FEDERAL COURT OF AUSTRALIA

Ayoub v Minister for Immigration and Border Protection [2015] FCA 24

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

introduction

1    The applicant (Mr Ayoub) is a citizen of Lebanon. Mr Ayoub seeks judicial review of a decision of the respondent (the Minister) to cancel his spouse visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test.

The statutory context

2    Section 501(2) of the Act provides:

The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

3    The character test is relevantly defined in s 501(6) and (7) of the Act, as follows:

(6)    For the purposes of this section, a person does not pass the character test if:

    (a)    the person has a substantial criminal record (as defined by subsection (7)); or

    …

(7)    For the purposes of the character test, a person has a substantial criminal record if:

    …

    (b)    the person has been sentenced to imprisonment for life; or

    (c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    …

obligation of non-refoulement

4    Article 33 of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Convention) provides:

Article 33

PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

1.    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.

2.    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

5    Although Art 33 has not been directly enacted into the domestic law, it may be accepted that it can give rise to a positive obligation to permit a refugee to whom it applies to remain in Australia if there is no place to which he or she can be removed without Australia breaching the obligation which it imposes: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at [22]-[23].

factual background

6    It is not disputed that Mr Ayoub did not pass the character test. He arrived in Australia on 1 April 2001. He was found guilty of an offence in 2003 and convicted of further offences in 2004, none of which required him to serve prison time. However, on 17 February 2009 Mr Ayoub was convicted of unlawfully detaining Raymond Zhang without his consent and in order to obtain a financial gain for which Mr Ayoub was sentenced to seven years imprisonment, with a non-parole period of five years and three months. An appeal against the sentence was dismissed by the New South Wales Court of Criminal Appeal.

7    By notice dated 21 August 2013 the Department of Immigration and Border Protection (the Department) informed Mr Ayoub that consideration would be given to cancelling his visa. He was invited to provide any further information that he felt the decision-maker should take into account. Mr Ayoub provided written responses to the notice on 6 and 9 September 2013, and submitted further information on 19 February 2014 and 1 March 2014.

8    The information provided by Mr Ayoub in response to the notice of 21 August 2013 included details of his family situation, including the hardship that would be suffered by his wife and four young children. He stated that the situation in Lebanon was dangerous and unstable, that the country was on the brink of civil war, and that he feared for his life if he were to return there. He also stated that he came to Australia in 2001 “to flee the constant trouble in Lebanon and for the employment opportunities and way of life.”

9    None of the information provided by Mr Ayoub suggested that he was a person who might be owed protection obligations under the Convention. In particular, the information provided by him did not suggest that there was any risk that he might suffer harm in Lebanon on account of his race, religion, nationality, membership of a particular social group or political opinion.

10    On 16 May 2014 the Minister decided to cancel Mr Ayoub’s visa. This decision was made by the Minister personally.

11    The Minister signed a statement of reasons for his decision dated 16 May 2014. It includes the following paragraphs:

34.    While I note Mr AYOUB’s claim to fear return to Lebanon, I also consider that the existence of a non-refoulement obligation does not preclude the cancellation of a person’s visa. This is because Australia will not necessarily remove a person, as a consequence of cancelling their visa, to a country in respect of which a non-refoulement obligation exists.

…

48.    I acknowledge Mr AYOUB’s claim to fear return to Lebanon. However, I note that cancellation of Mr AYOUB’s visa is not inconsistent with Australia’s international obligations, as Australia will not necessarily remove Mr AYOUB to a country in respect of which a non-refoulement obligation exists.

Ground of Review

12    The amended application for review raises the following ground:

The Minister failed to complete the exercise of his jurisdiction in that he failed to lawfully consider the case that the applicant raised against exercise of the Minister’s discretion under s. 501(2) of the Migration Act.

Particulars

Failure to give proper, realistic and genuine consideration to the applicant’s claim that he would be in danger were he to be returned to Lebanon which required the Minister to decide;

(i)    Whether Australia has non-refoulement obligations to the applicant, or alternatively, whether the applicant was otherwise in danger if he were to be returned to Lebanon?

(ii)    If so, is there a country other than Lebanon which would accept him?

(iii)    If there is no other country, and if non-refoulement obligations or other danger prevented his return to Lebanon, what would be the legal consequences of the cancellation of his visa?

Submissions

13    Counsel for Mr Ayoub submitted that it was necessary for the Minister to give “proper, genuine and realistic consideration” to the issues raised by Mr Ayoub in his responses to the notice including, relevantly, whether or not Lebanon was so dangerous that Mr Ayoub would not be returned there, whether Australia had non-refoulement obligations to Mr Ayoub and, if so, whether any other country would receive him. Counsel submitted that the Minister failed to do so. In support of this submission reference was made to Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [26] and Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292.

14    It was also submitted by counsel for Mr Ayoub that the Minister was required to give consideration to the prospect that, if Australia could not return Mr Ayoub to Lebanon, then he might be the subject of indefinite detention. Reference was made to NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 and NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44. Each of those cases was brought by one or more applicants for a protection visa which was refused by the Minister on the basis that the applicant did not pass the character test as relevantly defined for the purpose of those cases by s 501(6) of the Act.

