Federal Court of Australia

XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant will pay the first respondent’s costs of and incidental to the appeal, 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:

Introduction

1    The appellant appeals from the orders made by the primary judge on 13 March 2020 to dismiss his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to revoke the cancellation of the appellant’s Refugee and Humanitarian (Class XB) visa subclass 200 (Refugee).

2    In essence, by the amended notice of appeal, the appellant contends that the Tribunal fell into jurisdictional error in the following four respects:

(1)    the Tribunal failed to cumulatively weigh those considerations favouring revocation of the cancellation decision against those considerations tending against revocation (ground 1);

(2)    the Tribunal misunderstood the legal consequences of its decision and the likely course of decision-making under the Migration Act 1958 (Cth) (the Act) (ground 2);

(3)    the Tribunal failed to consider representations as to the consequences if the cancellation decision was not revoked (ground 3); and

(4)    the Tribunal proceeded on an erroneous assumption of law as to the manner in which Australia’s non-refoulement obligations would be considered if the appellant applied for a protection visa (ground 4).

3    For the reasons set out below, none of these grounds is established and the appeal must be dismissed.

4    Finally, we note that, in correspondence shortly before the hearing, the Court drew to the parties’ attention the fact that the High Court appeal in S270/2019 (proceeding S47 of 2020) (S270/2019), which was listed for hearing on 5 August 2020, appeared to raise issues relevant to ground 2 of the notice of appeal. However, the appellant’s counsel advised that the appellant did not wish the Court to defer the giving of judgment pending the outcome of that appeal given that he had been in gaol or immigration detention for over four years and that this case may be distinguishable from S270/2019. Given that the Minister adopted a neutral position on the issue, the Court decided to follow the course suggested by the appellant and not to await the decision of the High Court before delivering judgment.

Background

5    The appellant, who is a citizen of Myanmar, was born there on 6 September 1974. He and his wife, who is also a citizen of Myanmar, married in 2000. They have one daughter and three sons. The appellant and his family are Christians and of Chin ethnicity.

6    Facing persecution in Myanmar, the appellant fled to Malaysia in 2008. His wife and their youngest child joined him there in 2010. Their fourth child was born in Malaysia in 2011.

7    On 20 February 2013, the appellant, his wife and their two youngest children entered Australia as the holders of refugee visas. The appellant had been granted a refugee visa on the basis that, among other things, he was subject to persecution in his home country, Myanmar. The two oldest children were later reunited with the family in Australia in 2014.

8    On 13 September 2016, the appellant pleaded guilty in the County Court of Victoria to a number of offences committed against his wife and children, including assaults and threats to kill. The County Court sentenced the appellant to a total effective sentence of 20 months imprisonment with a non-parole period of 12 months imprisonment.

9    On 6 October 2016, while the appellant was serving that sentence, a delegate of the Minister decided to cancel the appellant’s refugee visa pursuant to s 501(3A) of the Act. The delegate found that, due to the sentence of 12 months’ imprisonment for one of the threat to kill convictions, the appellant had a substantial criminal record and did not pass the character test.

10    On 11 October 2016, the appellant asked the Minister to revoke the decision to cancel his visa pursuant to s 501CA of the Act.

11    On 4 September 2017, a delegate of the Minister refused to revoke the cancellation of the appellant’s refugee visa.

12    On 7 September 2017, the appellant applied to the Tribunal for review of the refusal to revoke the cancellation of his refugee visa.

13    On 29 November 2017, the Tribunal affirmed the decision to refuse to revoke the cancellation of the appellant’s refugee visa.

14    On 16 March 2018, the appellant filed an application for an extension of time in which to seek judicial review of the Tribunal’s decision.

15    On 29 January 2019, the primary judge made the following orders (among others):

2.     The applicant have leave to file an amended application for an extension of time within which to make an application for a remedy under s 476A(1)(b) and (c) of the Migration Act 1958 (Cth).

3.     Pursuant to section 477A(2) of the Migration Act the period within which the applicant might make an application to the Court for a remedy under section 476A(1)(b) and (c) of the Act is extended to 14 September 2018.

16    On 5 February 2019, the Court granted the appellant leave to file and serve a second further amended originating application.

17    On 13 March 2020, the primary judge delivered reasons for judgment and made orders dismissing the appellant’s application for judicial review: XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 (primary judgment).

The grounds

18    On 9 April 2020, the appellant filed a notice of appeal from the orders of the primary judge. The grounds of appeal may be broadly summarised as follows:

(1)    ground 1 – the primary judge erred in not finding that the Tribunal:

(a)    failed to comply with Direction No. 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No. 65), the binding direction issued by the Minister under s 499 of the Act;

(b)    otherwise failed to exercise the discretion or carry out the statutory task in s 501CA(4) of the Act by failing to weigh “the primary” and “other considerations” in Direction No. 65 and in particular to weigh the considerations that were in favour of revocation of cancellation of the appellant’s refugee visa against those considerations that were not. The appellant said that the Tribunal failed to take into account the cumulative effect of, or cumulative weight to be given to, the considerations that were in favour of revocation of cancellation of the appellant’s refugee visa and the primary judge erred in rejecting that argument at first instance;

(2)    ground 2 – the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to carry out the statutory task under s 501CA of the Act in that the Tribunal found that the appellant’s ability to apply for a protection visa went:

(a)    “a considerable way towards addressing any concerns the Tribunal might have about the risk of harm should the Tribunal not revoke the decision to cancel his visa”: Tribunal’s Reasons, [117]; and

(b)    “a considerable way towards addressing any concerns that XFKR will be permanently detained if the Tribunal does not revoke the decision to cancel his visa” (original emphasis): Tribunal’s Reasons, [122].

The appellant said that the Tribunal’s Reasons indicate a lack of understanding on the part of the Tribunal that any further application for a protection visa would, it was argued, “almost certainly be refused”. It was said that the primary judge erred in rejecting this argument by the appellant;

(3)    ground 3 – the primary judge erred in not finding that the Tribunal’s decision is affected by jurisdictional error on the basis that the Tribunal denied the appellant procedural fairness or failed to carry out the statutory task under s 501CA of the Act by failing to consider the representations made by the appellant about the effect of revocation of the cancellation of his visa. It was also said that any removal of the appellant to Myanmar and the resulting separation from his wife and four children and its psychological consequences would be inconsistent with Australia’s obligations under the Convention on the Rights of the Child (CROC) and would not be the subject of consideration in any future protection visa application made by the appellant. The appellant’s ground states that the primary judge erred by not accepting this submission; and

(4)    ground 4 – the Tribunal made an error of the kind identified in Ali v Minister for Home Affairs [2020] FCAFC 109; 380 ALR 393 (Ali) by failing 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 of the Act. The appellant’s ground contended that the Tribunal erred by considering that “any concerns [the appellant] has in relation to non-refoulement obligations or risks of harm he may face if he returned to Myanmar can be addressed by a protection visa application and the detailed review that occurs when an application of that sort is assessed”.

