FEDERAL COURT OF AUSTRALIA

DVE18 v Minister for Home Affairs [2020] FCAFC 83

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made on 30 August 2019 in NSD 1318 of 2018 be set aside.

3.    A writ in the nature of certiorari issue quashing the decision of the respondent to refuse to grant the appellant an In-Country Humanitarian (Class XB) visa.

4.    The appellant’s application for an In-Country Humanitarian (Class XB) visa be remitted to the respondent to be determined in accordance with the law.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of Afghanistan. From 2010, he worked as an interpreter assisting the Australian Defence Force (ADF) in Southern Afghanistan. He continues to reside in Afghanistan with his wife and his two year old son.

2    In 2012, the Australian Government announced that it would offer resettlement to locally-engaged Afghan employees and their immediate family members who were considered to be at risk of harm due to their association with Australian Government agencies. In July 2013, the appellant received a letter advising that he had been certified as eligible to apply for a Refugee and Humanitarian (Class XB) visa under that program.

3    The appellant lodged a valid application for the visa under s 46 of the Migration Act 1958 (Cth) on 20 July 2013. In support of his application, the appellant claimed that he and his family members were at risk of being murdered by Jihadists in retributive attacks. At that time the appellant was a single man with no children.

4    For reasons that are presently unclear, nearly five years passed before the visa application was determined. By that time, the appellant had married and become a father and his wife and infant son had each been joined on the visa application as secondary applicants.

5    The first respondent Minister refused to grant the appellant the visa. The appellant made an application for judicial review of that decision to this Court under s 476A of the Act. Among other things, he argued that the Minister had failed to have regard to the risk of harm to his wife and child should the visa application be refused.

6    The primary judge accepted that the Minister had not had regard to the risk of harm faced by the appellant’s wife and child, but nonetheless concluded that the appellant had not advanced a claim about that risk in a way that would give rise to an obligation to consider it, and so dismissed the application for review: DVE18 v Minister for Home Affairs [2019] FCA 1389. For the reasons that follow, the appeal from that judgment should be allowed.

THE ACT

7    Section 55 of the Act provides that until the Minister has made a decision as to whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. Section 54 provides that the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application, including information contained in a document attached to the application and any additional information given under s 55.

8    The criteria for the visa included that prescribed in cl 201.211 of Sch 2 to the Migration Regulations 1994 (Cth), namely:

201.211

(1)    The applicant:

…

(aa)    meets the requirements of subclause (1A); or

…

(1A)    The applicant meets the requirements of this subclause if:

(a)    the Minister has specified, in an instrument in writing, one or more classes of persons for this paragraph; and

   (b)    a relevant Minister has certified that the applicant is:

   (i)    in one of those classes; and

(ii)    at risk of harm for a reason, or reasons, that relate to the applicant being in that class of persons.

9    Section 501(1) of the Act confers a discretion on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Section 501(6)(b) provides that a person does not pass the character test if:

… the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

10    Section 501G(1) provides that if a decision is made under s 501(1) to refuse to grant a visa to a person, the Minister must give the person a written notice that:

…

  (c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

 (3)    A notice under subsection (1) must be given in the prescribed manner.

(4)    A failure to comply with this section in relation to a decision does not affect the validity of the decision.

THE VISA APPLICATION

11    On this appeal, the Minister did not dispute that the appellant is a person in respect of whom a certificate under cl 201.211(1A)(b) had been issued.

12    The appellant was nonetheless prompted in his visa application to set out any “humanitarian claims”. In that portion of the application form, the appellant stated that he had worked as a linguist for the Coalition Forces in Southern Afghanistan since 2010 and that:

I am constantly afraid when I travel to meet my family as there have been many cases of interpreters, working with Coalition Forces, being kidnapped and murdered or their families harmed. For this reason I choose to live on an ISAF Forward Operating Base (FOB) Lindsey.

Due to my position working with Coalition Forces, I am required to interact daily with many Afghans from the 205th Corps in Kandahar. When I travel to see my family in Kandahar, I am forced to hide my face and stay inside my house, like a prisoner, for fear of being recognised and my details being passed to insurgents (Taliban). If the Taliban had this information they would surely kill myself and my family.

