Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant (the Minister) appeals from orders made by a judge of this Court setting aside a decision of the second respondent (the Tribunal) and remitting the application for review by the first respondent to the Tribunal for determination according to law.

BACKGROUND

2    The respondent is an Iraqi citizen who arrived in Australia in 2007 as the holder of an offshore humanitarian visa at the age of 16. On 15 May 2017, the Minister cancelled the respondent’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had been convicted of an offence for which he was sentenced to a term of imprisonment of 12 months or more and, at the time of the cancellation decision, he was serving a sentence of imprisonment on a full-time basis in a custodial institution. The respondent was notified of the cancellation decision and invited to make representations about revocation of that decision on 18 May 2017.

3    On 15 June 2017, the respondent sought revocation of the cancellation decision under s 501CA(4). In his request for revocation, the respondent stated that he did not want to return to Iraq because all of his family members resided in Australia, his father “was killed in Iraq and [his] sister was kidnap[p]ed because [they] [we]re Christian”, and he would be killed on return. In a decision made on 4 June 2018, a delegate of the Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

4     On 11 June 2018, the respondent applied to the Tribunal for review of the Minister’s decision not to revoke the cancellation decision. On 20 July 2018, the respondent made representations to the Tribunal in essentially the same terms as his representations to the Minister. The Tribunal in its decision (at [67]), noted that these representations were repeated in oral evidence before it. These representations form the respondent’s key evidence and submissions and were as follows:

… I lost my father when I was very young and I have never really recovered from this. We were persecuted because of our religion and it is because we were Christians that my father was murdered.

…

I have no one back in Iraq. No friends of family, no support whatsoever. If I am sent back there I will have no help and be treated like a foreigner in this country. I will most likely be killed in this country because of my religion. This is why my family fled Iraq in this first place.

… My family would get crosses sent to us in the mail with letters calling us disbelievers and threatening us with death if we did not leave the country.

…

… I have lived a very hard life. First my life in Iraq was full of violence and persecution …

5    On the basis of these representations, the Tribunal made the following findings (at [6]-[7] and [107]):

6.    At some (unspecified) time around October 2004 [the respondent]’s father was killed. There is no evidence before the Tribunal which is in any way probative of how this killing came about. In evidence [the respondent]’s mother … suggested that it might have been related to the fact that … the [respondent’s father] apparently worked for the American forces in Iraq; [the respondent] himself suggests it might more likely be related to the fact that his father was an Assyrian Christian and that Mosul has been one of the principal centres in which the barbarity of the Islamic State … has been most overtly on display.

7.    Both [the respondent] and his mother referred to the fact that, at the same time as the killing of their father/husband, their young sister/daughter (aged approximately 10 years) was kidnapped. By whom, exactly when, and exactly how she was restored to her family cannot be stated with any certainty but this appears to have been some time in 2005.

…

107.    It is not difficult to feel sympathy for the [respondent]. He has lost his father, suffered persecution … However he is not unique in this respect: many refugees from war-ravaged places such as Iraq and Syria have suffered no less.

6    The Tribunal recognised that the respondent’s representations constituted a claim that he fears harm if returned to his home country and that, in light of recent decisions of this Court, was a matter which required particular attention. The Tribunal’s reasoning (at [70]-[76] and [105]) of its decision is central to the grounds raised at first instance and on appeal by the parties:

70.    The Federal Court in BCR16 v Minister for Immigration and Border Protection made it clear[:]

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. [at [48]]

71.    [The respondent] has raised this issue before the Tribunal and it cannot be ignored. It is also not in dispute that, in the event that [the respondent’s] visa cancellation is not revoked, he will be entitled to make a separate claim for a protection visa or a bridging visa [s 501F(3) of the Act].

72.    The fact that [the respondent] has raised this issue does not, however, mean that this Tribunal must make a specific determination in regard to it [(Ali per Flick J (at [28] and [34]))]. Indeed, in the event that the visa cancellation is not revoked, while a claim to a protection visa remains on foot for [the respondent], [(Ayoub (at [28])] it is recognised that this Tribunal could not “engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim” [PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961 per Deputy President Kendall (at [87])].