Ground 1

Appellant’s submissions on ground 1

19    The appellant submits that Direction No. 65 required the Tribunal to take into account the “primary considerations” and the “other considerations” relevant to the appellant’s case. The appellant submits that, in taking those considerations into account, the Tribunal was obliged to weigh them all against each other and, in particular, to weigh those considerations that were in favour of revocation of visa cancellation against those considerations that were not.

20    The appellant submits that the Tribunal failed to comply with this obligation because, on a fair reading of the Tribunal’s decision as a whole, three matters arise. First, the appellant submits that the Tribunal first weighed the primary considerations against each other and, having done so, concluded that the best interests of the appellant’s children were outweighed by the other two primary considerations. Second, the appellant submits that the Tribunal then subsequently weighed each individual other consideration against the Tribunal’s adverse conclusion on the primary considerations and, in each instance, found that the individual other considerations did not outweigh that adverse conclusion on the primary considerations. Third, the appellant submits that, as a consequence, the Tribunal failed to take into account the “cumulative effect of, or cumulative weight to be given to, the considerations that were in favour of revocation of the appellant’s refugee visa”. These submissions were also made before the primary judge.

21    In this regard, the appellant relied in particular on the Tribunal’s Reasons at [124]-[125] (quoted below) where, in the appellant’s submission, the Tribunal posed the wrong question for the purposes of discharging its statutory task under s 501CA. While the appellant submits that the Tribunal had to weigh all of the considerations in favour of revocation against all of those against revocation, in the appellant’s submission, the Tribunal erred at this point in its Reasons by “effectively picking off each favourable consideration individually”. The appellant relied upon other examples in the Tribunal’s Reasons also said to illustrate the same error.

22    The appellant submits that the primary judge erred in rejecting his submissions on this ground. The appellant contends that a fair reading of the Tribunal’s Reasons as a whole demonstrates that the Tribunal engaged in a “piecemeal rejection” of the individual other considerations weighing in favour of revocation of the visa cancellation. It was said that the Tribunal separately weighed each of those favourable other considerations against its adverse conclusion on the primary considerations.

Minister’s Submissions on ground 1

23    The Minister submits that this ground was correctly rejected by the primary judge in his Honour's reasons at [86] which stated:

Had the Tribunal’s path of reasoning terminated at [142], there might have been some force in the applicant’s claims that the Tribunal had failed to consider cumulatively those matters that favoured revocation of the decision to cancel the applicant’s visa. However, it is tolerably clear from [151]-[152] of the written statement … that the Tribunal considered the cumulative effect of all the considerations that favoured revocation against the considerations that favoured cancellation, and engaged in an overall balancing exercise before reaching the conclusion that the original decision to cancel the applicant’s visa should not be revoked.

24    The Minister submits that the primary judge was correct to reject the criticism of the Tribunal’s Reasons. The Minister contends that the Tribunal weighed the primary and other considerations, which to some extent overlap, and, having weighed all considerations, reached the conclusion that the original decision to cancel the appellant’s visa should not be revoked.

25    The Minister submits that, on a fair reading of the Tribunal’s Reasons, it is not possible to conclude that the Tribunal did not weigh both primary and other considerations in arriving at its conclusion.

Consideration of ground 1

26    Section 501CA(4) of the Act provides as follows:

(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.

27    The appellant accepted that ultimately ground 1 of the amended notice of appeal turns upon the proper construction of the Tribunal’s Reasons. In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).

28    The Tribunal's Reasons reveal that the Tribunal undertook a detailed and well-reasoned consideration of the issues which were raised by the review of the decision of the Minister’s delegate (to refuse to revoke the mandatory cancellation of the appellant’s visa) pursuant to s 501CA(4) of the Act. Fairly read, the Tribunal did not ultimately fail to weigh the considerations cumulatively, even though at individual points in its Reasons it might be considered to have weighed one consideration only against the countervailing considerations.

29    The Tribunal first identified the issue for its consideration as being whether the discretion in s 501CA(4) of the Act should be exercised in the appellant’s favour having regard to the considerations identified in Direction No. 65: Tribunal’s Reasons, [11]. In addressing this issue the Tribunal correctly found that it was bound by s 499(2A) of the Act to comply with Direction No. 65: Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [41] (the Court). This meant that it was required to take into account the “primary” and “other” considerations specified in Direction No. 65 and relevant to the appellant’s case in determining whether or not to revoke the cancellation of his visa: Direction No. 65, paragraph 8.

30    The primary considerations that the Tribunal must take into account under Direction No. 65 in deciding whether to revoke the cancellation of the appellant’s visa were, as the Tribunal stated, protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and expectations of the Australian community: see Direction No. 65, paragraph 13(2).

31    The Tribunal assessed each of those primary considerations by reference to a detailed analysis of the evidence, the statements of facts, issues and contentions filed, and the parties’ submissions. The Tribunal concluded as follows at [70]:

For the reasons outlined above, the Tribunal doubts whether XFKR’s rehabilitation and therapeutic efforts will prove successful long term. While commendable, on the evidence the Tribunal finds that there remains a real risk that XFKR will continue to abuse alcohol if released into the community. This poses an unacceptable risk to the Australian community as there is a risk that he will then reoffend. Given the violent nature of his crimes, directed as they were at his wife and young children, this is an unacceptable risk to the community and weighs against any revocation of the decision to cancel XFKR’s visa.

32    The Tribunal then turned to consider the primary consideration of the best interests of minor children in Australia. The Tribunal recorded that the appellant is the biological father of four minor children residing in Australia. The Tribunal then at [72]-[81] considered the evidence, the statements of facts, issues and contentions filed, and the parties’ submissions and concluded (at [82]) with respect to the primary consideration of best interests of minor children in Australia that:

Based on the evidence presented, the Tribunal accepts that it is in the best interests of XFKR’s children [that] the decision to cancel XFKR’s visa be set aside and XFKR’s visa … be reinstated and that this conclusion weighs in XFKR’s favour. However, this consideration is tempered by the effect that XFKR’s offending has had on his children, which lessens its weight. Overall, and in any event, this consideration in his favour does not outweigh the nature and seriousness of XFKR’s crime and the risk, which is significant, to the Australian community and his family should XFKR reoffend.

