Federal Court of Australia

ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 7

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing and serving the notice of appeal annexed to the affidavit of Alice Louise Graziotti affirmed herein on 29 June 2023 (hereafter, the “Notice of Appeal”) be extended nunc pro tunc so as to expire on 4 July 2023.

2.    The Notice of Appeal be deemed to have been filed on 4 July 2023.

3.    The appeal so commenced be dismissed.

4.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

THE COURT:

1    The applicant came to Australia in January 2009 as the holder of a Class XB Subclass 202 Global Special Humanitarian visa that had been issued to him pursuant to the Migration Act 1958 (Cth) (the “Act”). He was then a citizen of Sudan. On 22 October 2020, his visa was cancelled pursuant to s 501(3A) of the Act (the “Cancellation”). That was brought about in consequence of his having been convicted of numerous criminal offences (the particulars of which needn’t here be rehearsed).

2    By a written request made on 27 October 2020, the applicant applied to the first respondent (the “Minister”) under s 501CA of the Act to have the Cancellation revoked (the “Revocation Application”). On 21 October 2021, a delegate of the Minister rejected that application. The applicant then applied to the second respondent (the “Tribunal”) for a review of that rejection (the “Review Application”). By a decision dated 12 January 2022, the Tribunal affirmed the decision of the Minister’s delegate not to revoke the Cancellation (the “Tribunal Decision”).

3    The applicant then applied to this court for judicial review of the Tribunal Decision. He sought prerogative relief to have the Tribunal Decision set aside as a product of jurisdictional error and to require that his Review Application be determined according to law. That application was dismissed with costs: ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 506.

4    An appeal from that judgment lay as of right for a period of 28 days from its pronouncement: r 36.03 of the Federal Court Rules 2011 (Cth). That deadline expired on 21 June 2023, by which time no appeal had been commenced. Instead, the applicant filed an application on 4 July 2023 for an extension of the 28-day time limit. In the usual way, an affidavit was filed in support of that application, to which was exhibited a draft notice of appeal that he proposed to file in the event that he were granted the extension for which he moved. That document records the relief that the applicant hopes to persuade the court to grant: namely, orders to set the primary judgment aside, and, in lieu of it, to effect relief in the nature of certiorari and mandamus to quash the Tribunal Decision and require that the Tribunal redetermine the Review Application.

5    The court resolved to hear and determine the extension application together with the proposed appeal. Both were the subject of a hearing that took place before the full court on 24 November 2023. For the reasons that follow, the applicant should be granted the extension requested; but the substantive appeal should be dismissed. There is no reason why the normal order requiring payment of the Minister’s costs ought not to be made and it will be.

6    In light of those conclusions, it is convenient to refer to the applicant hereafter as “the appellant”.

The legislative scheme

7    Section 501(3A) of the Act mandates the cancellation of visas in certain circumstances. It is uncontroversial to record that, at the time of the Cancellation, the appellant’s circumstances sufficed to enliven that requirement.

8    Section 501CA of the Act concerns the revocation of visa cancellations effected under s 501(3A). Relevantly, it requires that a former visa holder be invited to make submissions as to why the cancellation of his or her visa ought to be revoked and confers upon the responsible Minister a discretion to revoke it: the Act, ss 501CA(3)(b) and (4). As to that latter discretion, s 501CA(4) provides as follows:

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

9    Presently, it is not in contest that the appellant did not fall within what s 501CA(4)(b)(i) of the Act contemplates. At issue now is whether the state of satisfaction to which s 501CA(4)(b)(ii) of the Act alludes was formed in the manner that the Act requires.

10    Section 500 of the Act concerns the jurisdiction of the Tribunal to review certain administrative decisions, including decisions made by the Minister’s delegate under s 501CA. Subsection 6J assumes some significance to the present matter. It provides (and, at material times, provided) as follows:

(6J)     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 document submitted in support of the person’s case unless a copy of the document was 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. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

The applicant’s submissions concerning revocation

11    Since the Cancellation, the appellant has had occasion to make various submissions in favour of its revocation under s 501CA of the Act. For reasons that might be apparent, it is necessary for present purposes to consider only those that were advanced before the Tribunal. The analysis that follows is limited in that regard.

