FEDERAL COURT OF AUSTRALIA

Sowa v Minister for Home Affairs [2019] FCAFC 111

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1    This is an appeal from orders made by a judge of this Court, dismissing an amended application for judicial review of a decision made by the Parliamentary Secretary to the first respondent, the Minister for Home Affairs, using the unofficial title “Assistant Minister for Home Affairs”: s 4 of the Ministers of State Act 1952 (Cth) and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [38]-[42]. The Assistant Minister had decided not to revoke the mandatory cancellation of the visa held by the appellant, Mr Sahr Peter Sowa (non-revocation decision).

2    Mr Sowa is a citizen of Sierra Leone who arrived in Australia on 9 September 2009 at the age of 16. His mother and younger siblings are Australian citizens. The statement of reasons, which accompanied the Assistant Minister’s decision, records at [21] that Mr Sowa and his family arrived in Australia on a Class XB Subclass 202 Global Special Humanitarian visa. It is this visa which was the subject of the mandatory cancellation and the non-revocation decision.

3    The visa cancellation decision was made by a delegate of the Minister on 27 June 2017, under s 501(3A) of the Migration Act 1958 (Cth), which provided for the mandatory cancellation of a visa held by a person serving a sentence of full-time imprisonment who did not pass the character test. Mr Sowa was serving a sentence of full-time imprisonment in a New South Wales gaol for offences involving aggravated breaking and entering into a care facility for disabled persons and assault occasioning actual bodily harm. He had been in an intimate relationship with the victim, and had broken into her place of work and attacked her there. A further offence of assault with an act of indecency was taken into account on sentence. Those sentences, being in excess of 12 months, caused him to fail the character test in s 501(6)(a) when read with s 501(7)(c). His head sentence, confirmed on appeal, was 10 years with a non-parole period of 5 years expiring on 21 February 2018. He has been in immigration detention since his release from prison on 21 February 2018.

4    The Minister gave written notice of the visa cancellation decision in accordance with s 501CA(3)(a). That notice invited Mr Sowa to make representations about revocation of that decision, in accordance with s 501CA(3)(b). He responded to that invitation by requesting that the visa cancellation decision be revoked and making representations in support of that request. The Minister, which for this purpose includes the Assistant Minister, was empowered under s 501CA(4) to revoke the visa cancellation decision in response to such representations if satisfied that either the appellant passed the character test, or there was another reason why that decision should be revoked.

5    Mr Sowa expressly acknowledged that he failed the character test, but advanced to the Minister other reasons why the visa cancellation decision should nonetheless be revoked. As relevant to the grounds of review before the primary judge, and the appeal grounds, those reasons included a claim that he would face harm if returned to Sierra Leone due to the unstable and violent political environment there. He said that his father had been brutally killed at the hand of political rivals and that other of his family members were involved in human rights and political activities. He said this caused him to fear that his family had many enemies in Sierra Leone who would seek to harm him if he were to return there. A statutory declaration from his mother supported his claims that he would be in danger if he returned to Sierra Leone.

6    The Assistant Minister, acknowledging that representations had been made in accordance with the invitation, was not satisfied either that the appellant passed the character test, or that there was another reason why the visa cancellation decision should be revoked, such that the power to revoke was not enlivened. The reasons addressed the fears claimed by Mr Sowa, as summarised above. The reasons then considered Australia’s non-refoulement obligations as follows:

26.    I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, the Minister has given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

27.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

28.    In those circumstances, I consider it unnecessary to determine whether non­ refoulement obligations are owed in respect of Mr SOWA for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

29.    I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers Mr SOWA’s Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of Mr SOWA. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

26.    I have also considered Mr SOWA’s claims of harm upon return to Sierra Leone outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr SOWA’s claims are such as to engage non-refoulement obligations, Mr SOWA would face hardship arising from unstable country conditions, including generalised violence and poverty, as well as his fears of revenge killings, were he to return to Sierra Leone.

Before the primary judge

7    The sole ground of review before the primary judge was an assertion that Mr Sowa had been denied procedural fairness, or that there had been a constructive failure to exercise jurisdiction, on the issue of non-refoulement and the operation of the Migration Act. The thrust of the case advanced before the primary judge was that the Assistant Minister had:

(1)    wrongly assumed that Mr Sowa was able to make a valid application for a protection visa;

(2)    alternatively failed to consider that any such application could be refused on character grounds such that his protection claims were never to be actively considered;

(3)    failed to consider s 196 of the Migration Act and that Mr Sowa might be indefinitely detained under s 189 of that Act; and

(4)    failed to consider the operation of s 198 of the Migration Act, which required the applicant to be removed as soon as practicable, in circumstances in which s 197C provided that it was irrelevant whether Australia has non-refoulement obligations.