73.    The Tribunal is also mindful of the fact that the Courts have made it clear that claims for a protection visa cannot be rejected on application of the character test alone, and that “consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality” [Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 per Jagot J (at [11])] must be considered.

74.    This has now been clarified further by Ministerial Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b) issued on 5 September 2017. Part 2 of that Direction makes it clear that claims of serious potential harm and persecution must be assessed by decision-makers dealing with protection visas before other matters are considered.

75.    Whether this is a genuinely meaningful option for [the respondent] must remain a matter of some speculation given the comment by Senior Member Taylor in Aciek to the effect that:

The undesirability of embarking on any assessment of Mr Aciek’s potential non-refoulement claims is not removed by apprehension that any application he might make for a Protection visa would be an exercise in futility, given his “substantial criminal record” [Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755 (at [105])]

76.    Although this Tribunal is inclined to believe that [the respondent] would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history, it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access. The best that can be said is that:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. [Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (at [578])]

…

105.    As explained, the considerations related to the protection of the Australian community and its expectations weigh against [the respondent]. Issues of [the respondent’s] fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on return weigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.

(Emphasis added.)

7    On 24 August 2018, the Tribunal affirmed the Minister’s non-revocation decision, finding that there was not “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii) of the Act. The principal issue before the primary judge, and on the appeal, concerns the question of whether the Tribunal actively engaged with the respondent’s representations (primarily in the passage above) that he would be killed, or at least persecuted, by virtue of his religion if returned to Iraq in its assessment of whether there was “another reason” to revoke the cancellation decision. In a judgment delivered on 18 December 2019, the primary judge concluded that the Tribunal had fallen into jurisdictional error in its treatment of these representations. For the reasons developed below, his Honour’s decision was correct and must be upheld. The Tribunal cannot be criticised for its careful consideration of the issues it thought it was required to consider. However, there was a central issue put to the Tribunal to which it was required to give careful and active consideration, but to which it apparently thought consideration would be given elsewhere on a different, and subsequent application. That understanding explains why the Tribunal did not consider more fulsomely the particular question that is now in issue.

THE PRIMARY JUDGE’S DECISION

8    Before the primary judge, the respondent, relying on Minister for Home Affairs v Omar (2019) 272 FCR 589, contended that the Tribunal had fallen into jurisdictional error. This was said to be because it did not consider whether representations he had made that he would be harmed on his return to his country of birth, Iraq, amounted to “another reason” for revoking the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act. The respondent contended by his notice of appeal that the proper performance of the Tribunal’s review functions required it to make “a ‘clear’ and ‘definitive’ finding on whether [his] representations on harm was ‘another reason’ for revoking the visa cancellation…”.

9    The primary judge accepted the respondent’s arguments, saying of Omar that the Full Court held (at [36]-[37]) that the decision-maker (in Omar, the Assistant Minister) has an obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request. The Court in Omar went onto say (at [39]) that:

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister 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.

(Citations omitted.)

10    In considering the respondent’s application his Honour noted that the Tribunal stated (at [72]) that “the fact that the applicant had raised the issue of his fear of harm if returned to Iraq did not mean that the Tribunal must make a specific determination in regard to it” (Emphasis added). The Minister submitted that what the Tribunal was really saying was that it is not required to determine the issue as though it was exercising power under s 65(1) of the Act. (That is the power to grant or refuse a visa, as opposed to the power to revoke a cancellation of a visa upon having the state of satisfaction referred to in s 501CA(4)(b)(ii), i.e. that there is another reason why the original decision should be revoked).

