FEDERAL COURT OF AUSTRALIA

BKS18 v Minister for Home Affairs [2018] FCA 1731

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

BARKER J:

1    The applicant, a male citizen of South Sudan, applies for an extension of time to seek judicial review of the decision of the Assistant Minister for Immigration and Border Protection not to revoke a decision of a delegate of the Minister for Immigration and Border Protection (now Home Affairs) to mandatorily cancel his Class XB, Subclass 200 Refugee (Permanent) visa.

2    When he was 11, the applicant witnessed the murder of his parents in South Sudan and fled to Ethiopia with his siblings. He then spent seven years in various refugee camps in Kenya.

3    In 2004, while in a refugee camp, the applicant was assessed to be a refugee by the United Nation High Commissioner for Refugees and granted a refugee visa. He arrived in Australia on that visa in April 2006, aged 18. He has not left Australia since his initial arrival.

4    Between 2006 and 2014, the applicant committed a range of criminal offences and is currently serving a sentence of six years imprisonment in Western Australia following his conviction of causing grievous bodily harm.

5    On 11 June 2015, the delegate made a decision under s 501(3A) of the Migration Act 1958 (Cth) to mandatorily cancel the applicant’s visa, having regard to the applicant’s “substantial criminal record” (as defined by that section).

6    On 24 June 2015, having been invited to do so, the applicant made representations to the Minister under s 501CA(4)(a) of the Act in support of his request for the delegate’s cancellation decision to be revoked. His representations included a number of letters written by or on behalf of the applicant referring to the non-refoulement obligations Australia owed to him and the situation in South Sudan and his associated fears of harm if he were returned there; and a letter from The Humanitarian Group dated 31 March 2017, which discussed in detail Australia’s international non-refoulement obligations.

7    However, the Assistant Minister decided not to revoke the delegate’s cancellation decision on 19 October 2017, for reasons set out below.

8    On 9 November 2017, the applicant received notice of the Assistant Minister’s decision not to revoke his visa cancellation.

9    More than four months later, on 22 March 2018, well after the period in which he should have applied for judicial review of the Assistant Minister’s decision, the applicant applied for an extension of time to seek judicial review in this Court.

10    After preliminary proceedings in the Court, on 27 August 2018 the applicant filed an amended application which identified the following ground as the one he would argue if he were given an extension of time in which to seek judicial review:

The Assistant Minister denied the Applicant procedural fairness, constructively failed to exercise his jurisdiction, or otherwise failed to carry out his statutory task, by failing to consider a ‘reason’ claimed by the Applicant as to why the decision to cancel his visa should be revoked. Further or alternatively, the Assistant Minister failed to take into account the Act and its operation in making his decision, or misunderstood the Act and its operation in making his decision.

11    By this ground, as further particularised, the applicant primarily would claim that the Assistant Minister’s decision was infected with jurisdictional error because he failed to consider the non-refoulement obligations Australia owed to him.

12    The Minister opposes the extension application on the grounds that: (1) the applicant’s delay in seeking judicial review is not adequately explained; and (2) the proposed ground for seeking judicial review lacks merit in any event.

13    For the reasons given below, I do not consider the application should be dismissed on account of the delay in making it. However, I do consider the proposed ground, in the result, lacks merit and for that reason the application should be dismissed.

Assistant Minister’s Decision

14    It is appropriate to commence consideration of the application with an understanding of the reasons for the Assistant Minister’s decision that the applicant seeks to challenge.

15    Section 501CA(4) of the Act states:

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

  (b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

16    On 19 October 2017, the Assistant Minister decided not to revoke the delegate’s decision to cancel the applicant’s refugee visa as he was neither satisfied that the applicant passed the s 501 character test, nor that there was another reason why the delegate’s decision should be revoked.

17    It was, and is, accepted by the applicant that he did and does not pass the character test as defined by the Act. The question is whether there was “another reason” for revoking the cancellation.

18    At [7] of his reasons for decision, the Assistant Minister stated that he had considered the representations made by the applicant and the documents he had submitted in support of his representations.

19    At [11], the Assistant Minister stated that, in undertaking his task, he had assessed all of the information set out in attachments to his submission, and in particular the representations and documents submitted in support of the applicant’s representations regarding why the delegate’s decision should be revoked.

20    At [12], the Assistant Minister set out reasons the applicant had submitted as to the reason or reasons why the delegate’s decision should be revoked, namely:

    The applicant’s psychological state, which has contributed to his offending, arose partly from his extremely traumatic early life, witnessing the murder of his father and mother by rival tribal members when he was a child. This has been acknowledged by the Courts.

    His return to South Sudan would put him at real risk of harm as he is a member of the Nuer tribe, a minority population facing discrimination and persecution by the majority Dinka government and army. As a result of his family’s previous opposition to warring tribes, he may also be targeted as payback.

    The applicant has no family remaining in South Sudan. His village has been destroyed, he has no alternative accommodation in Sudan, he has limited prospects for ongoing education, and he has no prospects for employment. Also, the ongoing civil war in South Sudan has displaced millions of people and the resultant famine has put many at risk of starvation. These conditions would make return to that country unviable for the applicant.

    The applicant has expressed remorse for his actions. He states that he has matured, and participated in further education and personal development programs to address his treatment needs. He states that he has maintained excellent prison conduct in the last two years. Since completing the treatment programs, the applicant states that he no longer sees himself as an aggressive person. He has been physically assaulted in prison but has not fought back because his perceptions of himself have changed; he no longer believes in violence.

    During his current period of incarceration the applicant completed the Think First, Pathways and Violent Offending Treatment Programs.