(emphasis added)

13    When prompted on the application form to give details of his relatives, the appellant named his parents and four siblings. He stated that he did not have a partner. The appellant later advised the Minister of his marriage in September 2014 and of the birth of his son in June 2016. That was done by way of two forms lodged after his son’s birth. In the first form, the appellant advised that information he had provided on his original visa application form (namely his status as never having been married or in a de facto relationship) was “no longer current”. In the second form the appellant named his wife and child as additional applicants on the visa application.

14    In May 2016, the Department of Immigration and Border Protection notified the appellant that consideration was being given to the refusal of the application under s 501(1) of the Act. The letter referred to an “adverse Counterintelligence Evaluation”. The letter enclosed a copy of a direction then in force under s 499 of the Act which was said to provide a broad indication of the types of issues the Minister may take into account in the exercise of the power conferred by s 501 of the Act. The appellant was invited to “comment or provide information” in response to the letter, not only in relation to the topics dealt with by the direction, but also in relation to any other information that he felt the decision-maker ought to take into account. The letter also advised that the appellant could provide letters of support from his family, friends, employer or others. The letter expressly invited the appellant to comment or advance reasons as to why the visa should not be refused. It stated that everything the appellant had said and submitted previously in support of his application would be considered.

15    The appellant replied by way of a letter from his solicitor together with a number of enclosures. The letter dealt principally with the allegation that the appellant did not pass the character test. It concluded with the following paragraphs:

We note the serious and well-documented continuing risks borne by ‘left-behind’ Afghan interpreters and the specific threats experienced by our client.

We refer again to the moral obligation that Australia holds to these locally engaged employees and note that it would be unconscionable to refuse this application on the basis of several minor and explainable discrepancies and arguably, on balance, what could be considered a unreasoned and unrepresentative negative security assessment.

16    The appellant also provided a statement dated 6 June 2016. It was largely responsive to the character issues that had been raised by the Department, but also contained the following:

I would like the decision maker assessing my visa application to know that my current situation is extremely difficult. I feel like I am a prisoner in my own home. I have spent every day my house. When I do go out, I only go out when necessary such as to buy food, and to do so I cover my face with shawl (a ‘pato’) and wear sunglasses to avoid being identified and putting myself at risk of persecution by those who are aware of my previous role as an Interpreter with the coalition forces. When I go out of my house I often feel like I will not come back safely.

17    The appellant provided letters of recommendation and statutory declarations from senior personnel within the ADF with dates ranging from 2010 to 2016.

18    Two letters of 2013 stated that the appellant had “placed his life and that of his family at risk in order to facilitate coalition and Australian success within Afghanistan”.

19    In a statutory declaration made on 30 May 2015, Captain Jason Scanes (retired) said:

3.    With regard to the environment we were operating in (intelligence mentoring and gather) [the appellant] was exposed to many sources of insurgents, including detainees in the 205th Hero Corps Jail. With daily exposure to Afghan soldiers and security forces through his role as my interpreter [the appellant] was extremely concerned at times with the fact that there were several individuals on the Afghan Base that could potentially recognise him. These individuals also live in close proximity to his family outside of the camp.

4.    As a locally employed interpreter for coalition forces, [the appellant] was subjected to regular interviews. [the appellant] has confided in me that he finds interviews particularly stressful. He is of the belief that the Taliban can intercept any information he provides to coalition agencies through his cooperation with Afghan agencies such as the National Directorate of Security (NDS). The belief that such information could be shared and used to bring harm against him and his family is plausible. Given the very real atrocities that have occurred to many interpreters, this reasoning is valid and relevant.

…

11.    I urge you to please consider the following factors in your decision making process. [the appellant] is a young married man who has demonstrated a keen interest in learning the English language and about our Australian culture. He has worked with Australian, British and U.S. Forces already. The service that he has provided to our country helped protect the lives of Australian Forces, myself included. Due to his service, his own life and that of his young family are genuinely at risk. [the appellant] began the application process for a humanitarian Visa in August 2013 and since this time he has continued to live in fear whilst patiently waiting for a decision. I have kept in regular contact with [the appellant] and he is always polite and hopeful of one day realising his dream of a safe and peaceful life for himself and his family in Australia. This in itself is a testament to [the appellant’s] good character.

20    To similar effect, a statutory declaration made on 31 May 2016 by Lieutenant Colonel Hick (retired) said this:

What I can say is that [the appellant] was an integral part of the team and as such we genuinely considered him part of ‘Team Australia’. Not only was he responsible for daily interpreting issues such as verbal and written translation but he also played a critical role in our safety, reading what was happening between the various groups and informing us what was and what wasn’t being said (to avoid blue on blue incidents). Our interpreters were partly responsible for keeping us alive each day, that is the value and respect that we placed upon them. They knew they had such responsibility and they not only risked their lives but also that of their family and loved ones – many interpreters and their families were murdered during our time. I have been impressed how these young people have been able to stand up and have such courage to do what they did. [The appellant] is a prime example of such courage and his easy going nature and willingness to get on with things will bring credit to any organisation that he works with in the future.

21    A further statutory declaration made on 6 June 2016 by a former colleague declared that the appellant’s employment as an interpreter for the ADF had “put his and his family’s life at higher risk”. The colleague said that insurgents had announced that killing an interpreter would advance Jihad (Holy War) and that any insurgent who killed an interpreter would be awarded US$10,000.

22    The appellant made further submissions in response to a further invitation issued by the Department later in 2016. Nothing turns on the content of the latter submissions for the purposes of this appeal.

THE MINISTER’S DECISION

23    The Minister provided a written record of his decision in compliance or purported compliance with s 501G of the Act. The reasons disclose that the Minister had regard to non-disclosable material that had not been provided to the appellant. The Minister said that the non-disclosable material was relevant to the question of whether the appellant passed the character test and also to the exercise of the residual discretion to refuse to grant the visa. The non-disclosable material was said to meet the definition of that phrase in s 5H of the Act. No point is taken on this appeal as to whether the information properly fell within that definition. The information is not before this Court.

24    The Minister concluded that the appellant had an association with the Taliban involving some sympathy with its suspected criminal activities. The Minister said that this “suspected association” had a negative bearing on the appellant’s character. Under the heading “Impact on Family Members” the Minister said (at [38]):

I have considered that [the appellant’s] wife and minor child are dependant applicants on his visa application, and that a decision to refuse [the appellant’s] visa would also refuse the grant of a visa to his wife and minor child.

25    The Minister went on say that he had considered the appellant’s claims that he was at risk of retribution from insurgents in Afghanistan due to his role in assisting Coalition forces. He said that in doing so he had had considered the non-disclosable information, the statements that had been made on the appellant’s behalf and open source information concerning the dangers faced by interpreters in Afghanistan. The Minister referred to the fact that the appellant had been certified as a person who was at risk and so impliedly accepted that he was a person who fulfilled the criterion in cl 201.211(1A) of the Regulations. Consistent with that certification, the Minister accepted that by remaining in Afghanistan the appellant “has a legitimate fear for his safety as a direct result of his former employment as an interpreter for the Coalition forces” (at [41] – [44]).

26    The Minister concluded:

45.    Having given full consideration to all of the information before me in this case, I found that [the appellant] does not pass the character test by virtue of subsection 501(6)(b) of the Act and he has not satisfied me that he passes the character test. I also considered the countervailing considerations in this case, including the impact on [the appellant’s] family members and the risk to [the appellant’s] safety should his visa application be refused. I found that the considerations favouring grant are outweighed by the concerns for the protection of the Australian community and the expectations of the Australian community and I have decided to exercise my discretion to refuse to grant [the appellant’s] application for an In-Country Humanitarian (subclass 201) visa under subsection 501(1) of the Act.

GROUNDS OF APPEAL

27    The primary judge found (at [52]) that the Minister had not had regard to the physical safety of the appellant’s wife and child. By a notice of contention, the Minister asserts error in that finding.

28    For reasons that will be summarised in due course, the primary judge went on to conclude (at [53] – [61]) that the failure to consider the issue did not amount to a breach of the rules of procedural fairness, nor did it amount to a constructive failure by the Minister to exercise the jurisdiction conferred by s 501(1) of the Act.

29    The first ground of appeal alleges:

The Court below erred at [53] to [61] in not finding that the Respondent Minister denied the Applicant procedural fairness, failed to undertake the statutory task and constructively failed to exercise jurisdiction by failing to take into account and consider the physical safety of the wife and child of the Applicant and evidence relevant to that matter, when deciding to refuse the visa application.

30    The second ground of appeal is expressed as follows:

The Court below erred at [59] to [60] in not finding that the Respondent Minister’s decision was legally unreasonable if, in fact, he considered the evidence and concluded that there was no relevant risk of death or injury to the Appellant’s wife and infant son.

