FEDERAL COURT OF AUSTRALIA

DDN17 v Minister for Immigration and Border Protection [2018] FCA 1126

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent dated 28 February 2017 to cancel the applicant’s visa be set aside.

2.    The respondent pay the applicant’s costs of the proceeding.

Note:    These orders have been amended pursuant to Rule 39.05 of the Federal Court Rules 2011.

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

REASONS FOR JUDGMENT

TRACEY J:

1    The applicant, DDN17, has applied to the Court for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (“the Minister”), who cancelled a visa held by DDN17. That visa was a Class XB Subclass 200 Refugee and Humanitarian visa. The Minister’s decision was avowedly made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

THE FACTUAL BACKGROUND

2    The applicant is a citizen of Sri Lanka. He arrived at Christmas Island in February 2007 and was subsequently transferred to Nauru. In January 2008 he was granted the visa which the Minister was later to cancel. This enabled him to come to Australia which he did later that month.

3    In April 2011 DDN17 was one of a group who committed an armed robbery on a jewellery store. In the course of the robbery the jeweller and his wife were seriously assaulted and their children were bound by plastic ties and had tape placed over their mouths. Jewellery and cash were stolen.

4    DDN17 was convicted in the County Court of Victoria of one charge of armed robbery and two charges of recklessly causing serious injury. In March 2013 he received a cumulative sentence of six years imprisonment.

5    In March 2015 the Department of Immigration and Border Protection notified DDN17 that consideration was being given to the cancellation of his visa.

6    In response DDN17 filed written submissions which had been prepared by his appointed representative. Those submissions contained the following passages:

[DDN17] continues to fear that, if he is returned to Sri Lanka, he will suffer serious harm in the form of physical assault, abduction, imprisonment, torture and/or death, from the Sri Lanka authorities and paramilitary groups, on account of his Tamil ethnicity and his actual and/or imputed political opinion in support of the LTTE.

We submit that returning [DDN17] to a country where he faces the prospect of persecution and serious harm would be inconsistent with Australia’s non-refoulement obligations … .

7    In the personal details form completed by DDN17, which was before the Minister, he said that if he went back to Sri Lanka he would killed.

8    On 28 February 2017 the Minister decided to cancel the visa and provided reasons for his decision.

THE LEGISLATION

9    As already noted the Minister made his decision under s 501(2) of the Act. That subsection provides:

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

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

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

10    The “character test” is, relevantly, prescribed in s 501(6)(a) and (7)(c) of the Act. Under these provisions a person does not pass the character test if he or she has a “substantial criminal record”. A person has such a record if he or she has been sentenced to imprisonment for a period of 12 months or more.

THE MINISTER’S REASONS

11    The Minister found that DDN17 did not pass the character test. This finding was uncontentious.

12    He then turned to the exercise of his discretion under s 501(2). He referred to the sentencing remarks of the County Court judge and to various mitigatory matters advanced by DDN17.

13    The Minister next dealt with the issue of Australia’s non-refoulement obligations. He said that:

47.    I note [DDN17]’s representation that he fears that if he is returned to Sri Lanka, he will suffer serious harm in the form of physical assault, abduction, imprisonment, torture, and/or death from Sri Lankan authorities and paramilitary groups, on account of his Tamil ethnicity and his actual imputed political opinion in support of the LTTE.

48.    [DDN17] has made claims that may give rise to international non-refoulement obligations. However, [DDN17] is able to make a valid application for another visa. In particular, I note that [DDN17] is not prevented by s48A of the Migration Act from making an application for a Protection visa. Thus, it is unnecessary to determine whether non-refoulement obligations are owed to [DDN17] for the purpose of this decision.

14    Later in the reasons the Minister gave further consideration to international protection obligations. He said that:

58.    I note that [DDN17] has made claims which may give rise to international protection obligations.

59.    I note [DDN17] would be able to be removed to a country other than Sri Lanka, should he engage Australia’s protection obligations, but there is currently no known prospect of removal to such a country.

60.    I accept that should [DDN17]’s visa be cancelled and he is returned to Sri Lanka his mental health may deteriorate. However, [DDN17] will have access to medical supports generally available to other citizens of Sri Lanka.

61.    [DDN17] has resided in Australia for some eight years, having lived in Sri Lanka for the majority of his life. I find that [DDN17] will retain familiarity with the customs and language of Sri Lanka.

62.    Notwithstanding the existence of any international protection obligations claimed by [DDN17], I accept that [DDN17] will have some difficulty resettling in Sri Lanka. However, I find that the courses undertaken in Australia and the support of his family in Sri Lanka should assist him to resettle.

