Federal Court of Australia

BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    On 2 June 2021, the primary judge dismissed the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal on 8 December 2020, affirming a decision made under s 501CA(4) of the Migration Act 1958 (Cth) of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs of 15 September 2020 not to revoke a decision made under s 501(3A) of the Act to cancel the appellant’s visa: BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 573 (hereafter “J”). The Tribunal’s decision is BFMV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5213 (hereafter “T”).

2    Before the primary judge, the appellant put forward two grounds of judicial review:

(1)    first, that the Tribunal failed to give proper, genuine and realistic consideration to the international non-refoulement obligations owed to him;

(2)    secondly, that the Tribunal failed to give consideration to the potential damage to Australia’s international reputation in the event the appellant was deported to Iraq.

3    At the hearing of the appeal, and as had been foreshadowed in written submissions, the appellant sought leave to file an amended notice of appeal raising the following ground:

The Court below erred in not finding that the decision of the [Tribunal] was affected by jurisdictional error. The [Tribunal] failed to consider a representation of the appellant. The [Tribunal] failed to carry out [its] statutory function according to law by failing to consider, in the relevant legal sense, representations made by the appellant under s 501CA(4) of the Migration Act 1958 (Cth), in support of his request for revocation of the mandatory cancellation of his visa.

Particulars

I.     The [Tribunal] failed, or did not attempt to evaluate the likelihood of the appellant being returned to Iraq despite the submission made by the appellant.

II.    The [Tribunal] failed, or did not attempt to evaluate the likelihood of the appellant being refused a protection visa on character grounds.

III.    The [Tribunal] failed or did not attempt to consider, the submission made by the appellant that he risked being indefinitely detained if the cancellation of his visa was not revoked.

4    The Minister did not oppose leave being granted to the appellant to file in Court and rely on the amended notice of appeal and such leave was granted.

5    The appeal should be dismissed for the reasons which follow.

BACKGROUND

6    The relevant background was set out by the primary judge at J[4] to [33]. It is not necessary for it to be repeated. It is sufficient to note the following, taken from those reasons:

(1)    The appellant was sentenced to 16 months’ imprisonment in 2014 for one count of assault occasioning actual bodily harm in the company of others and three months’ imprisonment for one count of destroy or damage property. These sentences were later varied to a 16 month intensive correction order and a good behaviour bond. The appellant was convicted in 2019 of two counts of assault, three counts of stalk/intimidate and one count of destroy or damage property for which he was sentenced to an aggregate 18 month custodial sentence.

(2)    On 14 February 2019, a delegate of the Minister cancelled the appellant’s visa under s 501(3A) of the Act. On 12 March 2019, the appellant requested revocation of the visa cancellation. On 14 September 2020, a delegate decided under s 501CA(4) of the Act not to revoke the cancellation of the visa.

(3)    The appellant applied under s 500(1)(ba) of the Act to the Tribunal for a review of the delegate’s decision not to revoke the cancellation. The Tribunal conducted a hearing on 23 and 25 November 2020 at which the appellant was legally represented. It was not in dispute that the appellant did not pass the character test because of his “substantial criminal record” as defined in s 501(7) of the Act: J[4]. The Tribunal concluded that the appellant did not pass that test: T[87]. This meant that s 501CA(4)(b)(i) did not apply and the question for the Tribunal was therefore whether there was “another reason” within the meaning of s 501CA(4)(b)(ii) why the visa cancellation should be revoked: J[12]; T[89].

(4)    The Tribunal noted it was required to have regard to Ministerial Direction 79 (“Direction 79”): s 499(2A) of the Act. The Tribunal referred in detail to Direction 79 identifying the primary and other considerations to be taken into account.

(5)    In relation to the “primary considerations” identified in Part C of Direction 79:

(a)    Protection of the Australian community from criminal or other serious conduct: The Tribunal found that the appellant’s criminal offending had been repetitive and violent, and that his victims included a woman and children. It found that the seriousness of the appellant’s criminal offending weighed against the exercise of the discretion to revoke the decision to cancel the visa. The Tribunal found that the likelihood of the appellant engaging in further criminal or serious conduct was low to moderate, but that this level of risk was unacceptable given the nature of the harm he may cause to his victims if he were to re-offend.