31    As Counsel for the appellant acknowledged, the second ground raises an issue that was not articulated in the grounds for judicial review at first instance. The appellant has been granted leave to introduce the argument for the first time on the appeal. The argument now sought to be advanced is responsive in the sense that it will only arise for consideration should the Minister’s notice of contention be upheld.

THE FIRST GROUND

32    To succeed at first instance, it was necessary for the appellant to show that the Minister’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Gaudron J said at [41] in relation to an administrative tribunal:

For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be ‘an actual failure to exercise jurisdiction’. On the other hand, there is said to be a ‘constructive failure to exercise jurisdiction’ when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

(footnote omitted)

33    A failure to comply with a condition on the exercise of a power will not amount to jurisdictional error if compliance with the condition could have made no difference to the outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ).

34    In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [63], [68]. A material failure to do so may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov at [25] (Gummow and Callinan JJ), [78] (Kirby J); and see Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588 at [43], [46] – [49] (Moshinsky J) and the cases summarised therein. In Dranichnikov, the failure to consider an articulated claim signalled a basic misunderstanding of the case brought by the visa applicant, resulting in a flaw “so serious as to undermine the lawfulness of the decision in question in a fundamental way”: at [88] (Kirby J).

35    These principles apply equally to the exercise of the power conferred by s 501 of the Act to refuse to grant a visa of the kind for which the appellant applied.

36    The evidentiary material and submissions provided to the Minister in 2016 responded to an invitation extended by the Minister in the discharge or partial discharge of the obligation to afford the appellant procedural fairness. As Mason J said in Kioa v West (1985) 159 CLR 550 at [34], “The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?” Gibbs CJ said at [11] that the “fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power”. Thus, the obligation to afford procedural fairness in the exercise of the power under s 501 of the Act required that the Minister consider the material provided to him in 2016.

37    Quite apart from the rules of procedural fairness, the obligation to consider the appellant’s claims can be said to arise as a necessary incident of the Minister’s task. The content of the obligation may vary depending on the statutory context and the factual subject matter with which the material is concerned. As Allsop CJ said in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3], Markovic and Steward JJ agreeing) in relation to decisions made under s 501 of the Act:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

38    The primary judge summarised the materials before the Minister that referred to any risk to which the appellant’s family members might be exposed. Her Honour drew a distinction between the materials that predated the appellant’s marriage and the birth of his son and the materials that post-dated those events. She concluded that the pre-dating materials ought to be understood as advancing a claim about the safety of family members in existence at the time that the visa application was made, but not in relation to the appellant’s wife and child.

39    The primary judge went on to say that the submissions of the appellant’s representative in 2016 did not refer to the risk to the appellant or to his family, and (at [48]):

That being so, the extent of the information before the Minister about the applicant’s wife and child and the risk to their safety was, in addition to the notification of their inclusion in the Visa Application, comprised of the statements included in the statutory declarations of Captain Scanes, Lieutenant Colonel Hick and the applicant’s former colleague.

40    At first instance, the Minister had not gone so far as to submit that the appellant had made no claim at all about the risk to the physical safety of his wife and son. The primary judge thus proceeded “on the basis that a claim was made, albeit somewhat faintly” (at [50]). Her Honour said (at [56]) that “the issue of the safety of the applicant’s family was only referred to in a summary way”, that the matter was not the subject of “a particular document or evidence” and had not formed a “significant or central part of the submissions and evidence put forward” by the appellant to the Minister. Her Honour continued:

…  In other words, in contrast to the report and submissions thereon in Coker, the issue of safety of the applicant’s wife and child was not ‘seriously advanced’ in the material put forward by the applicant. In those circumstances the failure to consider the safety of the applicant’s wife and child cannot amount to a denial of procedural fairness in the way contended for by the applicant.

41    The primary judge said that the failure to consider the safety of the appellant’s wife and child did not otherwise amount to jurisdictional error because:

(1)    The issue was not a mandatory consideration, there being no statutory prescription of the factors which the Minister must take into account in exercising the discretion under s 501 of the Act.

(2)    The scope of what the Minister was required to consider “was entirely a matter for him” such that the relevance, if any, of the physical safety of the appellant’s family, “the extent to which it impacted on the applicant’s claims and the weight to be given to it” were matters for the Minister to determine.

