FEDERAL COURT OF AUSTRALIA

Sowa v Minister for Home Affairs [2018] FCA 1999

ORDERS

THE COURT ORDERS THAT:

1.    The amended application dated 23 October 2018 be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant seeks judicial review of a decision dated 3 July 2018 by the Assistant Minister for Home Affairs (the Minister). The Minister made a decision under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) that he was not satisfied that there was “another reason” to revoke an earlier decision dated 27 June 2017 by the Minister’s delegate. The earlier decision involved the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the visa), pursuant to s 501(3A) of the Act.

2    For the reasons that follow, the amended application for judicial review will be dismissed, with costs.

Summary of background facts

3    Mr Sowa is a citizen of Sierra Leone. He arrived in Australia on 9 September 2009, when he was aged 16. His mother, younger sister and younger brother are all Australian citizens. The applicant’s visa was mandatorily cancelled under s 501(3A) of the Act after Mr Sowa was convicted on 14 July 2015 in the District Court of New South Wales of the offence of aggravated Break and Enter and Commit Serious Indictable Offence (People There), for which he was sentenced to nine years imprisonment, and Assault Occasioning Actual Bodily Harm (dv), for which he was sentenced to 45 months imprisonment. In determining the sentence for the first conviction, an offence of Assault with Act of Indecency (dv) was also taken into account.

4    Mr Sowa made representations in support of his request that the visa cancellation decision be revoked. Mr Sowa’s representations included a submission that he would face harm if returned to Sierra Leone due to the unstable and violent political environment there. He made reference to the fact that his father had been brutally killed at the hand of political rivals and that other of his family members were involved in human rights and political activities, which caused him to fear that his family had many enemies in Sierra Leone and that they would seek to harm him if he were returned there. Mr Sowa’s mother swore a statutory declaration dated 18 August 2017 in support of Mr Sowa’s claims that he would be in danger if he returned to Sierra Leone.

The Minister’s decision and statement of reasons

5    The Minister provided a statement of reasons in respect of his decision dated 3 July 2018 not to revoke the visa cancellation decision. Having regard to the contents of Mr Sowa’s amended judicial review application, it is necessary to focus only upon those parts of the Minister’s reasons which relate to Australia’s non-refoulement obligations. That subject was addressed by the Minister in [21] to [30] of his statement of reasons (emphasis in original, and noting that [30] is misdescribed as [26]):

International non-refoulement obligations

21.    I note that Mr SOWA and his family arrived in Australia on a Class XB Subclass 202 Global Special Humanitarian visa, and as such, Mr SOWA’s circumstances may give rise to international non-refoulement obligations.

22.    As part of his representations seeking revocation of the original decision to cancel his visa, Mr SOWA submits that he will face harm if returned to Sierra Leone due to the unstable and violent political environment in his home country. According to his representative, he ‘fears his life would be in danger and (would suffer) significant harm on different levels if he be removed to his home country of Sierra Leone’.

23.    Making reference to the ‘brutal killing’ of Mr SOWA’s father at ‘the hand of political rivals’, and involvement of other family members in human rights and political activities, his representative further asserts that Mr SOWA ‘fears that his family has many enemies in his home country and those would seek to harm him should he be removed…’.

24.    In a statutory declaration dated 18 August 2017, Mr SOWA’s mother, Ms Kumba lsata Gbenda, describes in some detail her family’s unfortunate experiences in Sierra Leone, where, she states, they were ‘molested, humiliated and tortured’ because they were activists against female circumcision. They fled the country, but later returned because they experienced hostility and humiliation in Guinea.

25.    Ms Gbenda further advises that when she was pregnant with her youngest child her husband was killed by government forces while trying to protect her and her two eldest children, and that Mr SOWA witnessed this killing. She submits that ‘after any long and brutal conflict, there are always revenge killings, and Sierra Leone is no exception’.

26.    I am aware that the 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, the Minister has given a direction under s499 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 s501.

27.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

28.    In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of Mr SOWA for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

29.    I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers Mr SOWA’s Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of Mr SOWA. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

26.    I have also considered Mr SOWA’s claims of harm upon return to Sierra Leone outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr SOWA’s claims are such as to engage non-refoulement obligations, Mr SOWA would face hardship arising from unstable country conditions, including generalised violence and poverty, as well as his fears of revenge killings, were he to return to Sierra Leone.

The amended judicial review application

6    The amended judicial review application contained a single ground, the terms of which are as follows (omitting the very lengthy particulars) (emphasis in original):

Ground 1: The applicant was denied procedural fairness or the respondent constructively failed to exercise jurisdiction with regard to the operation of the Migration Act 1958 (Cth) and Australia’s international non-refoulement obligations

