FEDERAL COURT OF AUSTRALIA

AFY18 v Minister for Home Affairs [2018] FCA 1566

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant in this proceeding was granted a Class XB Subclass 200 (Refugee) visa under the Migration Act 1958 (Cth) on 11 April 2008. On 4 February 2016 a delegate of the now-named Minister for Home Affairs cancelled the visa on character grounds under s 501(3A) of the Act (cancellation decision). Upon the cancellation of the visa, the applicant was taken into immigration detention where he presently remains: s 189 of the Act.

2    On 21 September 2017, another delegate of the Minister made a decision under s 501CA of the Act not to revoke the cancellation decision (non-revocation decision). The non-revocation decision was subsequently affirmed by the Administrative Appeals Tribunal in the exercise of a power of review conferred by s 500(1)(ba) of the Act.

3    This is an application under s 476A of the Act for judicial review of the Tribunal’s decision. On such an application, the applicant must show that the Tribunal committed jurisdictional error: s 474 of the Act; Craig v South Australia (1995) 184 CLR 163 at [179]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83].

4    For the reasons given below, no jurisdictional error is established. It follows that the originating application must be dismissed.

GROUND 1

5    In the circumstances of the applicant’s case, the cancellation decision was mandated by s 501(3A) of the Act. It relevantly provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

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

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6    Section 501(6) and (7) of the Act provide:

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)); or

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;

…

Otherwise, the person passes the character test.

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; or

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

…

7    The applicant does not and cannot pass the character test as defined in s 501(6) and (7) by virtue of his history of criminal offending, as conveniently and correctly summarised by the Tribunal as follows:

2.    [The applicant] is convicted of 38 offences occurring over a period of five years. The offences include an aggravated assault of his wife, extensive offending relating to deception and dishonesty, driving offences, and making off without payment. [The applicant] contravened a good behaviour bond and as a result was subject to a term of imprisonment of three years and six months after sentences of imprisonment previously imposed has [sic] been suspended. [The applicant] has also breached bail conditions.

3.    Among the convictions [the applicant] was sentenced to two counts of deceiving another to benefit self on 9 September 2013 and sentenced to 20 months’ imprisonment. As [the applicant] was therefore sentenced to a term of imprisonment of 12 months or more he is taken to have a substantial criminal record for the purpose of section 501(7) of the Migration Act. And not to pass the character test, as provided for by section 501(6) of the Act. Other convictions in isolation would also meet this test.

8    A decision to cancel a visa under s 501(3A) of the Act may be revoked in the exercise of the power conferred by s 501CA(4). It provides a mechanism whereby a person whose visa is cancelled under s 501(3A) may make representations to the Minister so as to have the “original decision” to cancel the visa revoked. If the person makes representations, the Minister may revoke the original decision if satisfied either that the person satisfies the character test or that there is “another reason” why the original decision should be revoked: s 501CA(4)(b)(i) and (ii) respectively.

9    The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and so was obliged to apply the criteria governing the exercise of the power in s 501CA of the Act at the time of its own decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

10    There being no prospect of satisfying the Tribunal that he satisfied the character test, the applicant’s case turned on whether there was another reason why the cancellation decision should be revoked. One reason advanced by the applicant arose from the circumstance that, as at the time of the Tribunal’s hearing, the applicant had made an application for a protection visa under the Act. That application remained undetermined at the time of the Tribunal’s decision and at the time of the hearing of this application for judicial review.

11    It was, and remains, the applicant’s case that he was a person to whom Australia owed non-refoulement obligations under international law: Art 33 of the Convention relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984 and the International Covenant on Civil and Political Rights done at New York on 16 December 1966 and its Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty done at New York on 15 December 1989. Broadly described, a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where he or she will be at risk of a certain type of harm.