11    The primary judge considered that the Tribunal (at [72]), in explicitly considering that it did not need to make “a specific determination” was directly in conflict with the judgment of the Full Court in Omar. The submissions made by the respondent were “clearly expressed relevant representations made in support of a revocation request”, as recognised by the Tribunal (at [65]-[69]), such that the Tribunal was required “to engage in an active intellectual process” with them. It was required to “consider” those submissions by “having regard to what is said in the representations, to bring [its] mind to bear upon the facts stated in them and the argument or opinions put forward and to appreciate who is making them”: Tickner v Chapman (1995) 57 FCR 451 (at 495G) and Omar (at [36(c)]). See also BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (at [48]-[49] and [63]) and Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (at [53]-[54]).

MINISTER’S COMPLAINTS

12    By his grounds of appeal, the Minister contends that in reaching the conclusions above, the primary judge made three errors. The first is said to be that his Honour reasoned that the Tribunal did not consider (in the relevant sense) the respondent’s representations going to the harm that he feared would be inflicted upon him (outside of the non-refoulement framework) on his return to Iraq because it failed to make a “definitive” or conclusive finding on that issue.

13    Secondly, the Minister argues the primary judge wrongly reasoned that the content of the duty implied in the exercise of the power under s 501CA(4)(b) of the Act to consider representations (in this case, going to a stated fear of harm) made in support of revocation of the cancellation decision included a requirement to assess or quantify that fear of harm or to assess the likelihood or severity of the harm.

14    Thirdly, the Minister argues, the primary judge did not properly engage with the question of materiality advanced by the Minister.

RELEVANT PRINCIPLES

15    The applicable principles to the first two grounds of appeal were discussed by Full Courts in several recent judgments: Omar per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ (at [34(e)]-[34(i)], [35]-[36] and [39]); GBV18 v Minister for Home Affairs [2020] FCAFC 17 per Flick, Griffiths and Moshinsky JJ (at [31]-[32]); AXT19 v Minister for Home Affairs [2020] FCAFC 32 per Flick, Griffiths and Moshinsky JJ (at [47] and [56]-[57]); EVK18 v Minister for Home Affairs [2020] FCAFC 49 per Flick, Griffiths and Moshinsky JJ (at [10]-[15]); DQM18 v Minister for Home Affairs [2020] FCAFC 110 per Bromberg and Mortimer JJ (at [23]-[34]) and Snaden J (at [153]-[158]); see also BCR16 per Bromberg and Mortimer JJ (at [63]). They may be summarised as follows:

(1)    The task of a decision-maker under s 501CA(4) is to determine whether there is “another reason” to revoke a cancellation decision;

(2)    In discharging the duty under s 501CA(4), a decision-maker is required to have regard to a former visa holder’s representations made in response to an invitation under s 501CA(3) as a whole. That is to say, viewed as a whole, the representations comprise a mandatory relevant consideration, but not every statement in the representations can be so described;

(3)    Where a former visa holder makes a representation as to the harm that he or she may face if returned to their country of origin, the decision-maker needs to give consideration to it;

(4)    There is a distinction between considering harm, or the risk of harm and hardship, on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed: See DOB18 v Minister for Home Affairs (2019) 269 FCR 636 per Robertson J (at [185]);

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

(6)    The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations;

(7)    The representations need to be “significant and clearly expressed” (GBV18 at [32(d)]) or “clearly articulated and substantial or significant”: Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and EVK18 (at [14]). Put another way in AXT19 (at [56]) and applied by Bromberg and Mortimer JJ in DQM18 (at [27]):

[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim.

(See also DQM18 per Snaden J (at [158]-[160])).

As Snaden J observed in Guclukol v Minister for Home Affairs [2020] FCA 61 (at [28]):

[t]he difficulty that often, if not always, arises in cases such as the present … is that determination of the consequences or circumstances that an applicant will face if removed from Australia … typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn’t easily permit of definitive findings. …

(8)    Whether consideration has been given to a former visa holder’s representations must be judged in the context of the material placed before the decision-maker by, or on behalf of, the former visa holder: DQM18 per Bromberg and Mortimer JJ (at [36]);

(9)    “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: Omar (at [39]). However, the duty to consider a representation does not necessarily require the making of a finding of fact: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 per Besanko, Barker and Bromwich JJ (at [46]) and Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 (at [41]) per Rares and Robertson JJ;

(10)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made by a court: GBV18 (at [32(g)], referring to Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [48])); and

(11)    Ultimately, each case turns on its own particular facts and circumstances.

