Federal Court of Australia

DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant will pay the first respondent's costs of the appeal on a lump sum basis to be fixed by a Registrar of this Court in the absence of agreement between the parties.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by the primary judge in DCR19 v Minister or Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 501 (Primary Judgment) dismissing an application brought by the appellant, DCR19, to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), not to revoke a decision made by another delegate of the Minister to cancel the appellant’s resolution of status visa.

2    For the reasons that follow, the appeal will be dismissed.

Background

3    The background facts to this appeal are not in dispute between the parties.

4    The appellant is a citizen of the Democratic Republic of the Congo (Congo) who arrived in Australia in 2002, aged 30.

5    On 13 March 2002, the appellant made an application for a protection visa as a member of the family unit of his then wife. The appellant made no claims for protection of his own.

6    On 28 August 2002, the appellant was granted a Temporary Protection (Class XA) (subclass 785) visa.

7    On 24 February 2003, the appellant’s then wife applied for a further protection visa. On 26 May 2005, the appellant was granted a temporary protection visa on the basis that he was a member of his then wife’s family unit. In each case the appellant made no separate claims in respect of himself as a distinct person, who should be owed protection.

8    On 26 May 2008, after separating from his then wife, the appellant applied for a permanent protection visa. In his application form, the appellant claimed that he left the Congo because his “wife’s family was politically active and consequently were persecuted by the Govt” and “as a result of the marriage, [he] was also persecuted”. The appellant also claimed that, if he was returned to the Congo, he would “still be targeted as everyone knew [his] connection with [his wife’s father] … and [his] brother in law”.

9    On 28 August 2008, a delegate of the Minister made a decision to grant the appellant a Resolution of Status visa. It was not a criterion for the grant of that visa that the appellant be a person to whom Australia owes protection obligations.

10    Between 2013 and 2018, the appellant was convicted of various crimes. Relevantly, on 17 January 2013, he was convicted of knowingly dealing with the proceeds of crime and was sentenced to a term of imprisonment of three years and three months.

11    On 19 March 2018, the appellant was convicted of knowingly producing a false or misleading document and was sentenced to a term of 12 months’ imprisonment.

12    On 7 August 2013, the appellant was sent a notice of intention to consider cancelling his resolution of status visa under s 501(2) of the Migration Act 1958 (Cth) (Act). By a letter dated 14 February 2014, the appellant was notified that a delegate of the Minister had exercised discretion not to cancel the visa. The letter stated that the decision did not mean that his case could not be considered again if he offended again

13    On 28 May 2018, the appellant’s resolution of status visa was cancelled by a delegate of the Minister (cancellation decision) under s 501(3A) of the Act, as the appellant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment.

14    The appellant sought revocation of the cancellation decision by making representations to the Minister in accordance with an invitation that had been issued to him on 28 May 2018. Relevantly, the appellant’s representations in support of revocation of the cancellation decision made no reference to Australia owing any non-refoulement obligations in respect of him.

15    On 21 February 2019, a delegate of the Minister made a decision pursuant to s 501CA(4)(b) of the Act to refuse to revoke the cancellation decision (non-revocation decision).

16    Review was sought of the non-revocation decision on 22 February 2019. In the course of that review, on 26 April 2019, the appellant, for the first time since the making of the cancellation decision, claimed in an affidavit that he would be persecuted if he were returned to the Congo. His former spouse had also made an affidavit to that effect on the same date. Written submissions were also made by the appellant on the day before the Tribunal hearing in which the issue was raised.

17    A hearing was held before the Tribunal on 2 and 3 May 2019. In a decision made on 16 May 2019, the Tribunal affirmed the non-revocation decision. The Tribunal’s reasons for decision were comprehensive and were summarised by the primary judge at [28]-[41] of the Primary Judgement.

18    For the purposes of this appeal, it is only that part of the Tribunal’s reasons for decision that is devoted to Australia’s non-refoulement obligations (if any) in respect of the appellant that is relevant. The Tribunal’s findings on this topic can be found at [219]-[290] of its reasons. Having discussed, in detail, the relevant statutory provisions and principles (Tribunal reasons at [219]-[262]), the Tribunal turned its mind to the circumstances of this case. The Tribunal observed that there was “very little evidence before it to make a thorough assessment of the [appellant]’s claims”: Tribunal reasons at [263]. Nonetheless, the Tribunal found that there was “only a very remote possibility Australia will breach any non-refoulement obligations owed in respect of the [appellant]” and that it appeared that his “refugee claims [we]re particularly weak”: Tribunal reasons at [265]. The Tribunal went on to summarise the appellant’s claims and the parties’ submissions (Tribunal reasons at [266]-[272]) before finding, at [273], that it was not satisfied that the appellant had “any subjective fear of persecution in the [Congo]”, noting that “in his response to the cancellation of his visa, [he] did not mention anything about fearing persecution in the [Congo]”. The Tribunal observed that the first time that any non-refoulement claim was advanced was in an affidavit made in the course of the review in April 2019 following the lodgement by the Minister of his statement of facts, issues and contentions: Tribunal reasons at [274]-[277]. The Tribunal found that the making of that claim in those circumstances evinced an absence of “a subjective fear of persecution”.

19    The Tribunal found, at [279] of its reasons, that there was not a real chance that the appellant would face serious harm or a real risk that he would suffer significant harm if he were returned to the Congo. It observed that the appellant had “never suffered harm or persecution in the past when he … liv[ed] in the [Congo]”: Tribunal reasons at [280]. Further, the Tribunal noted that the appellant had been separated from his wife since 2005, had been outside of the Congo for 16 years and did not share a surname with his wife or anybody in her family: Tribunal reasons at [282]. In those circumstances, the Tribunal found that it was “unlikely that any potential persecutors would remember or recognise the [appellant] or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago”: Tribunal reasons at [282]. The Tribunal also found that there was no evidence to suggest that anybody in the Congo was “seeking to harm or threaten” the appellant: Tribunal reasons at [284].

20    The Tribunal returned to the topic of the failure by the appellant to make any representations about non-refoulement to the Minister: Tribunal reasons at [285]-[286]. It said that the absence of a subjective fear of harm could be considered in determining whether there was an objective real chance that he would face serious harm or a real risk that he will face significant harm if returned to the Congo. The Tribunal observed that the failure to make representations about non-refoulement to the Minister, together with the absence in the appellant’s former wife’s statement of any discussion of the harm that he might suffer at the hands of others in the Congo, “support[ed] the view that [she] did not consider that the [appellant] will suffer harm” if he were returned to that country.