12    In the performance of its review function, the Tribunal made a positive determination that the applicant was indeed a person to whom such an obligation was owed. It recognised that a consequence of its affirmation of the non-revocation decision might be that the applicant would be held in immigration detention indefinitely, although that outcome was not, the Tribunal held, inevitable. The Tribunal found (at [155]) that the applicant’s offending had “characteristics which are particularly objectionable in the way they targeted those who are vulnerable”. In its ultimate assessment, the Tribunal concluded that, by reason of his past offending the risk posed by the applicant to the Australian community was unacceptable so as to outweigh other considerations weighing in favour of the revocation.

13    The Tribunal affirmed the non-revocation decision notwithstanding the prospect that the applicant may be held in immigration detention indefinitely if the cancellation decision was not revoked, and notwithstanding its own positive conclusion that the indefinite detention of the applicant would be an unacceptable outcome. It is these features of the Tribunal’s decision that form the subject of the first ground of judicial review, which is expressed as follows:

1.    The second respondent committed jurisdictional error in failing to properly and finally determine the application before it, in that:

1.1.    having found that indefinite immigration detention was a possible outcome of refusing to revoke the applicant’s visa cancellation;

1.2.    holding that such indefinite immigration detention would be an unacceptable outcome and would outweigh other considerations against revoking the cancellation;

1.3.    finding that the applicant’s protection visa application was as yet undetermined by the first respondent;

1.4.    went on to hold that it was not required to determine whether indefinite detention was a legal or practical consequence of its own decision, but could defer determination of that issue to the first respondent in a separate process, when it ought to have made that finding itself.

The decision in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456

14    The Tribunal was required to discharge its review function within a tight time frame mandated under the Act: s 500(6L) of the Act.

15    Between the non-revocation decision and the Tribunal’s decision, the Full Court of this Court gave judgment in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456. That left the Tribunal with a very short period in which to hear submissions about the principles stated by the Full Court and the application of the principles to the applicant’s case. The application for review was determined about 48 hours after the conclusion of submissions. The Tribunal gave comprehensive reasons orally. A written transcript of the reasons is before me.

16    One question emerging from the judgment in BCR16 was whether the Tribunal was bound to comply with certain parts of a direction issued by the Minister under s 499 of the Act (Direction 65) insofar as it concerned the assessment of the applicant’s claim to be a person to whom Australia owed a non-refoulement obligation.

17    Paragraph 14.1 of Direction 65 provides:

14.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

…

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

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

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

(emphasis added)

18    The Tribunal proceeded on the basis that the visa subject to the cancellation decision was not a protection visa and so [14.1(5) and (6)] of Direction 65 had no direct application. The name of the cancelled visa seems to suggest that the applicant had previously been assessed as a refugee, but that was not the subject of submissions before this Court and so the question need not be considered further.

19    Following the delivery of judgment in BCR16 it was also the common position of the parties that the Tribunal was not obliged to comply with [14.1(4)] of Direction 65 and that, contrary to that paragraph, the Tribunal had a positive obligation to make an assessment as to whether the applicant was a person to whom non-refoulement obligations were owed.

20    Unhelpfully for the Tribunal, the Minister did not commit to any position as to whether the applicant was a person to whom non-refoulement obligations were owed, nor did the Minister provide the Tribunal with an independent assessment of Australia’s international obligations insofar as they affected the applicant. Nor did the Tribunal have the benefit of any consideration of the delegate in respect of the question, the delegate having complied with [14.1(4)] of Direction 65 and deferred the question to the decision-maker responsible for deciding the pending protection visa application.

21    The Tribunal heard oral evidence from the applicant and other witnesses concerning his claim to be a person who fulfilled the alternative criteria for a protection visa prescribed in s 36(2)(a) (the Refugee Criterion) and s 36(2)(aa) of the Act (the Complementary Protection Criterion), extracted at [23] below. It was on the basis of that evidence that the Tribunal found the applicant to be a person to whom Australia did indeed owe non-refoulement obligations. The Minister does not challenge that conclusion in these proceedings.

