FEDERAL COURT OF AUSTRALIA

NKWF v Minister for Immigration and Border Protection [2018] FCA 409

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for judicial review is allowed.

2.    The decision of the Administrative Appeals Tribunal (the Tribunal) dated 7 June 2017 is set aside.

3.    The applicant’s application for review dated 25 March 2017 is remitted to the Tribunal to be determined according to law.

4.    The first respondent is to pay the applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    The applicant is a citizen of Afghanistan. During the period when Allied forces, which included Australian forces, were engaged in military operations in Afghanistan, the applicant provided support services to the Allied forces in Afghanistan as a translator. He subsequently left Afghanistan. In November 2012, the applicant arrived in Australia by boat as a refugee and was granted a Bridging (General) visa (bridging visa).

2    In May 2016, the applicant applied for a Subclass 790 Safe Haven Enterprise (Class XE) visa (safe haven visa). That application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) because the applicant did not pass the character test. On review, the Administrative Appeals Tribunal (the Tribunal) upheld the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

background

3    The applicant arrived in Australia on 1 November 2012 on a boat as an illegal maritime arrival and was held in immigration detention until 13 December 2012 when he was granted a bridging visa. In June 2015, a bridging visa which the applicant had been granted 12 months earlier expired. Thereafter, the applicant was in Australia unlawfully.

4    On 19 June 2015, the applicant was arrested for armed robbery and remanded in custody and held in Hakea Prison, Western Australia, until 1 February 2016.

5    On 1 February 2016, the applicant pleaded guilty to a charge of armed robbery in the Supreme Court of Western Australia. Corboy J sentenced the applicant to two years and three months imprisonment, fully suspended for a period of 15 months. The applicant was then immediately returned to immigration detention. The applicant has been in immigration detention ever since.

6    On 26 May 2016, the applicant applied for the safe haven visa. At the time, the requirements for the grant of a safe haven visa included the requirement that the Minister be satisfied that a criterion in s 36(2) of the Migration Act 1958 (Cth) (which set out the criteria for the grant of a protection visa) was satisfied; and, also, that the applicant satisfied the public interest criteria in relation to character.

7    The applicant sought the safe haven visa on the basis that he feared persecution from the Taliban if returned to Afghanistan as he had translated for English-speaking foreign troops and so was considered “a spy and an infidel” by the Taliban. He also claimed to fear persecution from the Taliban on the basis of his Hazara ethnicity.

8    On 11 August 2016, following an International Treaties Obligations Assessment (ITOA), the Department of Immigration and Border Protection (the department) determined that Australia owed non-refoulement obligations in respect of the applicant. This was made on the basis that the applicant had provided translation services to the Allied forces during the war in Afghanistan. As a result, Australia would be in breach of its non-refoulement obligations if it removed the applicant to Afghanistan.

9    On 23 December 2016, as a consequence of the applicant’s criminal conviction, the department sent the applicant a notice of intention to consider refusing the applicant’s safe haven visa application under s 501(1) of the Migration Act 1958 (Cth) and inviting comment from the applicant as to whether he passed the character test.

10    On or about 3 February 2017, written submissions were made to the department on behalf of the applicant by Ms Natasha Dubauskas-Reed of Playfair Visa and Migration Services. These submissions referred to the fact that the applicant had provided translation services to the Allied forces in Afghanistan.

11    On 21 March 2017, the delegate of the first respondent refused to grant the safe haven visa to the applicant.

12    The applicant was then detained as an unlawful non-citizen under s 189 of the Migration Act.

the tribunal review

13    On 25 March 2017, the applicant applied to the Tribunal for a review of the delegate’s decision to refuse the applicant’s safe haven visa application.

