FEDERAL COURT OF AUSTRALIA

AXT19 v Minister for Home Affairs [2020] FCAFC 32

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, 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:

Introduction

1    The appellant, a citizen of Myanmar, appeals from a judgment of a Judge of this Court dismissing an application for judicial review.

2    The appellant came to Australia in 2011 pursuant to a Refugee (Subclass 200) visa. In April 2015, the appellant was convicted in South Australia of an offence of indecent assault committed against a 14 year old girl. For that offence, he was sentenced to four months’ imprisonment, wholly suspended upon him entering into a bond in the sum of $200 to be of good behaviour for a period of 18 months. The appellant breached the bond and committed further offences. He was subsequently imprisoned.

3    A delegate of the first respondent (the Minister) decided to cancel the appellant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that the appellant had been convicted of a sexually based offence involving a child and was serving a sentence of imprisonment on a full-time basis in a custodial institution (the cancellation decision). The appellant made representations to the first respondent (the Minister) pursuant to s 501CA seeking revocation of the cancellation decision.

4    In October 2018, a delegate of the Minister decided not to revoke the cancellation decision. The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision not to revoke the cancellation decision. On 14 January 2019, the Tribunal decided to affirm the delegate’s decision, providing reasons for its decision (the Tribunal reasons).

5    The appellant applied to this Court for an extension of time to file an application for judicial review of the Tribunal’s decision. The application for an extension of time was heard together with the substantive application (if the extension of time were granted). The primary judge granted the appellant an extension of time, but dismissed the application for judicial review. On 23 August 2019, the primary judge delivered ex tempore reasons for his decision (the Reasons).

6    In essence, the appellant contends that the primary judge erred in not finding that the Tribunal failed to consider the appellant’s representations:

(a)    concerning Australia’s non-refoulement obligations in respect of the appellant; and

(b)    relating to the risk of harm to the appellant if he were returned to Myanmar (independently of any non-refoulement obligations).

7    The first basis relies on the judgment of Mortimer J at first instance in Omar v Minister for Home Affairs [2019] FCA 279 (Omar (first instance)). The second basis, which counsel for the appellant conceded was not advanced at first instance (transcript, p 2), relies on Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 and Minister for Home Affairs v Omar (2019) 373 ALR 569 (Omar (FFC)).

8    For the reasons that follow, we consider the primary judge’s conclusion, that the Tribunal’s decision was not affected by jurisdictional error, to be correct. In summary, in our view, the Tribunal did meaningfully engage with, and therefore consider, the appellant’s representations concerning Australia’s non-refoulement obligations and his representations relating to the risk of harm if he were returned to Myanmar. It follows that the appeal is to be dismissed.

Background facts

9    The appellant has resided in Australia on a Refugee (Subclass 200) visa since December 2011. Between 2014 and 2017, the appellant came before the courts on a number of occasions, largely for offences he committed while under the influence of alcohol.

10    Significant among those offences was a charge of indecent assault committed against a 14 year old girl, for which the appellant was convicted and sentenced in April 2015. The police incident report states that the appellant had kissed the girl three times without permission after encountering her on a tram. As noted above, for this offence the appellant was sentenced to 4 months’ imprisonment, wholly suspended upon him entering a $200 good behaviour bond for a period of 18 months.

11    The appellant breached this bond by committing further, minor offences. For his other offending, the appellant was sentenced, cumulatively, to an additional period of two months and 12 days. However, this additional period was suspended for 18 months upon the appellant entering into a good behaviour bond of $300. The appellant again breached his bond and served the additional two months and 12 days’ imprisonment.

12    While serving his term of imprisonment, a delegate of the Minister made the cancellation decision pursuant to s 501(3A) of the Migration Act. The appellant requested that the cancellation decision be revoked. The appellant completed a form headed “Request for revocation of a mandatory visa cancellation under s501(3A)”. In the box provided for reasons for revocation, the appellant wrote: “Refugee”. Further detail was provided in an accompanying “Personal Circumstances Form”. In response to the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” the appellant checked the box “Yes” and stated:

Yes, I left my country to save my life because the authority of Burma searching me to arrest.

(Errors in original.)