22    At this juncture it is necessary to refer to s 65(1) of the Act, pursuant to which the pending protection visa application must ultimately be determined:

65 Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

23    The “other criteria” referred to in s 65(1)(ii) include those contained in s 36 of the Act. It relevantly provides:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:    For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

…

(2C)    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

…

(b)    the Minister considers, on reasonable grounds, that:

…

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

…

The significance of the emphasised portion is discussed later in these reasons.

24    The power in s 65(1) of the Act is binary: a visa must be granted if all of the criteria are met, but must be refused if any one of the criteria is not met. As Bromberg and Mortimer JJ said in BCR16:

38    In decision-making on a protection visa application, satisfaction that the visa criteria are met, or not met, compels a result one way or the other. This point was made by Gummow J in Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [136]:

It is plain from the terms of the section that s 36(2) of the Act does not purport to cover ‘completely and exclusively’ the criteria for the grant of a protection visa. Section 31(3) explicitly provides for the prescription by the Regulations of other criteria. It follows that an applicant to whom the Minister is satisfied Australia has protection obligations under the Convention yet may fail to qualify for a protection visa.

(Footnote omitted.)

39    And Hayne J at [180]:

All the requirements of s 65(1) are important. It may be possible to refer, as the parties’ arguments sometimes suggested, to some of them as positive (satisfying the health criteria) and others as negative (the grant ‘is not prevented’ by certain considerations). But a distinction between positive and negative requirements or criteria is not helpful for present purposes. What is presently important is that s 65(1) directs attention to different requirements.

40    See also Heydon J at [265]-[266].

41    More recently, in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [34], Crennan, Bell, Gageler and Keane JJ said:

The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts — to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) — depending on the existence of one or other of two mutually exclusive states of affairs (or ‘jurisdictional facts’) — the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made (s 67).

(Footnote omitted.)

25    Their Honours go on to provide further examples of qualifying or disqualifying criteria that may be determined adversely to a visa applicant and so mandate the refusal of the visa application without any assessment of Australia’s non-refoulement obligations being made: [42] to [46].

26    BCR16 was a case in which a visa (not being a protection visa) was cancelled mandatorily under s 501(3A) of the Act. In the personal exercise of the power conferred by s 501CA(4) of the Act, the Assistant Minister decided not to revoke the cancellation. In so deciding, the Assistant Minister was not obliged to comply with Direction 65: s 499(2A); BCR16, [4].

27    In BCR16, as in this case, the former visa holder advanced, as a “reason” why the cancellation should be revoked, a risk of harm should he be returned to his home country (Lebanon). The risk of harm was of a kind that would, if established, satisfy the Refugee Criterion or the Complementary Protection Criterion. The Assistant Minister said that for the purposes of her own decision, it was unnecessary to determine whether any non-refoulement obligations were owed to the former visa holder because he was able to make a valid application for a protection visa so that the existence (or not) of the obligations would be considered at a later time. In that regard, the Assistant Minister proceeded in a manner consistent with that mandated for other decision-makers by [14.1(4)] of Direction 65.

28    The Full Court held (at [53]) that “the Assistant Minister’s reasoning in declining to consider whether there was a real possibility of significant harm befalling the applicant in Lebanon constituted jurisdictional error” because it was founded upon a misunderstanding of the law as to whether the prospect of indefinite detention would necessarily be considered in the course of determining any protection visa application that may be made ([63] – [67]).

29    Their Honours said:

68    …  There is no evidence of consideration of the course of decision-making on a protection visa application made by a person in the appellant’s position: that is, a person whose visa had been cancelled under the mandatory terms of s 501(3A), and a person whom the Assistant Minister had personally decided should not be subject to a favourable revocation decision under s 501CA, because of the risk of harm he posed to the Australian community. The Assistant Minister’s reasons do not advert to the character criteria for a grant of a protection visa. Her reasons disclose no consciousness that the appellant’s protection visa application may be required to be refused because of non-satisfaction of character criteria, so that considerations of risk of harm might never be reached.

