Federal Court of Australia

AFD21 v Minister for Home Affairs [2021] FCAFC 167

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 22 January 2021 be set aside, and in their place, the following orders be made:

(a)    The decision made by the respondent on 1 May 2018 under section 501CA(4) of the Migration Act 1958 (Cth) not to revoke an earlier decision of the respondent’s delegate under section 501(3A) to cancel the applicant’s Class AH Subclass 101 Child (permanent) visa (the delegate’s decision) be quashed.

(b)    A writ of mandamus issue requiring the respondent to determine the applicant’s request for the revocation of the delegate’s earlier decision according to law.

(c)    The respondent pay the applicant’s costs of the application.

3.    The respondent pay the appellant’s costs of the appeal.

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 is a citizen of Burundi, and was granted a Class AH Subclass 101 Child (permanent) visa on 8 December 2010 when he was 17 years of age. Subsequently, on 30 April 2015, the appellant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). The appellant appeals from a judgment of a judge of this Court, dismissing his application for judicial review of a decision of the Minister declining to revoke the cancellation of his visa under s 501CA(4) of that Act. Before turning to the primary judge’s reasons, and the grounds of appeal, we will set out the background to the matter.

Background

2    The cancellation of the appellant’s visa under s 501(3A) was mandatory, because a delegate of the Minister was satisfied that the appellant did not pass the character test under s 501(6)(a) and (7)(c) of the Act, and because the appellant was then serving a sentence of imprisonment on a full time basis. Material to the delegate’s decision was that on 6 May 2014 the appellant pleaded guilty to the offence of “unlawful act with intent to harm (endangering life, health or safety of any person)”, for which he was sentenced by the District Court of Western Australia to a term of imprisonment of 12 months, and was eligible for parole after 6 months. The appellant was 19 years of age at the time of this offending. The appellant’s parole was cancelled on 18 February 2015 for breach of a parole condition relating to the consumption of alcohol. At the time of the cancellation of his visa, the appellant also had convictions for a number of other offences for which he was fined, which it is unnecessary for present purposes to recount.

3    Subsequent to the cancellation of his visa, on 9 June 2017 the appellant was convicted of further offences, namely, taking part in a riot, possessing a weapon, threatening to cause harm, causing harm to a Commonwealth public official, and obstructing, hindering, intimidating, or resisting a Commonwealth public official. He was sentenced to concurrent terms of imprisonment for those offences, the longest of which was 12 months.

4    The Department notified the appellant of the cancellation of his visa by letter dated 29 May 2015. By that letter, the appellant was invited to make representations to the Minister about revocation of the mandatory decision to cancel his visa: see s 501CA(3)(b). In that respect, the letter included the following information –

If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form. Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.

Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.

(Emphasis added.)

5    Enclosed with the letter were (inter alia) a revocation request form, and a copy of Direction 65 that was referred to in the above passages. The list of contents of Direction 65 described Part C as identifying “the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa”. Within Part C, clause 14 identified international non-refoulement obligations as considerations that “must be taken into account where relevant”. Section 14.1 of the Direction then provided –

14.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(Emphasis added.)

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

(5)    If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

6    The appellant made representations seeking revocation of the mandatory cancellation of his visa, which were received by the Department on 23 June 2015. The representations were made by a request for revocation form and a personal details form that were completed by hand. In the request form, the appellant stated that he was a citizen of Burundi and then, under the heading “Reasons for Revocation”, he relevantly wrote –

I have no family in Africa, all of my family are here including my mother, step father and sister.

There is a lot of unrest in Africa especially between the Tutsi & Hutu people which my mother & father belong to each.

If I was deported I wouldn’t have anywhere to go & fear I would be killed.

…

7    In the personal details form, the appellant answered “yes” to the question whether he had “any concerns or fears about what would happen to [him] on his return to [his] country of citizenship”. He then elaborated as follows –

I don’t have any family in Africa. Because my mother is Tutsi and my further was Hutu – both these are enemies. I believe I would be killed.

I have no knowledge of Burundi because I came out as a child.

I fear that I would have nowhere to go and be killed. My family live here in Perth, Western Australia.

8    Subsequently, by a handwritten letter dated 1 June 2016, the appellant made further representations to the Department regarding his fears of what might happen to him if he was returned to Burundi. (Nothing apparently turns on the fact that, at least in the form it was reproduced in the Appeal Book, the letter was illegible in some places.) In this letter, the appellant referred to his fears as to what might happen to him in Burundi as a consequence of his parents being from different tribes. He said: “[w]hat is happening now, looks like it’s going to start another genocide, because it always starts from Government leaders to a genocide”. Later in the letter he stated –

I’m in a situation that could cost my life, and my dream if I get sent back to Burundi I very well may be killed. I don’t have any one to run to, I get called bad names, and I get pushed around by both sides. Hutu Tribe Tutsi Tribe. Because I am mixed.