21    The Tribunal considered that it was “likely” that the appellant would not be found to meet the criteria for the grant of a protection visa and that his removal from Australia “will not result in any breach of Australia’s international non-refoulement obligations”: Tribunal reasons at [287]. The Tribunal correctly observed that any claims made in support of a protection visa application would be determined by another decision-maker, who would not be bound by the Tribunal’s findings as to Australia’s international non-refoulement obligations: Tribunal reasons at [288]. Although the Tribunal considered that there was “only a very remote possibility” that Australia would breach its international obligations, nonetheless it found that “that outcome [wa]s possible”: Tribunal reasons at [289]. Accordingly, the Tribunal gave this factor “slight weight” in favour of revocation of the cancellation decision: Tribunal reasons at [290].

22    The Tribunal also made findings as to the harm or hardship that the appellant might suffer if he were returned to the Congo: Tribunal reasons at [311]. It found that there was a “possibility” that the appellant would be harmed if he were returned to the Congo, but that that possibility was “very unlikely”.

23    The foregoing considerations were weighed against factors that militated against revocation of the cancellation decision: Tribunal reasons at [313]-[318]. Having weighed those factors, the Tribunal concluded that there was not another reason why the cancellation decision should be revoked: Tribunal reasons at [319].

Judicial review

24    In the proceedings below, the appellant advanced two grounds of review.

25    The first ground was that the Tribunal fell into jurisdictional error by reason of its “failure … to inquire or to adjourn the hearing, or to consider doing so”. It was the appellant’s case that it was legally unreasonable for the Tribunal not to have taken these steps to enable him to put further material in relation to non-refoulement: Primary Judgement at [42].

26    By his second ground of review, the appellant contended that, in concluding that he did not have a subjective fear of harm if he were returned to the Congo, the Tribunal failed to consider “a claim or relevant evidence regarding “another reason” for revoking the cancellation of the applicant’s visa”, namely, the claims made by his former spouse in 2002 in support of her protection visa application and those made by the appellant in 2008 in support of his protection visa application.

Both grounds were rejected by the primary judge: Primary Judgement at [57]-[75], [79]-[83].

Appeal

27    The appellant’s amended notice of appeal dated 5 November 2021, contains, in substance, six grounds, three of which have been raised for the first time on appeal (these are grounds 1, 4, 5(ii)) and two of which have been reformulated and expanded upon from the grounds of review advanced at first instance.

28    These grounds of appeal are as follows:

(1)    The Tribunal's conclusion in respect of the Appellant's claim that he had a subjective fear of persecution if removed to the Congo, and/or the Tribunal's approach to the evidence in support of that claim, is vitiated by jurisdictional error because the Tribunal failed to afford procedural fairness to the Appellant. Leave should be given to raise this ground not raised below.

(2)    The primary judge erred in not finding, and ought to have found, that the Tribunal erred by exercising its procedural powers unreasonably.

(3)    The primary judge erred in not finding, and ought to have found, that the Tribunal's conclusion in respect of the Appellant's claim that he had a subjective fear of persecution if removed to the Congo, and/or the Tribunal's approach to the evidence in support of that claim, is vitiated by jurisdictional error because the Tribunal's findings were unreasonable, illogical and/or irrational.

(4)    The Tribunal erred in its interpretation or application of s 500(6H) of the Act.

(5)    Further or in the alternative:

(i)    her Honour erred in finding that "[t]he failure to consider ground should be dismissed for the reasons given by the Minister" and ought to have found that the second respondent committed jurisdictional error by failing to consider claims made by the appellant and his ex-wife in 2008 and 2002 that he may face persecution upon return to the Congo; and/or

(ii)    the Tribunal erred by failing to consider, or to give real and genuine consideration and intellectual attention to, the impact of the Appellant's claims on Australia's international non-refoulement obligations and/or the implications of the Tribunal's finding that there was a possibility that removal of the Appellant could result in Australia breaching its international non-refoulement obligations.

29    It is convenient to deal with the above grounds of appeal in the following way:

(1)    Ground 1 will be dealt with separately and will be termed the “procedural fairness ground”;

(2)    Grounds 2 - 4 will be dealt with collectively, in what will be termed the “unreasonableness grounds”; and

(3)    Ground 5(i) and (ii) will be dealt with collectively in what will be termed the “failure to consider grounds”.

Ground 1 – procedural fairness ground

30    The appellant contends, in the procedural fairness ground that the Tribunal’s conclusion that the appellant did not have a subjective fear of harm or persecution, if returned to the Congo was vitiated by jurisdictional error, in that the Tribunal did not afford procedural fairness to the appellant as a result of the Tribunal’s approach in considering the appellant’s evidence.

31    The procedural fairness ground fails for the reasons that follow.

32    The Tribunal is not required to invite comment from an applicant as to their thought process on the way to making a decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Similarly, the Tribunal is not required to advise an applicant of the possibility of drawing an adverse conclusion that would be open on the material supplied by, or known to, the applicant or which otherwise derives from an obvious and natural evaluation of that material.

33    The Tribunal’s role was to consider the evidence and submissions that the appellant provided in support of his application for review, and then to determine whether or not his claims were made out. The Tribunal made findings that the appellant did not have a subjective fear of persecution if returned to the Congo, relevantly, for the reason that the appellant had only raised this matter shortly prior to the Tribunal hearing on 3 May 2019.

34    The appellant chose not to make any representations to the Minister about Australia’s non-refoulement obligations, to the extent that any obligations were owed to him. The first time that the appellant raised the issue of non-refoulement was in his affidavit dated 26 April 2019 (2019 affidavit), approximately one week prior to the appellant’s hearing before the Tribunal. The appellant’s evidence with respect to his fear of harm was brief, and was described in the following way at [68] of the Primary Judgement:

DCR19 only raised the claim that he feared persecution in the Congo after DCR19 had received the Minister's written contentions and once his solicitor became involved with the application before the Tribunal, a week before the hearing and after a substantial number of the 84 day period that the Tribunal had to make a decision.

35    The appellant was alive to the fact that he had not, prior to his 2019 affidavit, raised a claim to presently fear harm if returned to the Congo in response to the notification of the mandatory cancellation of his visa. The appellant acknowledged that he “did not provide detail of such fear” at [2] of his 2019 affidavit:

I have grave concern about returning to the Democratic Republic of the Congo (DRC) based upon my previous refugee claims. The only reason I did not provide detail of such fear is that the form provided to me (Personal Circumstances Form) did not have any questions that raised this issue. If it did, I most certainly would have provided such detail.