    The applicant’s offences of violence were committed under the influence of alcohol. He has not taken alcohol or cannabis since January 2015 and submits that he is unlikely to commit any act of violence if he abstains from alcohol.

    The applicant has been a resident of Australia for 11 years. He has strong family ties in Australia which include his two sisters, brother, brother-in-law, grandparent, nephew and cousin, all of whom reside in Australia.

    The applicant has worked as a labourer and a loader at Woolworths supermarket.

    The applicant has written songs in Nuer which have been favourably received in the local (Australian) Sudanese community.

21    The Assistant Minister then referred to the following topics: Australia’s international non-refoulement obligations; the strength, nature and duration of the applicant’s ties to Australia; the extent of impediments if removed; the protection of the Australian community; the applicant’s criminal conduct; and the risk to the Australia community.

22    In respect of the topic of international non-refoulement obligations, the Assistant Minister stated, at [13]-[16]:

13.     As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if returned to South Sudan due to ongoing tribal warfare, random killings and political unrest in that country. [The applicant] is a member of the Nuer tribe, a minority population facing discrimination and persecution by the majority Dinka government and army. I note that that there is a real possibility that [the applicant] will risk being killed should he be returned to any part of Sudan or South Sudan where there is widespread killing of Nuer men by members of the South Sudanese armed forces.

14.     I have taken into account that [the applicant]’s return to South Sudan may also put him at risk of kidnapping and torture as a result of his family’s previous opposition to warring tribes. He may be killed as payback to his tribe and the conditions in South Sudan, with millions of people displaced and a resultant famine, would also make return to that country unviable for [the applicant].

15.     I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection−specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s.499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s.501.

16.     Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.

(Emphasis added.)

23    The Assistant Minister considered the extent of impediments the applicant would face if removed from Australia and, at [25]-[32], stated:

25.     In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that [the applicant] will face if removed from Australia to his home country, in establishing himself and maintaining basic living standards.

26.    I have taken into consideration that [the applicant] had a very traumatic childhood and early life and that the country to which he may be returned, South Sudan, still suffers from communal conflict, famine and generally very depressed economic conditions, which would present a substantial obstacle to resettlement there.

27.     I accept that as a member of the minority Nuer tribe, [the applicant] may face discrimination and displacement and he may also be targeted by the majority Dinka government and army. This will exacerbate the natural hardships associated with removal.

28.     I have also noted that [the applicant] has no family remaining in South Sudan, his family’s home village has been destroyed, and he has no accommodation available to him in South Sudan.

29.     I note that [the applicant] has a good level of English and reasonable reading, writing and numeracy. During his incarceration he participated in further education in cognitive behavioural skills, consequential thinking and communication courses.

30.     I am of the view that [the applicant] has some prospects of finding employment in South Sudan related to his skills, particularly in English, bearing in mind that the general standard of education in that country is relatively low and he now has some basic education, although I recognise that any work he obtains will be much lower paid than that available to him in Australia and the stability of his environment will be compromised by the situation of conflict.

31.     I find that [the applicant] will have access to health services comparable to that generally available to other South Sudanese citizens in the same position as him. However, country information indicates that health care in Sudan/South Sudan is inconsistent and under−resourced, many staff are not properly trained or supported and follow up care is sporadic or not active, and that the delivery of health care is currently further compromised by the situation of heavy conflict in South Sudan. I accept that [the applicant]’s general wellbeing will deteriorate without sustained support, treatment, care and supervision from family and the networks he has established in Australia. However, I also note that his mental health and behaviour have not improved over a number of years despite the availability of support in Australia.

32.     I find that [the applicant] would face impediments if removed from Australia to his home country in establishing himself and maintaining basic living standards, in South Sudan.

24    As to the applicant’s criminal conduct in Australia, the Assistant Minister stated, at [34]-[42]:

34.     In considering the nature and seriousness of [the applicant]’s criminal offending I am of the view that violent offending is generally very serious and note that [the applicant]’s extensive criminal history contains repeated instances of violent offending.

35.     I am particularly concerned by [the applicant]’s conviction on 23 June 2014 in the District Court of Western Australia at Perth for Grievous Bodily Harm. According to sentencing remarks, after drinking with others, including the victim, [the applicant] assaulted the victim then took him to the back garden and used an accelerant to set him alight. The victim fell unconscious and was taken back inside by [the applicant] and left in a bedroom, where he was later found by emergency workers. He suffered burns to over ten percent of his body and some lacerations on his head and he had to have skin grafts and extensive treatment in hospital. As a result, he has permanent injuries by way of scarring to his chest, left arm and left hand.

36.     The sentencing judge said: ‘It was... of itself a most horrific manner to attack another human being by setting them on fire. And clearly, you showed no concern whatsoever for his welfare thereafter in that you removed him into the house, did not seek medical treatment and simply stayed with him, left him to suffer what he was then suffering in a state of unconsciousness or almost unconsciousness in the room in that house. You showed absolutely no compassion, no mercy and no fellow human feeling for the state that you had caused him to be in...’ I adopt these comments and find this to be an exceptionally serious violent offence, noting that the court could discern no motive or reason for [the applicant]’s actions.

37.     I find that the sentence of six years which [the applicant] received for the above offence is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and this is a substantial term of imprisonment.

