FEDERAL COURT OF AUSTRALIA

COT15 v Minister for Immigration and Border Protection (No 1)

[2015] FCAFC 190

THE COURT ORDERS THAT:

1.    The time within which the first respondent file his notice of contention is extended until 21 September 2015.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal from orders made by the Federal Circuit Court on 18 May 2015. The Federal Circuit Court dismissed an application for review of a decision made by the Migration Review Tribunal on 29 July 2014 to affirm a decision of the delegate of the first respondent, Minister for Immigration and Border Protection, to cancel the appellant’s sub-class 101 (Child) visa (the visa).

2    The central question raised by the appeal is whether the Tribunal, in exercising the discretion to cancel the visa, is required to determine whether Australia owes protection obligations to the visa applicant.

3    The name of the appellant has been anonymised at his request and with the consent of the Minister.

4    The issue arises in the following way. On 21 December 2010, the appellant was granted the visa. At the time it was a requirement for the grant of that visa that the applicant not have a spouse or de facto partner (Migration Regulations 1994 (Cth) sch 2, cl 101.213 (the Regulations)).

5    On 10 May 2012, the appellant’s wife applied for a sub-class 309 (Partner) visa. In that application she stated that she married the appellant in August 2011 and that they have two children, one born on 27 November 2006, and the other born on 28 July 2010. The second of those children was born when the appellant’s application for the visa was pending.

6    On 2 August 2013, the Minister gave notice under s 107 of the Migration Act 1958 (Cth) (the Act) that he was considering cancelling the visa because the appellant had provided incorrect information when he stated that he was not married and did not have any dependents, and because he failed to notify the Department of a change in his circumstances, being the birth of his second child.

7    On 4 December 2013, a delegate of the Minister cancelled the visa under s 109 of the Act.

8    On 24 December 2013, the application made by the appellant’s wife for a partner visa was refused because the visa of the appellant, as her sponsor, had been cancelled.

9    The appellant applied for review of both decisions by the Tribunal. This appeal concerns the decision of the Tribunal to cancel the visa of the appellant.

RELEVANT STATUTORY AND OTHER INSTRUMENTS

10    Section 109 of the Act provided as follows:

(1)     The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)     considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)    having regard to any prescribed circumstances;

may cancel the visa.

(2)     If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

11     Regulation 2.41 of the Regulations provided as follows:

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

(a)     the correct information;

(b)    the content of the genuine document (if any);

(c)    whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

(d)    the circumstances in which the non-compliance occurred;

(e)    the present circumstances of the visa holder;

(f)    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g)    any other instances of non-compliance by the visa holder known to the Minister;     

(h)    the time that has elapsed since the non-compliance;

(j)     any breaches of the law since the non-compliance and the seriousness of those breaches;

(k)     any contribution made by the holder to the community.

12    Policy guidance published by the Department of Immigration and Border Protection is found in the Procedures Advice Manual 3 (PAM 3). The document states that it must be taken into account by decision makers but not given the force of law. So far as is relevant to this case, PAM 3 states in respect of the exercise of discretion to cancel a visa:

15.2    Matters that must be taken into account

If the delegate has decided under s 108 that there was non-compliance by the visa holder in the way described in the s 107 notice, the delegate must have regard to the following matters – prescribed in regulation 2.41 – in deciding whether to cancel the visa:

…

•    the visa holder’s current circumstances

…

15.3    Matters that should be taken into account

It is policy that delegates also consider the following matters, where relevant:

…

•    whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation…

…

•    whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment – see Australia’s international obligations…

13    The Tribunal found that the appellant had not complied with the Act when he provided incorrect information and failed to disclose the change in his circumstances. The Tribunal therefore held that the power to cancel the visa had been enlivened. Then, the Tribunal considered whether it should exercise its discretion to cancel the visa.

14    Under the heading “Should the visa be cancelled” the Tribunal first set out the matters it intended to consider. The Tribunal summarised the circumstances prescribed by reg 2.41 and then stated:

While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s. 140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

[Emphasis added.]