9    By letter dated 6 November 2017, the Department gave particulars to the appellant of further information that it stated might be taken into account, and invited the appellant to comment on the information. The further information was sentencing remarks in the Magistrates Court of Western Australia dated 9 June 2017 relating to the sentencing for the offences to which we referred at [3] above, a National Police Certificate dated 1 September 2017, and detention incident reports for the period 15 May 2015 to 1 November 2017. The appellant responded to this invitation to comment by a typewritten letter. In that letter the appellant relevantly stated –

… I was born and raised in a war torn country, Burundi and Australia has been a safe haven to me. I was raised by my grandmother because my parents’ tribes namely; Tutsi and Hutu denied me a sense of belonging. Neither of the two ethnic groups accepted me as one of them because I am a mixed breed. …

10    The appellant also provided some country information in support of his claim in the form of printouts of a number of online articles. In particular, the appellant provided information about historical civil war and current political unrest. The information included statements that Burundi was one of the poorest countries in the world, with pervasive poverty, hunger and corruption. The information referred to ongoing violence, abductions, arbitrary arrest, torture, and killings in Burundi, including at the hands of government authorities, as well as information as to the potential for ethnic conflict and as to the risks faced by people of mixed ethnicity. That information was presented in the context of a history in Burundi of extreme poverty, shortages of food and arable land, genocide, and an exodus of people from Burundi to nearby countries where they confronted additional difficulties.

11    The Minister, acting personally, decided not to revoke the cancellation of the appellant’s visa. He concluded that the appellant represented “an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed … any other considerations” (at [82] of the Minister’s reasons).

12    At [12] of the Minister’s reasons, the Minister gave his summary of some of the reasons advanced by the appellant as to why the original decision should be revoked –

•    He suffered trauma as a child in Burundi as a result of his mixed Tutsi/Hutu heritage.

•    His refugee background and escape from the ongoing conflict in Burundi.

•    The presence of all immediate family members in Australia and the impact of a non-revocation decision on them.

•    The absence of family in his home country of Burundi.

•    His fears of being killed or otherwise harmed if he is returned to his home country.

•    His contribution to society through his occupation as an apprentice painter and the availability of employment upon release.

•    He has found prison a salutary experience.

•    He is remorseful for his criminal offending and takes full responsibility for his actions.

•    He attributes his breach of bail to an oversight, due to alcohol being present in food he consumed which resulted in a positive blood alcohol test.

•    At the time of his offending his behaviour was influenced by alcohol.

13    We pause to observe that by the fifth point set out above, the Minister identified the appellant as claiming to fear being killed or otherwise harmed if he was returned to Burundi.

14    Within the Minister’s reasons is a section titled, “International non-refoulement obligations”. In that section, the Minister stated as follows, [17] of which is particularly important to this appeal –

International non-refoulement obligations

13.    As part of his representations seeking revocation of the original decision to cancel his visa, [the appellant] submits that he will face harm if returned to Burundi due to the ongoing conflict in that country. [The appellant] also fears harm from Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage.

14.    I have noted country information submitted by [the appellant] in relation to the ongoing conflict in Burundi.

(Emphasis added.)

15.    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.

16.    A protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring the application for consideration under s501. I am therefore confident that [the appellant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

(Emphasis added.)

17.    I have also considered [the appellant’s] claims of harm upon return to Burundi outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, [the appellant] would face hardship arising from the ongoing conflict and harm from Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage were he to return to Burundi.

15    The Minister’s reasons also included a section titled “Extent of impediments if removed”. Within that section the following was stated at [30] –

30.    I note [the appellant] has advised that he has no known family members or support in Burundi. I accept that he will face financial and practical hardship in establishing himself and maintaining basic living standards, and will undergo a period of adjustment, at least initially, until he is integrated back into its society.

16    The Minister concluded at [83] –

83.    Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel [the appellant’s] visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and [the appellant’s] Class AH Subclass 101 Child (Permanent) visa remains cancelled.

The proceeding below

17    Before the primary judge, the appellant relied on a further amended originating application that raised three grounds, the first of which was accompanied by particulars. In summary, the appellant’s grounds before the primary judge were as follows.