33    The Tribunal then considered the third primary consideration in Direction No. 65, being the expectations of the Australian community. The Tribunal at [83]-[86] considered the evidence, the statements of facts, issues and contentions filed, and the parties’ submissions and concluded as follows at [87]:

The Tribunal is of the view that women and children have rights to live without fear of violence and that the majority of Australians would find domestic violence to be a most disturbing crime with far reaching negative consequences. In the circumstances of this matter, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as XFKR, who was convicted of very serious domestic violence offences, who has shown disregard for the laws of Australia and who has shown a lack of insight into the nature and consequences of his conduct should expect to lose his visa.

34    The Tribunal then took into account the “other considerations” in paragraph 14(1) of Direction No. 65. The Tribunal’s Reasons record that it had been agreed that, in relation to other considerations in paragraph 14(1) of Direction No. 65, three were relevant, namely international non-refoulement obligations, strength, nature and duration of ties, and extent of impediments if removed: Tribunal’s Reasons, [88]-[89].

35    The Tribunal observed that another consideration that may be relevant in the present case relates to the risk of permanent detention in Australia should the appellant’s visa remain cancelled: Tribunal’s Reasons, [89]. The Tribunal then proceeded to consider the evidence, the statements of facts, issues and contentions filed by the parties, and the parties’ submissions in respect of those three other considerations in Direction No. 65: Tribunal’s Reasons, [90]-[132].

36    The Tribunal considered Australia’s international non-refoulement obligations: Tribunal’s Reasons, [90]-[129]. The Tribunal considered the evidence, the statement of facts, issues and contentions filed by the parties and their submissions, and observed that, in assessing any international non-refoulement obligations that might arise if the appellant returned to Myanmar, the level of analysis required by the Tribunal is less than that required in assessing a claim for a protection visa: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [28]. The Tribunal then stated:

93.    Nor, it should be stressed, could the Tribunal 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. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time (here, less than four days from final oral submissions), the Tribunal does not have the benefit of an ITOA or the full (and much needed) body of evidence one would expect (and which an applicant deserves) in a protection visa hearing.

94.    In relation to this matter, the only information before the Tribunal regarding XFKR’s country of origin was a recent report from DFAT (R3) in relation to the country information of Myanmar (“Myanmar Report”) provided by counsel for the Respondent at very late notice and dated (and at best sketchy) information from XFKR himself (much of which formed the basis of his original refugee claim). No recent country information was provided by XFKR’s counsel and counsel objected to the use of the tendered DFAT country information on the basis that it had been submitted very late in the piece. While the Tribunal has some sympathy for counsel in relation to the late filing of otherwise relevant country information, the Tribunal was somewhat perplexed at counsel for XFKR’s suggestion that applicants in proceedings of this sort are not required to provide assistance to the Tribunal in relation to the assessment of any harm that an applicant might face if deported. The Tribunal rejects this approach. Nor does the Tribunal accept that an experienced advocate briefed by one of this country’s leading and most respected advocacy groups would be caught off guard by the provision of updated DFAT country information. One would expect all advocates, whether they are representing an applicant or the Minister, to be prepared to assist the Tribunal in determining whether an applicant will be harmed if deported. At a minimum, the relevant DFAT country information is a starting point for an analysis of that sort.

95.    The Tribunal can only assess the often limited evidence before it in determining any risk of harm to XFKR. Here, that evidence was indeed scant. This is less than ideal given the possible negative consequences for an applicant in this context.

…

116.     … Counsel for the Minister … reiterated that it is not the Minister's intention to breach Australia's treaty obligations and re-foule someone in circumstances where they have been identified to be at risk of harm if returned to their country of origin.

117.    This Tribunal accepts this to be the case and finds that any concern that arises here in relation to XFKR being deported if the decision to cancel his visa is not revoked is minimised by a clear commitment from the Australian government not to re-foule anyone who is owed protection once that need for protection is properly assessed. In this context, it is noted that XFKR can now apply for a protection visa. This too goes a considerable way towards addressing any concerns the Tribunal might have about the risk of harm should the Tribunal not revoke the decision to cancel his visa.

…

122    It is clear here that it remains open for XFKR to apply for a protection visa. This goes a considerable way towards addressing any concerns that XFKR will be permanently detained if the Tribunal does not revoke the decision to cancel his visa. Permanent detention is not a “given” here as other avenues are indeed open. These include an application for a protection visa and a bridging visa pending resolution of XFKR’s protection visa application.

123.    Overall, the Tribunal does accept that non-refoulement obligations do arise here and that, accordingly, there is at least some prospect that, at some point in the future, XFKR may face permanent detention. That is not, however, a given and it cannot be determined here on limited evidence whether or not that will indeed occur. It is, however, a relevant consideration and concern.

(Emphasis added.)

37    Significantly, in a passage on which the appellant placed particular reliance, the Tribunal found that:

124.    The question the Tribunal needs to ask here, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.

125.    The Tribunal finds that these findings do not outweigh the primary considerations outlined above. The Tribunal finds that, on the limited evidence before it, XFKR may face harm if returned to Myanmar. He may also equally face hardship if indefinitely detained at some undetermined point in the future. The evidence in support of these findings is, however, scant.

38    The Tribunal continued:

127.    The Tribunal needs to weigh any concerns it does have in relation to refoulement (which may not occur on the Minister’s statements) and permanent detention (which, again, is not a given on the evidence here because other options still exist) with the very strong concerns outlined above in relation to the seriousness of XFKR’s crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on clear and unequivocal evidence.

39    The Tribunal then concluded with respect to the other considerations, being Australia’s international non-refoulement obligations, as follows:

128.    Overall, the Tribunal does not accept that these secondary considerations outweigh the primary considerations detailed above. Noting that the primary considerations in Direction No. 65 (based here on very clear evidence) are normally given greater weight than the other considerations (here, based on less than complete evidence), the Tribunal finds that the primary considerations here clearly outweigh any secondary considerations.

40    In respect of paragraph 14.2(1) of Direction No. 65, requiring the Tribunal to consider the appellant’s ties to Australia, the Tribunal concluded as follows at [135]:

… While the Tribunal finds that XFKR does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above.

41    The Tribunal then turned to consider paragraph 14.5(1) of Direction No. 65, being the extent of any impediments if the appellant was removed from Australia to the appellant’s home country. The Tribunal at [141] found as follows:

The Tribunal also notes and repeats its comments above in relation the risk of possible physical harm for XFKR if he is deported. As above, the Tribunal finds that any risk of harm is minimised by the fact that XFKR can apply for a protection visa and will not be returned if he is found to be owed protection.

