FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
ORDERS
MINISTER OF IMMIGRATION AND BORDER PROTECTION Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. By consent, ground 4 of the further amended originating application dated 16 June 2017, filed in proceeding NSD 71 of 2017, be dismissed.
2. The appeal be dismissed.
3. Subject to order 4, the appellant pay the respondent’s costs of the appeal (other than the costs of the notice of contention), to be taxed if not agreed.
4. If either party seeks a variation of the costs order in order 3, the party give written notice to the Court and the other party within three business days. Directions will then be made for the determination of the issue of costs on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
INTRODUCTION
1 The respondent to this appeal, a citizen of Zimbabwe, arrived in Australia on 25 September 2007 and applied for a protection visa. He was granted a Protection (Class XA) Subclass 785 (Temporary Protection) visa (TPV) on 25 October 2007. A criterion of that particular visa was that the applicant be a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (the Refugees Convention).
2 Subsequently, in 2009, the respondent was granted a Resolution of Status (Class CD) Subclass 851 visa (RoS visa), which is a permanent visa. He was eligible to be granted this visa because he held the TPV. The RoS visa superseded the TPV.
3 On 21 December 2015, a delegate of the appellant (the Minister) cancelled the respondent’s RoS visa under s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). Part of the basis of the cancellation decision was the fact that, on 3 April 2012, the respondent had been sentenced to a maximum of six years and four months imprisonment for attempting to possess a marketable quantity of drugs, namely heroin.
4 The respondent was notified of the cancellation decision and invited to make representations to the Minister about revocation of that decision pursuant to s 501CA of the Migration Act. Section 501CA(4) provides that the Minister may revoke a decision to cancel a visa if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test (as defined in s 501) or that “there is another reason why the original decision should be revoked”. The respondent provided representations to the Minister in accordance with s 501CA.
5 On 21 November 2016, the Assistant Minister for Immigration and Border Protection (also referred to in these reasons as the Minister) decided not to revoke the cancellation decision (the non-revocation decision).
6 The respondent commenced a proceeding in this Court seeking judicial review of the non-revocation decision. The respondent’s further amended originating application included (among other grounds) the following two grounds:
(1) That the Minister fell into jurisdictional error in making the non-revocation decision because the Minister failed to take into account a mandatory relevant consideration, namely the respondent’s status as a refugee within the meaning of the Refugees Convention. It will be convenient to refer to this as the status as a refugee ground.
(2) Further or alternatively, that the Minister fell into jurisdictional error in making the non-revocation decision because the Minister denied the respondent procedural fairness, constructively failed to exercise jurisdiction and/or failed to carry out the statutory task required by s 501CA(4). The particulars in support of this ground were to the following effect:
(a) The Minister failed lawfully to consider a “reason” claimed by the respondent as to why the cancellation decision should be revoked, namely the respondent’s claim that if he were sent back to Zimbabwe he would face “prosecution” or even be killed because of his ethnicity as a member of a particular minority tribe, and his activities in opposing the government as a member of a particular political group, and because he sought entry to Australia as a refugee.
(b) The Minister failed to take into account, or misunderstood, the Migration Act and its operation in making the non-revocation decision, in reasoning that because the respondent was not prevented by s 501E of the Migration Act from making an application for a protection visa, it was unnecessary for the Minister to determine whether non-refoulement obligations were owed to or in respect of the respondent, when it was possible, and even likely, that the question whether Australia owed non-refoulement obligations to or in respect of the respondent would not be considered in assessing any application for a protection visa that the respondent might make, and in any event the circumstances in which such matters might be considered in the context of a protection visa application were different from the circumstances in which they would be considered in the context of the non-revocation decision.
It will be convenient to refer to this as the non-refoulement ground, although in some respects the ground may go beyond a claim that non-refoulement obligations were owed to or in respect of the respondent. The non-refoulement ground was similar to, if not the same as, grounds that had been upheld by the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456.
7 The primary judge upheld each of the grounds set out above.
8 In relation to the other grounds in the further amended originating application, with one exception the primary judge either rejected the ground or considered it unnecessary to decide the ground in light of his conclusions in relation to the status as a refugee ground and the non-refoulement ground. The one exception was ground 4 of the further amended originating application, which relied on the grounds that were then being advanced in the High Court of Australia in Falzon v Minister for Immigration and Border Protection proceeding No S31/2017. Consideration of that ground was deferred pending the outcome of the proceeding in the High Court.
9 The Minister appeals from the judgment of the primary judge. At the hearing of the appeal, the Minister applied for, and was granted, leave to amend his notice of appeal to include an additional ground (ground 2A). Following that amendment:
(1) grounds 1, 2, 2A and 3 of the amended notice of appeal challenge the primary judge’s conclusion in relation to the non-refoulement ground; and
(2) ground 4 of the amended notice of appeal challenges the primary judge’s conclusion in relation to the status as a refugee ground.
10 In relation to the non-refoulement ground, the Minister contends, in summary, that the facts of the current matter are distinguishable from those in BCR16 (and the primary judge erred in not so holding); and, in the alternative, that the decision of the Full Court in BCR16 was plainly wrong and therefore should not be followed.
11 The Minister accepted at the hearing of the appeal that, for the appeal to succeed, he would need to succeed in overturning the primary judge’s conclusions in relation to both the status as a refugee ground and the non-refoulement ground.
12 At the hearing of the appeal, the respondent sought and was granted leave to file a notice of contention. By the notice of contention, the respondent relies on certain additional matters to support the primary judge’s conclusion on the status as a refugee ground.
13 For the reasons that follow, we have concluded, in summary:
(1) In relation to the grounds of appeal relating to the non-refoulement ground, the Minister has not established error in the conclusion of the primary judge. In particular, we agree with the primary judge’s view that the present case is not distinguishable from BCR16. Further, we do not consider the decision of the Full Court in BCR16 to be plainly wrong. (We note, without more, that the High Court refused an application for special leave to appeal from the decision of the Full Court in BCR16 on the grounds that the application was not a suitable vehicle for the grant of special leave and there were insufficient prospects in any event that an appeal would succeed: [2017] HCATrans 240 (17 November 2017)).
(2) In relation to the ground of appeal relating to the status as a refugee ground, in our respectful opinion the primary judge erred. We would uphold this ground of appeal. We would also dismiss the notice of contention.
14 It follows from the above that the appeal is to be dismissed.
15 At the hearing of the appeal, we raised with counsel for the respondent whether it would be appropriate for an order to be made dismissing ground 4 of the further amended originating application in light of the subsequent judgment of the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61. Counsel for the respondent accepted that this would be appropriate. We will therefore also make an order dismissing this ground of the further amended originating application.
THE KEY LEGISLATIVE PROVISIONS
16 As noted above, the cancellation decision was made under s 501(3A) of the Migration Act. At the relevant time, that provision was in the following terms:
(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 full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
17 For present purposes the relevant provisions were paragraphs (6)(a) and (7)(c) of s 501, as follows:
(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));
…
(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 …
18 The Minister’s discretionary power to revoke the cancellation decision was set out in s 501CA(4). Section 501CA provided:
(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.
19 As summarised by the primary judge, in broad terms, the relevant statutory scheme was as follows. Under s 501(3A), the Minister had a duty to cancel a visa if the Minister was satisfied that the visa holder did not pass the character test prescribed in s 501(6) because, among other things, the person had been sentenced to and was serving a term of imprisonment of twelve months or more on a full-time basis (see ss 501(6)(a) and (7)(c)). Natural justice requirements did not apply to the visa cancellation decision. Thus, in this particular case, the respondent was not given an opportunity to be heard prior to his RoS visa being cancelled on 21 December 2015. When the Minister cancelled a visa under s 501(3A), the Minister had to give the affected person notice of the visa cancellation decision and invite the person to make representations to the Minister about possible revocation of the visa cancellation decision (s 501CA(3)). Under s 501CA(4), the Minister had a discretion to revoke the visa cancellation decision if representations were made and the Minister was satisfied either that: the person passes the character test prescribed in s 501(6); or “there is another reason why the [visa cancellation] decision should be revoked” (501CA(4)(b)(ii)). If the Minister revoked the visa cancellation decision, that original decision was taken not to have been made (s 501CA(5)).
THE MINISTER’S STATEMENT OF REASONS
20 The Minister’s statement of reasons dated 21 November 2016 (the Minister’s statement of reasons) may, relevantly, be summarised as follows. The summary that follows is based substantially on the reasons of the primary judge (the Reasons).
21 The Minister noted that the respondent had made representations which sought the revocation of the cancellation decision. Those representations were summarised in [12] of the Minister’s statement of reasons. The summary included a reference to the respondent’s representation that he had come to Australia as a refugee and continued to require Australia’s protection because, if he was returned to his country of origin, he would be persecuted by the government of Zimbabwe having regard to his ethnicity and his former activities in a particular political movement in Zimbabwe.
22 The Minister said that he also took into account the best interests of the respondent’s six year old son, who was born in Australia and is an Australian citizen. The Minister found that the best interests of the child would be served by revoking the cancellation decision. The Minister concluded, however, that this consideration was outweighed by other matters. These matters included the serious nature of the respondent’s offence, the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia and the need to protect the Australian community.
23 Paragraphs [29] to [34] of the Minister’s statement of reasons dealt with non-refoulement obligations as follows:
Non-refoulement obligations
29. [The respondent] states that if he were sent back to Zimbabwe he would face prosecution or even be killed because of his ethnicity as a member of the minority [redacted] tribe, and his activities in opposing the government of Robert Mugabe as a member [of a particular political group], which is a banned political party in Zimbabwe, and because he sought entry to Australia as a refugee.
30. [The respondent] has made claims that may give rise to international non-refoulement obligations. [The respondent] is able to make a valid application for another visa. In particular I note that [the respondent] 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 respondent] for the purposes of this decision.
31. I note that [the respondent] has previously been found to be owed non-refoulement obligations towards [sic] and therefore might be again, if he makes a further application for a Protection visa. This would mean that [the respondent] cannot be removed to Zimbabwe. I also accept that, while [the respondent] would be able to be removed to a country other than Zimbabwe, there is currently no known prospect of removal to such a country.
32. I am aware of and have had regard to the potential existence of a non-refoulement obligation in this case and I have carefully weighed this factor against the seriousness of [the respondent’s] criminal offending in the making of my decision whether to not [sic] revoke the cancellation of [the respondent’s] visa.
33. The existence of a non-refoulement obligation does not preclude the non-revocation of a decision to cancel a non-citizen’s visa. Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
34. The statutory effect of a decision to not revoke the cancellation of a visa is also removal of [the respondent] from Australia as soon as practicable, and in the meantime, detention. In making my decision I am aware that while [the respondent] will not be removed from Australia if I decide to not revoke the decision to cancel [the respondent’s] visa (notwithstanding s197C of the Act) and he is subsequently found to be owed non-refoulement obligations, he will face the prospect of indefinite immigration detention due to the operation of s189 and s196 of the Migration Act. I accept that indefinite detention would be likely to have an ongoing adverse effect on [the respondent].