69    A person in the appellant’s position would be applying for a protection visa in a very particular set of circumstances. The scheme of the Act intends that a person in his position be subject to automatic cancellation of his current visa on character grounds, and that he be compelled to seek a favourable exercise of discretion to have it reinstated. A person in his position has failed to persuade the Assistant Minister such a course should be taken because the Assistant Minister has given primary weight to character concerns and the risk posed by the appellant, in the Assistant Minister’s opinion, to the Australian community. In order for the scheme of the Act to retain any integrity and consistency, those particular considerations would inevitably intrude on any decision-making process in relation to an application for a protection visa. The Assistant Minister’s reasons disclose no awareness of this.

30    Their Honours went on explain why previous authorities of the Full Court could not assist the Assistant Minister in respect of the particular issue with which the Court was concerned: [76] – [94], discussing Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148; Cotterrill v Minister for Immigration and Border Protection (2016) 240 FCR 29; AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451.

Consideration

31    The applicant did not contend that the mandatory removal provisions in ss 189, 196, 197C and 198 would apply so as to require his removal from Australia to his home country in breach of Australia’s non-refoulement obligations. His case before the Tribunal, as in this Court, proceeded on the assumption that if non-refoulement obligations were owed but his protection visa application was nonetheless refused, he would suffer the consequence of indefinite detention. It was the prospect of indefinite detention that was put forward as “another reason” for the purposes of s 501CA(4) of the Act.

32    The jurisdictional error complained of is a failure to properly and finally determine the application for review. The essence of the complaint is that stated in [1.4] of the grounds before me, namely that the Tribunal, having made the findings described in [1.1] to [1.3] of the grounds, “went on to hold that it was not required to determine whether indefinite detention was a legal or practical consequence of its own decision, but could defer determination of that issue to the first respondent in a separate process, when it ought to have made that finding itself”.

33    In my view, this ground of review does not represent a proper statement of the manner in which the Tribunal reasoned toward the conclusion that the cancellation decision should not be revoked. To explain why that is so, it is necessary to closely examine the steps in the Tribunal’s reasoning. They may be summarised as follows.

34    First, the Tribunal concluded that the applicant was indeed a person to whom Australia owed protection obligations.

35    Second, the Tribunal proceeded on the basis that Australia would comply with its non-refoulement obligations and so would not return the applicant to his home country.

36    Third, the Tribunal identified that its refusal to revoke the cancellation decision may expose the applicant to indefinite or permanent immigration detention.

37    Fourth, the Tribunal gave consideration to [14.1(6)] of Direction 65 which applies where the cancelled visa is a protection visa. The Tribunal noted that the Direction in that instance did not purport to require a decision-maker exercising the power conferred by s 501CA(4) of the Act to revoke a visa cancellation in all cases where the prospect of indefinite immigration detention is identified. Rather, what was required was a weighing of the prospect of indefinite detention among other factors bearing on the exercise of the revocation power.

38    Fifth, the Tribunal posed itself the question “would there be permanent detention of [the applicant]?”.

39    Sixth, the Tribunal found that the decision-maker responsible for determining the applicant’s application for a protection visa (if not the Minister personally) would be bound to comply with a direction titled “REFUSAL OF PROTECTION VISAS RELYING ON SECTION 36(1C) AND SECTION 36(2C)(b)” (Direction 75), which was issued after the Full Court delivered judgment in BCR16. As a consequence, that decision-maker (if not the Minister personally) would be bound to first address whether either the Refugee Criterion or the Complementary Protection Criterion grounds were met before turning to consider other criteria.

40    Seventh, the Tribunal identified, as a “concern” and a “real issue” the prospect that the applicant’s protection visa application would nonetheless be refused because of the disqualifying criteria in s 36(2C)(b)(ii) (emphasised at [23] above), especially having regard to the circumstance that the applicant had been convicted of a “particularly serious crime” as defined in s 5M of the Act, being a “serious Australian offence” as defined in s 5(1). The Tribunal continued (at [188]):

…  The concern raised at submissions is that an initial reading of these provisions may inevitably lead to the conclusion that [the applicant] will face permanent or indefinite immigration detention unless I revoke the cancellation of his visa. I have already mentioned that that would be an inappropriate outcome of my application of the Directions.