18    First, the appellant claimed that the Minister had failed to carry out his statutory task by failing to consider the appellant’s claim that his removal from Australia to Burundi would expose him to harm there, and would breach Australia’s non-refoulement obligations. The appellant relied upon [15] of the Minister’s statement of reasons where it was said that it was “unnecessary to determine whether non-refoulement obligations are owed in respect of [the appellant] … 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”: AFD21 v Minister for Home Affairs [2021] FCA 4 (hereafter “J”) [15], [16]. The appellant claimed that this treatment of his representations by the Minister involved two levels of misunderstanding. The first level of misunderstanding was that the Minister incorrectly assumed that the existence or otherwise of non-refoulement obligations would be fully considered in the event that the appellant made an application for a protection visa. The appellant claimed that that was not the case, as the criteria for a protection visa under s 36(2) of the Migration Act differed substantially from, and did not reflect Australia’s non-refoulement obligations. The second level of misunderstanding claimed was that, in any event, the Minister incorrectly assumed that “[his] claims would be considered in the same way if he applied for a protection visa, where the circumstances in which consideration of non-refoulement occurs are quite different”: J [16].

19    Second, the appellant claimed that the Minister failed to give genuine consideration to his representations that he may be killed in Burundi if he were to be returned there, consequently making an error akin to that identified in the decision of the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar).

20    The third claim advanced by the appellant before the primary judge was that the Minister’s finding at [30] of the reasons being that the appellant would be “integrated back into [Burundi] society” after undergoing a “period of adjustment” was not supported by rational or probative evidence: J [55]. In advancing this ground, the appellant relied upon the decision of the Full Court in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 (Hands).

The decision of the primary judge

21    The primary judge rejected the appellant’s claims. In summary, his Honour’s reasons were as follows.

22    In relation to the first level of misunderstanding alleged by the appellant, namely that there was an assumption by the Minister that there was identity between Australia’s non-refoulement obligations and the relevant corresponding criteria for a protection visa under s 36(2) of the Migration Act, the primary judge accepted that Australia’s obligations of non-refoulement do not perfectly align with the criteria under s 36(2) of the Act: J [25]. However, his Honour held that any such differences were not material, holding that there was nothing in the representations advanced by the appellant in support of the revocation of the original decision to cancel his visa that suggested that Australia’s non-refoulement obligations might be engaged, yet a different conclusion might be reached by the application of the criteria for a protection visa under the Act: J [27].

23    As to the second level of claimed misunderstanding, namely an assumption that the appellant’s claims would be considered in the same way if he applied for a protection visa, the primary judge noted that the appellant’s representations to the Minister did not, in terms, claim that his return to Burundi would offend against Australia’s non-refoulement obligations: J [31]. His Honour accepted that “a claim need not find direct expression [in the representations] in order to qualify as one that must be considered”, but stated that what was required is that the “claim arises clearly on the material that is advanced”: J [34]. His Honour concluded that “the Minister’s failure … to address the question of non-refoulement” did not involve jurisdictional error, holding that “the engagement with those obligations was not something that the appellant had raised as a reason” why the cancellation decision should be revoked, and “nor was it a matter that arose with the requisite clarity upon the material with which the Minister was furnished”: J [37].

24    As to the second claim made by the appellant, namely that the Minister had failed to give proper and genuine consideration to his claim of harm should he be returned to Burundi, the primary judge was not satisfied that an inference should be drawn that the Minister overlooked or otherwise failed to consider the representation that the appellant had advanced. His Honour stated that it was “far more likely that the Minister simply did not accept that the risk to which the [appellant] adverted … gave rise to ‘another reason’ for the purposes of s 501CA(4)(b)(ii) of the Act”: J [53].

25    In relation to the third claim advanced before the primary judge, namely that there was an absence of any evidentiary basis for the Minister’s conclusions at [30] of the reasons that the appellant would “… undergo a period of adjustment, at least initially, until he is integrated back into [Burundi] society”, his Honour held that, read fairly, the Minister could not “be understood to have been saying anything other than that the difficulties that the [appellant] would experience upon his return to Burundi would, over time, dissipate to a point that would enable him to live and function (or otherwise subsist) there”: J [62]. His Honour distinguished the present case from the decision of the Full Court in Hands on which the appellant relied. Further, the primary judge accepted a submission advanced on behalf of the Minister that there was material to support a conclusion that if the appellant returned to Burundi, that “[he] would, eventually, reintegrate back into society”: J [64], [65]. That material included the fact that the appellant had “lived in Burundi for nearly his entire childhood”, and that he had “language and cultural ties to the country”: J [64]. The primary judge further accepted that “there was no evidence before the Minister that the [appellant] could not re-establish himself if he returned [to Burundi]”, and that “[i]t was for the [appellant] to satisfy the Minister [that] there was another reason why the cancellation decision should be revoked”: J [64].

The grounds of appeal

26    On appeal, the appellant advanced four grounds of appeal. The first three grounds reflected the three claims that were advanced before the primary judge, and engaged with those parts of the primary judge’s reasons that were alleged to disclose error.