(3)    The Minister’s consideration of the effect of an adverse decision on the appellant’s wife and child was neither illogical nor irrational and the failure to refer to the risk to their safety “did not make it so”. The Minister’s conclusion that the wife and child would be refused a visa could not be said to lack an evident and intelligible foundation and was open on the material before him.

(4)    The case was not one in which an adverse factual finding had been made in circumstances where an identified piece of significant evidence had been overlooked in the sense discussed in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97] – [98] and [111] – [112]. That was because there was “no single primary document which evidenced or advanced the threats to the safety of the wife and child” and because no express consideration had been given to any claim about their safety, and no adverse finding had been made in respect of it.

42    The appellant submits there is error in these conclusions in a number of respects. His submissions should be accepted.

43    The appellant clearly expressed a claim on the face of his visa application that his “family members” were exposed to a risk of harm because of the support he had provided to the ADF in Afghanistan. The appellant’s words extracted at [12] above make that plain.

44    The nature of the harm and the magnitude of the risk to which the appellant referred were significant. The appellant claimed that he and his family members were at risk of being murdered. There is unequivocal evidentiary support for the existence of that risk among the material the appellant later provided. Of its very nature, the subject matter was serious.

45    More than that, the material was to be considered in the context of all of the materials to which the Minister must have regard under s 54 of the Act, including the humanitarian claims specified on the face of the visa application itself, and the updated information the appellant had provided about his marriage and the birth of his son.

46    It is unsurprising that the materials that pre-dated the appellant’s marriage and the birth of his child did not expressly refer to his wife and child as then being among the family members who might be exposed to the risk referred to in the visa application. However, once the marriage and the birth were notified to the Minister, there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant’s wife and child were exposed. To read the visa application and the supporting materials in that way would be to divorce the materials from their essentially human context and to ignore the circumstance that the appellant had updated a part of his visa application that was no longer current, specifically by identifying who his family members then were.

47    It is true that the materials provided to the Department in 2016 in large part dealt with the question of whether the appellant passed the character test. That, too, is unsurprising. The materials provided in 2016 were responsive (although not exclusively so) to the perceived character concern that had been raised in the Department’s correspondence, and were to be understood in the context of the Department’s statement that everything the appellant had previously said or submitted would be considered.

48    As has been said, the Minister was obliged to consider the responses made at that time in the context of the claims made on the face of the visa application itself and having regard to all of the materials the appellant had provided up to the time that the decision was made: Act, s 54.

49    Among other things, the appellant’s representative sought to remind the Minister of the “moral obligation” underpinning the policy of the Australian Government to resettle those who had assisted the ADF in Afghanistan. The supporting materials contained express and unequivocal references to the risks faced by the appellant and his family members. That material ought reasonably to have been understood as furnishing proof of the factual circumstances that gave rise to the asserted moral obligation. It is not to the point that the appellant’s written statement provided in 2016 did not repeat the text of the humanitarian claim or make any express reference to the appellant’s wife or the impending birth of his son. The claimed fear of a retributive attack on the appellant’s family members had already been made on the face of the visa application. It did not require clarification, nor did it require repeating in respect of each family member.

50    Having regard to the subject matter of the claim and the nature of the feared harm, the primary judge erred in concluding that the risk of harm had only been faintly raised in the three statutory declarations of 2016 to which her Honour referred and in concluding that the claim was not seriously advanced. The practical effect of those conclusions was that the appellant had raised a claim that his parents and siblings were at risk of being murdered, but had not seriously suggested that his wife and child were exposed to the same risk. It was not open to the Minister to adopt that interpretation of the materials. It does not appear that the Minister himself adopted that distinction in any event: the reasons contain no reference at all to the risk of harm faced by any of the appellant’s family members as a result of the work he had undertaken for the ADF.

THE NOTICE OF CONTENTION

51    The primary judge said (at [52]):

… the Minister’s reasons on this issue do not refer at all to the safety of the applicant’s wife and child. That the Minister’s references to safety were confined to that of the applicant is also evident from the Minister’s conclusion, where he says that he has considered the countervailing considerations ‘including the impact on [the applicant’s] family members and the risk to [the applicant’s] safety should his visa application be refused’. That being so, I would infer that the Minister did not consider the risk to the safety of the applicant’s wife and child.

52    Counsel for the Minister advanced five propositions in support of a submission that the primary judge erred in so finding.