14    On 19 May 2017, submissions on behalf of the applicant were forwarded to the Tribunal. The submissions were contained in a letter from Ms Victoria Martin-Iverson of Portal Migration Assistance. The submissions comprised 48 paragraphs. At the heart of the submissions was the contention that the applicant had assisted Allied forces in Afghanistan and this was a relevant consideration which militated in favour of granting the applicant a safe haven visa. The submissions concluded as follows:

46.    The applicant presents a very low risk of re-offending, has committed a singular albeit serious offense [sic], but did not physically harm the victim. He did not prey on a young, disabled or elderly (vulnerable) victim. He has expressed remorse for his crime. The applicant provided an extraordinary service to NATO, and thus Australian forces, and at tremendous personnel [sic] cost. The consequence of visa refusal is return to Afghanistan, which will abrogate non-refoulement obligations, and place the applicant at risk of persecution or serious harm as a consequence of that service.

47.    The consequences to the applicant of visa refusal are severe, and go well beyond what the nature of the offense [sic] would mandate. The Judge in his criminal trial fully suspended the sentence of imprisonment. It is submitted that as per para 11.1.2(4) of Direction 65 there are strong compassionate reasons for granting the 5 year SHEV visa.

48.    It is contended that in weighing up all the primary and other relevant considerations the correct and preferable decision for the Tribunal is that the decision to refuse the applicant’s visa be revoked and the visa be granted.

15    The Tribunal hearing took place on 29 May 2017.

16    On 7 June 2017, the Tribunal dismissed the applicant’s review application and refused to grant the applicant a safe haven visa.

application for judicial review

17    On 10 July 2017, the applicant applied for judicial review of the Tribunal’s decision.

18    The amended grounds of review are as follows:

1.    The Administrative Appeals Tribunal’s (AAT) purported decision was vitiated by jurisdictional error in that the AAT misdirected itself as to the legal consequences of refusing the Applicant’s application for a protection visa, thereby constructively failing to exercise jurisdiction.

2.    The AAT’s purported decision was vitiated by jurisdictional error in that the AAT failed to consider the Applicant’s written submissions, thereby denying the Applicant procedural fairness.

3.    The AAT’s purported decision was vitiated by jurisdictional error in that the AAT failed to engage with a written submission that the Applicant’s services to Allied forces in Afghanistan, an uncontested fact, was relevant to the “expectations of the Australian community” under Ministerial Direction 65.

The first ground of review

19    By ground one of the grounds of review, the applicant impugns the Tribunal’s decision insofar as the Tribunal considered Australia’s non-refoulement obligations in respect of the applicant in determining whether to grant the applicant a safe haven visa. This consideration is one of the considerations which the Tribunal is required to take into account under cl 12 of Ministerial Direction no 65, “Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA”, made under s 499 of the Migration Act.

20    The Tribunal accepted that, in accordance with the ITOA referred to at [8] above, Australia owed non-refoulement obligations in respect of the applicant.

21    In support of this ground of review, the applicant contended that the Tribunal had, in assessing the consequences for the applicant of refusing his safe haven visa application, misapprehended the law. More specifically, the applicant contended that the Tribunal had misapprehended the effect of s 197C of the Migration Act and the effect of the decision in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16).

22    It is necessary to refer very briefly to the statutory framework insofar as it affects a non-citizen in respect of whom non-refoulement obligations are owed.

23    Section 198 of the Migration Act requires that an officer of the department must remove an unlawful non-citizen (in the position of the applicant) whose visa application has been refused “as soon as reasonably practicable”.

24    Section 197C of the Migration Act provides as follows:

(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.

25    Section 189(1) of the Migration Act provides as follows:

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

26    These sections were the subject of consideration in DMH16. In that case, North ACJ set aside the decision of the Minister to refuse to issue a protection visa to a Syrian citizen.

27    In DMH16, as in this case, the department had found that Australia owed non-refoulement obligations in respect of the visa applicant.

28    The Minister’s reasons for refusing the visa revealed the Minister was of the view that if the applicant’s visa was refused then, notwithstanding s 197C of the Migration Act, the visa applicant could be detained in immigration detention for an indefinite period. Thus, by this means, the visa applicant would not be removed from Australia and Australia would not breach its non-refoulement obligations.

29    North ACJ found that the Minister had misconstrued s 197C and s 198 of the Migration Act. At [26] of DMH16, North ACJ observed:

[B]y the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.