12    As is customary, the appellant made submissions as to why there was “another reason” under s 501CA(4)(b)(ii) of the Act as to why the Cancellation ought to have been revoked. Amongst other things, those submissions were directed to the possibility that he would be subjected to harm upon his return to Sudan (or, perhaps more accurately, his removal to South Sudan, which he submitted was likely to be the country from which he had a claim to citizenship), such that his removal would offend against Australia’s international non-refoulement obligations. He submitted that South Sudan was “mired in conflict” and that:

There is a possibility of the [appellant] suffering harm in Sudan, which might include persecution or discrimination on the basis of his Dinka ethnicity and/or Christian religion.

The [appellant]’s removal to Sudan may potentially breach Australia’s non-refoulement obligations and there is no known [prospect] of removing the [appellant] to any other country.

13    Also customary, the Review Application was the subject of a hearing. During that hearing, the Tribunal entertained the following exchange with the appellant’s representative about the submission extracted above:

[SENIOR MEMBER:] Now, I gather from what we’ve been talking about yesterday and today that whatever might be said of the Republic of Sudan in South Sudan being a Dinka person is not an absurd or a difficult or an unusual thing.

[APELLANT’S LAWYER]:     No. No. It’s not. It’s not. The only known issues in South Sudan are (indistinct) civil conflict which is well known to - I’m pretty sure will be well known to my friend between different tribes and all that.

SENIOR MEMBER:     Yes. Yes.

[APELLANT’S LAWYER]:     It’s not an absurd thing for you to be a Dinka person, you know, in South Sudan. And that’s - but what we’re saying is that if he were to be returned to South Sudan then he will have to remain in areas that are - they’re (indistinct) Australia to South Sudan, maybe a (indistinct) or something. And that means he may not have to travel to his birthplace...

SENIOR MEMBER:     Okay. But, I know I’m jumping around here and I apologise but I sort of know where the hot spots are in this already. You know, you don’t have to be a wizard to work that out. So - and this is one of them. So, the question I’ve got really is this: Let’s work on the basis that - let’s assume he can be, he is a citizen of South Sudan, or he’s entitled to obtain that citizenship and let’s assume he’s removed there, there is no particular problem about him being a Dinka person in South Sudan.

[APELLANT’S LAWYER]:     No.

SENIOR MEMBER:     So, whilst South Sudan may be a problematic place to live, for any number of reasons - - -

[APELLANT’S LAWYER]: Yes. Yes.

SENIOR MEMBER:     - - - and they go to questions about the not so much refoulement but as to impediments if removed - - -

[APELLANT’S LAWYER]:     Impediments.

SENIOR MEMBER:     - - - and I don’t for a moment have any difficult[y] in understanding what you might be telling me about that, but on the refoulement proposition, which is a different thing and where the question seems to me to be more about whether or not there is [any] particular characteristic that [the appellant] has which would make him a target for some form of oppression or persecution in South Sudan, given that the [thrust] of the submission that’s been made in writing is that it’s directing itself at Sudan, I’m wondering whether we continue to have that problem about South Sudan, and I’m not for a moment attempting to minimize the impediment issue which is a completely separate and very important issue. I’m just trying to get to grips with this particular issue first because the two don’t necessarily have to depend upon one another.

[APELLANT’S LAWYER]:     Yes. Yes. Yes. That’s accepted. That’s agreed, Senior Member. There’s nothing that could expose him to discrimination or persecution as a Dinka person in South Sudan, unless there is something else I do not know about.

SENIOR MEMBER:     No.

[APELLANT’S LAWYER]:     But being a Dinka person, there’s nothing.

SENIOR MEMBER:     Okay. So, am I able to proceed then on the basis that both parties agree, assuming that the applicant is a person who is entitled to obtain citizenship of South Sudan by reason of the matters we’ve just discussed, that the issue of refoulement as presently framed up in the documents isn’t, doesn’t continue to be an issue because we’re dealing now with a different country?

[APELLANT’S LAWYER]:     It’s a difficult position for me, Senior Member. What my response to that remark is the tribunal - - -

SENIOR MEMBER:     It’s a question. It’s a question. It’s not a remark. I’m asking - - -

[APELLANT’S LAWYER]:     Yes, I mean, to that question.

SENIOR MEMBER:     Yes.

[APELLANT’S LAWYER]:     My response is the tribunal is open to finding that he can be (indistinct words). That’s not a matter for me or the applicant. But it’s very difficult for me to come into a - - -

SENIOR MEMBER:     Okay, I’ll put it another way. Can you, on behalf of the applicant, identify for me the personal characteristics of your client which would expose him to persecution, or oppression or being singled out for unusual treatment, if he were in South Sudan?