27    There was a fourth ground of appeal, being that the Minister failed to consider a consequence of an adverse decision, being indefinite immigration detention, in assessing whether there was another reason why the original decision should be revoked. This ground relied on statements made by Kenny and Mortimer JJ in WKNZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKNZ), which were published after the primary judge had delivered judgment. The Court made consent orders on 11 August 2021, prior to the hearing of the appeal, giving the appellant leave to amend his notice of appeal so as to include the fourth ground, as well as leave to advance and rely on the ground on appeal despite the fact that it had not been raised at first instance.

Resolution of the appeal

28    We have come to the view that the appeal should be allowed on each of two related grounds. We consider that the Minister failed to give meaningful consideration, that is, active intellectual consideration, to the appellant’s representations concerning the risks to his personal safety, including being killed, that he faced on return to Burundi. This is the subject of the second ground of appeal. The Minister was required to give meaningful consideration to these representations when determining whether there was “another reason” to revoke the cancellation decision.

29    We also consider that the appellant’s representations to the Minister raised, as a mandatory consideration, whether Australia’s non-refoulement obligations were engaged in respect of the appellant. It was not in issue that if non-refoulement obligations were raised, then the Minister dealt with that topic upon a legally erroneous basis that amounted to jurisdictional error. These matters were the subject of ground of appeal 1(c). For reasons that we will state, it is not necessary to address the other grounds of appeal in any detail.

The second ground of appeal

30    We will commence by considering the second ground of appeal, which was in the following terms –

2.    The Federal Court erred by failing to find that the Minister’s decision is affected by jurisdictional error by reason that the Minister failed to give genuine consideration to significant representations and evidenced (sic) advanced by the Appellant as to a reason why the cancellation decision should be revoked, including that he may be killed in Burundi if removed there (consequent upon any non-revocation of the cancellation decision) and, in particular:

(a)    erred by finding that the Minister had dealt with those representations “by reasoning that, even assuming that the [Appellant] would upon return to Burundi, be at risk of subjection to those circumstances, that (either alone or in light of other considerations, including his record of criminal violence) was not sufficient to constitute ‘another reason’ why the Cancellation Decision should be revoked” (J [47], see also [53]).

(There was no sub-paragraph (b) to ground 2.)

Second ground – appellant’s submissions

31    In support of this ground, counsel for the appellant submitted that the Minister was required to give active intellectual consideration to the appellant’s representations as to what would in fact happen to him if he were to return to Burundi in determining whether there was another reason to revoke the original decision to cancel the appellant’s visa. Counsel submitted that the Minister’s purported consideration at [17] of the statement of reasons, which we have extracted at [14] above, was merely formulaic. Counsel submitted that the Minister’s acceptance that the appellant would “face hardship arising from the ongoing conflict and harm from Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage were he to return to Burundi” (emphasis added) was almost meaningless, and did not respond to the relevant representations that the appellant had made. Counsel submitted that nowhere in the Minister’s reasons did he meaningfully engage with the appellant’s claim that he was at risk of being killed.

32    In relation to the primary judge’s conclusions, counsel for the appellant submitted that the primary judge had erred in deciding that it was “far more likely that the Minister simply did not accept that the risks to which the [appellant] adverted” (J [53]), when that conclusion was not expressed in the Minister’s reasons. Counsel submitted that the primary judge’s conclusion involved speculation in circumstances where the Minister was required by s 501G of the Migration Act to give reasons, which was an important accountability mechanism. Counsel submitted that equally, there was no reason to think that the Minister had assumed that the appellant would be at risk in the manner that he claimed, yet had considered that this was not sufficient to constitute another reason as to why the original cancellation decision should not be revoked.

33    Counsel for the appellant was critical of the Minister’s reasoning as being formulaic, and relied on the fact that, in cases where the Minister had used the same or similar language in his reasoning, the court had held that “the use of formulary by the Minister in purporting to respond to quite specific representations bespeaks a failure intellectually to engage”. In this context, the appellant referred to such cases as EKC19 v Minister for Home Affairs [2019] FCA 1823 at [9], [24]; DGI19 v Minister for Home Affairs [2019] FCA 1867; AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205; Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 557; DQM18 v Minister for Home Affairs [2020] FFC 110; 278 FCR 529.

Second ground – Minister’s submissions

34    Counsel for the Minister submitted that the primary judge had not erred. Counsel submitted that the second ground of appeal turned upon a criticism that the Minister used the words “hardship” and “harm” when the appellant had represented to the Minister that he “would be killed”. Counsel submitted that the use of the words “hardship” and “harm” do not compel a finding that the Minister did not intellectually engage with the representations put to him.