38.     I note that [the applicant] has other violent offences in his criminal history. In 2009 he was convicted of offences including Unlawful Wounding, Threats to Injure, Endanger or Harm Any Person and three offences involving carrying or possessing articles with intent to injure, receiving a sentence of seven months imprisonment and an Intensive Supervision Order. In August 2010 he was convicted of two counts of Rioters Causing Damage and two counts of Rioters Causing Damage by Fire, for which he was sentenced to six months imprisonment, suspended on each charge. While [the applicant] states that his role was limited to breaking a window, the Court found that he should be held jointly responsible for damage caused to six vehicles and two houses, totalling about $19,000, and I consider that his actions further illustrate his tendency to act violently.

39.     On 15 April 2011 [the applicant] was convicted in the District Court of Western Australia in Perth of carried (possessed) an article with intent to cause fear that someone will be injured or disabled and was sentenced to six months imprisonment. The article was a knife with a 10 inch blade. He was also convicted of three public order offences, a breach of bail, four breaches of suspended sentence and seven breaches of a community order, receiving further sentences of between one and three months imprisonment.

40.     I accept the court’s view that these offences were ‘not trivial’ and I find that the possession of a knife is also of particular concern, given [the applicant]’s history of violence, as was his interference with and obstruction of public officers. I also note that these offences were committed whilst on conditional liberty for similar offences.

41.     On 24 June 2014 he was convicted of Unlawfully Assault and Thereby Did Bodily Harm with Circumstances of Aggravation and received a sentence of 12 months imprisonment. Further information about this offence is not available to me, but it was clearly a violent matter and resulted in a significant sentence of imprisonment, and is another example of [the applicant]’s violent offending.

42.     I find that [the applicant]’s criminal history, on the whole, amounts to very serious offending, taking into account his extensive history of violence and his most recent conviction for an horrific offence that involved grave personal injury, and which attracted a substantial term of imprisonment.

(Emphasis in original.)

25    The Assistant Minister found, at [60], that the applicant continued to be at a high risk of reoffending and causing significant harm to members of the Australian community and, should he reoffend in a similar manner, his conduct may result in more serious physical harm to members of the community.

26    The Assistant Minister then stated that he gave significant weight to the serious nature of the crimes committed by the applicant, including that of grievous bodily harm, which was of a violent, reckless and horrifying nature. He considered that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia and also said he was mindful that the applicant had not gained insight into his offending behaviour.

27    The Assistant Minister concluded, at [68], that in reaching his decision about whether he was satisfied that there was another reason why the delegate’s decision should be revoked, that he considered that the applicant:

represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his relatively lengthy residence, international non refoulement obligations, familial ties to Australia and the hardship [the applicant] and his family will endure in the event the original decision was not revoked.

(Emphasis added.)

28    It will be noted that while the Assistant Minister, at [16] of his reasons, said it was unnecessary to determine whether non-refoulement obligations were owed, as their existence or otherwise could be determined on a protection visa application, if made, at [68] he appears to have taken them into account. I do not think the Assistant Minister, in so stating intended to resile from his earlier statement that the question of non-refoulement could be considered at the time a protection visa application was made. He was simply observing that notwithstanding that Australia may owe the applicant such an obligation, it did not persuade him that he should revoke the decision to cancel the visa.

Should the application be dismissed by reason of delay?

29    The applicant filed an application for an extension of time to seek judicial review in this Court on 22 March 2018. By his accompanying affidavit made 15 March 2018, the applicant states in regard to the extension of time application:

1.     I … affirm I am the applicant and I swear this affidavit in support of my application for an extension of time to file my Form 70 originating application for review of migration decision, and for an extension of time in which to file this document.

2.     I am a sentenced prisoner at Acacia Prison. English is not my first language. I am very frightened to return to South Sudan.

3.     I did contact Legal Aid for assistance with these forms. They got back to me and I tried to fill them in but I didn’t know where to file them. I tried to file them but I think I only filed the waiver of fees form. I find it very difficult to understand what to do. Legal Aid did write me an email but I couldn’t get help at the prison to get the forms to the Court.

30    Following preliminary orders made by the Court, the applicant appointed a pro bono lawyer on 17 July 2018.

31    On 27 August 2018, the applicant filed an amended application for judicial review which outlines the following particularised ground of review:

1.     The Assistant Minister denied the Applicant procedural fairness, constructively failed to exercise his jurisdiction, or otherwise failed to carry out his statutory task, by failing to consider a ‘reason’ claimed by the Applicant as to why the decision to cancel his visa should be revoked. Further or alternatively, the Assistant Minister failed to take into account the Act and its operation in making his decision, or misunderstood the Act and its operation in making his decision.

Particulars

I.     At [13]-[14] of his reasons, the Assistant Minister noted the representations made by the Applicant as to the dangers he would face if returned to South Sudan. These representations were put forward by the Applicant as a reason why the decision to cancel his visa should be revoked (CB 89-90, 98, 107, 117, 129-133).

II.     At [15] of his reasons, the Assistant Minister stated that the practice of his Department was to process protection visa applications by assessing protection specific criteria before assessing other criteria. There is a direction under s 499 of the Act (Direction 75) requiring decision makers to process protection visa applications in this manner.

III.     At [16] of his reasons, the Assistant Minister considered that it was unnecessary for him to consider whether non-refoulement obligations were owed to the Applicant as the Applicant was able to make a valid protection visa application and the existence or otherwise of non-refoulement obligations owed to him would be determined in the course of that application.

IV.     The Assistant Minister failed to take into account that, firstly, Direction 75 is not binding on the Minister, secondly, that the legal consequence of non-revocation of the cancellation of the Applicant’s visa was that he would be deported as soon as reasonably practicable, and, thirdly, the differing nature of the assessment of a protection visa application as opposed to the weighing of a discretion to revoke the cancellation of the Applicant’s visa.