41    Eighth, the Tribunal noted that the decision-maker determining the protection visa application would, also by virtue of Direction 75, determine the issues in accordance with a policy document titled Refugee Law Guidelines. The Guidelines say this of the criterion in s 36(2C) of the Act:

Whether a person constitutes a danger to the community of Australia involves more than a reference to the crime committed by that person and is to be assessed on a case by case basis.

42    The Tribunal continued:

190.    The guidelines draw attention to a decision of this Tribunal, WKCG and Minister for Immigration and Citizenship [2009] AATA 512, pointing out that that case developed a test that could be applied to consideration of these provisions. In fact, WKCG predates the amendments to the Act that I referred to, but is focussed on the application of the Refugee Convention that has been codified by these provisions. I agree that the reasoning of that decision of the Administrative Appeals Tribunal, the Hon B Tamberlin QC DP, would be applicable to any assessment of the application of the ineligibility provisions for the grant of a protection visa.

191.    The Refugee Law Guidelines go on to indicate that:

A decision-maker is to consider the seriousness and nature of the crimes committed; the length of the sentence imposed; any mitigating or aggravating circumstances, the criminal record in totality, including the extent and nature of any prior convictions and the period over which they took place; the risk of reoffending and recidivism; the likelihood of relapsing into crime; and any prospects of rehabilitation.

192.    The guidelines restate that:

Tamberlin DP emphasised that the danger to the Australian community, that is mentioned in section 36 as a provision that leaves a person ineligible for a protection visa, will be assessed as a separate additional matter to be independently established and not causally connected to the crime for which the person has been convicted.

193.    Therefore. I conclude that indefinite detention of [the applicant] is not an inevitable consequence of any decision not to revoke the cancellation of the visa. It is possible, but it is not inevitable. It may be the case, if [the applicant] is assessed in that context, to represent a danger to the community. For my purposes, I do not face the stark choice of exposing the Australian community to risk that I consider unacceptable, or making a decision that will inevitably have the effect of permanent immigration detention, or perhaps de facto refoulement as a consequence.

194.    As mentioned above, I do not consider that permanent detention of [the applicant] is an acceptable outcome in applying the Directions to this matter but I have now concluded that it is not the only possible outcome. As there is some prospect that [the applicant] will be assessed as not presenting a danger to the community, in the context of refusal of a protection visa, for that reason alone I conclude that this consideration does not outweigh the first and third primary considerations that I consider strongly weigh against revoking the visa cancellations.

(emphasis added)

43    As can be seen, the Tribunal made an assessment of the likelihood of the applicant being subjected to permanent detention and concluded that that outcome was “not inevitable”. Its conclusion was founded on its view that there was a difference between the criteria in s 36(2C) of the Act and the considerations informing the discretion as to whether the cancellation decision should be revoked. The Tribunal’s finding that there was some possibility that the applicant would be assessed as not presenting a danger to the community is not the subject of direct attack on this application. To be clear, it was not submitted that the Tribunal erred in identifying a difference between the test posited by s 36(2C) of the Act and the considerations bearing on the cancellation of a visa on character grounds or the revocation of such a cancellation. This Court was not asked to conclude that the only finding reasonably open to the Tribunal on the material before it was that the indefinite detention of the applicant was a certainty, notwithstanding the seriousness and nature of his past offending, and notwithstanding the Tribunal’s view that there existed a risk of reoffending, and notwithstanding the Tribunal’s conclusion that the applicant posed an unacceptable risk of harm to the Australian community. The Tribunal’s conclusion in this respect is not said to be affected by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The argument before me was more nuanced.