24 The Minister stated that he found that the respondent represented an unacceptable risk of harm to the Australian community, which community could be exposed to great harm if the respondent reoffended in a similar fashion (which could not be ruled out, said the Minister). The Minister stated, at [54] of the statement of reasons:
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 respondent] 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 his employment, and familial ties to Australia, and the hardship his close family and social networks will endure in the event the original decision is not revoked.
25 The Minister concluded at [55] that, having given “full consideration to all of these matters”, he was not satisfied, for the purposes s 501CA(4)(b)(ii), that there was another reason why the cancellation decision should be revoked. Hence, the cancellation of the respondent’s RoS visa remained in place.
THE PROCEEDING AT FIRST INSTANCE
26 The respondent commenced a proceeding seeking judicial review of the non-revocation decision in the Federal Circuit Court of Australia. That proceeding was transferred to this Court. At the hearing before the primary judge, the respondent’s grounds of judicial review were set out in the respondent’s further amended originating application. In this application:
(1) The status as a refugee ground was ground 1(a). The substance of this ground has been set out in [6] above.
(2) The non-refoulement ground was ground 1B. The substance of this ground has also been set out in [6] above.
THE DECISION OF THE PRIMARY JUDGE
27 The primary judge upheld both the status as a refugee ground and the non-refoulement ground. Although his Honour dealt, first, with the status as a refugee ground and, secondly, with the non-refoulement ground, it will be convenient to summarise his Honour’s reasons in relation to these grounds in the reverse order, reflecting the order in which these grounds are dealt with in the amended notice of appeal.
The non-refoulement ground
28 By the non-refoulement ground before the primary judge, the respondent contended that the Minister fell into jurisdictional error because he denied the respondent procedural fairness, constructively failed to exercise jurisdiction and/or failed to carry out the statutory task required by s 501CA(4). This judicial review ground was directed to that part of the Minister’s reasoning in [29]-[31] of his statement of reasons which we have set out at [23] above. The respondent contended that it was possible, and even likely, that the question whether non-refoulement obligations were owed would not be considered in assessing any application for a protection visa by him and, in any event, the context of a protection visa application was different from the context of a non-revocation decision. In substance, this ground relied upon the reasoning of the majority in BCR16.
29 The primary judge referred, at [50] of the Reasons, to the decision in BCR16, noting that the “circumstances are similar to those here”. The primary judge also noted, at [51], that the Assistant Minister’s reasons, as referred to in BCR16, contained a paragraph that was substantially similar to [30] of the Minister’s statement of reasons in the present case.
30 The primary judge outlined, at [52]-[56], the Minister’s submissions in relation to the non-refoulement ground. As noted by the primary judge, the Minister: acknowledged the similarity in the wording of the relevant paragraphs in both BCR16 and the present case; and submitted that this did not matter, because the majority’s decision in BCR16 was underpinned by a factual finding, and no similar finding could be made here in the light of the additional evidentiary material adduced by the Minister.
31 The additional evidentiary material relied upon by the Minister was in the form of an affidavit dated 30 June 2017 by Ms Miranda Lauman. Ms Lauman was an Assistant Secretary in the On-Shore Protection Branch of the Department of Immigration and Border Protection. She said that a Departmental document, called the “Procedures Advice Manual 3” (PAM3), provided “an order of assessment and guidance in determining applications for Protection visas”. In particular, the Minister drew attention to the following paragraph on page 14 of PAM3:
Although a PV applicant may be unable to meet the protection obligations criteria in the Act if they come under any of the provisions in s 36(1B), s 36(1C), s 5H(2) or s 36(2C) decision makers must assess whether the applicant engages protection obligations. The reason for making this assessment is to determine whether any of Australia’s protection obligations under international instruments are engaged even if a PV cannot be granted. This assessment is important as it will assist with the appropriate management of the applicant’s case following the decision on their application.
(Emphasis added by primary judge.)
32 The Minister submitted that, having regard to this evidence, [30] of the Minister’s statement of reasons in the present case should be read as reflecting that the likely course of decision-making would be in accordance with that part of PAM3. On this basis, the Minister submitted that the majority view in BCR16 was distinguishable.
33 The Minister also submitted that the appellant in BCR16 did not, in fact, refer to or otherwise seek to engage Australia’s non-refoulement obligations. Instead, there was a misunderstanding of his claims by the Minister and the Department. This was said to have been highlighted by Bromberg and Mortimer JJ in BCR16 at [72]. In contrast, the Minister submitted, the respondent here put his case to the Minister squarely on the basis that the reason for revoking the original decision was encompassed in his refugee claims. Further, the Minister submitted that he did have regard to the matters the respondent advanced in support of his request that the cancellation decision be revoked, as reflected in [32] and [54] of the Minister’s statement of reasons.
34 The primary judge outlined, at [57]-[59], the respondent’s submissions.
35 The primary judge’s reasoning in relation to the non-refoulement ground was set out at [60]-[70] of the Reasons. At [60], the primary judge expressed his conclusion, namely that the non-refoulement ground should be accepted. In summary, his Honour considered that the case was indistinguishable from BCR16. Further, his Honour considered that PAM3 did not provide an adequate basis for distinguishing BCR16.
36 The primary judge noted, at [61], that the Minister’s statement of reasons in the present case contained a “virtually identical” passage to the reasons of the Assistant Minister’s as considered in BCR16.
37 The primary judge stated, at [63], that the majority in BCR16 accepted at [66]-[67] that the Assistant Minister had wrongly considered that non-refoulement obligations would necessarily be considered if the appellant applied for a protection visa, when it was held that this was not the case (for the reasons explained by Bromberg and Mortimer JJ at [36]-[47] of their joint judgment). The primary judge continued:
Significantly, at [48] [of BCR16], Bromberg and Mortimer JJ found that there was a distinction between the consideration of non-refoulement obligations in the context of considering the exercise of the revocation power in s 501CA(4), as opposed to the exercise of power under s 65 of the Act whether or not to grant a person a visa. The former power is discretionary, whereas s 65 involves a different exercise, as their Honours further explained at [49]-[50] …
38 The primary judge then set out [49]-[50] from the judgment of Bromberg and Mortimer JJ in BCR16. His Honour also referred to BCR16 at [68].
39 The primary judge, at [65]-[70], provided the following additional reasons for upholding the non-refoulement ground:
In [68] to [72] of BCR16 Full Court, Bromberg and Mortimer JJ identified two misunderstandings of the law by the Assistant Minister in that case. Those misunderstandings are also evident here. First, the likely course of decision-making under the Act was not properly understood because there was no apparent appreciation by the Minister that, even if the [respondent] applied for a protection visa, his application might be rejected on character grounds and without the decision-maker having to address or assess his fears of persecution. For the reasons given by the majority in BCR16 Full Court at [37] to [52], the scheme of the Act permits and, indeed, contemplates that a person who poses real character concerns is unlikely to be granted a visa and it makes “much administrative sense for this to be dealt with as an initial consideration”.
This finding is not avoided in the circumstances of this case by reference to Ms Lauman’s affidavit and PAM 3. That material relates to the Department’s decision-making processes and procedures in assessing a protection visa application. There is no evidence that the Minister was under a legal obligation to act in accordance with PAM 3 when he or she chooses personally (or is required by the Act) to exercise a power such as that conferred by s 501CA(4) or indeed s 65. As the [respondent] also pointed out, however, any future application by him for a protection visa might be rejected by the Minister personally acting under s 501(3), relying simply on character (or national interest) grounds and without the [respondent] being afforded procedural fairness before any such decision was made. There is no evidence of any consciousness or awareness on the Minister’s part of the significance to any future decision-making by the Minister of the serious adverse findings previously made concerning the [respondent]’s character, based on his criminal conviction, in cancelling the person’s visa.
In any event, in its own terms, PAM 3 provides “policy” and “guidelines” and, presumably, could be departed from because of the merits of a particular case if a Ministerial delegate happened to consider and determine a future application for a protection visa. There was no evidence to indicate that PAM 3 had the status of a Ministerial direction under s 499 of the Act. I note that Jagot J took a similar view of this material in Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 (Steyn) at [19] as also did White J in Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 (Ibrahim) at [56] – [64] who provided additional reasons for rejecting the material.
For completeness, for the reasons given in [36] above, I reject the Minister’s contention that BCR16 Full Court is distinguishable because the Minister claims that he did take into account the [respondent]’s “refugee claims”. There is nothing in the Minister’s statement of reasons which justifies a finding that the Minister turned his mind to the continuing loss of the [respondent]’s benefits and entitlements, as summarised in Exhibit A. The Minister’s consideration was limited to the issue of non-refoulement and, even in respect of that matter, was substantially deferred until such time as the [respondent] might apply for a protection visa.
The second misunderstanding as identified in BCR16 Full Court, which is also present here, relates to the application of Goundar [v Minister for Immigration and Border Protection [2016] FCA 1203]. The [respondent] here plainly identified the harm he feared if he were returned to Zimbabwe. Several times in his written representations dated 23 December 2015 to the Minister he said that he would face prosecution or be killed if he were returned to Zimbabwe. The [respondent] linked this feared harm to his status as a refugee, but that does not provide a sufficient basis for distinguishing his case from BCR16 Full Court on this issue. As the majority pointed out there at [72], whether or not the feared harm has a “private quality” (as in Goundar itself) there “might be other reasons it be harm outside the kind covered by Australia’s international non-refoulement obligations”. In the context of an application by him for a protection visa, the feared harm identified by the [respondent] here may not have been accepted by the decision-maker as being sufficiently linked to a Refugees Convention ground, but the harm expressed by the [respondent] in his representations was nevertheless being put forward by him as a “reason” within the meaning of s 501CA(4) for revoking the visa cancellation decision. That feared harm was not considered by the Minister because of his misunderstanding as to law as identified above and his failure to recognise the different legal requirements applying to decision-making under s 65 as opposed to s 501CA(4) of the Act. Consistently with BCR16 Full Court, this involves jurisdictional error (see also Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Accordingly, because I am bound by the majority’s decision in BCR16 Full Court and consider that it is indistinguishable, ground 1B must be upheld. A similar approach was taken by Kenny J in ALN17 v Minister for Immigration and Border Protection [2017] FCA 726 (ALN17); Jagot J in Steyn (s 501(2) decision) and White J in Ibrahim. The Minister did not contend that BCR16 Full Court should not be followed in circumstances where the Minister has filed an application for special leave to appeal that decision in the High Court. Even if he had made such a contention, that would likely be an insufficient basis for not following a currently binding authority.
(Emphasis in original.)
The status as a refugee ground
40 By the status as a refugee ground before the primary judge, the respondent contended that the Minister had failed to take into account the respondent’s prior status as a refugee as a mandatory relevant consideration in deciding not to revoke the cancellation of the respondent’s RoS visa. His Honour accepted the respondent’s argument that there was an obligation to take into account his status as a refugee, and that this obligation had not been met. His Honour also found that there was a corresponding obligation to take into account the legal consequences of the decision not to revoke the visa cancellation, namely the continued loss of benefits and entitlements that the respondent obtained access to because of, his Honour found, the respondent’s continuing refugee status, rather than because of his status as the holder of a RoS visa.