RESPONDENT’S CONTENTIONS.

16    The respondent contends that his Honour’s judgment was an orthodox and correct application of the principles recognised by the Court in Omar.

17    The respondent also relies upon a notice of contention. In light of the conclusion we have reached to the effect that the primary judge was correct, it is unnecessary to consider the notice of contention.

MINISTER’S CONTENTION ON APPEAL GROUNDS 1 AND 2

18    The Minister observes that the Tribunal stated (at [71]) that the respondent’s representations as to harm “cannot be ignored” notwithstanding that he could make an application for a protection visa if the cancellation decision were not revoked. The Tribunal appreciated, it is said, that the respondent’s ability to make a valid application for a protection visa (under s 501E(2)(a) of the Act) did not excuse it from giving consideration to his representations as to harm: cf Omar (at [44]). The Minister also says that the context in which this statement was made by the Tribunal supports this construction of the reasons. The Tribunal set out the respondent’s representations (at [65]-[67]). The Tribunal went on to state (at [68]), that it “well underst[ood] [the respondent’s] concerns” (presumably in the light of the content of the report on the Islamic State to which reference was made (at [69])). The Tribunal then set out (at [70]), some observations of Bromberg and Mortimer JJ in BCR16 (at [48]), where their Honours observed that the role that non-refoulement is capable of playing in the exercise of power under s 501CA(4) is different from that which it plays in the exercise of power under s 65(1) of the Act.

19    Further the Minister contends that the Tribunal’s statement (at [76]), that the respondent “would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history” evinced proper consideration of his representations to fear harm in Iraq, that was a finding of fact and the use of the expression “inclined to believe” does not render the Tribunal’s statement any less so.

20    The Minister particularly stresses that the Tribunal’s statement that it was “not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access” was to be expected given the dearth of evidence that the respondent had put before it. Unlike the representations made by Mr Omar, the respondent’s representations in the present case were not only brief and imprecise, but they were unsupported by any documentary evidence, though as indicated, the Tribunal did have regard to a “definitive study of the history of ISIS” (at [69]), which appeared to support the claim that Christians are persecuted by Islamic State. The Tribunal confronted the respondent’s representations and did the best that it could do in the circumstances. The Minister says that the “evidence that there was” was scarce and did not “easily permit of definitive findings”: Guclukol (at [28]). Having regard to what was said in AXT19 (at [56]-[57]) and DQM18 (at [36] and [158]-[160]), the Minister argues that the Tribunal discharged its task under s 501CA(4) by making a finding in the respondent’s favour (at [76]).

21    The Minister emphasises on what is the key issue, that consideration of the respondent’s representations as to harm did not require the Tribunal to make findings “quantify[ing] the type of harm and the extent of the risk” or “assess[ing] … the likelihood or severity of the harm”. It is said that there was no evidence before the Tribunal capable of supporting findings at that level of particularity, and the Tribunal was not under any duty to construct a case on behalf of the respondent: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ (at [187]). These contentions advanced on behalf of the Minister directly challenge the primary judge’s reasoning (at [47]-[48]) where his Honour held that:

47    Further, in the reasoning section of the Tribunal’s decision, there is no assessment or quantification of the applicant’s stated fears of harm. In paragraph [105], quoted at [28] above, the Tribunal merely says that the applicant’s “fears of harm” as an “issue” weighs “in his favour” in making the decision. It had also been said at [93] that “this consideration weighs in [the applicant’s] favour”. However, there is no engagement with the relevant submissions or evidence in support of them; there is no weighing of the evidence, and there is no assessment of the likelihood or severity of the harm. In the absence of that, it is impossible to attach any particular weight, small or large, to that consideration in order to perform the balancing exercise required by Direction 65.