44    It was submitted that the Tribunal misapprehended (and so did not complete) its task in that it wrongly assessed the prospect of indefinite detention by reference to what was or was not inevitable. The task of the Tribunal, it was submitted, was to make a conclusive finding on the balance of probabilities and so proceed either on the basis that the applicant would be detained indefinitely or on the basis that he would not. On the material before the Tribunal, it was submitted, the Tribunal was bound to find, on the balance of probabilities, that the applicant would be detained indefinitely and that a positive finding ought to have been weighed in the balance with other considerations bearing on the exercise of the power under s 501CA(4). Given that the Tribunal had determined that the applicant’s indefinite detention would not be an acceptable outcome, it followed, the applicant submitted, that the Tribunal would have and should have revoked the cancellation decision, had it properly understood and completed its statutory task.

45    I do not accept these submissions. Nothing said by the Full Court in BCR16 may be understood as imposing upon a decision-maker an obligation to do anything more than consider the consequences of the non-revocation of the cancellation decision, so far as the consequences are reasonably capable of being ascertained. Once a prospect of indefinite detention is ascertained, it is that prospect that falls to be weighed against other considerations relevant to the exercise of the power conferred by s 501CA(4) of the Act. The jurisdictional error identified in BCR16 constituted a failure to make any assessment of the prospect of indefinite detention at all, that failure being premised on a misunderstanding of the law as to whether the prospect of indefinite detention would necessarily be assessed should a protection visa application be made.

46    The Tribunal in the present case did not proceed on the incorrect footing that another decision-maker would assess the prospect of indefinite detention, nor did it defer any assessment of Australia’s non-refoulement obligations to the decision-maker responsible for assessing the applicant’s protection visa application. To the contrary, the Tribunal found that the applicant satisfied the Refugee Criterion, but acknowledged (correctly) that fulfilment of that criterion could not be determinative of the outcome of the visa application. The passage at [193] of the Tribunal’s reasons is to be fairly interpreted against those correct findings.

47    Fairly interpreted, the Tribunal’s statement that it was not faced with a “stark choice” should not be interpreted as an abdication of an obligation to assess for itself the prospects of indefinite detention. Rather, it is to be understood as the Tribunal affording some weight to the prospect it earlier identified, but not so much as to outweigh other considerations tending against the revocation of the cancellation decision. It is implicit that the Tribunal would have afforded considerably more weight to the prospect of indefinite detention had it concluded that outcome was inevitable. However, I do not discern from the Tribunal’s reasons that the consequence of inevitable indefinite detention would necessarily have resulted in a different exercise of the power under s 501CA(4). As the Tribunal identified, had indefinite detention been assessed as inevitable, the Tribunal would then be presented with a stark choice between two equally unacceptable outcomes.

48    The Tribunal properly identified the existence of a risk of indefinite detention, made an assessment of the magnitude of the risk, and then weighed that risk in the balance in the exercise of its broad discretionary power. Whilst a different decision-maker might have given greater weight to the very real (and, I might add, very high) risk of indefinite detention, there is no jurisdictional error affecting the decision of the limited kind asserted in the first ground of review.

Ground 2

49    Ground 2 of the application alleges:

The second respondent committed jurisdictional error in failing to address the applicant’s claims of potential harm for reasons unrelated to his status as a refugee, should he be returned to his home country.

50    The issues forming the subject of this ground of review are considered at [200] to [201] of the Tribunal’s reasons:

200.    As to the impediments facing [the applicant] if he is removed, I have found that he will not be removed to Country A on account of Australia’s international obligation not to refoule him. It becomes, therefore, somewhat artificial to consider what impediments [the applicant] would face on removal to Country A but I, nonetheless, turn my mind to this issue. I accept the respondent’s contentions that [the applicant] can speak a local language of Country A. Against this, however, I accept that [the applicant] spent his formative years in Country B, having fled Country A as a child. I am also mindful of the country information discussed during the course of submissions to the effect, and I’ll use the term ‘survival’, that survival in Country A is dependent on holding extensive family and tribal connections and support.

