FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2020] FCAFC 109

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend the notice of appeal in the form of the document filed 15 May 2020.

2.    The appeal be allowed.

3.    The orders of the primary judge made on 18 November 2019, by which the appellant’s application was dismissed with costs, be set aside, and in lieu thereof it be ordered that:

(a)    The application be allowed.

(b)    A writ of certiorari issue quashing the respondent’s decision dated 28 February 2018, by which he purported to decide under s 501CA of the Migration Act 1958 (Cth) (‘the Act’) to not revoke the original decision to cancel the appellant’s visa, made on 20 June 2016 under s 501(3A) of the Act (‘the visa cancellation decision’).

(c)    A writ of mandamus issue directed to the respondent requiring him to perform his function under s 501CA(4) of the Act according to law.

(d)    The respondent pay the appellant’s costs of the proceeding as agreed or assessed.

4.    The respondent pay the appellant’s costs of this appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a single judge of this Court who dismissed an application for review of a decision by the Assistant Minister for Home Affairs (the Assistant Minister) relating to the Minister’s power under s 501CA of the Migration Act 1958 (Cth) (the Act). It is a further instance of the rapidly expanding number of decisions dealing with alleged errors by the Minister in relation to Australia’s non-refoulement obligations, insofar as they relate to the Minister’s functions under s 501CA(4) of the Act and cognate provisions.

2    A consequence of the explosion of decisions in this area is that, since the delivery of the learned primary judge’s decision, there have been a significant number of new decisions relating to the nature and scope of the Minister’s obligations under s 501CA(4), including Full Court decisions which have restated the law in critical respects. The appeal advanced before this Court was obviously founded upon grounds which reflected those which found favour with the Court in Hernandez v Minister for Home Affairs [2020] FCA 415 (Hernandez), which was also handed down subsequent to the delivery of the primary judge’s reasons. The result is that both the complexion of the matter and the legal context in which it is to be determined differ substantially from that which existed before the primary judge. Those differences underlie and explain the different result reached on appeal.

3    As a result of the serious offence committed by the appellant, the Minister was required to cancel his visa. In those circumstances, the Parliament has provided a process by which the appellant can seek to have that cancellation decision revoked. Part of that process requires the Minister (or in this case, the Assistant Minister) to properly consider the grounds raised by the appellant in support of his claim that the cancellation decision should be revoked. If, as happened in this case, the Assistant Minister fails in that task, he will not have performed his function as required by the Parliament. By setting aside the Assistant Minister’s decision, this Court does not decide whether there is or is not a reason for revoking the cancellation decision. That is solely a matter for the Assistant Minister. The Court’s function is to ensure that the Assistant Minister has complied with Parliament’s prescriptions as to the circumstances in which power is or is not to be exercised.

Background

4    There is no need to set out at any length the background facts surrounding this appeal. They have been assayed by the learned primary judge with his Honour’s customary lucidity and precision. It suffices to observe that the appellant is an Ethiopian citizen who resided in Australia pursuant to a partner visa. He committed a serious crime for which he was sentenced to 16 months imprisonment. The Minister cancelled the appellant’s partner visa on “character” grounds as is mandated by s 501(3A) of the Act. It is uncontentious that the appellant failed the character test under s 501 once he had been sentenced to a term of imprisonment of 12 months or more (see ss 501(6)(a) and 501(7)(c)).

5    The cancellation of the appellant’s visa triggered the operation of the scheme under s 501CA of the Act. In accordance with his obligation under s 501CA(3)(b), the Minister invited the appellant to make representations to him for the purpose of s 501CA(4). The appellant responded by providing substantial written representations which were more or less structured in accordance with the matters specified in Direction 65. That direction had been issued by the Minister under s 499 and it outlined the issues which would be considered for the purposes of s 501CA(4). As is discussed in more detail below, the appellant claimed in his representations that he feared persecution and harm if returned to Ethiopia and he detailed the difficult socio-political circumstances in that country. Importantly, one of the grounds which he advanced as to why the cancellation decision should be revoked was that if he was returned to Ethiopia, Australia would be in breach of its international non-refoulement obligations.

The Assistant Minister’s decision

6    Given the nature of the grounds of appeal there is no need to set out the comprehensive reasons provided by the Assistant Minister for not being satisfied of the matters in s 501CA(4)(b)(i) and (ii). For present purposes, it suffices to set out only the following:

International non-refoulement obligations

34.    As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face serious harm amounting to persecution if forced to return to Ethiopia on the basis of his Oromo ethnicity. Country information provided indicates that being of Oromo ethnicity in Ethiopia means that an individual is subjected to various forms of harm and discrimination in many aspects of their lives. [The applicant] fears that the ongoing targeting of Oromo people, and his community membership and involvement in Oromo organisations in Australia, mean that he would be targeted and subjected to persecution, serious harm and discrimination in Ethiopia if he is forced to return.

35.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] 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 non­refoulement obligations would be fully considered in the course of processing the application.

36.    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, 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 s499 of the Act (Direction 75) which, among other things, requires 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 referring the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

37.    I have also considered [the applicant’s] claims of harm upon return to Ethiopia outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non refoulement obligations, he would face hardship arising from his Oromo ethnicity were he to return to Ethiopia.

7    The material before the Court evidenced that the Assistant Minister’s reasons had been prepared by the Department of Home Affairs and were an attachment to a briefing note also prepared by the Department. Whilst such a process has often been accepted as necessary for administrative efficacy, this and other recent cases demonstrate the danger of the Department formulating and replicating for a Minister’s adoption, pro forma wording for critical parts of his decisions. That is especially so when those critical parts are usually factually idiosyncratic.

The decision of the primary judge

8    Before the learned primary judge the following grounds (with emphasis added) were advanced:

Ground 1:    The Minister misunderstood the Act or its operation in concluding or assuming that certain claims made by the applicant would “necessarily” be considered in the event that the applicant was to make an application for a protection visa.

Ground 2:    Further or alternatively, the Minister misunderstood the Act or its operation in concluding or assuming that the applicant’s claims would be considered in the same manner in any application for a protection visa.

Ground 3:    Further or alternatively, the Minister misunderstood the Act or its operation in concluding or assuming that Australia’s non-refoulement obligations with respect to the applicant would be considered in the event that the applicant made an application for a protection visa.

9    His Honour rejected each of these grounds. Although the nature and emphasis of the case altered on appeal, it is necessary to precis his Honour’s reasons so that some correlation can be made with the issues which are considered in these reasons.

10    His Honour first dealt with ground 3 on the basis that it was the first argued before him. It had been submitted that the Minister had made an error of law because he had assumed that Australia’s non-refoulement obligations were the same as, or covered the same territory as, the criteria for a protection visa under s 36(2)(a) of the Act. Before his Honour, this issue appeared to develop into a question about whether the requirements for a person to be a refugee under the Convention were relevantly co-terminous with those in s 36(2)(a), particularly in light of the “internal relocation principle”. It had been submitted that this principle was narrower in its operation in s 36(2)(a), such that the Minister erred in concluding that Australia’s non-refoulement obligations (and with them the broader internal relocation principles) would be fully considered at the same time as any protection visa application. The learned primary judge determined that if there had been an error of law, it was not material. His Honour dealt with the arguments advanced to him concerning the relevance of the internal relocation principle and concluded that as it was not raised on the material before the Assistant Minister, it did not constitute a ground to be considered by him, the material and findings made left no room for its consideration and, in any event, there was no possibility that any such error could have altered the outcome. This ground as it was advanced before the primary judge was not advanced on appeal. As argued before this Court the appellant submitted that the error by the Assistant Minister was in failing to consider Australia’s non-refoulement obligations and additionally or alternatively, wrongly assuming that they would be considered on an application for a protection visa. As a result, the issue of the internal relocation principle largely dissipated on appeal.

11    The second ground as dealt with by the primary judge, ground 2, was that the Minister erred in concluding that the issue of Australia’s non-refoulement obligations would be treated in the same way for the purposes of s 501CA(4) as it would be on an application for a protection visa under s 65, such that it was permissible to defer consideration of those obligations until any subsequent consideration of a protection visa application. The primary judge also rejected this ground. In doing so his Honour relied upon the observations of Robertson J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18), where it had been found that the Minister had not erred when exercising the power under s 501BA(2) by failing to consider a claim because he had, in fact, considered the risk of harm which the applicant would suffer if returned to a receiving country. Similar wording to that used by the Assistant Minister in the present case had been used in DOB18 in relation to the findings on hardship. The learned primary judge found that the issuing of Direction 75 (which is discussed below) overcame one of the difficulties referred to in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16) and that, as the Assistant Minister considered the risk of harm to the appellant, albeit outside the question of Australia’s non-refoulement obligations, following DOB18 no error was exposed.