8    Mr Sowa submitted that Ali v Minister for Immigration and Border Protection [2018] FCA 650 and a number of cases that had followed that decision, dismissing arguments to the effect of those listed above, had been incorrectly decided.

9    The key aspect of the primary judge’s reasoning, challenged on appeal, was as follows:

[27]    In my respectful view, Flick J’s reasoning in Ali should be adopted and applied here (as it also was in Greene per Logan J, Turay per Farrell J, DOB18 per Griffiths J and BKS18 per Barker J). I do not consider that that reasoning is inapplicable because, unlike the position in Ali, the Minister’s statement of reasons includes findings and observations by the Minister that it was “highly likely” that any future protection visa application would be considered by a delegate, who would be bound by Direction No 75 (see [26] to [28] of the statement of reasons). Moreover, the Minister here specifically addressed the possibility that any future protection visa application made by Mr Sowa might be considered and determined by the Minister personally rather than by a delegate (see [29] of the statement of reasons). The Minister correctly acknowledged that, in that event, he would not be bound by Direction No 75 and “would not necessarily determine whether non-refoulement obligations are owed” in respect of Mr Sowa. The Minister concluded that such a situation would “only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75”. In this way, the Minister did turn his mind to possible future scenarios but took the view that they could be taken no further at this stage because they were hypothetical.

[28]    I reject the applicant’s contention that there is “an insufficient logical or evidentiary basis” for the Minister to find at [27] of his statement of reasons that it is “highly likely” that a future protection visa application will be considered by a delegate who would be bound by Direction No 75. It was plainly open to the Minister to reason as he did in [27]. It may reasonably be inferred that the Minister is familiar with the processes of decision-making within his own Department.

[29]    As to the applicant’s claim that there is “real possibility” that a future protection visa application by him will be decided on character grounds given the Minister’s existing personal adverse findings about the applicant and this matter was not taken into account by the Minister, this submission is rejected. On the assumption that any such future application fell to be determined by a delegate, the delegate will be bound by Direction No 75. If the application fell to be determined by the Minister, the Minister expressly stated that he had taken into account the “unlikely” possibility that he might depart from the policy approach set out in Direction No 75. It is clear from [29] that the Minister took this remote possibility into account in making his decision under s 501CA(4). That is the decision which is the subject of the applicant’s judicial review challenge in this proceeding.

[30]    No jurisdictional error is disclosed in reasoning as the Minister did, bearing in mind that the matter being determined was whether or not to revoke the original decision, as opposed to a consideration and determination of any protection visa application which may or may not arise in the future. As Flick J pointed out, it will be at that time that attention may need to be given to any non-refoulement obligation, as well as the operation and effect of provisions such as ss 196, 197C and 198 of the Act.

[31]    The sequence of decision-making under the Act is critical (see DOB18 at [32]-[35] per Griffiths J and the cases cited therein, as well as BKS18 at [101] per Barker J).

[32]     I reject the applicant’s submission that DOB18 is distinguishable on the basis that it involved a different statutory provision. The reasoning in Ali is equally applicable to such a case.

10    Since then, an appeal from DOB18 v Minister for Home Affairs [2018] FCA 1523 has been dismissed: DOB18 v Minister for Home Affairs [2019] FCAFC 63.

Grounds of appeal

11    Mr Sowa relies upon an amended notice of appeal (leave having been granted over the Minister’s objection at the appeal hearing). In its original and amended form the notice of appeal repeats the prolix text of the grounds of review before the primary judge, adding in as the amendment further particulars reflecting aspects of another recent judgment, Omar v Minister for Home Affairs [2019] FCA 279. Both documents assert that his Honour erred in not finding in Mr Sowa’s favour. Four errors of law on the part of his Honour are asserted in both documents. As they appear in the amended notice of appeal the asserted errors of law are:

k)    First, the Justice below failed to understand that the “assumption” by the respondent that it is “likely’ that Australia's non-refoulement obligations will be heard as part of a future protection visa application, was wrong in fact and in law, given the respondent's existing, personal findings about the appellant and cancellation of humanitarian visa on 31 March 2016 pursuant to section 501(3A) of the Migration Act 1958 (Cth). The Justice below therefore erred by failing to apply an “assumption” in favour of the appellant, that it is “unlikely” that Australia's non-refoulement obligations will be considered as part of a future protection visa application by the appellant ahead of character grounds.