15    The Tribunal then addressed each of the prescribed circumstances.

16    Following that discussion the Tribunal stated at [38] – [41]:

38.    In regard to breaching Australia’s international obligations, [the appellant] provided a submission stating a significant proportion of his family now live in Australia. And that if [the appellant’s] visa is cancelled it will result in significant strain and hardship to his family. It is submitted that [the appellant’s] life and liberty would be threatened if he were forced to leave Australia and would be a breach of Australia’s non-refoulement obligations. It is submitted that if he applied for a protection visa and this was refused Australia would be in breach of these obligations.

39.    [The appellant] says that as an ethnic Hazara he fears for his life in Quetta and Pakistan. The submission states the delegate’s view that [the appellant] can apply for a protection visa fails to appreciate the implications of cancelling his visa as his application to sponsor his wife and children cannot succeed until a permanent protection visa is granted.

40.    The Tribunal has considered his submission, but is satisfied that his claims can be canvassed in any application for a protection visa.

41.    The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s. 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

THE JUDGMENT OF THE FEDERAL CIRCUIT COURT

17    The appellant applied to the Federal Circuit Court for a review of the decision of the Tribunal on the ground that the Tribunal failed to give proper consideration to the likelihood that the appellant would suffer persecution if returned to Afghanistan.

18    In his judgment delivered on 18 May 2015 the primary judge rejected the argument that reg 2.41(e) required the Tribunal to consider as a mandatory consideration the non-refoulement obligation owed by Australia to the appellant. But the primary judge held that even if reg. 2.41(e) required it to do so, then the Tribunal had considered this factor.

19    The primary judge also rejected the appellant’s argument that PAM3 required the Tribunal to take into account Australia’s non-refoulement obligations. The language used in PAM3 indicated that this was a discretionary consideration. But the Federal Circuit Court held that, in any event, the Tribunal had taken this consideration into account.

20    The primary judge neither accepted nor rejected the appellant’s argument that the subject matter, scope and purpose of the Act required the Tribunal to take into account Australia’s non-refoulement obligations as a mandatory consideration. The primary judge held that, in any event, the Tribunal did have regard to that obligation.

21    In the result the primary judge dismissed the application for a review of the Tribunal’s decision.

THE NOTICE OF APPEAL AND NOTICE OF CONTENTION

22    On 9 June 2015, the appellant filed a notice of appeal in this Court which challenged the conclusion of the primary judge that the Tribunal was not bound to take into account Australia’s non-refoulement obligations as a mandatory consideration under reg. 2.41(e), by reference to PAM3, and in accordance with the subject matter, scope, and purpose of the Act.

23    The primary judge also held:

24.    … On a fair reading of the Tribunal’s decision as a whole, para.41 is, in my opinion, a rejection of the contention that Australia owed any protection obligation to the visa applicant. The applicant’s argument is flawed and, in my opinion, is reading the Tribunal’s decision with an eye to error. The decision must be read as a whole, particularly in light of the finding of the visa applicant being an unsatisfactory witness, and taking into account the clear finding of the delegate that Australia did not owe the applicant a protection obligation and that there was not a non-refoulement obligation owed to the applicant. Further to read the reference to “regard to all relevant circumstances” as not including that contention by the visa applicant has in my opinion no proper foundation.

[Emphasis added.]

24    Both parties agreed that, contrary to the view of the primary judge, the Tribunal made no finding that Australia did not owe protection obligations to the appellant. Rather, the Tribunal held that the appellant’s claims could be raised in an application for a protection visa.

25    On 21 September 2015, the Minister filed a notice of contention which advanced the following:

3.    The MRT concluded at paragraph 40 of its decision that the Appellant’s claims could be canvassed in any application for a protection visa.

4.    There was no error in the MRT’s finding or analysis at paragraph 40 of its decision, which finding implicitly recognised that the arguments advanced by the Appellant did not require the MRT to determine whether his claim that his removal would breach Australia’s non-refoulement obligations was correct, because upon the cancellation of his visa the Appellant’s non-refoulement claims could be addressed and determined through a process (a protection visa application process) specifically directed to that issue.