12    Ground 1, which was considered last by his Honour, was that the Assistant Minister erred in assuming that certain of the appellant’s claims would necessarily be considered on an application for a protection visa. In reliance on the recent decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279 (Omar (first instance)) it was submitted that the Assistant Minister had failed to comply with the statutory requirement of taking into account the grounds advanced by the appellant in his written representations to the Minister. The learned primary judge concluded that the issuing of Direction 75, which prescribed the order in which matters were considered on a protection visa application, overcame the risk that non-refoulement obligations would not be considered. His Honour then relied upon the decision of Anderson J in GBV18 v Minister for Home Affairs [2019] FCA 1132 (GBV18) to the effect that Omar (first instance) should not be followed and further that, in accordance with DOB18, the fact that the Minister had considered the appellant might suffer harm if returned was a sufficient consideration of his claim. Subsequent to the delivery of judgement by the primary judge, the decision in GBV18 was overturned: GBV18 v Minister for Home Affairs [2020] FCAFC 17 (GBV18(FC)).

Appeal to this Court

13    The appellant sought leave to amend the Notice of Appeal. The proposed amendments did not seek to raise additional factual matters. There was no objection to the granting of leave and it ought to be granted.

14    The manner in which the amendments were made to the Notice of Appeal rendered it somewhat obscure and difficult to follow. Each of the three grounds is in the same terms being:

The Court erred in failing to find that the Assistant Minister failed to carry out his statutory task by failing to consider a reason claimed by the appellant as to why the cancellation decision should be revoked, misunderstooding [sic] the Act or its operation in making his decision, or reasoning irrationally.

15    However, the particulars of each ground develop a distinct, albeit not entirely separate, issue. As best as can be ascertained from those particulars, the grounds of appeal are:

(1)    Ground 1.    The primary judge erred in failing to find that the Assistant Minister failed to consider a ground raised in the appellant’s representations as to why the cancellation decision should be revoked, being that his removal from Australia to Ethiopia would expose him to harm and would result in Australia breaching its international non-refoulement obligations. Instead, the Minister thought it unnecessary to consider this ground because he wrongly assumed that such an issue would necessarily be considered in any protection visa application which the appellant would make. This basis for not considering the ground was irrational. In these reasons this is referred to as the, “Failure to Consider Ground”

(2)    Ground 2.    The primary judge erred in failing to find that the Assistant Minister misunderstood the operation of the Act by assuming that Australia’s non-refoulement obligations would be considered in the same way if the appellant applied for a protection visa, when in fact the consideration of Australia’s contravention of its non-refoulement obligations is different as between the exercise of the discretionary revocation power in s 501CA of the Act and the determination of a visa application under s 65 of the Act. Alternatively, the Minister’s reliance on the consideration of the non-refoulement obligations in a subsequent visa application determination was illogical. This is referred to as the, “The Identical Manner of Consideration Ground”; and

(3)    Ground 3.    The primary judge erred in failing to find that the Assistant Minister erred in assuming that Australia’s non-refoulement obligations would be fully considered on any subsequent protection visa application, whereas only the criteria (and not Australia’s non-refoulement obligations) may (but will not necessarily) be considered in the event that the appellant applies for a protection. Alternatively, the Minister’s reliance on the expected consideration of non-refoulement grounds was irrational. This is referred to as the “Absence of Full Consideration Ground”.

Legislation and related concepts

The Minister’s power to revoke a cancellation decision

16    Central to this appeal is s 501CA, which provides:

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.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

  (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

 (6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

The Minister’s power to grant protection visas

17    The granting of a protection visa requires the interaction of the general power to grant visas in s 65 and the criteria for a protection visa under s 36.

18    Section 65 relevantly provides:

Decision to grant or refuse to grant visa

(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

   (i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

19    Section 36 sets out the criteria which have to be met for the purposes of the granting of a protection visa:

Protection visas – criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(2) A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

…

20    Section 36(2)(a) uses the word “refugee”, which is defined by s 5H:

Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality — is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality — is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

(2)     Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

21    The expression “well-founded fear of persecution” as it is used in s 5H is defined by s 5J, which provides, inter alia:

Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

22    The subsequent subsections of s 5J qualify and limit the range of persons who would qualify as a refugee under the Act.

Australia’s non-refoulement obligations

23    Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:

non-refoulement obligations includes, but is not limited to:

(a)     non-refoulement obligations that may arise because Australia is a party to:

   (i)     the Refugees Convention; or

(ii)     the Covenant [being the International Covenant on Civil and Political Rights]; or

  (iii)     the Convention Against Torture; and

(b)     any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

24    The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100] – [113]. In summary and relevantly for the purposes of this matter:

(a)    The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:

Article 33

PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

1.    No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(b)    In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.

(c)    In the Act, the concept of “non-refoulement obligations” is not limited to those obligations which arise under the Convention and includes obligations arising under other international treaties and international law. It is not confined to protection obligations which arise under s 36(2) of the Act (at [103]).

(d)    Although the term “non-refoulement obligations” has been used interchangeably with the term “protection obligations” as used in s 36(2)(a) of the Act, the two do not truly compare as Australia’s non-refoulement obligations under international law are wider and more comprehensive than those which are given domestic force by s 36(2) (at [103] to [104]).

(e)    The internal relocation principle applies in the consideration of the non-refoulement obligations, but it is not relevant to the determination of whether a protection visa should be granted under s 36(2)(a) (at [113]).

25    In general terms, the Full Court in Ibrahim held that Australia’s international non-refoulement obligations extend to obligations under treaties other than the Refugee Convention and that the scope of protection inherent in the s 36(2)(a) criteria is narrower than that afforded by the Refugee Convention itself.

26    On the day prior to the hearing of this appeal, the Full Court (Kenny, Wheelahan and Anastassiou JJ) handed down its decision in APE16 v Minister for Home Affairs [2020] FCAFC 93 (APE16) in which the role of the internal relocation principle in the fulfilment of Australia’s non-refoulement obligations was considered. For the purposes of the present matter, the Court observed that s 36(2)(aa) was introduced to give effect to Australia’s non-refoulement obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia on 13 August 1980; and the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991): see SZTAL v Minister for Immigration (2017) 262 CLR 362 (SZTAL) at 365 [1] per Kiefel CJ, Nettle and Gordon JJ, 377 [43] per Gageler J, and 384 – 388 [69] – [79] per Edelman J. The Full Court subsequently said (at [47] – [48]):

The internal relocation principle is applicable to the Convention definition of “refugee”. That definition had been drawn into Australian law by s 36(2)(a) of the Migration Act until its repeal and replacement by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth). Under the internal relocation principle, “a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [21] (French CJ, Hayne, Kiefel and Keane JJ). That is because, “[i]f a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee”: SZSCA at [23]. See also: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [11]-[22] (Gummow, Hayne and Crennan JJ).

In this case, we are not concerned directly with the Convention principle of internal relocation, but with the terms of s 36(2)(aa), (2A), and (2B) of the Act. Nonetheless, the text of those provisions is to be construed in context, and consistently with legislative purpose: SZTAL at [14] (Kiefel CJ, Nettle and Gordon JJ); see also the observations of Allsop CJ in FCS17 v Minister for Home Affairs [2020] FCAFC 68 at [2] and [7]. The purpose of s 36(2)(aa) is to give effect to Australia’s international non-refoulement obligations. Apart from the references to the relevant Conventions in the Explanatory Memorandum to the 2011 Bill, there is textual support for this purpose in s 36(2)(aa) itself, because it refers to “protection obligations”. Section 36(2B)(a) of the Act may therefore be taken to be informed by, and to give effect to, a principle akin to the principle of internal relocation, which was well-established at the time of the 2011 amending Act.

27    On one view it might be thought that the Full Court was intimating that s 36(2)(aa) did give full effect to Australia’s international non-refoulement obligations, however, the extent to which Australia met those obligations was not in issue before the Court. The better construction of what their Honours were saying is that the purpose of s 36(2)(aa) was to fulfil those obligations to the extent to which Australia was prepared to do so. Such a view is supported by the Full Court’s reference to the High Court’s decision in SZTAL, in which it was accepted that the scope of that section was narrower than the protection afforded by the Convention Against Torture because the definition of “cruel or inhuman treatment or punishment” in the Act included the added requirement that it was intentionally inflicted.

28    Ultimately, it was not contended on behalf of the Minister that s 36(2) of the Act accorded a coverage of protection which was coterminous with that which Australia had covenanted to provide under the international treaties into which it had entered. The necessary consequence is that its international obligations of non-refoulement extend to refraining from relocating a class of persons which is wider than those to whom protection visas might be granted under the Act.

The relevance of the internal relocation principle

29    In the reasons of the learned primary judge the operation of the “internal relocation principle” was significant to the grounds agitated before him. Due to the changes in the issues on which this matter now turns, that importance had diminished, although it remains tangentially relevant to some of the issues of law now raised.

30    The internal relocation principle is that a person who may be persecuted in one part of his home country may not be regarded as a refugee if there is an area in their country where they would not have a well-founded fear of persecution and to which the person could, “in all the circumstances”, reasonably be expected to relocate: Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (SZSCA) at [23], [26]; CRI028 v Republic of Nauru (2018) 356 ALR 50 at [23]. Although there is no express exception to this effect in the Convention, it has been held that the principle nevertheless applies when determining whether a person is a refugee under it: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

31    To a degree, a similar principle is incorporated into the complementary protection criteria: s 36(2B)(a) of the Act. However, for the purposes of s 36(2)(a), the principle is modified such that a person will not be a refugee unless they have a well-founded fear of persecution in all areas of a receiving country. If a person does not have a well-founded fear in some parts of that country they will not meet the criteria of s 36(2)(a) even if it can be demonstrated that it is not reasonable that they relocate to one of those areas. Consequently, the scope of the concept of “refugee” under the Convention is broader than the criteria in s 36(2)(a) because, under the former, a person would not need to show that they were persecuted in all other parts of their country, only that they could not reasonably be expected to relocate to those other parts.