32    The applicant seeks to set aside the Assistant Minister’s decision, have the matter remitted for determination anew, according to law, and costs.

33    The Minister filed an outline of written submissions on 10 September 2018, contending that the applicant’s application for an extension of time should be dismissed with costs.

34    The Minister submits that, despite the lack of prejudice on his part should the extension be granted, he opposes the application due to:

(1)    the significant delay of 113 days in making the application;

(2)    the lack of adequate explanation for the significant delay; and

(3)    the applicant’s grounds for challenging the Assistant Minister’s decision being without merit.

35    Given the important questions that the applicant would raise on his judicial review application, I am satisfied the extension of time application should not be refused simply on account of the delay in seeking judicial review. I infer that, for one reason or another, the applicant failed to follow up on his attempts to obtain legal assistance. As the Minister notes, there is no particular prejudice to be suffered by the Minister if an extension of time to make the application for judicial review were to be allowed.

36    In all the circumstances, the question to be answered is whether the proposed ground of review has merit. If it does, the application for an extension of time to seek judicial review and the judicial review itself should be allowed. Otherwise, the extension application should be dismissed.

Is there merit in the applicant’s proposed ground of review?

The applicant’s submissions

37    The applicant submits that the Assistant Minister, at [13]-[16] of the reasons, dealt with his representations regarding the dangers he would face if returned to South Sudan as international non-refoulement obligations exclusively.

38    The applicant contends that the Assistant Minister’s finding, at [16], that it was unnecessary to consider non-refoulement obligations that may be owed to the applicant, was premised on the understanding that he could make a valid application for a protection visa, at which time any such obligations would be assessed.

39    He submits that, among other things, for the grant of any visa, the Minister must be satisfied that the relevant criteria prescribed by the Act are satisfied, as provided for by s 65(1)(a)(ii) of the Act, which states:

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

  (a)     if satisfied that:

…

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

40    In the case of a protection visa this means the criteria prescribed by s 36 of the Act, particularly s 36(1C), must be met. This subsection provides:

(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.

41    The applicant submits, in summary:

    As is clear from the discussion in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [37]-[46]; [2017] FCAFC 96, and the terms of s 65 of the Act, non-satisfaction of any of the criteria will result in the refusal of the protection visa application. This is different from the discretion contained in s 501CA(4) of the Act which allows the Minister to weigh any relevant factors in the balance in deciding whether to revoke the cancellation of a visa: see BCR16 [48]-[52].

    Given the comments of the Assistant Minister in his decision record regarding the applicant’s convictions, it is implausible that a future decision-maker would not find that the applicant (a) had been convicted by a final judgment of a particularly serious crime, and (b) is a danger to the Australian community; and so it is inevitable that he would fail to satisfy the criterion in s 36(1C) of the Act and would be refused a protection visa.

    The Assistant Minister also stated in his reasons that Ministerial Direction 75 requires decision-makers to assess protection-related criteria before character-related criteria. Direction 75, however, is made under s 499 of the Act and applies to “a person or body having functions or powers under this Act”, and does not bind the Minister if he were to make the protection visa decision personally. Given that there is nothing in the Act which compels the order of the assessment of the criteria of a visa application (as discussed in BCR16 at [36]-[46]), there is no guarantee that the non-refoulement obligations owed to the applicant would be assessed in such a circumstance.

    While it is possible for the applicant to make a valid protection visa application, such an application will be inevitably refused and, so there is no guarantee that there will be an assessment (or proper assessment) of whether or not he is owed international non-refoulement obligations.

42    Based on this understanding of the Assistant Minister’s decision, the applicant contends he was denied procedural fairness; or the Assistant Minister failed to properly complete his statutory task; and/or the Assistant Minister failed to take into account the Act and its operation.

43    The applicant submits that, in deciding that it was not necessary to determine whether non-refoulement obligations were owed to him, the Assistant Minister failed to consider a reason he put forward in support of the revocation of the delegate’s decision to cancel his protection visa, and this constituted a denial of procedural fairness.

44    In particular, the applicant submits that the Assistant Minister was bound to consider the representations which related to his personal circumstances, namely the dangers he would face if returned to South Sudan; referring to Picard v Minister for Immigration and Border Protection [2015] FCA 1430.

45    He says the fact that he faced a significant risk of death was a strong reason weighing in his favour. It would only have been “unnecessary” to consider whether the applicant was owed non-refoulement obligations if such obligations could be considered at a later date in an equivalent process. But in this case, they would not be so considered by an equivalent process.

46    The applicant also submits that the Assistant Minister’s failure to consider a reason he put forward (non-refoulement obligations) in support of the revocation of the delegate’s decision constituted a failure to complete his statutory task.

47    The applicant submits that the Assistant Minister “misunderstood” the law in failing to consider whether non-refoulement obligations were owed. He submits that the satisfaction referred to in s 501CA(4) of the Act is a state of mind which must be formed on a correct understanding of the law, which is an implied condition of the valid exercise of that power. See Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54].

48    As to the Assistant Minister’s misunderstandings, the applicant contends these were:

(1)    that the subject of the applicant’s representations could be addressed in the course of a protection visa application;

(2)    that there would be an assessment of the international non-refoulement obligations owed to the applicant; and

(3)    that the applicant would have the opportunity to apply for a protection visa.

49    He argues, in relations to these alleged misunderstandings, that:

(1)    Regarding the first misunderstanding, the applicant would inevitably be refused a protection visa due to his inability to satisfy the criterion in s 36(1C) of the Act. In his circumstances, it does him no good to have his representations considered in the course of a protection visa application. There was no reference in the Assistant Minister’s reasons to this criterion or the inevitable outcome that its non-satisfaction would entail. The Assistant Minister either misunderstood or overlooked this criterion for a protection visa.

