Federal Court of Australia
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The time in which to commence an appeal be extended nunc pro tunc so as to expire on 11 January 2021.
2. The applicant/appellant be granted leave to rely on the first ground specified in the Draft Notice of Appeal forming annexure AC-2 to the affidavit of Ater Madit Apaac Chinmouth dated 10 August 2021, save that the ground shall not refer to Sudan as the appellant’s home country.
3. The appeal be allowed.
4. Order 1 of the orders made by the primary judge on 27 October 2020 in NSD599 of 2020 be set aside and in lieu thereof:
(a) a writ of certiorari issue quashing the decision of the second respondent made on 21 April 2020; and
(b) a writ of mandamus issue compelling the second respondent to determine, according to law, the application for review of the decision of the delegate of the first respondent made on 24 January 2020.
5. In relation to the costs of this proceeding:
(a) The parties confer with a view to reaching an agreement as to the appropriate order.
(b) In the event that no agreement is reached within 28 days of the date of these orders:
(i) by 24 August 2022 the appellant file and serve any evidence and submissions, the latter not exceeding three pages;
(ii) by 7 September 2022 the first respondent file and serve any evidence and submissions in response;
(iii) by 16 September 2022 the appellant file and serve any submissions in reply.
(c) No submissions may exceed three pages.
(d) The question be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
INTRODUCTION
1 The applicant was born in Khartoum, Sudan. He arrived in Australia at the age of 15 in 2004 with his mother and siblings and has lived here ever since.
2 The applicant has a long criminal history, the most significant aspect of which is a conviction for reckless wounding for which he was sentenced in May 2018 to two years and 14 days’ imprisonment. As a consequence of that offending and sentence, the applicant is a person who cannot pass the character test prescribed in s 501(6) and s 501(7) of the Migration Act 1958 (Cth).
3 Section 501(3A) of the Act imposes an obligation on the Minister to cancel a person’s visa. One of those circumstances is where the Minister is satisfied that the person does not pass the character test. If a decision is made under s 501(3A) to cancel the person’s visa, s 501CA(3) requires the Minister to invite the person to make representations about revoking the decision. If the person makes representations in accordance with the invitation, s 501CA(4) gives the Minister the power to revoke that decision if the Minister is satisfied that the person passes the character test or there is “another reason” why the original decision should be revoked.
4 At the time he was sentenced, the applicant he was the holder of a Global Special Humanitarian (Class XB) (subclass 202) visa. After he was sentenced in May 2018, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) (cancellation decision). The applicant made representations to the Minister urging him to revoke the cancellation decision and another delegate declined to do so (the non-revocation decision). The Administrative Appeals Tribunal affirmed the non-revocation decision. The applicant applied to this Court for judicial review of the Tribunal’s decision. That application was dismissed by the primary judge: CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1546. The applicant now wishes to appeal from that judgment.
5 There are a number of obstacles in the applicant’s path.
6 First, the notice of appeal was not filed within the prescribed time so he needs to persuade the Court to exercise its discretion to extend the time. Second, the proposed appeal raises a ground that was not raised before the primary judge so he requires leave to raise it on the appeal. Third, if the Court is disposed to extend the time within which he can appeal and to allow him to raise the ground which was not raised at first instance, he wishes to rely on evidence that was not before the primary judge.
7 Two interlocutory applications were filed, one seeking an extension of time to appeal, the other seeking to adduce further evidence on the appeal. For the reasons that follow, both applications should be upheld and the appeal allowed.
8 From now on we will refer to the applicant as the appellant.
THE INTERLOCUTORY APPLICATIONS
The application for an extension of time
9 A party who wishes to appeal from a judgment or order is required to file a notice of appeal within 21 days after the date of pronouncement of the judgment or the making of the order: Federal Court Rules 2011 (Cth), r 36.03(a). The appellant filed an application for an extension of time on 12 January 2021, some 56 days or eight weeks after he was required by the Rules to file a notice of appeal. Throughout that time he was unrepresented, as he had been before the primary judge.
10 The application was supported by an affidavit signed by the appellant on 5 January 2021 and affirmed on 10 August 2021. The affidavit provided an explanation for the delay and annexed a draft notice of appeal. That affidavit was not read. Instead, the appellant relied on an affidavit he affirmed on 12 July 2021. The draft notice of appeal annexed to the appellant’s first affidavit has been superseded by a second draft notice of appeal. As explained below, ultimately only the first proposed ground of appeal was sought to be pressed.
11 The appellant argued that an extension of time should be granted as he had provided an explanation for the delay, he would suffer significant prejudice if an extension were not granted, and there was no prejudice to the Minister.
12 The Minister opposed the application. He submitted that the explanation for the delay was unsatisfactory and that leave to enable the appellant to run a new case on appeal should be refused since the proposed new ground does not enjoy “sufficient prospects of success”.
The relevant principles
13 The principles that apply to the grant of an extension of time are well established. A convenient summary appears in the judgment of the Full Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]. In short, omitting the authorities from which they are derived, the principles are as follows.
14 First, an application for extension of time will only be granted if it is proper to do so; the legislated time limits are not to be ignored.
15 Second, there must be an acceptable explanation for the delay.
16 Third, any prejudice to the respondent caused by the delay militates against the grant of an extension. On the other hand, the mere absence of prejudice to the respondent is not enough to justify the making of an order.
17 Fourth, the merits of the substantive application are to be taken into account. Leave will not be granted where the appeal has no reasonable prospect of success.
18 Fifth, the purpose of the discretion is to enable the Court to do justice between the parties. Where the delay is short and no injustice will be occasioned to the respondent, justice will normally be done by extending the time. That is especially so if the applicant is in immigration detention, requires the assistance of an interpreter, and has limited knowledge of law and practice including the time for any appeal. Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly. But the merits of the appeal are still relevant.
The explanation for delay
19 The explanation for the delay was this.
20 The appellant has been in immigration detention at all relevant times. He had no legal assistance at the time of the judgment or when he received a copy of it. The judgment was emailed to the parties on 27 October 2020 (the day it was delivered). He did not look at it until 9 November 2020 and when he did he did not understand it. On 9 November 2020 he emailed the primary judge’s associate, copying the lawyers for the Minister asking:
Can someone please help and explain to me in plain English what the Judgement means? What does this mean, the Judge dismissing my case?
21 The appellant deposed that he was confused by the decision and what it meant for his case and did not know any lawyers who could assist him. He asked a friend at the detention centre for help but his friend told him there was nothing that could be done as the judgment was “the final decision”. The appellant called his mother to ask if she could find a lawyer to help him with “the Protection Visa”. She put him in touch with his present lawyer, Mr Maker Mayek, who speaks his language. It appears that the appellant was in contact with Mr Mayek by 20 November 2020.
The proposed ground of appeal
22 The appellant originally sought leave to rely on two grounds of appeal. Those grounds raised the following complaints, each of which was said to be a jurisdictional error which would vitiate the Tribunal’s decision.