41 The Minister, at first instance (and on appeal) challenged:
(1) the notion that the respondent’s refugee status was in any way affected by the grant, cancellation or non-revocation of the RoS visa; and
(2) the notion that, irrespective of whether or not the respondent’s refugee status was affected by the respondent holding a RoS visa, the consequential loss of benefits and entitlements by the operation of other Commonwealth statutes was a matter required to be taken into account, unless raised by the former visa holder in representations made pursuant to s 501CA of the Migration Act as part of another reason why the visa cancellation should be revoked, with no such representation having been made.
42 The primary judge described the substance of the respondent’s case in relation to the status as a refugee ground, and the Minister’s case in response, as follows.
43 The respondent’s initial case before the primary judge, summarised by his Honour at [12]-[14] of the Reasons, was that:
(1) he was granted a TPV a month after his arrival in Australia in 2007 on the basis that he had a well-founded fear of persecution on the ground of political opinion, thus being a person to whom the Refugees Convention applied;
(2) in 2009, the TPV was replaced with a RoS visa (by way of a change to the Migration Regulations 1994 (Cth) in relation to visa classes and criteria), which was intended to resolve the immigration status of the holders of TPVs without them undergoing any reassessment of their protection claims;
(3) it was a ‘quirk’ of the visa classification system that the holder of a RoS visa was not the holder of a protection visa under the Migration Act, despite having access to the same benefits and entitlements;
(4) it was irrelevant that the RoS visa was not in terms a protection visa, because the respondent had held the status of being a refugee – this status was a mandatory relevant consideration in considering whether or not to revoke the cancellation decision; and
(5) that refugee status went beyond Australia’s non-refoulement obligations that were owed to him, and that the cases of Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513, COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148 and Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 were all distinguishable.
44 The Minister’s initial case, summarised by the primary judge at [15], was that Le at [15] was indistinguishable, being authority for the proposition that a person’s refugee status was not a mandatory relevant consideration in circumstances in which a person is entitled to make a subsequent protection visa application, and the respondent undoubtedly was entitled to make such an application, citing Le at [61(e)] and [64].
45 The primary judge, at [16]-[20], recorded the process by which post-hearing supplementary submissions were invited from the parties and the substance of what was further submitted by them as follows:
(1) The parties were directed to file written supplementary submissions relating to the status as a refugee ground, with a particular focus on a letter sent by the Minister’s Department to the respondent dated 11 June 2009, which advised him that he had been granted a RoS visa, informed him that as the holder of that visa he was eligible to access the same benefits and entitlements as a permanent protection visa holder, and enclosed a document which contained information about those benefits and entitlements. That document was admitted into evidence by his Honour as Exhibit A.
(2) The Minister’s supplementary submissions contended that this additional information did not assist the respondent in relation to this ground of review, because:
(a) all the entitlements and benefits either:
(i) depended upon the respondent continuing to hold a permanent visa in common with all other holders of permanent visas; or
(ii) were not subject to any statutory criteria and were unlikely to be relevant to the respondent.
Thus, the Minister argued, none of those benefits or entitlements depended upon the respondent’s refugee status, but, rather, upon his permanent visa status. The Minister emphasised that the criteria for the grant of a RoS visa did not require that the respondent be a person to whom Australia owed protection obligations under the Refugees Convention.
(b) none of those entitlements and benefits were put forward as part of the respondent’s representations to the Minister under s 501CA of the Migration Act as to why the visa cancellation should be revoked, citing Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55]-[56].
(3) The respondent’s supplementary submissions countered the Minister’s argument by submitting that the benefits and entitlements to which he became entitled upon the grant of the RoS visa were obtained in circumstances in which his refugee status underpinned the grant of that visa. Thus, he submitted, the grant of the RoS visa amounted to a legal recognition of his refugee status, and entitled him to the same benefits and entitlements that he would have had as the holder of a protection visa. Reliance was placed on the history of RoS visas in aid of these submissions. The respondent submitted that the Minister was obliged to take into account the fact that not revoking the automatic cancellation of his visa would mean that he would lose benefits and entitlements to which he was otherwise entitled by reason of his refugee status.
46 The primary judge summarised the history of RoS visas and the benefits and entitlements which a holder of that visa was able to access. His Honour noted that the explanatory statement to the regulations amending the Migration Regulations referred to an intention to resolve the immigration status of the holders of TPVs through the grant of RoS visas rather than the grant of protection visas, so that it was not necessary to make any assessment as to protection visa obligations under the Refugees Convention. His Honour characterised this as being, in effect, the grant of a RoS visa on the basis of an earlier assessment that the respondent was a refugee, which had provided the basis for the TPV, without requiring a further assessment of his refugee status. That characterisation will be considered in further detail later, being a central issue in this appeal.
47 The primary judge’s reliance on the explanatory statement to the regulations has to be understood in a limited way as reinforcing the meaning to be gleaned from the face of the regulation in question. While the explanatory statement for a regulation may reinforce the understanding to be gained from a reading of the regulation itself, any statement of its overall purpose, cast in aspirational terms, cannot form the basis upon which to characterise the legal effect of the grant of a visa in place of the terms of the visa criteria themselves: see R v JS [2007] NSWCCA 272; 230 FLR 276 at [141] to [144].
48 The primary judge also made reference to and quoted from part of a Departmental document headed “OPIPA No 28 – Processing and deciding Resolution of Status (Class CD) visa applications”. That extract summarised an announcement made on 13 May 2008 by the then Minister about the reasons for and operation of the new RoS visa. However, the detail of that document did not feature further in the resolution of this ground of review before his Honour. That document may be seen to have even less impact on the resolution of this ground of review and the relevant ground of appeal than the explanatory statement for the amending regulations. It follows that considering the terms of that policy further does not assist in the resolution of the issues at hand.
49 The primary judge, at [27], listed a number of different types of benefits and entitlements that the holder of a RoS visa could access. They included social security allowances and payments, Medicare benefits, pharmaceutical benefits, English language programs, sponsorship of overseas relatives to settle in Australia, family tax benefits, childcare benefits and, in due course, paid parental leave. The respondent had lost access to each benefit or entitlement, either current or prospective, as a result of his RoS visa being cancelled. His Honour then addressed an illustrative, rather than exhaustive, subset of those benefits and entitlements. It is not necessary to go into the detail of that analysis, except insofar as his Honour observed that a range of those benefits and entitlements have qualifying requirements which include being an Australian resident, which is defined to include the holders of permanent visas, relevantly including the holders of RoS visas.
50 The primary judge observed, at [29]-[30], that in the case of the Social Security Act 1991 (Cth), “refugees” or “former refugees” also had an exemption from the residence requirement for obtaining access to certain payments and allowances (referred to in s 7(6) as a “qualifying residence exemption”, which operates to exempt a person from a 10-year residence requirement to obtain access to certain social security benefits). The status of being a “refugee” for the purposes of s 7 of the Social Security Act so as to have a “qualifying residence exemption” was bestowed, among other things, via s 7(6B)(c)(iii), if the person was the holder of a class of permanent visa referred to in a declaration by the Minister for Social Security. In 2008, the Minister for Social Security declared a RoS visa to be an eligible class of visa, such that the holder of a RoS visa was a “refugee” for the purposes of s 7 of the Social Security Act. Correspondingly, the status of being declared to be a “refugee” for the purposes of s 7 of the Social Security Act was removed if that visa was cancelled.
51 It is important to note that the range of persons who were “refugees” for the purposes of s 7 of the Social Security Act extended to persons who were holders of certain types of humanitarian visas, both onshore and offshore: see s 7(6B)(a)(i) and (ii). Thus, the use of the term “refugee” in the Social Security Act was not necessarily confined to persons who were found to be refugees under the Refugees Convention. Rather, that term may be seen to refer to persons who are refugees in the general sense in which that word is used, rather than in the narrower and more technical meaning of additionally meeting Refugees Convention criteria, especially concerning persecution for one of the five Convention reasons. Even if confined to RoS visas, that declared status applied even if the person had never been found to be a refugee in the Refugees Convention sense, because they had not been granted a RoS visa by reason of being the holder, or prior holder, of a TPV and had never been determined to be a refugee in that sense.
52 The respondent, while he still had a RoS visa, was declared to be a “refugee” for the purposes of s 7 of the Social Security Act. This was not a feature of the other benefits and entitlements referred to by his Honour. It was not in dispute that the cancellation of the respondent’s RoS visa resulted in him losing access to the benefits and entitlements referred to by his Honour, including, in particular, social security allowances and payments. The live dispute on this topic was whether the loss of that access resulted only from the respondent’s loss of his permanent RoS visa, or whether it also arose from his loss of refugee status.
53 The primary judge, at [21] to [39], upheld the status as a refugee ground, finding that the nature of the consideration that was not taken into account was the legal consequence of the respondent not having a RoS visa by reason of his loss of access to a range of benefits and entitlements. The two outcomes – loss of refugee status and loss of access to benefits and entitlements – were effectively found to be connected in his Honour determining that certain of the benefits and entitlements foregone, namely access to the social security allowances and payments, were connected to the respondent’s refugee status, rather than only being connected more generally to anyone who had an eligible class of permanent visa. The pivotal passage in the Reasons was at [35]:
I accept the [respondent’s] submission that the Minister was obliged to take into account the legal consequence of not revoking the cancellation of his RoS visa. This consequence included that the [respondent] would continue to be denied eligibility for the benefits and entitlements under both the SS Act and the Medicare scheme which otherwise would be available to him if he satisfied all other relevant criteria. This could be characterised as either a failure to take into account a mandatory relevant consideration within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 39-40 or a failure on the part of the Minister properly to understand the legal consequences of his decision not to revoke the visa cancellation decision under s 501CA(4) of the Act (see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [17] per Allsop CJ and Katzmann J and at [177] per Buchanan J).
(Emphasis added.)
54 It may be seen that central to the primary judge’s reasoning was that the grant, cancellation or non-revocation of the RoS visa affected the respondent’s refugee status, and that this, in turn, gave rise to obligations, when considering revocation of the cancellation of that visa, to have regard to:
(1) the loss of the respondent’s refugee status; and
(2) the legal consequences of the respondent’s loss of refugee status, which included being deprived of access to benefits and entitlements under a range of other Commonwealth statutes.
The orders of the primary judge
55 The primary judge ordered that: the non-revocation decision be set aside; the matter be remitted to the Minister for reconsideration according to law; and the Minister pay the respondent’s costs of and incidental to the proceeding as agreed or assessed.
THE APPEAL
56 The Minister appeals from the whole of the judgment and orders of the primary judge. The grounds set out in the Minister’s amended notice of appeal are as follows.