(2)    Regarding the second misunderstanding, Direction 75 does not apply if the Minister makes the decision personally. As there is nothing else to compel the order in which the criteria for a protection visa are assessed, there is no guarantee that there will be an assessment of the international non-refoulement obligations owed to the applicant. Given the Assistant Minister has already shown an interest in the applicant’s case by deciding it personally, it is not farfetched that a later decision-maker holding a ministerial office will make the decision personally on any future application made by the applicant. The Assistant Minister’s reasons did not address this possibility. He either overlooked or misunderstood the fact that Direction 75 did not apply to decision-makers holding a ministerial office.

(3)    Regarding the third misunderstanding, the legal consequence of the Assistant Minister’s decision is that by s 197C and 198, the applicant must be removed from Australia as soon as practicable. This means there is no guarantee that he will have the opportunity to make a protection visa application.

50    Sections 197C and 198 of the Act relevantly state:

197C     Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198

(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.

198     Removal from Australia of unlawful non‑citizens

…

Removal of unlawful non‑citizens in other circumstances

…

(2B)     An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a)     a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and

(b)     since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and

(c)     in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

(i)     the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)     the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

Note:     The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

…

51    The applicant submits that s 197C of the Act specifically requires performance of the duty to remove a person from Australia regardless of whether they are owed non-refoulement obligations or whether there has been an assessment of the non-refoulement obligations she or he may be owed.

52    He says there is no consideration in the Assistant Minister’s decision that he, the applicant, may not be able to make an application for a protection visa due to the operation of s 197C and s 198 of the Act. Accordingly, the applicant submits, the Assistant Minister failed to take into account the Act and its operation and fell into jurisdictional error.

The Minister’s submissions

53    The Minister submits that the applicant’s reliance on error of the kind identified in BCR16 should be rejected because that case has been distinguished and, on the basis of subsequent authority – which emphasises the changed decision-making framework since BCR16 was decided – relieves the Court of any need to reach a conclusion that the Assistant Minister committed a jurisdictional error in the way contended for by the applicant.

54    In this regard, the Minister submits that the relevant decisions – Ali v Minister for Immigration and Border Protection [2018] FCA 650 and Greene v Assistant Minister for Home Affairs [2018] FCA 919 – are not “plainly wrong” and I should apply them here.

55    As to [19] of the Assistant Minister’s statement of reasons in BCR16, which reads:

[BCR16] has made claims that may give rise to international non-refoulement obligations. However, [BCR16] is able to make a valid application for another visa. In particular I note that [BCR16] is not prevented by s 501E of the Act from making an application for a Protection visa. Thus, it is unnecessary to determine whether non-refoulement obligations are owed to [BCR16] for the purposes of this decision.

the Minister says it was largely by reason of this paragraph that the majority in BCR16 concluded that there was a failure to carry out the s 501CA(4) task required under the Act.

56    The Minister submits that the key elements of the majority’s reasoning in BCR16 were:

    (at [11]) the representations that the appellant had made, pursuant to the invitation received under s 501CA(3) of the Act, were not characterised as claims relating to non-refoulement obligations owed by Australia;

    (at [65]-[66]) conclusions under s 501CA(4) of the Act, as to reasons for revocation of a cancelled decision that are included in representations made by invitation under s 501CA(3) of the Act, must be formed on a correct understanding of the law; and

    (at [35] and [67]) the Assistant Minister’s assumption at para [19] of her reasons that “non-refoulement obligations will be examined during the protection visa determination process” was wrong in law because it entailed a “misunderstanding of the likely course of decision-making” under the Act.

57    The Minister refers to what Jagot J said in Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11]:

First, it was submitted that the requirement for the Minister to form a state of satisfaction in s 501CA(4) was central to the majority’s conclusion in BCR16, does not exist under s 501(2) which involves a broad discretionary power. I disagree. While Bromberg and Mortimer JJ characterised the error in multiple ways it is apparent that at least one basis was a constructive failure to perform the function required by s 501CA(4) by reason simply of misunderstanding the operation of the Act, specifically that it permitted an application for a protection visa to be refused on character grounds alone without consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality.

58    The Minister submits that the core issue in BCR16, being the “likely course in which protection visa considerations would be addressed”, is markedly different in the present case. He submits that:

(1)    Here, in his reasons, the Assistant Minister specifically pointed out (at [16]) that “it is unnecessary” to consider whether non-refoulement obligations were owed to the applicant in the exercise of the power under s 501CA(4) of the Act (in contradistinction to a decision to grant or refuse a protection visa under s 65 of the Act).

(2)    The common sense underlying that reasoning involved the following two steps:

(a)    that the applicant could apply for a protection visa (which he had not yet done); and

(b)    that the Assistant Minister was confident that non-refoulement obligations would be addressed in the appropriate context, namely when the question was determined in the context of Australia’s international obligations as codified by reference to s 36 of the Act. In that connection, the Assistant Minister in the present case expressly relied in his reasons (at [15]) on the ministerial policy in Direction 75 to express his confidence that the applicant would have the opportunity to have his claims fully assessed if he made a protection visa application.

(3)    Direction 75 requires delegates to consider whether protection obligations exist before considering criteria that might make them otherwise ineligible, for example, the application of the “character test”.

(4)    Direction 75 was issued on 5 September 2017, after BCR16 was decided. Direction 75 thus removes the possibility that a delegate might consider character grounds, and refuse a protection visa on that basis, before giving consideration to the relevant risk of harm.