48    I do not regard the Tribunal’s paragraph [76] (quoted at [26] above) to count against the above analysis. Having said only four paragraphs earlier that there was no need to make a specific determination with respect to the applicant’s fear of harm if he is returned to Iraq, it is insignificant that the Tribunal said that it is “not in a position to make a definitive finding in the absence of more solid probative or evidentiary material to which it does not have access”. The Tribunal was required to actually engage with the evidence that there was and make a finding. After all, the Tribunal was satisfied that the applicant “would be at some risk if returned to Iraq” and it stated that it “well understands” his fears. If there was sufficient evidence to reach those conclusions, it should have engaged with that evidence and sought to quantify the type of harm and the extent of the risk so that that harm could properly be brought into account in deciding whether there was “another reason why the original decision should be revoked”. Saying that it was not in a position to make a finding was simply to neglect the task.

22    The Minister also notes that s 501CA(4) relevantly requires the Tribunal to consider a former visa holder’s representations as a whole and to form a view as to whether, in the light of those representations, there exists “another reason” to revoke a cancellation decision. In doing so, weight is required to be given to various factors – including, where relevant, whether the former visa holder fears harm on return to his or her home country. The proper performance of the task does not demand “the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked” such as an assessment of the “likelihood”, “severity”, “type” or “extent” of the harm feared: cf, in relation to s 501, Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 per Flick, Griffiths and Perry JJ (at [28]). It is contended that to require that analysis under s 501CA(4) is not only not supported by the text of the provision, but to do so would also elide the distinction, drawn in cases such as BCR16 and Omar, between the different decision-making processes under s 65(1) and s 501CA(4) of the Act.

23    The Minister argues that at the very least, in the circumstances of the present case, the performance of the Tribunal’s task under s 501CA(4) did not call for such findings to be made given the “nature and content” (Omar at [39]) of the respondent’s representations. They were, it is said, brief, lacking specificity, and unsupported by any evidence or other material. Nonetheless, the Tribunal accepted that the respondent had “suffered persecution” in the past (at [107]) and found in his favour as to his claim to fear harm on return to Iraq (at [76]).

24    The Minister reiterates the Tribunal’s analysis at [93] and [105] where the Tribunal said:

93.    Regarding Australia’s international non-refoulement obligations, in its previous discussion of [the respondent’s] claims that he faced the prospect of serious harm if returned to Iraq, the Tribunal believes it has discharged its obligations to consider this matter. Taken alone, and bearing in minds [sic] the strictures of BCR16, the Tribunal concludes that this consideration weighs in [the respondent’s] favour.

…

105.    As explained, the considerations related to the protection of the Australian community and its expectations weigh against [the respondent]. Issues of [the respondent’s] fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on return weigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.

25    The Minister argues that contrary to the primary judgment (at [46]), the Tribunal’s findings (at [93]) did not reveal that it “regarded the harm feared by the applicant as being synonymous with circumstances that might or would give rise to Australia’s international non-refoulement obligations”. Having earlier considered the respondent’s representations as to what it described (at [93]) as “the prospect of serious harm if returned to Iraq”, and made a finding in his favour (at [76]), the Tribunal turned its mind to whether those representations enlivened any non-refoulement obligations. The Tribunal considered that they did and “conclude[d] that this consideration weigh[ed] in [the respondent’s] favour” (at [93]). That does not, the Minister says, evince an understanding that a fear of harm is synonymous with non-refoulement obligations; it reflects an appreciation that a fear of harm can enliven those obligations.

26    It is convenient to reproduce again what the Tribunal said at [71] and [72]:

71.    [The respondent] has raised this issue before the Tribunal and it cannot be ignored. It is also not in dispute that, in the event that [the respondent’s] visa cancellation is not revoked, he will be entitled to make a separate claim for a protection visa or a bridging visa [s 501F(3) of the Act].