23 The first was that the Tribunal failed to consider a reason for revocation that emerged from the material before it. That claim was that the appellant would be at risk of harm from violence he faced in South Sudan as a member of the Dinka tribe.
24 The second was that the Tribunal failed to understand that Australia’s non-refoulement obligations were more extensive than those covered by ss 36(2)(aa), 36(2A) and 36(2B)(c) of the Act.
25 Following the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497, discussed further below, the parties were requested to provide written submissions on the impact of that decision on the present appeal. In his submissions, the appellant continued to press the first proposed ground but abandoned the second.
26 The sole ground is set out in full at [83] of these reasons.
Should an extension of time be granted?
27 The Minister’s objections are not without substance.
28 First, the delay is not insignificant and the explanation not entirely satisfactory. As the Minister submitted, there is no explanation for the appellant’s delay in asking his mother for help. Further, no explanation is proffered for the delay in attending to the matter in the two weeks before he wrote to the Court or for the delay from the time he contacted Mr Mayek, a period of six weeks until the application was prepared and a further two plus weeks until it was filed.
29 Second, this is an appeal in the nature of a rehearing. In an appeal of this nature the appellant must demonstrate that the judgment below is affected by error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [30] (Allsop, Drummond and Mansfield JJ agreeing at [1] and [2] respectively). The issues and the evidence are not at large: Coulton v Holcombe (1986) 162 CLR 1 at [9] (Gibbs CJ, Wilson, Brennan and Dawson JJ). Moreover, as their Honours went on to say in Coulton at 7 – 8:
… It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; Bloemen v. The Commonwealth (1975) 49 ALJR 219. …
30 This is such a case. The appellant points to no error on the part of the primary judge. In effect, having failed the first time, he wants the opportunity to run the case below again on a different basis. What is more, in order to succeed on the prospective appeal, he also needs to persuade the Court to admit new evidence.
31 On the other hand, there is no reason to believe that this is a case in which a tactical decision was made not to raise the points the appellant now wishes to agitate. The Minister does not point to any injustice or prejudice that would be visited upon him if the appellant were able to rely on the new ground. The only prejudice he would suffer is the loss of his automatic right to appeal if the appellant were successful. For the appellant, however, the Tribunal’s decision has serious consequences. The failure to raise the ground in the judicial review application can be wholly explained by the fact that the appellant was unrepresented. The new ground raises questions of law. Moreover, as we explain below, the ground has merit. In these circumstances leave should be granted to raise the new ground, and the extension of time granted.
The application for leave to tender evidence
The relevant principles
32 A convenient summary of the relevant principles on this subject appears in the judgment of the Full Court in Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74]–[76] (North, Barker and Katzmann JJ). In short, the Court has a discretion to receive further evidence in an appeal. That discretion is conferred by s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The power is not limited to “fresh” evidence, that is to say, evidence of which an appellant was unaware at the time of the original hearing and with reasonable diligence could not then have been obtained: CDJ v VAJ (No 1) (1998) 197 CLR 172 at [51]-[52] (Gaudron J). But that circumstance is not irrelevant. Moreover, despite the absence of express limitations in the section itself, the discretion is not at large. As the Full Court observed in Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme [2007] FCAFC 136; 245 ALR 389:
71 The discretion to receive further evidence must be exercised judicially, consistently with proper judicial process and in the interests of justice. It is highly unlikely that the legislature intended that s 27 should be construed in such a way as to obliterate the distinction between original and appellate jurisdiction.
72 The proper role of an appellate court under s 25 of the Federal Court Act … is ordinarily to correct error. Nothing in CDJ was, in our view, intended to minimise the force of the observation of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7 …
33 Finally, the power is remedial: August v Commissioner of Taxation [2013] FCAFC 85; ATC ¶20–406; 94 ATR 376 at [116] (Siopis, Besanko and McKerracher JJ). An important consideration in determining whether it should be exercised is whether, if the further evidence had been available at the trial, it would have produced, or at least would be likely to have produced, a different result.
34 We would add to this summary one further observation. Section 27 of the FCA Act is one of the civil practice and procedure provisions covered by s 37M of the FCA Act. Section 37M(3) imposes an obligation on the Court to exercise any such power in the way that best promotes the overarching purposes of those provisions. That purpose is described in s 37M(1) as the facilitation of the just determination of disputes as quickly, efficiently and inexpensively as possible.
Should leave be granted to adduce the evidence?
35 Leave should be granted.
36 The evidence the appellant wishes to adduce in this appeal is the transcript of the hearing before the Tribunal. The Minister opposed the transcript being adduced for the same reasons as he opposed the extension of time. In argument, however, the Minister’s counsel informed the Court that if an extension of time were granted, he would not object to the transcript being received into evidence on the appeal.
37 In view of our conclusion concerning the application for an extension of time, there is no reason why the transcript should not be admitted. It is critical to the appellant’s sole ground. Admitting the evidence would cause no prejudice to the Minister. Indeed, the Minister sought to rely on it. In any case, this is evidence which should probably have been put before the primary judge as it recorded an important part of the material that was before the Tribunal and it would certainly have been included in the application book (and therefore the appeal book) if the new ground had been raised below. It is in the interests of justice and in furtherance of the overarching purpose described in s 37M of the FCA Act for the evidence to be admitted.
THE LEGAL CONTEXT
Cancellation of visas on character grounds
38 The Minister’s powers to cancel a visa on character grounds are contained in Pt 9 Div 2 of the Act.
39 The Tribunal’s power to review the non-revocation is conferred under s 500(1)(ba) of the Act. Conducting the review, the Tribunal has the same powers as the Minister’s delegate had.
40 The power the Tribunal was purportedly exercising was the power in s 501CA(4) to revoke a decision to cancel a visa under s 501(3A). Section 501(3A) relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); … and
…
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
41 The character test appears in s 501(6). It provides that, for the purposes of s 501, a person does not pass the character test if, amongst other things, the person has a substantial criminal record as defined by subs (7). Subsection (7) relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to death (para (a)), to life imprisonment (para (b)); or to a term of imprisonment of 12 months or more (para (c)).
42 Section 501(3A) does not limit subss (2) and (3) (s 501(3B)). Section 501(2) provides that the Minister may cancel a visa if the Minister reasonably suspects that the person to whom it has been granted does not pass the character test and the person does not satisfy the Minister that the person does pass the character test. Section 501(3) relevantly provides that the Minister may cancel a visa if the Minister reasonably suspects that the person to whom it has been granted does not pass the character test and the Minister is satisfied that cancellation is in the national interest.
43 The power to cancel a visa under s 501(3A) and s 501(2) and the power to revoke the cancellation decision under s 501(3A) can be delegated. So can the Minister’s powers under s 501CA: see s 496.
44 Section 501CA relevantly provides:
Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
…
Consequences of cancellation
45 The consequence of the cancellation of the appellant’s visa is that he is an “unlawful non-citizen” as defined in s 14 of the Act.