15    Ultimately, the Minister determined that DDN17 represented “an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations”. He, therefore, determined to cancel the visa.

THE JUDICIAL REVIEW APPLICATION

16    In his further amended originating application DDN17 sought to have the Minister’s quashed on three grounds. Those grounds were that the Minister had:

    Failed to give consideration to what was said to be a legal consequence of his decision, namely, that it would expose DDN17 to indefinite detention (Ground 1).

    Failed “to appreciate the legal context of the decision”. That context was said to be that the visa being cancelled had been granted because DDN17 had already satisfied the Minister that he was owed protection obligations by Australia (Ground 2).

    Failed to consider what was said to be “a clearly articulated argument”, in DDN17’s submissions, that his visa should not be cancelled because of these international protection obligations. As a result, he contended, the Minister had denied him procedural fairness and had failed to take into account the legal consequences of his decision (Ground 3).

Ground 1 was not pressed at trial. It is only necessary that I deal with Ground 3.

17    This is because I am bound, by the Full Court decisions in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 and Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68, to uphold this ground as it was developed in argument at trial.

18    The decision in BCR16 was made by the Assistant Minister under s 501CA(4) of the Act. This provision empowered the Minister to revoke a decision to cancel a visa which had earlier been made under s 501(3A). This was a discretionary power.

19    BCR16 made submissions in which he urged the Minister to revoke the cancellation decision, inter alia, because he feared for his safety if he were forced to return to Lebanon.

20    The Department prepared a briefing note which went to the Assistant Minister with BCR16’s submission: see 460 [14]. The briefing note contained this passage:

[The appellant] has made claims that may give rise to international non-refoulement obligations. However [the appellant] is able to make a valid application for another visa. In particular I note that [the appellant] is not prevented by s 501E of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of determining whether or not to revoke the mandatory visa cancellation decision.

21    An almost identical passage appeared in the Assistant Minister’s reasons for decision: see 460 [16]. The Assistant Minister declined to revoke the original decision.

22    That decision was successfully challenged. In the Full Court Bromberg and Mortimer JJ held that the Assistant Minister had erred by adopting the approach contained in the extract from the briefing note just quoted. Their Honours found (at 472 [72]) that the Assistant Minister’s reasons betrayed two misunderstandings:

first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia’s international non-refoulement obligations. Whether or not the harm the appellant feared had a “private quality” as the harm identified in [Goundar v Minister for Immigration & Border Protection [2016] FCA 1203], there were other reasons it might be harm outside the kind covered by Australia’s international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a “reason” the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task.

23    Their Honours also considered that the Assistant Minister had erred by failing to comprehend that non-refoulement issues may not necessarily be considered in the context of any future protection visa application. Such an application may be required to be refused on character grounds before any such consideration arose: see at 471-472 [66]-[69].

24    Their Honours identified the relevant errors as being “a failure to carry out the task required under s 501CA(4)” (at 470 [62]) and “as a failure to carry out the task required under s 501CA(4) which requires the consideration of whether there is ‘another reason’ to revoke the visa cancellation” (at 470 [63]).

25    The Minister sought special leave to appeal to the High Court from the Full Court’s decision. That application was refused: see Minister for Immigration and Border Protection v BCR16 [2017] HCA Trans 240.

26    BHA17 also involved a challenge to a decision of the Minister, made under s 501CA(4), not to revoke a cancellation decision earlier made under s 501(3A).

27    The applicant had been sentenced to imprisonment for six years and four months for drug offences and, as a result, failed to pass the character test.

28    In seeking a favourable exercise of the Minister’s discretion, BHA17 submitted that he had come to Australia as a refugee and continued to require the protection of this country. He claimed that, if he returned to Zimbabwe, he would face persecution.

29    The Minister’s reasons for refusing to revoke the cancellation decision included the following paragraphs:

Non-refoulement obligations

29.    [The applicant] states that if he were sent back to Zimbabwe he would face prosecution or even be killed because of his ethnicity as a member of the minority [redacted] tribe, and his activities in opposing the government of Robert Mugabe as a member [of a particular political group] which is a banned political party in Zimbabwe, and because he sought entry to Australia as a refugee.

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

31.    I note that [the applicant] has previously been found to be owed non-refoulement obligations towards (sic) and therefore might be again, if he makes a further application for a Protection visa. This would mean that the applicant] cannot be removed to Zimbabwe. I also accept that, while [the applicant] would be able to be removed to a country other than Zimbabwe, there is currently no known prospect of removal to such a country.

