FEDERAL COURT OF AUSTRALIA

BCR16 v Minister for Immigration and Border Protection [2016] FCA 965

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.

3.    If any party seeks a variation of the costs order, the party may give written notice to the Court and the other party within three business days.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant is a citizen of Lebanon who arrived in Australia in March 2011 on a prospective marriage (temporary) visa. He subsequently applied for and was granted a Partner (Temporary) (Class UK) (Subclass 820) visa (partner visa). In 2013, the applicant was convicted of one charge of recklessly causing serious injury and one charge of recklessly causing injury. He was sentenced to four years imprisonment for the first offence and six months imprisonment for the second offence, with three months of the latter sentence being concurrent with the former sentence.

2    In February 2015, the applicant’s partner visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). A delegate of the respondent (the Minister) was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act, on the basis that the applicant had a substantial criminal record as defined by s 501(7)(c) of the Act. The decision to cancel the applicant’s partner visa will be referred to in these reasons as the cancellation decision.

3    The applicant was notified of the cancellation decision and invited to make representations to the Minister about revocation of that decision pursuant to s 501CA of the Migration Act. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test (as defined in s 501) or that “there is another reason why the [cancellation] decision should be revoked”.

4    The applicant through his migration agent provided representations to the Minister in accordance with s 501CA. The applicant submitted that, as a member of the minority Alawite sect, he would face grave danger if forced to return to Lebanon; he submitted that returning him to Lebanon would breach Australia’s non-refoulement obligations under international law. He also submitted that the cancellation decision should be revoked in the best interests of his daughter (including because, if the applicant were returned to Lebanon, his wife and daughter would go with him, and his daughter would face danger there due to sectarian violence). The applicant also made submissions about other matters, including his remorse and his strong ties with Australia, in particular with his wife.

5    A departmental officer prepared an issues paper addressed to the Assistant Minister for Immigration and Border Protection which set out issues for consideration in connection with the possible revocation under s 501CA of the cancellation decision (the Issues Paper). Attached to the Issues Paper were the applicant’s submissions and other relevant documents. For convenience, I will refer to the Assistant Minister as the Minister in these reasons.

6    On 7 September 2015, the Minister decided not to revoke the decision to cancel the applicant’s partner visa (the Decision). The Minister was not satisfied that the applicant passed the character test (as defined in s 501). Nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. The Minister’s reasons were set out in a statement of reasons of the same date (the Statement of Reasons).

7    The applicant seeks judicial review of the Decision on two grounds:

(a)    First, the applicant contends that the Minister denied the applicant procedural fairness, constructively failed to exercise her jurisdiction, or otherwise failed to carry out her statutory task, by failing lawfully to consider a “reason” claimed by the applicant as to why the cancellation decision should be revoked, namely the best interests and protection of the applicant’s two-year old daughter.

(b)    Secondly, the applicant contends that the Minister constructively failed to exercise her jurisdiction, or otherwise failed to carry out her statutory task, by failing lawfully to consider a “reason” claimed by the applicant as to why the cancellation decision should be revoked, namely that his removal from Australia to Lebanon would breach Australia’s non-refoulement obligations under international law.

8    For the reasons that follow, neither ground is made out. In summary, my reasons are as follows:

(a)    In relation to the first ground, it is clear from the Statement of Reasons that the Minister did, at least to some extent, consider the best interests of the applicant’s daughter; indeed, the Minister found that the best interests of the daughter would be served by revocation. Further, the Statement of Reasons is to be read with the Issues Paper, which was taken into account by the Minister. This demonstrates that the best interests of the applicant’s daughter were considered. The applicant contends that the Minister erred by not assessing whether there was a real chance (more than a theoretical possibility) that the daughter would be harmed in Lebanon if (as the Minister accepted) the applicant’s wife and daughter relocated there. However, the Minister’s reasons indicate she accepted the possibility of sectarian violence and consequent hardship to the applicant’s family if they were to relocate to Lebanon. As the applicant accepts, the Minister was not obliged to conduct some sort of inquiry. The Minister was not required to make a finding on the level of risk that would be faced by the daughter in Lebanon.

(b)    In relation to the second ground, in the Statement of Reasons the Minister stated that the applicant was able to make a valid application for a protection visa and thus it was unnecessary to determine whether non-refoulement obligations were owed in respect of the applicant. It is common ground that the statement that the applicant was able to apply for a protection visa was (and still is) correct. The applicant contends that the Minister’s analysis betrays error; the statutory consequence of the Minister’s decision was that the applicant was required to be removed from Australia as soon as reasonably practicable (s 198); by reason of s 197C, upon the making by the Minister of her decision, there was no obligation for the Minister or any officer to consider Australia’s non-refoulement obligations under international law before removing the applicant. In my view, in circumstances where the visa the subject of cancellation was a partner visa, and the applicant was able to apply for a protection visa, it was open to the Minister to decide that it was unnecessary for her to determine the applicant’s claim based on Australia’s non-refoulement obligations and to leave this to be assessed in the course of a protection visa application. The legal framework of the Act and its operation in the applicant’s circumstances were such that the applicant was (and is) able to make an application for a protection visa. Consistently with the Minister’s submissions, it is to be expected that the applicant’s non-refoulement claims would be assessed in the course of determination of an application for a protection visa by the applicant (albeit that, even if accepted, they may not lead to the grant of a protection visa).

9    It follows that the application should be dismissed.

Key legislative provisions

10    Before detailing the facts, it is convenient to set out the key relevant provisions. Section 501 of the Migration Act relevantly provides:

(3A)     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); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); 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.

11    That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide 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));

…

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

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

12    Section 501CA provides:

(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.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Background Facts

13    The following description of the facts is based on the facts and matters set out in the Issues Paper and the sentencing remarks of the judge who sentenced the applicant.

14    The applicant was born and brought up in Lebanon. At some point in 2009, he was introduced to the woman who later became (and is now) his wife. She was, at the time, visiting relatives in Lebanon. She was born in Australia and is an Australian citizen. She returned to Lebanon in 2010 to spend more time with the applicant and they became engaged.

15    On 1 March 2010, the applicant applied for a Prospective Marriage (Temporary) (Class TO) visa. This application was approved and the applicant was granted such a visa on 17 February 2011.

16    On 12 March 2011, the applicant arrived in Australia on that visa.

17    On 1 May 2011, the applicant and his wife were married in Australia.

18    On 22 July 2011, the applicant applied for combined Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visas. The first stage of this application was approved and he was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 29 November 2011 (referred to in these reasons as a partner visa). This visa allows the holder to remain in Australia indefinitely until the associated application for a Partner (Residence) (Class BS) (Subclass 801) visa is decided.

19    The applicant had worked as a tiler in Lebanon for some years before he came to Australia. After his arrival, he used his experience in that field and his wife’s contacts to gain employment in the construction industry. He started his own tiling business in October 2011.

20    In April 2012, the events which led to the applicant being charged and convicted of the offences referred to above took place. The applicant’s wife was involved in a collision which caused damage to the rear of her car. The applicant telephoned a family friend who was a panel beater, to obtain a quotation for the repair of the damage. The applicant said that he could not bring the car in for inspection himself because he was at work, but said that his wife would do so. On the same day, the applicant’s wife brought the car to the panel beater. There were conflicting accounts of what happened at the workshop. The wife’s account was that the panel beater made sexual advances, including putting his arm around her shoulders, asking her to join him for a coffee, grabbing her hand and pulling her down next to him, kissing her on her shoulder and hand, and grabbing her face and twisting her head towards his to try to kiss her. This was denied by the panel beater. The applicant’s wife returned home and told the applicant what had happened. Later that day, the applicant and his wife attended a police station to report the matter. The police took a statement from the wife and said that the matter would be investigated. The next day, the applicant decided to confront the panel beater. He went to the workshop with a plastic bottle (containing phosphoric acid and water) and a carving knife with a long blade. A struggle took place during which the applicant stabbed the panel beater in the lower abdomen and chest. The applicant also sprayed the contents of the bottle in the general direction of the other men who came to assist the panel beater; some of the contents went into the eyes of one of the men. The panel beater underwent emergency surgery for the major chest wound. He was discharged from hospital about a week later. The other man sustained minor injuries to his eyes and was released the same day.

21    The applicant pleaded guilty to one charge of recklessly causing serious injury and one charge of recklessly causing injury. He was sentenced in 2013. The sentences have been referred to above. In his sentencing remarks, the judge referred to a large number of character references which attested to the applicant’s integrity, responsibility and diligence as a hard-working member of the community; a report by a forensic psychologist to the effect that the probability that the applicant would “in ordinary circumstances” manifest overt physical violence was relatively low; the fact that the applicant had no prior convictions and that no other matters were pending; and a report by a counsellor trained in anger management programs. The judge concluded that he was satisfied that the applicant had good prospects of rehabilitation and was unlikely to offend in the same manner again. Although he expressed concern as to what the applicant might do in circumstances that were out of the ordinary, the judge said that he was prepared to give the applicant the benefit of the doubt in this respect. The judge said that he took into account that the applicant had pleaded guilty to the offences and had expressed genuine remorse. The judge said that the objective gravity of the offending was far too great to contemplate a non-custodial sentence and that he did not accept a submission that the applicant’s offending should be viewed as being at the lower end of the scale. He did, however, accept a submission that a lower than usual non-parole period would be appropriate. The non-parole period was fixed at two years.

22    On 6 February 2015, the Department of Immigration and Border Protection (the Department) wrote to the applicant to advise him that his partner visa had been cancelled pursuant to s 501(3A) of the Migration Act. The letter stated that, based on the evidence before a delegate of the Minister, the delegate was satisfied that the applicant did not pass the character test, on the basis that he had been sentenced to a term of imprisonment of 12 months or more (referring to s 501(6)(a) and s 501(7)(c) of the Act). The letter stated that the applicant had an opportunity to request that the decision to cancel his visa be revoked. The letter stated:

If you decide to request revocation you can write to us with the reasons why you think the original decision should be revoked using the attached Revocation Request Form. Direction 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA identifies issues that are relevant to the revocation consideration. You should address each paragraph in PART C that is relevant to your circumstances. A copy of Direction 65 is enclosed for your information.

If the decision-maker is a delegate of the Minister, they must following Direction 65. If the minister makes a revocation decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision.

You can provide any other information that you feel the decision-maker should take into account, including letters of support from your family, friends, employers or others.

23    Enclosed with the letter was Direction No 65, which was a direction made by the Minister on 22 December 2014 pursuant to s 499 of the Migration Act. The Direction related to visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. It was common ground that delegates of the Minister were required to comply with the Direction. However, if the relevant functions or powers were exercised by the Minister or the Assistant Minister personally, the Direction was not binding on either of them.

24    Part C of Direction No 65 identified the considerations relevant in determining whether to exercise the power under s 501CA to revoke the mandatory cancellation of a non-citizen’s visa. Clause 13 dealt with primary considerations and stated that:

In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The best interests of minor children in Australia;

c)    Expectations of the Australian community.

25    Clause 14 dealt with other considerations (as distinct from primary considerations). It was stated:

In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

26    The section dealing with international non-refoulement obligations was in the following terms:

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.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement 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.

(5)    If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. 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.

(Emphasis added.)

27    It is convenient to note at this point that the applicant submits that the emphasised words in the above passage are wrong, in light of s 197C of the Migration Act. Section 197C was introduced into the Act on 16 December 2014, six days before the making of Direction No 65, and is in the following terms:

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

28    By letter dated 2 March 2015, the applicant’s migration agent responded to the letter from the Department. The agent’s letter and enclosures constituted representations for the purposes of s 501CA of the Migration Act. The representations were made in the prescribed manner and within the prescribed time (see paragraph 14 of the Issues Paper). The enclosures included a letter from the applicant’s migration agent dated 27 February 2015 dealing with the best interests of the applicant’s child; a letter from the applicant which expressed his remorse for his behaviour; and a letter from the applicant’s wife which described the circumstances of the offences, the dangers if the family were to move to Lebanon, and her need to have her husband by her side to raise their daughter. A number of character references were also enclosed. The letter also enclosed a Personal Details Form signed by the applicant on 20 February 2015 which included the following statements in response to a question concerning possible return to the country of citizenship:

Lebanon is currently unsafe for myself and Alawites. If I return I will then be harmed and possibly killed by insurgents and militants who hate Lebanese Alawites. Also Lebanon is not a safe country for me, my wife and daughter. It is very dangerous.

29    Subsequently, in April and May 2015, further information was provided by the applicant’s migration agent on his behalf in support of his application for revocation.

30    On 30 April 2015, the Department wrote to the applicant to the effect that the Department had information which had been received and which could be taken into account when making the decision whether to revoke the decision to cancel the applicant’s visa under s 501CA. The information consisted of a copy of the sentencing remarks of the sentencing judge (referred to above) and a copy of a detention behaviour report relating to the applicant’s time in immigration detention. The applicant was invited to comment on the information, which was enclosed. The report relating to immigration detention stated that there had been no behavioural concerns or behaviour-related incidents for the applicant. It also stated that he received regular visits from his family and friends, and that he was polite, engaging and co-operative.

31    In a letter dated 10 May 2015, the applicant’s migration agent responded to the letter from the Department and provided further information and submissions on the applicant’s behalf. A section of the letter headed “Best Interests of minor children in Australia” included the following:

•    Evidently, it would not be in the best interest of the child if the applicant was forced to leave Australia and return to his war torn part of Lebanon where he would face extreme challenges just to survive in the current political and social environment. Extremist sectarian groups are targeting minority groups and driving them out of their homes and villages, if not slaughtering them. With the desire for the family unit to be together no matter what the circumstances, the applicant could not bear the thought of having his spouse and child exposed to the very real threats posed by extremist terrorist groups in the region, or even living in a country where they are culturally unaccustomed, and constantly living in fear of their lives.

•    The applicant belongs to a minority religious sect currently facing severe persecution from the same radical extremists mentioned above, and would be faced with grave danger if forced to return. There is also a huge absence of Government protection from the extremists for this minority religious sect, and there are no reallocation options available to them.

On the next page of the letter it was stated that the applicant and his family were members of the Australian Muslim Alawite community. The enclosures to the letter dated 10 May 2015 included a number of articles from newspapers and statements from other sources regarding the plight of Alawites in Lebanon (attachments J9, J10, J11, J12, J13, J14, J15, J16, J17, J18, J19, J20 and J21 to the Issues Paper). I think it is fair to say that the applicant’s claim that he was someone in respect of whom Australia owed non-refoulement obligations was not a bare assertion but included a body of supporting material.

The Issues Paper, Decision and Statement of Reasons

32    The Department then prepared the Issues Paper, which was addressed to the Minister and identified as its subject consideration of a decision under s 501CA of the Migration Act in relation to the applicant. The Issues Paper comprised 25 pages and attachments. The Issues Paper listed and attached all of the material that had been provided on behalf of the applicant in support of his application. The paper then addressed the issue raised by s 501CA(4)(b)(i), namely whether the Minister would be satisfied that the person passes the character test (as defined by s 501). It was stated that it was open to the Minister to conclude that she was not satisfied that the applicant passed the character test. There is no issue raised in the proceeding about this aspect of the Issues Paper or the Minister’s decision in this regard.

33    The Issues Paper then went on to consider the issue raised by s 501CA(4)(b)(ii), namely whether the Minister would be satisfied that there was another reason why the cancellation decision should be revoked. The representations made on behalf of the applicant were summarised as follows:

In summary, [the applicant] stated in his representations that the decision to mandatorily cancel his visa should be revoked for reasons including: the best interests of his Australian citizen minor child; his being owed international non-refoulement obligations, his strong ties to Australia, particularly with his wife; his positive contributions to the community and his support from family and friends. He also stated that he does not pose an unacceptable risk to the Australian community in terms of re-offending.

34    In relation to the best interests of minor children, the Issues Paper referred to the 10 May 2015 submission on behalf of the applicant and quoted the paragraph commencing “Evidently …” which is quoted in paragraph [31] above. The Issues Paper then stated (in paragraph 46):

It is open to you to find that although [the applicant’s] claims of danger to his family if they were to relocate to Lebanon are untested, he has indicated that his family unit won’t be separated “no matter what the circumstances”, which would mean his wife and child would relocate to Lebanon, were [the applicant] removed from Australia. If they did not relocate with him, his daughter would be adversely affected by being physically separated from her father.

(Emphasis in original.)

After further discussion of the applicant’s submissions and the information provided on his behalf, the Issues Paper stated that it was open to the Minister to find that the best interests of the applicant’s daughter would be served by revocation of the cancellation decision.

35    The Issues Paper then discussed international non-refoulement obligations (paragraphs 52-58). The concluding paragraph of this section stated:

[The applicant] has made claims that may give rise to international non-refoulement obligations. However, [the applicant] is able to make a valid application for another visa. In particular, I note that [the applicant] is not prevented by s501E of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of determining whether or not to revoke the mandatory visa cancellation decision.

36    The balance of the Issues Paper was arranged under the following headings: the strength, nature and duration of ties to Australia; extent of impediments if removed; and protection of the Australian community.

37    On 7 September 2015, the Minister signed the last page of the Issues Paper, indicating that her decision was not to revoke the cancellation decision. The Decision was expressed in the following terms:

[The applicant] has made representations about revocation of the visa cancellation decision in accordance with the invitation and I am not satisfied that [the applicant] passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, I have decided not to revoke the decision to cancel [the applicant’s] Class UK Subclass 820 Partner (Temporary) visa. My reasons for this decision are set out in the attached Statement of Reasons.

38    The Statement of Reasons, which was signed by the Minister on the same date, comprised six pages. After referring to the cancellation decision and the applicant’s representations, the Minister referred to the issue raised by s 501CA(4)(b)(i) and stated that she was not satisfied that the applicant passed the character test (as defined by s 501), with the result that s 501CA(4)(b)(i) was not met. The Minister then went on to consider the issue raised by s 501CA(4)(b)(ii), namely whether there was another reason why the cancellation decision should be revoked. The Minister stated in paragraph 11 that she had had regard to the Issues Paper:

In undertaking this task, I assessed all of the information set out in the Issues Paper and attachments. In particular, I considered [the applicant’s] representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

39    The Minister considered the issue of the best interests of minor children in paragraphs 13-18 of the Statement of Reasons as follows:

13.    In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention of the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration and have concluded that it is in the best interests of [the applicant’s] child for the visa cancelation decision to be revoked.

14.    [The applicant] and his wife, who is an Australian citizen, have one child, …, who is aged two, as evidenced by a Victorian birth certificate. That birth certificate and additionally departmental records, confirm that [the applicant’s] wife was born in Australia and is an Australian citizen, therefore the couple’s daughter is also an Australian citizen by birth and descent.

15.    I accept that [the child] is an Australian citizen, given that she was born in Australia and her mother was an Australian citizen at the time of her birth.

16.    I accept [the applicant’s] claims that his wife and child will move to Lebanon with him if he is removed from Australia. I find that [the applicant’s] claims of danger to his daughter if she were to relocate with him to Lebanon due to sectarian violence in that country, to be untested.

17.    I accept that [the applicant’s] daughter is suffering some financial and emotional hardship and dislocation during [the applicant’s] absence as a father, due to his wife needing to work whilst leaving their child with her parents. I accept that this hardship will continue if [the applicant] remains separated from his family, is removed from Australia and his family do not relocate to Lebanon with him.

18.    I find that the best interests of [the child] would be served by the revocation of the cancellation decision.

40    In relation to international non-refoulement obligations, the Minister stated at paragraph 19 of the Statement of Reasons:

[The applicant] has made claims that may give rise to international non-refoulement obligations. However, [the applicant] is able to make a valid application for another visa. In particular, I note that [the applicant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of this decision.

41    The balance of the Statement of Reasons was arranged under the following headings: strength, nature and duration of ties; extent of impediments if removed; and protecting the Australian community. In the course of considering the strength, nature and duration of ties, the Minister stated in relation to the applicant’s family (at paragraph 24):

I find that a decision to not revoke would result in hardship for [the applicant’s] family unit if they were to relocate to Lebanon with him, given the possibility of sectarian violence and the separation from her extended family in Australia that [the wife of the applicant] would experience.

42    The Minister’s conclusions were set out in paragraphs 43-46 as follows:

43.    In considering whether, in light of [the applicant’s] representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of [the applicant’s] child and have found that her best interests would be best served by the revocation of the mandatory visa cancellation decision.

44.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by [the applicant], that of “RECKLESSLY CAUSE SERIOUS INJURY” and “RECKLESSLY CAUSE INJURY”, which are of a violent nature. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. Further, I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the applicant].

45.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child, as a primary consideration, and any other considerations as described above. These include bonds, employment, charity and familial (sic) to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

46.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision to cancel [the applicant’s] visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel [the applicant’s] Class UK Subclass 820 Partner (Temporary) visa.

The application

43    The proceeding was commenced in the Federal Circuit Court of Australia and then transferred to this Court.

44    Shortly after the hearing in this Court, the applicant filed (with leave) an amended application. The amended application brought the application into line with the way the matter was presented on behalf of the applicant at the hearing.

45    The amended application sets out certain matters by way of background to the application and then identifies the following two grounds:

1.    The Assistant Minister denied the applicant procedural fairness, constructively failed to exercise her jurisdiction, or otherwise failed to carry out her statutory task, by failing lawfully to consider a “reason” claimed by the applicant as to why the Delegate’s visa cancellation decision should be revoked.

Particulars

a.    One “reason” claimed by the applicant as to why the Delegate’s visa cancellation decision should be revoked related to the best interests and protection of his 2-year old daughter – an Australian citizen by birth, and therefore a member of the Australian community.

b.    The applicant claimed that, if the visa cancellation decision was not revoked, and he was therefore required to be removed from Australia to Lebanon:

i.    his daughter would move to Lebanon with him; and

ii.    his daughter would face danger in Lebanon as a member of the persecuted Alawite sect, and more generally as a result of sectarian violence in that country.

c.    The Assistant Minister was required lawfully to consider the applicant’s claim, including by reason that it would have constituted a denial of procedural fairness not to consider the best interests of the applicant’s daughter.

d.    The Assistant Minister accepted the applicant’s claim that his daughter would move to Lebanon with him. However, the Assistant Minister failed lawfully to consider the consequential danger to the daughter. The Assistant Minister simply stated that the applicant’s “claims of danger to his daughter if she were to relocate with him to Lebanon due to sectarian violence in that country to be untested” (emphasis added).

e.    The Assistant Minister was required to assess (i.e., “test”) the “reasons” claimed by the applicant as to why the visa cancellation decision should be revoked. The fact that those reasons or claims had not been assessed (i.e., “tested”) by some other body or decision­maker was irrelevant, and did not avoid this obligation.

2.    The Assistant Minister constructively failed to exercise her jurisdiction, or otherwise failed to carry out her statutory task, by failing lawfully to consider a “reason” claimed by the applicant as to why the Delegate’s visa cancellation decision should be revoked. Further or alternatively, the Assistant Minister failed to take into account the Act and its operation in making her decision, or misunderstood the Act and its operation in making her decision.

Particulars

a.    Another “reason” claimed by the applicant as to why the Delegate’s visa cancellation decision should be revoked was that his removal from Australia to Lebanon would breach Australia’s non-refoulement obligations under international law.

b.    The Assistant Minister was required lawfully to consider the applicant’s claim.

c.    The Assistant Minister noted that the applicant had made claims “that may give rise to international non-refoulement obligations”. However, the Assistant Minister did not consider those claims. The Assistant Minister thought it “unnecessary” to do so, on the basis that the applicant was “able to make a valid application for another visa”.

d.    As a consequence of the applicant’s “representations” under section 501CA(4) of the Act, the Assistant Minister was required to assess the “reasons” claimed by the applicant as to why the Delegate’s decision to cancel his partner visa should be revoked. The fact that the applicant was able (but not obliged) to make an application for a new and different visa was irrelevant, and did not avoid this obligation.

e.    Furthermore, and in any event, the implicit premise to the Assistant Minister’s reasoning – i.e., that if the applicant was to make an application for a protection visa then any claims that may give rise to international non-refoulement obligations would “necessarily” be considered in that context – was false. If the applicant was to make an application for a protection visa, there are multiple pathways by which the Minister might decide under section 65(1)(b) of the Act to refuse to grant the visa without considering Australia’s non-refoulement obligations. For example, the Minister might conclude that the applicant fails to satisfy the criterion in section 36(1C)(b) of the Act on the basis that he is a danger to the Australian community having been convicted of a “particularly serious crime”. Or the Minister might conclude that the applicant fails to satisfy the criterion in clause 866.225(a) of Schedule 2 to the Migration Regulations 1994, read with public interest criterion 4001, on the basis that the applicant does not pass the character test.

Sections 501 and 501CA

46    Sections 501(3A) and 501CA, which are set out above, were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The explanatory memorandum to the Bill which became that Act stated that the Bill amends the Migration Act to implement a number of reforms to the character and general visa cancellation provisions arising in part from a review carried out by the Department in 2013. It was stated that the character provisions in Pt 9 of the Migration Act had been in place in their current form since 1999, and the general visa cancellation provisions in Subdivision D of Div 3 of Pt 2 had remained largely unchanged since 1994. The explanatory memorandum stated that, since that time, the environment in relation to the entry and stay in Australia of non-citizens had changed dramatically and that “[t]he amendments to the Migration Act that are proposed to be made by the Bill will strengthen the character and general visa cancellation provisions and reform the approach to the cancellation of visas of non-citizens who are in prison”.

47    In relation to proposed s 501(3A), the explanatory memorandum stated that “[t]he intention of this amendment is that a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or if released from criminal custody, in immigration detention while revocation is pursued”. In relation to proposed s 501CA, the explanatory memorandum stated that “[t]he requirement to give notice to the person and invite the person to make representations about revocation of the decision to cancel allows the person the opportunity to satisfy the Minister or delegate that the person passes the character test, or that there is another reason why the original decision should be revoked”.

48    At this stage, there has been little judicial consideration of ss 501(3A) and s 501CA. The provisions were considered by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430. In that case the applicant contended that there had been a denial of procedural fairness in relation to the Minister’s decision under s 501CA not to revoke a cancellation decision. Tracey J explained (at [40]) that s 501(3A) requires the Minister to cancel a visa if he or she (or a delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment; as a result, the reasons for a cancellation decision can be very shortly stated; there is no need for a decision-maker to have regard to any discretionary considerations. Tracey J then stated (at [40]) that, in this context, s 501CA is an ameliorative provision; it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. In relation to s 501CA(3), Tracey J noted that the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of “the relevant information” relating to the making of the decision; such “relevant information” is defined in s 501CA(2) as information that the Minister considers “would be the reason, or part of the reason for making the [cancellation] decision” and “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”; and that the obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. Tracey J observed (at [40]) that “[t]his is a somewhat strange provision given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts”. Tracey J referred (at [41]) to Direction No 65 and stated that it identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching a decision. Tracey J then stated (at [42]):

It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.

(Emphasis added.)

49    Sections s 501(3A) and s 501CA were also the subject of decision in Tusitala v Assistant Minister for Immigration and Border Protection [2016] FCA 845 and Dunn v Minister for Immigration and Border Protection [2016] FCA 489, but neither case considered the issues raised in the present proceeding.

50    While the case law in relation to s 501(3A) and s 501CA is limited, there has been extensive judicial consideration of ss 501(1) and 501(2) which are in the following terms:

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2)    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.

51    In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Allsop CJ and Katzmann J discussed the scope of the Minister’s discretion under s 501(1) in the context of a case where the applicant had been assessed to be a refugee and the consequence of a decision to refuse to grant him a protection visa was that he would be held in detention indefinitely. Their Honours said (at [6]-[10]):

6    The discretion under s 501(1) of the Act is unfettered in its terms, the usual consequence of which can be seen in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [71] and [74]. The Minister is not bound by “Direction No 55 – Visa refusal and cancellation under s 501” issued under s 499(1) of the Act, which his delegates must follow. Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39; and Huynh at [71]. In the case of an applicant for a protection visa one of those considerations is the statutory (that is, legal) consequences of visa refusal.

7    Any submission that the statutory (that is, the legal) consequences of the refusal of a protection visa was not a consideration which the Minister was required to take into account might be based on passages from Huynh at [71]–[76] (per Kiefel J and Bennett J), Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [127]–[128] (per Heydon J and Crennan J) and Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79; 129 ALD 233 (per Dodds-Streeton J) dealing with the very broad nature of the discretion and its lack of confinement by the text of the section. Further, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; 139 FCR 292 at [87], the Full Court made a statement to the effect that there was nothing in the legislative structure to indicate that any potential difficulty with removing a non-citizen must be taken into account.

8    None of these authorities provides the answer to the question as to whether the legal consequence of the decision must be taken into account. The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 (per Dixon J). The decision of the Minister was made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention. The focus of the Court in Djalic was upon the asserted factual difficulty of return to the former Yugoslavia, about which there was little evidence. The Court was not directing itself to the legal consequences of a decision to refuse a visa.

9    The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

10    The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act.

52    In Cotterill v Minister for Immigration and Border Protection (2016) 330 ALR 617, Kenny and Perry JJ held that the principles discussed by Allsop CJ and Katzmann J in NBMZ in relation to s 501(1) were equally applicable to s 501(2). Kenny and Perry JJ said (at [123]-[126]):

123    The discretion under s 501(2) as to whether or not to cancel a visa (where paragraphs (a) and (b) are satisfied) is unconfined. The possibility that the appellant might suffer indefinite detention if his visa were cancelled is, however, a relevant consideration in our view, having regard to the subject-matter, scope and purpose of s 501 of the Migration Act: cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. In so concluding we have had regard to NBMZ 220 FCR 1 in which a Full Court of this Court held that, in making a decision under s 501(1), the Minister’s failure to consider that the visa applicant would face indefinite detention if a visa were refused constituted jurisdictional error.

124    In NBMZ 220 FCR 1, Allsop CJ and Katzmann J held that the visa applicant was entitled to have his application “determined on the hypothesis that he will be indefinitely detained” on the basis that the Minister was obliged in exercising power under s 501(1) to consider the legal consequence of the decision he proposed to make. In NBMZ 220 FCR 1 at [9], their Honours said:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

125    Buchanan J expressed his reasons more broadly (at [178]), saying that in his view, “the prospect … of indefinite detention was not a matter which could be overlooked, disregarded or allowed to pass without comment in a proper determination of the application for a visa”.

126    These aspects of the reasons for judgment of Allsop CJ and Katzmann J, and of Buchanan J, apply with equal force to an exercise of power under s 501(2) of the Migration Act. In exercising power under s 501(2) the Minister was obliged to consider the legal consequence of any decision that he might make to cancel a visa, including the prospect of indefinite detention.

53    In Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88, Rares, Flick and Perry JJ considered a contention that the Minister, in making a decision to cancel a visa under s 501(2), had failed to consider the best interests of the appellant’s children, thus breaching the appellant’s legitimate expectation. As noted in [21] of the reasons of the Full Court, it was not suggested that there was an implied statutory requirement that the Minister consider the best interests of the appellant’s minor children as a primary consideration or otherwise; the case proceeded on the basis that Australia’s entry into the Convention on the Rights of the Child 1989 done at New York on 20 November 1989 gave rise to a legitimate expectation that the Minister would take the best interests of the child into account as a primary consideration and a failure to warn of an intention to depart from that expectation would therefore constitute a breach of procedural fairness (on the basis of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). The Full Court was of the view that the appellant’s submissions could not be upheld, in summary, because: first, it was important to stress that in Teoh at 289, Mason CJ and Deane J held only that the legitimate expectation, in line with the terms of Art 3.1 of the Convention, was that the best interests of the child would be “a primary consideration”; secondly, the appellant was given Direction 55 (the relevant direction under s 499) and the opportunity to make submissions including on the primary and other considerations identified in that direction; and thirdly, it was apparent from the Minister’s reasons that he did in fact have regard to the consequences of cancelling the visa upon the children’s interests and gave primary consideration to their best interests (at [28]-[33]). I note that the legitimate expectation concept was considered by the High Court in Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1 at [28]-[32] per Kiefel, Bell and Keane JJ and at [61] per Gageler and Gordon JJ.

54    In Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367, Rangiah J (with whom North J agreed) held (at [66]) that, in the exercise of the discretion under s 501(2), the Minister is required to consider whether there is a risk of harm to the Australian community posed by the continued presence of the visa holder in Australia and to take into account any such risk.

55    I will proceed on the basis that, at least in relation to the issues that arise in the present case, the principles discussed above in relation to the power to refuse or cancel a visa under s 501(1) or 501(2) are equally applicable to the power to revoke a cancellation of a visa under s 501CA(4). As with ss 501(1) and 501(2), the power in s 501CA(4) is unfettered in its terms. Although in the case of ss 501(1) and 501(2) the power is to refuse or to cancel a visa where the person does not satisfy the Minister of certain matters, and in the case of s 501CA(4) the power is to revoke a cancellation of a visa where the Minister is satisfied of certain matters, in each case the effect of the decision is that the person will not have a visa (or the relevant visa) on grounds relating to the character test, and in each case the power is conferred in terms of a state of satisfaction. For these reasons, I consider that the principles discussed above are equally applicable in relation to s 501CA(4), at least in relation to the issues that arise in the present case.

The first issue: best interests of the child

56    In support of his first ground, the applicant submits that, in paragraphs 16-18 of the Statement of Reasons (set out in paragraph [39] above), the Minister correctly accepted that the best interests of the applicant’s daughter must be assessed by reference to the statutory effect of a decision not to revoke the cancellation decision; in other words, in this context, the Minister correctly understood that the effect of her decision was that the applicant was required to be removed to Lebanon as soon as reasonably practicable. The applicant submits that in other respects, however, the analysis of the Minister was flawed. The applicant’s submissions can be summarised as follows:

(a)    In light of the Minister’s finding in paragraph 16 of the Statement of Reasons that the applicant’s wife and child “will” move to Lebanon with the applicant, paragraph 17 was redundant. By reason of the findings in paragraph 16, the discussion in paragraph 17 of the hardships that the daughter would endure in the circumstance that the applicant was removed to Lebanon but the wife and daughter remained in Australia was entirely academic.

(b)    What the Minister accepted “will” occur was that the applicant’s daughter would go to Lebanon with him. In respect of this (real) scenario, the only discussion was that contained in paragraphs 16 and 18. But, in those paragraphs, there was no analysis. Paragraph 18 contained the Minister’s conclusion but the basis for it is unclear. In paragraph 16, the Minister only found the applicant’s claims of danger to his daughter in Lebanon to be “untested”.

(c)    The applicant made a representation that one of the reasons why the cancellation of his visa should be revoked was that, otherwise, his daughter would go to Lebanon with him, and that she would face danger there as a consequence of the ongoing civil war and sectarian violence. The Minister was required to consider whether that was a good reason to revoke the cancellation of the visa. The Minister abdicated her function of assessing whether there was a real chance (more than a theoretical possibility) that the daughter would be harmed there. Nothing in the Migration Act provides that a factual allegation in a representation made by an applicant under s 501CA must be “tested” (whatever that means) by some other body or decision-maker before the Minister is required to consider it for the purposes of deciding whether to revoke the cancellation of the visa.

(d)    The fact that the Minister found that the best interests of the daughter would be served by the revocation of the cancellation decision provides no assistance to the Minister in the present proceeding. If that finding was arrived at without proper consideration of the specific bases upon which it was said not to be in the daughter’s best interests not to revoke the cancellation decision, then the finding is hollow and it cannot properly be weighed by the Minister in the overall exercise of her discretion under s 501CA(4): cf Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45; Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504. The Minister could not lawfully weigh the best interests of the daughter if she had not made a finding, in response to the applicant’s representations, of what interests of the daughter would be affected by the decision to be made, how those interests would be affected, and in particular how likely it was that the risks to the daughter identified by the applicant would come to pass.

(e)    The Minister was not obliged to undertake some sort of inquiry in this respect, but she was required to assess the evidence that the applicant had provided. Having regard to the statutory framework, and the representations made by the applicant, this was required to be done in this case. However, the absence of any consideration in the written statement of the evidence that the applicant had provided in support of his representation, together with the Minister’s reference to the claims being “untested”, is indicative of the Minister having ignored rather than assessed the evidence: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [50].

(f)    The Minister’s analysis of the best interests of the applicant’s daughter reveals no more than mere ‘advertence’ or ‘lip service’ to the representations made by the applicant, and the evidence supporting those representations. By failing to assess whether there was a real chance that the daughter would be exposed to a significant risk of harm in Lebanon, on the stated basis that the applicant’s representations regarding such risk were “untested”, the Minister failed to give proper, genuine and realistic consideration to the applicant’s representations.

57    The applicant submits that there are two ways to understand why the Minister made a jurisdictional error in the manner in which she dealt (or failed to deal) with the representation made by the applicant (to the effect that, if the cancellation decision were not revoked, the applicant would be required to be removed to Lebanon, his daughter would go with him, and she would be exposed to danger including as a member of the minority Alawite sect and having regard to the civil war and sectarian violence in that country). The first, and simplest, way is that the applicant made a representation; the applicant did not lawfully consider that representation; that is because the Minister did not give proper, genuine and realistic consideration to the material which the applicant provided for the purpose of assessing whether the interests of the applicant’s daughter were a “reason” why the cancellation decision should be revoked. The applicant submits that the second way to understand the error is similar in many respects to the first, but it involves grounding the obligation of the Minister to consider the best interests of the applicant’s daughter not (or not only) on the particular scheme in s 501CA, but upon the principle of procedural fairness in Teoh. In the circumstances, the applicant submits, the Minister was required to have regard to the best interests of the applicant’s daughter.

58    In my view, the applicant has not established that the Minister denied the applicant procedural fairness, constructively failed to exercise her jurisdiction, or otherwise failed to carry out her statutory task, on the basis set out in ground one.

59    First, it is clear from the Statement of Reasons that the Minister did consider, at least to some extent, the best interests of the applicant’s daughter; indeed, the Minister found that the best interests of the daughter would be served by revocation: see paragraphs 13-18 of the Statement of Reasons, set out in paragraph [39] above.

60    Secondly, the Statement of Reasons includes a statement that, in undertaking the task, the Minister assessed all of the information set out in the Issues Paper and attachments; in particular, the Minister stated that she had considered the applicant’s representations and the documents he submitted (see paragraph [38] above). These statements by the Minister are to be accepted. It follows that, in considering the sufficiency or otherwise of the Minister’s consideration of the best interests of the applicant’s daughter, regard is to be had, not only to the Statement of Reasons, but also to the Issues Paper and attachments. The issue of the best interests of the applicant’s daughter was discussed in paragraphs 37-51 of the Issues Paper. In paragraph 45 of the Issues Paper, the applicant’s 10 May 2015 submission was referred to and the paragraph commencing “Evidently …” (quoted in paragraph [31] above) was quoted. This paragraph from the applicant’s submission included the sentence: “Extremist sectarian groups are targeting minority groups and driving them out of their homes and villages, if not slaughtering them.” This was an express reference to the type of danger the applicant contended that his family (including his daughter) would face in Lebanon. It was quoted in the Issues Paper and considered by the Minister.

61    Thirdly, the Statement of Reasons needs to be read as a whole. As noted above, in paragraph 24 of the Statement of Reasons, in the context of considering the strength, nature and duration of ties, the Minister stated: “I find that a decision not to revoke would result in hardship for [the applicant’s] family unit if they were to relocate to Lebanon with him, given the possibility of sectarian violence …”. This reinforces that the Minister turned her mind to the applicant’s contention that his family (including his daughter) would be exposed to sectarian violence in Lebanon.

62    Fourthly, in relation to the applicant’s submission that the Minister was required to consider whether the reason put forward by the applicant (namely that, if the cancellation decision were not revoked, his daughter would go to Lebanon with him and she would face danger there as a consequence of sectarian violence) was a good reason to revoke the cancellation, but “abdicated her function of assessing whether there was a real chance … that the daughter would be harmed”, I do not think it was incumbent on the Minister to make a finding on the level of risk that would be faced by the daughter, in circumstances where the Minister concluded that the best interests of the child would be served by revocation of the cancellation decision. It would be very difficult, if not impossible, to do so on the basis of the material provided. The applicant accepts that the Minister was not obliged to conduct some sort of inquiry. It is apparent from the reasons as a whole that the Minister accepted that sectarian violence was a possibility and proceeded on this basis. That the Minister accepted that sectarian violence was a possibility is clear from the sentence in paragraph 24 of the Statement of Reasons quoted in paragraph [41] above; it is also implicit in the finding (at paragraph 18 of the Statement of Reasons) that the best interests of the daughter would be served by revocation. I think this provided a sufficient basis to conduct the weighing exercise necessary to reach a conclusion.

63    I note that the applicant criticises the use of the word “untested” in paragraph 16 of the Statement of Reasons (which reflected the use of that word in paragraph 46 of the Issues Paper, quoted in paragraph [34] above). Read in context, I would read this word as indicating that the contention had not been evaluated, for example by an officer of the Department. I accept that word is perhaps slightly inapt. Be that as it may, I do not think the use of this word advances the applicant’s submission beyond the matters discussed in the preceding paragraph. For the reasons there indicated, I do not think it was incumbent on the Minister to assess whether there was a real chance that the daughter would be harmed in Lebanon.

64    Fifthly, I consider the applicant’s criticism of paragraph 17 of the Statement of Reasons to be misplaced. In that paragraph, the Minister considered an alternative scenario in which the daughter did not relocate to Lebanon with the applicant and accepted that the daughter would suffer hardship by being separated from the applicant in this scenario. It was appropriate for the Minister to consider this alternative scenario. Although the 10 May 2015 submission on behalf of the applicant stated that the family’s “desire” was to be together “no matter what the circumstances” (see paragraph [31] above), I do not think the submissions ruled out the possibility that this might not occur. Further, some of the other documents submitted were ambiguous on this issue. For example, the letter from the applicant’s wife (attachment E8 to the Issues Paper) stated “It’s too dangerous for us to move to Lebanon”.

65    Sixthly, I do not accept the applicant’s submission that the conclusion that revocation would be in the best interests of the applicant’s daughter was arrived at “without proper consideration of the specific basis upon which it was said not to be in the daughter’s best interests not to revoke the cancellation decision” or that it was “hollow” and “cannot properly be weighed” in the overall exercise of the discretion. That the Minister turned her mind to the specific basis of the applicant’s contention is apparent from paragraphs 16 and 24 of the Statement of Reasons and paragraph 45 and 46 of the Issues Paper. As discussed above, the Minister accepted that sectarian violence was a possibility and that the daughter’s best interests would be served by revocation, and proceeded on this basis. As indicated above, in my view this provided a sufficient basis to conduct the weighing exercise to reach a conclusion.

66    For these reasons, the applicant’s first ground is not made out.

The second issue: international non-refoulement obligations

67    The applicant’s second ground of challenge to the Decision is set out in paragraph [45] above. The applicant notes that the Minister’s treatment of the applicant’s representations invoking Australia’s non-refoulement obligations under international law was confined to a single paragraph in the Statement of Reasons (see paragraph [40] above). The applicant submits that the Minister did not consider the applicant’s representations regarding Australia’s non-refoulement obligations under international law because she thought it was “unnecessary” to do so; the assumption underlying this analysis was that Australia’s non-refoulement obligations under international law would necessarily be considered in the event that the applicant was to make an application for a Protection (Class XA) visa (protection visa), which he was not precluded by law from doing. The applicant submits that the Minister’s analysis betrays error.

68    Before setting out the applicant’s submissions in more detail, I note that one of the criteria for the grant of a protection visa, referred to in the applicant’s submissions, is that an applicant satisfies Public Interest Criterion 4001 (PIC 4001): see clause 866.225(a) of Sch 2 to the Migration Regulations 1994 (Cth). PIC 4001, which is in Sch 4 to the Regulations, is in the following terms:

Either:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

69    The applicant’s submissions can be summarised as follows:

(a)    The statutory consequence of the Minister’s decision was that the applicant was required to be removed from Australia as soon as reasonably practicable: s 198 of the Migration Act. By reason of s 197C (see paragraph [27] above), upon the making by the Minister of her decision, there was simply no obligation for the Minister or any officer to consider Australia’s non-refoulement obligations under international law before removing the applicant. And there was no information before the Minister to suggest that it was not reasonably practicable to remove the applicant immediately.

(b)    In making her decision, the Minister was required to take into account the “statutory effect” of her decision (NBMZ; NBMB v Minister for Immigration and Border Protection (2014) 220 FCR 44) – being that the applicant was required to be removed as soon as reasonably practicable, and that Australia’s non-refoulement obligations under international law were not to be taken into account in this context. But, at least in this context, the Minister did not consider that statutory effect of her decision. For that reason alone, the Minister made a jurisdictional error. There was no information to suggest that the Minister was considering, or intended to consider, whether to exercise the power under s 195A to grant the applicant a visa.

(c)    The Minister was required to consider the applicant’s representation that failing to revoke the cancellation decision would result in Australia breaching its non-refoulement obligations. The Minister sought to avoid her obligation to consider the applicant’s representation by noting that the applicant could apply for a protection visa and, implicitly in her reasons, by assuming that the question of Australia’s non-refoulement obligations under international law would necessarily be considered in this context. It is accepted that the applicant was entitled to make an application for a protection visa. However, contrary to the Minister’s implicit assumption, the question of Australia’s non-refoulement obligations under international law would not necessarily be considered in this context.

(d)    Section 65(1)(b) of the Migration Act has the effect that the Minister is obliged to refuse to grant a visa if an applicant does not satisfy any of the criteria for the visa. But only some of the existing criteria for a protection visa may be seen as reflecting Australia’s non-refoulement obligations at international law. And, in any event, there is simply no necessary connection whatsoever between the criteria for any kind of visa (which reflect legislative decisions in exercise of Australia’s sovereign right as to who it will permit to live in the Australian community) and Australia’s non-refoulement obligations (which are constraints imposed on Australia by international law as to the circumstances in which it can remove a person from Australia). The criteria for a protection visa have, and do, change frequently. It follows that the question of Australia’s non-refoulement obligations would not necessarily be considered, even if the applicant applied for a protection visa before he was removed from Australia under s 198.

(e)    One existing criterion for a protection visa that has no discernible relationship to the content of Australia’s non-refoulement obligations at international law is that established by PIC 4001, which imposes a criterion relating to the “character test” and plainly extends beyond the separate criterion in s 36(1C)(b) of the Migration Act. The latter criterion relates to a person being a danger to the Australian community by reason of having been convicted of a particularly serious crime, and may be seen to reflect limits to Australia’s non-refoulement obligations under Art 33(2) of the Refugees Convention. But PIC 4001 reflects no such limit to Australia’s non-refoulement obligations. It represents, simply, an additional criterion for a visa. If the applicant fails to satisfy the Minister that he satisfies PIC 4001, then the Minister would be required to refuse to grant the applicant a protection visa, and no consideration of Australia’s non-refoulement obligations (or any visa criterion reflecting those obligations) would be necessary.

(f)    If the applicant were to make an application for a protection visa, it would be open to the Minister to refuse to grant him that visa on the basis that he does not satisfy the criterion in clause 866.225(a). Indeed, there was no information available to the Minister to suggest that any other outcome was likely. Certainly, the applicant would not satisfy PIC 4001(a) or (b). And there is no basis to suspect that the applicant would satisfy PIC 4001(c) or (d). Indeed, the Minister would have no duty to consider whether to decide “not to refuse” to grant the visa despite not being not satisfied that the applicant passes the character test: plainly, there is no duty to consider the exercise of the powers in s 501(1) and (3)(a).

(g)    Accordingly, there was no basis for the Minister to assume that Australia’s non-refoulement obligations under international law would necessarily be considered at some later point in time. An officer would be prohibited from considering those non-refoulement obligations in performing his or her duty, arising immediately upon the making of the Decision, to remove the applicant to Lebanon. And, even if the applicant applied for a protection visa in the future, it is readily conceivable that the Minister might refuse to grant him that visa on a basis that does not reflect consideration of Australia’s non-refoulement obligations at international law.

(h)    It follows that the implicit premise of the Minister’s reasoning was flawed, because Australia’s non-refoulement obligations under international law would not necessarily be considered in another context. The Minister was required to consider the applicant’s representation, duly made to her in accordance with the Department’s invitation, as to why the revocation of his partner visa should be cancelled. The Minister made a jurisdictional error by not considering that representation.

70    The applicant also submits that there are two ways to understand why the minister made a jurisdictional error in the manner in which she dealt with (or failed to deal with) the applicant’s representation to the effect that if the cancellation decision was not revoked, and the applicant was therefore required to be removed to Lebanon, his removal would breach Australia’s non-refoulement obligations. The first, and simplest, way is as follows: the applicant made a representation; the Minister was required by the scheme in s 501CA to give proper, genuine and realistic consideration to a representation as to a suggested reason why the cancellation decision should be revoked; the Minister did not lawfully consider the applicant’s representation; accordingly, the Minister made a jurisdictional error. The applicant submits that a second way to understand why the Minister erred is as follows: the applicant made a representation; the Minister sought to avoid considering that representation on the basis that the question whether removal of the applicant to Lebanon would contravene Australia’s non-refoulement obligations would necessarily be considered if the applicant made an application for a protection visa (which the applicant had and has the right to do); the basis for the “avoidance” involved a misunderstanding of the Migration Act and its operation.

71    The Minister’s submissions in relation to ground two can be summarised as follows:

(a)    It is correct to say that the Minister did not consider the non-refoulement claims on the footing that it was unnecessary to do so. The assumption underlying that reasoning was that it was open to the applicant to raise those claims by way of a protection visa application. That assumption was correct.

(b)    Further, and in any event, the structure of the Migration Act supports the view that the existence of non-refoulement obligations to the person concerned is not a mandatory consideration under s 501, and hence under s 501CA(4): see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [43]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [59]; AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at [27]; Minister for Immigration and Multicultural Affairs v Huynh [2004] FCAFC 47 at [28]. See also Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [17], [28].

(c)    The applicant’s imputation to the Minister of a misconception of the statutory effect of her decision is incorrect, in that it entirely disregards the effect of s 198(5A) of the Migration Act. It was (and is) open to the applicant to apply for a protection visa at any time, and until the determination of that application s 198(5A) would prevent the removal of the applicant.

(d)    The applicant’s contention that the effect of clause 866.225(a) and PIC 4001 is that a protection visa could be refused without consideration of the applicant’s claims for protection, is incorrect. Contrary to the applicant’s submissions, the content of sub-criteria PIC 4001(c) and (d) could be met even if (a) and (b) were not, and the Minister would be required to turn his or her mind to them. The expression “the Minister has decided not to refuse to grant a visa to the person despite …” in PIC 4001(c) and (d) addresses the potential that the character test under s 501 might not have been met, but nevertheless the Minister has not exercised the discretion to refuse to grant the protection visa under s 501(1). In the context of a protection visa application, where the potential for refusal under s 501(1) is considered and the discretion to refuse arises, the Minister will weigh the legal consequences of refusal amongst other factors he considers relevant in the course of exercising the discretion. A decision on the matter of whether the protection visa is to be granted (because the criteria referred to in s 65(1)(a)(i), (ii) and (iv) are satisfied) or refused (under s 501(1), and because s 65(1)(a)(iii) is then not satisfied) will encompass consideration of the applicant’s claim to be owed protection obligations. In the context of a protection visa application, the process of considering potential refusal under s 501(1) would involve consideration of the applicant’s claims of protection, and a balancing of that matter against the other relevant matters identified by the Minister including the character issues identified in the particular case: cf SZLDG v Minister for Immigration and Citizenship (2008) 166 FCR 230 at [52], [54], [80]-[81], [83], [84]-[90].

72    In my view, for the reasons set out below, the applicant has not established that the Minister constructively failed to exercise her jurisdiction or otherwise failed to carry out her statutory task by failing to consider Australia’s non-refoulement obligations under international law, this being a reason put forward by the applicant as to why the cancellation decision should be revoked. Nor do I think the applicant has established that the Minister failed to take into account the Migration Act and its operation in making her decision, or that she misunderstood the Act and its operation in making her decision.

73    The discretionary power conferred on the Minister by s 501CA(4)(b)(ii) is unfettered in its terms. The Minister is given the power to revoke a decision to cancel a visa if he or she is satisfied that “there is another reason why the [cancellation] decision should be revoked”. Nevertheless, as discussed in NBMZ (see paragraph [51] above) in the context of s 501(1), the law imposes certain limits on the exercise of the discretion. As with s 501(1), under s 501CA(4), the Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J; and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [71] per Kiefel and Bennett JJ. It may be accepted that, by parity of reasoning with NBMZ, in the case of a decision under s 501CA(4) whether or not to revoke the cancellation of a protection visa, one of those considerations is the statutory (that is, legal) consequences of non-revocation of the cancellation of the visa.

74    In the present case, the visa which had been cancelled was a partner visa rather than a protection visa. The statutory framework in which the Minister made her decision preserved the ability of the applicant to make an application for a protection visa. The applicant contends that the statutory consequence of a decision not to revoke was (in light of the enactment of s 197C) that the applicant was required to be returned to Lebanon irrespective of whether this would breach Australia’s non-refoulement obligations. The applicant submits that the Minister fell into jurisdictional error by not considering this statutory consequence. But I think it is necessary to consider the statutory consequences of the decision by reference to the framework of the Act as a whole, including the provisions which preserve the applicant’s ability to apply for a protection visa. I do not think it was a mere matter of speculation (cf NBMZ at [4]) that the applicant would apply for a protection visa. As noted above, he had provided a body of material in support of his non-refoulement claims. The position of the applicant in the present case is different in several respects from that of the applicant in NBMZ. In that case, the applicant had been assessed to be a refugee and the Minister had refused, under s 501(1), to grant him a protection visa. The statutory consequence of that decision in the context of the provisions of the Migration Act as they stood at the relevant time was that the applicant faced the prospect of indefinite detention. In the present case, the visa that had been cancelled was a partner visa, and the applicant had (and has) the ability to apply for a protection visa. In these circumstances, to focus on ss 197C and 198, namely the requirement to remove the applicant irrespective of Australia’s non-refoulement obligations, is to adopt too narrow a frame of reference in considering the statutory consequences of a decision not to revoke.

75    The applicant also contends that the Minister adopted a mistaken understanding of the operation of the Act by assuming that Australia’s non-refoulement obligations would necessarily be considered as part of a protection visa application. The applicant relies, in particular, on the difficulty that the applicant would face in satisfying PIC 4001. However, it is difficult to see how the applicant could be refused a protection visa without there being an assessment of his non-refoulement claims. It may be accepted that, even if the applicant establishes his claim that Australia owes non-refoulement obligations under international law, he may nevertheless be refused a protection visa on character grounds under s 501(1). But, based on the material before the Court, it is to be expected that the applicant’s non-refoulement claims would be assessed as part of the determination of a protection visa application by the applicant. This is consistent with the Minister’s submissions, set out in paragraph [70] above.

76    To the extent that the applicant relies on the observations of Tracey J in Picard at [42], set out in paragraph [48] above, these are concerned with procedural fairness obligations owed by the Minister under s 501CA(4). The applicant’s second ground (in contrast with his first) does not rely on a denial of procedural fairness. In any event, it is clear that the Minister responded to the applicant’s claims based on non-refoulement obligations, by forming the view that it was unnecessary to consider them in circumstances where the applicant was able to apply for a protection visa. This was sufficient to satisfy the requirement to accord procedural fairness to the applicant.

77    The applicant also contends that the Minister was required to give proper, genuine and realistic consideration to the applicant’s non-refoulement claims, this being one of the reasons put forward by the applicant in support of revocation of the cancellation decision. The expression “proper, genuine and realistic consideration” was discussed by French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [26]-[30]. Their Honours referred to Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, where Gummow J used the expression in the context of a judicial review application where the issue was whether an administrative decision-maker exercising a discretionary power had applied a rule or policy without regard to the merits of the case. Their Honours also referred to NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, where the Minister accepted that a statutory provision requiring a tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The statutory provision in question in the present case confers on the Minister a power to revoke the cancellation of a visa if the Minister is satisfied there is “another reason why the [cancellation] decision should be revoked”. Beyond the requirements of procedural fairness (discussed in the preceding paragraph), it is largely for the Minister to determine to what extent he or she investigates matters raised by a person. In particular, I do not think it was incumbent on the Minister to substantively assess the applicant’s non-refoulement claims in circumstances where the applicant was able to apply for a protection visa.

78    For these reasons, the applicant’s second ground is not made out.

Conclusion

79    It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore make an order that the applicant pay the Minister’s costs. As the matter of costs was not the subject of submissions, however, I will give the parties three business days in which to seek a variation of the costs order.

Associate:

Dated:    17 August 2016