1. The Court below erred in deciding that the Appellant’s decision pursuant to s501CA(4) of the Migration Act 1958 (Cth) (the Act), being a decision not to revoke the delegate’s original decision pursuant to s 501(3A) to cancel the Respondent’s Resolution of Status (permanent) visa, was affected by jurisdictional error in the nature of a misunderstanding of the operation of the Act, in that the Court below erred in:
a. characterising the Appellant’s statement of reasons (at [29]-[31]) as demonstrating that the Appellant considered that non-refoulement obligations would necessarily be considered if the Respondent applied for a protection visa ([Reasons,] [61], [62], [63] and [70]);
b. deciding that the Appellant had failed to properly understand the likely course of decision making under the Act ([Reasons,] [63] to [65] and [70]);
c. failing to follow the decision of this Court in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 and the cases referred to therein, which are authority for the proposition that the availability of a future protection visa application is a permissible reason for declining to assess claims that might give rise to non-refoulement obligations in the course of an antecedent exercise of discretion under the Act.
2. The Court below erred in deciding that the Appellant erred in characterising the claims made by the Respondent to face harm should he be returned to Zimbabwe as claims to be owed non-refoulement obligations ([Reasons,] [69], [70]).
2A. Further or alternatively to grounds 1 and/or 2, any error made by the Appellant was immaterial because the Appellant had regard to each of the matters the Respondent sought to advance as reasons for revocation of the earlier decision made under s 501(3A) of the Act.
3. The Court below erred in, in effect, imposing a burden of proof or onus upon the Appellant to prove as a matter of fact that the course of decision-making in any future protection visa application by the Respondent would involve assessment of his non-refoulement claims (where no such burden or onus exists), and then finding that matter unproved on the evidence before it: [Reasons,] [66], [67].
4. The Court below erred in deciding that:
a. Properly construed, the Act required the Appellant to consider, and properly understand, the legal consequences for the Respondent if the original decision was not revoked in terms of the Respondent’s eligibility for the range of benefits and entitlements referred to at [Reasons,] [27]-[35] under various Commonwealth statutes; and
b. That the Appellant failed to do so.
57 At the hearing of the appeal, counsel for the Minister stated that ground 4(b) was not pressed.
58 By his notice of contention, the respondent relies on the following grounds:
To the extent it did not do so, the Court ought to have found that the appellant was obliged in making a decision under s 501CA(4) of the Migration Act 1958 (Cth) to take into account the fact that not revoking the automatic cancellation of the respondent’s visa would result in the loss of the benefits and entitlements to which the respondent was entitled by virtue of his refugee status, for the reasons set out in the Supplementary Submissions filed by the respondent (the applicant below) dated 15 August 2017.
59 It will be convenient to deal, first, with grounds 1 to 3 of the amended notice of appeal (which relate to the non-refoulement ground at first instance) and then, secondly, with ground 4 of the amended notice of appeal (which relates to the status as a refugee ground at first instance). The notice of contention (which also relates to the status as a refugee ground) will be dealt with together with ground 4.
GROUNDS 1 TO 3
60 The Minister submits, in summary, that the facts of the current matter are distinguishable from those in BCR16. Further or alternatively, the Minister submits that the decision of the Full Court in BCR16 was plainly wrong and therefore should not be followed. It will be convenient to deal with grounds 1 to 3 of the amended notice of appeal in the order dealt with in the Minister’s submissions, rather than sequentially.
The ‘first misunderstanding’ identified in BCR16 – grounds 1(b) and 3
61 Grounds 1(b) and 3 of the amended notice of appeal relate to the ‘first misunderstanding’ of the Assistant Minister identified by the majority in BCR16 (which the primary judge found to have been made by the Minister in this case, at [60]-[68] and [70] of the Reasons).
62 The Minister’s submissions in relation to these grounds can be summarised as follows:
(1) This aspect of the appellant’s argument in BCR16 was put, in part, on the basis of the state of the evidence in that case. The “assumption” held to involve error (namely, that non-refoulement obligations would be considered in the event that the appellant were to apply for a protection visa) was said to be both wrong in law and not to have been established as a matter of fact: BCR16 at [35].
(2) The error that the Minister was ultimately held to have made was an error as to the “likely” course of decision-making under the Act: see BCR16 at [67] and [70]. That is, the Minister had failed to appreciate that there was a “probability”, described by the majority as “real”, that any later decision as to the grant of a protection visa would be made on character grounds, considered ahead of other criteria: BCR16 at [52]. Returning to that issue at [75], the majority said that the state of the evidence in that case suggested a “probability” that any protection visa application would be decided on character grounds – and that there was no evidence that the Minister or delegate would consider the risk of harm to the appellant if he made a protection visa application.
(3) Understood in that context, the critical finding in BCR16 at [67]-[69] was a conclusion that the Minister failed to appreciate those matters; that is, the likely future practical operation of the Migration Act, in a particular set of existing factual circumstances, as found by the Court on the state of the evidence in that case. It was not merely an error as to the proper construction of the Act.
(4) In the present case, and in contrast to BCR16, there was additional evidentiary material as to the likely future course of decision-making in the form of the affidavit of Ms Lauman, affirmed on 30 June 2017, dealing with PAM3. That evidence indicated that decision-makers under the Migration Act were instructed to assess protection obligations in respect of all persons making applications for protection visas, even if that person was liable to be refused a protection visa for failure to satisfy other criteria (including character-related criteria). The rationale for that approach was also explained in Ms Lauman’s affidavit: in cases where a protection visa could not be granted for failure to satisfy other criteria, the assessment of whether Australia’s protection obligations were engaged was nevertheless said to be “important” because it “will assist with the appropriate management of the applicant’s case following the decision on their application” (which might include, for example, consideration of the Minister’s so-called “dispensing powers” or the making of a “residence determination” under Pt 2, Div 7, subdiv B of the Migration Act).
(5) It is true that, as the primary judge noted, PAM3 did not at the relevant time have the status of a direction made under s 499 of the Migration Act. (This is no longer the case – a direction in substantially similar terms was made under s 499 on 5 September 2017.) That does not detract from the Minister’s argument. The very point of such non-binding guidelines and statements of government policy is that identified in the joint reasons in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [54] (dealing with a different aspect of PAM3): that is, they help to “promote consistency” in “high volume decision-making”. As was also there noted, such an approach is both permissible and desirable because, amongst other things, it “assure[s]” the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions” (see similarly Gageler J at [68]). In short, such guidelines and policies are designed to produce a measure of uniformity across the range of administrative decisions to which they apply. Unless one was to make an assumption (unsupported by any evidence in this case) that such a document would simply be ignored, the existence of such guidelines or statements of policy pointed inexorably to the conclusion that it was, as a practical matter, “likely” that the respondent’s protection claims would be assessed, reflecting the uniformity of approach envisaged by PAM3.
(6) And that is so notwithstanding the fact that, as the primary judge also correctly observed, the Minister was likewise under no legal obligation to act in accordance with PAM3 were he or she to choose personally to exercise the powers conferred by ss 501(3) (or, perhaps, s 65). There is no basis to infer that (if in fact the Minister did engage in the exercise of those powers) he or she was “likely” to depart from such an approach, particularly given the “important” policy rationale identified in PAM3. Indeed, PAM3 states that Australia’s protection obligations are to be considered in the context of a protection visa application prior to any referral for consideration of the exercise of the powers conferred by ss 501(1) and (3). Necessarily that meant that it was at least “likely” that any exercise of those powers would be preceded by an assessment of the respondent’s protection claims.
(7) Against that background, the primary judge erred in his analysis of the Minister’s statement of reasons at [63]-[65] and [70] of the Reasons. Nowhere did the Minister enunciate a view of the statute which departed from that discussed by the majority in BCR16 at [38]-[44], [66] and [68]-[69]. Indeed, as [52] of BCR16 makes clear, the view of the likely operation of the Act that was found to have been erroneously assumed by the Minister must be accepted to be at least a permissible one on the face of the statute: at issue was whether that possible and permissible application of the Act was likely on the evidence.
(8) Here, and unlike BCR16, it could not be concluded, on the state of the evidence, that any similar view taken by the Minister was one that failed to appreciate the likely practical operation of the Act. To the contrary, and consistent with any such view, the available evidence suggested such protection claims were likely to be considered, regardless of whether the visa was ultimately refused on character grounds (indeed, anterior to any question of character related criteria being considered).
(9) The primary judge rejected the Minister’s arguments on those matters at [66]-[67] of the Reasons, essentially relying on the matters identified above (namely, that PAM3 was not binding upon delegates, let alone the Minister). That involved two distinct errors. First, the question was not whether there would, in all conceivable circumstances, be an assessment of any protection claims made by the respondent. That is because, as submitted above, the error in the Minister’s understanding identified in BCR16 concerned the likely course of decision making.
(10) Secondly, in effect, the approach of the primary judge imposed a burden or onus upon the Minister to prove as a matter of fact that the course of decision-making on any future protection visa application would involve assessment of his non-refoulement claims, a burden or onus that his Honour found undischarged on the evidence. For the reasons just given, that proceeds on the basis of a misunderstanding of what was in fact held in BCR16. But, in any event, it is well established that it was for the respondent to establish every element of his case alleging jurisdictional error: Plaintiff M64/2015 at [24]. And such evidence as was adduced could not support any assertion made by the respondent that there was a real probability or likelihood that any protection claims made by the respondent would not be considered in the course of any protection visa application. Such evidence as there was rather suggested the opposite.
63 The Minister’s submissions are premised on a particular reading of the judgment of Bromberg and Mortimer JJ in BCR16, namely that their Honours identified the ‘first misunderstanding’ of the Assistant Minister in that case as an assumption that non-refoulement claims were likely to be considered if the appellant applied for a protection visa. However, for the reasons that follow, we do not consider that to be a correct reading of their Honours’ judgment. Rather, the substance of their Honours’ reasoning (in relation to what was described as the ‘first misunderstanding’) was that the Assistant Minister had erroneously assumed that non-refoulement claims would necessarily be considered if the appellant applied for a protection visa.
64 Before referring in some detail to the reasons of Bromberg and Mortimer JJ in BCR16, it is convenient to set out the relevant paragraph of the Assistant Minister’s reasons as considered in BCR16. This was paragraph [19] of the Assistant Minister’s reasons, which was quoted in BCR16 at [16]:
[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.
As can be seen, and as is common ground, the relevant paragraph of the Minister’s statement of reasons in the present case (namely, [30], set out at [23] above) is in very similar terms.
65 We now consider the reasons of Bromberg and Mortimer JJ in BCR16. At [33]-[34] of their Honours’ reasons, they outlined the appellant’s contentions. The appellant contended that the Assistant Minister did not consider the reasons that had been advanced in the appellant’s representations, and further contended that the Assistant Minister’s reasons were “wrong in law and in fact”. As set out in BCR16 at [34], the appellant submitted, among other things, that the Assistant Minister had proceeded on the basis that non-refoulement obligations “would necessarily be considered” if the appellant made an application for a protection visa. This was said to involve a misunderstanding of the Act and its operation.
