Direction 65 are under no misunderstanding as to the operation of the law when electing not to determine whether non-refoulement obligations are owed to an applicant who is entitled to apply for a Protection visa in deciding whether the cancellation of their visa should be revoked”.

Consideration – Ground 1

25    The appellant in BCR16, like the applicant in this case, sought a favourable exercise of the discretion under s 501CA(4) of the Migration Act to revoke the mandatory cancellation of his visa under s 501(3A). BCR16’s representation was considered by the Assistant Minister, who decided not to revoke the cancellation. Amongst other things, BCR16 claimed that, by reason of his minority religious status and for other reasons, his own and his family’s life would be in danger if returned to Lebanon, directing attention to Australia’s non-refoulement obligations. The Assistant Minister did not consider this claim in making her non-revocation decision. The Assistant Minister expressed her opinion that it was unnecessary to determine whether any non-refoulement obligations were owed to BCR16 because BCR16 could apply separately for a protection visa.

26    On appeal, Bromberg and Mortimer JJ (Davies J dissenting) accepted that, as BCR16 submitted, the Assistant Minister had wrongly “considered that non-refoulement obligations would ‘necessarily’ be considered in the event that the appellant was to make an application for a protection visa”: BCR16 at [66]-[67]. The nature of the misunderstanding is apparent from their Honours’ discussion of the Assistant Minister’s approach to the risk of harm to the appellant if returned to Lebanon, appearing earlier in their reasons.

27    At [36]-[47], Bromberg and Mortimer JJ said:

[36]    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.

[37]    That submission should be accepted. ...

[38]    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.)

[39]    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.

…

[41]    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.)

[42]    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.

[43]    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) … .

[44]    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.

…

[47]    In our opinion these aspects of the Act support the appellant’s contentions on this ground of appeal.

28    Further, as the majority observed in BCR16 at [49], there is a “qualitatively different exercise” undertaken in considering whether to grant a protection visa compared to considering whether to revoke a visa cancellation decision under s 501CA(4). The jurisdictional error that arose in omitting any consideration of the risk of harm in considering an exercise of the revocation power in s 501CA(4) on the basis that that issue would be addressed in considering a protection visa application was, so the majority said, to be characterised as a denial of procedural fairness or a failure to carry out the task required in exercise of s 501CA(4): see BCR16 at [62].

29    Referring to the Assistant Minister’s reasons and briefing note, Bromberg and Mortimer JJ stated (at [68]-[69]):

… 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.

(Emphasis added)

30    BCR16 shows that there will be jurisdictional error in exercising the power conferred by s 501CA(4) where the decision-maker fails to consider a claimed risk of harm to the claimant if returned to his or her country of nationality. This includes a risk of harm that would give rise to non-refoulement obligations (and other risks of harm: see [73]). The majority in BCR16 considered decisions such as Le and AZAFQ and held that they did not require a different conclusion.

31    The High Court refused special leave to appeal BCR16; and BCR16 has been applied in subsequent decisions in this Court: see, for example, ALN17 v Minister for Immigration and Border Protection [2017] FCA 726 at [25]; PXYJ v Minister for Immigration and Border Protection [2018] FCA 927 at [44]; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [19]-[20]; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [41]-[44]; and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [11]-[13], [79].

32    It is true that, as the Minister said in this case, the decision under challenge in BCR16 was made by the “Assistant Minister”, and as such the decision-maker in BCR16 was not bound by Direction No 65: see Suleiman at [41]; Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [79]; and Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327; 139 FCR 580 at [31]. This meant, of course, that the Court in BCR16 did not address the operation of Direction No 65 in such a case as this, where the decision-maker was bound by the Direction.

33    Direction No 65 was made under s 499 of the Migration Act, which relevantly provides that:

(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

…

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations

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

…

34    The Tribunal, like the delegate, has a statutory obligation to comply with Direction No 65: s 499(2A); see also Rokobatini v Minister for Immigration and Multicultural affairs [1999] FCA 1238; 90 FCR 583 at [38]. A failure to comply with a direction under s 499 can constitute a jurisdictional error: see, for example, Williams v Minister for Immigration and Border Protection [2014] FCA 674 at [34] and the authorities there cited. Section 499(1) does not, however, empower the Minister to give directions that would be inconsistent with the Migration Act: s 499(2). A direction that is inconsistent with the Migration Act is not only made without statutory authority, it is made contrary to the Act. It is invalid: see also Suleiman at [43]. The error of the kind identified in BCR16 did not depend on the fact that the decision-maker in that case was not subject to Direction No 65 or an equivalent direction under s 499 of the Migration Act. Rather, the identified error arose from a mistaken appreciation of the statutory scheme, in that the decision proceeded on the false basis that any claimed risk of harm that might support a non-refoulement obligation would fall for consideration if and when the applicant made a protection visa application. Adherence to paragraph 14.1(4) of Direction No 65 would require a decision-maker to make an error of the same kind. That is, this paragraph in substance required the decision-maker, here the Tribunal, not to perform the task required of the decision-maker by the Migration Act since it would require the decision-maker not to consider the significance of such a claim in the context of making a decision under s 501CA(4)(b)(ii): see [28] above.