72.    The fact that [the respondent] has raised this issue does not, however, mean that this Tribunal must make a specific determination in regard to it [(Ali per Flick J (at [28] and [34]))]. Indeed, in the event that the visa cancellation is not revoked, while a claim to a protection visa remains on foot for [the respondent], [(Ayoub (at [28])] it is recognised that this Tribunal could not “engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim” [PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961 per Deputy President Kendall (at [87])].

(Emphasis added, citations bracketed.)

27    The Minister contends that the Tribunal should be understood to be conveying nothing more than that the respondent’s representations as to harm did not mean that s 501CA(4) required, as a mandatory relevant consideration, a determination as to whether he is owed protection obligations (in the sense understood in s 36(2) of the Act). This is apparent it is argued, when one has regard to the context in which that statement was made, such as the following:

(1)    In the second sentence in [71], reference was made to the respondent’s ability to make an application for a protection visa;

(2)    In the second sentence in [72], the Tribunal cited the Full Court’s judgment in Ayoub (at [28]), where it was held that the exercise of the discretionary power in s 501 does not call for the type of inquiry that would have to be performed by a decision-maker in determining whether a visa applicant satisfies the criteria for the grant of a protection visa;

(3)    In the first sentence in [72], the Tribunal cited the judgment of Flick J in Ali v Minister for Home Affairs [2018] FCA 650 (at [28] and [34]), a case involving s 501CA(4). The applicant had made a submission that there was no utility in the Minister “putting off” or deferring consideration of the matters described in s 36(2) in the exercise of power under s 501CA(4) because there remained a possibility that, if he applied for a protection visa, the Minister would exercise his power under s 501 to refuse the grant of that visa on character grounds without giving any consideration to whether Australia owes any protection obligations to him. That submission was rejected by Flick J who said (at [28]):

At the end of the day, the decision sought to be reviewed in the present proceeding is the decision made on 25 October 2017 to not exercise the power conferred by s 501CA(4) to revoke the original decision. The decision-making process relevantly required a state of satisfaction to be formed – not as to whether a person satisfied the criteria prescribed by s 36(2) – but a state of satisfaction as to whether “there is another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii).

(4)    The Tribunal made a finding that the respondent would be at some risk of harm if returned to Iraq. It went on to state that it was “not in a position to make any such definitive finding”. Had the Tribunal considered that it could ignore the respondent’s representations as to his fears of harm, it could reasonably be expected that it would have said that it did not have to form any view about the matter as he could make an application for a protection visa; and

(5)    The Tribunal had regard to Australia’s non-refoulement obligations and formed a view as to whether the respondent’s representations weighed in favour of revocation. Again, had the Tribunal considered that it could ignore the respondent’s representations as to his fears of harm, it would also have said so (at [93]), and would not have treated those fears (and the international law obligations arising from them) as a matter to be given weight in its decision.

28    The Minister argues that once it is appreciated that the Tribunal’s statement in the first sentence in [72] did not evince a disregard of the respondent’s representations, the primary judge’s finding (at [45]), that that statement was “directly in conflict with the judgment of the Full Court in Omar” cannot be sustained. Moreover, nothing said in Omar is at odds with the proposition that giving proper consideration to a former visa holder’s representations in support of revocation does not necessarily require the making of factual findings – let alone findings that conclusively or “definitively” determine whether he or she is owed non-refoulement obligations or the type, extent, likelihood and severity of any harm feared on return to his or her home country.

CONSIDERATION - GROUNDS 1 AND 2

29    The question is whether the Tribunal completed the task of review it was required to undertake. That question requires a determination as to whether it appropriately considered those representations, where such “consideration” required an active intellectual process and engagement with the representations that was commensurate to the degree of clarity, certainty and detail with which they were expressed: Ali v Minister for Home Affairs [2020] FCAFC 109 (at [45] and [78](d)) and AXT19 (at [56]). The respondent said, relevantly, that if he were to be sent back to Iraq “I will get killed”. He said that “I will most likely be killed … because of my religion” – which “is why my family fled Iraq in [the] first place”. As the Minister has noted, the Tribunal acknowledged that “this issue” could not be ignored. This does not mean however that the Tribunal positively “considered” this representation in the manner and to the extent required of it.