[APELLANT’S LAWYER]:     There’s nothing.

SENIOR MEMBER:     There’s nothing?

[APELLANT’S LAWYER]:     There’s nothing known to me, Senior Member, and nothing as a Dinka person. I’m quite sure, as a Dinka person, there’s nothing.

SENIOR MEMBER:     Okay.

14    At the conclusion of the hearing before the Tribunal, the parties were invited to furnish further written submissions regarding an issue that is not presently relevant. In the case of the appellant, that was done the following day by means of an email from the appellant’s lawyer. What was furnished in fact extended beyond the issue that was the subject of the invitation and delved further into the realm of non-refoulement. It is prudent to replicate what was relevantly submitted on the appellant’s behalf (paragraph numbering original):

International non-refoulement obligations

6.     If it is accepted that the [appellant]’s receiving country is South Sudan, the [appellant] is owed non-refoulement obligations.

7.     In XDJD v Minister for Immigration and Border Protection (Migration) [2021] AATA 2882 (“XDJD”), the applicant faced deportation to South Sudan and the Tribunal had accepted that the applicant was owed non-refoulement obligations, it was stated at [90] – [91]:

[90]     The applicant contends that he would face harm if returned to South Sudan and that the Tribunal needs to consider Australia’s international non-refoulement obligations. I accept this contention. The applicant’s life would be threatened as a result of his mixed Nuer and Dinka ethnicity, his past involvement with the SPLA, his status as a returnee from a western country and his disabilities in the context of the deteriorating security situation and ongoing civil war.

[91]     I will not repeat the matters considered separately under risk of harm, but they are relevant to nonrefoulement. I find that the risk of harm found above gives rise to a non-refoulement obligation such that Australia would be in breach of that obligation if the applicant were to be returned to South Sudan. This is a factor that weighs in favour of revoking the cancellation decision.

8.     Similarly, to the applicant in XDJD, the [appellant] would face a risk of harm giving rise to non-refoulement obligations upon a return to South Sudan due to his status as a returnee from a western country who has never lived in South Sudan, does not have relatives and meaningful relationships with any individuals, in a country that is in a civil strife.

9.     In KMXK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3815, the applicant was a citizen of South Sudan and was found to be owed non-refoulement obligations, the Tribunal stated at [154] and [170]:

[154]     There is no doubt that Australia owes the applicant non-refoulment obligations, but there is some uncertainty what that will mean for the applicant at a practical level.

[170]     The fact that detention of uncertain length, and potentially spanning many years, is the likely result of the nonrefoulement obligations Australia owes to the applicant weighs heavily in favour of revoking the visa cancellation.

11.     In SBMZ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] AATA 1409, in relation to an applicant who faced deportation to South Sudan, the Tribunal accepted that non-refoulement obligations arose and made the following findings at [140] – [143] regarding the harms faced by the applicant if returned to South Sudan:

[140]     I am of the view that non-refoulement obligations do a rise under that test as enunciated in the Act. More specifically, I consider that in respect of the last-mentioned formulation of a claim put forward by the applicant, there is a real risk that the applicant will suffer significant harm, including being arbitrarily deprived of his life, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Sudan, because he would hold particular characteristics that would expose him as being particularly vulnerable to significant harm that are not held by the population generally.

[141]     In this regard, I accept the applicant’s evidence that he was born in Khartoum and has in fact never been to the territory that is now South Sudan. I accept that the applicant’s first language is Arabic, and while he understands some Dinka, he does not speak it. I further accept as being consistent with the applicant’s evidence about his background that he has no family, tribal or social connections to other people living in South Sudan. I accept the applicant does not know anyone that might assist him if he were to return to that country. I accept that if he were to return to South Sudan, he would have no connections, resources or orientation to call upon for basic support or protection, and no knowledge about the circumstances and perils (which are significant) of life and survival in South Sudan.

[142]     In this way, I consider that the applicant will be so particularly vulnerable to the unlawful and arbitrary killings, unlawful and forced recruitment into militias, food insecurity and violence described in the country information that his particular risk is different to that faced by the population of the country generally, who generally speaking may have access to social, tribal and other supports that will not be available to the applicant in Juba upon arrival, or indeed anywhere else in the country.