5.    Had the learned Judge identified the MRT’s reasoning correctly, he would in any event have accordingly concluded that the MRT did not make any jurisdictional error.

26    The notice of contention was filed out of time but the appellant did not object to the Court extending the time for the filing of the notice so that the contention could be argued on the appeal.

CONSIDERATION

27    The first issue considered is whether, on any of the three bases proposed by the appellant, Australia’s non-refoulement obligations was a mandatory relevant consideration which the Tribunal was bound to take into account in determining whether to cancel the appellant’s visa.

28    Regulation 2.41(e) stipulates a circumstance which is a mandatory consideration by operation of s 109(1)(c) of the Act. The Tribunal must consider the “present circumstances of the visa holder”. The primary judge concluded that the regulation referred to the physical, economic, emotional, and relationship circumstances of an applicant. It did not extend to whether Australia owed non-refoulement obligations to the visa applicant. That construction of the text of the regulation is correct. The reference to the present circumstances of the visa holder is not apt to refer to obligations which Australia owes to other countries under treaty. That construction is consistent with the matter as treated by PAM3. PAM3 deals with considerations which must be taken into account under reg 2.41 in [15.2] and then in [15.3] it deals separately with considerations which should be taken into account by the decision maker, where relevant, when determining whether to cancel a visa. Australia’s international obligations are discussed in this latter paragraph. PAM3 thus recognises that Australia’s international obligations are not a matter which must be addressed under reg 2.41, and, in particular, those obligations do not fall within the description of the visa holder’s current circumstances under reg 2.41(e).

29    Then, counsel for the appellant contended that, properly read, PAM3 made Australia’s non-refoulement obligations a mandatory consideration. He argued that [15.3] expressly listed matters that “should” be taken into account. “Should”, he said, was used in the sense of “must”. That reading was confirmed by [76] and [78] which provided in part:

AUSTRALIA’S INTERNATIONAL OBLIGATIONS

76    Relevant international obligations

Australia’s International obligations derive, in part, from treaties to which Australia is a party. When considering whether to cancel a visa under s109, s116, s128 and s140(2), or whether to revoke a cancellation under s131, officers must take into account any relevant obligations arising under such treaties.

Obligations apply to persons within Australia’s territory and also to person within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interest of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm).

…

78    Refugees Convention non-refoulement obligations

Special considerations apply if cancellation of:

•    a Protection visa or

•    another visa held because the visa holder has been assessed as engaging Australia’s protection obligations under the Refugees Convention (the 1951 Convention relating to the Status of Refugees and its 1967 Protocol)

The non-refoulement obligation under the Refugees Convention may also be relevant in non-Protection visa cases, if the person’s life or freedom would be threatened because of a Refugees Convention reason (that is, for reasons of race, religion, nationality, membership of a particular social group or political opinion) if they are removed from Australia. For further guidance, see the Refugee Law Guidelines.

Cancellation in such circumstances must be consistent with Australia’s protection obligations under the Refugees Convention.

Article 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person’s life or freedom would be threatened because of a Refugee Convention reason, or removal to a country which is likely to remove the person to another country where the person’s life or freedom would be threatened because of a Refugee Convention reason).

30    That submission misconstrues PAM3. Clause 15.2 lists matters which “must” be taken into account. Clause 15.3 which follows immediately after cl 15.2 lists matters which “should” be taken into account. The document draws a clear distinction between the two categories. Clauses 76 and 78 are part of a section headed “Australia’s International Obligations”. This section explains the nature of the obligations but does not define the role of the decision maker. That is done in cl 15.3. The relevant part of cl 15.3 ends with the guidance “see Australia’s international obligations…” That guidance directs the reader to the section in which cl 76 and 78 appear and which are designed to describe the content of the obligations referred to in the earlier clauses.

31    The appellant faced two further obstacles in relation to his reliance on PAM3. The first obstacle is the judgment in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 (El Ess) in which Gray J held at [45]

In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.