15    Counsel for Mr Ayoub relied, in particular, upon the judgment of Buchanan J in NBNB where, referring to the High Court’s consideration of Khan, his Honour said at [122]-[123]:

[122]    In NBMZ I referred to the judgment in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, when a unanimous High Court said, with apparent approval (at [26]):

    In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.

    (Citations omitted.)

[123]    I take this to be an authoritative statement to the effect that it is not permissible to put to one side, or fail to address, the merits of a particular visa application.

His Honour went on to state at [125]-[127]:

[125]    … [I]t is necessary in my respectful view for there to be proper attention to the legal and practical merits of an application when any relevant policy considerations are brought to bear.

[126]    A central defect in the present case (as in NBMZ) is that the Minister failed to pay regard to some critical legal consequences of his decisions. Those consequences, in my view, may not be ignored or put aside as ones which did not need to be understood and taken into account.

[127]    … In my view, it was necessary for the Minister to understand and take into account the legal (and practical) consequences of his decision to refuse a visa to each of the applicants. Those consequences arose from the interaction of ss 189 and 198 of the Act with Art 33 of the Refugees Convention. Those were not matters that the Minister could ignore or treat as irrelevant.

16    The legal (and practical) consequence that the Minister was found to have ignored in both NBNB and NBMZ was that if the applicants (who had already been found to be refugees) were not granted protection visas, then they faced indefinite detention.

ConSIderation

17    It should be noted that in this case, unlike Khan, Mr Ayoub did not contend that the Minister exercised the relevant statutory power in accordance with a rule or policy, without regard to the merits of the particular case. I do not think Gummow J’s observations in Khan are of particular relevance to Mr Ayoub’s case.

18    Paragraph [48] of the Minister’s reasons is “slightly unhappily” expressed for the reasons stated by Allsop CJ and Katzmann J in NBMZ at [15]. This is because paragraph [48] does not sufficiently reflect what their Honours referred to as “Australia’s unequivocal obligation in international law” not to return a refugee in breach of Art 33 of the Convention. However, in my view nothing turns on this.

19    The power conferred on the Minister by s 501(2), if enlivened, is very broad. Section 501(2) does not specify any consideration relevant to the exercise of the power it confers. Considerations relevant to the exercise of the power conferred by s 501(2) depend on the nature, scope and purpose of the power which is to be understood in light of its context in the Act: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [126]-[129] per Heydon and Crennan JJ.

20    At the time of the Minister’s decision, Mr Ayoub had not applied for a protection visa. Mr Ayoub’s submissions nevertheless suggest that the Minister was required to determine matters that would be relevant to any application Mr Ayoub made for a protection visa: first, whether he was a person to whom Australia owed protection obligations; secondly, whether Australia owed him non-refoulement obligations; thirdly, if such obligations were owed, whether there was another country that would accept him; and fourthly, if there were no such country, what would be the consequence of cancelling his visa: ie. would he be exposed to indefinite detention? I do not accept that the Minister was bound to determine or even consider these matters.

21    As I have mentioned, there was nothing before the Minister to suggest that Mr Ayoub was a “refugee” or that Australia would be acting inconsistently with its obligations under Art 33 of the Convention if it were to return Mr Ayoub to Lebanon. Nowhere in the material that Mr Ayoub provided to the Minister did he claim to be a refugee or express any fear that he would suffer harm for a Convention related reason if he were returned to Lebanon. There was therefore nothing before the Minister to suggest that a consequence of cancelling Mr Ayoub’s spouse visa was that he would be exposed to the risk of indefinite detention. In the circumstances, this was not a possibility that the Minister was required to consider.

22    The applicants in both NBNB and NBMZ were applicants for protection visas who had already been found to be persons to whom Australia owed protection obligations. On that basis they were entitled to have their applications determined on the hypothesis that they would be indefinitely detained if their applications for protection visas were refused: see NBMZ at [4] and NBNB at [2].

23    In the present case the Minister observed in his reasons for decision that the existence of a non-refoulement obligation does not preclude cancellation of a person’s visa and that Australia will not necessarily remove a person, as a consequence of cancelling his or her visa, to a country in respect of which a non-refoulement obligation exists. I must say I found it slightly perplexing that the Minister embarked upon a consideration of non-refoulement in circumstances where it does not appear to me that Mr Ayoub was claiming to be someone to whom Australia owed protection obligations under the Convention.

24    I do not think the Minister was obliged to give the issue of non-refoulement any consideration. Not only had Mr Ayoub not made an application for a protection visa, there was, as previously mentioned, nothing in the material provided to the Minister to indicate that Mr Ayoub was a person to whom Australia might owe protection obligations. In any event, the Minister seems to have taken a different view in that he briefly addressed the topic in those paragraphs of his reasons to which I have referred. I do not think the Minister can be said to have committed any legal (much less jurisdictional) error as a result of having considered a matter that he was not bound to consider.

25    The application will be dismissed with costs.

Associate:

Dated:    30 January 2015