36    Implicit in the above statement is an admission that there had been delay by the appellant in raising that claim. In doing so, the appellant put the fact of delay in issue. Having done so, the appellant cannot now complain that an adverse conclusion was reached by the Tribunal after having regard to that delay. That conclusion was open to the Tribunal on the known material.

37    Furthermore, the fact that such a delay existed, and the adverse conclusions that could be drawn from that delay with respect to the veracity of the appellant’s claimed fear of harm were matters expressly canvassed in the course of the Minister’s oral submissions to the Tribunal (T.210 line 9 to T.212 line 20). Those submissions went beyond a bare reference to the appellant’s claim having been made at “the eleventh hour”. No suggestion was made, nor was any objection taken, by the appellant’s counsel that such submissions gave rise to any procedural fairness concerns (cf T.210 line 34 to T.211 line 20). Nor did the appellant’s representatives seek to be heard in reply on that issue (T.227 line 1 to T.228 line 1). The appellant was clearly on notice, by reason of questions put to him by the Tribunal, that the genuineness of his claim to fear harm if returned to the Congo was in issue, including because of his failure to advance that claim in response to the notice of his visa cancellation.

38    By advancing non-refoulement in that way, and at the time he did, the appellant ran the risk of failing to persuade the Tribunal that that issue amounted to another reason to revoke the cancellation decision. It was open to the Tribunal to find, as it did in its reasons at [263], that it had “very little evidence before it to make a thorough assessment of the [appellant]’s claims”. It was through no fault of the Tribunal that there was a dearth of evidence going to the issue. As the primary judge concluded at [70], it was also open to the Tribunal to find, for the reasons that the Tribunal gave at [273]-[277] of its reasons, that the appellant did not hold a subjective fear of harm upon return to the Congo.

39    When regard is had to the course of events between May 2018 and April 2019, it is clear that the Tribunal was correct to draw an adverse inference from the appellant not having made a claim that he feared persecution in the Congo until one week prior to the hearing.

40    Prior to the time that the non-revocation decision was made, the appellant was provided with an opportunity to outline any concerns or fears that he held in relation to what could happen to him if returned back to the Congo. The appellant in his "Response to Notice of Intention to Consider Visa Cancellation under s501(2) of the Migration Act 1958 or Notice of Mandatory Visa Cancellation under s501(3A) of the Migration Act 1958" (personal circumstances form), failed to provide an answer to that question on page 10, which reads:

Do you have any concerns or fears about what would happen to you on return to your country of citizenship?

41    That question, which her Honour the primary judge described at [70] of the primary judgment, as “plainly worded” was left unanswered, and there was otherwise nothing in the request for revocation that suggested that the appellant feared persecution or harm of any kind if returned to the Congo.

42    What is notable is that the appellant, in a handwritten letter dated 17 June 2018, which was attached to the personal circumstances form, made the following representations:

I have no close ties to anybody in the Congo as my family and life is now here in Australia. I will not have a job or any place to live if I were deported.

43    It is reasonable to take the view that, if the appellant did have a subjective fear of harm, if he were returned to the Congo, that he would have described or raised these fears within the personal circumstances form, like he did with the above representation.

44    Further, the appellant, in a statement which was provided to the Minister, dated 24 December 2018, made representations which addressed the difficulties that he would experience if he were returned to the DRC:

TIES TO DRC

I have had no contact with anyone in the Democratic Republic of Congo (DRC) since I moved to Australia 16 years ago. I am not sure about the whereabouts of my family in DRC. I simply do not know what I will do once I arrive there - I don't have a place to live, to work, I don't know my way around, I cannot speak the language, I don't know about social security or the health system or anything like that. I will simply be dislocated in the country. I request not to be sent back to DRC. I regularly visit the Catholic Church in Parramatta at least twice a month. It is my only place of sanctuary and community besides with my children. In DRC, I will have no community and nothing to look forward to.

45    The appellant claimed that he had no ties to the Congo, had no place to live or work and that he had pre-existing medical conditions which he would have difficulty managing. However, the appellant made no mention of any fear of persecution or harm.

46    Notwithstanding that the personal circumstances form did indeed provide an opportunity for the appellant to provide any valid reasons why he did fear harm if returned to the Congo, the appellant’s affidavit goes on to state at [3]:

… I believe the current president, Joseph Kibilla will persecute me, that is I will face serious intimidation and harassment if I am forced to return to DRC.

47    It is important to note that Mr Kabilla was in fact no longer President of the Congo at the time the appellant deposed in his affidavit that he feared persecution from him and his government, if forced to return to the Congo. Notwithstanding this, during cross-examination on 2 May 2019 (around one week after the appellant filed his affidavit), in his hearing before the Tribunal, the appellant confirmed that the current President of the Congo is in fact Mr Tshisekedi (T.122 lines 23-30):

MR HUTTON: All right. I only have two more questions for you, Mr [redacted] and they're about your non-refoulement claims. You claim to fear harm, if you are returned to the DRC, from President Kabila and his government. Is that correct? Who is the current president of the Democratic Republic of Congo?---Now?

Yes?---lt is Tshisekedi. The name is Tshisekedi. Tshisekedi something. I forget the full name.

48    The Tribunal's reasons at [273] to [283], identify that it was not satisfied with the appellant's claims of fear of persecution, precisely on the basis that the changed circumstances in the Congo, namely the Kabilla government which the appellant allegedly feared is no longer in power. Those objective circumstances were such that the Tribunal was not persuaded that the appellant had a subjective fear of persecution if returned to the Congo. The Tribunal's view on the appellant's fear of harm, is aptly summarised at [277] and [280]-[284] of the Tribunal's reasons:

The Applicant only raised the claim that he feared persecution in the Congo once his solicitor, Mr Joel, became involved with the application before the Tribunal and after the Applicant had received the Respondent's written contentions. The fact that these claims were only raised a week prior to the hearing, and after receiving the Respondent's contention that the Applicant had not raised no [sic] fears of returning to the Congo and that "subject to claims being raised, the Tribunal does not need to engage with the question of non-refoulement", supports the view that the Applicant does not have a subjective fear of persecution in the Congo.