66 At [35], their Honours referred to the appellant’s oral submissions. It was noted that the appellant submitted 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 had capacity to apply for a protection visa) with the Assistant Minister’s conclusion (that it was unnecessary to determine non-refoulement). Their Honours then stated: “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” (emphasis added). These submissions of the appellant provide context for their Honour’s reasons, as set out later in the judgment.
67 At [36], their Honours set out further aspects of the appellant’s legal contentions. The appellant submitted that there was, at the time of the Assistant Minister’s decision, nothing in the Migration Act or in the Migration Regulations that 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 Act. There was, the appellant 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. At [37], their Honours said that those submissions should be accepted. Their Honours explained why this was so in the paragraphs that followed ([37]-[47]). Their Honours explained, for example, at [44], that 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.
68 At [48], their Honours stated that they also accepted 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. This was explained at [48]-[52] of their Honours’ reasons. It was in this context that their Honours said, at [52]: “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.”
69 At [59], their Honours stated that [19] of the Assistant Minister’s reasons revealed jurisdictional error. In the following passage of the reasons, their Honours essentially rely on two reasons for this conclusion. The first was a misunderstanding by the Assistant Minister as to the operation of the Migration Act. The second was a misunderstanding by the Assistant Minister as to the scope of the representations that had been put forward by the appellant. Their Honours stated at [60]:
By the appellant’s representations, which we have set out at [6]-[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).
(Bold emphasis added.)
70 At [61]-[63], their Honours said that the jurisdictional error was not a failure to take into account a mandatory relevant consideration, but rather a denial of procedural fairness or a failure to carry out the task required under s 501CA(4). After setting out a passage from Goundar, their Honours said:
66 The appellant in this appeal relied on the part of the passage [from Goundar] 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.
67 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]-[52] above, together with what we set out below.
68 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.
…
70 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.
(Emphasis added.)
71 The Minister in the present appeal places great emphasis on the use of the word “likely” in [67] and [70] of the above passage. But the reasons need to be read as a whole, and the words that we have emphasised in [66] and [68] suggest that the ‘first misunderstanding’ of the Assistant Minister was considered to be, as submitted by the appellant in BCR16, an assumption that non-refoulement obligations would necessarily be considered in the event that the appellant made a protection visa application. This suggestion is reinforced by [90] and [96] of their Honours’ reasons. In distinguishing other cases, their Honours stated at [90]:
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.
(Emphasis added.)
72 Further, at [96], their Honours stated:
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.
73 When the reasons of Bromberg and Mortimer JJ in BCR16 are read as a whole, we consider that the substance of their Honours’ reasoning in relation to what was described as the ‘first misunderstanding’ was that the Assistant Minister had erred in assuming that non-refoulement obligations would necessarily be considered if the appellant made a protection visa application, rather than (as contended by the Minister in the present appeal) that the Assistant Minister had erred in assuming that non-refoulement obligations were likely to be considered in that event. It is true that the word “likely” was used at [67] and [70] of their Honours’ reasons. But we consider that this was merely used as a label or descriptor, and does not convey the substance of their Honours’ reasoning. Further, the reference in [52] (see also [75]) to a “probability” was expressed in a different context.
74 Once it is accepted that Bromberg and Mortimer JJ identified the first misunderstanding of the Assistant Minister in that case as an assumption that non-refoulement obligations would necessarily be considered in the event that the appellant made a protection visa application, it follows that the submissions of the Minister in the present case must be rejected. The premise of those submissions, and the basis upon which it is contended that the present circumstances are distinguishable from those in BCR16, is that Bromberg and Mortimer JJ held that the erroneous assumption was as to the likely course of decision-making. For the reasons given above, that premise and basis are rejected.
75 Further, we do not accept the Minister’s contention (raised by ground 3) that the primary judge erred in imposing a burden of proof or onus upon the Minister to prove as a matter of fact that the course of decision-making in any future protection visa application by the respondent would involve assessment of his non-refoulement claims. Once it is accepted that the majority in BCR16 considered the ‘first misunderstanding’ of the Assistant Minister to be an assumption that the appellant’s non-refoulement claims would necessarily be considered if he made a protection visa application, and that a similar assumption was made by the Minister in the present case, the primary judge correctly considered whether or not that assumption was correct.
76 We consider that the primary judge was correct to conclude that the ‘first misunderstanding’ identified by the majority in BCR16 was also present here. The relevant passage of the reasons for decision is virtually identical in both cases. The reasons of the majority in BCR16, insofar as their Honours relied on the ‘first misunderstanding’, are equally applicable in the present case. The Minister assumed that the respondent’s non-refoulement claims would necessarily be considered in the event that he made an application for a protection visa. That assumption was incorrect. The additional evidentiary material that was relied on by the Minister in the present case did not establish that the respondent’s non-refoulement claims would be considered in the event that he made a protection visa application, so as to support the assumption made that this would necessarily occur. Therefore that material did not provide a basis for distinguishing BCR16.
77 For these reasons, grounds 1(b) and 3 of the amended notice of appeal are rejected.
The ‘second misunderstanding’ identified in BCR16 – ground 2
78 Ground 2 of the amended notice of appeal relates to the ‘second misunderstanding’ of the Assistant Minister identified by the majority in BCR16 (which the primary judge found to have been made by the Minister in this case, at [69] and [70] of the Reasons).
79 The Minister’s submissions in relation to this ground may be summarised as follows:
(1) The second misunderstanding of the Minister identified by the majority in BCR16 was to treat the issues raised by the appellant as whether non-refoulement obligations were owed to the appellant, in circumstances where the appellant did not describe the harm he feared by reference to “non-refoulement”, and the harm he feared was not necessarily within that protected by Australia’s international non-refoulement obligations (BCR16 at [72]).
(2) The appellant in BCR16 did not refer to or otherwise seek to engage Australia’s non-refoulement obligations (at [11]). The critical importance of that is made plain at [72] of BCR16. That is, the harm as the appellant expressed it was put forward by him as the relevant “reason” the Assistant Minister should revoke the cancellation. The Minister failed to consider that harm on the basis of two misunderstandings: first, that the appellant was identifying non-refoulement obligations as a concept when he had not; and secondly, that the harm he feared was necessarily within that protected by Australia’s international non-refoulement obligations.
(3) In contrast to BCR16, the respondent here put his case before the Minister squarely on the basis that the reason for revoking the original decision was the fear of persecution that was the subject of his “refugee claims”. Indeed, he attached to his letter of 23 December 2015 a “statutory declaration of my refugee claims” that appears to have formed part of his original application for a protection visa. The Minister made no error in proceeding on the basis that what the respondent described as his “refugee claims” was the relevant “reason” he sought to advance for revoking the cancellation. The Minister was not required to address himself to an entirely different reason, not in fact put by the respondent.
(4) Neither BCR16 nor Goundar suggests otherwise. Goundar, which the majority in BCR16 applied, turned on the fact that the non-citizen’s claims to fear harm were of a “private quality” (and thus not likely to engage the Refugees Convention or s 36(2)(a)), in combination with the fact that he had not specified what kind of harm he feared (thus raising the risk that his claims would not qualify as “significant harm” as defined in s 36(2A) for the purposes of complementary protection under s 36(2)(aa)): see Goundar at [54]. Neither of those difficulties applied here and nor was there any other specific reason for concluding that the feared harm, as articulated by the respondent (that is, “prosecution” or being “killed” “because of the role I played in opposing Robert Mugabe”), might be harm outside the kind covered by Australia’s non-refoulement obligations (cf BCR16 at [72]). The primary judge erred in his application of those authorities.
80 We consider there to be some force in the Minister’s submissions. Unlike the representations that were the subject of consideration in BCR16, the representations made by the respondent in the present case were expressed in terms of claims as a “refugee” (see, eg, AB 89, 94). The respondent referred also to a fear of “prosecution” or being “killed” because of the role he played in opposing the government of Robert Mugabe, and stated that he attached his “refugee” claims (AB 92). However, we do not consider it necessary to reach a concluded view on this issue, in light of the conclusion that we have reached in relation to the ‘first misunderstanding’. If (as we consider to be the case) the ‘first misunderstanding’ identified in BCR16 is equally applicable here, the decision of the Minister was affected by jurisdictional error, whether or not the ‘second misunderstanding’ identified in BCR16 was also applicable.
The contention that the Minister did have regard to the matters raised by the respondent – ground 2A
81 The Minister’s submissions in relation to ground 2A of the amended notice of appeal can be summarised as follows:
(1) Further or in the alternative, to the extent the primary judge was correct in concluding that the Minister laboured under one or both of misunderstandings identified in BCR16, neither produces any material effect in the present case, because the Minister did have regard to the matters the respondent sought to advance as a reason for revocation.
(2) The Minister weighed those matters against the “seriousness of the [respondent’s] criminal offending” (at [32]). Those matters in turn were amongst the matters he took into account in reaching his ultimate decision (see the Minister’s statement of reasons at [54], referring to “any other considerations as described above”).
(3) This provides a further basis for distinguishing BCR16.
82 We do not accept these submissions. The passages from the Minister’s statement of reasons relied upon by the Minister do not disclose consideration of the respondent’s representations based on Australia’s non-refoulement obligations. It appears that the Minister’s submissions depend upon a particular reading of [32] of the Minister’s statement of reasons, namely as indicating that the Minister proceeded on the basis that Australia did owe non-refoulement obligations to or in respect of the respondent. However, we do not consider this to be a natural reading of [32] of the statement of reasons. Rather, the Minister seems to have proceeded upon the basis of the “potential existence” of such obligations, that is, the possibility that such obligations may be owed. We refer also to [33] and [34] of the Minister’s statement of reasons, which are consistent with this interpretation.
83 Accordingly, we reject ground 2A.
The contention that BCR16 should not be followed – grounds 1(a) and (c)
84 By grounds 1(a) and (c) of the amended notice of appeal, the Minister contends that, if the circumstances of the present case are not distinguishable from those in BCR16 (insofar as that decision relied on the ‘first misunderstanding’), the decision of the Full Court in BCR16 is plainly wrong and should not be followed. That submission was formally made to the primary judge. On the hearing of the appeal, counsel for the Minister did not make any substantive oral submissions in support of this contention, and relied on his written submissions.
85 It is well settled that a Full Court of this Court has the power to decline to follow a previous decision of a Full Court of this Court, but should do so only when the previous decision is plainly wrong: Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at [26]-[31]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [8], [146]-[149] and [187]-[192]; Ayoub at [39]; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; 244 FCR 178 at [13].
86 The Minister submits that the refusal of special leave in BCR16 does not stand in the path of his submission, given that a refusal of special leave is not an affirmation of the decision below, nor of any precedential importance, citing North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595 at 643. We accept this submission: see also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [112] per Kiefel and Keane JJ.