35    Counsel for the Minister submitted that as a matter of pure linguistic analysis, “hardship” and “harm” are nouns that can include a spectrum of negative experiences including death. Counsel pointed to s 36(2A) of the Migration Act as an illustration, where “significant harm” was defined to include death. Counsel for the Minister submitted that on a purely linguistic analysis, this could be understood as suggesting that death is a species of harm. Counsel submitted that in any event, to make a finding against the Minister based on these kinds of textual parsing would run counter to the exhortation in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that the “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

36    Counsel for the Minister submitted that the key finding of the primary judge was that the Minister’s reasons “disclose at least some consciousness of what was put”, which was clearly correct when the Minister’s reasons were considered. Counsel submitted that at [82] of the Minister’s reasons the Minister weighed the appellant’s “claims that he will suffer hardship and harm if returned to Burundi” in favour of revocation. Counsel for the Minister submitted that the Minister had made specific findings of fact, “including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations” referencing at this point Omar at [39].

37    Counsel for the Minister also put in issue the cogency of the country information that had been submitted to the Minister by the appellant. Counsel submitted that the appellant’s concern expressed in his representations was from harm flowing from “being a mixed-race person”. It was submitted that the only country information on that specific point did “not provide any powerful support at all” for the appellant’s claim to fear harm. Adopting the reasoning of the primary judge at [13], counsel for the Minister submitted that the rest of the country information “confirmed the presence of general civil and political unrest within Burundi, which in recent years has sounded in violence, including in the form of abduction, torture, arbitrary arrest and extrajudicial execution. Particularly, there was evidence of growing tensions between Burundi’s Tutsi and Hutu populations” but without any actual articulation of how this would flow through to the appellant’s case. Counsel submitted that the Minister dealt with the representation in a manner befitting the imprecise way it was put. Counsel submitted that, while the appellant represented that he would be killed, “his claim was lacking in any detail as to how or why that would occur”.

38    Counsel for the Minister drew attention to authority to the effect that a finding that the Minister “has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [48]. Counsel submitted that use of the words “hardship” and “harm” rather than explicitly referring to death was insufficient in the circumstances of this case to support such a grave finding.

39    Finally, counsel for the Minister reminded the Court that this was an appeal, and that there must be a demonstration of error by the primary judge in the evaluative judgment as to whether the Minister engaged in an active intellectual process.

Second ground - analysis

40    It is convenient to commence by addressing the Minister’s last submission in relation to the second ground of appeal. An appeal to this Court is by way of rehearing, and involves the correction of error: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22] (Allsop J); Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 at [45] (Perram J). In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541, the High Court held, in substance, that on an appeal to the Full Court of this Court challenging the conclusion of the primary judge that the decision of an administrative decision-maker was legally unreasonable and thus in jurisdictional error, the Full Court must examine the administrative decision to determine for itself whether the primary judge was correct in this conclusion: see SZVFW at [18] (Kiefel CJ); [20], [56] (Gageler J); [117] (Nettle and Gordon JJ); and [153], [155] (Edelman J). In this case, by parity of reasoning, where the Court is again concerned with an appeal from a judgment in a proceeding for judicial review of administrative action, the Court is required to determine whether the primary judge was correct in concluding that the Minister had given meaningful consideration to the appellant’s representations about the very serious threat to his personal safety that his return to Burundi would entail. That is, this Court must decide this question for itself. As is ordinarily the case in an appeal from a judgment in a judicial review proceeding, we are in as good a position as the primary judge to determine the matter.

41    The principles relating to the consideration by the Minister of representations made by a non-citizen as to why a decision to cancel a visa should be revoked pursuant to s 501CA(4) of the Migration Act are not in issue, and were stated by the Full Court in Omar at [34]. The representations made in response to an invitation under s 501CA(3) of the Act are, viewed as a whole, a mandatory relevant consideration, but not every statement made within the representations can be so described. The significance of any particular matter raised in the representations is to be assessed by the manner in which it is expressed. In Omar at [34(h)] the Full Court stated –

(h)    In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the Minister has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” (see BCR16 [v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456] at [70]-[73] per Bromberg and Mortimer JJ).

42    If a clearly expressed and significant representation is made such that its consideration is required, then the consideration of it must be meaningful. This means that the decision-maker must undertake an active intellectual process with reference to the representation: Omar at [36](d)]. Where a challenge is made to the process in a particular case, the reviewing court will examine the particular facts and circumstances as established by the evidence in that case: Omar at [36](e)]. As to what constitutes meaningful consideration, the Full Court in Omar at [39] gives the following guidance –

39.    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 (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]–[36] per Perram J).