30    Acknowledging that a claim cannot be ignored is not necessarily the same as giving that claim due consideration. As the respondent has submitted, despite noting that the issue of risks upon return could not be “ignored”, the Tribunal immediately proceeded to find (at [72]) that: “[t]he fact that [the respondent] has raised this issue does not, however, mean that the Tribunal must make a specific determination in regard to it”. This statement was made in the context of the Tribunal’s ongoing discussion of the respondent’s ability to apply for a protection visa. The respondent submits that this context must be borne in mind when considering the Tribunal’s subsequent observation (at [76]) that “[a]lthough this Tribunal is inclined to believe that [the respondent] would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history, it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access”. The respondent contends that this statement does not operate in a vacuum, or independently from the Tribunal’s previous discussion regarding a protection visa application. Indeed, it seems that the availability of a protection visa application to the respondent has led the Tribunal to conclude that it was not required to make a specific determination about the claim to fear harm if removed to Iraq. The respondent says that, contrary to the Minister’s contention, this means that the Tribunal did not actually “confron[t] the respondent’s representations and [do] the best that it could do in the circumstances”.

31    Rather, by operating under the presumption that it was not required to reach a “specific determination” on the claim, the Tribunal failed to consider what findings it could have made in the circumstances. The question is not so much whether the Tribunal’s consideration was adequate in light of the clarity and detail with which the claim was made, but rather, whether the Tribunal actively considered the claim at all.

32    It is also true, as the Minister observes, that at a practical level, the Tribunal was required to make a decision within quite a short timeframe and the Tribunal may not be able to engage in the sort of evidentiary analysis that would be undertaken if a protection visa claim were being examined elsewhere by those specifically charged with that duty. This would be relevant to the extent to which it might go in its analysis but not the question of whether it conducted an analysis at all. In that regard, the key paragraph of the Tribunal’s decision is [105], which it is convenient to reproduce again:

As explained, the considerations related to the protection of the Australian community and its expectations weigh against [the respondent]. Issues of [the respondent’s] fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on return weigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.

(Emphasis added.)

33    The respondent’s claim had not been rejected nor his credit impugned. It was accepted that his father had been killed and his sister kidnapped. It was also accepted that he was a Christian and on this basis the Tribunal quoted a passage of a study concerning the treatment of Christians by Islamic State (at [69]). But the difficulty from [105] taken in context, is in knowing to what extent those factors weighed in favour of the respondent. Using the Tribunal’s language, it may have been to a lesser extent or it may have been to a greater extent, but the absence of any exploration or statement as to what extent suggests that it has not been adequately dealt with, or given the attention which such a serious claim required.

34    The Tribunal seemed to be approaching its task on the premise that it did not have to make a specific determination as that would take place under a protection visa process. But the respondent effectively said “don’t send me back because I will be killed”, which the Tribunal did not necessarily reject as a possibility. In those circumstances, the prospect of him being killed was capable of constituting another reason why the cancellation should be revoked and the Tribunal was required to explore the making of a finding at least to some extent as to whether there was indeed a prospect he would be killed.

35    The Tribunal said that it was “inclined to believe” there was “some risk” (at [76]). Once that risk was asserted, it was certainly open to the Tribunal to press the respondent with questions to ascertain the nature and extent of such a risk with a view to reaching a finding as to the veracity of the claim.

36    The Minister accepts that the Tribunal did not reach a clear position on the risk of harm or the nature of the harm. It says the Tribunal did the best it could in the circumstances and considering the paucity of evidence. But the question is not so much whether the Tribunal had to reach a definitive finding, to use its terminology, but whether it had to actively explore the issue, given its seriousness and centrality to the claim, and weigh that claim in a meaningful way in its analysis of whether there was another reason to revoke the cancellation decision. Its reasons suggest that it did not do so.