[143]     Furthermore, having regard to the country information, I do not accept that it would be reasonable for the applicant to relocate to any part of South Sudan where there would not be a real risk that he would suffer significant harm. There is evidence before me of road blocks, inter-ethnic violence and cattle raids affecting many parts of the country, and the applicant was unable to articulate any particular part of the country where he might find support or protection even if he could find his way there. My observations about the applicant’s lack of social and tribal connections apply in respect of the capital and all parts of the country.

In line with the Tribunal’s reasoning in the above cases, the [appellant] submits that he is also owed nonrefoulement obligations due to his receiving country being South Sudan.

The Tribunal Decision

15    The Tribunal Decision is lengthy but it suffices for present purposes to only refer to the part of it that addresses the issue of present concern. It is convenient to replicate it in full (references omitted):

158.     The [appellant] held a Class XB Subclass 202 Global Special Humanitarian visa. The issue of this Visa did not involve any assessment that he was owed non-refoulment obligations.

159.     I am satisfied…that the [appellant] was never assessed on the basis that he was facing persecution. He was assessed under a “form 681 application”.

160.     He has never held a Protection Visa. He has never applied for one. He has never been determined to be a refugee under Article 1A of the Refugee Convention. He has never been assessed for an International Treaty Obligations Assessment.

161.     Even if I am wrong about this, and I do not think that is the case, any assessment prior to 2011 (which this would have been), would have been made in respect of Sudan, not South Sudan. It would therefore be now irrelevant.

162.     The [appellant] in these proceedings raised the issue of non-refoulment in his Statement of Facts, Issues and Contentions, this is set out in summary at paras 88 and 89 as follows:

“There is a possibility of the [appellant] suffering harm in Sudan, which might include persecution or discrimination on the basis of his Dinka ethnicity and/or Christian religion… The [appellant]’s removal to Sudan may potentially breach Australia’s non-refoulment obligations and there is no known prospect of removing the [appellant] to any other country.”

163.     After some discussion in closing submissions, the [appellant]’s representative, quite properly in my view, said that there was “nothing known” to him that gave rise to a submission that the [appellant] would suffer any persecution in South Sudan as a Dinka person, or otherwise. There was certainly no evidence led from the [appellant] on this topic. In other words, consistent with his Statement of Facts, Issues and Contentions, the [appellant]’s refoulment argument was formulated on the basis that the receiving country would be Sudan, not South Sudan.

164.     On the following day, (6 January 2022) the Tribunal received further, unsolicited submissions on this topic from the [appellant]’s counsel, resiling totally from his position as outlined above.

165.     The [appellant]’s counsel referred to various cases. I have considered these cases. I note that the [appellant] led no evidence in support of any assertion that he, by reason of any particular personal characteristic, would suffer any particular persecution or disadvantage, by reason of being returned to South Sudan. Indeed, his representative submitted during the hearing that he could not name one.

166.     Each question of refoulment must be determined based on evidence relevant to each individual Applicant. Asserting that other individuals, in their own unique circumstances were owed non-refoulment obligations, does nothing to demonstrate that these obligations are also owed, ipso facto to the [appellant]. The question here is about the individual concerned. It is not a generic question.

167.     I note that the most recent Department of Foreign Affairs and Trade Country Information Report on South Sudan available to the Tribunal (dated 5 October 2016) states inter alia:

“The Dinka are the largest ethnic group in South Sudan at around 35.8% of the population, and have traditionally dominated South Sudanese society.”

They may face some incidents of violence in “conflict-affected areas…”

“In Juba, [the Capital of South Sudan] Dinkas face a low risk of being targeted on the basis of their ethnicity…”

168.     Based on this material, it appears that the [appellant] could choose to live for example in Juba and be relatively safe. There is no evidence to suggest that he would be obliged to do otherwise.

169.     This is a separate and different consideration to…the extent of impediments in [an applicant for revocation] “establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).”

170.     Having regard to all of the above, I am of the view that on the evidence as it stands, [international non-refoulement obligations do] not arise in this case and so this consideration is neutral.

Judicial review and the present appeal

16    The appellant’s application for judicial review identified two grounds upon which he contended that the Tribunal Decision was a product of jurisdictional error. Only one of them is relevant for present purposes, namely:

1.     The [s]econd [r]espondent fell into jurisdictional error in its purported consideration of Australia’s non-refoulement obligations by failing to consider a claim that clearly emerged from the materials before it and/or to consider critical material and evidence.