43    In an often cited passage in Hands at [3] Allsop CJ (with whose reasons Markovic J agreed, Steward J agreeing in the conclusion) stated that a decision-maker’s duty to give lawful consideration to representations of a kind made by a person in the position of the appellant included the obligation squarely to engage with their human dimensions –

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

44    We accept the submissions advanced on behalf of the appellant that the Minister’s reasons show that the Minister did not engage with and give genuine consideration to the clearly articulated and significant representations that were made relating to the risk of harm to the appellant, including being killed, should he return to Burundi.

45    The representations made by the appellant to the Minister were clear and straightforward. They were that he feared being killed if he were returned to Burundi. He advanced a tenable basis for that fear, being his mixed ethnicity, and the country information that he produced which spoke to a history of genocide, a situation of ongoing extreme poverty, of violence, abductions, torture, and killings in Burundi, including at the hands of government authorities. The tenor of the appellant’s representations was that he would be exiled from Australia, being his country of refuge which he had considered to be his home since arriving as an older child, and that he would be returned to a country poised to repeat the horrors of the earlier genocide that it had experienced, in circumstances in which he as a person of mixed ethnic descent would be exposed to discrimination with no-one to protect him and that it was entirely foreseeable that he would be killed. It is not possible to conclude from the Minister’s reasons that any meaningful consideration was given to these representations. In particular, the Minister made no appraisal of the country information that the appellant had submitted, nor of the serious matters that this information raised and the appellant’s representations highlighted. It is a conspicuous feature of the Minister’s reasons that the most that the Minister said of the country information was at [14], where he stated that he had “noted” the country information submitted by the appellant. The Minister made no estimation of the risks that the appellant might face upon return. In the context where the Minister determined not to consider the question whether any non-refoulement obligations arose in respect of the appellant, the Minister’s reference at [17] to “harm”, and an acceptance that the appellant might suffer “hardship”, did not address in any meaningful way the claims that were made, and smacks of mechanistic reasoning in accordance with a predetermined set of words.

46    The submission of counsel for the Minister that the Minister’s references at [17] of the statement of reasons to “harm” and “hardship” and the reference at [82] to “hardship and harm” as being linguistically sufficient to capture the representations that the appellant had made should therefore be rejected. The Minister’s reasons should be read as a whole. When read as a whole, it can be seen that there was insufficient engagement with the serious matters that the appellant had raised. Furthermore, the submissions of counsel for the Minister that sought to challenge the cogency of the country information should also be rejected. There was more than enough in the country information that required that it be given meaningful consideration by the Minister beyond merely noting its existence. The submissions of counsel about the content of the country information went very close to sliding into a merits-based appraisal of the information, which was the Minister’s function in the first place.

47    It follows from what we have said that we uphold the second ground set out in the appellant’s amended notice of appeal.

Ground of appeal 1(c) – Non-refoulement

48    Ground 1(c) was in the following terms –

1.    The Federal Court erred in failing to find that the Minister’s decision is affected by jurisdictional error by reason of one or more material misunderstandings of the Act or its operation and, in particular:

…

c.    erred by concluding that the representations of the Appellant, who was unrepresented, did not sufficiently clearly raise for consideration a claim, issue or concern that removal of the Appellant from Australia (consequent upon any non-revocation of the cancellation decision) would breach Australia’s non-refoulement obligations (J [31]-[37]).

49    The significance of this ground of appeal is that the primary judge held at [37] that the appellant had not raised non-refoulement obligations expressly, and they did not otherwise arise clearly from the material. It was on this basis that his Honour held that there was no jurisdictional error in the Minister’s failure to consider that topic. Had non-refoulement obligations been raised, then it was not in issue that the Minister had proceeded upon an assumption erroneous in law that the non-refoulement obligations would be considered upon an application by the appellant for a protection visa in the same manner, when that was not so: Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 (Ali) at [107], [111] (Collier, Reeves, and Derrington JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 (FAK19) at [86] and [117]-[124] (Kerr and Mortimer JJ, Allsop CJ agreeing).

Ground 1(c) – appellant’s submissions

50    Counsel for the appellant submitted that the representations that were made by the appellant to the Minister raised a clearly articulated claim that Australia’s non-refoulement obligations were engaged in relation to the appellant’s circumstances. Counsel submitted that, in the present context where: (1) the appellant was unrepresented; (2) his representations responded to an invitation which identified “non-refoulement obligations” as a potentially relevant consideration; and (3) where the very nature of his representations was obviously apt to raise the question whether non-refoulement obligations were owed, it was a clear case for concluding that such a claim clearly emerged from the material. Counsel submitted that, contrary to a reference by the primary judge to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) at [58] (Black CJ, French and Selway JJ), no “constructive or creative activity” was required to appreciate this. In this regard, it was submitted that the fact that the Minister himself at [16] of his reasons recognised that the appellant had made protection claims was telling, and that the Minister’s contention that the question of non-refoulement obligations did not also arise with the required clarity was artificial.