13    The form also included the question, “Are there any problems you would face if you have to return to your country of citizenship?” to which the appellant responded:

I must be charge with illegal crossing the border and becoming as a refugee.

I must be putting to jail for long time by the authority with my case the reason why I left my country.

(Errors in original.)

14    In the section of the form for the provision of further information, the appellant relevantly stated as follows:

My life is still danger in my country because the conflict between Burmese Army and Ethnic Arms group are still happening in the country. Mostly, the ethnic people (minorities) are living with fear every day due to the Burmese Army attacked can never stop in the area. Many villagers were arrested and tortured brutally until now. There is no human rights, no freedom and no peace in the country because the country are still under the military controlled. Democratic leader Aung San Su Kyi and her parliament member can do nothing over the military.

(Errors in original.)

15    In a letter dated 25 May 2018 from Multicultural Youth SA Inc, submitted in support of the application for revocation, the following statements were made:

I am writing in relation to [the appellant] who is currently incarcerated at Yongah Hill Immigration Detention Centre. [The appellant] experienced significant trauma in his home country of Burma. [The appellant] is a member of a persecuted minority, and was captured by the military and subjected to torture and deprived of food and water prior to fleeing to Malaysia in 2009. His visa was eventually granted by the UNHCR in 2011 and he arrived in Australia in search of a better life.

…

MYSA has serious concerns for [the appellant’s] life, safety and mental wellbeing should he be required to return to Burma. Due to ongoing conflict within the country, and the fact that the military remains largely in control, [the appellant’s] life is almost certainly in danger should he be required to return. [The appellant] is particularly at risk given that he will almost certainly be subjected to retribution for fleeing the country in the first place. This, in addition to his health issues resulting from the car accident, place him at significant risk should he be required to return to Burma.

16    In October 2018, a delegate of the Minister decided not to revoke the cancellation decision.

The proceeding in the Tribunal

17    The appellant applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation decision. A hearing took place before the Tribunal on 7 January 2019. The appellant appeared in person with the assistance of an interpreter at that hearing.

18    In his statement of facts, issues and contentions for the purposes of the Tribunal proceeding, the appellant referred to and relied on Australia’s non-refoulement obligations and his fears for his safety if returned to Myanmar (see, in particular, [9], [10] and [14]). The appellant stated: “I believe that my claims for fear of harm and persecution should be accepted within Australia’s international and non-refoulement obligations as they were accepted by the department on the 25 August 2011 when I was granted Refugee status by Australia”. The appellant also relied on a petition to the government of Australia, in which the appellant referred to having experienced “persecution, discrimination, and the (sic) oppression from the Army of Myanmar”.

19    On 14 January 2019, the Tribunal decided to affirm the decision under review, and provided reasons for its decision.

20    The Tribunal identified, at [9], that there were two issues to be determined: first, whether the appellant passed the character test; and, secondly, whether there was “another reason” why the cancellation decision should be revoked. These issues were raised by s 501CA(4) of the Migration Act (set out later in these reasons).

21    The Tribunal considered the first issue at [11]-[19] and concluded that the appellant did not pass the character test. No issue arises in relation to this aspect of the Tribunal’s reasoning.

22    The Tribunal then turned to the second issue, which was dealt with in detail at [20]-[135]. The Tribunal structured its reasons by reference to the considerations outlined in Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65).

23    The first matter addressed by the Tribunal concerned protection of the Australian community from criminal or other serious conduct. This included consideration of: (a) the nature and seriousness of the appellant’s conduct to date (at [28]-[60]); and (b) the risk to the Australian community should the appellant commit further offences or engage in other serious conduct (at [61]-[74]). The Tribunal examined in some detail the appellant’s offending, and set out further detail concerning the offence of indecent assault against the 14 year old girl. The Tribunal considered that the appellant’s offending was of a “very serious nature” (at [28]; see also [40], [44], [54], [55], [58], [59], [60]). The Tribunal also found that there was a high likelihood that the appellant would reoffend in the same manner as he has done in the past – that is, in at least a serious way and, most probably, in a very serious way (at [74]). Ultimately, the Tribunal concluded that this first consideration weighed heavily in favour of the appellant’s visa being cancelled (at [75]).