l)    Second, the Justice below failed to properly understand that a future application for a protection visa by the appellant may be refused under section 65 of the Migration Act 1958 (Cth) purely on character grounds pursuant to public interest criteria 4001(a) or (b), and the Minister or the delegate to the Minister may never lawfully reach active consideration of the criteria in s 36(2)(a) and (aa), nor may the section 501(1) discretion be engaged.

m)    Third, the Justice below erred by finding that the respondent did not err by failing to expressly consider the operation of section 196 of the Migration Act 1958 (Cth) and that the appellant may be indefinitely detained under section 189 of the Migration Act (Cth) which requires a person to be kept in immigration detention until (a) removed; or (c) granted a visa.

n)    Fourth, the Justice below erred by finding that the respondent did not err by failing to expressly consider the operation of section 198 of the Migration Act 1958 (Cth) and that the appellant must be removed as soon as practicable, given section 197C of the Migration Act 1958 (Cth) provides that, for the purposes of s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

12    It is convenient to note the characterisation given to the written and oral submissions for Mr Sowa in the Minister’s written submissions. Drawing from Mr Sowa’s original notice of appeal and written submissions, the Minister distilled two essential propositions proposed on behalf of the appellant:

(1)    The non-revocation decision was vitiated by jurisdictional error drawn from [21]-[26] of the reasons, because the “assumption” that it is “likely” that Australia’s non-refoulement obligations will be considered in the event that Mr Sowa applies for a protection visa was wrong in law and in fact. That is because, given the findings made about Mr Sowa, it is “likely” that a future protection visa application will be decided on character grounds and in the circumstances it is “likely” that Australia’s non-refoulement obligations will not be considered.

(2)    The reasons wrongly assume at [28] that the applicant “is able to make a valid application for a protection visa” and failed to consider that a future application for a protection visa by Mr Sowa may be refused under s 65 of the Migration Act 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 be engaged.

13    To these propositions must be added additional arguments put for Mr Sowa, which rely upon Omar, a decision that is the subject of an appeal by the Minister and which the Minister contends is clearly distinguishable from the present case and, if not distinguishable, wrongly decided. It would be fair to say that in further written submissions provided at the start of the hearing entitled, “The Appellant’s Outline of Oral Submissions”, and in the oral submissions themselves, the primary focus of Mr Sowa’s counsel was the proposition that the present case was on all fours with Omar, the Assistant Minister having committed the same error which caused the setting aside of the decision in Omar for jurisdictional error. Mr Sowa’s counsel also referred on a number of occasions to the existence of a bar preventing Mr Sowa from making an application for a protection visa other than with the permission of the Minister. In making these references Mr Sowa’s counsel posed the question why the Minister would permit the appellant to make a protection visa application in circumstances where the Assistant Minister had personally found that the appellant failed the character test.

14    The grounds of appeal asserting error on the part of the primary judge must fail for the following reasons.

15    To the extent that the appellant’s case involved there being a bar to the appellant making a protection visa application, because his cancelled visa was a protection visa and ss 48 and/or 48A of the Migration Act operated to prevent the appellant from making a further application for a protection visa, the answer is that a Class XB Subclass 202 Global Special Humanitarian visa is not and was not at the time of grant of the appellant’s visa a protection visa.

16    At the time of the grant of Mr Sowa’s visa the Migration Act and Migration Regulations 1994 (Cth) provided for different classes of visas. Section 36(1) provided that there was a class of visas known as protection visas. Protection, Refugee and Humanitarian visas were located in Pt 4 of Schedule 1 to the Regulations. Regulation 1401 provided for Protection (Class XA) visas. The criteria for such a visa application included that the application must be made in Australia and the applicant must be in Australia. Regulation 1402 provided for Refugee and Humanitarian (Class XB) visas. The criteria for such a visa application included that any application not in a class specified in a Gazette Notice must be made by an applicant outside Australia. It is apparent from the evidence referred to above that Mr Sowa arrived in Australia on the basis of an application made outside of Australia. Accordingly, his Class XB Subclass 202 Global Special Humanitarian visa was not a protection visa under the legislation at the time of the grant. This conclusion is consistent with the reasoning in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [67]. That is to say, the mere fact that the Migration Regulations grouped (and continues to group) sub-classes of visas together does not transform a Class XB Subclass 202 Global Special Humanitarian into a protection visa.