201.    I accept that [the applicant] will have no such support and in light of the country information, for example, at item 5.15 of the DFAT report, which I will not recount, I consider that [the applicant] would face significant impediments in establishing himself and maintaining basic living standards in Country A. Also, I observe that it is difficult to divorce these impediments and hardships from the findings that I have made as to [the applicant] also having a well-founded fear of persecution in Country A in any event. Having regard to the circumstances that [the applicant] would return to, if removed from Australia to his home country, I consider that his consideration weighs in favour of revoking the visa cancellation. However, the weight I attach to this consideration is reduced considerably because I do not consider that [the applicant] will be refouled to Country A if he is found to be a refugee, as I am satisfied, on the limited evidence I have, that he will be.

51    Later in its reasons, the Tribunal said that the impediments referred to in these passages would have outweighed the adverse considerations upon which it relied, had it been satisfied that the applicant would be removed to his home country: at [211].

52    In oral argument, Counsel for the applicant acknowledged that the Tribunal had indeed “addressed” the impediments. It was nonetheless submitted that the Tribunal committed jurisdictional error by diminishing the weight to be afforded the impediments because of its related findings that the applicant was a person to whom non-refoulement obligations were owed, that the obligations would be complied with, and the applicant would not be returned to his home country. It was alternatively submitted that the attribution of less weight to the “impediments” to which the Tribunal referred was legally unreasonable, and that “any potential separate process finding that the applicant was a refugee was an irrelevant consideration”.

53    I reject these submissions for three reasons.

54    First, unlike the authorities upon which the applicant relied, the Tribunal had not left to any “separate process” the question of whether the applicant was a person to whom non-refoulement obligations were owed. In this case, a protection visa application had been made, and the Tribunal itself had found that the applicant fulfilled the Refugee Criterion in a way that enlivened the obligation: contra Goundar v Minister for Immigration and Border Protection [2016] FCA 1203.

55    The Tribunal determined that question for itself. It then exercised the power conferred by s 501CA(4) on the basis of its own findings (favourable to the applicant) on the question. It positively held that the applicant would not be returned to his home country. The Tribunal did not defer such questions to any alternative decision-making process.

56    Second, the Tribunal’s finding that the applicant was a refugee and so could not and would not be forcibly removed from Australia is not subject to any discrete challenge in this proceeding. It did not constitute jurisdictional error for the Tribunal to proceed on that factual premise.

57    Third, the applicant’s argument that this aspect of the decision was affected by legal unreasonableness was not in accordance with the legal principles discussed and restated in Li or by the Full Court of this Court in cases such as Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. Whilst questions of weight are not immune from judicial review on grounds of legal unreasonableness, it was plainly open to the Tribunal to afford the feared impediments less weight by reference to its assessment of the unlikelihood that the impediments would transpire.

Ground 3

58    Ground 3 concerns the Tribunal’s assessment of the applicant’s likelihood of reoffending:

The second respondent committed jurisdictional error in making a finding adverse to the applicant based on evidence which it considered might have been obtainable but which had not been obtained by either party, namely expert evidence on the likelihood of the applicant reoffending if released into the community.

59    The Tribunal held (at [105]) that the applicant had demonstrated a capacity to bring “varying amounts of harm to the members of the public on multiple and drawn out occasions” and that, should the applicant engage in further criminal conduct, he would produce equivalent harm again. As to the likelihood of re-offending, the Tribunal said:

105.    … objective evidence is limited and there is no evidence from professionals in the field of predicting or explaining offending behaviour or offering expert opinions on the degree of rehabilitation and the likelihood of reoffending based on cogent evidence available to them.

106.    In this regard, however, I note that the solicitors and counsel acting for [the applicant] received their instructions very late in this process, such that there would have been no realistic opportunity to compile evidence of this nature and, given the nature of these proceedings, there was no capacity for me to adjourn the proceedings for such evidence to be obtained. I must proceed on the evidence that I have. There is ample evidence from [the applicant] himself, and members of his family, as to their confidence and belief that the offending will not be repeated. It is also submitted that I should draw inferences from the fact that [the applicant] was granted parole by the Parole Board.