32    In Ibrahim (at [113]) it was said that the internal relocation principle did not apply to the application of s 36(2)(a). To the extent that means that the principle as articulated in SZSCA was not part of the statutory test, that conclusion is correct.

33    The differential application of the internal relocation principle is potentially relevant to the present case for two reasons. First, it further demonstrates that the protection coverage afforded by the Act is narrower than that of the Convention with the consequence that the Act does not completely fulfil Australia’s obligations under the Convention. Second, before the learned primary judge it was submitted, in reliance on the decision in Ibrahim, that the differential operation of the internal relocation principle as between the Convention and s 36(2)(a) was not recognised and appreciated by the Assistant Minister, who had wrongly assumed that they were relevantly the same in the sense that they would both be considered on an application for a protection visa.

34    However, in relation to the second point, it was submitted on behalf of the Minister that Ibrahim was distinguishable because, in that case unlike the present, the question of the possibility of internal relocation was raised such that any assumption about the equivalence of operation of the Convention and s 36(2)(a) as to whether the appellant was a refugee would have been erroneous. It might follow that if the only error in this case was the Assistant Minister’s conflation of non-refoulement principles with the protection obligations in s 36(2)(a), the Minister’s submission that no “material” error occurred might be accepted. The primary judge was correct to conclude that no issue was raised by the appellant in his representations to the effect that the internal relocation principle operated with the result that the appellant could have been found to be a refugee under the Convention but not under s 36(2)(a). The material before the Assistant Minster only raised the proposition that the appellant would be persecuted in the whole of Ethiopia due to his Omero ethnicity.

35    However, as mentioned earlier, the complexion and emphasis of the issues on appeal are significantly different to those considered below. On appeal the focus was upon the inability of the Assistant Minister to defer for later consideration a ground advanced in support of a decision that the visa cancellation be revoked. Before the primary judge the focus was whether the ground advanced would be properly, fully and equivalently considered on the deferred occasion.

Consideration

The non-satisfaction of the subjective jurisdictional fact in s 501CA(4)(b)

36    In a letter of 28 February 2018, to the appellant, it was stated that “the Assistant Minister decided under s 501CA(4) of the Migration Act, not to revoke the original decision”. That statement reflected the Assistant Minister’s conduct in indicating his preference from the list of options given to him on the first page of the Department’s submission by circling the words “not revoke”. However, that purported exercise of power is wholly inconsistent with the Assistant Minister’s statement in his reasons (also prepared by the Department) that the power in s 501CA(4) had not been enlivened.

37    Those reasons do not relate to any purported exercise of power under s 501CA(4) by the Assistant Minister. On the contrary, they were a written explanation as to why he concluded his power to revoke the cancellation decision was not enlivened. Whilst he identified that the appellant had made representations to him as to why the cancellation decision should be revoked such that subs (4)(a) was satisfied, he was not satisfied of either of the matters in subs (4)(b). Having ascertained the non-fulfilment of that sub-section, he concluded that the facts on which his power in s 501CA(4) to revoke the cancellation decision were conditioned did not exist. That had the result that the appellant’s partner visa remained cancelled.

38    Putting aside for present purposes the purported decision not to revoke, the substance of this case is whether the Assistant Minister’s administrative function of forming a state of satisfaction as to the existence of “another reason” why the cancellation decision should be revoked, was properly fulfilled.

Structure and operation of s 501CA

39    By the structure of s 501CA(4) the Parliament has granted to the Minister a discretion to revoke the cancellation decision (in the chapeau to subs (4)), upon the satisfaction of the matters in subs (a) and subs (b). Those matters are “jurisdictional facts”, which is an expression explained by the High Court in Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43]:

Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

40    The jurisdictional fact in subs (4)(a) is something which might be objectively ascertained (an objective jurisdictional fact). In this case the Minister made the observation that the appellant had made representations about the revocation of the original decision. That was not something of which he was required to be satisfied. It was merely an event which needed to occur and its existence or otherwise would always be open to full merits review.

41    The matters in subs (4)(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister was satisfied that either existed. By his reasons the Assistant Minister recorded that he was not satisfied that the appellant passed the character test and, nor was he satisfied that there was “another reason why the original decision should be revoked”. The consequence was that the power in the chapeau, which was conditioned on the satisfaction of the jurisdictional facts in subs (a) and (b), was not enlivened.

42    The shielding of jurisdictional facts from curial review by interposing a subjective deliberation on a matter is a long established legislative drafting technique: The Council of the Municipality of Bankstown v Fripp (1919) 26 CLR 385 at 403, acknowledged by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 651 [130], and repeated by his Honour with McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at 1175 [54]. Although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be “reviewed” are limited. An early identification of those grounds was undertaken by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs) at 360. Those grounds have been added to and refined over the years: MacCormick v Federal Commissioner of Taxation (1945) 71 CLR 283; Buck v Bavone (1976) 135 CLR 110 at 118–119 per Gibbs J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS); EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681. Despite that elaboration in the later cases, the principles on which subjective jurisdictional facts may be reviewed are nevertheless generally referred to as “Avon Downs principles”. That being said, where the state of mind on which the operation or exercise of a provision or power is conditioned is vitiated by an Avon Downs error, any subsequent purported exercise of power will necessarily be affected by jurisdictional error: S20/2002 at 1176 [59].

43    A noteworthy characteristic of s 501CA(4) is the translocation of the substantive deliberative process relating to the revocation of the cancellation decision to the subjective jurisdictional fact stage. That is, on what appears to be the generally accepted view of the section’s operation, the legislature has incorporated the deliberative process in relation to whether the cancellation decision should be revoked, into the Minister’s function of forming the identified state of mind. It is not, as might otherwise be the case, made part of the discretion conferred upon the Minister. That is reflective of the structure of s 65 of the Act, being the power to grant visas: Eshetu at 654 – 655; S20/2002 at 1176 [59] – [60]; SZMDS at 624 – 625; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at 188 – 189 [34]. A difficulty with this approach is that the “confusion of thought” referred to by Gummow ACJ and Kiefel J in SZMDS at 624 [39], easily arises on any application for review. Too frequently defects in the formulation of the state of mind are advanced as being “jurisdictional errors” rather than errors of the type that might vitiate a state of mind which is the essential requirement of a subjective jurisdictional fact. In other words, resort is had to jurisdictional error principles rather than the “Avon Downs principles”.

44    A consequence of translocating the deliberative process into the antecedent jurisdictional fact stage is the necessary incorporation of implicit procedural requirements to facilitate decision making. In many instances of subjective jurisdictional facts, the subject matter of the state of mind is of a functional nature or limited to simple factual matters. However, in the case of s 501CA(4) the incorporation of a substantive deliberative process has the consequence that the process of forming the relevant state of mind incorporates certain implied statutory requirements. Prima facie, the function of forming a state of mind for the purposes of s 501CA(4)(b) is unconfined. However, s 501CA(3) requires the giving of notices and information to the affected person as well as the making of an invitation to make representations about the revocation decision. Section 501CA(4) may only ever become operative if, in accordance with subs (a), the person affected makes representations in accordance with that invitation. Although it is not expressly stated in subs (b) that relevant factors that the Minister must consider in forming his state of satisfaction or otherwise are the claims made in the representations, that conclusion is a necessary inference. The principles of interpretation or construction which are used to identify those factors which the person forming the state of mind is required to consider are not dissimilar to those found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30, concerning the identification of relevant or irrelevant considerations for the exercise of discretions: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 270 [54]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 at [184] – [187]. If “by implication from the subject-matter, scope and purpose of the Act” the repository of power is required to consider a factor in forming the required state of mind, any putative state of mind formed without considering it would be vitiated.

45    It would follow that a failure by the Assistant Minister to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind.

46    The above identification of the operation of s 501CA(4) derived from general principles accords with the observations in the recent decision of the Full Court (Flick, Griffiths and Moshinsky JJ) in GBV18(FC). There the Court (at [31] – [33]) addressed the issue of the structure of s 501CA(4) in detail and, in particular, identified what the Parliament has impliedly mandated is to be taken into account in the formation of the required state of mind. Their Honours’ observations are important for a number of issues in this case and it is appropriate to set them out in full:

31     The key relevant principles with reference to ground 3 may be summarised as follows:

(a)     Representations in response to an invitation under s 501CA(3)(b) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described (see, for example, Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 at [139] per Robertson, Moshinsky and Bromwich JJ).

(b)     In DOB18 v Minister for Home Affairs [2019] FCAFC 63, the majority (Robertson J, with whom Logan J agreed) said at [185]-[186] (emphasis added):

… In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.

In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2).