Ground 1(c) – Minister’s submissions

51    Counsel for the Minister submitted that the appellant only put before the Minister the factual circumstances about why he did not want to return to Burundi. It was submitted that factual representations of this kind are different in quality from representations about potential breach of international law obligations, citing (inter alia) DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636 (DOB18) at [185] (Robertson J). Counsel for the Minister placed particular reliance upon a finding of fact of the Full Court in Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 (Sowa), where at [43] Jagot, Bromwich and Thawley JJ held that the terms of the representations made by the appellant in that case, which concerned fear of harm should the appellant be returned to Sierra Leone, did not convey a representation about non-refoulement obligations and the potential consequences of those obligations for the appellant. Counsel submitted that a different factual finding made by Charlesworth J in Hernandez v Minister for Home Affairs [2020] FCA 415 at [54] was wrong and should not be followed.

52    Counsel for the Minister emphasised that it was only in respect of significant and clearly expressed relevant representations that the obligation to show active intellectual engagement referred to by the Full Court in Omar at [37] arose. Counsel also relied on a statement by Nettle, Gordon and Edelman JJ in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897; 383 ALR 194 (Applicant S270) at [34] that, “it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised”. Counsel submitted that the effect of other authorities which were cited, including DOB18 and Sowa, was that advancing factual matters as to harm did not squarely lead to non-refoulement obligations being squarely raised as a reason to revoke cancellation.

Ground 1(c) – analysis

53    We commence with an obvious point, which is that this Court is not bound by findings of fact made in other cases: see Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37 (Windeyer J); Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [56]-[58] (Gummow J). Rather, the Court is concerned with the application of principles to the facts as they present themselves in this case. The primary judge correctly identified the applicable principles. Mainly, the principles concerning whether a claim that is not expressly made nonetheless arises on the material derive from the reasons for judgment of the Full Court in NABE. At [58], Black CJ, French and Selway JJ explained that judicial formulations that an unarticulated claim must arise “squarely” do not convey any precise standard, but indicate that a claim not expressly advanced will attract an obligation to consider it when it is apparent on the face of the material before the decision-maker. There is no reason to think that the reference by Nettle, Gordon and Edelman JJ in their joint judgment in Applicant S270 to circumstances where non-refoulement has not been “squarely raised” should be understood in any different sense.

54    Returning to NABE, Black CJ, French and Selway JJ stated at [68] that a judgment that a claim not expressly advanced has not been considered by the decision-maker is not lightly to be made, and that the claim must emerge clearly from the materials. The primary judge at [35] also referred to guidance brought together in other authorities, including AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 (AYY17). In AYY17, Collier, McKerracher and Banks-Smith JJ stated at [18] that “while there was no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials, “a court will be more willing to draw the line in favour of an unrepresented party”, citing Kasupene v Minister for Immigration and Citizenship ([2008] FCA 1609;) 49 AAR 77 (at [21]) (Flick J). His Honour there said that:

As a practical matter, a Court may be more willing to draw the line in favour of an unrepresented party than a party represented by counsel. Or, expressed differently, the issue may be more likely to arise in those cases where one party is not represented.

For the reasons we are about to give, we would conclude, contrary to the primary judge, that the appellant, who was unrepresented at the time, squarely raised a claim, though unarticulated, to the effect that Australia’s non-refoulement obligations were engaged in the circumstances of his case with respect to his return to Burundi.

55    The starting point in our analysis is to accept, as we must, that there is a distinction between underlying claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations on the other hand: see DOB18 at [185] (Robertson J). That distinction led the Full Court in Omar to accept the arguments in support of the notice of contention, where, without deciding whether non-refoulement obligations were a mandatory relevant consideration, it was held that the Assistant Minister had failed to engage with the underlying representations concerning risk of harm should the respondent in that case be returned to Somalia.

56    Accepting the distinction to which Robertson J referred in DOB18, it does not follow that the underlying claims and their characterisation as giving rise to non-refoulement obligations are necessarily disconnected or otherwise unrelated. Much depends on the particular claims made in the case at hand. In some cases, the underlying claims are liable to be closely connected, because the claimed fear of harm as represented by the claimant will be of a kind that is typically (and clearly) the foundation for a claim that Australia’s non-refoulement obligations are engaged. Such were the fears of harm as represented by the appellant to the Minister in this case.

57    Whether the appellant’s representations to the Minister in this case squarely raised Australia’s non-refoulement obligations to him depends on the substance of these representations as determined by reference to the representations themselves and the precise and interconnected circumstances in which they came to be made. In summary, those circumstances (to most of which we have already referred) were –

(1)    By the Department’s letter dated 29 May 2015 the appellant was invited to make representations about revoking the decision to cancel his visa. The letter attached a revocation request form and a personal details form, which we infer were the forms that the appellant completed.