[Emphasis added.]

32    The second further obstacle is that cl 15.3 of PAM3 provides that Australia’s international obligations should be taken into account if cancellation would lead to a person’s removal in breach of Australia’s non-refoulement obligations. The Minister correctly contended that the cancellation of the appellant’s visa would not breach Australia’s non-refoulement obligations. Those obligations are only breached by removing a person to a place where they have a well-founded fear of persecution or face a real risk of suffering significant harm. The cancellation of a visa is legally distinct from removal. The appellant could ensure that removal did not occur until his claim for protection was heard by making an application for a protection visa. Indeed this is the course which the appellant followed. Thus, PAM3 does not require a decision maker to take into account Australia’s non-refoulement obligations as a mandatory consideration when determining whether to cancel a visa.

33    Then, counsel for the appellant contended that it was implicit in the subject matter, scope and purpose of the Act that a decision maker was bound to take into account Australia’s non-refoulement obligations when determining whether to cancel a visa. He relied on the contextual factor referred to in [27] of the judgment of the High Court in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (M61) which is part of the following extract:

26.    There are also contextual reasons that point to the conclusion that detention while steps are taken to determine whether the detainee should be permitted to make a valid application for a visa is lawful.

27.    First and foremost among those contextual reasons is that, read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. In some respects, as was explained in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the provisions of the Migration Act may, at times, have gone beyond what would be required to respond to those obligations. It is not necessary to explore those issues here. Rather, what is presently significant is that the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.

[Footnotes omitted.] [Emphasis added.]

34    A number of features of this contention should immediately be indicated. The argument was put without elaboration and in general terms. There was no detailed analysis of the statutory context of the power to cancel visas. That is to be contrasted to the elaborate analysis in M61 which accompanied the passage relied on. Furthermore, on its face the passage supports the decision of the Tribunal in that it refers to the availability of a protection visa as a means by which Australia may respond to its non-refoulement obligations.

35    The argument also faced the obstacle of the judgment of the Full Court in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 (Khadgi) in which it was said at [68]:

There are ten criteria specified in reg 2.41. The list of factors set out in reg 2.41 is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That list contains all of the mandatory criteria and, therefore, constitutes a comprehensive statement of those considerations which must be taken into account. There is nothing in the language of reg 2.41, the terms of s 109 or the context in which reg 2.41 is to be applied which requires that the Minister should give any particular weight to any one factor or group of factors nor is there any indication in any of those materials that one or more factors are to be accorded primacy.

[Emphasis added.]

36    We do not accept the appellant’s argument that Khadgi was wrongly decided on this issue.

37    Counsel for the Minister relied on Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 (Ayoub) by way of analogy with the circumstances of the present case to demonstrate that the subject matter, scope and purpose of the Act did not require the Tribunal to consider Australia’s non-refoulement obligations to the appellant as a mandatory consideration in relation to the visa cancellation decision. In Ayoub, the Minister cancelled the appellant’s visa on character grounds. The appellant argued that the Minister failed to decide whether Australia had non-refoulement obligations to him or whether as a result of cancelling the visa the appellant would be exposed to indefinite detention. The Full Court said:

18    … it may be accepted that the Minister is obliged when considering the plight of a refugee in immigration detention to take into account the “consequences” of his decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [17], (2014) 220 FCR 1 at 6 per Allsop CJ and Katzmann J. In reaching the same conclusion, Buchanan J there said:

[177]    ... it is sufficiently apparent, in my view, that the Minister gave no thought to, or alternatively regarded as irrelevant or not significant, that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention if a visa was refused.

See also his Honour’s comments at [164] to [166].

19.    NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.

[Emphasis added.]

38    The same reasoning is applicable in the circumstances of the present case. That reasoning is reflected in the decision of the Tribunal. The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.

39    The second issue considered in these reasons for judgment is whether the decision of the Tribunal should be upheld for the reasons advanced in the Minister’s notice of contention. The Minister argued that the decision of the Tribunal that Australia’s protection obligations would be considered in a protection visa application even if the appellant’s visa was cancelled responded to the case which the appellant put to the Tribunal.