24    The next matter referred to by the Tribunal was the best interests of minor children in Australia. There were no relevant children who could have their best interests considered. Accordingly, this consideration was given no weight.

25    The Tribunal considered the expectations of the Australian community at [78]-[102]. The Tribunal found the Australian community would consider that the appellant had breached the trust that they had placed in him to obey Australian laws while in Australia and, accordingly, that the Australian community would not consider it appropriate that the appellant should continue to hold a visa (at [90]). The Tribunal concluded that this consideration weighed heavily in favour of non-revocation (at [102]).

26    The Tribunal then dealt with or referred to a number of other considerations, under the following headings:

(a)    Non-refoulement obligations;

(b)    Strength, nature and duration of ties;

(c)    Impact on Australian business interests;

(d)    Impact on victims; and

(e)    Extent of impediments if removed.

27    It is the section of the Tribunal’s reasons headed “Non-Refoulement Obligations” ([105]-[118]) that is critical for the purposes of the appeal. At [105], the Tribunal noted that the appellant contended that he fears the prospect of returning to Myanmar. The Tribunal quoted the statements that were contained in the appellant’s request for revocation of the cancellation decision (which have been set out at [12]-[14] above).

28    The Tribunal also referred, at [106] and [107], to statements regarding persecution in the sentencing remarks of two of the Magistrates who had sentenced the appellant.

29    The Tribunal set out at [108], paragraph 14.1 of Direction 65, which concerned non-refoulement obligations. The Tribunal referred to the practice of the Tribunal as regards non-refoulement claims and noted that this had changed following BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16). The Tribunal noted, correctly, that the decision in BCR16 “seems to seriously undermine paragraph 14.1(4)” of Direction 65.

30    The Tribunal referred to Direction No 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Direction 75) and the discussion of that Direction in Ali v Minister for Immigration and Border Protection [2018] FCA 650 and Greene v Assistant Minister for Home Affairs [2018] FCA 919. The Tribunal considered that, in light of those decisions, “the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided”.

31    The Tribunal then turned to the facts and circumstances of the present case at [113]-[118]. As these paragraphs are central to the grounds of appeal, we set them out in full:

113.    Here, the Applicant has been residing in Australia on a Class XB, Subclass 200 Refugee visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa. Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.

114.    As the Applicant is already on a Refugee visa, it seems [likely] there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that assessment was made before the Applicant came to Australia in December 2011. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:

The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).

115.    As things stand, the Applicant has given evidence that both of his parents and his sister continue to reside in Myanmar, but that he was fearful of what the Burmese army would do to him. While the Respondent’s representative sought to test the Applicant’s evidence about an apprehension of harm were he returned to Myanmar, it seems those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor on or prior to December 2011 that his claims for a refugee visa were genuine. In the hearing before me, the Applicant gave unconvincing evidence about his apparent fear of harm were he to be returned to Myanmar.

116.    In response to the specific question as to who exactly would harm him upon his return, he vaguely answered “The army”. He was asked about how that harm would occur and he responded by saying that he would be forced to join the army and consequently forced to commit violence against other people. He was asked whether the army or anyone else in Myanmar had ever harmed him, his parents or anyone else within his social or family circle. He responded in the negative. As I understood the Applicant’s evidence, his apprehension or fear of harm were he to be returned to Myanmar, crystalises in a possibility that he will be asked to join the army and possibly be ordered to do things he does not want to do. This, to my mind, is a separate and distinct thing from the army (or anyone else in Myanmar) directly inflicting harm on the Applicant.

117.    The Applicant also gave somewhat peculiar evidence to the effect that if returned to Myanmar, he would not be able to be identified or, put another way, he would not have any identity. I found this evidence very unconvincing because it was put to him that, surely, his parents and/or his sister would be able to recognise him and confirm his identity, to which he responded “Yes.”

118.    On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.

(Footnotes omitted.)