17    While the legislation has been amended since the grant of Mr Sowa’s visa, it is still the case that his cancelled Class XB Subclass 202 Global Special Humanitarian visa was not a protection visa. Section 35A of the Migration Act provides that a protection visa is a visa of a class provided for by the section. Section 36(5) refers to the class of visas formerly provided for by s 36(1) of the Migration Act. The appellant’s Class XB Subclass 202 Global Special Humanitarian visa was not such a visa (see above). Section 36(5) otherwise provides for nominated classes of visas, none of which are a Class XB Subclass 202 Global Special Humanitarian visa, as well as classes of visas prescribed by the Migration Regulations. For the same reasons as set out above, a Class XB Subclass 202 Global Special Humanitarian visa is also not prescribed by the Migration Regulations.

18    It follows that s 46A of the Migration Act does not apply to Mr Sowa as he is not an “unauthorised maritime arrival”. As noted, Mr Sowa arrived in Australia with his family on the Class XB Subclass 202 Global Special Humanitarian visa. Section 48 of the Migration Act, read with cl 2.12(c) of the Migration Regulations, operates so that a person in the appellant’s position may nevertheless apply for a protection visa (as the appellant has not been refused a visa or had his visa cancelled under any of the provisions specified in s 48(1)(b)(ii)). Section 48A is also inapplicable because Mr Sowa has not held a protection visa which has been cancelled and nor has he applied for a protection visa which has been refused. Section 501E does not operate as a bar to the making of an application for a protection visa as provided for in s 501E(2)(a).

19    The appellant was given the opportunity to respond to the Minister’s note about the issue of the alleged bar to the making of an application for a protection visa. The submissions filed by the appellant extended far beyond the grant of leave. To the extent those submissions dealt with the alleged bar to Mr Sowa making a protection visa application, they must be rejected for the reasons given above.

20    Further, it is not the case that a visa application made by a person who is ultimately determined to fail the character test is, for that reason, an invalid application. While a criterion for the grant of a protection visa in s 36(1)(C) is that the applicant (having been convicted by a final judgment of a particularly serious crime) not be a person whom the Minister considers on reasonable grounds is a danger to the Australian community, that criterion does not condition the validity of the application for a protection visa. The requirements for a valid application for a protection visa are those specified in other provisions of the legislation including reg 1401.

21    Accordingly, to the extent that the appellant’s written and oral submissions depended on the existence of a bar to Mr Sowa making a protection visa application which the Minister alone could lift, the submissions were misconceived. There is no such bar.

22    Otherwise, despite their repetitive nature, the crux of the submissions for Mr Sowa was that the primary judge erred, in effect, by not adopting the same reasoning as in Omar.

23    Omar concerned the same statutory power as in the present case, s 501CA(4), which enables the Minister to decide to revoke an earlier decision of a delegate to revoke a visa under s 501(3A). After being notified of the revocation decision and invited to make representations about the revocation of that decision in accordance with s 501CA(3), the applicant in Omar made representations which Mortimer J described as follows at [17]:

The applicant contended, and the Minister did not dispute, that in his representations to the Minister, the applicant directly addressed the fears he held if he were to be returned to Somalia, and noted that any protection claims he may make in any future protection visa application might not be properly assessed because he would not pass the character test. The applicant also contended, as Direction 65 noted, that even if he were assessed as not engaging Australia’s protection obligations, the likely consequence for him would be “indefinite detention”, rather than return to Somalia.

24    These representations were made in the context of the letter from the Department to the applicant referring to parts of Direction 65 in these terms, which Mortimer J recorded at [16]:

(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because 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.

…

(6) Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

25    Section 189 requires an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen to detain that person. Section 196 requires an unlawful person detained under s 189 to be kept in immigration detention until he or she is removed from Australia or is deported or is granted a visa.

26    In Omar, the decision-maker (also styled the Assistant Minister) said this, as recorded by Mortimer J at [18]:

I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s 499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s 501.

Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr OMAR for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.

27    At [19] to [24], Mortimer J referred to Direction 75 issued by the Minister under s 499 of the Migration Act, the key operative provisions of which are that in dealing with an application for a protection visa by an applicant who raises character or security concerns, decision-makers are to follow the order set out below:

1)    The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.

2)    Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa specific ineligibility criteria at section 36(1C).

3)    Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision-maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

a)    Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia's non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

4)    If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.

5)    The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

28    At [24], Mortimer J noted:

It was common ground that Direction 75’s specification of a particular sequence in which a delegate must consider the various aspects of the protection visa application is designed to address a conclusion reached by a majority of a Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456.