30    The alternative management options to which North ACJ referred were two-fold. First, the exercise of the power under s 195A of the Migration Act which gives the Minister power to grant a visa to a person who is in immigration detention; and second, the exercise of the power under s 197AB of the Migration Act which gives the Minister power to make a “residence determination” that the person is to reside at a specific place instead of being held in immigration detention. Each of these powers is a power which is to be exercised by the Minister personally and the Minister is under no duty to exercise either of those powers.

31    At [30] of DMH16, North ACJ observed that at the time that the Minister made the decision to refuse the protection visa, the Minister had not decided to consider either or both of the alternative management options. Accordingly, at the time that the Minister made the refusal decision, the consequence of the decision was not a short period of immigration detention but rather the removal of the visa applicant to Syria.

32    North ACJ went on to find that had the Minister properly understood the consequence of the refusal of the protection visa, there was a possibility that the Minister would have granted the protection visa in order to avoid the consequence that the applicant would be returned to Syria in contravention of Australia’s non-refoulement obligations in respect of the applicant.

33    There has been no appeal by the Minister from the judgment in DMH16.

34    The applicant’s contention is that the Tribunal, like the Minister in DMH16, failed to appreciate that the consequence of it refusing to grant the applicant a safe haven visa was that, pursuant to s 197C and s 198 of the Migration Act, the applicant would as soon as reasonably practicable be removed from Australia to Afghanistan, notwithstanding the finding that Australia owed non-refoulment obligations in respect of the applicant.

35    I should say at the outset that the Tribunal’s reasoning in respect of the impact of Australia’s non-refoulement obligations on the applicant’s visa application is confusing and difficult to comprehend. However, in my view, for the reasons which follow, this ground of review should be upheld.

36    In [83]-[85] of its reasons for decision, the Tribunal states as follows:

83.    The existence of a non-refoulement obligation does not preclude the refusal of a person’s visa application. This is because the Minister will not, as a consequence of refusing their visa return a non-citizen to a country in circumstances where a non-refoulement obligation is owed. This is not withstanding the provisions of section 197C of the Migration Act which provides that, for the purposes of section 198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and that an officer’s duty to remove as soon as reasonably practicable arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen. Therefore, refusing NKWF’s visa is not inconsistent with Australia’s international obligations, even if he is owed protection.

84.    As outlined by the Minister, section 197C of the Migration Act is relevant to the exercise of the removal powers in section 198 of the Migration Act but does not require removal to take place irrespective of Australia’s non-refoulement obligations. It provides, in effect, that if and when the time comes for a removal decision to be made in respect of a non-citizen, it is irrelevant as a matter of domestic law whether non-refoulement obligations are owed. This means that the removal cannot be challenged under domestic law on the basis that the removal would be inconsistent with Australia’s international non-refoulement obligations.

85.    As the Explanatory Memorandum for the Bill that inserted section 197C of the Migration Act makes clear (ie, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014), the Minister intends to continue to honour Australia’s non-refoulement obligations.

37    These observations, I note in passing, are at odds with the tenor of the decision in DMH16 as to the import of s 197C and s 198 of the Migration Act.

38    In its reasons, the Tribunal then went on to refer to DMH16 and then appeared to have accepted the submission of the Minister that the decision of DMH16 was consistent with the statement in the Explanatory Memorandum that the Minister intended to continue to honour Australia’s non-refoulement obligations.

39    The Tribunal at [87] and, particularly at [91], of its reasons, referred to DMH16 as having contemplated “three management options”.

40    In fact, as mentioned above, in DMH16, North ACJ referred only to two “management options” open to the Minister. North ACJ specifically rejected the further option, being that relied on by the Minister in DMH16, namely, detaining the visa applicant indefinitely, as being inconsistent with s 197C of the Migration Act.