32    It is not necessary for present purposes to refer in any detail to the Tribunal’s consideration of the other matters identified in [26] above. The Tribunal summarised its conclusions in relation to those considerations at [130]:

The allocation of weight to the Other Considerations in this matter can be stated thus:

(a)    International non-refoulement obligations: weighs slightly in favour of the Applicant;

(b)    Strength, nature and duration of ties: weighs slightly in favour of the Applicant;

(c)    Impact on Australian business interests: not relevant to my decision;

(d)    Impact on victims: weighs neither in favour of nor against the Applicant and is thus of neutral weight;

(e)    Extent of impediments if removed: weighs neither in favour of nor against the Applicant and is thus of neutral weight.

33    In the concluding section of its reasons, the Tribunal set out the conclusions it had reached earlier in its reasons. The Tribunal stated that the combined weight of the other considerations (i.e. the matters referred to in [26] above) was such that none of them, alone or combined, outweighed the significant weight that the Tribunal had attributed to (what it referred to as) primary considerations A and C, that is, the protection of the Australian community from criminal or other serious conduct, and the expectations of the Australian community. The Tribunal concluded that “a holistic view of the considerations in [Direction 65] favours the non-revocation of the cancellation of the [appellant’s] visa” (at [134]). Consequently, the Tribunal affirmed the decision not to revoke the cancellation decision.

The proceeding at first instance

34    The appellant applied for an extension of time to seek judicial review of the Tribunal’s decision. In his draft originating application for review of a migration decision, the appellant (who was unrepresented at the time the application for an extension of time was filed) raised two grounds of review, namely:

1.    Breach of natural justice – Denial of procedural fairness.

2.    Failure to take relevant considerations into account.

35    The appellant was represented by counsel and solicitors at the hearing before the primary judge.

36    The primary judge held that the appellant should be granted an extension of time (at [6]). His Honour then considered the substance of the judicial review application. After setting out [114]-[118] of the Tribunal reasons, the primary judge stated at [17]-[18]:

17    Paragraphs [115]-[117] contain a rehearsal of oral evidence given by the applicant and the expression of some views concerning the question of whether that evidence would or would not engage with criteria which would arise for consideration in relation to the grant of a Protection visa or complementary protection. Ultimately though, at [118], in my view, the Tribunal chose to do no more than acknowledge that the “effect of Direction No 75 and subsequent Federal Court decisions is such that the applicant will have further avenues through which he can pursue his refugee status in Australia”.

18    In other words, the Tribunal, though it recognised the existence in the representation made by the applicant of a basis for considering the subject of non-refoulement, also recognised that … this was a subject which, if the applicant chose, as he was entitled, to apply for a Protection visa, would have to be considered first in the context of any such protection visa application. So the ultimate approach by the Tribunal was, in my view, in conformity with the Court’s judgment in what one might term the root authority, namely, Ali. This, though, was submitted nonetheless not to amount to a consideration of the representation as required by statute, having regard to Omar.

The reference to Omar in the above passage was to Omar (first instance). The reasons of the primary judge were delivered on 23 August 2019, which was before the judgment of the Full Court in Omar (FFC).

37    The primary judge next set out [44] and [45] of Omar (first instance), in which Mortimer J stated:

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].

38    In relation to this passage, the primary judge observed at [20]:

If these views are correct, the Tribunal, by failing to reach conclusions as to the existence or otherwise of a refoulement obligation, would indeed have failed to discharge its statutory function. Of course, it is the case that the representations as a whole must be considered, but the whole is the sum of the parts, and this was undoubtedly an important part of the representations which the applicant made in response to the invitation extended to him.

39    The primary judge discussed the course of authority in relation to whether and when non-refoulement obligations must be considered, by reference to DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [55]-[59], Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (Le) at [41] and Sowa v Minister for Home Affairs (2019) 369 ALR 389 at [49]. The primary judge expressed the view, at [27], that, in his respectful view, it was not possible to reconcile the observations in Omar (first instance) at [44]-[45] with the Full Court’s judgment in Le. The effect of Le, in his Honour’s view, was that Omar (first instance) was clearly wrong. It followed, the primary judge stated, that the central plank in the appellant’s argument must fail. The primary judge also stated at [28]:

This is just a case where the Tribunal has recognised that part of the representation made in response to the invitation does raise subjects which engage, at least potentially, with a non-refoulement obligation, further recognised that the applicant is not precluded from making a Protection visa application, and yet further recognised that having regard to Direction 75, it would necessarily be the case that if such a protection visa application were made, the question of non-refoulement would fall for consideration at that stage.