46 If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person: s 189(1). A person so detained must be kept in immigration detention until he or she is (relevantly) removed from Australia accordance with s 198, deported under s 200, or granted a visa: s 196.
47 Relevantly, s 198(2B) requires an officer to remove an unlawful non-citizen from Australia as soon as reasonably practicable if a delegate of the Minister has cancelled the non-citizen’s visa under s 501(3A) and, since that decision, the non-citizen has not made an application for a visa that can be granted while he or she is in the migration zone, and the Minister has decided not to revoke the original decision under s 501CA(4). Section 198(6) requires an officer to remove as soon as practicable an unlawful non-citizen who is a detainee who has made a valid application for a substantive visa that can be granted when he or she is in the migration zone and (relevantly) the visa has been refused and the application finally determined. Section 198(6) would otherwise operate to require the unlawful non-citizen’s removal from Australia if any application for a protection visa was refused for any one of the reasons discussed below.
48 In their present application to the appellant, s 198(2B) would require the appellant’s removal from Australia if he did not make an application for another visa. If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.
49 If a cancellation decision is revoked, it is taken not to have been made: s 501CA(5). In that event, the appellant would not meet the description of an unlawful non-citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.
Australia’s obligations under international law
50 Australia owes obligations under international law as a signatory to the following instruments:
(1) the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (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) (together the Refugee Convention).
(2) the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) (ICCPR); and
(3) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT).
51 Article 33 of the Refugee Convention provides:
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
52 The ICCPR relevantly prohibits a person being “arbitrarily deprived of his life” or sentenced to death in certain circumstances (Art 6); being subjected to “torture or to cruel, inhuman or degrading treatment or punishment” (Art 7); being subjected to servitude or slavery (Art 8); or being subjected to arbitrary detention or arrest (Art 9).
53 The CAT prohibits a state from refouling or extraditing a person to another State “where there are substantial grounds for believing that he would be in danger of being subjected to torture” (Art 3).
Enactment of international law obligations under domestic law
54 The expression “non-refoulement obligations” appears in s 197C of the Act, and in no other provision. Section 197C(1) provides that for the purpose of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. An officer must comply with the duty under s 198 to remove a non-citizen from Australia as soon as reasonably practicable irrespective of whether there has been an assessment accordingly to law of Australia’s non-refoulement obligations in respect of the non-citizen: s 197(2).
55 For the purpose of s 197C, the phrase “non-refoulement obligations” is defined in s 5 to include:
(1) non-refoulement obligations that may arise because Australia is a party to the Refugee Convention, the ICCPR or the CAT; and
(2) any obligations of a similar kind which are accorded by customary international law.
56 In their practical application, ss 197C and 198 operate so as to mandate the removal of unlawful non-citizens from Australia in circumstances that amount to a breach of Australia’s obligations under international law (whether enacted in domestic law or not).
Visas
57 The Minister may grant a non-citizen permission (known as a visa) to travel to, enter and remain in Australia: s 29. The Minister is to consider a valid visa application: s 47. The Minister must grant the application if satisfied that (among other things) the prescribed criteria for the visa are satisfied: s 65(1)(a). If not so satisfied, the Minister must refuse to grant the visa: s 65(1)(b).
58 To obtain a protection visa, the visa applicant must satisfy (among other things) at least one of the criteria in s 36(2). Section 36(2)(a) contains what is commonly referred to as the “refugee criterion”. It provides that a criterion for a protection visa is that the applicant for the visa is:
… a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee;
59 The expression “protection obligations” is not defined in the Act.
60 The word “because” is confining in the sense that the decision-maker is not directed to the terms of the international instruments, but to the provisions of the Act as defining the facts and circumstances in which “protection obligations” are owed.
61 “Refugee” is defined for the purposes of the Act in s 5H. It provides in subs (1) that a person in Australia is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
62 The phrase “well-founded fear of persecution” is defined in s 5J(1). Exceptions, to which it is unnecessary to refer, are carved out in subss (2)-(3) and (6). Section 5J(1) provides:
For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
63 Section 5L defines what is meant by “membership of a particular social group”. It provides:
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
64 Section 5J(4) stipulates that, if a person fears persecution for one or more of the reasons mentioned in subs (1)(a), that reason or those reasons must be: (a) the essential and significant reason or reasons; (b) the persecution must involve “serious harm” to the person; and (c) the persecution must involve “systematic and discriminatory conduct”.
65 “Serious harm” is defined in s 5J(5), which reads:
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
66 The so-called “complementary protection criterion” is contained in s 36(2)(aa). It offers protection to those non-citizens who are at risk of “significant harm” whether or not the person falls within the definition of “refugee”. It provides that a criterion for a protection visa is that the applicant for the visa is:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
67 “Significant harm” is defined in s 36(2A). It broadly reflects the types of harm protected by the ICCPR and the CAT mentioned above:
A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
68 Section 36(2A) is qualified by subs (2B) which provides:
However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
69 The phrase “protection obligations” in the Act does not wholly equate with Australia’s international obligations under the instruments referred to in the definition of “non-refoulement obligations”. That is at least because the words in ss 5J(1)(c) and 36(2B)(c), or variations of them, do not appear in the Refugee Convention, the ICCPR or the CAT.
70 Moreover, fulfilment of the refugee criterion does not have the consequence that a protection visa must be granted. The grant may be prevented by s 501(1) of the Act (s 65(1)(a)(iii)); BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [91] (Bromberg and Mortimer JJ) and/or because the visa applicant cannot satisfy health criteria (s 65(1)(a)(i)). The grant may also be precluded because the visa applicant does not satisfy the additional criterion in s 36(1C). It provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
71 A “particularly serious crime” means a “serious Australian offence”, which in turn includes an offence involving violence against a person: s 5 and s 5M: BCR16 at [50] (Bromberg and Mortimer JJ).
72 As mentioned above ss 197C and 198 mandate the removal of unlawful non-citizens from Australia even if they are persons in respect of whom Australia owes “non-refoulement obligations” under any one of the international instruments referred to in the statutory definition and even if they may also be persons in respect of which Australia owes “protection obligations” as provided for in the refugee or complementary protection criterion.
73 All of that illustrates the importance of identifying the particular context in which the phrase “non-refoulement obligations” is used in the Tribunal’s reasons, in the parties’ submissions and in the authorities to which they refer. Where a valid application for a protection visa is made, the task of the Minister under s 47 and s 65 is not to inquire at large as to whether Australia owes obligations in respect of a person under international law. Rather, on such an application the inquiry is confined to whether protection obligations are owed to the person because of the circumstances defined in the refugee criterion and the complementary protection criterion. Whether the visa applicant might otherwise be a person in respect of whom Australia owes obligations under international law is an issue that does not and cannot arise in the exercise of the power conferred under s 65.
Direction 79
74 In considering whether or not there was another reason why the cancellation decision should be revoked the Tribunal was obliged to comply with a direction issued under s 499 of the Act titled Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79).