Particulars

a)     The [appellant] made submissions that:

a.     He was stateless and eligible for South Sudanese citizenship ([61]-[62] of the [appellant]’s Statement of Issues and Contentions).

b.     He would be at risk of harm giving rise to non-refoulement in South Sudan due to his ethnicity as a Dinka Christian and his status as a returnee from a western country who has never lived in South Sudan, does not have relatives and meaningful relationships with any individuals, in a country that is in civil strife ([8] of the [appellant]’s post-hearing submissions).

b)     Further, the [s]econd [r]espondent found, based on its review of the Department of Foreign Affairs and Trade (DFAT) Country Information Report on South Sudan dated 5 October 2016 (“the South Sudan Report”), that as the [appellant] is a Dinka Christian, the [appellant] could reside in Juba (the Capital of South Sudan) and be relatively safe because in Juba, Dinka’s face a low risk of being targeted based on their ethnicity.

c)     The [s]econd [r]espondent failed to consider the broader, clearly articulated claims that the [appellant] is owed international non-refoulement obligations by virtue of a real chance that he would suffer harm upon a return to South Sudan on account of his Dinka ethnicity and/or unique characteristic as a returnee from a western country with no relatives or connections in South Sudan.

17    That challenge marries (although not perfectly) with the sole ground contained within the appellant’s draft notice of appeal, which reads as follows:

1.     The Court erred in failing to find that the [s]econd [r]espondent’s decision dated 12 January 2022 was affected by jurisdictional error by reason of a failure to give proper, genuine and realistic consideration to a clearly articulated claim raised by the [a]ppellant in relation to non-refoulement obligations.

Particulars

1.1     The [appellant] made a clearly articulated claim that he would face a risk of harm giving rise to non-refoulement obligations upon a return to South Sudan due to his status as a returnee from a western country who has never lived in South Sudan, does not have relatives and meaningful relationships with any individuals, in a country that is in…civil strife (CB 1173).

1.2     The [s]econd [r]espondent failed to consider this claim.

18    As has been stated, the appellant’s application for judicial review of the Tribunal Decision did not succeed. It is not necessary here to step through the reasoning by which the learned primary judge was led to conclude as his Honour did. For the reasons that follow, we are satisfied that no error has been established in his Honour’s conclusion that the Tribunal Decision was not affected by jurisdictional error as alleged by the appellant.

Preliminary issue: extension of time

19    As has been stated, the appellant requires an extension of time within which to bring his proposed appeal. The criteria governing the grant of such extensions are notorious and need not be outlined in any detail here. It suffices to note that an extension will be granted if the court is satisfied that the interests of justice require one. Typically, those interests are informed by factors that include the length of an applicant’s delay in challenging a first-instance judgment, the reasons behind that delay, the degree of prejudice to the respondent(s) if an extension were granted and the merits of the substantive case that is proposed to be entertained: Dimitrovski v Boland [2023] FCAFC 86, [28] (Markovic, Downes and Kennett JJ).

20    The present application was lodged 13 days after the expiry of the 28-day appeal deadline. On any view, the delay has been short. It was the subject of explanation in the affidavit that was filed in support of the extension application. Succinctly, the delay was brought about in part by a change to the appellant’s representation and in part by reason of the ill-health of his father.

21    Without conceding anything about the merit of the proposed appeal, the Minister does not oppose the granting of an extension. There is no suggestion of any material prejudice to the Minister in the event that an extension were granted.

22    Although we are not persuaded that the sole appeal ground that is sought to be agitated should succeed, it could not be said to be so without merit as to warrant rejection of an extension. Furthermore, the delay that has occasioned the need for it has been explained and, in any event, was short. In our view, it is appropriate in the interests of justice to grant the extension for which the appellant moves.

The substantive issue: Failure to consider

23    In order that it might properly be (or not be) exercised, the revocation power conferred by s 501CA(4) of the Act is conditioned upon prior consideration of any representations that, in any given case, are made in response to the invitation extended under s 501CA(3)(b). A decision purportedly made under s 501CA(4) that is made without prior consideration of what is advanced as “another reason” for revocation is not one that the statute authorises.