87 However we reject the contention of the Minister that the decision of the Full Court in BCR16 was plainly wrong. We consider that the approach taken by the majority in BCR16 was one that was open to be taken, for the reasons expressed by the majority (and summarised earlier in these reasons).
88 The Minister submits that the decision in BCR16 turns on the majority’s reading of [19] of the Assistant Minister’s reasons and that aspects of the majority’s reasoning involved finding an implication or assumption in that paragraph that non-refoulement obligations would “necessarily” be examined during the protection visa determination process. It is submitted that this involved a mischaracterisation of the Assistant Minister’s reasons. However, we consider that this characterisation of the Assistant Minister’s reasons was open.
89 The Minister also submits that: the majority in BCR16 erred in failing to follow the decision of the Full Court in Le; in that case, the Full Court of this Court had considered a similarly-worded paragraph and concluded that the existence or otherwise of non-refoulement obligations in relation to a visa holder was not a mandatory relevant consideration in exercising the discretion under s 501(2) of the Act; and accordingly, the approach of the Minister as set out in that paragraph did not disclose jurisdictional error. However, as referred to earlier in these reasons, the majority in BCR16 did not characterise the jurisdictional error as a failure to take into account a mandatory relevant consideration. The majority considered Le and provided reasons why it was considered to be distinguishable (at [76]-[96]). Again, we consider that it was open to the majority to reason in this way.
90 For these reasons, we reject grounds 1(a) and (c).
Conclusion in relation to grounds 1 to 3
91 It follows from the above that the Minister has not established error in the conclusion of the primary judge in relation to the non-refoulement ground. In particular, we agree with the primary judge’s view that the present case is not distinguishable from BCR16. Further, we do not consider the decision of the Full Court in BCR16 to be plainly wrong.
GROUND 4
92 We now turn to consider ground 4 of the amended notice of appeal. For ease of reference we set out the ground again, merging the chapeau and subparagraph (a) (as subparagraph (b) was not pressed):
The Court below erred in deciding that, properly construed, the [Migration Act] required the [Minister] to consider, and properly understand, the legal consequences for the Respondent if the original decision was not revoked in terms of the Respondent’s eligibility for the range of benefits and entitlements referred to at [Reasons,] [27]-[35] under various Commonwealth statutes.
The parties’ submissions
The Minister’s submissions
93 The Minister submits that the primary judge’s resolution of the status as a refugee ground in favour of the respondent may be seen to turn on two interrelated conclusions as to jurisdictional error:
(1) that the Minister, in deciding not to revoke the cancellation of the respondent’s RoS visa, had failed to take into account a mandatory relevant consideration, namely the respondent’s refugee status; and
(2) as a result of the first error, that the Minister had failed to understand, and therefore properly take into account, the legal consequences of deciding not to revoke the cancellation of the respondent’s RoS visa, namely the range of benefits and entitlements to which the respondent had lost access by reason of his loss of refugee status.
94 The Minister submits that the legal underpinning of the process of statutory construction and inference as to what was contended to be the erroneous finding of a mandatory relevant consideration concerning refugee status is derived from the principles stated in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40. The Minister notes that the second jurisdictional error found by his Honour relied upon more recent authority of several decisions of the Full Court of this Court that amounted to a practical application of Peko, including, particularly, NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [6], [17].
95 The Minister’s purpose in seeking to confine the inference of a mandatory relevant consideration to the statement of principle in Peko was to rely upon the notion that the process of implication had to be confined to the terms of the Migration Act as the source of the power being exercised or not exercised. At the hearing of the appeal, counsel for the Minister made it clear that he was not arguing that only the power or discretion-granting statute could be considered in isolation as a matter of abstract principle. Rather, counsel submitted that this was not a case in which the construction of the Migration Act could properly be influenced by the construction of the other, benefit-conferring, statutes relied upon by the respondent. Counsel cited Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 as an example, not applicable here, in which traversing another statute to ascertain meaning was found to be necessary and appropriate.
96 The Minister places reliance on what was said on the topic of inferring a mandatory relevant consideration in Peko, where Mason J relevantly said at 39-40:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard [citations omitted]. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
97 Thus, the Minister submits, the point made in Peko was that the implication of a mandatory relevant consideration depends critically upon the construction of the statute conferring the discretion or power. That is because a decision-maker is only bound to have regard to matters that expressly or by implication are required to be taken into account in relation to the exercise of the power or discretion in question. In the case of an implied, rather than express, mandatory relevant consideration, that is determined by reference to the subject matter, scope and purpose of that enactment, unless there is a proper basis within the text of, or for the purposes of, that statute for travelling further afield. The Minister submits that there was no such proper basis in this case, and that the benefits and entitlements bestowed by the other Commonwealth statutes referred to by the primary judge, and relied upon by the respondent, were both indirect and too far removed from the subject matter, scope and purpose of the Migration Act that informed the discretion to revoke the cancellation of the respondent’s RoS visa.
98 The Minister relies upon the way in which the issue of inferring a mandatory relevant consideration was developed and applied in NBMZ and, in particular, on:
(1) the references in NBMZ at [6] to the subject matter, scope and purpose of the Migration Act;
(2) the reference in NBMZ at [8] to the framework of the Migration Act; and
(3) the reference in NBMZ at [9] to taking into account the Migration Act and its operation in making a decision, and the conclusion that making a decision without taking into account what Parliament has prescribed by way of a legal consequence constituted a failure to take into account the legal framework of the decision.
99 In NBMZ, the legal consequences of the decision in question were to be found beyond the provision bestowing the power, but still within the Migration Act. The Minister relies upon a number of cases that have followed NBMZ in order to demonstrate that the consideration found to be mandatory was still to be found in, or for the purposes of, the Migration Act, and not beyond the ambit of that statute, including Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [103] and Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]. Thus, it is submitted, the authority relied upon by the primary judge did not, in terms, draw the necessary inference from outside the Migration Act, albeit that important references were made to the Refugees Convention. The Refugees Convention and non-refoulement obligations are not foreign to the purposes of the Migration Act.
100 The second limb of the Minister’s argument is to contrast the reasoning in NBMZ, and the cases cited above that have followed that decision, to the present circumstances in order to argue that the primary judge had relied upon too remote a set of indirect consequences to infer a mandatory relevant consideration. It is submitted that those indirect consequences attached to the fact of holding a permanent visa, rather than to any question of refugee status. The Minister submits that his Honour did not explain how, as a matter of construction, any obligation to have regard to the collateral consequences of discretionary non-revocation of a mandatory visa cancellation is able to be derived from the Migration Act, which deals with an entirely different subject matter and is directed to a distinctly different purpose.
101 The Minister points to the distinctly different purpose reflected in the object of the Migration Act as stated in s 4(1), being to “regulate, in the national interest, the coming into, and the presence in Australia, of non-citizens”, and the particular manifestation of that object in relation to s 501 visa cancellations in the protection of the Australian community, as described by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [16]. Reliance is also placed on the High Court’s explanation of how the Migration Act is a legislative response to Australia’s international obligations under the Refugees Convention in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [27], those essentially being protection obligations. The Minister submits that there is no available construction which could be utilised to infer an obligation to take into account the loss of access to benefits and entitlements that were collateral and incidental to the exercise of the discretion not to revoke the cancellation of the respondent’s RoS visa. That argument is maintained even though access to such benefits by refugees is part of the obligation assumed by signatory states to the Refugees Convention, as argued on behalf of the respondent, and discussed below.
102 A key question posed by this appeal ground is the extent to which the matters that must be taken into account when exercising the discretion under challenge can, in this case, go beyond the terms of the Migration Act to consequences that are not related to the express purposes of that Act. The substance of the point made by the Minister is that there was no warrant, in determining what must be taken into account when exercising the discretion in s 501CA(4), to consider what other statutes may provide for consequent upon the decision that is made for the purposes of the Migration Act. The Minister’s point is that this is a step too far removed from the legislative basis for the exercise of the discretion to support the inferred obligation found by the primary judge. The Minister effectively characterises that outcome as collateral and consequential upon the decision being made, rather than forming part of the basis for making that decision or having the necessary direct consequential character of the kind contemplated by the Full Court in NBMZ.
103 The Minister further submits that the primary judge’s conclusion was surprising and had far-reaching consequences. While floodgates reasoning is seldom attractive, in this case the Minister’s submission may be seen to have some bearing on the soundness of the inference-drawing process that is required to ground an implied mandatory relevant consideration. The Minister submits that his Honour’s conclusion could not be confined to situations in which there was a historical status as a refugee that ultimately resulted in obtaining a permanent visa which was not a protection visa and did not entail any actual finding or confirmation of refugee status. Rather, it is submitted that eligibility for the various entitlements arose because the respondent was an “Australian resident” for the purpose of being eligible to access the benefits and entitlements in the various statutes detailed by his Honour.
104 The Minister submits that it would follow from his Honour’s reasoning at [35] that consideration of the loss of access to such entitlements would “inevitably” be a mandatory relevant consideration for the cancellation of every permanent visa. That consideration would also, it is submitted, not be confined to existing entitlements, but, rather, would extend to entitlements only accessible in the future, such as the age pension. Moreover, there is a wide range of other benefits and entitlements for which access depends on being an Australian resident, including under State legislation, such as free schooling for children.
105 The Minister argues that, if decision-makers under the Migration Act are required to consider each of those actual and contingent benefits as a condition of the valid exercise of the powers conferred by ss 501 and 501CA(4), this would impose a stultifying constraint upon a scheme designed to meet the statutory objectives of regulating the entry and stay in Australia of non-citizens. The Minister submits that this is an unlikely interpretation and basis for inferring the existence of a mandatory relevant consideration. Thus, it is submitted by the Minister that there was no basis in the text or legislative design of the Migration Act to infer such a constraint. As described in more detail below, the respondent seeks to meet the Minister’s floodgates argument by confining the respondent’s case to the loss of his underlying refugee status by reason of the visa cancellation, rather than his loss of a permanent visa.
The respondent’s submissions
106 The respondent’s submissions on appeal do not take issue with the legal analysis of the relevant principles as to the basis for inferring a mandatory relevant consideration that was advanced on behalf of the Minister. However, it is submitted that the Minister goes too far in submitting that what is a mandatory relevant consideration is to be confined to the direct and immediate statutorily prescribed consequences of the decision. The respondent relies on the following propositions in support of that submission:
(1) Nothing in NBMZ stands for the proposition that legal consequences are to be confined to those arising directly under the Migration Act. In NBMZ, at [14], the legal consequences found by the Full Court were arrived at by a combination of the operation of ss 189, 196 and 198 of the Migration Act, the provisions of the Refugees Convention that lie at the heart of the protection visa scheme, and Australia’s non-refoulement obligations existing outside that Act.
(2) None of the decisions relied upon by the Minister that followed NBMZ suggested that the effect of that decision should be confined to the consequences flowing from the Migration Act alone. To the contrary, Perry J in Roach at [99] made express reference to non-refoulement obligations. Further, the Full Court in Taulahi at [84] said that the framework established by the Migration Act included the “direct and immediate statutorily prescribed consequences of the decision in contemplation”.