To similar effect, see Goundar at [53]-[54] per Robertson J (noting again that specific reference was made to Goundar in the VLA submissions dated 7 April 2017).

(c)     The representations play a central role in the relevant statutory regime, whether the decision-maker be the Minister, a delegate or the AAT. The statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the decision-maker’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561 at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material presented in the representations. The same applies to a case where the AAT is conducting a review of a Ministerial delegate’s decision under s 501CA(4).

(d)     The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.

(e)     In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the decision maker has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin, constitutes “another reason” (see BCR16 at [70]-[73] per Bromberg and Mortimer JJ).

(f)     While it may have been open to the AAT in Omar ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not “another reason” for revoking the visa cancellation, the AAT was nevertheless obliged to give meaningful consideration to the representations on this issue. As Colvin J stated in Viane at [67]- [68] in the context of the Minister’s statutory task under s 501CA(4) (which also applied to the AAT):

67. In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.

68. Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

32     Omar also provides helpful guidance on what is meant by the obligation of a decision-maker to “consider” a matter in the context of a judicial review (see at [35]-[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows.

(a)     Even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

(b)     Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.

(c)     The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(d)     The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added):

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] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [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.

(e)     Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law”.

(f)     The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)     A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to reemphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

(h)     Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

47    Similar observations were recently made by Charlesworth J in Hernandez and by the Full Court in DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [23] – [35]. Relevantly, in Hernandez, Charlesworth J added (at [577]) that the failure to comply with the requirement to take a relevant factor into consideration will not satisfy the materiality threshold unless it is shown that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31]; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] per Kiefel CJ, Gageler and Keane JJ.

48    The substance of the obligation to take into account a relevant factor, particularly in the context of the power in s 501CA(4), was also recently discussed by Wigney J in BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCAFC 94 (BHL19(FC)) (albeit dissenting in the result in that case), where his Honour said at [169]:

As was made clear most recently by the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188 at [37], the Minister is obliged to engage in an “active intellectual process with significant and clearly expressed relevant representations” in the context of a decision to cancel or refuse a visa. Depending on the nature and content of the representations, the Minister may also be “required to make specific findings of fact” in relation to the matters raised in the representations: Omar at [39]. It is not sufficient for the Minister to merely “note” the representations, or state that they had been considered or taken into account: Omar at [43]; see also AEM20 v Minister for Home Affairs [2020] FCA 623 at [100]. The failure to consider, in a relevant legal sense, significant matters raised clearly by a person in the appellant’s position will amount to a “failure to conform with the Act” or a failure to “carry out the relevant statutory function according to law”: Omar at [45].

49    A failure to properly take into account or have regard to a claim raised by the person in their representations will necessarily have the consequence that one of the Avon Downs errors has occurred, such that, if the error was material, the putative state of mind formed by the Minister will be vitiated: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at 547 [72] per Colvin J.

Authorities relevant to the issues under consideration

50    The operation of s 501CA(4), particularly in relation to the Minister’s obligations to consider non-refoulement obligations, has been the subject of a number of recent authorities, some post-dating the primary judge’s reasons. The issues which have arisen from the authorities have been evolving at a significant rate, and it is necessary to provide some explanation of those issues in the context of the recent case law. Unlike the learned primary judge, this Court has had the advantage of considering the perspicuous analysis of Moshinsky J in DGI19 v Minister for Home Affairs [2019] FCA 1867 (DGI19) (discussed in detail below), as well as the analysis of other decisions handed down since the primary judge provided his reasons and, in particular, the Full Court authority of GBV18(FC).

51    There are substantial variations in the analyses found in the numerous authorities surrounding the issues which arise in this case. Although the authorities deal with generally similar issues, the reasoning is sometimes specific to the particular factual circumstances of the case and, in particular, the manner in which the Minister or his delegate has dealt with any ground raised concerning Australia’s non-refoulement obligations. As the cases demonstrate, over time, the pro-forma words used by the Minister in relation to Australia’s non-refoulement obligations in determinations under s 501CA(4) (or any cognate provision), have altered so as to accommodate the several decisions of this court and of the High Court. This changing form of the Minister’s standard wording diminishes the importance of some of the authorities which have been relied upon. Further, many of these cases concerned whether the Minister or his delegate took into account the grounds advanced as to why it should be concluded that there was another reason why the cancellation should be revoked. Necessarily, the veracity of the Minister’s conclusion will depend upon the nature and scope of the representations made to him and the grounds raised therein in the particular case.

BCR16 v Minister for Immigration and Border Protection – 13 June 2017

52    The decision in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16) was relied upon heavily by the appellant. It was submitted that in that case, in circumstances not dissimilar to the present, the Court detected two errors made by the Assistant Minister being:

(1)    First, a misunderstanding that non-refoulement obligations would necessarily be considered in the event that the appellant made an application for a protection visa; and

(2)    Second, that the subject of the appellant’s representation as to the applicability of the non-refoulement obligations could, in their entirety, be met by the availability to the appellant, on application, of a protection visa.

53    Underpinning the first point was that the process in s 65 of the Act for the granting or non-granting of, inter alia, a protection visa, involved the satisfaction of several specific criteria, including the protection obligation criteria in s 36(2), but there was no obligation to consider them in any particular order. That being so, a decision maker may have concluded that they were satisfied that an applicant was excluded by one of the several ineligibility criteria with the consequence that the visa would be refused without any consideration ever having been given as to whether the applicant satisfied the protection obligations criteria in s 36(2). Accepting this the Court held that the Assistant Minister had made an error of law in assuming that Australia’s international non-refoulement obligations would be considered on a visa application.

54    The Full Court also identified a further error of law in the reasons of the Assistant Minister. In the course of their reasoning the majority stated at [48] – [49]:

48    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.

49     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.

55    In the above two paragraphs the Court made two distinctions between the processes in s 65 and s 501CA(4). The first was that the power in s 501CA(4) was a discretionary one whereas in s 65 the question involved whether the decision maker had reached a required state of satisfaction. The second was that in s 65 the question is whether certain specific criteria have been met, whereas under s 501CA(4) the consideration is qualitatively different in that the standard of “another reason” is malleable and the material considered is not judged against specific criteria. As is identified below, the first is not correct but the second is and it has been adopted in subsequent decisions.

56    The decision in BCR16 was approved of and applied subsequently in Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 (BHA17). There the Court (Robertson, Moshinsky and Bromwich JJ) rejected a submission that BCR16 was plainly wrong. In that case their Honours applied the decision to the circumstances of the case before them on the basis that it was an error by the Minister in the making of a non-revocation decision under s 501CA(4) to assume that in a subsequent consideration of an application for a protection visa by a person, Australia’s non-refoulement obligations will necessarily be considered.

57    It is to be observed that in neither of these two decisions did the appellant raise the more fundamental issue of whether the Minister was entitled to defer consideration of a ground raised for the purposes of s 501CA(4) to a later occasion.

Direction 75 – 5 September 2017

58    The Commonwealth sought to overcome some of the difficulties raised by the decision in BCR16 by the issuing of Direction 75 under s 499 of the Act. That direction effectively requires, in the determination of a protection visa application, that consideration first be given to the protection grounds in s 36(2) “before considering any character or security concerns”. This was intended to overcome the conclusion in BCR16 that it was possible, on the determination of a visa application, that the visa might be refused before consideration had been given to the protection criteria. However, as Mr Wood for the appellant submitted, Direction 75 was not a panacea for all the problems arising from the Assistant Minister assuming that Australia’s non-refoulement obligations would be considered if the applicant applied for a protection visa. He submitted that:

(a)    The Direction only applies to delegates and not to Ministers or Tribunals;

(b)    The Direction only requires the delegate to consider the ineligibility criteria under s 36(1C) and s 36(2C) after the protection grounds. It will not prevent an applicant’s visa application being rejected on health grounds (cl 866.223 – 866.224B of sch 2 of the Regulations), the public interest criteria (cl 866.225 of sch 2 of the Regulations) or the national interest criteria (cl 866.226 of sch 2 of the Regulations) before the protection criteria are considered.

59    The effectiveness of Direction 75 and its ongoing relevance to the operation of s 501CA(4) is considered later in these reasons.

Omar v Minister for Home Affairs – 7 March 2019

60    The reasoning accepted in BCR16 was further considered by Mortimer J in Omar (first instance). That case also concerned a cancellation of a visa under s 501(3A) and a decision not to revoke the cancellation pursuant to s 501CA(4). Importantly, the Assistant Minister’s decision in that case post-dated the introduction of Direction 75 which, it was submitted, had the effect of negating any similar errors to those identified in BCR16; being the erroneous assumption that non-refoulement obligations would “necessarily” be considered on an application for a protection visa. Mortimer J accepted that Direction 75 may have altered the manner in which protection visas would be considered but, nevertheless, held the decision making process under s 65 “is not a substitute for consideration of non-refoulement under s 501CA”. The essence of her Honour’s conclusions were succinctly summarised by Moshinsky J in DGI19 (at [56]) as follows:

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 to their role as, in effect, incidents of one criterion (the ‘protection criterion’) in the requirements for the grant of a protection visa”: Omar at [43]; see also [44]-[45]. Her Honour held 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)”: Omar at [46].