…

The Applicant told the Tribunal that in Africa, people looking to harm an adversary would also seek to harm all members of the adversary's family. He said that he would be harmed on this basis as he was the husband of his wife who was the sister of a man who had fought against the Kabila government. The Applicant indicated that, because he was married to a member of the family of a man who had fought against the Kabila government, he would be considered to be a supporter of that man and his family. However, the Applicant gave evidence that neither his mother nor any of his five siblings who remain in the Congo have ever been harmed or threatened as a result of their association with the Applicant or his wife.

In addition, the Applicant has been separated from his wife since 2005. While it is true that the alleged persecutors in the Congo may not know this, the Applicant has been away from the Congo for some 16 years and does not share a surname with his wife or anyone in his wife's family. In these circumstances it appears unlikely that any potential persecutors would remember or recognise the Applicant or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago.

In addition, although in his written material the Applicant had indicated that Joseph Kabila was still in power in the Congo, at the hearing he admitted that Joseph Kabila and his party were no longer in power in the Congo and that Tshisekedi was the current president of the Congo.

There is no current evidence before the Tribunal that anyone in the Congo is currently seeking to harm or threaten the Applicant.

49    During cross-examination, the appellant was asked if he feared harm because of his association with his brother-in-law, and the Tribunal put the appellant on notice that there was doubt around the appellant's claim for persecution on the basis of this association, in circumstances where none of the appellant's family members in the Congo have been harmed: T.139 to T.140:

The case currently that you have, and obviously your barrister will put what the case is exactly later on today, but for the moment it appears that part of the case is that you were previously married to someone who had, I think a father and brother, and especially her brother was involved in a failed uprising in the Congo. She applied for a temporary protection visa on that basis and you were granted a visa as her husband. You gave evidence yesterday and it has been suggested that in Africa if you're a family member of or you have any involvement with those kinds of people that you're persecuted by the government. Is that right?---Yes.

But that doesn't seem to extend to any of your family members?---Yes.

So none of your family members have been harmed because of your association or your wife's association with - - -?--No, but this - (indistinct), they no live in same - no live in this place. I leave them because they no want people to go to Thailand, to come to know me and through me, but go different way to hide.

The appellant was then asked an open-ended question, and had free reign to give evidence, unrestrained by section 506(H) of the Act as to who would harm him, why they would harm him and the manner in which they would harm him. He had that opportunity. It was taken up in part, and a response as given at transcript p 148:

It has been some time since then. You have said that the government is essentially still run by the same family, but you haven't been with your partner since 2005 I think, is that right, that former partner?---M'mm.

And you've said that none of your family have been targeted because of what had happened. So why is it that I should accept that you're likely to be persecuted by the government if you return?---Why? Because they know me, I was married for the family member. What happened here we separate, them there they don't know I'm separated in that family, because they consider - they know me, I'm involved in (indistinct).

50    Having regard to the above, the Tribunal was correct to find that the appellant did not hold a genuine subjective fear of persecution. The Tribunal was correct to draw an adverse inference from his not having claimed that any time after he was notified of the cancellation of his visa, that he feared persecution in the Congo until one week prior to the hearing. The adverse conclusion was one that was open to the Tribunal on the known material and was an obvious and natural evaluation of the evidence.

51    Relevantly the appellant’s non-refoulement claims were not in fact a “long-standing claim” in the context of the review application before the Tribunal. It is not in dispute that those claims, when ultimately put in his 2019 affidavit, (i.e. the week before the Tribunal hearing), referred to “previous refugee claims” that had been made between 2002 and 2008. It is also indisputable, however, that such “previous refugee claims” were not adverted to in the appellant’s representations or statements to the Minister when requesting revocation of the cancellation decision in 2018 or otherwise advanced as a current issue prior to his statement of 2019 affidavit.

52    Still further, the Tribunal plainly did have regard to the claims made by the appellant in his interview with an officer in the Minister’s department (Department) on 22 February 2002. During that interview the appellant indicated that no threats had been made to himself or his then wife:

Q: How does your brother in law's position affect you[?]

A: The people were looking for his wife's family members to kill them in Kashasa, but they are probably in Goma now as well

Q: How do you know that the people are looking for you[?]

A Because members of my wife's family have been killed already

…

Q: Is your brother in law under threat[?]

A: I would have to check that with my wife.

Q: Why do you not know if he is under threat[?]

A: I haven't kept up to date about my brother in laws situation

Q: Have you or your wife received any immediate threats[?]

A: No

53    In such circumstances, the question of the veracity of the appellant’s claim to fear harm, if returned to the Congo was plainly a live issue, as was the relevance to that issue of his delay in advancing that claim (and the explanation for such delay). Contrary to the appellant’s claim that he was denied procedural fairness as a result of the Tribunal failing to inquire or to adjourn the hearing to enable further material to be put into evidence in respect of non-refoulement, the appellant was (or ought reasonably to have been) on notice of that issue and in fact had the opportunity to put forward submissions on it. It was, in turn, open to the Tribunal to take into account not only the appellant’s delay in raising his claims to fear harm but also the explanation proffered for that delay, and to consider such matters when considering issues relating to non-refoulement.

54    For these reasons, the appellant was not denied procedural fairness and this ground of appeal fails.

Grounds 2 - 4 - unreasonableness grounds

55    The appellant contends in the unreasonableness grounds that the primary judge erred in not finding, and ought to have found, that the Tribunal fell into error by exercising its procedural powers unreasonably. Further, the appellant contends that the findings that the Tribunal made with respect to the appellant’s subjective fear of persecution conclusions was unreasonable, illogical and/or irrational.

56    The unreasonableness grounds turn on the proper interpretation of s 500(6H) of the Act and the determination of the appellant’s contention that the Tribunal erred in its understanding and application of that provision.

57    Section 500(6H) of the Act provides:

500 Review of decision

…

(6H) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

58    The prohibition contained in s 500(6H) of the Act is in mandatory terms. It only operates if a review applicant can show that “the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing”. The purpose of that prohibition is to ensure the expeditious determination of applications for review under s 500 of the Act, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case.

59    Consistent with that purpose, the section does not preclude the Tribunal from considering information which is not presented by, or on behalf of an applicant, including information that arises from cross-examination or answers given in response to questions put by the Tribunal. Those exceptions do not, however, diminish the force of that prohibition. Nor do they permit s 500(6H) to be approached in a manner that would render it inutile or de minimis.

60    The Tribunal, in the course of the hearing (T.138 lines 21-37), asked the appellant a question about the persecution that he feared at the hands of the government on account of his association with a prominent family member, namely his brother-in-law. The following was put to the appellant in cross-examination:

It has been suggested that in Africa if you’re a family member of or you have the involvement with those kinds of people, that you’re persecuted by the government; is that right?---Yes.