41    In my view, in referring to DMH16 as contemplating a third “management option”, the Tribunal demonstrated that it failed to understand the gravamen of the decision in DMH16 and, in particular, that part of the decision that held the import of s 197C and s 198 of the Migration Act was that, on refusal of the visa application, the applicant was required to be removed from Australia, as soon as reasonably practicable. Nowhere in the decision of the Tribunal does the Tribunal expressly recognise that, unless the Minister intervened under one or both of the alternative management options referred to by North ACJ, s 197C and s 198 of the Migration Act required that the applicant be removed to Afghanistan as soon as reasonably practicable.

42    Nor does the Tribunal refer to there being any evidence from the Minister that he was considering, or that he would be prepared to consider, exercising his powers under either s 195A or s 197AB of the Migration Act. Senior counsel for the Minister argued that such evidence was to be inferred from statements of counsel for the Minister before the Tribunal that the Minister intended that Australia honour its non-refoulement obligations. However, in my view, such generalised statements of intent fall well short of comprising evidence which identifies the means whereby this objective is lawfully to be achieved.

43    It appears from the observations made at [83]-[85] of the Tribunal’s reasons and its further reference to DMH16 being consistent with the Minister’s intention as expressed in the Explanatory Memorandum, that the Tribunal was of the view that there was some other means, unspecified by the Tribunal, other than indefinite detention and the two alternative management options identified by North ACJ, and, notwithstanding s 197C and s 198, whereby the Minister could lawfully procure that the applicant would not be returned to Afghanistan, if the safe haven visa was refused. As mentioned, this approach misapprehends the finding in DMH16 as to the import of s 197C and s 198 of the Migration Act.

44    It follows, therefore, in my view, that the Tribunal misapprehended the law.

45    This ground of review is upheld.

The second ground of review

46    I now deal with the second ground of review.

47    The applicant alleges that the Tribunal denied him procedural fairness because it failed to have regard to the submissions made on his behalf by Ms Martin-Iverson. In particular, the applicant contended that a submission which was at the forefront of his case, namely, that the fact that he had supported the Allied forces in Afghanistan by providing translation services was a relevant consideration which militated strongly in favour of him being granted a safe haven visa, had not been considered by the Tribunal.

48    The Minister accepted that there was no reference to Ms Martin-Iverson’s submissions in the reasons for decision of the Tribunal. The Minister also accepted that the Tribunal had not expressly considered the submission that the fact that the applicant had provided support to the Allied forces in Afghanistan was the consideration which militated strongly in favour of the applicant being granted a safe haven visa.

49    However, the Minister contended that even though the Tribunal did not refer to the submissions in its reasons for decision, comments made by the Tribunal during the hearing showed that the Tribunal was “aware of the submissions and was giving them consideration”. The Minister referred to parts of the transcript of the Tribunal hearing in support of this proposition.

50    Secondly, the Minister contended that the applicant could not establish that the issue of the applicant’s providing translation services to the Allied forces in Afghanistan had not been considered by the Tribunal.

51    In support of this contention, the Minister contended that the “G” documents were before the Tribunal and contained within those documents were the submissions made by Playfair Visa and Migration Services to the delegate. Those submissions included a reference to the translation services provided by the applicant to the Allied forces in Afghanistan. Further, said the Minister, there were in the Minister’s statement of facts and contentions before the Tribunal, screen shots of the applicant’s “visa summary”, and within those screen shots there was a reference to the applicant using his linguistic skills to communicate with foreign troops.

52    The Minister went on to say that the Tribunal had identified the Minister’s statement of facts and contentions and the “G” documents as “evidence” which was before it; and then at [15] of its reasons, the Tribunal had said that “[t]he Tribunal has reviewed all of the material before it”.

53    Thirdly, the Minister contended that, in any event, there was no practical injustice by reason of any denial of procedural fairness arising from the Tribunal’s failure to have regard to Ms Martin-Iverson’s submissions. The Minister said that the applicant had in the submissions raised his contention based on his support to the Allied forces under the rubric of “Expectations of the Australian community”, which was one of the primary considerations for decision-makers under Direction no 65. The Minister went on to contend that Direction no 65 set out exhaustively the matters which were to be taken into account under the rubric of “Expectations of the Australian community”, and that the matters raised by the applicant in respect of his support to the Allied forces was not within the category of matters listed in that part of the direction.