75 The purpose of Direction 79 is to guide decision-makers performing certain functions, including the function conferred by s 501CA(4): para 6.1(4). Paragraph 14 states that “other considerations” (including international non-refoulement obligations) must be taken into account where relevant. Paragraphs 14.1(1) and (2) state:
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.
76 The proposition that the Act “reflects Australia’s interpretation” of the obligations arising under the instruments referred to in para 14.1(1) was accepted to be correct by the majority in M1 (at [32]). The majority did not explain how the proposition may be reconciled with s 197C of the Act which unequivocally mandates their breach, but for present purposes nothing turns on the point.
77 Consistent with the authorities discussed below, para 14.1(3) states that claims which may give rise to international non-refoulement obligations can be raised by a former visa holder in a revocation request, “or can be clear from the facts of the case”. Paragraph 14.1(4) relates to persons (such as the appellant) who are able to provide for a protection visa. It provides:
Where a non-citizen makes claims which may give rise to international nonrefoulement 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.
78 In cases where the visa subject to a cancellation decision is a protection visa, para 14.1(6) noted that:
… 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.
79 The government’s stated policy under paras 14.1(2) and (6) of Direction 79 are not necessarily inconsistent with s 197C and s 198 of the Act. As Kenny and Mortimer JJ explained in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [151]:
… the operation of s 198 read with s 197C allows for the executive to have time, and to take active and genuine steps, to consider whether there are other alternatives to refoulement: the exercise of personal powers, the grant of other visas or third country resettlement. That list may not be exhaustive. Particularly in the absence of any evidence to the contrary (such as evidence about individuals being removed to South Sudan or other nations despite engaging Australia’s non-refoulement obligations) the Tribunal was entitled to take the approach that the executive would do what its policy says it would do. As we have also sought to emphasise, by the use of the term ‘as soon as reasonably practicable’ the legislative scheme contemplates the executive must act genuinely, promptly and with reasonable diligence to implement a person’s removal. The presence of s 197C, at the very least, indicates that the Parliament intends non-performance of the duty to remove for a prolonged period of time cannot be justified only by reference to an executive policy of adhering to Australia’s non-refoulement obligations. However, after all visa processes are exhausted, the concept of ‘reasonably practicable’ can allow for the timely and genuine exploration of options which might avoid breach of Australia’s non-refoulement obligations. The Tribunal’s reasons demonstrate it understood this to be the case. Further, in the absence of evidence to the contrary, as between different parts of the executive it was entitled to expect the policy evinced in paras 14.1(2) and (6) would be applied to the appellant’s benefit.
(Original emphasis.)
80 Their Honours considered (at [153]) that such a period of detention could be characterised as “indefinite”:
… what is contained in para 14.1(6) is also a correct statement of the legal and practical position for any person whose challenges to visa cancellation or refusal are exhausted, but is found to engage Australia’s non-refoulement obligations. Such a person may well suffer ‘indefinite’ detention, as we have described it. That position is not limited to those persons where the visa refused or cancelled is a protection visa. The resolution and exhaustion of all executive options which are capable of avoiding refoulement may take a very long time. There are many examples from decided cases where individuals have been detained after the exhaustion of their legal challenges for a period with no chronological endpoint and in circumstances where they cannot ascertain when their detention might end. That is indefinite detention. …
ISSUES AND OUTCOME
81 The jurisdiction of the primary judge was that conferred by s 476A of the Act. On such an application, the onus is on the judicial review applicant to show that the decision subject to review is affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
82 On its terms, the new ground does not allege appealable error on the part of the primary judge in rejecting the four grounds for judicial review raised at first instance. In these circumstances, there is little point in referring to the reasons of the primary judge. The consequence of granting leave to rely on a new argument is that this Full Court does not have the benefit of considered reasons of the primary judge in relation to it.
83 The ground alleges jurisdictional error by the Tribunal in the following terms:
(1) The [Tribunal] fell into jurisdictional error as it failed to consider a claim that clearly emerged from the materials before it and/or to consider critical material and evidence and therefore failed to complete its statutory task to consider a potential reason to revoke the cancellation decision under s 501CA(4) … and/or denied the [applicant] procedural fairness by failing to consider [his] representations as to a reason to revoke the cancellation.
Particulars
(a) The [Tribunal] considered whether the [appellant’s] removal to Sudan or South Sudan would likely be a breach of Australia’s non-refoulement obligations.
(b) The [Tribunal] found - based on its review of the DFAT Country Information Report: Sudan dated 27 April 2016 (Sudan Report) and the DFAT Country Information Report: South Sudan dated 5 October 2016 (South Sudan Report) - that the appellant could be harmed in Sudan or South Sudan due to generalized violence from armed conflict.
(c) The [Tribunal] found the appellant’s claim would fail under the Refugees Convention as the appellant had not identified a convention reason for the risk of harm in Sudan.
(d) A claim clearly emerged from the material that the [appellant] would be at risk of harm from violence for reason of his race or particular social group as a member of the Dinka tribe in South Sudan or Sudan:
(i) The evidence before the Tribunal indicated the [applicant] is of Dinka ethnicity.
(ii) The South Sudan Report clearly indicated that the most significant determinant of a person’s risk of violence is ethnicity, and members of the Dinka tribe were at particular risk.
(iii) The Sudan Report indicated inter-tribal violence in Sudan is common and identified reports that the Ngok-Dinka were an at-risk ethnic group.
(e) The Tribunal fell into jurisdictional error by failing to consider if the [appellant] faced a real chance of serious harm for reason of his race or particular social group being a Dinka in South Sudan or Sudan.
As can be seen, only the claims concerning South Sudan in this ground are pressed. The claims relating to Sudan were struck out during the hearing.
84 In its terms, the ground refers to distinct “claims” expressly advanced or otherwise arising on the materials, only one of which the Tribunal is said to have failed to consider. Particulars (a) to (c) summarise the Tribunal’s conclusions in respect of the issues that it recognised arose on the materials before it. They included the appellant’s express claim to fear harm if returned to his country of nationality because of his father’s former role in the military (hereafter the Military claim) and the risk that he may be harmed in more generalised violence in South Sudan. The Tribunal understood, evaluated and rejected each of those claims and there is no challenge to its reasoning in respect of them.
85 By particulars (d) and (e), the appellant contends that the Tribunal overlooked a reason for revocation that was not expressly made but that nonetheless clearly arose on the material before it. That reason was that he had a well-founded fear of persecution in South Sudan on account of his Dinka ethnicity. We will refer to that as the Ethnicity claim.
86 In accordance with the principles summarised below, to establish jurisdictional error the appellant must show that:
(1) the Tribunal was obliged to consider the Ethnicity claim;
(2) the Tribunal failed to consider the Ethnicity claim in the requisite sense; and
(3) the Tribunal’s non-compliance with the obligation to consider the Ethnicity claim materially affected the outcome of the exercise of its powers on the review.