61    Mortimer J also highlighted the common misapprehension that Australia’s non-refoulement obligations would be considered on the determination of an application for a protection visa. Her Honour correctly observed that not dissimilar issues relating to whether Australia owes such obligations may be determined on that application but subject to several statutory modifications. However, at no point will the obligations in Art 33 of the Convention be considered and nor will Australia’s obligations under other treaties.

62    Subsequently, her Honour identified the particular manner in which the non-refoulement obligations were relevant to the Assistant Minister’s decision (at [59]):

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.

And further at [66] her Honour said:

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.

63    In the result, the Assistant Minister’s misunderstanding of the manner in which non-refoulement issues were relevant to the two different statutory functions meant that he failed to consider a matter which was relevant to the formation of his satisfaction in s 501CA(4). For that reason the statutory task was not fulfilled.

64    An appeal was made from Mortimer J’s decision at first instance, however the Full Court, in dismissing the appeal, did not need to deal with the issue 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 to their role as, in effect, incidents of one criterion (the ‘protection criterion’) in the requirements for the grant of a protection visa”: per Moshinsky J in DGI19 at [59].

65    In DGI19, Moshinsky J concluded that he was bound by the decision in Omar at first instance unless it was plainly wrong and he did not consider that to be the case.

DOB18 v Minister for Home Affairs – 18 April 2019

66    The decision of the Full Court in DOB18 assumes some significance on this appeal as it was applied by the learned judge below. There, the appellant had been the holder of a visa which was functionally the equivalent of a protection visa. It was cancelled under s 501(3A) of the Act, but that decision was revoked by a decision of the Administrative Appeals Tribunal. The Assistant Minister considered whether to set aside the revocation decision and substitute it with a decision to cancel the visa. The appellant claimed that, although he failed the character test, he had been recognised as a refugee and feared that he would be harmed if he was forced to return to his country. Nevertheless, the Assistant Minister cancelled the appellant’s visa. In the often used proforma words it was said that it was “not necessary” to determine whether non-refoulement obligations were owed in respect of the appellant because the appellant would have those claims fully considered if he applied for a protection visa. The appellant claimed that by engaging in this approach the Minister committed a jurisdictional error because the non-refoulement obligations might not be considered on an application for a protection visa, and that the Minister did not understand that non-refoulement obligations had a different role or were considered in a different context for the purposes of s 501BA as compared to a protection visa.

67    In his reasons, Robertson J (with whom Logan J substantially agreed) specifically noted that the issues which were raised in BCR16 did not arise in the case before him. It was not, in that case, claimed that the Minister failed to take into account a relevant consideration or had misunderstood the law as to how the non-refoulement obligations would be taken into account on an application for a protection visa.

68    In relation to the issue of the application of Direction 75, Robertson J rejected the proposition that in his reasons the Minister had erred in assuming that non-refoulement obligations would necessarily, as a matter of law, be considered on any future protection visa application (at 678 [166]). His Honour also found that, although the Minister was not bound by Direction 75, it had not been shown to be likely that he would personally consider any such application and, in any event, the form of words used in the case before him were different to those used in BCR16.

69    With respect to the substantive issue raised in that matter, his Honour held that the Minister had accepted that the appellant would suffer harm and would be in “very real danger” if he was forced to return to Pakistan, and his Honour acknowledged that if that matter, which had been raised for the Minister’s consideration, had not been addressed, the Minister would not have fulfilled his statutory task. As it was, the Minister took the ground raised in the representation into account. His Honour further held (at 681 [185]) that there existed a very real difference between harm or the risk of harm and hardship on the one hand and considering whether if the appellant had made an application for a protection visa, non-refoulement obligations would be considered. In relation to Omar, his Honour observed that the ground which was upheld in that case was the Minister’s failure to engage with the representation made by the appellant about “another reason” as to why the cancellation decision should be revoked. That representation was that Australia would be in breach of its non-refoulement obligations if he was returned to the receiving country. In relation to the decision in Omar his Honour said (at 682 [189]):

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.

70    In that respect his Honour noted that the matter before him turned on the “nature and content of the submissions made to the Minister on behalf of the applicant” (at 682 [190]). His Honour then turned to the decision in BCR16 and concluded (at 682 [191]) that the error which arose in that case existed because the Minister had failed to undertake any consideration of the risk of harm to the appellant which had been raised by him other than to observe that consideration of non-refoulement obligations would occur if an application for a protection visa was made. His Honour also referred to BHA17 which had rejected a submission that BCR16 was plainly wrong, but had done so on the ground referred to as “the first misunderstanding” being that the Minister had incorrectly assumed that the non-refoulement issue would be considered in the event that the applicant made an application for a protection visa. His Honour concluded (at 682 – 683 [193]):

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.

71    Robertson J’s conclusion in DOB18 might be accepted as far as it applies in the case before him, which involved the exercise of a discretionary power in s 501BA and circumstances where the issue of Australia’s non-refoulement obligations was not raised and, therefore, did not need to be taken into account. It is apparent that his Honour was intending that his remarks were confined to those circumstances. As is discussed below, it is difficult to now accept the correctness of this decision to the extent it stands for a more general proposition that Direction 75 necessarily remedies the “first misunderstanding” identified in BCR16.

Sowa v Minister for Home Affairs – 28 June 2019

72    Both parties also referred to the Full Court decision in Sowa v Minister for Home Affairs [2019] FCAFC 111 (Sowa). That was also a case where the appellant’s visa had been cancelled under s 501(3A) and he made representations to the Minister seeking the making of a decision revoking the earlier cancellation. The applicant, who was from Sierra Leone, submitted that the country was unstable and violent, that his father had been killed and his family members were involved in human rights and political activities such that their enemies would seek to harm him if he was to return there. The Assistant Minister was not satisfied for the purposes of s 501CA(4) that the appellant passed the character test or that there was another reason why the cancellation decision should be revoked. Relevantly for the purposes of the present discussion, the pro forma wording of the decision (which had evolved slightly since Omar (first instance) included the following:

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.

73    In considering the decision in Omar (first instance), the Court (Jagot, Bromwich and Thawley JJ) recognised the essential importance of the nature and content of the submissions made to the Assistant Minister under s 501CA and, in particular, that in Omar they raised the existence of Australia’s non-refoulement obligations as the foundation for “another reason” why the original decision should be revoked. The Court identified that in Omar, Mortimer J had found the Assistant Minister had failed to properly examine at the time of the exercise of power, a ground propounded by the appellant as to why the revocation decision should be made. It was also noted that her Honour relied upon the distinction between the exercise of the discretion in s 501CA(4) and the assessment of a protection visa application by reference to s 36(2)(a) and (aa). Their Honours concluded that no similar circumstance arose in the case before them. They held (at [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.

In the result the appeal to the Court was dismissed.

DGI19 v Minister for Home Affairs – 14 November 2019

74    The decision of Moshinsky J in DGI19 was delivered on Thursday, 14 November 2019 being only four days prior to the delivery of judgment at first instance in this matter on Monday, 18 November 2019. The authority was not referred to by the primary judge, who had no opportunity to consider it.

75    As articulated by Moshinsky J, the errors alleged in that case were the Minister’s incorrect assumption that the appellant’s claims would be considered in the same way if he applied for a protection visa, and that the circumstances in which Australia’s non-refoulement obligations are considered are quite different between the exercise of the discretionary revocation power in s 501CA and the determination of a visa application under s 65 of the Act. The more fundamental question of whether the Assistant Minster failed to have regard to the claim raised in the representations that Australia would breach its non-refoulement obligations if the appellant was returned, was not considered. Nor was the question of whether the Assistant Minister misunderstood that whether Australia owed non-refoulement obligations to the appellant outside the scope of s 36(2) would not be considered on a protection visa application.

76    After considering many of the cases referred to above, Moshinsky J adopted and applied the conclusions reached in BCR16 as applied in Omar (first instance). His Honour said (at [66]):

In my view, on the basis of the reasons of the majority in BCR16 at [48]-[49], as applied in Omar (first instance), the applicant’s ground is made out. For the reasons given by the majority in BCR16, there is a qualitative difference in the role that non-refoulement obligations may play in the context of the exercise of the discretionary power in s 501CA and in the context of an application for a protection visa under s 65. It follows that, if and to the extent that the Minister proceeded on the basis that non-refoulement obligations would be considered in the same way, he proceeded on the basis of a misunderstanding as to the operation of the Migration Act.

77    His Honour concluded that the Assistant Minister in the matter before him also fell into that error. He held that it was implicit that the Assistant Minister understood that Australia’s non-refoulement obligations would be considered in the same way as he would have treated them in an application for a protection visa. He further recognised that the error was “material” to the outcome as there was a possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and reached a different conclusion.