40    At the hearing on 2 July 2014 the Tribunal indicated that the appellant could make a further submission following the hearing regarding the extent to which Australia is affected by its international obligations in making a decision whether to cancel the appellant’s visa. A week later, on 9 July 2014, the solicitor for the appellant sent the Tribunal a written submission setting out Australia’s international obligations under the Convention on the Rights of the Child, and Article 23.1 of the International Covenant on Civil and Political Rights, relating to family unity, and the non-refoulement obligations under the Refugees Convention. The submission stated that as an Afghan Hazara with family in Quetta in Pakistan the appellant was in constant fear of kidnapping, shooting, and bombing by Islamic extremists in either Afghanistan or Pakistan. The submission referred to some sources of country information to support those claims.

41    In the course of the hearing of the appeal the Court drew the attention of counsel for the appellant to the general nature of the material submitted to the Tribunal in support of the claim and observed that it was less comprehensive than is characteristic of material in support of claims made in protection visa applications.

42    Significantly, the submissions stated:

We submit that [the appellant’s] life and liberty would be threatened if he was forced to leave Australia, and as such, a decision to cancel his visa would be in breach of Australia’s non-refoulement obligations.

[The appellant] is a Hazara Afghani whose family reside in Pakistan.

It is noted that the delegate found that cancelling [the appellant’s] visa would not be in breach of Australia’s non-refoulement obligations, but that if [the appellant] were to apply for a Protection visa his claims would be more appropriately assessed. [The appellant] has, until this point, had no need to apply for a Protection visa. However it is submitted that if [the appellant] were to apply for a Protection visa, Australia would be in breach of its non-refoulement obligations if it did not grant one.

Furthermore the delegate’s suggestion that [the appellant] has the option of applying for a Protection visa if his current visa is cancelled, and that such an application is more appropriate, fails to appreciate the implications of cancelling [the appellant’s] visa. If [the appellant’s] visa is cancelled he will become an unlawful non-citizen. His application to sponsor his wife and children in respect of a Partner visa could not succeed until a permanent Protection visa is granted.

[Emphasis added.]

43    The written submissions of the Minister provided the following analysis of the case put by the appellant to the Tribunal:

18.    …when before the MRT the Appellant's argument was limited to the submissions that:

(a)    if he applied for a protection visa and it was refused then any removal from Australia that occurred thereafter would be contrary to any non-refoulement obligation; and

(b)    if his visa was cancelled, with the consequence that he had to apply for a protection visa in order to avoid removal, that would have adverse consequences for his capacity to sponsor his wife and children.

19.    The MRT was correct to reject those arguments. As to the first argument:

(a)    If the Appellant's application for a protection visa is refused, that decision will indicate that Australia does not owe non-refoulement obligations with respect to him, meaning that his removal from Australia following the making of such a decision would not be contrary to Australia's international obligations;

(b)    If the Appellant is refused a protection visa and that refusal decision is found to be erroneous, at most that might show that the decision to refuse to grant the protection visa was contrary to Australia's international obligations. It would not demonstrate that the decision to cancel the Visa pursuant to s 109, on the basis that the Visa was obtained by providing incorrect information, was contrary to those obligations.

20.     As to the second argument, the capacity of the Appellant to sponsor his wife and children to come to Australia has nothing to do with whether the cancellation of the Visa would breach Australia's non-refoulement obligations. The Appellant's argument amounts to saying that, notwithstanding the fact that he obtained the Visa as a result of giving incorrect answers that concealed the existence of his wife and children, the Visa nevertheless should not be cancelled because that would have adverse ramifications for his capacity to bring the very people whose existence he concealed to Australia. That proposition is untenable.

[Emphasis in original.]

44    This analysis should be accepted.

CONCLUSION

45    It follows from these reasons for judgment that the Tribunal did not fall into jurisdictional error. The appeal is dismissed with costs.

Associate:

Dated:    22 December 2015