87 The appellant’s arguments in respect of each of these matters should be accepted. The consequence is that there was a constructive failure on the part of the Tribunal to exercise the jurisdiction conferred by s 500(1)(ba) and s 501CA(4) of the Act.
OBLIGATION TO CONSIDER THE ETHNICITY CLAIM
Principles
88 In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 the Full Court held that a tribunal is required to consider claims which, although not expressly made, “clearly arise” and are raised “squarely” on the face of the material before it at [58]–[60], [68] (Black CJ, French and Selway JJ). As the Court remarked at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. …
89 A “claim” in this context, is an assertion of fact made by an applicant: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J).
90 A claim will be “squarely” raised where it is apparent on the face of the material before the Tribunal but “not [where it] depend[s] for its exposure on constructive or creative activity by the Tribunal” (NABE at [58]). Much will turn on the facts and circumstances of the case (NABE at [63]). There is no precise standard for determining whether or not a claim “clearly emerges” from the material, but “a Court may be more willing to draw the line in favour of an unrepresented party”: Kaspune v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 at [21] (Flick J) and see AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ).
91 In M1, the majority endorsed the approach taken in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]), which grounded the reasoning in NABE at [55], [60]–[61], [63]–[65], [68]. That approach provides that a decision-maker’s failure to respond to a “substantial, clearly articulated argument relying on established facts” (Dranichnikov at [24]) can amount to a failure to afford procedural fairness or a constructive failure to exercise jurisdiction. The majority also observed at [25], citing Dranichnikov at [78], that a decision-maker “is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them”. The words “clearly arise” reflects the language used in NABE at [60].
92 The reasons of the majority in M1 are otherwise to be understood in light of the questions stated for the opinion of the Full Court of the High Court and the undisputed facts of the case. On the facts, there was no doubt that the visa holder had expressly raised the issue of Australia’s international non-refoulement obligations in the submissions he made to the Minister’s delegate, and in unambiguous terms. The first stated question was as follows:
1. In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
93 The majority answered the question in terms that identified both the existence and the content of the Minister’s obligation:
In deciding whether there was ‘another reason’ to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for a protection visa under the Migration Act:
(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;
(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia’s international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
94 The responses in (2) and (3) mark a distinction between Australia’s international non-refoulement obligations that are given effect in the Act and those that are not. Read together, the answers confirm that where the former visa holder’s representations assert facts which (if accepted) may engage Australia’s international law obligations enacted in domestic law “one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa” (at [30]). In M1, the majority held that the delegate did not commit jurisdictional error by adopting that course in the context of that particular factual substratum.
95 The majority reiterated that nothing in their analysis detracted from the established principle that, where a decision-maker ignores, overlooks or misunderstands relevant facts or materials or a substantial and clearly articulated argument, jurisdictional error may arise (M1 at [27]).
96 Paragraph 14.1(3) of Direction 79 further supports the contention that a claim giving rise to international non-refoulement obligations can be “clear from the facts of the case”, even if not expressly articulated by the former visa holder. At the very least, Direction 79 imposes an obligation on the Tribunal to recognise and understand that such a claim arises so as to evaluate whether to defer an assessment of the claim to a visa application process. Nothing in Direction 79 mandates that the assessment be so deferred. Consistent with the reasons of the majority in M1, deferral of a substantive assessment of such a claim is but “one available outcome”.
The Minister’s submissions
97 The Minister submitted that in circumstances where the appellant was able to make a valid application for a protection visa, no obligation to consider the Ethnicity claim could arise. For that proposition the Minister relied on Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897; 383 ALR 194.
98 Neither Applicant S270/2019 nor M1 support the Minister’s submission.
99 In Applicant S270/2019, the plurality (Nettle, Gordon and Edelman JJ) held at [34] that it would be contrary to the scheme of the Act to construe general provisions relating to revocation as requiring consideration of non-refoulement claims, at least in circumstances where the applicant could make a valid application for a protection visa and the non-refoulement claim had not been “squarely raised”, echoing the language of NABE. The plurality found it unnecessary to decide whether consideration of express non-refoulement claims could be deferred. Their Honours were concerned with the different issue of whether, on the proper construction of the Act, the question of whether non-refoulement obligations were owed was a mandatory relevant consideration in all cases in the sense discussed by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The reasoning in Applicant S270/2019 does not derogate from the principles stated in Dranichnikov and NABE.
100 To similar effect, Kiefel CJ and Gageler J said that there was nothing in the text of s 501CA, or in its subject matter, scope or purpose, that required the Minister to take into account any non-refoulement obligations when deciding whether to revoke a cancellation decision (not affecting a protection visa) “where the materials do not include, or the circumstances do not suggest, a non-refoulement claim”: Applicant S270/2019 at [33] (Nettle, Gordon and Edelman JJ). In cases where the issue of refoulement had not been “squarely raised” in a revocation request, it would be contrary to the scheme of the Act to require consideration of the issue (at [34]). Their Honours continued at [36]:
It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering claims and material put forward by the applicant. If no refoulement claim is made – as in this case – non-refoulement does not need to be considered in the abstract …
(Original emphasis.)
101 The majority in M1 said that while unenacted non-refoulement obligations are not mandatory relevant considerations, in order to fulfil the statutory task under s 501CA(4) the decision-maker is required to consider the representations made by the former visa holder (at [22]). The issue was how that consideration was to be undertaken. The majority confirmed that the “requisite level of engagement” with the representations will depend on the “nature, form and content of the representations”, including their “length, clarity and degree of relevance” (at [25]).
102 Consistent with the approach in Applicant S270/2019, the majority in M1 held at [28] that where representations for revocation do not include, or the circumstances do not suggest, a non-refoulement claim, the decision-maker is not required to take into account any non-refoulement obligations.
103 That is not the position in the present case. Nor was it the case in M1 itself.
104 As the majority in M1 recognised, “the decision-maker cannot ignore the representations” (at [23]). Doing so may result in a jurisdictional error (at [27]). In our view, the same must follow for claims which otherwise squarely arise on the materials before it, or, to employ the words of para 10.1(3) in Direction 79, that are “clear from the facts of the case”, even if they are not the subject of clear articulation by a review applicant before the Tribunal.
105 Whilst “one available outcome” may be the deferral of the substantive assessment of such a claim, identification of that option was discussed by the majority in the context of identifying how the representations were to be considered. The majority confirmed (at [30]) that the substance of the claim “may” be considered by the decision-maker.
106 Accordingly, we do not accept the Minister’s submission that the availability of one option to defer assessment of a claim potentially giving rise to enacted international law obligations means that there is no obligation to identify, understand or evaluate it in the sense described above. In cases where the claim is one that, if accepted, would fulfil the refugee criterion or the complementary protection criterion, the reasons of the decision-maker should disclose that the claim has been identified and understood as having that character. It should be readily apparent from the reasons of the Tribunal whether it has availed itself of the option of deferring its substantive assessment to the protection visa process.