GBV18 v Minister for Home Affairs – 25 February 2020

78    In GBV18(FC), rather than considering the legal correctness of the Assistant Minister’s views as to if and how Australia’s non-refoulement obligations will be considered on an application for a protection visa, the Full Court focused attention on the more fundamental issue of the Minister’s obligations to consider, in the formation of a state of mind for the purposes of s 501CA(4)(b), the grounds raised by the erstwhile visa holder: see paragraphs [31] – [33] of the Court’s reasons (set out above). If the Assistant Minister was not entitled to defer consideration of the issue, his views as to how likely and how fully it would be considered later were irrelevant. The Court there assayed the several recent authorities touching upon the Minister’s obligation under s 501CA(4) to give real and genuine intellectual attention to the grounds raised by a person in representations made in response to an invitation under s 501CA(3)(b). There is no need to repeat the paragraphs quoted above. It suffices to summarise the principles relevant to the matter before this Court as follows:

(a)    Where in representations made in response to an invitation under s 501CA(3)(b) a ground is raised going to establishing “another reason” for revoking the cancellation decision, the Minister must take it into account when ascertaining whether he has reached the state of satisfaction required by s 501CA(4)(b)(ii);

(b)    There is a difference between the erstwhile visa holder raising the risk of suffering harm on the one hand and, on the other, that their circumstances give rise to Australia’s non-refoulement obligations under s 36(2) or otherwise;

(c)    Whilst the Minister has decisional freedom as to whether a claim amounts to “another reason” to revoke the cancellation decision, he must consider whether a clearly expressed and significant claim that the person will suffer harm if returned to their country of origin constitutes “another reason”;

(d)    The Minister will only “consider” a clearly expressed ground in the representations if he engages in an active intellectual process with reference to the representations;

(e)    Given the importance of representations raising the possibility of harm if the person whose visa is cancelled is returned to a receiving country, depending upon the nature and content of the representations, the decision maker may be required to make specific findings of fact with respect to the representation to demonstrate the important obligation has been carried out;

(f)    The failure to give real and genuine consideration to a substantial or significant and clearly articulated claim raised in representations may constitute a failure to perform the statutory function in s 501CA(4)(b)(ii) and lead to a jurisdictional error; and

(g)    Where the decision maker fulfils the statutory task the Court cannot review the state of satisfaction so formed merely because it disagrees with the assessment that the refoulement is outweighed by other countervailing considerations.

Hernandez v Minister for Home Affairs – 31 March 2020

79    In the course of the appeal, counsel for the appellant placed emphasis on the decision of Charlesworth J in Hernandez delivered on 31 March this year. The Full Court’s decision in GBV18(FC) was not referred to by her Honour, it having been handed down after the hearing of the appeal but prior to the delivery of judgment.

80    In Hernandez the wording of the Assistant Minister’s reasoning relating to the non-refoulement question was, save for the appellant’s name and home country, identical to that in the present case: compare [18] to [20] of the Assistant Minister’s reasons in that case (at paragraph [10] of her Honour’s reasons) and [35] to [37] of the Assistant Minister’s reasons in this case (which are set out above). A submission was made to her Honour that the reasons revealed that the Minister failed to appreciate the differences in the consideration of non-refoulement obligations in the s 501CA(4) process compared to that undertaken for the purposes of a protection visa. It was also argued that the mere fact that the applicant might apply for a protection visa was not a reason for neglecting consideration of those obligations under s 501CA.

81    Charlesworth J (at [54]) accepted that the submissions made to the Minister in response to the invitation to make representations under s 501CA(3):

… clearly asserted facts that, if accepted … would have the consequence that Mr Hernandez was to be regarded as a refugee in accordance with international agreements to which Australia is a party. The representation ought reasonably to have been understood to include an assertion by Mr Hernandez that he was a person to whom non-refoulement obligations were owed.

82    However, her Honour then concluded that it had not been shown that the difference between the definition of “refugee” under the Convention under the Act had any consequence for the applicant. It followed that it mattered not that the Assistant Minister treated Australia’s international non-refoulement obligations as being defined by reference to concepts which were coterminous or synonymous with the scope of s 36(2). However, her Honour found at [61] to [62] the Minister erred by failing to appreciate the legal or practical difference between a case where non-refoulement obligations are identified in the course of exercising the power conferred by s 501CA(4) of the Act and a case where such obligations are identified in the course of exercising the power conferred by s 65 on an application for a protection visa.

83    In the written submissions to this Court the appellant submitted that her Honour concluded that the Assistant Minister had made the same error as had been identified in BCR16, Omar (first instance) and DGI19. In support of that written submission, the appellant cited paragraphs [63] and [64] of her Honour’s reasons which read as follows:

63     Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.

64     On the other hand, if the decision-maker responsible for assessing Mr Hernandez’s visa application were to make findings of fact giving rise to non-refoulement obligations at international law, the existence of those obligations would be irrelevant to the exercise of the mandatory power conferred by s 65. The decision-maker would be compelled under s 65(1)(b) to refuse to grant the visa if not satisfied that the requirements of s 65(1)(a) were met.

84    These paragraphs do, to some extent, reflect the error identified by Mortimer J in Omar (first instance). However, the more important error was revealed in paragraphs [64] and [65] where her Honour observed that none of the matters arising from a determination under s 65(1)(a), being the satisfaction of visa criteria, turned on the question of whether Australia owed the appellant non-refoulement obligations. It was noted that such issues could arise where the delegate referred the matter to the Minister for review under s 501 of the Act, but Direction 75 provided that might only occur after consideration had been given to whether the protection visa application should be refused because the holder has been convicted of a particularly serious crime: ss 36(1C) and 36(2C)(b) of the Act. As her Honour observed, the question of whether non-refoulement obligations were owed in respect of Mr Hernandez was irrelevant to determining whether he met either of those criteria. In this respect, her Honour relied upon the difference between the basic facts surrounding the applicant’s fear of harm if returned on the one hand, and the consequences following from a conclusion that the non-refoulement obligations were owed on the other. It was concluded that the Assistant Minister did not give active, intellectual engagement to the matters which had been advanced as grounds for the exercise of the statutory power. Further, it was held that the Assistant Minister acted irrationally in reasoning that consideration of non-refoulement obligations in the course of determining a protection visa application under s 65 could affect the outcome. In the result, a jurisdictional error was identified and the application for judicial review allowed.

Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs – 29 April 2020

85    The decision of Charlesworth J was adopted and relied upon by Kerr J in Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 (Ahmed). In reaching his conclusion that the Assistant Minister in that case made vitiating errors in reaching his conclusion, his Honour preferred the approach of Moshinsky J in DGI19 over that of the primary judge in this case.

Application to the circumstances of this case

86    As the above authorities show, matters of this nature can be factually idiosyncratic such that it is essential to ascertain the nature and scope of the grounds advanced to the Minister in the representations made in response to the invitation given under s 501CA(3)(b).

The representations made to the Minister by the appellant

87    Here the appellant relied upon the content of the written submissions dated 27 July 2017 as the source of the grounds which he advanced as to why there was “another reason” for the cancellation decision to be revoked. Those submissions adopted and focused upon the topics which are set out in Direction No 65 dated 22 December 2014, issued under s 499 of the Act, which concerns visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Part C of that Direction focuses on those matters which might be taken into account by a Minister in deciding whether to revoke the cancellation decision. Although it does not specifically refer to those factors which the Minister will have regard to for the purposes of forming the state of satisfaction identified in s 501CA(4)(b)(ii), it is likely that the intent of the document is that the identified factors would be addressed for that purpose. The appellant’s written representations addressed those matters including the protection of the community, the best interests of any children, and the strength, nature and duration of the appellant’s ties with Australia. Also referred to in the direction is the issue of Australia’s international non-refoulement obligations and that topic was specifically addressed in the submissions. Given its importance to the appeal it is appropriate to set out the initial part of that submission which was in the following terms:

Other Consideration - International non-refoulement obligations

Paragraph 10 of Direction No.65 provides that Australia's international non-refoulement obligations are relevant to the consideration as to whether to revoke the mandatory cancellation of a person’s Australian visa.

Australia is a signatory to the Refugees Convention and, by ratifying these instruments, has agreed to be bound by its enjoining obligations, including non-refoulment obligations. The principle of non-refoulement constitutes the cornerstone of international refugee protection. It is enshrined in Article 33 of the 1951 Convention, which is also binding on States Party to the 1967 Protocol. Article 33(1) of the 1951 Convention provides:

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [ or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”

The protection against refoulement under Article 33(1) applies to any person who is a refugee under the terms of the 1951 Convention, that is, anyone who meets the requirements of the refugee definition contained in Article 1A(2) of the 1951 Convention and does not come within the scope of one of its exclusion provisions.

It is submitted that should the cancellation of Mr Ali’s Australian visa be upheld, he would be forced to return to Ethiopia where he would face serious harm amounting to persecution on the basis of his Oromo ethnicity. Due to this, it is submitted that to return Mr Ali to Ethiopia would be in breach of Australia's non-refoulment obligations. It is clear that Mr Ali’s case also requires an assessment as to whether or not he may be subjected to indefinite detention in Australia should his visa be cancelled, due to Australia being unable to refoul him to any country in which he will face persecution.

(Footnotes omitted). (Emphasis added).