35    I am fortified in this conclusion by the decision of Mortimer J in YNQY, decided shortly after the refusal of special leave with respect to BCR16. Her Honour had no difficulty in treating the error identified in BCR16 as arising where the Tribunal, in reviewing a refusal to revoke a visa cancellation decision under s 501CA(4), failed to consider the applicant’s claims to fear harm on return to his native country: see YNQY at [11]-[12], [79]. It will be recalled that her Honour was part of the majority in BCR16. I am also fortified in this conclusion by the decision of Colvin J in Suleiman, where his Honour upheld as correct the Tribunal’s decision that BCR16 meant that Direction No 65 “could not require the Tribunal to, in effect, ignore the matters raised by the applicant as to the risk of harm”: Suleiman at [44].

36    For the foregoing reasons, I would therefore uphold the first ground of the applicant’s judicial review application.

37    I note that on 5 September 2017 the Minister gave a new direction under s 499, being Direction No 75, addressing the refusal of protection visas relying on s 36(1C) and 36(2C)(b) of the Migration Act. This, as Flick J noted in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [18], was made “[p]resumably in order to address the conclusions of the Full Court in BCR 16”. This Direction does not arise for consideration in the present case.

FURTHER MATTERS

38    As will have been seen, there were two further judicial review grounds set out in the applicant’s judicial review application.

Ground 3

39    It is now clear that the third ground of the applicant’s amended originating application must fail. As already indicated, this ground raised a claim of the same kind considered in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 92 ALJR 201. Ground 3 is particularised to repeat the arguments made by Mr Falzon in the High Court proceeding. Since the hearing in the present matter, the High Court has unanimously decided in Falzon that s 501(3A) was not invalid for the reason that it conferred the judicial power of the Commonwealth on the Minister contrary to Chapter III of the Constitution.

Ground 2

40    In support of his second ground, the applicant submitted that his exemplary conduct in immigration detention was a matter he squarely raised before the Tribunal. In written submissions and at the hearing, the applicant referred to the evidence before the Tribunal about his “progress in immigration detention, and specifically, that he had been a ‘model detainee’”. The applicant referred to his evidence in chief, including that he had been placed in the “privileges unit” of the detention centre, and submitted that “this was evidence that went towards rehabilitation and recidivism”. The applicant observed that, in the Tribunal, “[i]n almost 2 hours, or 30 pages of cross-examination, the Minister did not even once challenge [him] about his conduct in immigration detention” and that, although the Minister made extensive submissions in closing, the Minister “again left this evidence untouched”.

41    The applicant acknowledged that the Tribunal “recited” some of his evidence about good behaviour, but submitted that the Tribunal failed to engage in an analysis of this evidence in relation to the risk of his reoffending. The applicant submitted that the Court should infer that the Tribunal considered that the applicant’s demonstrated behaviour in immigration detention was not material to this issue, citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [49]-[50]. Since his evidence about “his good conduct in immigration detention formed a substantial and overt part of his case in relation to the recidivism question”, then, so the applicant argued, the Tribunal’s failure to consider it in this connection meant that the Tribunal had misunderstood its statutory task, citing MZYTS at [62].

42    The Minister responded that, in considering the risk to the Australian community, the Tribunal had regard to Direction No 65, requiring the Tribunal to consider the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account the available information and evidence on the risk of the applicant reoffending. The Minister contended that the Tribunal had had regard to the applicant’s progress in immigration detention, referring to [44] and [47] of the Tribunal’s reasons where the Tribunal had noted the applicant’s submissions to the Tribunal about his progress, that he had been drug free for over a year, and that he had received a Certificate of Appreciation from the Australian Border Force and been placed in the privileges unit at the Detention Centre. The Minister drew particular attention to the Tribunal’s conclusion (in its reasons at [50]) that:

In all the circumstances the Tribunal considers that the risks of recidivism and drug rehabilitation are uncertain. [The applicant] has breached numerous court orders in the past and has reoffended despite warnings about the need to remain alcohol-free and drug-free. Despite his assertions about his progress while in immigration detention, there is no persuasive evidence to suggest that he has rehabilitated properly. If he reoffends in a manner similar to his past offending, the cumulative impact would cause significant harm to the Australian community.

43    The Minister noted that the Tribunal (at [49]) placed little weight on a report from a psychologist, in circumstances where the report was undated, brief, and non-specific about measures to reduce the likelihood of the applicant reoffending. The Minister submitted that the “allocation of weight of the evidence that the applicant was a ‘model detainee’ in assessing his risk of recidivism was a matter for the Tribunal to determine as part of its fact finding function”, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

44    The gist of the applicant’s case under this second ground was that the Tribunal’s reasons did not disclose any “active intellectual consideration of the evidence that [he] gave in relation to his rehabilitation”. As, however, counsel for the applicant said at the hearing in this Court, the difference between the applicant’s and the Minister’s submissions concerning this ground “appear[ed] to boil down to how the Tribunal’s reasons should be read”.

45    Since the applicant has succeeded in showing jurisdictional error in the decision of the Tribunal for the reason advanced in his first ground, it is unnecessary to reach any firm conclusion on the applicant’s second ground. It will, in any event, be for the Tribunal upon a review according to law, to consider matters afresh, bearing in mind the passage of time and the likelihood that there may now be additional and more up-to-date evidence relevant to the Tribunal’s decision falling for its consideration.

46    It should not be thought, though, that this ground has no merit. The applicant’s evidence about his good conduct in immigration detention was unchallenged. In describing this evidence as mere “assertion” and in failing to explain specifically why this unchallenged evidence was not persuasive as the applicant maintained, the Tribunal failed to engage with the applicant’s claim that his conduct in immigration detention was a significant factor weighing against the risk of recidivism. Had the Tribunal explained specifically why this unchallenged evidence was not persuasive, or not sufficiently persuasive, on this issue, then one might have been more confident that the Tribunal had not failed to engage with the applicant’s claim and that it had not failed to undertake an active “process of weighing evidence and preferring some over the other”: compare MZYTS at [50]. As stated in MZYTS at [50], “an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given”. The Tribunal clearly articulated why it placed little weight on the psychologist’s report and why the clinical notes from the International Health and Medical Services (IHMS) did not assist, but it did not explain what weight, if any, it gave to the evidence of the applicant’s conduct in immigration detention on the issues of rehabilitation and recidivism, bearing in mind that, in the applicant’s circumstances, there could be no evidence of the applicant’s current behaviour in the community at large.

Evidentiary matters

47    The final matter that falls for consideration is an issue of evidence. The applicant tendered, without objection, an affidavit of Noosheen Mogadam affirmed on 24 July 2017, exhibiting the transcript of the Tribunal hearing. The Minister also sought to tender an affidavit affirmed by Miranda Jayne Lauman, Assistant Secretary in the Onshore Protection Branch, on 1 September 2017, exhibiting an extract from the Department’s Procedures Advice Manual 3 (PAM) and a copy of Direction No 65. Had Ms Lauman’s affidavit gone no further than this, then perhaps there would have been no difficulty. Ms Lauman, however, also stated that, in her experience, decision-makers consider non-refoulement obligations before considering the other bases on which a protection visa might be refused. She further stated that, in her experience, decision-makers comply with the PAM provisions requiring them to assess whether an applicant comes within Australia’s protection obligations before considering the application of any exclusionary provisions. The Court expressed its doubts about the admissibility of this evidence, and counsel for the applicant objected to its reception.

48    As it happens, however, nothing in Ms Lauman’s affidavit, even if admitted, would lead to a different conclusion with respect to the first ground. The error identified in BCR16 was one of law, in that the Migration Act does not require non-refoulement obligations to be considered in the course of refusing to grant a protection visa. There may also be other reasons why this evidence is not capable of leading to a different conclusion: compare Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [19]. All this would, of course, suggest that much of the affidavit of Ms Lauman was inadmissible because irrelevant (as well as perhaps on other grounds) although, as indicated, it is unnecessary to determine the issue of admissibility definitively.

49    There was a second affidavit sworn by Noosheen Mogadam affirmed on 4 September 2017 and made in response to Ms Lauman’s affidavit. As indicated, however, nothing can turn on that affidavit and it is unnecessary to discuss it further.

Disposition

50    For the reasons stated, the Court would make the following orders: the decision of the Tribunal made on 7 April 2017 be set aside; the matter be remitted to the Tribunal to be determined according to law and the above reasons. Further, the Court would order that, unless a party notifies the Court in writing by 12.00 pm on Friday 19 October 2018, indicating opposition, the respondent pay the applicant’s costs of and in connection with the proceeding, as agreed or assessed.

51    In addition, bearing in mind that the basis for ground 1 is that the applicant made claims that he is a person to whom Australia owes international non-refoulement obligations or otherwise is at risk of harm if returned to Bosnia-Herzegovina, the significance of which has not yet been considered by the Tribunal, it seems to me appropriate to make orders under s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground stated in s 37AG(1)(a).

Associate:

Dated:    18 October 2018