The Ethnicity claim squarely arose
107 It is common ground that the appellant made no express representation in terms that his return to Sudan or South Sudan would be in breach of Australia’s international non-refoulement obligations.
108 In his written request for revocation the appellant made general representations that he feared for his safety if he returned to his “country of citizenship”, which at that point in time, it appears, he believed to be Sudan. In particular, he said he would “face certain death” if he did, without specifying any basis for that fear.
109 The material said to found the appellant’s contention was based in part on a report on South Sudan published by the Department of Foreign Affairs and Trade in 2016 (DFAT report), which was before the Tribunal. DFAT assessed the security situation in South Sudan as “extremely volatile” and reported that a person’s ethnicity significantly correlated with their risk of experiencing violence:
… Credible in-country sources, including human rights contacts, suggest that there is a significant correlation between ethnicity and an individual’s risk of discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 which intertwined both ethnicity and political opinion.
Official and societal discrimination and violence linked to an individual’s ethnicity occurs in two distinct ways – as a result of the formal conflict between the Government and Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict. ... While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO.
(Emphasis added.)
110 The appellant also relied on the evidence he gave to the Tribunal concerning his fear of harm if he were to return to Sudan or South Sudan.
111 In cross-examination before the Tribunal, the appellant claimed to fear returning to Sudan because his father had died serving in the military during the Sudanese civil war and the people who killed him might want to take “revenge” on him. He could not identify who these people might be but said that “there is a lot of tribal issues there”. Despite having left Sudan as a young child, he claimed that these people would be able to identify him because “[n]ews would be spreading around the community, they would say ‘That son is the son of that guy who was here in the military’”. When pressed, he maintained that there was an “imminent threat” against him “because [his] father was in the military”. In reply to a question from the Tribunal member as to why anyone would care about him since the civil war was over, he replied: “I cannot trust what is happening in Sudan”, “what is down on the ground there”, and “[I] might get killed easily by people”. When the member asked why anyone would want to kill him, he replied: “[t]his is what I’ve been telling you, because of the troubles, still they are down there, and because of my father”. When cross-examined on statements in a DFAT report on Sudan that there were areas throughout that country which were not affected by conflict and were “relatively stable”, the appellant responded: “Conflicts are everywhere, even in my area”, by which, he clarified, he meant South Sudan.
112 At this point the Tribunal member asked the appellant why he referred to South Sudan as his area when he had said that he had never been there. He replied that his parents were born in South Sudan and that Sudan and South Sudan were one country at the time he was born.
113 The appellant identified himself as Dinka at the beginning of the hearing. Contrary to his written representations, in his oral evidence he indicated to the Tribunal that his country of origin was South Sudan rather than Sudan. The Tribunal member asked him:
Now, if you were to return to Africa, do you know whether you would return to Sudan or South Sudan, because yesterday you were making it very clear that you were not from South Sudan, that you were from Sudan. That’s what you’ve put in your application, you mentioned that you were from Khartoum, we’ve gone to the bother of getting another country report on Sudan, because you said you were from Sudan, not South Sudan. And now you appear to be saying that you’re from South Sudan.
114 The appellant replied:
Yes as I told you I was born in Khartoum right after the separation. My mother is telling me we are from South Sudan.
115 The member then asked him whether he knew if he was entitled to citizenship “in” Sudan or South Sudan but he was unable to answer the question. His mother gave evidence that his “homeland” was South Sudan.
116 The Tribunal was aware of the different risk profiles for different tribes in the two countries based on the country information. This was evident in the following exchange with the Minister’s lawyer, Ms Mak:
MEMBER: And I know that there, you know, even from looking at this, that South Sudan is majority Dinka, whereas Sudan is majority Arabic.
MS MAK: Yes.
MEMBER: And in fact, there’s not really much mention of the Dinka people at all, if any, in that Sudanese report.
MS MAK: No.
MEMBER: Whereas there’s certainly problems going on in South Sudan because it appears that all the major ethnic groups are in danger, depending on where they are.
MS MAK: Yes.
MEMBER: In the rebel-controlled places or the government-controlled places.
MS MAK: Yes.
(Emphasis added.)
117 The appellant was asked where he intended to reside if he returned and he said he did not know because he did not have any friends or family there. During closing submissions, the Minister’s lawyer submitted, by reference to the DFAT report (on South Sudan), that the appellant would not be at risk of persecution because Juba is “a place that is safe to reside if you are a person from the Dinka [tribe]” and that he could reside in Juba without facing a specific threat of violence. The transcript of the hearing records the Tribunal member making the following comment to the Minister’s representative:
The best that we’ve got is that his mother says that both her and the father are from Rumbek, which is an area that’s currently held by the government, which the report indicates is not a place where Dinka, who are the majority in South Sudan, face persecution. So I suppose, either if he’s in Juba, which is the capital, or in Rumbek, which is where the parents are from, I suppose your submission is that the evidence says that he’d be safe in either of those places where he’s most likely to return to.
118 The DFAT report stated that Dinkas were at a high risk of violence in South Sudan, albeit in “conflict affected areas”. The appellant claimed that people would want to kill him in both Sudan and South Sudan on account of his father’s role in the military and because of ongoing “tribal issues” and “troubles” in both countries. He stated that “conflicts are everywhere”. The only conflicts in South Sudan identified by the country information were linked to ethnicity. As a self-represented review applicant, the appellant’s ability to clearly articulate his claims was plainly limited. Despite that limitation, the Tribunal was alert to the issue and the relevant country information, including the threats to Dinkas in South Sudan.
119 The Minister submitted that the appellant’s claim to fear harm on the basis of any perceived or actual membership of the Dinka tribe did not emerge from the material because the DFAT report stated that Dinkas only had a high risk of harm in “conflict affected areas” and that those living in the capital, Juba, had a low-risk of harm because it was under Dinka-government control. There are several problems with this submission.
120 First, the appellant did not, and was unable to, identify the place in South Sudan to which he would return. Second, the submission overlooked the statement at [2.31] of the DFAT report that “the relative stability within Juba is extremely fragile”. Third, in any event, while DFAT assessed the risk to Dinkas in Juba on the basis of their ethnicity as “low”, it did not say that there was no risk.
121 The appellant’s representations raised an obvious issue arising from his ethnicity and his claimed fear of violence and supported by the country information. Put another way, the appellant’s claims for protection on the basis that he would be at risk of harm from violence because of his membership of the Dinka tribe in South Sudan squarely arose from the material before the Tribunal.
FAILURE TO CONSIDER THE ETHNICITY CLAIM
122 If accepted, the facts underpinning the Ethnicity claim would bring the appellant within the statutory definition of a “refugee” and so enliven Australia’s international non-refoulement obligations, whether enacted or unenacted in domestic law.