42    The Tribunal, having considered the primary considerations and other considerations as identified above, then, at [143]-[153], under the heading “Conclusion”, set out the outcome following the Tribunal’s deliberation in considering the primary and other considerations as identified in Direction No. 65 and found:

(1)    the appellant has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Act: Tribunal’s Reasons, [144];

(2)    in determining whether there is any reason why the decision to cancel the appellant’s visa should be revoked, the Tribunal attached significant weight to the seriousness of the appellant’s offending being crimes of violence, committed against his wife and young children. The Tribunal stated that the appellant should, pursuant to paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia: Tribunal’s Reasons, [145]-[147];

(3)    the Tribunal found that there remains an unacceptable risk that the appellant may engage in further criminal conduct if he remains in Australia and may pose a risk to the Australian Community as a consequence: Tribunal’s Reasons, [148];

(4)    the Tribunal found that the appellant has failed to recognise the gravity of his offending or the reasons for it. The Tribunal stated that, despite some rehabilitation efforts, the appellant has not been tested in the community and fails to understand the reasons for, and the harms of, domestic violence: Tribunal’s Reasons, [149]; and

(5)    the Tribunal found that, given the nature of the crimes committed and the prospect of future offending, the Australian community would expect that the appellant’s visa would remain cancelled. The Tribunal said this is the position despite the difficulties the appellant’s family will face if he is returned to Myanmar: Tribunal’s Reasons, [150].

43    Importantly, at [151]-[153] the Tribunal concluded its balancing assessment of the various considerations as follows:

151.    There are considerations that weigh in favour of revocation of the decision to cancel XFKR’s visa. These include his ties to the Australian community, the best interests of his children and the extent of the impediments he may face if returned to Myanmar. The Tribunal also finds, on the rather limited evidence before it, that Australia may owe non-refoulement obligations to XFKR.

152.    The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above. The Tribunal notes that any concerns XFKR has in relation to non-refoulement obligations or risks of harm he may face if returned to Myanmar can be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed. In this context, any concerns that arise in relation to refoulement and the risk of mandatory detention are clearly outweighed by the primary considerations detailed above – findings which are based on the unequivocal evidence before the Tribunal.

153.    Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of XFKR’s visa.

(Emphasis added.)

44    The appellant accepted that “on its face” the Tribunal’s findings at [152] indicated that it had weighed the different considerations cumulatively at this point of its Reasons but said that “when read as a whole this doesn’t sweep away the Tribunal’s defective reasoning that has gone before.”

45    We do not agree. We do not detect any error in the task which the Tribunal undertook in weighing the primary and other considerations under Direction No. 65. Rather, as the Minister submits, irrespective of whether the Tribunal misstated the question earlier in its Reasons (by way of example, at [124]-[125] (extracted above)), it clearly weighed the considerations cumulatively at [151]-[153] and did so in its conclusion where logically one would expect that process to occur. These paragraphs cannot be ignored.

46    It follows that we do not accept the appellant’s submission that the Tribunal failed to take into account cumulatively the matters favourable to the appellant. Contrary to the appellant’s submission, we are not persuaded that the Tribunal “distracted itself from an assessment of the cumulative weight to be afforded to the favourable other considerations and the favourable primary consideration concerning the best interests of the appellant's children”. A fair reading of the Tribunal’s Reasons, as a whole, discloses that the Tribunal weighed the primary and other considerations which it was tasked to do in a careful and reasoned way before arriving at its conclusion: Tribunal’s Reasons, [145]-[153].

47    The decision of the Tribunal with respect to ground 1 is not affected by any jurisdictional error. It follows that the primary judge was correct to dismiss ground 1.

Ground 2

Appellant’s submissions on ground 2

48    It was not in dispute before the Tribunal that the appellant is a refugee and therefore a person in respect of whom Australia owes non-refoulement obligations: Tribunal’s Reasons, [96]-[100], [103] and [123]. However, the appellant submits that the Tribunal’s reliance on the appellant’s ability to apply for a protection visa in the future was problematic. The appellant pointed to the Tribunal’s statements that the ability to apply for a protection visa went “a considerable way towards addressing any concerns the Tribunal might have about the risk of harm should the Tribunal not revoke the decision to cancel his visa”: Tribunal’s Reasons, [117]; and “a considerable way towards addressing any concerns that XFKR will be permanently detained if the Tribunal does not revoke the decision to cancel his visa”: Tribunal’s Reasons [122], emphasis in the original. The appellant submitted before the primary judge, and maintains, that these statements demonstrate that the Tribunal misunderstood “the legal consequences of its decisions”.

49    The appellant submits that, whilst it may be accepted that, by reason of the prospect of a successful visa application, the consequences for a particular individual will not necessarily involve removal from Australia or indefinite detention, it is only a successful visa application which is capable of avoiding removal or indefinite detention: see DQM18 v Minister for Home Affairs [2020] FCAFC 110 (DQM18) at [107] per Bromberg and Mortimer JJ.

50    The appellant submits that he had not made an application for a protection visa or indicated an intention to make such a visa application at the time of the Tribunal’s decision. The appellant contends that no visa application might ever have been made and, even if the appellant were to apply for a protection visa, any such application would “almost certainly be unsuccessful” given the criteria for a protection visa in ss 36(1C) and 36(2C) of the Act and because the Tribunal and the delegate of the Minister had found the appellant posed an “unacceptable risk” to the community. In this respect, the appellant pointed to a statement by the Minister’s delegate (in its Statement of Reasons for Decision dated 4 September 2017) which referred to this unacceptable risk and similar statements in the Tribunal’s Reasons at [65], [70] and [148]-[149].

51    Section 36(1C) of the Act provides that:

A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

52    Section 36(2C)(b) in turn provides that a person is taken not to satisfy the complementary protection criterion for a protection visa in s 36(2)(aa) if the Minister considers on reasonable grounds that the non-citizen (relevantly) is a danger to Australia’s security or, having been convicted of a particularly serious crime, is a danger to Australian community. The appellant also submits he would almost certainly fail to meet cl 866.225 of Sch 2 to the Migration Regulations 1994 (Cth) requiring an applicant for a protection visa to satisfy public interest criterion 4001 in Sch 4 to the regulations, namely, that the person passes the character test.

53    In these circumstances, the appellant submits it was simply not open to the Tribunal to find that a mere ability on the part of the appellant to apply for a protection visa went “a considerable way towards addressing any concerns” about the appellant being removed from Australia or indefinitely detained. These statements (ie that any application for a protection visa went a “considerable way” to address the relevant concerns) appear in the Tribunal’s Reasons at [117], [122], [126] and [141].

54    The appellant submits that the Tribunal was obliged to confront the likely consequence of its decision that the appellant would ultimately be removed to Myanmar or indefinitely detained, and it did not do so: DQM18 at [109]. In this respect, Bromberg and Mortimer JJ stated the following at [107] and [109] in DQM18:

It may be the case that legal and factual consequences in the situation of a particular individual will “not necessarily” involve removal or indefinite detention, because of the prospect of a successful visa application. It is important … [to note that] that it is only a successful visa application which is capable of avoiding removal or indefinite detention. The fact of a visa application itself is no more than a temporary delay to removal or in some limited circumstances a temporary reprieve from indefinite detention. The fact of a visa application may otherwise form part of a period of indefinite detention if a person is not released into the community on a bridging visa while the visa application is processed …

…

We do not accept that the Assistant Minister was entitled to ignore the realities of the [DQM18] appellant’s circumstances in the way he did. In the absence of any [International Treaties Obligations Assessment (ITOA)], in the absence of any decision about the appellant’s nationality and which of Sudan or South Sudan would accept him, the prospect of indefinite detention was real. The Assistant Minister addressed the appellant’s legal entitlement to apply for the protection visa and addressed the contents of Direction 75, which the Assistant Minister found was likely to require a delegate to consider any non-refoulement obligations owed to the appellant. However, this did not grapple with the realities of the appellant’s situation. The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant’s indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur. If the situation in whichever of Sudan or South Sudan the appellant could be returned to was such that Australia’s international obligations might preclude removal, albeit that the appellant has no visa, then the reality for him would be indefinite detention. The Assistant Minister was required to confront this and deal with it in his reasons.

55    Finally, the appellant contended that if the Tribunal had properly understood that it was “all but inevitable” that a protection visa application would fail leading either to his return to Myanmar or indefinite detention, this could have realistically made a difference to the Tribunal’s decision given its focus upon the appellant’s ability to apply for a protection visa.

Minister’s submissions on ground 2

56    The Minister submits that a fundamental distinction must be drawn between a misunderstanding by the Tribunal of the legal consequences prescribed by the Act, on the one hand, and speculation about how a power may be exercised in the individual case at some future time based upon the evidence before that decision-maker, on the other hand. He submits that the appellant’s submission in support of ground 2 falls within the latter category and that, as a result, the appellant has not established that the Tribunal misunderstood “the legal consequences of its decision” and therefore fell into jurisdictional error.

57    The Minister submits that the Tribunal was correct to appreciate that if (as it transpired) the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the appellant’s visa, then the appellant could apply for a protection visa. Section 501E of the Act expressly contemplates that a person in the appellant’s circumstances can apply for a protection visa: Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 (Sowa) at [18]; see s 501E(2)(a).

58    The Minister submits that s 198 of the Act must be construed as accommodating the exercise of that right, and s 197C of the Act does not in any way prevent the exercise of that right. In this regard, the Minister cited SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1 at [52] per Rares, Perram and Griffiths JJ, where their Honours stated that “… s 197C does not prevent the officer referred to in s 198 from detaining a person whilst the Minister decides to consider assessing whether to lift the bar under ss 48B, 195A and 417”. The Minister submits that s 197C speaks to “the irrelevance of Australia’s ‘non-refoulement obligations’ to the discharge of the removal duty, not the irrelevance of the availability of a right to apply for a protection visa”.

59    Accordingly, the Minister submits that removal under s 198 (or “indefinite detention” if removal is not practical) is not a necessary consequence of a decision not to revoke the cancellation of a non-protection visa (the Minister cited (among other authorities) AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 (AZAFQ) at [70] and DQM18 at [107]). In AZAFQ, Allsop CJ, Robertson and Griffiths JJ stated at [70] that the “further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention”.

60    The Minister submits that it was misconceived for the appellant to submit that the Tribunal had misunderstood the operation of the Act on the basis that, in the appellant’s submission, the Tribunal’s Reasons reflect (a) a failure to appreciate that the grant of a protection visa would be “highly improbable” and (b) that any application would “almost certainly be unsuccessful”, and therefore the removal or indefinite detention of the appellant was “likely”.

61    The Minister submits that there was no evidentiary basis for the appellant to submit that the grant of a protection visa would be “highly improbable” or “almost certainly unsuccessful”. The Minister submits that a protection visa application, including any consideration of refusal under s 501 of the Act, would be determined by reference to the claims and the evidence that the appellant provides in the course of that application. The Minister submits that there is no reason to suppose that the evidence that would be advanced by the appellant, or otherwise obtained and considered by the decision-maker, would be as “scant” as that before the Tribunal.

62    For these reasons, the Minister submits there is no basis to impute jurisdictional error in the Tribunal’s Reasons.

Consideration of ground 2

63    The primary judge was correct to reject the appellant’s claim that the Tribunal misunderstood the course of decision-making under the Act. As the primary judge observed at [90], the Tribunal directed attention to three possibilities. First, deportation; second, indefinite detention; and third, the prospect that the appellant might be granted a visa. By addressing these three possibilities, the Tribunal gave attention to what, in fact, would be the possible course of decision-making: DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 (DOB18) at [165] (Robertson J with whom Logan J at [38] agreed).

64    The primary judge was correct to find that there was no material error in this approach by the Tribunal. As the primary judge observed at [90], it is clear from the Tribunal’s Reasons that it understood that there was the possibility that, if the appellant applied for a protection visa, it might not be granted. The primary judge identified that the Tribunal, at [125], [141] and [151] of its Reasons, considered the appellant’s claims of potential harm in Myanmar upon the hypothesis that he would be deported. The Tribunal then at [129] stated that it made no comment as to the prospects of any future protection visa application by the appellant. The primary judge also observed that the Tribunal considered the possibility that the appellant might face indefinite detention and this necessarily proceeded upon the premise that a protection visa might not be granted.

65    The primary judge was correct to find at [91] that there was no material error by the Tribunal in considering the possibility that the appellant might be granted a visa. As the primary judge observed at [91]:

(1)    the application of s 501(1) of the Act and cl 4001 of the Regulations, if applicable, would involve exercises of discretion by the Minister upon considering the application;

(2)    that discretion would likely fall to be exercised after the appellant’s claims for protection had been assessed, as Direction No. 75 contemplates;

(3)    the disqualifying criteria in s 36(1C) and s 36(2C)(b)(ii) of the Act are to be assessed at the time of consideration of the application for the protection visa on the basis of any claims that the appellant might then put; and

(4)    there is the further issue that, for the purposes of the disqualifying criteria in s 36(1C) and s 36(2C)(b)(i) of the Act relating to protection visas, “danger” may not be the same as “risk”: see DOB18 at [69]-[72]. As Logan J stated in DOB18 (at [69]):

… the Minister has not, in making his national interest assessment, even purported to assess whether, in terms of s 36(1C)(b), the appellant “is a danger to the Australian community”. Contrary to the assumption underpinning the appellant’s submissions, it should not be assumed that the Minister’s inability to “rule out the possibility of further offending” …, which informed his conclusion that the appellant represented “an unacceptable risk of harm to the Australian community” …, is to be assimilated with the subject for satisfaction posited by s 36(1C)(b) of the Act

66    The primary judge considered the Tribunal’s reference, at [113] of its Reasons, to the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth): see [92] of the primary judgment. The primary judge also considered the submissions by Counsel for the Minister before the Tribunal that it was not the Minister’s intention to breach Australia’s treaty obligations. The primary judge correctly found that there was no material error in how the Tribunal treated those matters. As the primary judge observed at [92], the Tribunal found on the limited evidence before it that the appellant faced at least some risk of harm if returned to Myanmar and, the Tribunal accepted at [123] of the Tribunal’s Reasons, that non-refoulement obligations were owed in respect of the appellant. The Tribunal further found at [117] that any concern that the appellant might be deported was minimised by the Australian government’s commitment not to refoule anyone in respect of whom protection is owed.

67    The primary judge was correct to find at [93] of the primary judgment that there was no material error by the Tribunal in finding, at [141] of the Tribunal’s Reasons, that any risk of harm to the appellant, if he was deported, was minimised by the fact that he could apply for a protection visa, and would not be refouled if he was found to be owed protection. As the primary judge correctly identified, the Tribunal’s Reasons at [141] are fairly to be understood as picking up its earlier path of reasoning at [122]-[129]. As the primary judge went on to consider, the risk of harm to which the Tribunal referred was considered by the Tribunal for the purposes of evaluating the extent of impediments if the appellant was removed to Myanmar in addition to the consideration of non-refoulement obligations. As to that risk of harm, the primary judge identified that the Tribunal accepted that non-refoulement obligations were owed. The Tribunal did not state that the risk would be eliminated by the fact that the appellant could apply for a protection visa, but only that it would be minimised.

68    We find no appellable error in the primary judge’s reasons or analysis for rejecting the appellant’s claim that the Tribunal misunderstood the course of decision-making under the Act. It follows that ground 2 must be rejected.

Ground 3

Appellant’s submissions on ground 3

69    The appellant submits that he advanced substantial arguments before the Tribunal that, if the visa cancellation was not revoked, the result of the separation from his wife and children and its psychological consequences would be inconsistent with Australia’s obligations under the CROC and would not be the subject of consideration in any future protection visa application that might be made by him.

70    The appellant submits that the Tribunal’s Reasons indicate that the Tribunal did not consider those arguments at all. The appellant submits that, had the Tribunal not failed to have regard to these matters, there was a realistic possibility that the outcome of the Tribunal’s decision would have been different.

Minister’s submissions on ground 3

71    The Minister accepted that the Tribunal was required to give active intellectual consideration to representations that were clearly made by the appellant. However, the Minister submits that it is the representations that are made to the Tribunal, as opposed to the delegate, that shape the Tribunal’s task: Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [87].

72    The Minister submits that the representations are a mandatory relevant consideration as a whole but not as to the individual statements contained in the representations. The Minister submits that the task of the Court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. The Minister submits that the Tribunal is not required to “refer in the reasons for decision to every piece of evidence and every contention made by an applicant” (citing Navoto at [88] which was quoting from Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]).

73    The Minister submits that, when these principles are applied to the present case, there is no demonstrated jurisdictional error. That is because, in the Minister’s submission, the “representation” upon which this ground relates was not made to the Tribunal. The Minister submits that no mention was made of Article 9 of the CROC in the appellant’s statement of facts, issues and contentions provided to the Tribunal. The Minister contends that the submissions made to the Tribunal focussed on the best interests of the appellant’s children. The Minister submits that, as Article 9 of the CROC was not pressed before the Tribunal, and could not be said to have been a substantial or clear submission to the Tribunal, there can be no jurisdictional error.

Consideration of ground 3

74    The Tribunal did not fall into jurisdictional error as contended by the appellant. There was a brief and opaque reference to the “family unity principle” attributed to Article 9 of the CROC in the appellant’s submissions dated 8 June 2017 advanced to the delegate. Those submissions stated that “the removal of [the appellant] and separation from his children would be inconsistent with Australia's obligations under the [CROC, and] that separation of family is not in the child’s best interest and contrary to the family unity principle (article 9 [of the CROC])”. There does not appear to be another reference to the CROC in these submissions.

75    There was no mention made of Article 9 of the CROC in the appellant’s submissions advanced in the Tribunal dated 20 October 2017. Those submissions:

(1)    referred to Article 3 of the CROC as being “in conformity” with the “best interests of minor children” consideration in Direction No. 65;

(2)    referred to the best interests of the appellant’s children by reference to paragraph 13.2(4)(f) of Direction No. 65; and

(3)    referred to Article 12 of the CROC which, it was submitted to the Tribunal, ensured the wishes of the appellant’s children was a “very important consideration that should not be overlooked or understated”.

76    The primary judge observed at [101] that a decision-maker does not fall into jurisdictional error merely by failing to consider every individual submission advanced on behalf of the appellant, still less every nuance or variation of that submission.

77    The primary judge correctly observed at [98] that the “pithy representations made on behalf of the applicant to the delegate with reference to the [CROC] did not materially add to the more detailed submissions that were the subject of the applicant’s contentions before the Tribunal …”: see also Tribunal’s Reasons, [101]. In other words, this is not a case where it can be said that the Tribunal overlooked “a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision” so as to establish jurisdictional error: Navoto at [85] (Middleton, Moshinsky and Anderson JJ) and the authorities there cited. The primary judge correctly observed at [101] that the Tribunal responded to the submissions and the evidence that were advanced to it. As such, the absence of specific discussion of Article 9 of the CROC does not establish jurisdictional error by the Tribunal. In any event, as the primary judge observed, Direction No. 65 “provided that the best interests of minor children are a primary consideration in deciding whether to revoke the original decision to cancel a visa” and the “Tribunal gave effect to this part of Direction No. 65 by addressing that topic”.

78    The primary judge also correctly identified at [102] that, even if, as part of its review function, the Tribunal was required, but failed, to give separate consideration to the appellant’s representations that are the subject of the third ground of review, in order to establish jurisdictional error, the appellant has to show that any such failure or breach was material, and a “breach is material to a decision only if compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 per Bell, Gageler and Keane JJ at [45], [46] and [49]. The primary judge also correctly identified that the Tribunal took account of the interests of the appellant’s minor children in a way that was favourable to the appellant.

79    For these reasons, even if there was a failure to consider the substance of the appellant’s arguments concerning the CROC, we are not persuaded that such consideration could realistically have resulted in a different decision. The primary judge was correct to find that there was no material error in the reasoning of the Tribunal.

80    There being no jurisdictional error by the Tribunal in relation to ground 3, the primary judge was correct to reject ground 3.

81    For these reasons, the appellant’s ground 3 must be rejected.

Ground 4

Appellant’s submissions on ground 4

82    The appellant seeks leave to rely upon a new ground, ground 4. The Minister did not oppose leave being granted to rely upon this new ground.

83    By ground 4, the appellant submits that the Tribunal made an error of the kind identified in Ali by considering that “any concerns [the appellant] has in relation to non-refoulement obligations or risks of harm he may face if returned to Myanmar can be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed”: Tribunal’s Reasons, [152].

84    The appellant submits that, in Ali, the Assistant Minister for Home Affairs purported to make a decision under s 501CA(4) of the Act not to revoke the cancellation of the visa held by the appellant in that case. The Assistant Minister stated that:

I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of … [the appellant] for the purposes of the present decision, as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application: Ali [6].

(Emphasis added.)

85    The appellant submits that the Full Federal Court (Collier, Reeves and Derrington JJ) found this statement demonstrated that the Assistant Minister had 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)”: Ali [107]. The Full Federal Court in Ali at [108] found that the Assistant Minister had “equated the issue of Australia’s non-refoulement obligations with the appellant’s entitlement to a protection visa”. That had resulted in error because, the Full Court observed at [110]:

… 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 tha[n] 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.

86    The Full Court concluded at [111] that:

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 [in ss 65 and 501CA of the Act]. 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.

(Emphasis added.)

87    The appellant accepted that, while in Ali the Minister had found that it was unnecessary to determine if non-refoulement obligations were owed, the Minister in this case and the Tribunal had accepted that non-refoulement obligations were in fact owed by Australia to the appellant. Nonetheless, the appellant submits that, in the present case, the Tribunal proceeded upon the same erroneous assumption of law as in Ali. The appellant pointed in particular to what the Tribunal stated at [152]:

The Tribunal notes that any concerns XFKR has in relation to non-refoulement obligations or risks of harm he may face if returned to Myanmar can be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed. In this context, any concerns that arise in relation to refoulement and the risk of mandatory detention are clearly outweighed by the primary considerations detailed above – findings which are based on the unequivocal evidence before the Tribunal.

(Emphasis added.)

88    The appellant submits that the Tribunal’s error is multifaceted. First, the appellant submits the Tribunal wrongly assumed that any risks of harm that the appellant claimed to face in Myanmar could be addressed in a future protection visa application. Second, the appellant submits the Tribunal wrongly equated Australia’s international non-refoulement obligations with the protection visa criteria in s 36(2) of the Act. Third, the appellant submits the Tribunal wrongly assumed that, in the conduct of its review of the exercise of power under s 501CA(4), “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”: Ali [114].

89    The appellant submits that the Tribunal’s alleged error was material to its decision because that error was no small part of the reason why the Tribunal gave less weight to the existence of non-refoulement obligations owed to the appellant. The appellant submits that this much is clear from the emphasised words “In this context” referred to in the above passage quoted from [152] of the Tribunal’s Reasons.

90    The appellant submits that context was the “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” of ss 65 and 501CA of the Act. The appellant submits that it was in that context that the Tribunal found that “any concerns that arise in relation to refoulement and the risk of mandatory detention are clearly outweighed by the primary considerations detailed above”: see Tribunal’s Reasons, [152].

91    In this way, the appellant submits that the Tribunal’s error materially affected the weight given by the Tribunal to, first, the existence of non-refoulement obligations owed by Australia to the appellant and, second, the breach of those obligations in the event of any removal of the appellant from Australia to Myanmar. In this respect, the appellant referred to submissions made to the Tribunal by the appellant concerning non-refoulement obligations. For example, the appellant referred to a submission to the Tribunal that “Australia does actually have international protection obligations to [XFKR], and would be in breach of those obligations if it returned him to Burma”. It was submitted to the Tribunal that this was “relevant in itself” and “one of the facts weighing in support of the favourable exercise of discretion under s 501CA(4)”.

92    For these reasons, the appellant submits that the fourth ground of appeal is made out.

Minister’s submissions on ground 4

93    The Minister submits that the factual context of Ali is quite different to the present case. In Ali, the appellant made clear representations to the relevant decision-maker that “specifically addressed” why his removal would breach certain non-refoulement obligations: Ali [5], [87]-[89].

94    The Minister submits that the Full Federal Court in Ali held that the Assistant Minister erred in various ways in stating that it was “unnecessary to determine whether non-refoulement obligations are owed in respect of [the appellant in Ali] for the purposes of the present decision, as he is able to make a valid application for a protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application”: see eg Ali at [6], [93], [95]-[120].

95    The Minister submits that, in the present case, the Tribunal made no such statement. The Minister submits that the Tribunal accepted that the appellant faces “at least some risk of harm” if returned to Myanmar, and that non-refoulement obligations “may” arise: Tribunal’s Reasons, [103], [123] and [151].

96    The Minister submits that the Tribunal expressly noted that it was constrained in its ability to properly assess this question, for two reasons.

97    First, there was limited time available to it, noting the effect of s 500(6L) of the Act: Tribunal’s Reasons, [92]-[93]. The Minister referred to RZSN v Minister for Home Affairs [2019] FCA 1731, in which Anderson J observed the following (at [34]-[35]):

Section 500(6L) was itself the subject of consideration by the Full Court in Somba v Minister for Home Affairs [2019] FCAFC 150. Consistent with the extrinsic material outlined above, the Full Court observed at [40] that “[t]he short, nine day time limit for instituting an application for review under s 500(6B) and the 84 day time limit in s 500(6L) itself evince a policy to truncate strictly the time that is taken for the Tribunal to review decisions to which s 500 applies. And, previously, in NZA v Minister for Immigration and Citizenship [2013] FCA 140; 140 ALD 555 at [144]-[145], Kenny J held that the time constraint imposed by s 500(6L) must be borne in mind in considering what procedural fairness requires of the Tribunal in the circumstances of each case. See also Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; 120 ALD 405 at [52] per Ryan, Bennett and Edmonds JJ.