(3) The consequences which the primary judge held were required to be taken into account met the description in Taulahi, being a range of benefits and entitlements under Commonwealth legislation. While it was true that the benefits and entitlements were conferred by legislation other than the Migration Act, the respondent submits that what was important was that the respondent’s ability to access those benefits and entitlements depended upon his refugee status, and the loss of that access was a direct legal consequence of the loss of that status.
107 The respondent further submits that the Minister’s submissions ignored the primary judge’s emphasis on the fact that the respondent’s loss of access to the benefits and entitlements was by virtue of the loss of his refugee status, and was not by reason only of the loss of a permanent visa, which substantially limited the flow-on effect of his Honour’s decision. His Honour had, at [34], described the “essential point” as being the respondent’s historical status as a refugee, which had “underpinned his RoS visa” and made him eligible for the various benefits and entitlements. The entitlements arose because the respondent had held a TPV, which was granted on the basis that he was a refugee.
108 The respondent submits that the error of the Minister identified by the primary judge was not a failure to take into account the loss of benefits and entitlements per se, but, rather, a failure to take into account the respondent’s loss of status as a refugee within the meaning of the Refugees Convention, upon which obtaining access to those benefits and entitlements was based. Those benefits and entitlements were a legal manifestation of that status, but were not to be equated with that status. The submission for the respondent in the Court below, recited and apparently accepted by his Honour at [20], was that the grant of the RoS visa amounted to legal recognition of his refugee status, such that the Minister was obliged to take into account the impact of the continued loss of that status consequent upon the decision not to revoke the visa cancellation. The underlying proposition is that loss of refugee status is a mandatory relevant consideration under s 501CA of the Migration Act because a purpose of that Act is to respond to Australia’s obligations under the Refugees Convention. Alternatively, it is submitted that if that submission below was not accepted by the primary judge, it should have been, and that was a further reason to affirm his Honour’s conclusion, as reflected in the respondent’s notice of contention (addressed below).
109 Finally, the respondent submits that the Minister’s floodgates argument is overstated. There is no undue burden because the primary judge’s decision applies only to persons with refugee status and, in any event, it is for the Minister (or his delegate or another Minister administering the Migration Act) to assess the weight to be given to the loss of access to benefits and entitlements.
110 Counsel for the respondent accepted in the course of argument at the hearing of the appeal that the correctness of the primary judge’s finding of a nexus between the respondent’s refugee status and the obtaining of certain benefits or entitlements was indispensable to the conclusion reached on this ground of review by the primary judge. That, in turn, was connected by counsel to the content of Australia’s obligations under the Refugees Convention, being reflected particularly in domestic social security legislation such as the Social Security Act, which bestows a range of social security allowances and payments upon persons declared to be refugees.
111 The aspect of the Refugees Convention relied upon by the respondent was summarised by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161 at [19]:
Seventhly, as the title to the Convention suggests [footnote 40: Convention Relating to the Status of Refugees], the Convention details the status and civil rights to be afforded within Contracting States to those accorded the status of refugee. These matters are to be seen from the detail in Ch 2 (Arts 12-16, headed “Juridical Status”), Ch 3 (Arts 17-19, headed “Gainful Employment”), Ch 4 (Arts 20-24, headed “Welfare”) and Ch 5 (Arts 25-34, headed “Administrative Measures”). Chapter 5 deals with such matters as the issue of identity papers (Art 27) and travel documents (Art 28).
112 In oral submissions, counsel for the respondent repeated the argument put to the primary judge that, having regard to a purpose of the Migration Act as being directed in part to Australia’s fulfilment of its obligations to refugees under international law, it was a mandatory relevant consideration, when considering the question of revoking the cancellation of a visa, that the decision-maker take account of the fact that, by virtue of the decision, refugee status and its accompanying entitlements owed under international law would be taken away.
Consideration
113 The respondent’s concession at the hearing of the appeal, referred to at [110] above, may be seen to confine, at least in a practical way, his support of the primary judge’s reasoning as to the respondent’s receipt of social security payments and allowances being predicated upon the declaration that the respondent, as the holder of a RoS visa, was a refugee for the purposes of the Social Security Act. The connection between status as a refugee, as opposed to status merely as the holder of any form of permanent visa, was more tenuous for the remaining benefits and entitlements referred to by his Honour. It is, in any event, convenient to consider this ground of appeal on that confined basis, because the declaration of being a refugee for the purposes of the Social Security Act was the strongest support for the conclusion his Honour reached. If the argument did not hold good for the loss of access to those payments and allowances, it could not hold good for the balance of the benefits and entitlements also forgone.
Characterisation of the basis for granting the RoS visa
114 The primary judge’s characterisation of the grant of the RoS visa as being based on an earlier assessment that the respondent was a refugee is central to the resolution of this ground of appeal. One of the live questions is whether his Honour was correct to say that the earlier assessment of the respondent as a refugee for the purposes of a grant of a TPV in 2007 had anything legally, as opposed to merely historically, to do with the grant of the RoS visa two years later.
115 The issue of whether the refugee status basis for the prior grant of the TPV to the respondent was legally relevant necessitates careful consideration of the criteria for the grant of a RoS visa at the time it was granted to the respondent in June 2009. Those criteria were set out in reg 1127AA of the Migration Regulations. Regulation 1127AA provided:
1127AA Resolution of Status (Class CD)
Note [the note is not presently relevant]
(1) Form: 1364.
(2) Visa application charge: Nil.
(3) Other:
(a) Application must be made in Australia.
(b) Applicant must be in Australia but not in immigration clearance.
(c) The criteria in at least 1 of the items in the table are satisfied.
[the table is set out below]
(4) Subclasses:
851 (Resolution of Status)
(5) [the family unit definition is not presently relevant]
116 The table in respect of which reg 1127AA(3)(c) required that “at least 1 of the items in the table are satisfied” was as follows:
Item | Criterion 1 | Criterion 2 | Criterion 3 |
1 | Applicant holds: (a) a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa; or (b) a Subclass 451 (Secondary Movement Relocation (Temporary)) visa; or (c) a Subclass 695 (Return Pending) visa; or (d) a Subclass 785 (Temporary Protection) visa [TPV] | Nil | Nil |
2 | Applicant held, but no longer holds, a visa of a kind mentioned in criterion 1 of item 1, and the visa was not cancelled | Applicant: (a) has not left Australia; or (b) while holding a visa that permits re-entry to Australia, has left and re-entered Australia | Applicant does not hold a permanent visa |
3 | Applicant is a member of the same family unit as a person who: (a) has made a valid application for a Resolution of Status (Class CD) visa as a result of satisfying the criteria in item 1 or 2; or (b) is taken to have made a valid application for a Resolution of Status (Class CD) visa as a result of satisfying the criteria in item 1 or 2 of the table in subregulation 2.07AQ(3). | Applicant: (a) was in Australia on 9 August 2008 and was a member of the same family unit on that date; or (b) was born on or after 9 August 2008 | Nil |
117 The respondent fell within item 1(d) in the table reproduced above, so that nothing more than the fact of him holding a TPV was required on the face of the above RoS visa criteria in reg 1127AA, apart from the additional criteria for the only subclass applicable, Subclass 851. Those additional subclass criteria, set out in Schedule 2 to the Migration Regulations, required the decision-maker at the time of the decision, in considering whether to grant an applicant a RoS visa, only to be satisfied that the applicant met limited health and public interest criteria, rather than any refugee status criterion.
118 Each of the subclasses of visa listed in the table reproduced above, other than the TPV, did not have any Refugees Convention criteria, but did have the following persecution or discrimination criteria (using the criteria for a Subclass 447 Secondary Movement Offshore Entry (Temporary) visa as an example):
47.21 Criteria to be satisfied at time of application
447.211 The applicant:
(a) is either:
(i) subject to persecution in the applicant’s home country; or
(ii) subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country; or
(iii) a female person who is subject to persecution or is registered as being of concern to the United Nations High Commissioner for Refugees; and
(b) is an offshore entry person.
119 It may readily be seen that the above criteria did not entail any finding that the visa applicant was a refugee under the Refugees Convention as such.
120 The criteria for the Subclass 447 visa at the time of the decision included a continuation of the above criteria at the time of application, along with certain other criteria, such as there being compelling reasons for giving special consideration to granting the applicant a temporary visa, having regard to a list of factors. The same was true for the Subclass 451 visa.
121 The Subclass 695 visa was directed to holders of the other three classes of visa listed in the table reproduced above, including a TPV, who were no longer in Australia and met certain public interest and other criteria, and therefore had already met either refugee criteria or the above persecution or discrimination criteria. Thus the grant of a Subclass 695 visa would have involved only a historical finding of refugee status having been made if it was based on the prior grant of a TPV, but not if it was based on the prior grant of either a Subclass 447 visa or a Subclass 451 visa.
122 It may thus be seen that both a TPV and a Subclass 695 visa that were based on the prior grant of the TPV for someone who was overseas originally required a finding of refugee status. However, a Subclass 447 visa, a Subclass 451 visa and a Subclass 695 visa based on either a Subclass 447 or a Subclass 451 visa did not require any prior finding of refugee status. The necessary finding was humanitarian in nature, rather than being dependent on any Refugees Convention ground being established.
123 While the respondent had held a TPV, which had required a finding of refugee status for it to be granted, the other three classes of visa giving rise to an entitlement to be granted a RoS visa did not require any prior finding of refugee status to be made. Thus, the other visas that had been held or previously held and expired, rather than cancelled, that might entitle an applicant to the grant of a RoS visa were not confined to those for which any finding of refugee status had been made.
124 It follows that, if correct, the primary judge’s characterisation of the grant of a RoS visa as being on the basis of an earlier assessment that the respondent was a refugee (which had provided the basis for the TPV), without requiring a further assessment of refugee status, has to apply only to those RoS visa applicants who held or previously held a TPV, but not to RoS visa applicants who held or previously held one of the other relevant visas that did not involve any refugee status determination.
125 The primary judge also observed that the regulations which introduced RoS visas also made those visa holders ineligible for a permanent protection visa, with the explanatory statement noting that there was no benefit in continuing that eligibility because the benefits and entitlements were equivalent.
126 As an aside from the primary judge’s reasoning, it may be observed that once the respondent no longer held a RoS visa, he was no longer precluded from being eligible, for that reason, from obtaining a permanent protection visa if otherwise entitled. The same reasoning would necessarily apply to any other holder of a RoS visa, including one based on one of the other visa subclasses which did not rely upon the prior grant of a TPV and therefore did not involve any determination of refugee status. The possible need for a protection visa necessarily only arises when a RoS visa has been cancelled.
127 The primary judge therefore concluded that a RoS visa was a permanent protection visa in all aspects other than its name, and the holder of a RoS visa was thereby entitled to the same benefits and entitlements as the holder of a permanent protection visa. This conclusion, if correct, also has to be confined to those RoS visa applicants who held, or previously held a TPV, but not to RoS visa applicants who held, or previously held, one of the other relevant visas that did not involve any refugee status determination.