29    The applicant’s first contention in Omar was that “the application of Direction 75 to any decision-making process under s 65 when a protection visa application is made ‘is not a substitute for consideration of non-refoulement under section 501CA’”: at [27]. The applicant’s second contention was that the Assistant Minister was “wrong to assume, as the applicant submits he did, that the question whether Australia had non-refoulement obligations to the applicant would be considered in the course of processing any protection visa application lodged by the applicant” as “the scope of Australia’s non-refoulement obligations under the Refugees Convention…is different in scope and content from what is now in the “protection criterion” in s 36(2)(a) of the Migration Act, and that any delegate assessing a protection visa application would only be looking at the latter and not the former”: at [28]. The Assistant Minister, it was argued, “errs in supposing that the criteria that the legislature has elected to establish for admission by a visa known as a “protection visa” (including as reflected in section 36(2) of the Act) reflect the criteria for refoulement under the Convention. They do not.”: at [32].

30    Justice Mortimer was persuaded by the applicant’s first contention. At [34], her Honour explained that the following matters contributed to her conclusion:

(a)    The nature and content of submissions made to the Minister on behalf of the applicant, and how the Assistant Minister dealt with them.

(b)    The Full Court’s decision in BCR16 [v Minister for Immigration and Border Protection [2017] FCAFC 456] and its application to the Assistant Minister’s approach.

(c)    My satisfaction that the applicant is correct to submit the Assistant Minister misunderstood his task under s 501CA(4) and erred in concluding part of it could be hived off to any (as yet) non-existent protection visa application process.

(d)    My view that the single judge decisions relied on by the Assistant Minister can be distinguished.

31    Justice Mortimer then considered each of the matters in (a) to (d) in detail. Of particular importance to the applicability of the reasoning in Omar to the present case is the detail provided in relation to (a). As her Honour explained, the applicant had made detailed submissions to the Assistant Minister which included the following:

International Non-Refoulement Obligations

Under international treaties to which Australia is a party it is accepted that there is an obligation not to refoule a person to a country where they face a real chance of being seriously or significantly harmed for specific Convention reasons.

Paragraph 14.1 of Direction 65 specifically requires that a decision maker consider the existence of any non-refoulement obligations in coming to a decision about an individual's revocation request. It is not necessary that the person positively raise non-refoulement where those claims are “clear from the facts of the case”.

The relevant legal test under Australian law as to whether the future risk of serious harm is well founded is whether there exists a “real chance” of persecution for a Convention related reason. A “real chance” is one that is not based on mere speculation or that is not remote, but rather, has a real and substantial basis.

In light of the available country information about Somalia, the fact that he left Somalia at a very young age and the likely absence of any close family members remaining in Somalia, it is submitted that there is a real and substantial basis for Mr Omar to believe he may be seriously harmed if forcibly returned there on the basis of his ethnicity, imputed political opinion, disability and impairments or a cumulation of those grounds.

Non-refoulement obligations engaged notwithstanding par.14.1(4) - ITOA is required

Direction 65 par. 14.1(6) in conjunction with 14.1(4) states that only persons who are prohibited by the Act from applying for a protection visa are entitled to an International Treaty Obligations Assessment (ITOA) in the context of a revocation request.

It is submitted that paragraph 14.1(4) is not determinative of the relevance of non-refoulement in Mr Omar’s case. While he may not technically be prevented from applying for a protection visa, the fact is that he has not made any such application.

The application that he makes is for revocation of the decision to cancel the class BC subclass 100 Spouse (Migrant) visa, which appears according to DIBP records to be the visa issued to him before entry to Australia at the age of 15 years. It is submitted that non-refoulement is matter relevant to determining the question of revocation.

Should this submission not be accepted and the decision maker apply 14.1(4) to find it “unnecessary to determine whether non-refoulement obligations are owed” to Mr Omar then the following matters remain apposite:

It is incumbent upon the decision maker to take into account that the existence of a “right” to apply for a protection visa does not guarantee that a visa will ultimately be granted. Nor does it guarantee relief from his immediate circumstances of detention.

Should Mr Omar apply for a protection visa, it is unclear whether the Act extends him a right to be granted a bridging visa while his application is considered. Even if he is accepted as an “eligible non-citizen” for the purpose of a grant of a bridging visa, release from immigration detention on a bridging visa is not an outcome guaranteed under the Act.

While the impact of long term confinement in immigration detention is not a matter that Direction 65 expressly requires be considered by a decision maker, it is relevant that Mr Omar has been detained since July 2016 and for some months on Christmas Island…He faces the prospect of remaining in detention for a lengthy period while his visa status is determined and if a protection visa was refused and his return to his country of origin be unavailable, he faces the very real prospect of being indefinitely detained.