30    Griffiths J held that BCR16 was not distinguishable and that the Minister’s reasons supported the applicant’s contention that the same errors which had been made in BCR16 had been repeated in dealing with BHA17’s submissions. This warranted the setting aside of the Minister’s non-revocation decision: see BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288.

31    His Honour’s decision was taken on appeal to a Full Court. The appeal against this aspect of His Honour’s decision was dismissed by the Full Court. The Full Court rejected submissions by the Minister that BCR16 was distinguishable and that it was plainly wrong: at [13] (Robertson, Moshinsky and Bromwich JJ).

32    In Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 Jagot J dealt with a judicial review application challenging the decision of the Minister to cancel the applicant’s visa under s 501(2). The applicant had been convicted of offences and sentenced to five years imprisonment. As a result he did not pass the character test. Despite this he urged the Minister not to cancel his visa. One of his reasons for doing so was that he feared harm should he be returned to South Africa.

33    The Minister, nonetheless, cancelled the visa. His reasons contained the following paragraphs:

International non-refoulement obligations

54.     I have considered Mr STEYN’s fear of a return to South Africa. I note his statements that he will be at risk as a “foreigner”. I have read the material Mr STEYN provided in support of this view, along with the letters of support that echo his fears.

55.     Mr STEYN’s claims may give rise to international non-refoulement obligations, however Mr STEYN is able to make a valid application for another visa. In particular I note that Mr STEYN is not prevented by s48A of the Migration Act from making an application for a Protection Visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr STEYN for the purposes of this decision.

34    Justice Jagot held that she was bound to follow BCR16 and rejected the Minister’s submission that it was distinguishable. Her Honour said (at [15] and [19]) that:

15    I do not find these arguments persuasive reasons to distinguish BCR16. It may be accepted that ss 501(2) and 501CA(4) are different. It may be accepted that in making a decision to cancel a visa under s 501(2) the Minister is not bound to consider non-refoulement obligations (Le) or matters personal to the applicant (Huynh). But the fact remains that in both ss 501(2) and 501CA(4) the Minister is vested with the power to exercise a discretion, under s 501(2) to revoke a visa and under s 501CA(4) to cancel the revocation of a visa. Under both sections, the discretionary power is available if certain criteria are satisfied or not satisfied. While s 501CA(4)(b)(ii) includes satisfaction of the criterion that “there is another reason why the original decision should be revoked”, this provision was not an essential basis for the majority’s conclusion in BCR16. In neither BCR16 nor the present case is the argument one of a failure to consider a mandatory matter. …

…

19    … [T]he error in BCR16 was one of law in that the Act does not require non-refoulement obligations to be considered in the course of refusing to grant a protection visa. For another, and consistently with the reasoning in BCR16, it is not apparent how consideration in the context of a protection visa application which must be refused on character grounds can protect a failure to decide based on the actual operation of the Act. …

35    At [18] her Honour referred to an affidavit on which the Minister relied to distinguish BCR16. It was made by Ms Miranda Lauman, Assistant Secretary in the Onshore Protection Branch of the Department of Immigration and Border Protection. Ms Lauman had deposed that, in her experience, all decision-makers consider non-refoulement obligations before other reasons to refuse to grant a protection visa. Annexed to her affidavit was the Department’s Procedures Advice Manual 3 which contained statements to that effect. Her Honour accepted that applicant’s submission that this evidence was an insufficient basis upon which to distinguish BCR16: see [19]-[20].

36    She set aside the Minister’s decision. No appeal was lodged against her Honour’s decision.

37    Paragraph 48 of the Minister’s reasons in the present proceeding are in substantially the same terms as those appearing in paragraph 55 of the impugned reasons in Steyn. The reasons in this case can thus be seen to be founded on an erroneous understanding of the operation of the Act, namely, that non-refoulement obligations will necessarily be considered in the context of a protection visa application. Furthermore, the Minister had proceeded on the basis that DDN17 had relied on the non-refoulement concept when he had not done so.

38    There is nothing in the later parts of the Minister’s reasons (at [58]-[62]) which ameliorates the errors which were made earlier.

39    In this case the Minister relied upon another affidavit of Ms Lauman which was to the same effect as that considered in Steyn. Consistently with Jagot J’s reasoning in that case, I do not consider that this evidence provides a basis upon which to distinguish BCR16.

40    The Minister, in the present case, made the same jurisdictional errors which were made in the decisions reviewed in BCR16, BHA17 and Steyn.

41    For these reasons the application will be upheld. The Minister’s decision will be set aside and the matter remitted to him for reconsideration according to law.

Associate:

Dated:    31 July 2018