Likewise, the analysis and construction of the reasons for a decision to which the time limit in s 500(6L) applies should be performed with an appreciation of the purpose and operation of that provision. It may be that, depending on the volume of material and the nature of the decision to be made, the Tribunal will not have the time it would consider optimal to fully critique and synthesise the relevant matters of fact and law to be determined. In these circumstances, the expression of the Tribunal’s reasons should not be held to a standard of perfection. A degree of practicality is warranted.

98    Second, the Minister pointed to the “scant” evidence before the Tribunal bearing on the existence of non-refoulement obligations: Tribunal’s Reasons, [94]-[95] and [125].

99    The Minister submits that the Tribunal did not “defer” consideration of a representation made by the appellant. Rather, the Tribunal did the best that could be expected of it, in light of the “scant” evidence. The Minister submits that the Tribunal at [125] considered that, on the “scant” evidence before it, the consideration of non-refoulement obligations was outweighed by other primary considerations. The Minister says that evaluation was open to the Tribunal.

100    The Minister submits that the Tribunal considered that the matter of non-refoulement obligations was “tempered” by the “prospect of a protection visa application that would allow for a full and detailed analysis of [the appellant’s] protection claims …”: Tribunal’s Reasons, [126]. The Minister submits that that statement reveals no jurisdictional error. The Minister contends that a protection visa application allows for consideration of “protection claims” – ie claims to satisfy the criteria for a “protection visa” by reference to the criteria that Parliament has selected to give effect to non-refoulement obligations including under the Refugees Convention: see eg FCS17 v Minister for Home Affairs [2020] FCAFC 68, such as the statements at [1]-[21] (per Allsop CJ) and [35]-[54] (per White and Colvin JJ), which analyse the relevant statutory criteria.

101    In any event, the Minister submits that, for any misunderstanding by the Tribunal to be jurisdictional, it must be material. Given the circumstances of this case, the “scant” evidence before the Tribunal, and the expedited timeframe to which the Tribunal was subject, the Minister submits that this Court should not be satisfied that the subtleties underlying the appellant’s submissions to this Court realistically could have made a difference in the result. In this regard, the Minister submits that this case is similar to the circumstances that were found to exist in AXT19 v Minister for Home Affairs [2020] FCAFC 32 (AXT19) at [31] and [54]. The Minister submits that the Tribunal engaged with the appellant’s representations (so far as they went), and gave them some weight in favour of revocation. The Minister submits that, given the limited material before the Tribunal, there was no realistic possibility that the Tribunal would have made a different decision, even if it did misunderstand the Act in the way alleged by the appellant.

Consideration of ground 4

102    The present case is different from the factual context of Ali in at least three ways.

103    First, as earlier explained, unlike the position in Ali the Tribunal in the present case did not defer consideration of protection claims. Rather, the Tribunal accepted that non-refoulement obligations do arise but observed that it could not determine whether or not that will occur on the limited evidence and the time available for its consideration: Tribunal’s Reasons, [123].

104    Second, the Tribunal made the statements set out at [36] above. The Tribunal at [92]-[93] found that, on the limited evidence before it, the appellant may face harm if returned to Myanmar and also equally faced hardship if indefinitely detained, but noted two matters:

(1)    the Tribunal did “not have the benefit of an ITOA or the full (and much needed) body of evidence one would expect (and which an applicant deserves) in a protection visa hearing”: Tribunal’s Reasons, [93]; and

(2)    the Tribunal could “only assess the often limited evidence before it in determining any risk of harm to XFKR” and, before the Tribunal, “that evidence was indeed scant”: Tribunal’s Reasons, [95].

105    Third, the Tribunal at [125] considered that, on the “scant” evidence before it, the consideration of non-refoulement obligations “did not outweigh the primary considerations”. The Tribunal then at [126] assessed that the consideration of non-refoulement obligations was “tempered” by the prospect of a protection visa application which would allow for a “full and detailed analysis” of the appellant’s protection claims.

106    Like the Tribunal in AXT19, we are satisfied that the Tribunal here “meaningfully engage[d] with the representations made by the appellant concerning Australia’s non-refoulement obligations and relating to the risk of harm to the appellant if he were returned to Myanmar”: AXT19 at [53] (per Flick, Griffiths and Moshinsky JJ). The Tribunal’s “discussion of the relevant representations and the [limited] evidence … in connection with those representations demonstrate that the Tribunal brought an active intellectual process, and gave proper, genuine and realistic consideration, to these matters”: AXT19 at [53]. While it is true that the Tribunal here referred to the “prospect of a protection visa application that would allow for a full and detailed analysis of XFKR's protection claims” (Tribunal’s Reasons, [126]), in the context of the Tribunal’s Reasons, that observation does “not detract from the proposition that the Tribunal meaningfully engaged with the relevant representations and the evidence presented in connection with those representations”: AXT19 at [54].

107    In these circumstances, the Tribunal’s analysis at [125] and [126] reveals no jurisdictional error.

108    Notwithstanding the appellant’s assertion that the Tribunal misunderstood the non-refoulement obligations, in light of the “scant” evidence before the Tribunal, that could not have resulted in a realistic possibility that the Tribunal would have made a different decision. By way of example, like the position in AXT19, the Tribunal’s reference to the prospect of a protection visa application came after the Tribunal had already concluded, at [125] of the Tribunal’s Reasons, that consideration of non-refoulement obligations did not outweigh the relevant primary considerations: see AXT19 at [54]. Moreover, in this particular case, there was “scant” evidence before the Tribunal and an expedited timeframe to which the Tribunal was subject. As a result, it is “difficult to see what more the Tribunal could or should have done in dealing with the appellant’s representations concerning non-refoulement obligations and his fear of harm if returned to Myanmar”: AXT19 at [57].

109    Finally, while, as the appellant contends, Australia’s international obligations to afford protection may vary from, and be wider than, the content of the statutory criteria for the grant of a protection visa, the appellant did not advert to any relevant difference in his submissions before the Tribunal. Yet, as the Minister submitted, the onus lay upon the appellant to persuade the Court that any such error was material. This he could not do as the Tribunal accepted in the appellant’s favour that non-refoulement obligations were owed to him.

110    For these reasons, there was no jurisdictional error in the reasoning of the Tribunal. It follows that ground 4 must be rejected.

Disposition

111    The appeal must be dismissed with the appellant paying the costs of and incidental to the appeal.

Associate:

Dated:    6 October 2020