40    Accordingly, the primary judge dismissed the application for judicial review.

The appeal

41    The appellant appeals from the judgment of the primary judge. As formulated in his notice of appeal filed on 3 September 2019, the appellant relies on the following two grounds:

1.    The learned trial judge erred in holding, at [27] of the reasons for judgment, that her Honour Mortimer J wrongly decided Omar v Minister for Home Affairs [2019] FCA 279.

2.    The learned trial judge erred in holding, at [17] of the reasons for judgment, that the Tribunal’s reasons did no more than acknowledge the effect of Direction 75.

42    At the hearing of the appeal, the appellant sought leave to amend the notice of appeal to the form attached to his outline of submissions dated 12 February 2020, which contained the following proposed grounds:

1.    The learned trial judge erred in holding, at [27] of the reasons for judgment, that her Honour Mortimer J wrongly decided Omar v Minister for Home Affairs [2019] FCA 279. His Honour should have:

   (a)    followed the decision Omar v Minister for Home Affairs; and

(b)    held that the Tribunal failed to consider all of the matters (including factual matters) which the appellant had represented would be (or would be part of) a “reason” for revoking the cancellation decision, including non-refoulement obligations.

2.    The learned trial judge erred in holding, at [17] and [18] of the reasons for judgment, that the Tribunal’s reasons (at [118]) did no more than acknowledge the effect of Director 75. His Honour should have found that the Tribunal failed to discharge its statutory function by failing to engage with, or take into account, the appellant’s representations regarding “another reason” for revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

43    At the hearing of the appeal we were not disposed to grant leave to amend the notice of appeal to this form because proposed ground 1(b) used the word “including” (rather than, for example, “constituting”) in two places and thus did not clearly define the ambit of the appellant’s contention. Counsel for the appellant identified the two bases upon which the appellant sought to challenge the decision of the primary judge in terms which we have sought to capture at [6]-[7] above (transcript, pp 2-4). We gave the appellant leave to file an amended notice of appeal that reflected the two bases outlined orally by counsel for the appellant. The appellant’s lawyers provided a further amended notice of appeal and a second further amended notice of appeal, but neither of these documents addressed the concern that had been identified at the appeal hearing with respect to the proposed amended notice of appeal. In particular, the word “including” continued to be used in the proposed amendments. In these circumstances, we indicated that we would not accept either of those documents, and that we proposed to proceed on the basis of the notice of appeal filed on 3 September 2019, with reference to the discussion and agreement at the hearing (pp 2-4 of the transcript), which confined the appeal to the two points summarised in [6]-[7] above.

44    At the hearing of the appeal, counsel for the Minister made submissions that involved supporting the orders made by the primary judge on grounds other than those relied on by the primary judge. After the hearing we wrote to the parties to indicate that if the Minister wished to contend that the primary judge erred in what he found at one or more of [18], [20] and [28] of the Reasons (with reference to [118] of the Tribunal reasons), but otherwise supports the orders made below, the Minister should file and serve a notice of contention. The Minister subsequently filed a notice of contention, in which he contends that the judgment of the primary judge should be affirmed on grounds other than those relied on by the primary judge, namely:

1.    To the extent it so held, the Court below erred in holding (at [18] and [28]) that the Appellant had made representations or submissions which engaged, or potentially engaged, Australia’s [non-refoulement] obligations.

2.    Further and in the alternative, to the extent it so held, the Court below erred in holding (at [18], [20] and [28]) that the Second Respondent failed to make findings or reach conclusions in respect of any representations or submissions which engaged, or potentially engaged, Australia’s [non-refoulement] obligations.

45    We take the notice of contention as doing no more than reflecting the submissions that were made at the hearing of the appeal.

Applicable principles

46    Section 501CA of the Migration Act relevantly provides as follows:

501CA    Cancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(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.

…

47    The relevant principles were discussed by the Full Court of this Court in Omar (FFC) at [34]-[41]. They were also discussed in our judgment in GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31]-[32]. We adopt the summaries of the applicable principles set out in those cases.