(b)    The best interests of minor children in Australia: The Tribunal noted that the appellant did not have any children of his own and there was no evidence before the Tribunal that any minor children would be affected by his removal from Australia.

(c)    Expectations of the Australian community: The Tribunal found that, although the appellant had contributed positively to Australia in various respects, the expectations of the Australian community weighed against revocation of the cancellation decision given the nature of the appellant’s criminal offending.

(6)    As to the “other considerations” identified in Part C of Direction 79, the Tribunal relevantly found that the appellant was owed non-refoulement obligations by Australia – see: cl 14(1)(a) and 14.1. The Tribunal was satisfied that there was a real chance of the appellant being persecuted, or a real risk of him suffering serious harm, due to his religious beliefs as a member of the Sabian Mandaean faith if he was returned to Iraq.

(7)    The Tribunal concluded that the existence of non-refoulement obligations owed to the appellant weighed in favour of revocation, but that this did not outweigh the two primary considerations which (as mentioned) the Tribunal found weighed against revocation of the cancellation decision.

(8)    The Tribunal affirmed the delegate’s decision to refuse to revoke the cancellation of the appellant’s visa.

RESOLUTION OF THE APPEAL

7    The decision in respect of which the appellant sought review in the Tribunal was the decision under s 501CA(4) of the Act not to revoke the mandatory visa cancellation.

8    The appellant submitted to the Tribunal, amongst other things, that: (a) Australia owed him non-refoulement obligations; and (b) the Minister would not grant him a protection visa on “character grounds”. The appellant referred in this respect to ss 36(1C) and 501 of the Act. The appellant submitted that, if the cancellation decision were not revoked, he might either be refouled in breach of Australia’s non-refoulement obligations or he might be indefinitely detained.

9    Under the heading “Legal consequences of decision”, the Tribunal addressed these submissions. It stated at T[131]:

In making its decision, the Tribunal is bound to consider the legal consequences of its decision. The [appellant] submits that if the Tribunal decides, as it has, that non- refoulement obligations are owed to him, and it decides not to revoke the Reviewable Decision, the [appellant] may be subject to indefinite immigration detention.

10    The Tribunal set out the following passage from DFTD v Minister for Home Affairs [2020] FCA 859 at [40]-[42] (Tribunal’s emphasis):

The primary legal consequence attaching to the applicant’s status as an unlawful non- citizen is that he must be removed from Australia as soon as might reasonably be practicable: the Act, s 198. The fact that the applicant is, as the Tribunal found (and the Minister accepts), a person in respect of whom Australia owes obligations of non- refoulement has no bearing upon that requirement: the Act, s 197C (above, [13]).

The prospect, if there is one, that the applicant might languish for a prolonged period in immigration detention arises (at least in large part) because it is the policy of the Australian government that unlawful non-citizens in respect of whom there exist obligations of non-refoulement will not be returned to the countries within which they properly fear that they will be persecuted. In order that the applicant might be removed from Australia, there must first be somewhere to which he might be removed. His homeland, Indonesia, is not an option in that respect because taking him there would offend government policy. Thus, removal “as soon as reasonably practicable” might take longer in the case of the applicant than would otherwise be the case; but that is not so because of anything in the Act.

To observe that removal might take longer in the applicant’s case is to invite speculation as to what might be in store for the applicant following the Tribunal’s Decision. There are a number of avenues by which the applicant’s time in immigration detention might be brought to an end (and that do not involve him being sent to Indonesia). Perhaps the most obvious is that he might apply for and obtain a protection visa: a possibility that the Tribunal itself urged the applicant to explore (Tribunal’s Decision, [97]; above, [24]). The mere possibility of prolonged immigration detention is not a circumstance of which the subject matter, scope and/or purpose of the legislative scheme require, by implication, that a decision maker take [into] account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act.