53    First, it is submitted that the Minister “acknowledged and treated as relevant the fact that a consequence of refusing the visa would be to refuse visas to [the appellant’s] wife and child”.

54    Second, it is submitted that the Minister treated the impact on the appellant’s family members as a relevant factor.

55    These two propositions may be readily accepted. The fact that the appellant’s wife and child would not be granted visas was identified by the Minister as an impact of the decision to refuse the appellant’s visa application. Indeed, it was the only impact to which the Minister referred.

56    Third, it is submitted that the Minister “referred to and considered the statutory declarations in which the claims regarding the risk to safety to [the appellant’s] wife and child were made”. It is true that the Minister’s reasons contained a statement (at [23]) to the effect that the statutory declarations had been read. The Minister acknowledged the appellant’s representations that “he is at risk of retribution from insurgents in Afghanistan due to his association with Coalition forces”. The Minister referred to the statements made on behalf of the appellant and accepted the appellant’s claim that he had a “legitimate fear for his safety as a direct result of his former employment as an interpreter for the Coalition forces”. The statements to which the Minister referred in this part of his reasons may be taken to include the statutory declarations in which the risk to the appellant’s family were also raised.

57    Fourth, it is submitted that the Minister had not had his attention drawn to any particular impacts on the appellant’s wife and child “other than the claimed risk to their safety”. That contention cannot be accepted. For the reasons we have given in respect of the first ground of appeal, the claimed risk could only have been understood as a risk that the appellant’s family members (including his wife and child) were at risk of being murdered in retributive acts.

58    Finally, it is submitted that the Minister gave concise reasons for refusing the visa. That is true. The reasons are brief, especially having regard to the nature of the risk to which the appellant claimed he and his family members were exposed.

59    None of these propositions disclose appealable error of the kind contended for.

60    Section 501G of the Act imposed an obligation upon the Minister to give reasons for his decision. The reasons provided do not convey any factual finding as to whether the appellant’s wife and child were at risk as the appellant had asserted. Nor do the reasons disclose any reasoning processes as to how that claim was to be evaluated against other considerations relevant to the exercise of power. Had the Minister concluded that the risk that the wife and child would be murdered by Jihadists was outweighed by the risk that the appellant might cause harm to the Australian community because of sympathetic links to the same Jihadists, the Minister could reasonably be expected to have said so.

61    To the extent that the Minister read the statutory declarations, it is apparent that there was no meaningful engagement given to the assertions made by the declarants concerning the appellant’s family. We are fortified in that view by the absence of any reference to the claimed risk under the heading “Impact on family members”. The Minister’s recognition that the appellant’s wife and child would be refused a visa does no more than to recognise the ordinary consequence of refusal of the primary application. It neither acknowledges nor grapples with the extra-ordinary circumstance that the work the appellant had undertaken with the ADF in Afghanistan was said to have placed his family members at risk of being murdered. In the statutory context of s 501G, and having regard to the subject matter of the claim, the inference fairly arises that the claim was overlooked.

62    The same may be said of the Minister’s statement to the effect that he had considered all of the materials before him. Read as whole, the reasons bely that statement: compare Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [43] – [47] (Griffiths, White and Bromwich JJ); Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [40] (Allsop CJ, Flick and Griffiths JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 [45] – [47] (French, Sackville and Hely JJ).

63    Not every failure to mention a claim advanced on behalf of a visa applicant will amount to jurisdictional error. However the omission in the present case amounts to a failure to determine a question of importance arising on the materials, namely whether the appellant’s wife and child were exposed to the risk the appellant had asserted. There was an associated failure to ask whether that risk (if it exists) furnished a reason not to refuse the visa, notwithstanding that the appellant could not satisfy the Minister that he passed the character test. It cannot be said that the outcome could have been no different had proper consideration been given to the issue. Whether characterised as a breach of the rules of procedural fairness, or as a failure to have regard to a relevant consideration or as a constructive failure to exercise jurisdiction, the error is material, and so properly characterised as jurisdictional.

64    As the notice of contention fails, it is not necessary to determine the second ground of appeal.

RELIEF

65    There should be orders allowing the appeal and setting aside the orders of the primary judge. In lieu thereof there should be orders quashing the Minister’s decision and remitting the visa application to be determined in accordance with the law.

Associate:

Dated:    14 May 2020