88    Subsequently in the conclusion to the submissions it was said, inter alia:

Furthermore, it has been submitted above that a number of aspects of Mr Ali’s circumstances require an assessment as to how the cancellation of his visa may impact upon Australia’s international obligations - in terms of Mr Ali’s daughter, his family unit, and Australia’s non-refoulment obligations. It is submitted that Mr Ali’s circumstances engage Australia’s international obligations with regard to the ICCPR and the CROC, and that to uphold the cancellation of Mr Ali’s Australian visa and force him to depart Australia may conflict with these obligations.

(Emphasis added).

89    Undoubtedly, the appellant’s representations to the Assistant Minister raised, as “another reason” to revoke the cancellation of the appellant’s visa, that failing to do so would result in the appellant being returned to Ethiopia in breach of Australia’s non-refoulement obligations under several international treaties. Mr Hill for the Minister very properly acknowledged that the submission did not suffer because each of the treaties were not identified.

90    Recently, in BHL19(FC), Wigney J (albeit in dissent in the result) identified the source of Australia’s non-refoulement obligations as follows at [224]:

Second, the Minister also accepted that because Australia owed the appellant protection obligations on account of his well-founded fear of persecution, Australia would breach its international non-refoulement obligations if the appellant was returned to Syria. Though the Minister did not explain exactly what those international non-refoulement obligations were, they are principally derived from a number of international conventions to which Australia is a party: the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia on 13 August 1980. One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly.

91    His Honour’s comment in the last sentence emphasised that the consequence of non-compliance with Australia’s treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia’s reputation and standing in the global community. This point was also recognised by Charlesworth J in Hernandez (at [63]):

Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.

92    It was also very properly acknowledged by Mr Hill for the Assistant Minister that Australia’s international obligations of non-refoulement extend to a wider range of persons than those who are eligible for a protection visa by reason of s 36(2)(a) and (aa). That concession was consistent with the authorities which have been referred to above.

The manner in which the Minister considered the non-refoulement issue

93    Although the whole of the Minister’s reasons have to be considered, the alleged errors of law were said to specifically arise from [35]. For the purposes of convenience it is replicated as follows:

I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] 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 non­refoulement obligations would be fully considered in the course of processing the application.

94    The statement in this paragraph is consistent with a statement in Direction 65 as to the manner in which the Minister intended that claims concerning non-refoulement obligations made in aid of the making of a revocation decision would be considered. Clause 14.1(4) provided:

Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

Ground 1

95    The first question is whether the Assistant Minister gave real and genuine consideration and intellectual attention to the appellant’s representations as to Australia’s non-refoulement obligations in respect of him, in ascertaining whether the Assistant Minister was satisfied there was “another reason” for revoking the cancellation decision (under s 501CA(4)(b)(ii)).

96    Prima facie, the Assistant Minister’s statement that “it is unnecessary to determine whether non-refoulement obligations are owed” in respect of the appellant tends to suggest that he neither determined that question nor determined whether they would be breached if the appellant was returned. It was not suggested that the Assistant Minister identified what Australia’s international non-refoulement obligations were or undertook any explicit assessment of whether the appellant came within the scope of those obligations. It was also not suggested that he sought to ascertain whether returning the Appellant to Ethiopia would contravene those obligations or what the consequences would be for Australia’s reputation or international standing.

97    Despite that, Mr Hill for the Minister submitted that no error arose from the manner in which the Assistant Minister dealt with this non-refoulement ground. He sought to support this by reference to the decision of Robertson J in DOB18. There, his Honour had found that consideration of the circumstances of the applicant’s fear of harm in the returning country was sufficient consideration of the ground raised in that case. Mr Hill earnestly submitted this Court should adopt the same approach and conclude there was no failure to take the non-refoulement ground into account because the Assistant Minister considered the “underlying factual claims” of threats of harm to the appellant and concluded that, if he was to be returned to Ethiopia he would, as a person of Oromo ethnicity, suffer harm including arbitrary detention, torture, the possibility of being killed or, at the least, subject to discrimination in employment and social isolation. As already discussed, Robertson J’s decision was peculiar to the statutory framework relevant in that case and the particular circumstances where the issue of Australia’s non-refoulement obligations were not raised, and therefore did not need to be taken into account. It has no application to the present case.

98    On a number of occasions, Mr Hill was asked to explain how the Assistant Minister’s consideration of the harm which might befall the appellant on his return to Ethiopia might be regarded as the fulfilment of the obligation to “consider” the ground raised in this case, being that Australia would be in breach of its non-refoulement obligations if the appellant was returned. No doubt on instructions from the Department he submitted that the claim was “dealt with” by considering the underlying claims and that the Assistant Minister gave it real and genuine consideration by identifying the ground of non-compliance with international non-refoulement obligations and concluding that it would be dealt with at a later stage. It was also submitted that acceptance of Australia being in breach of its international non-refoulement obligations was “exactly what follows from the findings the Minister did make”. Perhaps somewhat inconsistently it was also submitted that the Minister found that “it is not necessary to determine whether removal would be in breach of international law, because the person will have a chance to make an application for a protection visa.”

99    With respect, the submissions advanced on behalf of the Minister that the Assistant Minister considered the non-refoulement ground as articulated in this case in the manner required by the Full Court in GBV18(FC) cannot be accepted. Whilst he considered the level of harm faced by the appellant should he be returned to Ethiopia, at no stage was there any consideration of which, if any, non-refoulement obligation was owed in respect of him by reason of s 36(2) of the Act or any wider obligation, and nor was there any consideration of the consequences of returning the appellant to Ethiopia in breach of Australia’s treaty obligations. The suggestion to the contrary was inconsistent with the Assistant Minister’s statement that he considered “that it is unnecessary to determine” whether non-refoulement obligations were owed. Whether real and genuine consideration was given to the ground raised was a factual matter, the answer to which is to be ascertained from the Assistant Minister’s reasons. It could not be answered by reference to the circumstances of another case — DOB18 — and what occurred there where the question of non-compliance with Australia’s international treaty obligations was not raised.

100    The Minister also submitted that the consequence of not making the revocation decision is not necessarily the appellant’s return to Ethiopia as there exists the opportunity for the appellant to make an application for a protection visa and for that reason there was no need to consider the issue under s 501CA(4). It was submitted that what the Assistant Minister was effectively saying in his reasons was that, “My decision will not lead to a breach of international obligations. I predict that because there’s a right to apply for a protection visa where these issues will be revisited.” This, it was said was “not to ignore, but is to substantively respond to the claimed breach of international law.”

101    That submission involves a not insignificant degree of sophistry and an attempted reconstruction of the Assistant Minister’s actual reasons. It should be rejected. In this case the appellant’s partner visa had been cancelled and he had advanced, as a ground for the purposes of s 501CA(4)(b)(ii), the potential breach of Australia’s non-refoulement obligations if the cancellation were not revoked. If the Assistant Minister formed a state of mind that this ground amounted to “another reason” within that section, the power to revoke the cancellation of the partner visa would be enlivened. No question of the granting of a protection visa arose. Although the ground advanced in support of revocation contains some hypothetical elements to it, including what is likely to happen if the revocation decision is not made, it cannot be ignored. Nor can it be sidestepped by raising another hypothetical proposition that a protection visa application might be made and that the non-refoulement obligations and the consequences of non-compliance with them might be dealt with then. This issue is most acute in this case where the factual findings made by the Assistant Minister were, effectively, that the appellant would be persecuted and face serious physical harm and, perhaps, death if returned to Ethiopia. That conclusion heightened the likelihood that non-refoulement obligations would be owed in respect of him and therefore removed some of the conjecture around that issue. That is not to say that the Minister could not properly take into consideration a ground which involved a hypothetical scenario by assessing the likelihood of its occurrence. However, that was not done in this case and, in any event, a real and genuine consideration would require some degree of analysis of the probability of the occurrence of future events.

102    It should also be observed that any submission that the real effect of the Assistant Minister’s decision was that he had made a prediction that his decision would not lead to a breach of non-refoulement obligations and was therefore valid, ought to have been the subject of a Notice of Contention seeking to uphold the primary judge’s decision on alternative grounds. The claimed effect of the Assistant Minister’s decision was not a matter found by the primary judge and if that were to be the basis of a submission on appeal, a notice would be required.

103    The necessary consequence is that the Assistant Minister did not consider the clearly articulated ground advanced by the appellant. He did not consider whether Australia owed non-refoulement obligations to the appellant, whether they arose under s 36(2) of the Act, the Convention or otherwise. He did not consider whether in returning the appellant to Ethiopia those obligations would be breached, and he did not consider the consequences for Australia of that breach. In light of the recent authorities, in particular the decision of the Full Court in GBV18(FC) and Charlesworth J in Hernandez, those omissions constituted a failure by the Assistant Minister to comply with the requirements of s 501CA(4) for the purposes of ascertaining whether he formed the required state of satisfaction. He was not entitled to “carve off” a consideration of them for possible examination at a later stage and his attempt to do so constituted a reviewable error.