61    The Tribunal member then asked the appellant the following question:

But that doesn’t seem to extend to any of your family members?---Yes. So none of your family members have been harmed because of your association of your wife’s association with - - -?---No, but this – they live in the same – no, live in this place. I leave them because they no want people to go to Thailand …

62    It is clear from the above extract that the Tribunal put the appellant on notice that there was doubt as to the force of the appellant’s claim for persecution on the basis of his association with an antigovernment family member or anti-Kabila government family member, because none of the appellant’s family members in the Congo have been harmed.

63    The appellant was then questioned about the coup that occurred in the Congo (T.139), and when asked about the details surrounding the coup and his fear of harm, the appellant gave the following responses (T.139 line 39 to T.140 line 2):

It has been some time since then […]

You have said that the government is essentially still run by the same family, but you haven't been with your partner since 2005 I think, is that right, that former partner?---M'mm.

And you've said that none of your family have been targeted because of what had happened. So why is it that I should accept that you're likely to be persecuted by the government if you return?---Why? Because they know me, I was married for the family member. What happened here we separate, them there they don't know I’m separated in that family, because they consider - they know me, I'm involved in (indistinct).

64    It is clear from the above extract that the appellant was asked an open ended question, and had free reign to give evidence, unrestrained by s 500(6H) of the Act, as to who would harm him, why they would harm him and the manner in which they would harm him.

65    The primary judge was correct to find at [74] of the Primary Judgment that there was no evidence that any of the legal representatives of the parties or the Tribunal member was under a misapprehension about how ss 500(6H) and 500(6J) of the Act operated.

66    The circumstances of the present case are far removed from those in DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862 (DOM19) and Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945 (Holloway), which the appellant has placed reliance in its submissions. In both DOM19 and Holloway, the question before the Court was whether the Tribunal had erred in not permitting (or not otherwise taking steps to facilitate) the applicant to call persons to give evidence (at all) in circumstances where those persons had not put on a written statement of their evidence: DOM19 at [13], [48] per Bromberg J; Holloway at [8]-[11], [19], [45] per Jackson J.

67    By contrast, in the present case the appellant was not precluded from calling any witnesses, nor was he prevented from giving oral evidence on the aspects of his claims relating to his fear of persecution if returned to the Congo. Rather, the prohibition in s 500(6H) of the Act applied only to prevent evidence that was sought to be adduced to which the Tribunal could have no regard. As Bromberg J recognised in DOM19 at [11], that is a permissible application of s 500(6H) of the Act.

68    The appellant’s reliance on cases construing the word “information” in ss 359A and 424A in Parts 5 and 7 of the Act, and the phrase “new information” in ss 473BB and 473DD in Part 7AA of the Act, is misplaced. There is already authority in this Court that supports the proposition that s 500(6H) of the Act has the effect that oral evidence, which may be given in support of a review applicant’s case cannot “depar[t] in a substantive way from the content of the written statements”: SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 (SZRTN) at [27] per Rares, White and Gleeson JJ, see also the judgment of Katzmann J at first instance in SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 at [70]. It is implicit in that proposition that the prohibition in s 500(6H) of the Act does not operate if the differences between the information “set out in a written statement” and the evidence presented orally in support of a review applicant’s case are not substantive in nature.

69    Contrary to the premise underpinning the unreasonableness grounds, the Tribunal did not approach s 500(6H) of the Act on the basis that it was prohibited from taking into account anything of which there had not been 48 hours’ written notice, unlike the circumstances in Holloway at [45] per Jackson J. Rather, it is evident from the transcript of the appellant’s hearing before the Tribunal, that the Tribunal was cognisant that there was nuance as to what did or did not fall within s 500(6H) of the Act. This can be seen at numerous parts in the transcript, for instance at: T.45 lines 15-36:

MS OKEREKE-FISHER: I will just ask you this question, subject to the two day rules. What do you think would happen to you if you go back to Congo?

MR HUTTON: I object.

MEMBER: Whereabouts is that on the material - the answer?

I'm sorry Ms Okereke-Fisher, if you haven't encountered this before I know that it is very difficult. Sometimes in effect it means sometimes applicants don't even give evidence because really, they are restricted to what they have written, so there might be some small amount of leeway whereby if there was something that was in the material he might be able to expand on but that would be something like, for example, if he had a child that was in school somewhere he might be able to say the name of the school, it wouldn't be something completely new, especially as it regards the case, so I know – I appreciate that it is difficult. That is just a restriction that I have under the legislation.

MS OKEREKE-FISHER: Yes, Member. His affidavit does point to - page 2 - what he says will happen to him.

MEMBER: Whereabouts?

MS OKEREKE-FISHER: Page 2 of A2 - exhibit A2.

MEMBER: No, whereabouts on the page on page 2?

MS OKEREKE-FISHER: The first sentence, the first paragraph starting from ---

MEMBER: All that he can tell me is that - that is all that he can tell me. If he is going to say other things then I can't have regard to them.

70    The question as to what line of questioning was, and was not permitted, by reason of s 500(6H) of the Act was raised by the Tribunal member at the outset of the hearing, (T.6) and again immediately prior to the examination-in-chief of the appellant well in advance of the passages to which unreasonableness grounds are directed (T.37-T.38). There was, in addition, a substantial adjournment granted during the course of the hearing to permit consideration of the material (T38-39), as well as opportunities for the appellant’s representatives to identify where in the written material there was “information … set out in a written statement”, see: T.43 line 38, T.44 line 4, T46 line 38 and T.47 line 25.

71    The hearing transcript further indicates that the Tribunal’s consideration of the bounds of s 500(6H) of the Act did not turn upon its understanding of the breadth of the word “information” as it appears in that section. In particular, nothing that was stated (at T.52 lines 11-15) suggests that the Tribunal understood s 500(6H) of the Act as not permitting any divergence between the information set out in writing and the oral evidence proposed to be led, contrary to the appellant’s submissions. Instead, the Tribunal’s consideration was directed to whether or not the appellant could identify any written statement where the factual matter had been raised such that the questioning was not precluded by s 500(6H) of the Act. This is illustrated, for example, by the exchanges at (T.43 lines 21-34, T.45 lines 15-41 and T.50 line 1 to T.52 line 18), where objections to questions were taken on the basis that the evidence sought to be elicited had not been raised in the appellant’s written statement, or that the questions and answers were departing, in a substantive way, from the content of the written statements (see T.43 lines 38-44.4 and T.46 line 38 to T.47 line 25). That, plainly, is a circumstance which s 500(6H) of the Act is intended to prevent, namely, to preclude the adducing of evidence orally which was not set out in a written statement and of which prior written notice had not been given.

72    Nothing identified in the appellant’s submissions reveals any error in the objections that were made, nor has the appellant demonstrated that there was, in fact, “information … set out in a written statement” such that s 500(6H) of the Act did not apply. The 2019 affidavit contained evidence of a very general nature, the exception being that the “persecut[ion]” referred to at 2019 affidavit at [3] was defined where it states: “… I will face serious intimidation and harassment if I am forced to return to [the Congo]”. Although the appellant claimed that he had a “grave concern … based upon [his] previous refugee claims” or a “very grave fear” of returning to his home country (2019 affidavit at [3]), the detail of those concerns or fears was not supplied, save that the appellant claimed that he would face serious intimidation and harassment. The “previous refugee claims” made by the appellant were as follows:

(a)    In his interview with a departmental officer in 2002, the appellant claimed that people were looking for him; his wife’s brothers had been killed; he was unsure whether his brother-in-law was under threat as he had not “kept up to date about [his] situation”; and neither he nor his wife had received any immediate threats.

(b)    In his protection visa application made in 2008, the appellant claimed that he was “persecuted” by the government in the Congo (though the nature of such claimed persecution was not explained) and that he “will still be targeted” on account of his connection with his brother-in-law.

73    Consistent with the limited evidence given by the appellant in his 2019 affidavit, and his earlier claims (which were then between 11 and 17 years’ old), the appellant’s counsel was able to ask further questions in clarification and confirmation, not only of the evidence given in his written statement, but also, despite the terms of s 500(6H) of the Act referring to a “written statement”, those earlier claims (T.42 line 6 to T.43 line 15 and T.138 line 43 to T.139 line 2). By contrast, the questions (and, in some cases, answers to questions) to which the Minister objected sought to elicit or convey (as the case may be) evidence that went beyond that which was set out in the appellant’s written statement. In other words the substantive detail as to why the appellant claimed a present fear of harm, and sought to introduce a new claim, namely, that he would be killed on his return to the Congo. That claim had not previously been advanced by the appellant. A fear of harassment and intimidation falls well short of a fear of being killed. Thus, to have permitted the questions or considered the answers given to questions which the Minister objected would have materially changed “the nature of [the appellant’s] case”: Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 (Goldie) at [25] per Gray J (Nicholson J and Stone J agreeing), and would have introduced evidence not previously set out in a written statement, contrary to the purpose of s 500(6H) of the Act.

74    In Goldie, Gray J, with whom Nicholson and Stone JJ agreed, found at [25] with respect to ss 500(6H) and (6J), that:

The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced.

75    And then at [26], his Honour found that:

The purpose of [sub-sections] 500(6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to that case.

(emphasis added)

76    The words “the entirety of the case of the applicant for review” are significant, because they suggest that a review applicant’s written statement must set out their entire case in-chief and that s 500(6H) will only operate where a new point is sought to be raised in-chief. This was a point that her Honour the primary judge made at [74] of the Primary Judgment.

77    That understanding coheres with what the Full Court said in SZRTN, where their Honours identified that s 500(6H) of the Act had the effect, in that case, that had the witnesses given oral evidence at the hearing, the evidence which the appellant’s counsel could have led from them could not have departed in a substantive way from the content of the written statements. Towards the end of [29] their Honours said:

Section 500(6H) of the Act precluded the appellant from being able to supplement any of those statements in a material way by leading oral evidence from their makers.

78    The Full Court’s judgment in SZRTN supports the proposition that immaterial or non-substantive supplementation of evidence-in-chief might be permitted by s 500(6H) of the Act, but that is as far as it goes.

79    For these reasons, there was no relevant misapplication or misunderstanding of s 500(6H) of the Act by the Tribunal.

80    In terms of the alleged unreasonableness, or illogicality components of the unreasonableness grounds, the Appellant’s contentions misunderstand the duty of the Tribunal. The Tribunal is not required to construct a case for a review applicant: Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ, and nor is it under any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. Rather, it is for a review applicant to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of relevant statutory requirements: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] per Davies, Derrington and Colvin JJ.

81    Contrary to the appellant’s contentions, the mere fact that the Tribunal has at its disposal the power to elicit for itself information which an applicant cannot themselves put forward by force of s 500(6H) of the Act does not render it legally unreasonable (or otherwise illogical or erroneous) for the Tribunal not to exercise that power. Were that not so, the Tribunal could conceivably be required to seek to bolster a review applicant’s evidence in every case before it, regardless of the content of the written material put before it by an applicant, thereby rendering s 500(6H) of the Act (and s 500(6J)) inutile. The comments made by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46 (DUA16), cannot in this regard be taken as a statement of general principle; they were uttered (as the High Court itself noted) in respect of a case the circumstances of which “[we]re extreme”. Regard needs only to be had to the unique facts of DUA16 to appreciate that the appellant’s reliance on it is misplaced. Nor did the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) suggest that the ability of the Tribunal to ask questions of a review applicant altered its essential function or the review process, or otherwise gave rise to a general duty to inquire.

82    In the present case, it is evident that the Tribunal was aware that it had the power to ask questions of the appellant and thereby obtain information that he could not himself give in chief by reason of s 500(6H) of the Act. There is, therefore, no basis to infer that the Tribunal failed to consider whether to exercise that discretion (or any of its broader powers) to elicit further information relating to the appellant’s non-refoulement claims. It should also be noted that the appellant’s counsel agreed that it would undermine the purpose evident in s 500(6H) of the Act for the Tribunal simply to ask the questions itself (T.65 lines 36-40) to overcome the effect of the statutory prohibition. In those circumstances, and absent the appellant establishing that the Tribunal misunderstood or misapplied s 500(6H) of the Act (which, for the reasons given above, it did not do), it was not legally unreasonable for the Tribunal not to have exercised its discretion to obtain information from the appellant to “fill in” the evidentiary gap that he had left. In this connection, it is not irrelevant to the question of whether the Tribunal acted unreasonably that the appellant was represented during the merits review process. The appellant could have had his former legal representative prepare a detailed statement on his behalf that canvassed his claims to invoke Australia’s international non-refoulement obligations and identified the harm that he feared, whether and why that fear was current, from whom he feared harm and what he believed might happen to him if he were to be returned to the Congo. That however, was not done.