123 The cancelled visa was not a protection visa, and it is common ground that the appellant remains free to apply for a protection visa under the Act. As such, the content of the Tribunal’s obligation to “consider” the Ethnicity claim is the same as that applying in a case where an express claim of that kind is made in representations to the Minister in connection with the revocation power, as explained by the majority in M1 (at [9], [24] and [30]). In their application to present case, the principles are as follows:
(1) The Tribunal was required to “read, identify, understand and evaluate” the Ethnicity claim, being a claim that by its very nature raised a potential breach of Australia’s enacted international non-refoulement obligations.
(2) Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration.
(3) To the extent that Australia’s international non-refoulement obligations are given effect in the Act, it was open to the Tribunal to decline to assess whether the obligations were owed on the basis that such an assessment could be made in the event that the appellant applied for a protection visa.
124 In accordance with M1, the Tribunal’s obligation to evaluate the Ethnicity claim could be discharged by concluding that its determination could and should be deferred to the visa application process under s 65 of the Act. But that was not the only course available to the Tribunal. It was also open to the Tribunal to substantively determine the Ethnicity claim, as it did with other claims by which the appellant expressly or impliedly asserted non-refoulement obligations. On any view, given the subject matter of the Ethnicity claim, it was not an available option for the Tribunal to ignore the Ethnicity claim.
125 Whether the Tribunal considered the Ethnicity claim in the requisite sense is to be discerned from the written reasons it provided. They reveal the following.
126 The Tribunal considered that there were a number of factors which favoured revocation and a number which did not.
127 The Tribunal considered the following factors militated against revocation:
(1) the protection of the Australian community, having regard to the nature and seriousness of the offending, which included a number of violent crimes, and the “medium” risk of the appellant re-offending (at [104]–[144]); and
(2) the expectations of the Australian community, a factor to which it accorded “significant” weight (at [159]–[168]).
128 The Tribunal nominated the following factors as favouring revocation:
(1) the best interests of the appellant’s nieces, nephew, and sister, all of whom were minors (at [145]–[158]);
(2) the harm or hardship that the appellant was likely to suffer if removed to Sudan or South Sudan (at [195]–[196]);
(3) the possibility that, in light of the lack of certainty about the appellant’s country of nationality, the appellant faces a real risk of prolonged detention (at [199]–[204]);
(4) the appellant’s ties to Australia, including his strong family ties and his contribution to the Australian community (at [207]–[210]); and
(5) the extent of impediments the appellant may face if removed, having regard to mental health issues he has had in the past; the fact that he has not lived in Sudan or South Sudan for many years; his limited education and work experience; the absence of family support or a community network in either country; and the “very real chance” that he would be “homeless and destitute” ([214]–[219]).
129 The Tribunal found that the first factor weighed “moderately” in favour of revocation and attached “significant” weight to the second, third and fifth factors. It also accorded “moderate weight” to the appellant’s strong ties to family members in Australia.
130 The Tribunal was not satisfied that non-revocation of the cancellation decision would result in a breach of Australia’s international non-refoulement obligations, so found this to be a “neutral” consideration (at [222]). In that regard, the Tribunal referred to the appellant’s claimed fear of harm due to his father’s role in the military during the civil war (at [185]) but was not satisfied that he had a subjective fear of harm on that basis (at [191]) or that his claims to fear generalised violence in Sudan or South Sudan were likely to give rise to international non-refoulement obligations (at [193]). It deferred neither of those issues to the protection visa process.
131 The Tribunal determined that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweighed all the considerations in the appellant’s favour (at [224]). It found that the risk of future harm by the appellant was “unacceptable”.
132 The Tribunal mentioned the appellant’s ethnicity, noting that his parents were Dinka (at [40]), that the appellant spoke Dinka (at [190]) and his mother’s evidence that Dinka were required to migrate to South Sudan in 2011 (when the civil war came to an end) (at [92]). Critically, however, the Tribunal did not refer to the appellant’s evidence that he feared harm in South Sudan and that he believed people would harm him because of “tribal issues”. It made no mention of the relevant passages from the DFAT report upon which the appellant relies. The reasons contain no reference to the circumstance that the materials potentially enliven Australia’s enacted international obligations, and do not disclose whether the Tribunal considered it appropriate to defer the determination of the Ethnicity claim to the protection visa application process. In the absence of any reference to these matters in its reasons, we infer that the Tribunal either overlooked them during the decision-making process or regarded them as irrelevant.
133 Relying on the transcript the Minister submitted that, as a matter of fact, the Tribunal did consider the risks of harm to the appellant against the available country information. It is not appropriate, however, to infer that the Tribunal made findings or drew conclusions not mentioned in its written reasons: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [36] (Gummow ACJ and Kiefel J); FTZK v Minister for Immigration and Border Protection [2014] [2014] HCA 26; 88 ALJR 754; 64 AAR 15; 310 ALR 1 at [67] (Crennan and Bell JJ); Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34(a)]; Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325 at [44] (Greenwood, McKerracher, Burley JJ); Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at [130] (Besanko J). That is especially so in circumstances where the Tribunal did include in its reasons an assessment of at least two other bases upon which Australia’s non-refoulement obligations might have been enlivened.
134 The conclusion that the Tribunal might have reached is not apparent from the transcript in any event. The most that can be said is that the Tribunal appeared to understand the position the Minister took on the topic during the course of the hearing.
135 Whilst the Tribunal acknowledged that the appellant could apply for a protection visa at [197]-[198] of its reasons, that acknowledgement appears in a context in which the Tribunal had already undertaken a substantive assessment of the Military claim, resulting in its rejection. Having done so, the Tribunal noted that a different decision-maker may make a different substantive assessment. The reasons do not expressly disclose that the Tribunal availed itself of the option of deferral discussed in M1, and there is no basis to draw such an inference on the facts of the present case.
136 It remains to consider whether the failure to identify and “consider” the claim in the requisite sense was material.
MATERIALITY
Principles
137 The Tribunal’s failure to consider the Ethnicity claim (in the sense discussed above) will only amount to a jurisdictional error if the error was material, that is to say if it were not for the error, there was a realistic possibility of a different outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ). Whether an error is material is a question of fact on which an applicant bears the onus of proof: SZMTA at [46]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
138 The question involves a counter-factual inquiry. As Kiefel CJ and Gageler J put it in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [47]:
… materiality is a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation. …
139 As discussed above, the Tribunal would not have committed jurisdictional error had it deferred assessment of whether the appellant was owed protection obligations to the visa application process. But the availability of that option does not exclude other factual possibilities. Nothing in s 501CA of the Act or Direction 79 rendered it impermissible for the Tribunal to undertake its own assessment of the facts and circumstances underpinning the Ethnicity claim, that is, to substantially determine it, including against the requirements of the refugee criterion.
The argument
140 The appellant acknowledged that the failure to consider whether he faced a risk of harm as a Dinka depended on the cogency and significance of the information and evidence the Tribunal did not take into account. He argued that the information in the DFAT report was significant. He observed that the Tribunal treated the DFAT report as authoritative. The argument should be accepted.