54    In order to discharge its statutory task, the Tribunal is required to give proper, genuine and realistic consideration to the merits of the case which is advanced on behalf of an applicant. In Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [23], Flick, Griffiths and Perry JJ observed as follows:

…it may be accepted as a general proposition that there must be a “proper, genuine and realistic consideration” of those matters that must be taken into account for an exercise of statutory power to be lawful such as the requirement to “give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy”: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J.

55    This is a case of a Tribunal which is required to give reasons for its decision. Accordingly, it is open to a reviewing court to have regard to the reasons for decision and to draw inferences from what is not contained in the reasons. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47], French, Sackville and Hely JJ observed:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

56    Applying these principles to the circumstances of this case, I am of the view that the Tribunal has fallen into jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant’s contention that the fact that he had provided support to the Allied forces in Afghanistan was a relevant consideration which militated in favour of granting the applicant a safe haven visa.

57    The contention was, as I said, at the forefront of the applicant’s case. However, there is no mention at all in the Tribunal’s reasons for decision of that submission having been made on the applicant’s behalf, let alone any consideration which could be characterised as proper, genuine and realistic.

58    It does not avail the Minister to demonstrate that the Tribunal was aware of the submission because it mentioned the submission during the hearing. The fact that the Tribunal was aware of a submission does not satisfy the jurisdictional requirement that it give proper, genuine and realistic consideration to the merits of the applicant’s case.

59    Likewise, it does not avail the Minister to point to the fact that there was in the documents before the Tribunal, a reference to the applicant having provided translation services to the Allied forces in Afghanistan, and that the Tribunal had said that it had “reviewed all of the material before it”. This generalised statement by the Tribunal that it had reviewed all of the material, does not preclude scrutiny of the Tribunal’s reasons to determine the extent to which the merits of the applicant’s claim were actually considered.

60    In the case of Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [55], Flick J pertinently observed:

The concluding statement on the part of the Assistant Minister that he had “considered all relevant matters” (at para [59]), it should also be noted, does not “shield from scrutiny” the extent to which he has in fact considered the claims made and has in fact resolved those claims by reference to findings of fact material to the conclusion ultimately reached: cf Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [32] per Flick, Barker and Rangiah JJ; Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [48] per Griffiths J.

(Original emphasis.)

61    In my view, it is impossible to infer from the bland, and generalised statement made by the Tribunal at [15] of its reasons that it gave proper, genuine and realistic consideration to the applicant’s contention that the fact that he had provided support to the Allied forces in Afghanistan was a relevant consideration which militated in favour of the grant of a safe haven visa. This is particularly so in view of the fact that immediately following the statement in [15] of the Tribunal’s reasons relied on by the Minister (see [52] above), the Tribunal added:

Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

62    Thereafter, there is no reference to the applicant’s contention founded on his support of the Allied forces in the Tribunal’s reasons.

63    The third contention by the Minister must also be rejected. This is because the applicant’s submissions did not advance the contention that the applicant’s support to the Allied forces in Afghanistan was a relevant consideration militating in favour of the grant of a safe haven visa, only under the rubric of “Expectations of the Australian community” under cl 11.3 of Direction no 65.

64    Rather, the contention was also raised by reference to cl 6.3 of Direction no 65 and by reference to cl 11.1.2(4) of Direction no 65. Further the same contention was raised more generally and was of such a nature as to fall within the rubric “Other considerations” referred to in cl 12 of Direction no 65 which provides that the “Other considerations” are not to be limited to the four considerations there listed.

65    It follows that the second ground of review is also upheld.

The third ground of review

66    In light of the finding in relation to the second ground of review, it is not necessary to consider the third ground of review.

67    The application for judicial review is upheld. The decision of the Tribunal is set aside and the applicant’s application is remitted to the Tribunal to be determined according to law.

Associate

Dated:    27 March 2018