83    It cannot be said that the Tribunal, in relying only on the evidence in fact before it, made findings as to the appellant’s subjective fear of harm (or lack thereof) that were unreasonable, illogical and/or irrational. Each of the findings made by the Tribunal at [273]-[277] had a sound evidentiary footing: the appellant did not advance any claim to fear harm in his representations about revocation of the decision to cancel his visa; the appellant did not advance any claims for protection in the protection visa applications made in 2002 and 2003; and the appellant did state, in response to a question posed by the Minister in cross-examination, that he did not know that his migration agent had made an application for a protection visa on his behalf in 2008.

84    Any paucity in the evidence was not attributable to any “misapprehension” or “misapplication” by the Tribunal of its statutory functions: Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1169 at [46] per Halley J. The Tribunal plainly considered all of the evidence before it, including the claims which had been made by the appellant’s ex-wife, and the previous findings of the Department in respect of those claims.

85    The appellant submits that the following factors reveal the Tribunal’s absence of a “logical connection” with the evidence or disclose unreasonableness in the reasoning process:

(a)    the Tribunal having deprived itself of the opportunity of hearing more evidence on an issue which it considered to be relevant, particularly as it then relied upon an absence of such evidence;

(b)    the Tribunal’s reliance on the perceived delay by the appellant and his former wife in providing evidence about the appellant’s fear of persecution, where there was long-standing evidence of such claims, where the appellant is illiterate and was unrepresented until shortly before the hearing, and where evidence in the proceedings about his fear was provided shortly after he became represented; and

(c)    the importance the Tribunal afforded to the appellant’s evidence that he did not know he was applying for a protection visa in 2008, in circumstances where what was relevant was whether the appellant had ever previously expressed a fear of persecution in the Congo.

86    These contentions must be rejected for the following reasons:

(a)    It cannot be said that the Tribunal “deprived” itself of the opportunity to hear more evidence, in circumstances where it did not misapply or misconstrue s 500(6H) and it was not legally unreasonable for it not to inquire any further than it did at T.129-T.150.

(b)    It is evident that the appellant’s claims were not “long-standing” in the context of the matters before the Tribunal, and that he was cognisant of his delay in raising the claims before the Tribunal. Indeed, he put that matter in issue in his written statement to the Tribunal.

(c)    The question of the appellant’s knowledge as to whether he had previously sought protection was plainly relevant to the question of whether he previously expressed fear (and, therefore, required protection).

87    The appellant has failed to demonstrate any absence of a “logical connection” between the evidence (referred to in the preceding paragraph) and those findings, and for the reasons outlined above, the unreasonableness grounds will fail.

Ground 5 – failure to consider grounds

88    The appellant contends, in the failure to consider grounds that:

(i)    The primary judge erred in failing to finding that the Tribunal committed jurisdictional error by failing to consider claims made by the appellant’s former wife in 2002 and 2008, that he may face persecution if returned to the Congo.

(ii)    The Tribunal erred by failing to give proper consideration to the appellant’s claims of non-refoulement.

89    The failure to consider grounds fail for the reasons that follow.

90    In deciding whether there existed another reason to revoke the decision to cancel the appellant’s visa, the Tribunal was under no obligation to have regard to the appellant’s claims to be a person in respect of whom Australia owes non-refoulement obligations. Accordingly, any error by the Tribunal in its treatment of non-refoulement, such as conflating the criteria for granting a protection visa with the question of whether a person engages Australia’s international non-refoulement obligations (which the Minister does not concede was made), was within its jurisdiction.

91    The High Court has reserved judgment in Plaintiff M1/2021, a case which may decide questions such as whether s 501CA(4) requires a decision-maker, in the exercise of jurisdiction, to have regard to non-refoulement (even where it has been raised) if the former visa holder is able to make a valid application for a protection visa and whether “misunderstandings of the Act” of the kind described in the following cases: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16); Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim); Ali v Minister for Home Affairs (2020) 278 FCR 627 (Ali); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153. The Minister submits that this Court should reserve judgment on this issue until after judgment has been delivered in Plaintiff M1/2021. We decline to do so because that issue does not arise on the facts of this case. The Tribunal did consider claims that could have given rise to non-refoulement obligations, and took that into account in making its decision even if it was not obliged to do so contrary to the impugned authority of the Full Court under challenge in the High Court, for the reasons that follow.

92    Neither ground 5(i) nor ground 5(ii) has merit.

93    As to ground 5(i), no error has been shown by the appellant in the primary judge’s findings, at [81]-[82], that there was no failure by the Tribunal to consider the appellant’s 2002 and 2008 protection visa applications. The Tribunal’s reasons make plain that it had regard to the evidence put forward by the appellant in support of his claim to fear harm if returned to the Congo. The Tribunal expressly referred to the previous protection visa applications made by the appellant and his ex-wife, including in its dispositive findings at [276] of its reasons:

… the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa.

94    In the circumstances, it can be inferred that the absence of any detailed reference to the claims that the appellant made in 2002 and 2008 is that they were not critical to the making of the Tribunal’s findings on material questions of fact.

95    Those circumstances included that neither the interview conducted in 2002, nor the protection visa application the appellant made in 2008, had any bearing upon the appellant’s fear of harm as at 2019. On each occasion the appellant’s claims were in general terms. Further, the appellant did not state in his 2002 interview that he feared harm if returned to the Congo. Rather, the appellant stated that no immediate threats had been made to himself or his wife, and that he had not kept up-to-date with the circumstances of his wife’s family. This is apparent from the transcript of the appellant’s airport entry interview:

Q: Is your brother in law under threat

A: I would have to check that with my wife.

Q: Why do you not know if he is under threat?

A: I haven't kept up to date about my brother in laws situation

Q: Have you or your wife received any immediate threats

A: No

96    Further, the 2008 application had been made without the appellant’s knowledge. Thus, it would be to read the Tribunal’s reasons out of context to say that the claims that had been made in 2002 and 2008 were not considered by the Tribunal in deciding whether the appellant had a subjective fear of harm. The primary judge was correct in her Honour’s findings at [81]-[82] of the Primary Judgement. In any event, even if they had been overlooked, the claims, which were then well-outdated (for example, the appellant had separated from his wife in 2005), were of insufficient importance such that they could affect the outcome of the review.