141 As mentioned above, the evidence contained in the DFAT report did not preclude the Tribunal from upholding the Ethnicity claim. It was not a claim that was otherwise bound to fail on the materials before the Tribunal.
142 The appellant submitted that such a finding could have tipped the balance in his favour and thereby altered the outcome of the Tribunal’s deliberations in any one of a number of ways.
The error was material
143 On the facts of the present case, we are satisfied that there was a realistic possibility that, had the Tribunal not overlooked the Ethnicity claim, it would in fact have proceeded to determine it. We are reinforced in that conclusion by the circumstance that the Tribunal did in fact enquire into the factual allegations underpinning the Military claim and proceeded to make substantive findings in respect of it. In addition, the Tribunal proceeded to substantively consider the risk of harm arising from generalised violence in South Sudan and concluded that the appellant did not satisfy the complementary protection criterion. As we have already observed, although it was open to the Tribunal to defer assessment of each of those matters to the protection visa application process, it did not in fact do so.
144 Against that factual background we consider it not only possible but likely that the Tribunal would have adopted the same course with respect to the Ethnicity claim had it not been overlooked in the deliberative process. Consequently there is a realistic possibility that the Tribunal would have determined the Ethnicity claim in the appellant’s favour and that it would have afforded that determination substantive weight in the exercise of its power on review.
145 That is sufficient to meet the threshold of materiality so as to characterise the error as jurisdictional. The scenario does not depend on an analysis of whether Australia’s international non-refoulement obligations (whether enacted or unenacted) were in fact engaged. Rather, it depends on whether there was a realistic possibility that the Tribunal would have weighed in the balance a factual conclusion that there was a real risk that the appellant might be killed if returned to South Sudan so as to give rise to “another reason” to revoke the cancellation decision (whether on its own or in combination with the other factors which weighed in the appellant’s favour).
146 The appeal should be allowed on that basis.
147 It follows that the Minister’s submissions on this question are rejected.
148 The Minister submitted that to reason in that fashion would involve speculation on the part of the Tribunal as to the outcome of any protection visa application, which the Tribunal was not required to do. The Minister further submitted that it was improbable that the Tribunal would engage in speculation through to a future scenario in which the appellant was refused a protection visa notwithstanding his status as a refugee.
149 The problem with these submissions is that we are not presently concerned with whether the Tribunal was required as a matter of law to speculate as to the outcome of the protection visa process. We are concerned with the factual question of whether there was a realistic possibility of a different outcome had the Tribunal not ignored the Ethnicity claim. For the purpose of assessing materiality, it is relevant that the Tribunal was not precluded from taking into account the various obstacles to the appellant in obtaining a protection visa even if he fulfilled the refugee criterion, including (most obviously) the Minister’s power to refuse to grant a protection visa on character grounds under s 501(1). It is unnecessary to consider further submissions advanced by the Minister concerning the additional criterion in s 36(1C)(b) and the various outcomes that might have unfolded in respect of it.
Alternative submissions
150 Two alternative submissions were advanced by the appellant concerning materiality. Both were based on two propositions. The first proposition, which we have already accepted, is that if the Tribunal had not overlooked the Ethnicity claims, it could have found that those claims were likely to give rise to non-refoulement obligations. The second proposition, which we also accept, is that even so, having regard to his criminal history, the appellant would not necessarily be granted a protection visa,
151 The first alternative submission concerned para 14.1 of Direction 79 and the prospect that the appellant might face indefinite detention. The second concerned the prospect that, despite the engagement of Australia’s non-refoulement obligations and the policy referred to in para 14.1(2) of Direction 79, the appellant could still be removed from Australia pursuant to s 179C of the Act in breach of Australia’s international obligations and the impact that could have on Australia’s reputational interests.
152 As we are satisfied that the first alternative submission has merit, there is no need to consider the second.
153 The first alternative submission was that the Tribunal could have found that the appellant would not be removed from Australia based on the policy in para 14.1 of Direction 79 and, as an unlawful non-citizen, was likely to be detained indefinitely.
154 As we have observed, it would not have been impermissible for the Tribunal to consider the likelihood of indefinite detention and to conclude that the prospect was very real, even if the appellant fell within the statutory definition of a refugee.
155 It is true that the Tribunal referred to the “real possibility” of “prolonged detention” given the Department had made no definitive assessment of the appellant’s country of nationality (at [199]–[204]). But that period of detention had a potential end-point, that is, once the Department determined whether his country of nationality was Sudan or South Sudan. Further, regardless of whether the detention is characterised as indefinite, indeterminate or prolonged, if the Tribunal had considered the appellant’s ethnicity and the DFAT report, in light of Australian government policy there was a realistic possibility that it would have given the prospect of prolonged detention greater weight than it did. In this regard the Tribunal might reasonably assume that officers who would otherwise be bound by s 198 and s 197C of the Act would nonetheless proceed in accordance with the policy stated in para 14.1(2) of Direction 79.
156 The Minister submitted that, as the Tribunal was careful not to speculate about what might occur in a protection visa application process (at [197]–[198]), it was unlikely to have become any bolder in that respect if it found that the appellant was owed non-refoulement obligations.
157 Yet the Minister’s submission ignores the reason why the Tribunal might not have addressed the question to begin with. If it had found that the appellant was owed non-refoulement obligations, it might reasonably have considered the prospect that he might be granted a protection visa. The Tribunal adverted to the prospect of both prolonged detention and refoulement. Having embarked on this consideration, there is no reason to think that the Tribunal would not have turned its mind to the question of whether the appellant would be refused a protection visa notwithstanding his status as a refugee. In the most obvious scenario, the Tribunal could have concluded that the appellant was unlikely to be granted a protection visa for character reasons under s 501. In that event, it could have concluded that the appellant could (if not would) be indefinitely detained in accordance with the policy referred to Direction 79.
158 While the Tribunal already gave the possibility of prolonged detention “significant” weight in the appellant’s favour, it gave no (“neutral”) weight to Australia’s non-refoulement obligations as enacted in domestic law. It could have afforded more weight to both these matters had it not fallen into error. Its error could also have affected the weight given to the other considerations which could realistically have led the Tribunal to reach a different conclusion as to whether there was another reason to revoke the cancellation decision: cf. Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [60] (Davies, Rangiah and Cheeseman JJ).
CONCLUSION
159 Time in which to appeal should be extended and the draft notice of appeal treated as the notice of appeal. Leave should be granted to the appellant to raise the argument in ground 1 of the notice of appeal. Ground 1 is upheld. The orders of the primary judge should be set aside. Constitutional writs should be issued, quashing the decision of the Tribunal and compelling it to review the non-revocation decision according to law. Orders to this effect will be made.
160 The parties should be heard on the question of costs. The orders will incorporate a timetable for submissions unless the parties can agree on an appropriate order, a course we encourage them to take. The question will be determined on the papers.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Charlesworth and Burley. |
Associate:
