FEDERAL COURT OF AUSTRALIA

DEY16 v Minister for Immigration and Border Protection [2016] FCA 1261

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the applicant may apply to the Federal Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Migration Act 1958 (Cth) be extended to 8 December 2015.

2.    The proposed Further Amended Originating Application for review of a migration decision stand as an application for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Migration Act 1958 (Cth) and be treated as having been filed in the Court on 8 December 2015.

3.    The decision of the Assistant Minister made on 12 November 2014 to refuse an application by the applicant for a Bridging E (Class WE) visa be quashed.

4.    The table outlining the applicant’s migration visa history at pp 2-3 of “MFI-1” be admitted into evidence.

5.    The respondent pay the applicant’s costs of and incidental to the application, as agreed or taxed.

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

REASONS FOR JUDGMENT

KENNY J:

INTRODUCTION

1    On 12 November 2014, the Assistant Minister for Immigration and Border Protection (the Assistant Minister) exercised her discretion under s 501(1) of the Migration Act 1958 (Cth) (Migration Act) to refuse an application by DEY16 (the applicant) for a Bridging E (Class WE) visa (Bridging Visa E).

2    The applicant applied for an extension of time in which to seek judicial review of the Assistant Minister’s decision (the decision) on 21 August 2015. This application was supported by an affidavit affirmed by Melinda Anne Jackson, the applicant’s lawyer, on 20 August 2015, which, amongst other things, sets out the steps taken by the applicant and his spouse to seek pro bono legal assistance following the decision. The application was accompanied by a proposed judicial review application.

3    The extension of time application and the applicant’s proposed judicial review application were heard together. Argument on the proposed judicial review application was made on the assumption that an extension of time would be granted. The proposed judicial review application was amended twice, with leave. Prior to the hearing, the parties filed submissions addressing all grounds except an additional ground that was added during the hearing. After the hearing, both parties filed supplementary written submissions addressing this additional ground.

APPLICATION FOR EXTENSION OF TIME

4    For the reasons set out hereafter, I would grant leave to the applicant to file an application for judicial review out of time. Under s 477A(1) of the Migration Act, the applicant was required to apply to this Court for judicial review of the decision within 35 days of the decision. Pursuant s 477A(2) of the Migration Act, the Federal Court may extend the 35 day period as it considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

5    An application for an order extending time has been made that specifies why the applicant considers that it is necessary in the interests of the administration of justice to make the order. I am satisfied that it is necessary in the interests of the administration of justice that an order extending time be made. I note that the application for an extension of time complied with the requirements of r 31.23 of the Federal Court Rules 2011 (Cth).

6    The respondent Minister (the Minister: see s 19 of the Acts Interpretation Act 1901 (Cth)) did not take issue with the adequacy of the applicant’s explanation for the delay. Having regard to the steps taken by the applicant and his spouse to seek pro bono legal assistance following the decision, as set out in Ms Jackson’s supporting affidavit, there was, as the Minister conceded, an acceptable explanation for the delay. There is also no issue of prejudice in defending the proceedings as a result of the delay.

7    The primary objection made by the Minister to the granting of the extension of time was that the proposed grounds of review were of insufficient merit to warrant an extension of time. As indicated by the reasons set out below (see [66] and following), I have concluded that, to the contrary, there is merit in the applicant’s judicial review application; and an extension of time in which to file the application should be granted. Furthermore, the refusal of an extension of time would occasion the applicant injustice because he would be unable to challenge the decision notwithstanding its adverse consequences for him and his family and that, for the reasons stated below, the decision involves jurisdictional error.

8    Accordingly, I would order that the time in which the applicant may apply to the Federal Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Migration Act be extended to 8 December 2015, being the date on which this matter was heard and the proposed Further Amended Originating Application for review of a migration decision (FAOA) provided to the Court. I would further order that the FAOA stand as the applicant’s application for review of a migration decision and be treated as having been filed in the Court on 8 December 2015.

BACKGROUND FACTS

9    The applicant is 38 years of age and a citizen of Albania. He and his spouse, who is also an Albanian citizen, have two young sons. Both children were born in Australia.

10    The applicant entered Australia on 18 November 2004, using an Italian passport, with an Electronic Travel Authority (Class UD) visa, in the name of Dario Romboli. The applicant’s spouse entered Australia separately in February 2004.

11    On 13 January 2005, the applicant applied for a Protection (Class XA) visa and was granted an associated Bridging A (Class WA) visa. In support of his protection visa application, the applicant claimed to have a well-founded fear of persecution in Albania on account of his political activities there. His spouse applied for a protection visa in April 2004, on the basis that she had a well-founded fear of persecution on account of her sexual orientation. Both the applicant and his spouse later said that the protection claims in their original protection visa applications were false.

12    On 3 February 2005, the applicant’s Electronic Travel Authority (Class UD) visa was cancelled pursuant to s 109 of the Migration Act. As a consequence, his Bridging A (Class WA visa) ceased. The applicant was granted a Bridging Visa E. On 1 March 2005, a Ministerial delegate refused to grant the applicant a protection visa on the basis of his alleged political activities. The applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for merits review. The Tribunal affirmed the decision to refuse to grant the applicant a protection visa on 21 October 2005.

13    The applicant’s Bridging Visa E ceased on 19 December 2005 and the applicant became an unlawful non-citizen in the community. The applicant came to the attention of authorities in March 2008 when he was arrested in relation to the cultivation of cannabis. At this point, he was placed in immigration detention.

14    On 17 October 2008, the applicant was granted a Criminal Justice Stay (Class ZB) visa and, pending his trial, the applicant was released from immigration detention and into criminal detention. He was released on bail on 12 November 2008.

15    Subsequently the applicant pleaded guilty in the County Court of Victoria, to one count of trafficking in a drug of dependence, namely cannabis; one count of using a false document; and two counts of criminal damage. He was convicted of these offences and sentenced, on 29 January 2010, to two years’ imprisonment for trafficking in a drug of dependence; one month’s imprisonment for using a false document; and three months’ imprisonment for each count of criminal damage. The sentences were ordered to be served concurrently and suspended for a period of two years.

16    On numerous occasions in 2008, 2011, 2012 and thereafter, the applicant or the Department has requested or proposed Ministerial intervention under s 417 or s 48B of the Migration Act, including that the Minister exercise the power under s 48B to permit the applicant to make a further application for a protection visa, on the basis of a claim that is entirely different from that previously considered by the delegate and the Tribunal. These requests and proposals have been declined. In written submissions filed in this proceeding, the applicant stated that he and his spouse “told their true story for the first time in a submission made on 30 June 2008 in support of their initial request for Ministerial intervention under s 48B of the [Migration] Act”. The submissions filed in this proceeding described the “true story” in the following terms:

3.1    [The applicant’s spouse], who was in love with the applicant, escaped with his assistance from an arranged marriage to an older man from Kosovo, dishonouring both this man and her father (who had arranged the marriage) and resulting in a blood feud that made it unsafe to return to Albania.

3.2    The couple felt that Australia would be far enough away from Albania for them to live in peace. The applicant was able to arrange false passports to facilitate the travel.

3.3    [The applicant’s spouse] entered Australia on 29 February 2004. The applicant, who was refused entry at the border on his first attempt to enter Australia, did not enter Australia until 18 November 2004.

3.4    In the interim, [the applicant’s spouse] had submitted her protection visa application. She made a false claim (to fear persecution as a lesbian) because she ‘was afraid of spoiling [the applicant’s] chances of joining her and she was scared that people would learn her story and somehow it would get back to her father and/or the man from Kosovo...’

3.5    When the applicant made his own protection visa application, he too made a false claim because he feared that telling the truth would expose [his spouse’s] false claim.

17    On 2 September 2011, a protection visa application was lodged on behalf of the couple’s first-born son on the basis of this account. The application was refused by a delegate of the Minister. Application for a review of the delegate’s decision was made to the Refugee Review Tribunal (as it then was). It gave a decision on 7 September 2012 that accepted that the applicant’s son is a person in respect of whom Australia has protection obligations under the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal held that “there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [child] applicant being removed to Albania, he faces a real risk of being subjected to ... significant harm, in furtherance of the blood feud involving the ... family and the [child] applicant’s parents”. The couple’s eldest child was granted a protection visa on 18 January 2013.

18    It may be noted that, shortly after the Tribunal’s decision, in September 2012, the Department prepared a submission to the Minister requesting that the Minister exercise the discretion under s 48B “to lift the bar” to allow the applicant and his spouse to be joined to their son’s protection visa application before it was finalised. (The Court Book contained a Departmental submission date-stamped as received by the Minister on 2 October 2012 (to which counsel for the applicant referred at the hearing) and it appears likely that this was the relevant Departmental submission. There is no express evidence to this effect, however.) The applicant and his spouse were informed that this request had been rejected on 2 January 2013.

19    The applicant’s most recent Bridging Visa E ceased on 19 August 2014. He made his latest application for a Bridging Visa E on 20 August 2014.

20    On 5 September 2014, an officer of the Department sent the applicant’s migration agent a Notice of Intention to Consider Refusal under s 501 of the Migration Act. The applicant was invited to comment on: (1) whether or not he passed the character test in s 501(6) of the Migration Act; and (2) if he did not pass that test, whether or not his application for a Bridging Visa E should be refused. Also on 5 September 2014, the applicant’s representative was sent a copy of the sentencing remarks of the County Court Judge of 29 January 2010 and invited to comment on the information contained in that document. On 9 and 16 September 2014, the applicant’s representative submitted documents to the Department in response, including responsive submissions.

21    On 1 October 2014, the Department provided the applicant’s representative with a copy of the Tribunal’s decision regarding his eldest son’s protection visa application and inviting comment. The applicant’s representative responded on 8 October 2014.

22    On 12 November 2014, the Assistant Minister indicated that she wished to consider the applicant’s case personally. Also on 12 November 2014, the Assistant Minister recorded her decision that the applicant had not satisfied her that he passed the character test as defined by s 501(6) of the Migration Act; that she had decided to exercise her discretion under s 501(1) to refuse to grant his application for a Bridging Visa E. By letter dated 21 November 2014, the Department informed the applicant that the Assistant Minister had decided, on 12 November 2014, to refuse to grant him a Bridging Visa E under s 501(1) of the Migration Act.

DECISION OF ASSISTANT MINISTER

23    At the time of her decision, the Assistant Minister had before her the Departmental submission, an “Issues paper in relation to [the applicant’s] case” (Issues Paper) and its 24 attachments, and a draft Statement of Reasons for refusal of the Bridging Visa E. There is nothing to indicate that she had any other information before her at that time.

24    The Assistant Minister adopted as her statement of reasons for the decision the draft Statement of Reasons that had earlier been prepared by the Department (Reasons).

25    Under the heading “Character test”, the Reasons stated:

3.    On 29 January 2010 [the applicant] was convicted in the Melbourne County Court of Traffick Cannabis, for which he was sentenced to two years imprisonment, suspended for two years.

4.    As a result of this sentence of imprisonment, I find that [the applicant] has a substantial criminal record. I find that he does not pass the character test by virtue of s 501(6)(a) with reference to s 501(7)(c) of the Act and that he has not satisfied me that he passes the character test.

26    Under the heading “Discretion”, the Reasons further stated that the decision-maker was “mindful of the Government’s commitment to using s 501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens” and that “remaining in Australia is a privilege in the expectation that non-citizens are law abiding”. Under the subheading “Criminal conduct”, the Reasons referred to the applicant’s convictions and sentences, recording in relation to two:

•    Criminal Damage (Intent Damage/Destroy) (2 charges) – on each charge: three months imprisonment (concurrent), suspended for two years

•    Use A False Document To Prejudice Other – one month imprisonment (concurrent), suspended for two years; pay compensation $14,195.85

27    The Reasons continued:

7.    [The applicant] has been convicted of taking part in an operation to grow a substantial amount of cannabis in houses rented for that purpose. I note that he arranged the leases, using false names, and that the court found that he was a knowing participant in the installation and use of hydroponic equipment, which caused significant damage to the houses.

8.    I took into account that the court found that [the applicant] was not an instigator of the operation and that he took part for a fee in order to obtain money to support his family. I also took into account that the court stated that any offence of trafficking must be viewed seriously, and that the offence committed by [the applicant] was a serious example of its type. It also found that he must have been in no doubt to the commercially driven motivations of that criminal venture.

9.    I have noted that [the applicant] has repeatedly used false identities and provided false documentation in support of those identities. He has twice tried to use false documentation to enter Australia, the second time successfully, and in committing the offences of which he was convicted in 2010, he signed leases in false names. Furthermore other evidence of the use of false identities was found in his home.

28    Under the subheading “Risk to the Australian community”, the Reasons continued:

10.    Should [the applicant] again become involved in criminal offending, his actions     could contribute significantly to the supply of illicit drugs in the Australian community, with resultant negative impacts on the use of such drugs, drug-induced criminal offending and downstream community costs in terms of law enforcement and health.

11.    I have taken into account that the available information does not indicate that [the applicant] is a habitual criminal offender, and that his offending in this instance appears to be closely linked to his need to support his family. However he has been prepared to engage in criminal activity for personal reasons and to use false identities on multiple occasions for his own ends. I find that his need to support his family could induce him to offend again if he is unable to obtain the funds he needs for that purpose by legitimate means in future. Accordingly I conclude that there is an ongoing risk of him reoffending.

29    In relation to “Ties to Australia”, the Reasons acknowledged that the applicant had “links to Australia through his 10 years of residence, during which time he has held various employment and formed social links, and through the fact that one of his children is now a permanent resident of Australia”.

30    Under the subheading “Best interests of minor children”, the Reasons recorded:

13.    I noted that [the applicant] has two sons ... both born in Australia since their parents’ arrival here. I further noted that [the eldest] has special needs arising from his condition of autism and that he requires intensive support which includes important input from his father, and that he is distressed about the current absence of his father. I accept that the mother of the children is finding it difficult to cope without the financial and physical support of [the applicant].

14.    I find that it is in the best interests of [the applicant’s sons] not to refuse     [the applicant’s] application for a Bridging E (Class WE) visa.

31    Under the subheading “International obligations”, the Reasons read as follows:

15.    I have taken [in]to account the claims made by [the applicant] and his spouse that their relationship has given rise to a blood feud because they eloped after his spouse had been promised in marriage to another man by her father against her will, and the Refugee Review Tribunal accepted these claims as the basis for its finding that their [eldest] son ... was in need of “complementary” protection.

16.    I find however, that even if [the applicant] is owed protection obligations, this has no bearing on his application for a Bridging E (Class WE) visa, on the basis that any harm he may face in his country of nationality could only take place after he has been removed from Australia, by which time the Bridging E (Class WE) visa, if granted, would have expired. A decision to refuse [the applicant’s] application for a Bridging E (Class WE) visa would not result in the automatic denial of protection to [the applicant], which can be considered separately.

32    At [17] the Reasons recorded that the Assistant Minister accepted that the applicant’s spouse was experiencing significant financial and emotional hardship in coping with the demands of supporting and parenting her children in his absence.

33    The Reasons concluded:

19.    In reaching my decision I concluded that [the applicant] represents a risk of harm to the Australian community and that the protection of the Australian community outweighs the countervailing considerations discussed above, including the negative effects on his wife and children resulting from refusal of the visa under consideration. I have found that the risk of harm that [the applicant] represents is unacceptable.

The Assistant Minister therefore decided to exercise her discretion to refuse to grant the applicant a Bridging Visa E.

34    When asked about entries for 8 and 15 May 2015 in a table in a Departmental document marked at the hearing “MFI-1” (indicating the Department initiated a s 417 request for Ministerial intervention on 8 May 2015 that was declined on 15 May 2015) counsel for the Minister (who challenged the admissibility of the document) said:

What I can say, your Honour, is there has been a number of requests for the Minister to exercise the power under section 417 of the Migration Act, or alternatively section 48B of that Act, and even as recently as August [2015] those requests have continued. Now, there’s no compulsion on the part of the Minister to deal with that request. The Minister doesn’t even have an obligation to consider it. But I can say that as recently as 9 November [2015] a request made in respect of section 417 of the Act was responded to, and the response was along the lines of no further action being taken on the basis, essentially, that these proceedings remained on foot for the time being. …

And all I can say is that doesn’t necessarily preclude some further request being made down the track; it doesn’t preclude the possibility of the Minister giving consideration to it. I don’t say whether that would occur or not. That’s ultimately a matter for the Minister.

grounds of review

35    In his FAOA, the applicant advanced five grounds in support of his contention that the decision involved jurisdictional error. These grounds were as follows:

1.    The decision was legally unreasonable.

PARTICULARS

a.    In light of compelling discretionary considerations militating against

refusal (including but not limited to the applicant’s family circumstances, in particular those of his son who is owed protection obligations and cannot accompany his father upon removal), the decision was legally unreasonable.

2.    The decision involved a failure to give proper, genuine and realistic consideration to the factors militating against refusal and/or a failure to discharge the Respondent’s statutory task.

PARTICULARS

a.    Even if it was open to the respondent to refuse the applicant’s visa by reference to the factors identified in the decision record, the Respondent did not give proper, genuine and realistic consideration to the factors militating against refusal (including those referred to in the particulars to Ground 1 above).

3.    The decision involved a failure to discharge the respondent’s statutory task and/or to have regard to the risk of harm to the Australian community in the manner required by Australian law; alternatively, the decision was legally unreasonable.

PARTICULARS

a.    The respondent made no assessment of the likelihood of the applicant reoffending or otherwise harming the Australian community.

b.    In the circumstances, such an assessment was required to properly discharge the respondent’s statutory task.

c.    Alternatively, in assessing the likelihood of the applicant reoffending, the respondent overlooked centrally relevant material and thereby failed to discharge her statutory task.

4.    There was a constructive failure to exercise jurisdiction because the Assistant Minister was presented with a submission to consider exercising her s 501(1) discretion (the submission) that was misleading or that otherwise vitiated her exercise of discretion.

PARTICULARS

a.    The submission extracted from the sentencing remarks of his Honour Judge Gamble in DPP v [DEY16] … in a manner which caused the Minister to be presented with half-truths.

5.    The Assistant Minister failed to have regard to the legal and factual consequences of the decision.

a.    The Assistant Minister, in finding that any protection obligations owed in respect of the applicant had “no bearing” on his visa application because “any harm he may face in his country of nationality could only take place after he has been removed from Australia” (decision record, [16]), did not have regard to the fact that any such removal would breach international and domestic law (see [Minister for Immigration and Citizenship v] SZQRB [[2013] FCAFC 33]).

b.    The Assistant Minister, in giving weight to the fact that the applicant’s complementary protection claims “can be considered separately” (decision record, [16]), did not have regard to the fact that he had no entitlement under Australian law to have these claims assessed, with the result that he faced indefinite detention pending any favourable exercise of a non-compellable discretion (see NBMZ [v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1]).

THE PARTIES’ SUBMISSIONS

The Applicant’s Submissions

36    The applicant’s grounds of judicial review challenged the Assistant Minister’s exercise of discretion. The ways in which the applicant’s legal representatives framed the applicant’s challenge to the decision changed, however, in the course of the proceeding. The broad outline of the applicant’s submissions is set out below in case it might be thought that a significant aspect was overlooked, even though I have not found it necessary to determine every point that was raised on the applicant’s behalf.

37    In written submissions, in support of grounds 1, 2 and 3, the applicant contended that the Assistant Minister was obliged to assess the level of risk to the Australian community and “weigh this [risk] in the balance against the various discretionary considerations militating against refusal”. The applicant contended in these submissions that the Assistant Minister did not assess the likelihood of his re-offending, as she was obliged to do. In this regard, the applicant relied on the reasons of Rangiah J (with whom North J agreed) in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [12], [43], [66], [72] and [74] and also cited the reasons of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424. This was not a case, so the applicant submitted, in which it was open to the Assistant Minister to take the view that the seriousness of the offending conduct meant that any risk was intolerable and, in any event, the Assistant Minister made no such a finding. The applicant submitted in written submissions that, in the circumstances of his case, the Assistant Minister was obliged to assess the likelihood of his re-offending and that jurisdictional error arose from the fact that she did not do so.

38    Also in written submissions, the applicant relied on these same matters to support his further submissions that jurisdictional error arose from the fact that no reasonable mind, properly informed of the facts, would have reached the decision to refuse him a Bridging Visa E; that the Assistant Minister failed to give proper, genuine and realistic consideration to the factors militating against refusal; and failed to discharge her statutory task.

39    In written submissions the applicant further submitted that no reasonable mind, properly informed of the facts, could have assessed the level of risk to the Australian community to be “great, or even moderate”. Further, the applicant submitted that:

39.4    A reasonable mind, properly informed of the facts, could not have concluded that the need to protect the Australian community outweighed:

a)    the impact upon [the eldest son]; and

b)    the impact upon [the youngest son]; and

c)    the impact upon [the applicant’s spouse], who would lose her husband and have to go on caring for two young children, one autistic, without his financial and emotional support; and

d)    the impact on the applicant himself, who (quite apart from being separated from his family) could not even be lawfully removed to Albania, as his claims for complementary protection still had not been assessed.

40    Further in support of the contention that the decision was unreasonable in the relevant sense, the applicant submitted in written submissions that the Assistant Minister gave no consideration to:

    the views of the sentencing judge that the applicant had “very good” prospects of rehabilitation and posed a “very low” risk of reoffending;

    the fact that the applicant had “not reoffended (and was not suspected of having reoffended) since his release on bail on 12 November 2008, since which date he had spent 2,107 days in the Australian community until he was detained on 20 August 2014”;

    “what the applicant had in fact been doing, during this time, to overcome his financial difficulties and provide for his family (e.g. establishing his painting business and forging links with Church and other community groups)”.

41    Also in written submissions, the applicant contended that, in relation to the “countervailing considerations”, the Reasons contained “no evidence of analysis or engagement”, and there was no “attempt to accord weight to the factors, let along discuss how it is that, in combination, they come to be outweighed by the risk of harm”.

42    In the written submissions filed before the hearing, the applicant also submitted that the Assistant Minister did not understand his migration status. The applicant said:

On the one hand, she appeared to assume that he could be lawfully removed. On the other hand, she remarked that his protection claims could be separately assessed but she clearly did not realise that the Department had failed to do this in the preceding 22 months since Gerardo was granted a Protection Visa. As such, she overlooked the fact that her decision (a necessary consequence of which was to preclude further applications for BVEs) could consign the applicant to a lengthy period in immigration detention.

43    In support of ground 4, the applicant contended in written submissions filed before the hearing that the Department’s submission to the Assistant Minister, especially the Issues Paper, was misleading and that the Assistant Minister’s reliance on it resulted in jurisdictional error. In this regard, the applicant relied on the reasons of Beaumont and Whitlam JJ in Lego Australia Pty Ltd v Paragggio [1994] FCA 571; 52 FCR 542 at 555.

44    At the hearing, the applicant’s counsel submitted that the Reasons disclosed either an unreasonable analysis or that the outcome was itself unreasonable (referring to Avon Downs Pty Ltd v Commissioner of Taxation (Cth) [1949] HCA 26; 78 CLR 353 at 360 (Dixon J). Counsel submitted that “[w]hen in this case there’s an outcome which appears to be unreasonable, one looks to the reasons”, adding:

What one sees is mere adversions to factors and then a mere conclusory statement about how they’re weighed and along the way, in 16, some analysis that clearly doesn’t make sense and doesn’t accord with Australian law. Perhaps I have made my reasonableness submissions in a nutshell just there ...

45    At the hearing, in support of his contention that the decision disclosed jurisdictional error in the nature of legally-relevant unreasonableness, the applicant particularly relied on Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30]; and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47]-[48]. By reference to these authorities, his counsel submitted that “what we have here is essentially tick the box ... but … the court has said ... if something is centrally relevant, you have to deal with it”.

46    In written submissions, the applicant submitted that the matters mentioned in [40] above were of “central relevance to the question of risk” and that it was “difficult to see how a reasonable decision-maker could assess risk without mentioning – let alone grappling with – them”. The applicant contended that it should be inferred that the Assistant Minister overlooked these matters. At the hearing, in support of his contention that the decision disclosed jurisdictional error in the nature of legally-relevant unreasonableness, the applicant’s counsel also submitted that the Assistant Minister failed to address the consequences of the decision for the applicant.

47    In submissions at the hearing in support of ground 4, the applicant’s counsel referred to the Departmental submission date-stamped 2 October 2012 (see [18] above) and to paragraphs [9] and [10] of the Issues Paper. Counsel submitted that these two paragraphs of the Issues Paper contained factually erroneous statements, since the Department, not the applicant and his spouse, had requested Ministerial intervention (contrast the first sentence in [9]) and their son had been granted a protection visa in January 2013, not January 2014 (contrast the first sentence in [10]). As to these mistakes, counsel for the applicant submitted:

[W]hat happens is it’s then packaged up in the submission as something that the department is going to reopen in light of [the applicant’s eldest son] being granted his visa. So the Minister is told, “Well, once this character thing is finished with, there will be an intervention request made, and that will allow the parents’ situation to be considered in light of the son’s being granted a visa.” Now, the son being granted a visa happened many, many, many months earlier, 18, 19 – I haven’t counted, but a long time ago, and in the context of that very event, what the department in the submission is saying to the Minister is about to happen had already taken place, and the decision had been made not to intervene.

So, in my submission, your Honour, these factually erroneous statements create a misleading impression that the Minister does then rely on, in my submission, in that last sentence in paragraph 16 [of the Reasons].

48    At the hearing, counsel for the applicant did not press the submission that there was jurisdictional error on account of a failure to give proper, genuine and realistic consideration to the factors militating against refusal. Rather, in respect of grounds 2 and 3, counsel for the applicant described the jurisdictional error as a failure to discharge the statutory task by failing to have regard to “centrally relevant material”, especially the sentencing judge’s statements about the prospects of rehabilitation and the risk of re-offending. Counsel for the applicant relied on the analyses in such cases as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [18], [61], [67], [70], [71]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; CZBP [2014] FCAFC 105 at [49], [63]-[65]; SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [44], [54]-[55]; SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [11], [32]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [16], [172]; BZAFI v Minister for Immigration and Border Protection [2015] FCA 771 at [32], [37], [39]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51 at [18]; Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 at [28]; and Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; 139 FCR 292.

49    The applicant’s counsel emphasised that the sentencing judge was in a superior position to assess the prospects of rehabilitation and the risk of re-offending. Counsel affirmed that, by the time the Assistant Minister came to make her decision the applicant had in fact spent several years (also amounting to 2,107 days) in the community, from which it might be inferred that the sentencing judge’s assessment was reliable. This was, so counsel submitted, a point of contrast with cases such as Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132; and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513. The applicant’s counsel submitted that, in the circumstances, the applicant’s length of time in the community without offending was “so great as to ... be a centrally relevant consideration to the question of risk”. The applicant’s counsel referred to the material before the Assistant Minister indicating that the applicant was earning an income as a painter prior to the decision under challenge. Counsel stated:

My point here is that, having chosen to look at risk of harm, whether or not that choice was legally compelled doesn’t matter. It was what was done. Having done so, it’s my submission that centrally relevant considerations, given the facts of this case, include the two matters to which I’ve [referred].

50    At the hearing, counsel for the applicant relied on NBMZ 220 FCR 1 in developing his argument that the Assistant Minister failed to have regard to the legal consequences of the decision. Counsel for the applicant drew attention to the fact that the Assistant Minister had neither prepared nor contributed to the draft Statement of Reasons but had simply adopted as her own that which had been prepared by the Department prior to her decision.

51    In this connection, the applicant’s counsel drew attention to the fact that the applicant had not been assessed on either the “blood feud” protection claim or on a claim for complementary protection (accepted in relation to his eldest son). The applicant’s counsel noted that the possibility is alluded to in the Issues Paper and “more vaguely so” in the Minister’s Statement of Reasons that there might be an assessment in the future. Referencing the table in “MFI-1”, counsel for the applicant submitted that it might be inferred that the Departmental request of 8 May 2015, refused by the Minister on 15 May 2015, was action taken by the Department that related to this possibility.

52    Counsel for the applicant submitted that, as a result of the Tribunal’s decision respecting his eldest child, the applicant had a claim for complementary protection and again drew attention to the Departmental submission date-stamped 2 October 2012 (see [18] above), among other things to demonstrate that the applicant could not make an application for complementary protection “without the bar being lifted” under s 48B of the Migration Act. Counsel also relied on that Departmental submission and other documents (including the table in “MFI-1”) to show that over the years numerous requests had been made for Ministerial intervention in the case of the applicant and his spouse but that all of them had failed. Citing Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [200], counsel for the applicant submitted at the hearing that this “has the result that the applicant who hasn’t been considered for complementary protection and therefore can’t be removed [under s 198], just has to sit in detention” until that is dealt with. In this regard, the applicant’s counsel stated:

[T]hat’s why I took your Honour to MFI-1 because it serves to illustrate the point which was one to which the Assistant Minister, were she properly having regard to the issues and facts that were centrally relevant to the question of international obligations in the applicant’s circumstances arising therefrom, would have had regard to, amongst other things, well, what are the potentialities once the applicant is character refused and can never apply for another bridging visa. You would expect some analysis along the lines of, unless I exercise a discretion to lift the bar or give him a visa, he will sit there unable to be removed because of Australian law. Now, your Honour, there’s simply no – there’s just no consideration of any of that.

53    At the hearing, the applicant’s counsel submitted that the analysis in paragraph [16] of the Reasons “proceeds on the assumption that a person can be refouled to a country in respect of which there are protection obligations”. The applicant’s counsel added:

[I]t’s a rather bizarre statement that ... international obligations aren’t relevant to my exercise of discretion here because by the time [the applicant] has been refouled to the country in respect of which he has made complementary protection claims, he won’t have a bridging visa any more. And one might put in parenthesis there, although it doesn’t appear, that whilst he has got his bridging visa he’s lawful so we wouldn’t be removing him. That’s the sort of missing link in the analysis, your Honour, but it’s a flawed analysis because it assumes you can refoule someone other than in the limited circumstances where you can.

54    Both the applicant and the Minister filed supplementary written submissions concerning the applicant’s additional ground that the Assistant Minister failed to have regard to the legal and factual consequences of the decision.

55    In supplementary written submissions, the applicant submitted that the Reasons, whether or not read with the Issues Paper, demonstrated that the Assistant Minister had not understood his situation and the legal consequences of the decision. The applicant contended that his situation was similar to that of the applicants in NBMZ 220 FCR 1 and SZQRB 210 FCR 505, because he could not be lawfully removed to Albania under s 198 of the Migration Act and the Minister had no legal obligation to assess his complementary protection claim. The applicant submitted that the Assistant Minister exercised her discretion to refuse him a Bridging Visa E on the basis that he “might be refouled to Albania” and that this “reflect[ed] a misunderstanding of Australian law in relation to the applicant’s rights as an unlawful non-citizen”. The applicant further submitted that a “distinct but related error” was that the Assistant Minister did not appreciate that a decision to refuse a Bridging Visa E “consigned the applicant to indefinite detention”, a failure to be inferred from the fact that the Assistant Minister did not identify indefinite detention as a consequence of the decision. This was also consistent with her apparent belief that the applicant could be removed from Australia. The applicant noted that the decision had further ongoing consequences, namely, that he was prevented by s 48B and s 501E of the Migration Act from applying for a further bridging visa. The applicant submitted that the Assistant Minister’s errors resulted in jurisdictional error as in NBMZ 220 FCR 1 and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44.

56    The applicant noted that the Minister relied on the fact that the Reasons (and the Issues Paper) specifically mentioned that the applicant’s complementary protection claims could be separately considered and responded that, as in NBMZ, this proposition involved “nothing more than possibility and speculation” and as in NBMZ should be treated as irrelevant. The applicant further submitted that the facts of his case provided “a good example of the dangers in relaxing this approach”. The applicant submitted that:

By the time of the Assistant Minister’s decision, a series of intervention requests commencing in 2008—all of them based on the same account which the applicant hoped to advance in support of his claim for complementary protection – had been refused or not considered. This included a request initiated by the Department itself following the RRT upholding the protection claims of the applicant’s [eldest] son ... In fact, by the time the issues paper (and draft reasons) were sent to the Assistant Minister under cover of a “submission”, the granting of a protection visa to [the applicant’s eldest son] was old news and had been the subject of two unsuccessful requests for intervention. Quite apart from the Assistant Minister having been misled as to this circumstance, there was simply no reason to assume that a further intervention request (if made) would yield a different outcome.

57    The applicant also submitted that “[t]he legal consequence of ‘indefinite’ detention is concerned with the situation in which a person finds themselves” and that, in the circumstances, NBMZ should not be distinguished on the basis that, in contrast to the applicant in NBMZ, he has not yet been assessed as eligible for a protection visa.

The Minister’s Submissions

58    In written submissions filed prior to the hearing, the Minister contended that the applicant’s claim the decision was relevantly unreasonable was not made out and that the applicant “impermissibly ask[ed] the Court to engage in merits review”. Citing Mrayhej [2015] FCA 691 at [56] and Cotterill v Minster for Immigration and Border Protection [2015] FCA 802 at [13], the Minister submitted that the Assistant Minister was not obliged to accept the sentencing judge’s findings about the applicant. The Minister also submitted that the basis for the decision was clear – that the applicant represented a risk of harm to the Australian community and the protection of the Australian community outweighed the countervailing considerations, including the interests of his family members – and that this reasoning was open on the available material.

59    Citing the same considerations, the Minister contended in these written submissions that the decision did not disclose jurisdictional error by reason of a failure on the part of the Assistant Minister to give proper, genuine and realistic consideration to factors militating against the decision.

60    In written submission, the Minister submitted in relation to ground 4:

The Issues Paper was not misleading. It provided information to the Assistant Minister by reference to various attached documents. The Assistant Minister had regard to the attachments to the Issues Paper. The applicant has not indicated how those attachments would not have made clear to the Assistant Minister any matters to which she had regard. Further, and in any event, the applicant has not shown how any aspect of the Issues Paper might have given rise to jurisdictional error affecting the Assistant Minister’s decision. The applicant does not assert that the Assistant Minister misconstrued or misapplied s 501 of the Act. In particular, he does not assert that, as a consequence of the Issues Paper, the Assistant Minister somehow failed to take into account a consideration which she was bound to take into account or took into account a consideration which she was bound not to take into account.

61    At the hearing, in relation to ground 4, the Minister submitted that the Issues Paper was not misleading, for “two core reasons”. First, his counsel said that the Issues Paper referred to the sentencing remarks and the judge’s view that “there was otherwise no record of criminal conduct, that this was isolated and, therefore, the inference is that it was suggestive of there not necessarily being any great risk of recidivism”. Secondly, the Minister’s counsel said that the Issues Paper “clearly referred to the sentencing remarks and directed attention to those sentencing remarks, such that it can’t be said that the Assistant Minister would not have, herself, read them. And those sentencing remarks, once read, would have made clear what the sentencing judge’s opinion was in respect of the likelihood of rehabilitation”.

62    At the hearing, the Minister contended that no error was disclosed in paragraph [16] of the Reasons, referring to paragraphs [10] and [11] of the covering Issues Paper. Counsel submitted that the Assistant Minister considered the legal consequences of the decision. He emphasised that the discretion conferred on the Minister by s 501 was unfettered. He drew attention to the fact that NBMZ 220 FCR 1 concerned protection obligations but this case only concerned a bridging visa. He also submitted that NBMZ held only that indefinite detention was a relevant legal consequence that a decision-maker was required to consider and that this case was different because the Assistant Minister left open the possibility the applicant’s complementary protection claim would receive consideration at a later date. Counsel submitted that, in making the decision, “all that was at stake at the relevant time was whether or not he was in the community or in detention pending some request”. He referred to paragraph [15] of the Reasons and paragraph [10] of exhibit “A1” in support of the proposition that the Assistant Minister was aware of the claims that were available to the applicant and his spouse if the bar were lifted under s 48B.

63    Also at the hearing, counsel for the Minister further submitted that the Assistant Minister had expressly taken account of the risk of harm to the Australian community and was not obliged to assess the risk of harm in any specific way, citing Moana 230 FCR 367 at [1], [71], [74]-[79] and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88 at [41]. The Minister emphasised at the hearing that no jurisdictional error was disclosed in the assessment of risk that led to the decision.

64    As to the sentencing judge’s remarks on rehabilitation and risk of re-offending, counsel for the Minister referred to paragraphs [11] and [19] of the Reasons and to paragraph [39] of the Issues Paper, in support of the proposition that the Assistant Minister acknowledged that the available information did not indicate that the applicant was a habitual criminal offender. In this regard, the Minister also relied on Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505, especially at [74]-[76]; Te Puke v Minister for Immigration and Border Protection [2015] FCA 398; 230 FCR 499 at [96]-[97]; Moana 230 FCR 367 at [71]-[79]; and Brown 235 FCR 88 at [41]. Counsel for the Minister submitted that, when viewed fairly and having regard to all the material, it could not be said that the Assistant Minister failed to consider the remarks of the sentencing judge. Counsel referred to Mrayhej [2015] FCA 691 at [56] and stated:

And the sentencing remarks were attached to the relevant submission, the issues paper. They’re referred to in the issues paper. They’re quoted in the issues paper. The relevant point that my learned friend seeks to draw upon from the sentencing remarks wasn’t necessar[il]y referred to expressly but it’s alluded to through the other quote that I’ve taken your Honour to in the submissions, the issues paper. The decision itself refers to the sentencing remarks of the judge.

65    In supplementary written submissions, the Minister contended that NBMZ 220 FCR 1 should be distinguished on its facts from the applicant’s case on the basis that the applicant in NBMZ had been assessed as a person to whom Australia owed protection obligations. The Minister submitted that since the applicant had not been found to be owed protection obligations, no issue of non-refoulement or of indefinite detention arose at the time of the decision. Furthermore, the Minister submitted that, in NBMZ, the Minster had not considered the possibility that any visa would be granted to that applicant in the future, but, in this case, the Assistant Minister had considered such a possibility, as demonstrated by the materials before her and in paragraph [16] of the Reasons. The Minister submitted that the circumstances of the applicant were more akin to those considered in Jaffarie v Director General of Security [2014] FCAFC 102; 226 FCR 505, in which NBMZ was distinguished on the basis that the applicant in Jaffarie had not sought a protection visa and therefore Australia’s non-refoulement obligation had not been enlivened. The Minister also relied on the decision in Ayoub 231 FCR 513, especially at [19], noting that NBMZ was distinguished there on the basis that the Minister had considered the issue of non-refoulement and the prospect of indefinite detention.

consideration

66    As will be seen, the submissions, especially the applicant’s submissions, in this case were varied and broad-ranging. It is neither necessary nor useful to consider them all. It suffices to find, for the reasons set out below, that jurisdictional error vitiated the decision on the basis that the Assistant Minister was required to take into account that the legal consequences of the decision included the prospective indefinite detention of the applicant, and that she did not do so.

67    Section 501 of the Migration Act empowers the Minister or his delegate to refuse a visa on character grounds. The provision relevantly provides:

Decision of Minister or delegate—natural justice applies

(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.

…

Character test

(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)); …

…

Substantial criminal record

(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; …

68    The Assistant Minister found, and the finding was not challenged, that the applicant did not pass the character test because he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act, because he had been sentenced to two years’ imprisonment, wholly suspended: see s 501(7)(c).

69    Once that determination was made, the Assistant Minister had a discretion under s 501(1) to decide whether or not to refuse the visa the applicant sought. This is a broad discretion. Nonetheless, as Allsop CJ and Katzmann J said in NBMZ 220 FCR 1 at [6] and [8], the discretion is confined by the subject matter, scope and purpose of the Migration Act. This means that certain matters must be taken into account and that the Minister may not, in supposed exercise of the discretion, “act arbitrarily, capriciously or legally unreasonably”.

70    In order for a non-citizen to enter and remain in Australia, he or she must have a visa, which, as s 29 of the Migration Act indicates, is a grant by the Minister of permission to enter and remain in the country.

71    The Migration Act contemplates that there are classes of visas, for which criteria may be prescribed by the Migration Regulations 1994 (Cth) (Regulations): s 31. A non-citizen who wants a visa must apply for a visa of a particular class: s 45(1). The decision under challenge was directly concerned with a bridging visa, for which the applicant applied on 20 August 2014. Section 37 makes provision for classes of visas, known as “bridging visas”. At the time the decision was made, s 73 provided that, if the Minister is satisfied that an eligible non-citizen satisfied the criteria for a bridging visa, the Minister “may grant a bridging visa permitting the non-citizen to remain in, or travel to, enter and remain in Australia ... during a specified period ... or ... until a specified event happens”.

72    The visa for which the applicant applied fell within Class WE. In a note entitled “Bridging Visa E – legal framework”, which the Minister provided shortly before the hearing at the Court’s request, the Minister described the operation of the Regulations with respect to visas of this class as follows:

The BVE [Bridging Visa E] falls within Class WE. Pursuant to item 1305 of Schedule 1 to the Regulations, this class of visa contains two subclasses: Subclass 050 (Bridging (General)) and Subclass 051 (Bridging (Protection Visa Applicant)). As Subclass 051 is specifically for persons who have been refused, or have bypassed immigration clearance and have sought a protection visa, only Subclass 050 is relevant to the applicant’s circumstances in the present case.

The criteria for a Subclass 050 visa are set out in Part 050 of Schedule 2 to the Regulations. All applicants must satisfy the primary criteria.

The primary criteria to be satisfied at the time of application for a Subclass 050 visa include that the applicant is an unlawful non-citizen, or already the holder of a BVE, or the holder of a Subclass 041 visa. The applicant must not be an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10) or (11): cl.050.211.

The applicant must meet one of the alternate sub criteria in cl.050.212, known as the ‘grounds’ for seeking a BVE. In summary, these require that:

•    the applicant is making, or is the subject of, acceptable arrangements to depart Australia: cl.050.212(2); or

•    the applicant has made an application, or will apply, within a period allowed by the Minister, for a substantive visa of a kind that can be granted if the applicant is in Australia: cl.050.212(3); or

•    there is an outstanding application under s.137K of the Act; or an application for merits or judicial review of a specified decision, or an application for a specified court declaration. Alternatively, the Minister is satisfied that (court applications excepted) such application will be made: cl.050.212(3A), (4), (4AAA), (4AA), (4AB), (9); or

•    the applicant held a visa that was cancelled under s.140 of the Act as the result of the cancellation of another person’s visa, and that other person has applied for revocation of the cancellation of their visa, or merits review in relation to the cancellation or decision not to revoke, or the Minister is satisfied they will do so: cl.050.212(5), (5A); or

•    the applicant has made a request to the Minister under ss.48B, 345, 351, 391, 417 or 454 of the Act in relation to certain decisions and has not previously sought or been the subject of such a request, or the Minister has exercised such powers favourably but the grant of the visa is prevented by s.85 of the Act: cl.050.212(5B), (6), (6AA) (6B); or

•    the applicant holds Bridging Visa E in certain circumstances and the Minister is satisfied that the applicant has a compelling need to work; cl.050.212(6A), (8); or

•    the applicant is in criminal detention, and if sentenced to imprisonment or detention, has actually served a period of imprisonment and no criminal stay certificate or warrant is in issue: cl.050.212(7).

At the time of decision, the applicant must also meet the following criteria:

•    the applicant continues to satisfy the criteria set out in cl.050.211 and 050.212: cl.050.221

•    except in certain circumstances, the applicant has been interviewed by an authorised officer: cl.050.222

•    the Minister is satisfied that if a bridging visa is granted, the applicant will abide by the conditions imposed on the visa: cl.050.223; and

•    a security (if requested by an authorised officer) has been lodged: cl.050.224.

73    The note stated that, in the applicant’s case, the relevant “ground” for seeking a Bridging Visa E was cl 050.212(2), “making acceptable arrangements to leave Australia”. Referring to the Department’s Procedures Advice Manual 3 (PAM), the note indicated that PAM provided that “BVE applicants who are no longer eligible on the grounds of Ministerial Intervention may be considered for the grant of a BVE on departure grounds” and that “grounds” relating to requests for Ministerial intervention were no longer available to the applicant because such “grounds” were only applicable to the first request for intervention.

74    Although the applicant did not contest the above account of the operation of the Regulations, its correctness should not be assumed. I refer to the account particularly to emphasise the complexity of the visa regime apparently applicable in the applicant’s case and its unwieldy nature. It may be that this complexity led to the confusion in paragraph [16] of the Reasons, where the Assistant Minister stated:

I find however, that even if [the applicant] is owed protection obligations, this has no bearing on his application for a Bridging E (Class WE) visa, on the basis that any harm he may face in his country of nationality could only take place after he has been removed from Australia, by which time the Bridging E (Class WE) visa, if granted, would have expired. A decision to refuse [the applicant]’s application for a Bridging E (Class WE) visa would not result in the automatic denial of protection to [the applicant], which can be considered separately.

75    As this passage indicates, in this case, the legislative context also included provisions relevant to protection visas. It is necessary to refer to some of them at this point to highlight the nature of the jurisdictional error that the decision involved.

76    Section 36 makes provision for the class known as “protection visas”. The applicant was refused a protection visa on 21 October 2005 on the basis of a claim that he has said to be false since some time in 2008. His explanation for not making a true claim in the first place is intimately connected with nature of that claim, the gist of which is that, if returned to Albania, he will face a real risk of significant harm because of a blood feud involving him and his family, which came into being when he and his spouse eloped after her father had promised her in marriage to another man against her will.

77    The decision to refuse him a protection visa in 2005 was made well before the introduction of the complementary protection criterion in s 36(2)(aa) of the Migration Act (which was effective from 24 March 2012). This is relevant because, on 7 September 2012, the independent merits review tribunal (see [17] above) accepted that there was a blood feud involving the applicant, his spouse and their family, as the applicant claimed, and that on this basis the applicant’s eldest son was a person in respect of whom Australia had protection obligations under the complementary protection criterion in s 36(2)(aa) of the Migration Act.

78    When the Department, by its submission date-stamped 2 October 2012 (see [18] above), sought the Minister’s intervention almost immediately after this tribunal decision, it recognised that the blood feud claim extended to all members of the applicant’s family. It specifically noted “[t]o a significant degree, [the eldest son’s] protection claims derive from the protection claims of his parents”. The submission also impliedly recognised that it was possibly desirable for the legal position of the parents and son be addressed at the same time. The submission stated:

Under regulation 866.221(3), a person who is in the same family unit as a person who has been found to be owed protection in Australia, may be joined to that person’s PV application. Under regulation 866.112, this includes the parents of a child. [The applicant and his spouse] are members of [their son’s] family unit. Both have had unsuccessful protection applications and are therefore barred from making a further application. ...

It is open to you to lift the section 48A bar in respect [of the applicant and his spouse] so that they can be joined to [their son’s] PV application. This would permit all family members to be considered holistically through the PV process and may result in prompt resolution of their status.

...

The Department considers that intervention under section 48B may be appropriate in this case. [The applicant and his spouse] are parents of a minor child who has been found to be owed protection in Australia

Should you lift the bar under section 48B, they will be added as members of the family unit in their son’s application and the family will be considered as a unit.

79    Notwithstanding this and other requests for Ministerial intervention, the applicant’s claim that, if returned to Albania, he will face a real risk of significant harm because of the blood feud that led to the acceptance of his eldest son’s status a person in respect of whom Australia has protection obligations, has never been assessed.

80    As the Department’s submission recognised, at all relevant times, once his initial application for a protection visa had been refused, s 48A of the Migration Act applied. As the submission indicated, at the relevant time, the Department apparently understood that, unless the “bar” was lifted by the Minister under s 48B, s 48A operated to prevent the applicant from making a further application for a protection visa. Consequently, at this time, the Department would not have accepted a further application for a protection visa from the applicant unless the Minister exercised the discretion conferred by s 48B to determine that the bar in s 48A did not apply to him.

81    For present purposes, it is immaterial that the understanding of s 48A was held to be incorrect in significant respects in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235: see also SZVCH v Minister for Immigration and Border Protection [2016] FCAFC 127. This is because, at the time the Assistant Minister made the decision on 12 November 2014, amendments to s 48A had come into force that were designed to undo SZGIZ 212 FCR 235: see the Migration Amendment Act 2014 (Cth), effective from 28 May 2014. Item 5 of Schedule 2 of that amending Act provided that s 48A as amended applied to making a (second) “application for a protection visa” after that date.

82    At the time of the decision, s 48A relevantly provided:

(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

(b)    applications for protection visas, where the grants of visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

…

(1C)    Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:

(a)    the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;

(b)    whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;

(c)    the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;

(d)    the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.

83    Thus, a legal consequence of the refusal of the applicant’s protection visa application in 2005 was that, by virtue of s 48A of the Migration Act, the applicant was barred from making any further application for a protection visa, unless the Minister exercised the discretion conferred by s 48B to determine that the bar in s 48A did not apply to him. The applicant was (and remains) unable to make a second application for a protection visa on the basis that he satisfies the criterion in s 36(2)(aa) of the Migration Act, on the very same basis as his son.

84    As already noted, the applicant and the Department have requested Ministerial intervention under s 48B or s 417 of the Migration Act on numerous occasions in 2008 and thereafter. Under s 417 it is open to the Minister, if he or she thinks it is in the public interest to do so, to substitute a decision that is more favourable to an applicant in place of a Tribunal decision, within the terms of s 417. All these requests have been declined.

85    The immediate legal consequence of a decision to refuse an application for a visa is that an applicant in Australia, such as this applicant, is not given permission to remain. The present applicant does not have any other visa: cf s 501F. By operation of the Migration Act, he is an unlawful non-citizen because he is present in the migration zone without a visa. Section 189 of the Migration Act requires that in this circumstance he be detained in immigration detention. Section 198 further requires that he be removed from Australia as soon as reasonably practicable. The operation of s 198 is, however, subject to the operation of the general law.

86    At the time of the decision, an unlawful non-citizen could only be removed from Australia under s 198 of the Migration Act if that person’s claim to protection under Australia’s obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention), the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the 1966 International Covenant on Civil and Political Rights (ICCPR) had been “assessed and, if necessary, reviewed in a process which accords that person procedural fairness and addresses the correct question by reference to Australian law”: SZQRB 210 FCR 505 at [200] per Lander and Gordon JJ, citing Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [95]-[98], [239]. Furthermore, for reasons of the kind set forth in NBMZ 220 FCR 1, notwithstanding the terms of s 198 of the Migration Act, it would not be a lawful exercise of power to return a person to a place where his life or freedom was endangered contrary to Art 33 of the Refugees Convention or relevant provisions of the CAT and the ICCPR: NBMZ 220 FCR 1 at [13]-[14], [80]-[96].

87    At a general level, as the Court said in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 at [61], the complementary protection provisions of the Migration Act were enacted to give effect to international obligations, including those arising under the CAT and the ICCPR. The applicant has an apparently well-based claim to meet the complementary protection criterion in s 36(2)(aa) of the Migration Act, bearing in mind that the independent merits review tribunal has previously accepted that the applicant’s eldest son is a person in respect of whom Australia has protection obligations under the complementary protection criterion in s 36(2)(aa) on the basis of a blood feud involving the applicant and his family. It would not have been a lawful exercise of power to return him to Albania without first assessing this claim and, if need be, allowing for a review of a decision on the claim, according to law.

88    Hence the decision had the legal consequence that the applicant was required to be detained indefinitely, bearing in mind that s 48A precluded a further protection visa application and it was unlawful to remove him to Albania without first assessing his complementary protection claim. There is no reference in the covering submission, the Reasons, or the Issues Paper, to this legal consequence. As Allsop CJ and Katzmann J said in NBMZ 220 FCR 1 at [16]:

A material omission from a briefing paper may affect the decision-making process based on it: [Minister for Aboriginal Affairs v] Peko-Wallsend Ltd [(1986) 162 CLR 24] at 30-31, 45 and 65-66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the [Migration] Act and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [37], [69], [89] and [133].

In the present case it is to be inferred from the Reasons of the Assistant Minister that she did not consider or take into account that, if a bridging visa were refused, the applicant would face the prospect of indefinite detention.

89    It is possible that the Assistant Minister misunderstood the operation of the Migration Act and the nature of the decision she was required to make, and therefore the considerations that the Migration Act required her to take into account were not addressed. Paragraph [16] of the Reasons may indicate that the Assistant Minister proceeded on the mistaken assumption that the applicant could lawfully be returned to Albania without an assessment of his claim to meet the complementary protection criterion in s 36(2)(aa). Curiously, in light of the repeated refusals of requests for Ministerial intervention under s 48B and s 417, in referring to the possibility that the applicant’s protection claim could be “considered separately” the paragraph did not mention the bar created by s 48A. This strengthens the inference that, at this critical point and in this context, the statutory bar was overlooked.

90    The Assistant Minister was required to take into account the legal consequences of her decision, which, as explained, included indefinite detention. To adopt the language of Allsop CJ and Katzmann J in NBMZ 220 FCR 1 at [9], in making a decision under s 501(1) of the Migration Act:

The Minister must take into account the [Migration] 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.

91    The Court in NBMZ 220 FCR 1 held that the Minister’s failure to have regard to the legal consequence of a decision under s 501(1) to refuse a visa – namely, the prospect of the applicant’s indefinite detention – resulted in jurisdictional error: see NBMZ 220 FCR 1 at [17] (Allsop CJ and Katzmann J) and [177]-[179] (Buchanan J). The circumstances of this case are relevantly indistinguishable from those under consideration in NBMZ.