Application of principles to the present case

48    The appellant’s submissions focus on [118] of the Tribunal reasons, which has been set out above. In particular, the appellant highlights the second, third and fourth sentences, in which the Tribunal stated that: the effect of Direction 75 and subsequent Court decisions was that the appellant would have further avenues through which to pursue his refugee status in Australia; in those processes, Australia’s non-refoulement obligations would be “assessed in a fulsome manner”; and that this limited the extent to which the non-refoulement obligations in this matter favoured revocation. In the appellant’s submission, these statements demonstrate that the Tribunal failed to engage with, or take into account, the appellant’s representations regarding “another reason” for revocation of the cancellation decision.

49    The appellant relies on the statement of the primary judge at [17] that the Tribunal, at [118], “chose to do no more than acknowledge that the ‘effect of Direction No 75 and subsequent Federal Court decisions is such that the applicant will have further avenues through which he can pursue his refugee status in Australia’”.

50    The appellant submits that the error in the Tribunal’s reasoning at [118] is similar to the error considered by the Full Court in BCR16 and very similar to the error considered by Mortimer J in Omar (first instance). It is submitted that, for the same reasons as relief was granted in those cases, the relief sought by the appellant in this case should have been granted by the primary judge. The appellant submits that the primary judge fell into error by not following Omar (first instance) and by failing to hold that the Tribunal failed to consider all of the matters (including factual matters) that the appellant had represented would be (or would be part of) a “reason” for revoking the cancellation decision, namely non-refoulement obligations and the claim to fear harm.

51    The appellant submits that: his representations in this case raised the question whether non-refoulement obligations were engaged; the Tribunal acknowledged this at [114], but then failed to properly consider the representations, instead deciding that the effect of Direction 75 was that they would be considered in a protection visa context; and the Tribunal failed to give active, intellectual consideration to the relevant matters.

52    In our view, contrary to the appellant’s submissions, the Tribunal did consider (in the sense of meaningfully engage with) the relevant representations, whether these be characterised as representations that Australia owed non-refoulement obligations in respect of the appellant or as representations that the appellant feared harm if he were returned to Myanmar on the bases set out in the documents submitted to the delegate or the Tribunal. Critically, in the section of its reasons at [105]-[118], the Tribunal:

(a)    set out the thrust of the appellant’s representations in this regard (at [105]-[107]);

(b)    noted that the appellant had been granted a Refugee (Subclass 200) visa, and thus it seemed likely that “there has already been an assessment that Australia owed [the appellant] non-refoulement obligations on the basis of those refugee claims” (at [114]);

(c)    stated that, while the Minister’s representative in the Tribunal proceeding had sought to test the appellant’s evidence about apprehension of harm were he returned to Myanmar, “it seems those claims were nevertheless sufficient for [the appellant] to satisfy the [Minister’s] predecessor on or prior to December 2011 that his claims for a refugee visa were genuine” (at [115]);

(d)    found that the appellant’s evidence about his fear of harm were he returned to Myanmar was “unconvincing” (at [115]);

(e)    noted that: in response to the specific question as to who exactly would harm him upon return, the appellant had answered vaguely, “the army”; in response to a question about how that harm would occur, the appellant had responded that he would be forced to join the army and consequently would be forced to commit violence against other people; in response to a question whether the army or anyone else in Myanmar had ever harmed him, his parents or anyone else within his social or family circle, the appellant had responded in the negative; and the appellant’s evidence as to his apprehension or fear of harm were he to be returned to Myanmar crystallised in a possibility that he would be asked to join the army and possibly ordered to do things he did not want to do (at [116]);

(f)    observed that the appellant’s apprehension or fear in that regard was “a separate and distinct thing from the army (or anyone else in Myanmar) directly inflicting harm” on the appellant (at [116]);

(g)    dealt with evidence given by the appellant to the effect that, if returned to Myanmar, he would not be able to be identified or would not have any identity (at [117]); and

(h)    stated that, on the balance of the evidence, this factor should weigh in the appellant’s favour to some extent, but not heavily (at [118]).