11    The Tribunal noted that, like the position in DFTD, the appellant could apply for a protection visa: T[136]. The Tribunal recorded, and it was not in dispute, that the appellant was not prevented by ss 48A and 501E from lodging an application for a protection visa. The Tribunal concluded that the legal consequences of non-revocation were not necessarily either removal from Australia or indefinite detention, referring in this respect to AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; [2016] FCAFC 105 at [70]: T[137], [139]. The Tribunal necessarily concluded that the legal consequences of the decision included the possibility of refoulement or indefinite detention. The Tribunal concluded that the legal consequences of a decision not to revoke the cancellation weighed in favour of revocation, but that this consideration was outweighed by the two primary considerations which it had concluded weighed against revocation: T[140] and [143], [163].

12    The appellant submitted that the Tribunal did not address his submission that he was likely to be refused a protection visa on character grounds. The primary judge stated at J[57] in respect of the equivalent argument put to his Honour:

The fact that the Tribunal did not attempt to assess the likelihood that an application for a protection visa by the applicant would be granted does not reveal any failure by the Tribunal to give proper consideration to the applicant’s claim that he would suffer serious harm if forcibly returned to Iraq or that he would be indefinitely detained if he was not. It accepted that these were possibilities but that they were not sufficient when considered with other relevant matters to weigh in favour of revocation of the decision to cancel his Visa. I therefore reject the first of the grounds relied upon by the applicant.

13    Those conclusions were correct. The Tribunal was not required to reach a view as to whether a future application for a protection visa would be rejected on “character grounds” in order to discharge its function of reviewing the delegate’s decision including by taking into account the representations which the appellant had made.

14    At the time of the Tribunal’s decision, the appellant had not applied for a protection visa. An application for such a visa would have been unnecessary if the appellant’s review in the Tribunal were successful. If such an application is made, the Minister would then need to consider that application in light of the circumstances as they exist at the time of his consideration of that application. This is a decision to be made at some point of time in the future. It is a decision which may, if thought necessary, also be challenged. Whether any such decision will be challenged and the basis for any such challenge are not known.

15    The Tribunal did not err in a manner going to jurisdiction in not reaching a more specific conclusion as to the degree of likelihood of a future protection visa application being rejected or of refoulement to Iraq or indefinite detention becoming a reality. In Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[33], Flick J observed:

[31]     To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether:

•    that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or

•    the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia.

The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia’s international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

[32]    The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia’s international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.

[33]    But these are all decision[s] to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

16    Justice Flick’s observations in Ali at [33] were referred to with approval by SC Derrington J in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150] (Perram J agreeing).

17    Justice SC Derrington noted (although the issue was conceded) that “the Tribunal was not obliged to speculate on what might happen next and, in particular, on the course or outcome of any application for a protection visa, including the time it might take”: MNLR at [150].

18    What is required is that the review contemplated by the Act is undertaken. Implicit from the central role played by representations in the statutory scheme, the “review” contemplated by the Act requires that the appellant’s representations as a whole are, as a matter of substance, considered – see: Goundar v Minister for Immigration and Border Protection (2016) 160 ALR 123; [2016] FCA 1203 at [56] (Robertson J); Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 at [45] (Rares and Robertson JJ); Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [34(e) and (g)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

19    The Tribunal conducted a review which complied with what the Act required. The Tribunal considered the appellant’s submission that he might be refouled to Iraq or be indefinitely detained because an application for a protection visa would be refused. There was no jurisdictional error in determining the review on the basis that refoulement or indefinite detention were possibilities, but not inevitabilities. That conclusion was open.

20    The Tribunal took into account the representations which the appellant had made when reviewing the decision under s 501CA(4)(b)(ii) not to revoke the cancellation for “another reason” in each of the three ways identified in the particulars to the amended notice of appeal. It follows that the ground of appeal is not made out.

CONCLUSION

21    The appeal must be dismissed with costs.

22    The Court acknowledges the assistance of the appellant’s pro bono counsel appointed pursuant to a referral certificate under r 4.12 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    16 November 2021