60    The Tribunal continued at [111]:

Overall, while I have considered carefully the statements made by [the applicant] during the hearing as to his remorse and concern for the victims, I accept the submission ultimately made by the respondent that there is limited insight into the nature of offending revealed and [the applicant’s] expressed commitment not to reoffend is more likely the product of him being punished rather than a deep insight into the effect his offending has had on the community and his victims. Therefore, I do not place greater weight on [the applicant’s] statements in his evidence than the weight I place adversely on the absence of objective evidence and opinion of rehabilitation.  …

(emphasis added)

61    It is submitted that the emphasised passage discloses that the Tribunal drew an adverse inference against the applicant on the question of rehabilitation because of the applicant’s failure to adduce expert evidence on that topic. The adverse inference, it was submitted, was not available to be drawn because of the Tribunal’s earlier finding that the applicant’s representatives had insufficient time to obtain such evidence. The case was not one in which the applicant had failed to adduce evidence that was in existence or otherwise obtainable. Nor was it one in which the Tribunal had merely expressed a state of non-satisfaction on the evidence before it. The Tribunal had, the applicant submitted, gone further and weighed the absence of evidence adversely in the balance so as to outweigh the applicant’s own assessment of his rehabilitation. In oral submissions, the Tribunal was said to have committed jurisdictional error constituted of the taking into account of an irrelevant consideration, namely, the absence of expert evidence on the topic. It was also submitted that the Tribunal had misapplied the evidentiary principle stated in Jones v Dunkel (1959) 101 CLR 298.

Consideration

62    The reasons of an administrative decision-maker are not to be construed “minutely and with an eye keenly attuned to the perception of error”: Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 (Lockhart J), approved in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ). The Court “will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts”: Pozzolanic at 287, citing Lennell v Repatriation Commission (1982) 4 ALN N 54; Freeman v Defence Force Retirement and Death Benefits Authority [1985] FCA 330; (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 23 ALD 13 at 19 (Morling and Neaves JJ). The reasons are “meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

63    I accept that, read in isolation, the impugned passage at [111] of the Tribunal’s reasons may be interpreted to mean that the Tribunal treated the absence of evidence as a substantive consideration that was, in and of itself, capable of weighing adversely against the applicant. The passage may also be interpreted to mean that the Tribunal drew an inference that any expert on that topic, had one been called, could not have assisted the applicant. However, having regard to the reasons as a whole, and the principles against which they are to be read, I would not adopt either interpretation.

64    The Tribunal gave consideration to the reasons why expert evidence bearing on the topic of the applicant’s rehabilitation was not before it. It expressly acknowledged that the applicant was unable, because of time considerations, to obtain evidence of that kind and that the Tribunal was, because of its own time limitations, unable to grant the applicant an adjournment to allow the evidence to be brought into existence. These earlier parts of the reasons indicate that the Tribunal clearly was not critical of the applicant or his advisers for failing to obtain an expert report. The wording in [111] of the Tribunal’s reasons should not be interpreted so as to contradict those positive findings, particularly if an alternative interpretation is fairly open.

65    In the opening passages of [111] the Tribunal rejected the applicant’s statements to the effect that he had rehabilitated because it took the view that those statements reflected a concern to avoid punishment rather than any true insight gained into the nature of his offending and the effect it had on those harmed. That conclusion was drawn independently of, and prior to, the Tribunal’s impugned remarks at the conclusion of [111].

66    In light of these two features of the reasons, it is open to interpret the emphasised passage at [111] as a poorly worded attempt by the Tribunal to reflect the circumstance that it had before it the applicant’s evidence (which did not support a finding that he had gained insight into the harm he had caused) and that it did not have before it any expert evidence that could otherwise assist the applicant on the topic. The Tribunal ultimately weighed the evidence that was before it and found it insufficient to support a conclusion that the applicant would not reoffend in the future. The absence of expert evidence was a feature of that factual enquiry to which the Tribunal naturally referred because it contributed, in the sense I have described, to the Tribunal’s inability to conclude that there was no risk of reoffending. The phrasing at the conclusion of [111] is confused, but it is not indicative of jurisdictional error.

Associate:

Dated:    19 October 2018