53    These aspects of the Tribunal’s reasoning demonstrate, in our view, that the Tribunal did meaningfully engage with the representations made by the appellant concerning Australia’s non-refoulement obligations and relating to the risk of harm to the appellant if he were returned to Myanmar. The Tribunal’s discussion of the relevant representations and the evidence of the appellant in connection with those representations demonstrate that the Tribunal brought an active intellectual process, and gave proper, genuine and realistic consideration, to these matters. Accordingly, in our view, the Tribunal did consider the appellant’s representations.

54    It is true that, in the second, third and fourth sentences of [118], the Tribunal noted that it was open to the appellant to apply for a protection visa and, if he did so, these matters would be assessed in a fulsome manner, and stated that this “limits the extent to which the non-refoulement obligations in this matter favour revocation”. However, these statements do not detract from the proposition that the Tribunal meaningfully engaged with the relevant representations and the evidence presented in connection with those representations. Further and in any event, any error by the Tribunal in this regard was not material, in the sense that it could not realistically have affected the outcome. The Tribunal had already concluded in the first sentence of [118] that, on the balance of the evidence, this factor (non-refoulement obligations) weighed to some extent, but not heavily, in the applicant’s favour. The Tribunal’s statements in the second, third and fourth sentences of [118] were merely further reasons for reaching that view.

55    It may perhaps be asked why, given its critical evaluation of the appellant’s evidence, the Tribunal concluded that this factor (non-refoulement obligations) weighed even “to some extent” in the appellant’s favour. The reason why the Tribunal so concluded would appear to be that the appellant had earlier received a favourable assessment of his refugee claims. On this basis, the Tribunal was prepared to conclude that this factor weighed “to some extent” in the appellant’s favour.

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

57    In the present case, where the representations were expressed in somewhat general terms, it was appropriate for the Tribunal to focus on the appellant’s evidence at the Tribunal hearing. It is true that the Tribunal did not in terms make findings as to whether Australia owed non-refoulement obligations in respect of the appellant or as to the harm that he feared if returned to Myanmar. However, the first sentence of [118], in which the Tribunal stated that this factor should weigh in the appellant’s favour to some extent, but not heavily, was a conclusion in relation to this factor. Given the appellant’s evidence at the hearing, it is difficult to see what more the Tribunal could or should have done in dealing with the appellant’s representations concerning non-refoulement obligations and his fear of harm if returned to Myanmar.

58    Further, on the facts of the present case, to the extent that the appellant raised a claim to fear harm independently of any non-refoulement obligations, that claim was adequately considered by the Tribunal.

59    If and to the extent that the primary judge took the view that the Tribunal did not consider the relevant representations (see the Reasons at [17] and [20]), for the reasons given above we respectfully disagree. In our view, the Tribunal meaningfully engaged with the relevant representations.

60    The appellant relies on the judgment of Mortimer J in Omar (first instance), particularly at [44]-[45] (set out above). In Omar (first instance), Mortimer J accepted the applicant’s contention (based on BCR16 at [48]-[52], [73] and [94]) regarding the “different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared with their role as, in effect, incidents of one criterion (the ‘protection criterion’) in the requirements for the grant of a protection visa”: Omar (first instance) at [43]; see also [44]-[45]. Her Honour held that, on the facts of that case, 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)”: Omar (first instance) at [46]. We note that the Full Court in Omar (FFC) did not need to consider the correctness of this aspect of the reasons at first instance, as it dismissed the appeal on the basis of a notice of contention.

61    The appellant’s submission is that the Tribunal, in the fourth sentence of [118], made a comparable error to that identified in Omar (first instance). In our view, for the reasons given at [54] above, if the Tribunal made any such error, it was not material in the circumstances of this case. Accordingly, it is unnecessary to determine whether Omar (first instance) at [44]-[45] is correct.

62    For these reasons, we reject the appellant’s grounds of appeal. To the extent indicated above we uphold the Minister’s notice of contention. It follows that the appeal is to be dismissed. In relation to costs, it was accepted at the hearing that, at least if the appellant was unsuccessful, costs should follow the event. Accordingly, we will also make an order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    6 March 2020