(5)    Taken together, these matters are more than sufficient to conclude that the Assistant Minister had regard to the question whether non-refoulement obligations would be taken into account at the appropriate time.

59    The Minister refers to Ali, in which he says the Assistant Minister’s consideration of non-refoulement obligations contains, at [20]-[21], reasons in identical terms to those found here at [15]-[16] of the Assistant Minister’s reasons (and set out above).

60    The Minister draws attention to Flick J’s reasoning in Ali at [23], [28] and [33], as follows:

23.     Paragraph [20] of these reasons is unquestionably an attempt on the part of the Assistant Minister to address the concerns expressed by the Full Court in BCR16. The Assistant Minister was obviously fully aware of Direction No 75.

…

28.     At the end of the day, the decision sought to be reviewed in the present proceeding is the decision made on 25 October 2017 to not exercise the power conferred by s 501CA(4) to revoke the original decision. That decision-making process relevantly required a state of satisfaction to be formed – not as to whether a person satisfied the criteria prescribed by s 36(2) – but a state of satisfaction as to whether ‘there is another reason why the original decision should be revoked’ for the purposes of s 501CA(4)(b)(ii).

…

33.     But these are all decision to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

61    The Minister also notes that in Greene, at [19], Logan J expressed agreement with what Flick J had to say.

62    The Minister contends that I should follow this reasoning and so find that the Assistant Minister’s decision is not affected by jurisdictional error of the kind identified by the Full Court in BCR16 or as contended by the applicant here.

63    He further submits that s 501CA of the Act does not require the Assistant Minister to prognosticate as to how a future decision-maker might consider non-refoulement obligations in the context of another decision-making process, based on facts which are not presently known nor capable of being known with precision. It would not be appropriate, on the Minister’s submission, for the Court to attempt to engage in speculation and conjecture, or otherwise influence the discretion available to a decision-maker considering the requirements in s 36 of the Act.

64    The Minister submits that the Assistant Minister considered all relevant statutory requirements in deciding not to revoke the delegate’s decision and there is nothing in the Act preventing the applicant from applying for a protection visa following the Assistant Minister’s decision.

65    Finally, the Minister contends that the Assistant Minister’s decision was not unreasonable or irrational and was within his area of decisional freedom.

Consideration

66    I should say at the outset of my consideration of this application that it raises issues of practical and legal complexity and importance. As the authorities cited by the parties, and some others referred to below, disclose, they have been agitated in a number of recent proceedings in the Court.

67    As in the earlier cases of BCR16, Ali, and Greene, the applicant here at material times, was entitled to reside in Australia, in this case pursuant to his permanent refugee visa.

68    The circumstances in which that visa was granted to the applicant have been recounted at [2]-[3] above, and I need not repeat them.

69    It is sufficient to say that it is not difficult to understand why the visa was granted in the first instance; nor why the applicant would fear being returned to South Sudan and raises questions of non-refoulement.

70    It is well understood that the law of Australia relating to the protection of refugees is affected by the Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954) (Refugees Convention), to which Australia is a signatory.

71    The terms of the Migration Act, as the Minister’s submissions suggest, are intended to reflect much of the obligation Australia has assumed under principles of international law in respect of refugees.

72    The Act, however, is the primary law that governs the coming to and going from Australia of persons who are aliens and do not hold Australian citizenship.

73    In this case, the applicant has, at material times until recently, by reason of his permanent refugee visa, been entitled under the Act to reside in Australia.

74    However, all visas granted under the Act, including that granted to the applicant in his special circumstances, are subject to cancellation in certain circumstances.

75    Section 501 provides for the cancellation power to be exercised by the Minister in a number of circumstances:

    The Minister may cancel a visa, under subs (2), if the Minister reasonably suspects that the person does not pass the character test; and the person does not satisfy the Minister that the person passes the character test, as defined.

    The Minister may cancel a visa, under subs (3), if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in the national interest.

76    Under subs (2) and subs (3), the Minister’s cancellation power is discretionary.

77    However, under subs (3A), the Minister “must” cancel a visa that has been granted to a person if:

    the Minister is satisfied that the person does not pass the character test because of having a substantial criminal record (as defined by the Act) or by reason of conviction of sexually based offences involving a child (as described in the Act); and

    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.

78    Section 501(6) explains when a person does not pass the character test. This happens when a person has a “substantial criminal record”, amongst other circumstances there described.

79    By subs (7), a person has a substantial criminal record if, amongst other things, they have been sentenced to a term of imprisonment of 12 months or more.

80    In this case, the applicant’s permanent refugee visa was cancelled under s 501(3A) because he had a substantial criminal record, as defined, and because he was serving a full-time sentence of imprisonment for having committed the Australian offence of “grievous bodily harm”. There is no doubt about the satisfaction of either of those factors and the applicant does not suggest otherwise.

81    The way the Act then works is that, under s 501CA, where the Minister has made a decision under s 501(3A), as here, to cancel a person’s visa, the Minister must invite the person to make representations to the Minister about revocation of the original decision.

82    Section 501CA(4) has been set out above, at [15]. In short, the Minister may revoke the original decision if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or “that there is another reason why the original decision should be revoked”. The present case involves the exercise of this revocation power given to the Minister. As a matter of practice, the “Assistant Minister” is often deputised to make the decision for the Minister.

83    In the present case, because there was no dispute that the applicant did not and could not pass the character test, the question, for the purposes of the revocation decision-making process undertaken by the Assistant Minister, was whether there was “another reason” why the original cancellation decision should be revoked.