37    The associated difficulty apparent from [105] without being pedantic about the Tribunal’s language, was that it approached the key question with regard to the fears of harm when what the respondent actually said was that he would be killed as a fact.

38    It does not appear the Tribunal turned its mind to whether there was a real, that is, meaningful possibility or risk that he would be killed. Rather, the Tribunal was equivocal about the basic question of his risk of being killed.

39    The Tribunal was required to explore whether the risk was greater or lesser and to reach a conclusion on that factor, just as required of other factors to be taken into account under Direction 65, such as the extent of the risk to Australian people etc. It is accepted that the Tribunal had a difficult task and it is true that it approached its tasks sympathetically as its reasoning indicates. But it did need to consider and conclude whether the primary risk focussed upon by the respondent was a matter which weighed to a lesser or greater extent in its evaluation of all the statutory factors. This is not to say that the Tribunal must quantify the risk to the extent of a numerical percentage or the like. To attribute some quantitative assessment is not indicated as a requirement of the statute, but certainly a meaningful qualitative assessment is necessary. To say that a claim weighs to a greater or lesser extent is to go no further than the claim does itself standing alone. A claim that a person will be killed if returned to their home country will always weigh against a decision not to revoke a cancellation decision. The Tribunal’s task is necessarily to consider such a claim in a manner that actually weighs it against the other factors in the analysis and ascribe to it some value beyond what the claim expresses in and of itself.

GROUNDS 3 AND 4

40    These grounds, which are advanced by the Minister in the alternative, challenge the primary judge’s conclusion, that the Tribunal’s failure to make a definitive finding as to the respondent’s fears of harm in Iraq was material to its decision Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 per Bell, Gageler and Keane JJ (at [45]).

41    The Minister argues that the respondent, who bore the burden of proving materiality (SZMTA (at [46])), pointed to no feature of the Tribunal’s reasons that suggested that the failure to make a definitive or conclusive finding in respect of harm otherwise affected its exercise of power under s 501CA(4). It is further contended that the primary judge did not explain how the Tribunal’s failure to make a definitive finding as the respondent’s claim amounted to jurisdictional error and that it is difficult to see how a conclusive or definitive finding could realistically have altered the decision.

42    These submissions must be rejected. As has been said above, the Tribunal’s weighing of the respondent’s claim (at [105]) went no higher than to be in favour of revocation “to a greater or lesser extent”. Such a statement indicates that it could have been open to the Tribunal to find that the claim did weigh to a greater extent in the respondent’s favour had the Tribunal actively engaged with the claim. The finding (at [105]) “to a greater or lesser extent” must be read in the context of the Tribunal’s statement at [106]):

The actual seriousness of [the respondent’s] offences are not so gross that it is inevitable that they are regarded as so outweighing the potential non-refoulement obligations that the latter can be set aside easily.

(Citations omitted.)

43    The primary judge was correct to conclude (at [49]) that, if the Tribunal had properly engaged with the respondent’s representation about the risk of harm on return, it could have reached a different conclusion.

44    As the Tribunal did not quantify or assess the extent of the risk of harm that the respondent would face if he were to be removed to Iraq, beyond a bare reference to “some risk” it is impossible to attach any particular weight, large or small, to that consideration in order to perform the balancing exercise required by Direction 65 and thus to know whether or not such a finding could have played a small or large part in the outcome and the Tribunal’s weighing exercise.

45    In those circumstances the need to establish a “realistic” possibility of a different non-fanciful outcome is satisfied: SZMTA (at [45] and [48]). The primary judge was correct to find (at [48]) that if the Tribunal had assessed the type and extent of harm feared, this could have been “properly brought into account” in its weighing process and a different result could have been reached.

CONCLUSION

46    As it has not been demonstrated that the primary judge erred, it is unnecessary to address the notice of contention. The appeal must be dismissed with costs.

Associate:

Dated:    1 October 2020