24    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (hereafter, “Plaintiff M1”), the High Court had occasion to identify when or how the obligation to consider representations might be discharged. The plurality reasoned (at [24], references omitted):

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25    The obligation to consider what an applicant advances as “another reason” for revocation under s 501CA(4) varies according to how specifically it is advanced. A claim that is put summarily might properly be considered or addressed just as baldly. In AXT19 v Minister for Home Affairs [2020] FCAFC 32, [56] (Flick, Griffiths and Moshinsky JJ), the point was made as follows:

…The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution…

26    In Plaintiff M1, the High Court plurality made a similar observation (at [25], reference omitted):

…The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations…

27    Presently, the appellant complains that the Tribunal made its decision without first considering what he had put forward as “another reason” as to why the Cancellation ought to be revoked: specifically, that he would face a risk of harm upon removal to South Sudan that was sufficient to invoke Australia’s international non-refoulement obligations. That was said in the email, recited above at [14], to be so because of “…his status as a returnee from a western country who has never lived in South Sudan [and who] does not have relatives and meaningful relationships with any individuals, in a country that is in…civil strife”.

28    There are some important contextual considerations to note about that representation.

29    First, it was summarily stated in the unsolicited submission that was furnished the day after the Tribunal hearing (see above, [14]). True it is that that submission gave his status as noted above at [27], and also contained references to other decisions of the Tribunal; but it failed to relate any characteristic to the relevant risk of harm. The most that was said was that, “[i]n line with the Tribunal’s reasoning in [those] cases…” the appellant was “owed non-refoulement obligations due to his receiving country being South Sudan”.

30    Second, the representation that was advanced resiled from what the appellant’s representative had told the Tribunal only one day earlier (above, [13]), noting importantly the concession that there was nothing about the appellant’s characteristics that would expose him to relevant harm.

31    Third, the representation touched upon an important consideration—namely, the significance of Australia’s international non-refoulement obligations—but was highly generalised as to the appellant’s individual circumstances and did not expose why those circumstances would expose him to the relevant harm.

32    Those matters properly inform the level of effort that the Tribunal was required to expend in discharging its obligation to consider what the appellant advanced. In our view, in the circumstances the Tribunal was not obliged to address the submission in any more detailed manner.

33    In any event, there can be no doubt in this matter that the Tribunal identified, read and understood what was contained within the unsolicited post-hearing submission. Its receipt was expressly referred to in the Tribunal’s reasons; and it was not unfairly described as “resiling totally” from the position that his representative advanced at the hearing. Further, the Tribunal correctly recorded the appellant’s reliance upon the authorities to which the unsolicited submission referred. Plainly, none of that could have been possible without proper identification, review and comprehension of what was advanced.

34    It is equally clear that the Tribunal engaged with the substance of the submission in the requisite way, notwithstanding that the submission was made without leave and after the conclusion of the oral hearing. As is apparent from the extracts replicated above, the Tribunal’s consideration of the question of non-refoulement in its reasons for decision was commensurate with and appropriate to address the representation as made. It took account of the authorities upon which the appellant relied, stressing—on any view, correctly—that questions of non-refoulement “…must be determined based on evidence relevant to each individual applicant”. Perhaps most importantly, the Tribunal referred to country information about conditions in the South Sudanese capital, Juba; and concluded that the appellant “…could choose to live…in Juba and be relatively safe”.

35    That other applicants with similar characteristics were the subject of different findings in other cases is not material. The court is concerned presently to assess whether the submission that the appellant advanced was considered in the way that the Act mandates: in other words, did the Tribunal reflect upon the harm to which the appellant claimed that he would be subjected if he were removed to South Sudan and did it bring that reflection to bear upon its assessment of whether there was “another reason” for revoking the Cancellation?

36    We accept that it did. It identified what the appellant had asserted on the issue of non-refoulement (howsoever baldly and inconsistently with the submissions that were advanced at the hearing), it explained why the authorities to which he pointed were of limited if any assistance, and it made a finding of its own about the risk of harm to which the appellant might be subjected upon removal to South Sudan. It is not for this court to second-guess what the Tribunal concluded. It suffices to note that there was no relevant want of consideration.

Conclusion

37    In light of what has just been stated, it is unnecessary that we should say anything about s 500(6J) of the Act. Whatever might be the limits of its application, they are not dispositive of the appeal and, for that reason, we would prefer to say nothing more: Boensch v Pascoe (2019) 268 CLR 593, 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ).

38    The court should grant the extension of time that is sought; but the substantive appeal should be dismissed with costs. We will make orders accordingly.

Associate:

Dated:    15 February 2024