32    At [38], Mortimer J said:

Another point made on behalf of the applicant in the above submissions, concerning the protection visa process, is a substantial one, and another important illustration of what the Full Court observed in BCR16 at [48]-[49] about the differences between making a further visa process available to an individual, and properly examining, at the time of the exercise of power, whether there is another reason to revoke the cancellation of an individual’s visa. As the applicant’s submissions point out, even if the applicant were to apply for a protection visa, that process is likely to take a considerable amount of time – during which time the applicant may continue to be deprived of his liberty, without any certainty of outcome in being granted such a visa, and in any event not being restored to the kind of visa he has held since he was 17 years old.

33    In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456, Bromberg and Mortimer JJ said at [48] and [49]:

We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.

In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.

34    In relation to (b), Mortimer J explained that the applicant relied on a part of the reasoning of BCR16 which was not addressed by Direction 75, in particular [48] to [52], [73] and [94]. In those parts Bromberg and Mortimer JJ exposed the differences between consideration of non-refoulement obligations in the statutory context of a decision under s 501CA(4) and a decision on the grant of a protection visa under s 65.

35    Accordingly, Mortimer J concluded:

[44]    While it might be said that the existence of Direction 75 has affected the practical operation of the legislative scheme by directing decision-makers faced with a protection visa application to assess the refugee and complementary protection criteria in ss 36(2)(a) and 36(2)(aa) before other criteria (such as those pertaining to an applicant’s character), that does not address the aspects of the Assistant Minister’s approach to the s 501CA(4) discretion which remain erroneous, and which were identified by the Court in BCR16.

[45]    Fundamentally, that is the failure to appreciate the very different role the consideration of non-refoulement obligations can have in the exercise of a discretionary power, such as that contained in s 501CA(4). In that context, if Australia’s non-refoulement obligations are engaged, the Assistant Minister may be faced with a choice between factors favouring revocation (including but likely not limited to the engagement of non-refoulement obligations) and the prospect of a person being indefinitely detained if their visa remains cancelled. That is a very different assessment process. It concerns whether a person who is currently part of the Australian community should remain in the community, or, potentially, should be detained indefinitely. It is not concerned with whether a person can satisfy one criterion necessary for the grant of a different visa. The latter perspective is quite different. That is the point being made by the majority in BCR16, especially, for example, at passages such as [48]-[49].

[46]    I am satisfied, on the basis of his reasons, that the Assistant Minister did not appreciate the very different task conferred on him by s 501CA(4), and that the task of considering whether there was “another reason” to revoke the visa cancellation required consideration of all other “reasons” put forward in the representations made by the applicant’s representatives (or at least, all those seriously and substantively advanced). The Assistant Minister was not authorised to simply carve out aspects of the representations made and particular “reasons” advanced, and decline to deal with them. That was not a lawful performance of his statutory task: see BCR16 at [63] and [94]...

[47]    As Robertson J found in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56], the representations “as a whole” made by a person whose visa has been cancelled and who is seeking revocation can be characterised as a mandatory relevant consideration under s 501CA(4). This has been confirmed by the Full Court in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at [47]. The observations of the Full Court in DRP17 at [47] were approved by Rares and Robertson JJ in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [49].

[48]    A failure by the Minister or Assistant Minister to consider representations made about a particular “reason” for revocation may well constitute a denial of procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389, 394 [24] (Gummow and Callinan JJ), 408 [95] (Hayne J), NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, [55], Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319, 356 [90], Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [77], [108] (Colvin J). I would also respectfully agree with the descriptions given by Rangiah J in Viane at [20]-[30] (with whom Reeves J generally agreed) of the several kinds of possible jurisdictional error to which such a failure may give rise, and with his Honour’s discussion of the relevant authorities.

[49]    The question whether, if the Minister or Assistant Minister fails to evaluate representations about a particular “reason” for revocation, this – without more – can be said to be jurisdictional error, has been left open: see Flick J in Ali at [42]. This is not a debate into which it is necessary to enter on this application, as the error is of a different kind.

[50]    In this proceeding, unlike BCR16 (see the majority reasons at [72]), the applicant, through his representatives’ submissions, specifically identified Australia’s non-refoulement obligations as “another reason” the visa cancellation should be revoked. Some time was spent in the submissions developing why this was an important issue in the consideration of revocation in the applicant’s case. Thus, this application squarely raises an issue not raised in BCR16, but to which in my opinion the majority’s reasons in that case are nevertheless still applicable.