97    As to ground 5(ii), this ground misunderstands the Tribunal’s findings on non-refoulement. It is clear from Tribunal’s conclusion, at [289] of its reasons that the appellant’s fear was not real, and did not meet the requisite threshold so as to engage Australia’s international obligations:

… there is only a very remote possibility that Australia will breach any non-refoulement obligations owed in respect of the [appellant].

98    The Tribunal’s findings at [265], [279], [286]-[287] and [289], seek to further illustrate this point:

[T]he Tribunal considers that there is only a very remote possibility Australia will breach any non-refoulement obligations owed in respect of the [appellant]. It appears from the limited information before the Tribunal that the [appellant]’s refugee claims are particularly weak.

…

[T]he Tribunal does not consider that there is a real chance that the [appellant] will face serious harm or a real risk that [he] will suffer significant harm if he were to return to the Congo.

…

[T]here is no real chance that the [appellant] will suffer serious harm if returned to the Congo and there is no real risk that [he] will suffer significant harm if returned to the Congo.

Thus, the Tribunal considers it likely that the [appellant] will not be found to meet the criteria for a [p]rotection visa in either section 36(2)(a) or section 36(2)(aa) of the Act as being a person in respect of whom Australia owes protection obligations, and that he will be refused a [p]rotection visa on that basis. If this is correct, the removal of the [appellant] from Australia will not result in any breach of Australia’s international non-refoulement obligations.

…

[T]here is only a very remote possibility the non-revocation of the cancellation of the [appellant]’s visa may result in Australia breaching its international non-refoulement obligations.

99    It is clear that the Tribunal undertook a consideration of what a contravention of Australia’s non-refoulement obligations would entail at [273]-[287] and [315], [318] of its reasons. The Tribunal did not equivocate on this. This was not a case where the Tribunal concluded that the appellant was a person in respect of whom non-refoulement obligations were owed, but found that the evidence before it was such that it could not properly assess the degree and nature of the harm that he might encounter in his home country. Rather, the appellant was found not to be a person in respect of whom Australia owes such obligations because the chance of his being harmed was “very remote” at [289] of the Tribunal’s reasons. Nevertheless, to account for that very remote chance of contravention by Australia of its international obligations, the Tribunal determined to give non-refoulement “slight weight in favour of revocation”: Tribunal’s reasons at [290].

100    The appellant’s contention that the Tribunal failed to properly “evaluate the information available to [it] about the circumstances in [the appellant’s] place of return”, “to determine what, as a matter of fact, those circumstances meant for [the appellant] on his return” and then to incorporate those findings into the resulting weighing exercise is not correct: DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2012) 278 FCR 529. Moreover the appellant’s reliance on Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Ali), that this failure was compounded, or caused, by a broader failure on the part of the Tribunal (equivalent to that in Ali) to recognise the distinction between the appellant’s potential eligibility for a protection visa and whether he was owed non-refoulement obligations is misplaced for the reasons that follow.

101    Unlike in Ali this was not a case where the Tribunal hived off non-refoulement to a later decision-making process.

102    Unlike in Ali, the Tribunal did not fail to appreciate the differences between the role of non-refoulement in the exercise of the discretionary power in s 501CA(4) and its place in the protection visa regime: Tribunal reasons at [239]-[244] and [288].

103    Unlike in Ali, the Tribunal did not conflate Australia’s international non-refoulement obligations with the criteria for the granting of a protection visa. On the contrary, the Tribunal was careful to appreciate the differences between Australia’s obligations under international law and the criteria for the grant of a protection visa: Tribunal reasons at [226]-[233], and [253]-[258]. The Tribunal understood that “it is quite possible that a person may not meet the criteria for the grant of a [p]rotection visa notwithstanding that Australia may owe non-refoulement obligations in respect of the person”: Tribunal reasons at [253]. No such statements appear in Ali, FAK19 or DGI19. Read in the context of its discussion of Australia’s international obligations, the references to ss 36(2)(a) and (aa) of the Act at Tribunal reasons [278]-[279] and [287] were merely shorthand for Australia’s international obligations under, respectively, the Refugees Convention and other international human rights instruments (such as the International Covenant on Civil and Political Rights and the Convention Against Torture) as enacted in municipal law. Such reasoning was entirely orthodox, as Australia’s unenacted obligations under international law “are not mandatory relevant considerations attracting judicial review for jurisdictional error”; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [101] per McHugh and Gummow JJ; cited by Nettle, Gordon and Edelman JJ in Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 (Applicant S270/2019) at [35]. As Keane J observed in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, in a passage cited by the majority in Applicant S270/2019 (2020) 94 ALJR 897 at [35] per Nettle, Gordon and Edelman JJ:

[i]n point of constitutional principle, an international treaty made by the Executive Government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament.

104    In particular, the Tribunal did not err at [287] of its reasons. All that the Tribunal there said was that the failure by the appellant to meet the criteria in ss 36(2)(a) and (aa) meant that Australia would not breach its international non-refoulement obligations in the event that he is removed from Australia. That was not to equate non-refoulement with the criteria for the grant of a protection visa. Rather it was to recognise that the international instruments referred to in the previous paragraph are a source of rights and obligations under domestic law to the extent that ss 36(2)(a) and (aa) incorporate Australia’s obligations under those instruments. That the Tribunal did not conflate the two processes is reinforced not only by the absence of any reference in its dispositive findings to ss 5H-5LA or ss 36(1A)-(1C) and (2A)-(7) of the Act but also its acknowledgment, at [288] of its reasons, that a decision-maker on any application for a protection visa would not be bound by the findings made for the purpose of exercising the power in s 501CA(4).

105    It is difficult to see how the Tribunal was required to have regard, in the appellant’s submission, to the impact (if any) of a contravention of Australia’s international non-refoulement obligations on its “international reputation and standing”, when, first, it concluded that the appellant was not owed such obligations at [286]-[287] of its reasons. Secondly, the executive dimension of non-refoulement never featured in the appellant’s submissions to the Tribunal; and thirdly, the slight chance that such obligations might be owed was taken into account in any event. Particularly where the point was never taken by the appellant, the exercise of the power in s 501CA(4) did not require a decision-maker to have regard to the damage to Australia’s international standing or reputation in the event that it contravened its international non-refoulement obligations.

106    For these reasons, the failure to consider grounds will fail.

Disposition

107    The appeal will be dismissed.

108    The appellant will pay the first respondent's costs of the appeal on a lump sum basis to be fixed by a Registrar of this Court in the absence of agreement between the parties.

Associate:

Dated:    17 December 2021