84    In that regard, as the Assistant Minister’s reasons for refusing to revoke the cancellation of the visa disclose, the applicant made representations as to why there was another reason to revoke having regard to the following factors:

    Australia’s international non-refoulement obligations;

    the strength, nature and duration of his ties to Australia;

    the extent of impediments that he would face if removed from Australia to South Sudan; and

    the protection of the Australia community.

85    I have set out above the nature of the submissions made by the applicant about these matters. One of particular significance to the proceeding currently before me, is that concerning Australia’s international non-refoulement obligations.

86    The obligation of non-refoulement, which arises in international law and under the Refugees Convention, concerns the obligation of Australia not to return a person in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. The principle is expressed in Art 33 of the Refugees Convention. Non-refoulement obligations are also found under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment on Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 (entered into force 26 June 1987) and the International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171 (entered into force 23 March 1976), and complementary protection provisions contained in s 36(2)(aa) of the Act.

87    In this case, the applicant made the representation to the Assistant Minister that another reason for revoking the cancellation of his permanent refugee visa was that, as a member of the Nuer Tribe, a minority population which faces discrimination and persecution in South Sudan, there was a real possibility that he would risk being killed should he be returned to any part of Sudan, or South Sudan.

88    The representation to the Assistant Minister was that unless the decision to cancel his visa was to be revoked there was a real chance he would be returned to Sudan or South Sudan and be killed.

Section 197C and s 198 contentions

89    The applicant says that his concerns, in this regard, are heightened by the obligation imposed on an officer, under s 198 of the Act to remove an “unlawful non-citizen” as soon as reasonably practicable, notwithstanding Australia’s non-refoulement obligations owed to him, as provided for by s 197C.

90    The applicant fears that he will be removed from Australia, and returned to South Sudan, imminently upon the expiration of his current custodial term of imprisonment in early 2019. He thus relied on the non-refoulement obligation as a reason why the Assistant Minister should decide to revoke the visa cancellation decision.

91    As I noted above, the Assistant Minister, in his reasons, at [13], after referring to the applicant’s submission that he will face harm if returned to South Sudan, appears to have both considered and accepted the applicant’s concern was well based, by stating:

I note that that there is a real possibility that [the applicant] will risk being killed should he be returned to any part of Sudan or South Sudan where there is widespread killing of Nuer men by members of the South Sudanese armed forces.

92    At [14] of his reasons, the Assistant Minister also took into account that the applicant’s return to South Sudan may also put him at risk of kidnapping and torture as a result of his family’s previous opposition to warring tribes and may be killed as payback.

93    Then, at [15], the Assistant Minister stated:

I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection−specific criteria before proceeding with any consideration of other criteria, including character−related criteria. To reinforce this practice, I have given a direction under s.499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s.501.

94    The Assistant Minister then stated, at [16]:

Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.

95    The applicant submits that the legal consequence of the non-revocation decision was misunderstood by the Assistant Minister, in that there was no guarantee that the applicant would have an opportunity to apply for a protection visa, due to the effect of s 197 and s 198 of the Act.

96    I observe that in Ali at [31], Flick J noted that one possibility “raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia’s international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past”. Of course, that is not to say refoulement is theoretically an unavailable option to Australia.

97    In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576; [2017] FCA 448, North ACJ, in the context of the Minister’s refusal to grant a protection visa on character grounds, held that the Minister’s understanding, that the result of his decision would be that the applicant would be indefinitely detained in Australia, was flawed because s 197C in law operates to the effect that the person is to be immediately removed as is the relevant officer’s duty under s 198 of the Act, subject only to the Minister considering “alternative management options”.

98    The Court has applied this holding in DMH16 in cases such as NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944, both of which were in the context of the refusal of visa applications, rather than non-revocation decisions under s 501CA(4), confirming that the only “alternative management options” are those available under s 195A and s 197AB of the Act, which are for the Minister to consider personally, and of which there is no duty to do so. In NKWF, the Court confirmed, at [31], that if there was no decision, at the time of the Minister’s refusal, to consider “alternative management options”, then the consequence of the refusal decision was the applicant’s removal under s 198.

99    In BCR16, which concerned a s 501CA(4) decision, as here, the majority, at [57], noted the finding in DMH16, however preferred not to determine the case on the basis of a s 197C argument, which, it said, could await an appropriate case for such findings to be made.

100    On the face of it, s 197C and s 198 mean what they say, and if a person does not hold any relevant visa or no alternative management options have been made by the Minister, then they must be removed from Australia.

101    In the present case, however, it seems to me the time for s 197C and s 198 to apply have not arrived. The applicant may, as the Minister submits, have the question of Australia’s non-refoulement obligations to him considered as part of a protection visa application, should he make such an application. It is for the applicant to decide whether he wishes to avail himself of that opportunity. He is not precluded from doing so.

102    In my view, if he makes that application, Australia’s non-refoulement obligations to the applicant would not be ignored, having regard to the materials currently before the Court.

Direction 75 contention

103    The applicant further submits that Direction 75 does not guarantee that his non-refoulement obligations would be assessed.

104    Direction 75 relevantly states:

3.     Application

This Direction applies to delegates who consider valid applications for Protection visas under section 47 of the Act, and perform functions or exercise powers under section 65 of the Act to grant or refuse to grant Protection visas.

…

4.     Preamble

Objectives

1.     The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

2.     Under section 36(1C) of the Act, 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. If the person is a person who the delegate considers falls within the ambit of one or both limbs of section 36(1C), the delegate must refuse the visa under section 65 of the Act.