36    In relation to (c), Mortimer J explained at [59] that:

Critically, what matters for the exercise of the s 501CA(4) discretion is not the consideration of a visa criterion which might have similar content (in some respects) to Australia’s non-refoulement obligations: it is whether Australia’s non-refoulement obligations are engaged in respect of a particular individual. That is what the Assistant Minister was being asked to consider through the submissions made on the applicant’s behalf: whether Australia’s non-refoulement obligations were engaged in relation to the applicant. And this is what gives rise to the Assistant Minister’s misunderstanding: where non-refoulement obligations are put forward as another reason to revoke a visa cancellation, the question is whether those obligations are engaged, and if so, what effect that should have on the exercise of discretion under s 501CA(4). In this context, they were being put forward as a reason to restore the partner visa to the applicant.

37    Justice Mortimer also observed at [64] and [65] that the Minister had examined the risk of harm to Mr Omar if he had to return to Somalia but said at [66] and [67]:

That exercise is not, however, the same exercise as an assessment of whether Australia owes the applicant non-refoulement obligations under international law. If the Assistant Minister were to decide such obligations were not engaged, that might be the end of her or his consideration of that matter. If, however, the Assistant Minister were to decide such obligations were engaged, then, in the consideration of how the revocation discretion in s 501CA(4) should be exercised, weighing the presence of such international obligations in the balance would be quite a different task. Deciding whether Australia’s international obligations to a person should be respected, or are outweighed by risk posed by that person to the Australian community, or that the likely compromise is indefinite detention, frames the issues for the exercise of the s 501CA(4) discretion in quite a different perspective.

The Assistant Minister’s reasons disclose no understanding of these matters, and certainly do not reveal that he sought to undertake any such task. Rather, he diverted any such consideration to a non-existent future process: one which, as I have explained, involved quite distinct matters and considerations, and was – at the time of the exercise of power – nothing more than speculation.

38    Justice Mortimer also considered that Ali was distinguishable, as the argument in that case focused on the reasoning in BCR16 to which Direction 75 is directed (that is, that the decision-maker misunderstood the statutory process in that it was wrong to assume that refugee and complementary protection criteria would necessarily be considered).

39    In conclusion, Mortimer J said at [81]:

…Where a representation is made pursuant to an invitation under s 501CA(3)(b), it is a failure to perform the statutory task then required by s 501CA(4) for the Assistant Minister to decline to determine factual matters raised by the representations by reference to a different statutory process, which is non-existent at the time of the exercise of power, whose invocation is entirely speculative, and during which process the engagement of Australia’s non-refoulement obligations is not a criterion for the grant of a visa.

40    Omar was distinguished in DOB18. Justice Robertson (with whom Logan J agreed at [38]) concluded that the Minister’s reasoning involved a factual, not a legal proposition that non-refoulement obligations would be considered if the applicant in that case applied for a protection visa. Accordingly, as his Honour put it at [169], to establish jurisdictional error:

…it would be for the appellant at trial to show both that it was likely the Minister personally would make a decision on the protection visa application and that as a matter of fact the Minister would not consider the application of the protection specific criteria before proceeding with any consideration of other criteria. The appellant has not done this.

41    Further, in respect of Omar itself, Robertson J said that:

[189]    In Omar the ground that was upheld was that the Assistant Minister failed to carry out his statutory task under s 501CA because he failed to engage with representations made by the applicant about “another reason” put forward by the applicant as to why the cancellation decision should be revoked. The Assistant Minister relevantly did not do this on the basis of what was referred to as the first misunderstanding, identified at [27], being that the application of Direction 75 to any decision-making process under s 65 when a protection visa application is made “is not a substitute for consideration of non-refoulement under section 501CA”. The reasoning at [46], that under s 501CA(4) the Assistant Minister was not authorised to simply carve out aspects of the representations made and particular “reasons” advanced, and decline to deal with them, would apply, mutatis mutandis, in other circumstances to those of the present appeal in respect of decision-making under s 501BA, as I have endeavoured to explain.

[190]     As to those parts of BCR16 referred to in Omar, it will be recalled that both cases concerned a decision under s 501CA(4), where different considerations may arise stemming from the place of representations by the visa applicant under that section, and that the discretion to revoke arises, on the common alternative where passing the character test is not in issue, where the Minister is satisfied that there is “another reason why the original decision should be revoked”: see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13. Thus in Omar, the nature and content of submissions made to the Minister on behalf of the applicant was one of the matters which contributed to Mortimer J’s conclusion.

42    At [193], his Honour concluded:

While I accept the appellant’s submission that the role that non-refoulement obligations might play in a protection visa application is very different to the role they might play in a s 501BA determination, I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minister accepted that the appellant would face hardship if returned to Bangladesh – the factual basis said to engage non-refoulement obligations – and took that hardship into account.