92    I reject the Minister’s submission that the circumstances in this case were relevantly different from NBMZ. In this connection, the Minister relied on references in the covering submission and in the Issues Paper to the status of the applicant’s eldest son as the holder of a protection visa and the claim made by him, and to statements that a prospective submission on Ministerial intervention would be prepared “after the current s501 matter has been resolved” (covering submission, paragraph [11]) or “following resolution of the current s501 consideration” (Issues Paper, paragraphs [10], [57]). The covering submission mentioned the applicant’s unsuccessful requests for Ministerial intervention under s 417. The Issues Paper stated that “former Minister Bowen decided not to intervene to grant [a s 48B] request” on 2 January 2013 (paragraph [9]) and that the applicant’s “several subsequent requests to be permitted to lodge further applications for a protection visa have not been successful” (paragraphs [13], [56]). Indeed, the genesis of paragraph [16] of the Reasons can be seen in paragraph [58] of the Issues Paper, which stated in terms that re-appeared in paragraph [16] of the Reasons:

However it is open to you to find that even if he is owed protection obligations, this would have no bearing on [his] application for a Bridging E (Class WE) visa, on the basis that any harm he may face in his country of nationality could only take place after he has been removed from Australia, by which time the Bridging E (Class WE) visa, if granted, would have expired. A decision to refuse [his] application for a Bridging E (Class WE) visa would not result in the automatic denial of protection to [the applicant] and his spouse, which can be considered separately.

93    As observed above in respect of the Reasons, these statements indicated a misunderstanding about the operation of the Migration Act, the nature of the decision to be made and the considerations to be taken into account. This paragraph, like the equivalent paragraph [16] in the Reasons, indicates that its author may have proceeded on the mistaken assumption that at that time the applicant could lawfully be returned to Albania without an assessment of his claim to meet the complementary protection criterion in s 36(2)(aa). The failure to refer at this point to the bar on any further application for a protection visa created by s 48A indicates that its author may have overlooked the applicant’s inability to have his complementary protection claims assessed. None of the matters to which the Minister referred persuade me that this case can be distinguished from NBMZ on the basis that in this case the Assistant Minister considered the possibility of a visa being granted to the applicant in the future.

94    As already observed, numerous requests for Ministerial intervention had been previously made under s 48B and s 417. All had failed. The Reasons do not lend any support to an assumption that the Minister would determine to exercise the discretion under s 48B (or s 417) differently in the future. The possibility that there might be a further successful request for Ministerial intervention was, at best, speculation: cf NBMZ 220 FCR 1 at [4] (Allsop CJ and Katzmann J) and [129] (Buchanan J). The speculative nature of the possibility that the Minister might accede to a request under s 48B or s 417 was emphasised by the answer given by counsel for the Minister in response to my question about entries for 8 and 15 May 2015 in the table in “MFI-1”: see paragraph [34] above. In this response, counsel indicated that there had been other unsuccessful requests to allow the applicant to submit a further application for a protection visa. Counsel for the Minister stated, in effect, that numerous requests had been made for Ministerial intervention under s 48B or s 417, including in August and November 2015, and that they had failed. He further observed that “there’s no compulsion on the part of the Minister to deal with that request” and “[t]he Minister doesn’t even have an obligation to consider it”, adding “that doesn’t necessarily preclude some further request being made down the track; it doesn’t preclude the possibility of the Minister giving consideration to it. I don’t say whether that would occur or not. That’s ultimately a matter for the Minister.” Bearing this in mind, whether a request for Ministerial intervention might at some future date prove successful was a matter of mere speculation.

95    Further, this case cannot be distinguished from NBMZ on the basis that the applicant had not been assessed as a person to whom Australia owed protection obligations: cf Jaffarie 226 FCR 505. In Jaffarie 226 FCR 505 at [128] White J explained that, in his view, there was a difference between the applicant in that case and NBMZ because “[a]lthough the present applicant has asserted that his life will be endangered if he is returned to Afghanistan, he has not sought a protection visa. Australia’s obligation of non-refoulement has not been enlivened. In that circumstance, the legal consequence of the Minister’s decision is more likely to be deportation rather than indefinite detention ...”. Furthermore, his Honour found (at [129]) that the applicant had not established that the Minister failed to have regard to the consequence of his decision. There is no mention of NBMZ in the joint judgment of Flick and Perram JJ in Jaffarie. In the present case, however, the applicant was facing indefinite detention since the applicant claimed to satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act, a proposition enhanced by the fact that the applicant’s son was assessed as being a person to whom Australia owes protection obligations on the basis of his father’s claim; but the Minister repeatedly declined to act under s 48B to allow the applicant to make an application for a protection visa on that basis.

96    Furthermore, the decision of the Full Court in Ayoub 231 FCR 513 does not support the proposition that NBMZ should be distinguished from the present case. The Court in Ayoub held that the Minister had in fact considered the prospect of indefinite detention as a consequence of cancelling the applicant’s visa and Australia’s non-refoulement obligation: Ayoub at [17]. In addition, although the applicant claimed to fear for his and his family’s safety if returned to Lebanon, he did not claim to be a refugee and had not applied for a protection visa: Ayoub at [16]. The Full Court held that indefinite detention was not a consequence of the decision under challenge in that case, since, by reason of s 501E, it remained open to the applicant “to make a future application for a protection visa”: Ayoub at [19]-[20]. In the present case, as noted above, the applicant was barred from making a future application for a protection visa.

97    The Assistant Minister was required to take into account the legal consequences of her decision. In the circumstances of the applicant this included indefinite detention, as a result of ss 189, 196 and 198 of the Migration Act and Australia’s obligations under the Refugees Convention, CAT and ICCPR. The Assistant Minister could not lawfully ignore this consideration: NBMZ at [17], [137].

98    Jurisdictional error is therefore clearly shown. It vitiates the decision; and the applicant has made out ground 5 of his FAOA. In view of this conclusion, it is unnecessary to consider the numerous other grounds on which the applicant challenged the decision.

99    In a footnote to the Minister’s supplementary submissions filed after the hearing, the Minister noted that, on 16 December 2014, s 197C of the Migration Act came into effect. That section was said to provide that, for the purposes of removal under s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”. As the Minister noted, the provision was not in force at the time of the decision. Its effect on any future decision is also speculative.

100    One further matter requires attention. This is the admissibility of “MFI-1”. It was common ground that this was a document prepared by the Department dated 7 September 2015. At the hearing, counsel for the applicant sought to tender the document, which became “MFI-1”. The Minister objected to its tender on the basis of relevance. The Minister submitted, and I accept, that the Assistant Minister did not have the document at the time she made the decision and that it included information that post-dated the decision. The applicant relied on a table in “MFI-1” to show that, there had been numerous unsuccessful requests for Ministerial intervention in 2008 and thereafter, including in May 2015 after the decision of the Assistant Minister. Neither party suggested that the table was unreliable. As may be inferred from the reasons stated above, I accept that the table in “MFI-1” was relevant and, bearing in mind no other objection was taken, this part of the document was admissible: see s 56(1) of the Evidence Act 1995 (Cth). I accept that, as the applicant contended, the table was relevant because it showed the dates on which requests for Ministerial intervention under s 48B or s 417 had been made and rejected and, as appears from the foregoing reasons, this matter was relevant to ground 5 of the FAOA. This evidence confirmed that the possibility that the Minister might exercise the discretion under s 48B of the Migration Act to intervene to lift the bar created by s 48A or otherwise in the applicant’s favour was no more than speculation.

disposition

101    For the reasons stated, the orders I would make are:

1.    The time in which the applicant may apply to the Federal Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Migration Act 1958 (Cth) be extended to 8 December 2015.

2.    The proposed Further Amended Originating Application for review of a migration decision stand as an application for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Migration Act 1958 (Cth) and be treated as having been filed in the Court on 8 December 2015.

3.    The decision of the Assistant Minister made on 12 November 2014 to refuse an application by the applicant for a Bridging E (Class WE) visa be quashed.

4.    The table outlining the applicant’s migration visa history at pp 2-3 of “MFI-1” be admitted into evidence.

5.    The respondent pay the applicant’s costs of and incidental to the application, as agreed or taxed.

Associate:

Dated:    25 October 2016