3.     Under section 36(2C)(b) of the Act, an applicant for a Protection visa relying on complementary protection grounds, is similarly ineligible for the grant of a Protection visa if: the Minister considers, on reasonable grounds, that: (i) the non-citizen is a danger to Australia’s security; or (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.

4.     …

5.     Sections 36(1C) and 36(2C)(b) reflect the Government’s intention that regardless of whether other criteria for the grant of a visa are met, a person who poses a danger to Australia’s security or to the community should not be granted a Protection visa.

…

Part 2 of Direction No. 75 – Directions

In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.

1.     The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision maker finds the claims do not meet the refugee or complementary protection criteria, the decision maker must refuse to grant the visa.

2.     Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).

3.     Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

a)     Where the applicant meets both section 36(2)(aa) and section 36 (1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

4.     If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501

5.     The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

105    Prior to the Minister issuing Direction 75 under s 499 of the Act on 5 September 2017, the majority in BCR16, as confirmed and explained in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68, held that the Assistant Minister erred in assuming that non-refoulement obligations would necessarily be considered in a subsequent protection visa application.

106    The applicant submits that Direction 75 does not apply to the Minister, should the Minister make the decision personally.

107    The Minister, in oral submissions, accepted that Direction 75 does not bind the Minister, however submitted that it was rare for the Minister to make such a decision personally, and questioned why the Minister would not follow his own direction, if he was indeed to make the relevant decision.

108    From the Minister’s submissions before me, I proceed on the basis that, as a model litigant, the Minister would ensure Direction 75 is applied regardless of which official determines a protection visa application under the Act, if made by the applicant.

109    Additionally, for the reasons given by Griffiths J in the recent decision of DOB18 v Minister for Home Affairs [2018] FCA 1523, at [24]-[31], I consider the Assistant Minister’s reasons here make it sufficiently plain that the Minister, if he were to make the protection visa decision personally, would proceed on the basis of Direction 75.

110    I find therefore that Direction 75 remains relevant to the question whether there will be a proper opportunity for Australia’s non-refoulement obligations to the applicant to be considered following the Assistant Minister’s non-revocation decision.

111    Moreover, I consider I should follow the decisions in Ali and Greene.

Different process of weighing up contention

112    If Direction 75 applies, the applicant further refers to BCR16 at [37]-[52], to emphasise that decision-making under s 65 of the Act, which includes provisions outlining the refusal of a protection visa application due to the non-satisfaction of one of the relevant criteria, involves a very different exercise to the weighing up of factors when the Minister exercises the revocation power under s 501CA(4).

113    The applicant submits that, should he make a protection visa application, it would inevitably fail, as a result of non-satisfaction of s 36(1C). He refers to this being a necessary outcome based on the need for “integrity and consistency” in decision-making, as discussed by the majority in BCR16 at [69].

114    The outcome of the Assistant Minister’s non-revocation decision, the applicant contends, is a “practical injustice”, in that he is thereby deprived of the opportunity to have his representations considered at a stage where a weighing up process and use of discretion may produce a result that is beneficial – namely, when the decision to cancel his refugee visa can be revoked, with the outcome that he can continue to lawfully live in Australia.

115    The Minister submits that Ali and Greene and s 501CA do not require the decision-maker to “prognosticate” as to how a future decision-maker might consider non-refoulement. In oral submissions, the Minister further argued that the applicant may be able to be involved in rehabilitation, for example, prior to the consideration of an application for a protection visa, meaning that a refusal under s 36(1C) of the Act is not yet determined.

116    The applicant, however, draws attention to the Assistant Minister’s findings at [43]-[60] regarding his risk to the Australian community, a letter dated 27 March 2017 from the Prisoners Review Board denying him parole, and the fact that he is due for release in early 2019 and there are no rehabilitation programs in immigration detention, all of which go to demonstrate that the probability of him being considered a “danger to the Australian community”, in s 36(1C) terms following an application for a protection visa, is all but a foregone conclusion.

117    In DOB18, Griffiths J said this, in relation to a submission not materially different from that made in Ali and now advanced before me:

34    In Ali, in response to a similar submission to that which the applicant advances here, Flick J emphasised that the relevant decision-making process under s 501CA(4) required a state of satisfaction to be formed, not as to whether a person satisfied the criteria for the grant of a visa under s 36(2), but rather a state of satisfaction as to whether there was “another reason” why the original decision should be revoked (see Ali at [28]). His Honour then added at [31] that, if the applicant were to apply in the future for a visa (including a protection visa), and it was considered by the Minister personally, then the Minister would be confronted with the need, at that time, to consider whether the application should again be refused on the basis of non-satisfaction of the character test and/or whether the applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia. His Honour then concluded at [33]-[34]:

33.    But these are all decision to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

34.    Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:

•    the sequence in which claims would be resolved in accordance with Direction No 75.

Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:

•    the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.

35    Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]. As the judgment in Turay was published in Court on the day of the hearing of this matter, the parties were given leave to file brief post-hearing supplementary submissions on its relevance to this proceeding. Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making, such as that presented by the Minister’s decision here under s 501BA.

118    I feel bound to apply the same reasoning here, for it is not “plainly” wrong. Thus, the contention made by the applicant cannot succeed.

Conclusion and orders

119    For these reasons, I do not consider the applicant’s proposed ground of review – or any of its particular strands – can succeed. As a result, the application should be dismissed with costs.

120    The Court orders:

(1)    The application be dismissed.

(2)    The applicant pay the respondent’s costs, to be assessed if not agreed.

Associate:

Dated:    13 November 2018