43    The outcome in Omar, accordingly, depended on the terms of the representations which had been put to the Minister. Contrary to the appellant’s submissions, the representations in the present case are not analogous to those that are the subject of consideration in Omar. It is clear from BCR16 at [60] and [72] that there is a difference between claiming to fear harm if required to return to a place and non-refoulement obligations. In the present case, the representations by the appellant make no reference at all to non-refoulement obligations. The representations at AB 73 to 74 are about the appellant’s fear of harm if required to return to Sierra Leone. In contrast to the position in Omar, there is no reference in the representations to Australia’s practice of not returning a person to a place if non-refoulement obligations are owed and there is the potential consequence of indefinite detention. The representation is about a fear of harm if required to return to Sierra Leone, which the Assistant Minister expressly considered in his reasons. As the Minister submitted, the Minister is not required to consider a reason in favour of revocation not in fact put by the appellant: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [79(3)] and [80]. In the present case, nothing was put about non-refoulement obligations and the potential consequences of those obligations for the appellant.

44    The further representations at AB 132 concerned the grant of parole to the appellant and requested revocation of the cancellation decision by the Minister adopting the view of the NSW Parole Committee. The Minister expressly considered the parole pre-release report about the appellant in his reasons. Otherwise, the representation at AB 132 did not refer to non-refoulement obligations or the potential for indefinite detention. Rather, what was being said was that if a decision was not made before parole was granted the appellant would be moved from prison to immigration detention and that if the Minister did not revoke the cancellation decision and the appellant had to challenge the decision, the appellant could then spend further months or years in immigration detention. It cannot be inferred that the Minister was unaware of the fact or failed to consider that if the appellant challenged a refusal to revoke the cancellation decision, the appellant would be in immigration detention for the duration of any such challenge. To the contrary, the Minister signed a report to him which stated at [8] that if the original decision was not revoked Mr Sowa would remain in immigration detention.

45    Apart from this, the representation at AB 132 asserted that such detention would be unlawful. As the Minister submitted, that assertion is untenable: Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [24] to [26]. Further, it cannot be concluded that the Assistant Minister’s power to make a valid decision about revocation was conditioned on consideration of an incorrect assertion that detention of Mr Sowa under the Migration Act would be unlawful.

46    The submissions for the appellant attempt to re-cast the representations made in the present case into representations of the kind made in Omar. That attempt must fail. In contrast to Omar, it cannot be concluded that the Assistant Minister failed in any way to consider the representations as put. As a result it is unnecessary to consider the Minister’s alternative submission that Omar was wrongly decided.

47    Nor can it be concluded that the Assistant Minister erred in his reasoning in any of the respects for which the appellant contended. As in DOB18, the Assistant Minister was not asserting any conclusion of law about the process applicable to any protection visa application Mr Sowa might make. The Assistant Minister was setting out propositions of fact about the process. The Assistant Minister said it was highly likely that any such application would be considered by a delegate who would be bound by Direction 75. Further, the Assistant Minister said the Minister considering any application personally (so that Direction 75 would not apply) was a “possibility” but it was unlikely in that event that the Minister would depart from the policy approach set out in Direction 75, that is, to consider whether the refugee and complementary protection criteria are met before considering ineligibility criteria. As in DOB18, the appellant has not discharged his onus of proving these factual predictions to be incorrect or otherwise irrational or unreasonable.

48    Accordingly, the first ground of challenge to the primary judge’s decision cannot be sustained. The Assistant Minister’s factual predictions about the likely course of dealing with any protection visa application by Mr Sowa were not wrong in law. They were rational factual predictions in all of the circumstances.

49    The same conclusion must apply to the second ground of alleged error by the primary judge. It might or might not be the case that a protection visa application by Mr Sowa in the future would be refused on character grounds, but that does not mean the application would be invalid. Nor does it mean that the complementary protection provisions would not be considered. The Assistant Minister’s assessment that it was highly likely that a delegate would consider any such application so that Direction 75 would apply, thereby requiring consideration of the refugee and complementary protection criteria before any ineligibility criteria, was rational and intelligible given the available material. Further, insofar as the present decision-making process under s 501CA(4) is concerned, the reasoning in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [61(e)] would apply. The Full Court said:

in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused

50    The third ground of alleged error by the primary judge must also fail. The representations made for Mr Sowa made no reference to non-refoulement obligations or the risk of indefinite detention. Accordingly, the Assistant Minister was not bound to consider those matters.

51    The fourth ground of alleged error is equally misconceived. The Minister was informed that if the cancellation decision was not revoked Mr Sowa would remain in immigration detention until his removal.

52    No error is apparent in the reasoning of the primary judge. The appeal, accordingly, should be dismissed with costs.

Associate:

Dated:    28 June 2019