(2)    While the appellant received some informal high level guidance as to the making of representations, he was not at the relevant time represented by a migration agent, and we infer from this and the manner in which the forms were completed that he completed the forms himself.

(3)    The May 2015 letter referred the appellant to Direction 65, and directed the appellant to address each paragraph of Part C of the Direction that was relevant to his circumstances. The letter also informed the appellant that if the Minister made the revocation decision personally, he was not bound by Direction 65, but that the Direction provided “a broad indication of the types of issues that the Minister was likely to take into account”.

(4)    Direction 65 was enclosed with the letter. It included the passages which we have extracted at [5] above, which made express reference to non-refoulement obligations, stating at 14.1(3) that “[c]laims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled)” (emphasis added).

(5)    The primary if not the only question on the Department’s forms liable to engage with a claim in respect of non-refoulement obligations was a question on the personal details form. This was a question that asked the appellant whether he had any “concerns or fears” about what would happen to him on his return to his country of citizenship, to which the appellant responded affirmatively, and provided the details to which we referred at [7] above, stating that he feared that he would be killed.

(6)    The appellant made the other representations to which we referred at [6], [8] and [9], and furnished the country information to which we referred at [10] above.

(7)    The circumstances advanced by the appellant were directly congruent with the integers that appear in Article 1 of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) and would on a prima facie basis engage Australia’s international obligations of non-refoulement. The appellant identified that he belonged to a particular social group in Burundi—persons of mixed Tutsi/Hutu tribal heritage – and that they faced persecution in Burundi on this account. He specified what he feared (“being pushed around by both sides” and being at risk of being killed); and he provided reasons as to why his fears as to return to Burundi could be accepted as well founded, by referencing the death of his grandfather “in the conflict which is happening now” and what was “happening now” in his home country as “look[ing] like it’s going to start another genocide”.

(8)    Tellingly, the Minister’s own statement of reasons treated the appellant’s representations as to “the harm [faced by him] if he was returned to Burundi due to the ongoing conflict in that country” and on account of “Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage” as presenting the issue of international non-refoulement obligations. The Minister said as much. We refer to [13] to [17] of the Minister’s reasons, and also to the heading to those paragraphs which we have set out at [14] above. Indeed, the Minister’s submissions in this Court to the effect that the appellant’s representations did not raise the issue of Australia’s international non-refoulement obligations are directly inconsistent with the view apparently taken by the Minister at the time he purported to consider the appellant’s representations.

58    In all the circumstances we have identified and having regard to the appellant’s representations to the Minister as to his situation if he were to be returned to Burundi, we would conclude, contrary to the primary judge, that a claim that Australia’s international non-refoulement obligations were engaged squarely arose from the material before the Minister at the time he made his decision.

59    It follows that for the reasons identified in [57] above, the primary judge was in error in not finding jurisdictional error in the Minister’s decision. As we have already noted, it was not in issue that, if the appellant in fact made a non-refoulement claim as we have found, then the Minister’s assertion at [15] of his reasons – that he need not address the issue of non-refoulement obligations in determining whether there was “another reason” why the original visa cancellation decision should be revoked because they would be considered upon the appellant’s protection visa application – was wrong in law. The Minister was obliged to address that issue, and his error was material: see Ali at [107], [111] and FAK19 at [86], [117]-[124].

60    For the reasons stated, we would uphold the first ground of the appellant’s amended notice of appeal.

Other grounds of appeal

61    For the reasons we have stated, we would allow the appeal. In this circumstance it is unnecessary to consider the other grounds raised by the appellant by his amended notice of appeal: see Boensch v Pascoe (2019) 375 ALR 15 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ). We note, however, that, as to ground 3, the Minister’s failure to engage with any of the country information that the appellant submitted has the consequence that what was said by the Minister at [30] of his statement of reasons about the appellant settling into Burundi society apparently falls away. We also note that, as to ground 4, it may be that no question of the prospect of indefinite detention has yet arisen, bearing in mind that the Minister has not yet entered upon a consideration of Australia’s non-refoulement obligations in respect of the appellant.

Conclusions

62    As indicated already, the appeal should be allowed. The orders of the primary judge should be set aside, and in lieu it should be ordered that a writ of certiorari issue quashing the Minister’s decision refusing to revoke the original decision to cancel the appellant’s visa, and a writ of mandamus should issue requiring the Minister to consider according to law the question whether the original decision should be revoked. The appellant should have his costs below, and the costs of the appeal.

Associate:

Dated:    15 September 2021