104    Had the Assistant Minister embarked on a consideration of the ground raised, there is the possibility that he would have found that the consequences of non-compliance with Australia’s non-refoulement obligations outweighed other considerations. That such is a real possibility is evidenced by cl 14.1(6) Direction 65 which, in considering the relevance of non-refoulement obligations when exercising the function in s 501CA(4), provided:

In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. …

105    The exhortation to weigh the obligations “carefully” identifies that the Commonwealth places at least some weight on its compliance with the covenants which it has made in international treaties and conventions. It necessarily follows that the failure to take into account the non-refoulement ground was a material error with the result that the Assistant Minister failed to perform the function required of him by s 501CA(4)(b). Consequently, his conclusion that he was not satisfied that there was another reason as to why the cancellation decision should be revoked was vitiated.

106    The effect of the above is that Ground 1, being the Failure to Consider Ground, is made out.

Ground 2

107    Ground 2 is that the Assistant Minister failed to appreciate the qualitative difference in the manner in which the question of Australia’s international non-refoulement obligations would be considered as between the processes in s 501CA(4) and s 65. In essence, the Assistant Minister’s statement at [35] of his reasons reveals that he proceeded upon the assumption that the ground raised by the appellant concerning Australia’s compliance with its non-refoulement obligations would be considered on an application for a protection visa in the same manner as it would have been considered under s 501CA(4).

108    Here it is important to keep in mind that an antecedent error by the Assistant Minister was the misunderstanding of the nature of the ground raised. It can be inferred from his approach that he did not appreciate that the appellant’s ground concerned the entirety of Australia’s non-refoulement obligations as well as the consequences of not complying with them. It is apparent that he equated the issue of Australia’s non-refoulement obligations with the appellant’s entitlement to a protection visa. It is pellucid from the terms of cl 14.1(4) of Direction 65 that this erroneous approach is one which is ingrained in the Department’s processes. Despite that, regardless of whether the Assistant Minister accurately appreciated the nature of the ground raised, it was an error to assume that it would be treated in the same manner in the two different processes.

109    In BCR16 it was suggested, in part, that the differential consideration occurred because the process under s 501CA(4) involved the exercise of a discretion. With respect, such a conclusion taken at face value appears to misinterpret the section. In DGI19, Ahmed, Hernandez, GBV18(FC) and Omar (first instance) the issue was whether there was an error in the formation a state of satisfaction “that there is another reason why the original decision should be revoked”: s 501CA(4)(b)(ii). In those cases, as with the present, the process concerning the application of s 501CA(4) ended with the subjective jurisdictional fact not being satisfied such that the discretionary power was not enlivened. Consequently, the alleged errors related to the decision-maker’s omission to consider the impact of non-refoulement obligations in the course of ascertaining whether the required state of satisfaction had been reached and not in the exercise of any discretion. In this sense, whether the issue was considered under s 65 or s 501CA(4)(b)(ii), the nature of the statutory power was the same.

110    But that is not to say that no qualitative difference would occur in the manner in which an issue such as the non-refoulement obligations would be considered in each scenario. As the observations of Charlesworth J in Hernandez demonstrate, for the purposes of s 65, the question is whether the Minister is satisfied that the specific criteria for a protection visa in s 36(2) are met. For the purposes of s 501CA(4) the question is whether the Minister is satisfied that there is “another reason” why the cancellation decision should be revoked. That criterion is more diffuse and less categorical that the criteria of s 36(2) and the material or representations advanced in support of a claim or part of a claim are not required to meet predetermined benchmarks. For instance, a Minister may not be satisfied that the material advanced supports a claim that Australia owes non-refoulement obligations in respect of an applicant, but may nevertheless conclude that the nature and extent of the risk of harm exhibited by the material warrants a conclusion that “another reason” has been established. Conversely, on the current view as to the manner in which s 501CA(4) operates, the Minister may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia compliance with those obligations such that there is no “other reason”. It is apparent that the standard inherent in the concept of “another reason” involves matters of opinion, value judgment and policy which accords a degree of decisional freedom to the decision-maker that does not exist in the s 36(2) criteria. It may be that this qualitative difference between the nature of the deliberations in s 501CA(4) and s 65 is similar to that which was also referred to in BCR16 at [49]. Be that as it may, neither involve the exercise of a discretion unless, in the case of s 501CA(4), the jurisdictional facts are satisfied.

111    It follows that even if it were permissible to defer consideration of a ground raised (which, for the reasons given above, it is not), the Assistant Minister proceeded upon an erroneous assumption of law as to the manner in which the issue of Australia’s non-refoulement obligations would be considered in the different statutory processes. As that misunderstanding had the consequence that he did not consider the appellant’s representations as to Australia’s non-refoulement obligations, for the reasons given above, the error was material and it vitiated the conclusion that there was no “other reason” why the cancellation decision should be revoked.

112    It follows that Ground 2, referred to as the Identical Manner of Consideration Ground, has been made out.

Ground 3

113    In Hernandez, Charlesworth J identified a further error of law arising from the wording used by the Assistant Minister to defer consideration of the relevance of Australia’s non-refoulement obligations. That was the misunderstanding that whether Australia was in breach of its non-refoulement obligations was not a matter which would be considered or fully considered on an application for a protection visa. In that case also, the origin of the Assistant Minister’s error was equating the appellant’s non-refoulement ground solely with his right to protection due to persecution in Ethiopia. The same error arises in the present case which is not surprising given the same pro forma wording was adopted by the Assistant Minister.

114    In relation to this issue, Charlesworth J observed in Hernandez, that a determination of whether a visa applicant satisfied s 36(2)(a) does not turn on Australia’s non-refoulement obligations at international law (as opposed to arising merely under the Convention) and it cannot be assumed that those obligations will be considered on a protection visa application even though there may be significant overlapping issues. Here it was acknowledged by counsel for the Minister, that a determination under s 65 will not involve consideration of all of Australia’s non-refoulement obligations in respect of the applicant because the scope of persons who might meet the criteria for a protection visa under the Act is narrower than the scope of persons who would be regarded as “refugees” under the Convention. Further, in the consideration of any application for a protection visa the Minister would not consider Australia’s other obligations arising under the other international treaties referred to by Wigney J in BHL19(FC). It would follow that it is an error for a Minister, in the course of fulfilling his function under s 501CA(4), to assume that a consideration of a protection visa application, limited to consideration of the criteria in s 36(2)(a) in relation to a person, will effectively involve a consideration of all of Australia’s non-refoulement obligations at international law.

115    At this point it is apposite to note that Direction 75 cannot remedy this error. Even if on any subsequent protection visa application, the protection obligations in s 36(2) are considered first, they will not traverse the totality of the non-refoulement obligations owed by Australia. Moreover, they will not consider the consequences of Australia’s non-compliance with those obligations.

116    Leaving aside that latter point, the next question would be whether such an error was material and the answer to that would depend upon the nature of the non-refoulement obligations which are outside the scope of s 36(2) and which would not be considered on an application for a protection visa. In the present case, the primary judge held that the appellant had not produced any material which would suggest that Australia owed non-refoulement obligations in respect of him beyond that which would be accorded by a protection visa. For instance, he had not raised that the broader definition of “refugee” in the Convention due to the operation of the internal relocation principle would have accorded him additional protection which would not have been considered on an application under s 65 of the Act. In DGI19, Moshinsky J (at [84]) found that, in such circumstances, it was “not incumbent on an applicant proleptically to deal with the possibility of relocation” and in that case, as there was potential for the application of the principle, it had to be considered. Conversely, here the primary judge rejected that proposition and held that it was for the applicant to show on the evidence that there was a likelihood that a different conclusion could have been reached. As this issue only arises on the basis of the Assistant Minister’s misapprehension of the nature of the appellant’s ground and, on appeal, the appellant has submitted the existence of a broader and more fundamental error, there is no need to further consider this important issue.

117    In relation to the error which the appellant pursued on appeal, as was the case in Hernandez, the real issue in relation to Australia’s non-refoulement obligations concerned the fact of and the consequence of Australia’s non-compliance with them. Whilst it may be that in any subsequent application for a protection visa, the issue of whether any non-refoulement obligations are owed will be partially ascertained by a consideration of whether the applicant satisfies the criteria in s 36(2), there will be no consideration of the impact of non-fulfilment of these obligations in relation to Australia’s reputation or otherwise.

118    For the reasons referred to previously in relation to grounds 1 and 2, this error must also be material with the result that it vitiated the Assistant Minister’s putative state of non-satisfaction. It follows Ground 3, the Absence of Full Consideration Ground, has been made out.

Conclusion

119    It follows that the Assistant Minister did not reach his putative state of non-satisfaction (that there was not “another reason” why the cancellation decision should be revoked), in accordance with the requirements of s 501CA(4) and it was therefore vitiated by reason of the errors identified above. As mentioned previously, despite the power to revoke the cancellation decision not ever arising, the Assistant Minister nevertheless purported to exercise it and determined not to revoke the original decision. That administrative act was without authority as the facts upon which it was conditioned had not occurred. It ought to be set aside and a writ of certiorari ought to issue in respect of it.

120    The Assistant Minister’s conclusion that he was not satisfied of the matter in s 501CA(4)(b)(ii) was vitiated by the errors identified above and mandamus ought to issue to the Assistant Minster to perform his function under that sub-section according to law.

121    Given the result, there is no reason why the appellant ought not to have the costs of the appeal.

Associate:

Dated:    29 June 2020