128 The TPV was granted because the respondent obtained the necessary determination of refugee status at that time and for that purpose. There was no ongoing visa criterion that this status be maintained while the TPV was current. During the currency of a TPV, eligibility for refugee status might not have continued because, for example, the persecution problems in the country of origin had dissipated. The TPV scheme thus contemplated revisiting refugee status as the date of expiry of the TPV approached.
129 The criteria for the grant of the RoS visa that was cancelled did not include any visa criterion that the respondent was, at the time the visa was granted, still a refugee. Rather, the purpose of RoS visas was to resolve the temporary visa status of TPV holders and, importantly, the holders of the three other subclasses of visa which gave a right to a RoS visa being granted without requiring any further refugee status determination. That temporary status had left those visa holders uncertain as to their future right to remain in Australia. It was no part of that scheme to resolve the refugee status of former TPV visa holders, either by confirming, or by not confirming, the refugee status that had been found to exist at the time of, and for the purpose of, the grant of the TPV. The temporary right to remain in Australia was to be resolved by replacing temporary visas (including, but not limited to, TPVs) with a new class of permanent visa based upon the bare fact of holding the relevant class of temporary visa, subject only to certain formal, health and public interest criteria being met. This, quite deliberately, avoided the need for any further refugee status assessment or determination process, be it by way of confirmation or non-confirmation of that status.
130 As a practical matter, the holder of a TPV may or may not have been able to have their previously ascertained refugee status confirmed and thus continued. However, that was not a question that needed either to be asked or answered in relation to the grant of a RoS visa. The most that could be said about the respondent’s refugee status was that he had been found to have that status at the time that he was granted the TPV. The use of the description “refugee” was, at most and only for former TPV holders, recognition of that historical fact for the purposes of access to a certain range of social security allowances and payments, which overtly were also made accessible to former refugees (i.e. to persons who were no longer refugees under the Refugees Convention) and to persons who had never been found to be refugees under the Refugees Convention. The grant of a RoS visa therefore did not amount to any recognition of refugee status or continuation of that status beyond that purpose. That conclusion is reinforced by the fact that RoS visa holders who had not previously been the holder of a TPV, and therefore had not, in fact, been determined to be refugees, were also deemed to be “refugees” under the Social Security Act.
131 If the grant of a RoS visa based on being a holder, or former holder, of a TPV did not entail either bestowing or recognising prior bestowal of refugee status, then cancellation of that visa could not constitute removal or deprivation of refugee status. Non-revocation of that cancellation could thus not constitute continued deprivation or loss of refugee status. Non-revocation of the cancellation of the respondent’s RoS visa could not, and therefore did not, deprive the respondent of the prior determination of his refugee status for the purpose of the antecedent grant of the TPV.
132 The grant of the RoS visa did not bestow, or continue the bestowing of, refugee status upon the respondent. Nor did it require, or even permit, any continued recognition of a prior finding of having attained refugee status, and, accordingly, did not constitute the same. No part of the RoS visa criteria, and therefore no part of the grant or refusal of that visa, required the decision-maker to make, or refuse to make, any determination of the respondent’s refugee status, even for the purpose of that status continuing. In those circumstances, there cannot have been any requirement, as part of the revocation decision-making process apart from considering representations made under s 501CA(4), to consider the respondent’s refugee status.
The question of inferring a mandatory relevant consideration
133 In case the conclusion we have reached above as to the irrelevance of the respondent’s refugee status to the grant, cancellation or non-revocation of his RoS visa is incorrect, it is necessary to consider whether, even if it was required to be taken into account, the respondent’s refugee status meant that the loss of access to the various benefits and entitlements identified by the primary judge, and, in particular, the loss of access to Social Security Act payments and allowances, was, in any event, properly inferred to be a mandatory relevant consideration.
134 As noted above, the criteria for the grant of the RoS visa that was cancelled did not include any criterion that the respondent was, at the time the visa was granted, still a refugee. The closest that the respondent came to access to any of the benefits and entitlements by reason of refugee status was the declaration that a RoS visa was within the class of permanent visas that enlivened the definition of “refugee” for the purposes of s 7 of the Social Security Act. However, that definition was enlivened not just in relation to persons who had, as a matter of history, been found in the past to be refugees, but also in relation to persons who had not had any such finding made about them, or who were no longer refugees. Thus, the legislative label of “refugee” was no more than a convenient means of grouping a range of persons who had received the benefit of a range of visas, some of which were not, in name or in criteria for being granted, reliant on those persons being found to be, at that time, refugees under the Refugees Convention. In particular, to obtain access to the payments and allowances under the Social Security Act, the respondent did not need to have any current refugee status, any more than did RoS visa holders who were granted that visa on a basis other than being the holder or former holder of a TPV. The direct nexus to refugee status in obtaining access to the various benefits and allowances found by the primary judge, and conceded by the respondent to be indispensable, was therefore absent. Accordingly, in our opinion, his Honour erred in finding to the contrary.
135 Even if obtaining access to the various benefits and allowances was in some way connected to refugee status, the nexus between the declaration under s 7 of the Social Security Act that the RoS visa was a class of permanent visa so as to classify the respondent as a “refugee”, and the decision not to revoke the cancellation of that visa, was, in any event, in our opinion too remote to support a reasonable inference that this was a mandatory relevant consideration in making the revocation decision. There is nothing in the subject matter, scope or purpose of the Migration Act, in providing a regime for the grant, cancellation (relevantly, on character grounds) and revocation of such cancellation, that requires indirect consequences, such as the loss of benefits and entitlements bestowed by other Commonwealth statutes, to be taken into account other than in the context of considering representations made under s 501CA(4) of the Migration Act. Even if the loss of those benefits and entitlements was, contrary to the conclusion we have reached above, due to the loss of refugee status as a critical feature on top of the loss of the RoS visa, that nexus is still too indirect to support an inference that this must be taken into account. With great respect to the primary judge, his Honour’s reasons do not explain the basis for drawing such an inference. It was explained by his Honour only by reference to the respondent’s historical determination of refugee status in 2007, which was neither revisited, nor required to be revisited.
136 Even if, contrary to the conclusions we have reached above:
(1) the grant of the RoS visa meant the grant or confirmation of refugee status;
(2) the loss of the RoS visa also meant the loss of refugee status;
(3) such a loss of refugee status, rather than the loss of the RoS visa, was the operative reason for the loss of benefits and entitlements to which the respondent otherwise had access; and
(4) the loss of such benefits and entitlements is correctly characterised as a direct, rather than indirect, consequence of the cancellation of the respondent’s RoS visa, and thus of the non-revocation of its cancellation,
it is not apparent why those circumstances, without more, support an inference that such a consequence is a mandatory relevant consideration under ss 501 and 501CA of the Migration Act. The primary judge’s characterisation of this, at [33], as being the inevitable legal consequence of the visa cancellation, and thus of the non-revocation of that cancellation, does not assist in the necessary process of inference drawing. It is not enough that a consequence be a legal consequence, or even a direct legal consequence, of a decision that produces or continues a particular state of affairs. It must be a consequence which is a consideration required to be taken into account as a matter of inference from the subject matter, scope or purpose of the Migration Act. Were it otherwise, a revocation decision-maker (and, by parity of reasoning, all other decision-makers) would be required, as a matter of jurisdiction, to take into account legal consequences that are outside the ambit of the statute pursuant to which the power or discretion is being exercised.
137 The loss of the identified benefits and entitlements, and possibly others that have not been identified, does not meet the analytical threshold of subject matter, scope or purpose required by Peko, as developed for this particular type of setting in NBMZ, before such an obligation can be inferred. It was not for the Minister to show why the inference should not be drawn, but, rather, for the respondent to show why it should be drawn. That attempt rose no higher than assertions as to the determination of refugee status being confirmed or continued, which did not provide any cogent reason why, as a matter of subject matter, scope or purpose, the collateral issue of such benefits and entitlements had to be taken into account in making the revocation decision.
138 In reaching the conclusion that the inference should be drawn, the primary judge cited Peko at 39-40 (reproduced above) and NBMZ at [17] and at [177]. As to Peko, that case points to the process required to be undertaken, but not how it applies to the present circumstances. As to NBMZ, at [17], Allsop CJ and Katzmann J tied the consequence identified to ss 189, 196 and 198 of the Migration Act, as well as to Australia’s non-refoulement obligations as an incident of the operation of the Migration Act. Their Honours further referred to prior reasoning about the subject matter, scope and purpose of that Act and to Buchanan J’s reasoning in the same case. Justice Buchanan’s reasoning at [177] was part of the conclusion that followed a detailed consideration as to why the prospect of indefinite detention, derived from the terms of the Migration Act itself, was not a consequence that could be overlooked. Those references to NBMZ serve to reinforce the need for the inferential reasoning process, focussing on the subject matter, scope and purpose of the Migration Act, to take place.
139 The conclusion that there is insufficient basis to infer the obligation is supported by there being an express means by which collateral considerations may be raised and taken into account, via representations that must be invited from the former visa holder: s 501CA(3)(b). Such representations must be made by the former visa holder who seeks revocation within a stipulated time before the power to revoke is enlivened: s 501CA(4). The respondent did make such representations, but did not raise the issue of the loss of benefits and entitlements as a reason why the RoS visa cancellation should be revoked. In our opinion, the Minister was not under any obligation to consider this other reason for revocation that had not been raised by the respondent. However, this is not to say that each representation made gives rise to a mandatory relevant consideration.
140 Ground 4 on appeal must therefore be upheld.
Notice of Contention
141 The notice of contention has been set out at [58] above. In light of the conclusions reached in relation to ground 4, the primary judge either did make the finding that the respondent asserts should have been made, and erred in doing so, or should not have made any such finding. It is not necessary to determine which is the correct characterisation as, either way, the notice of contention must be dismissed.
CONCLUSION
142 For the reasons set out above, we have dismissed grounds 1, 2A and 3 of the amended notice of appeal (relating to the non-refoulement ground) and consider it unnecessary to decide ground 2. It follows that the Minister has not established error in the conclusion of the primary judge in relation to the non-refoulement ground. In relation to the status as a refugee ground, we have upheld ground 4 and dismissed the notice of contention. As noted above, the Minister accepted at the appeal hearing that, for the appeal to succeed, he would need to succeed in overturning the primary judge’s conclusions in relation to both the non-refoulement ground and the status as a refugee ground. As the Minister has not succeeded in overturning the primary judge’s conclusion in relation to the non-refoulement ground, the appeal is to be dismissed.
143 In the circumstances, the appropriate costs order would appear to be that the Minister pay the respondent’s costs of the appeal (other than the costs of the notice of contention). However, we will give the parties a short period of time in which to give notice if the party seeks a variation of the costs order. In that event, we will make directions to facilitate the determination of that issue ‘on the papers’.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Robertson, Moshinsky and Bromwich . |