1.    The non-revocation decision by the respondent made on 3 July 2018 pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) was vitiated by jurisdictional error from [21]-[26] of the decision record, as the “assumption” by the respondent that it is “likely” that Australia’s non-refoulement obligations will be considered in the event that the applicant applies for a protection visa was wrong in law and in fact. Given the respondent’s existing, personal findings about the applicant, it is “likely” that a future protection visa application will be decided on character grounds and in the premises, it is “likely” that that neither the respondent nor a delegate to the respondent will consider Australia’s non-refoulement obligations. The applicant was therefore denied procedural fairness or the respondent constructively failed to exercise jurisdiction or the respondent failed to carry out the statutory task required by section 501CA(4) of the Migration Act 1958 (Cth), given:

i)    the respondent wrongly assumed at [28] that the applicant “is able to make a valid application for a protection visa” and failed to consider that a future application for a protection visa by the applicant may be refused under section 65 of the Migration Act 1958 (Cth) purely on character grounds pursuant to public interest criteria 4001(a) or (b), and the Minister or the Minister’s delegate would, lawfully, never reach active consideration of the criteria in s 36(2)(a) and (aa), nor would the s 501(1) discretion be engaged; and/or

ii)    the respondent failed to consider the operation of section 196 of the Migration Act 1958 (Cth) that the applicant may be indefinitely detained under section 189 of the Migration Act (Cth) which requires a person to be kept in immigration detention until (a) removed; or (c) granted a visa; and/or

iii)    the respondent failed to consider the operation of section 198 of the Migration Act 1958 (Cth) that the applicant must be removed as soon as practicable, given section 197C of the Migration Act 1958 (Cth) provides that, for the purposes of s 198, “it is irrelevant whether Australia has non‐refoulement obligations in respect of an unlawful non‐citizen”.

…

The applicant’s submissions summarised

7    In his original outline of written submissions, the applicant contended that the Minister had denied him procedural fairness, had constructively failed to exercise his jurisdiction or failed to carry out the statutory task required by s 501CA(4) of the Act. In support of that contention, the applicant relied upon the following matters:

(a)    The Minister wrongly assumed that the applicant was able to make a valid application for a protection visa and he also failed to consider that any such application as might be made could be refused purely on character grounds, with the consequence that the Minister or his delegate would never reach active consideration of the criteria for a protection visa in s 36(2) of the Act, nor would the s 501(1) discretion be engaged. Under s 501(1) the Minister is empowered to refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test (as defined in s 501(6) and see also s 501(7), which defines “substantial criminal record”).

(b)    The Minister failed to consider the operation of s 196 of the Act and that the applicant might be indefinitely detained under s 189 of the Act.

(c)    The Minister failed to consider the operation of s 198 of the Act, which required the applicant to be removed as soon as practicable and in circumstances where s 197C provided that, for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

8    The applicant referred to BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16), where it was held by a majority (Bromberg and Mortimer JJ) that the Assistant Minister had erred in assuming that non-refoulement obligations would necessarily be considered if the appellant in that case made a protection visa application. The applicant also made reference to a subsequent decision of the Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68, where the Full Court rejected a contention that BCR16 was plainly wrong (see at [73] and [87]).

9    The applicant then acknowledged that “regrettably” BCR16 was distinguishable. That is because after that decision was published, on 5 September 2017 the Minister gave a Direction under s 499 of the Act (Direction No 75). The Direction is binding on decision-makers, apart from the Minister. Relevantly it provides:

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.

10    The applicant also referred to Flick J’s decision in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali). His Honour’s reasons for judgment were summarised at some length by the applicant. The applicant also noted that Logan J expressed agreement with Flick J’s reasons in Ali in Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene). The applicant contended that there was “an insufficient logical or evidentiary basis” for the Minister to find at [27] of his statement of reasons that it is “highly likely” that a future protection visa application will be considered by a delegate and that such a delegate will be bound by Direction No 75. He contended that given the Minister’s adverse findings regarding the applicant’s character, there was a “real possibility” that a future protection visa application would be decided on character grounds and that neither the Minister nor a delegate would consider the risk of harm if the applicant were returned to Sierra Leone.

11    The applicant also contended that the Minister had misunderstood the operation of the Act because what was said at [29] of the Minister’s statement of reasons was either incorrect or incomplete. He contended that the Minister failed to consider that the applicant might be indefinitely detained under s 196, nor had he considered the operation and interrelationship between ss 198 and 197C of the Act.

The Minister’s submissions summarised

12    The Minister’s central argument was to the effect that the applicant’s case did not grapple with the different stages of decision-making under the Act. The importance of this matter was emphasised in cases such as Ali per Flick J; Greene per Logan J; Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J; DOB18 v Minister for Home Affairs [2018] FCA 1523 (DOB18) per Griffiths J and BKS18 Minister for Home Affairs [2018] FCA 1731 (BKS18) per Barker J. The Minister submitted that the Minister’s statement of reasons were substantially similar to the statements of reasons in those authorities. The Minister added that, in the case here, the possible future of the operation of the Act had been taken into account and correctly identified, including the Minister’s express reference to the possibility that the Minister may consider any subsequent protection application personally rather than by a delegate. This made the case even more clear than the aforementioned authorities.

The applicant’s supplementary submissions summarised

13    At the commencement of the hearing, the applicant’s counsel handed up a 20 page document entitled “The applicant’s outline of oral submissions”. Counsel explained that the submissions expanded upon the earlier outline and were also in reply to the Minister’s submissions. The Minister did not oppose the Court taking this additional material into account.

14    The focus of the supplementary submissions was primarily on the line of cases commencing with Ali. The applicant contended that the cases were plainly wrong, or were distinguishable. It is sufficient to focus primarily on the applicant’s contentions as to why he said Ali was incorrectly decided:

(a)    Flick J erred at [21] because his Honour should have accepted that the operation of other provisions in the Act, such as ss 189 and 197C, were relevant to be considered in the context of a decision under s 501CA(4), and not simply deferred for consideration if and when a protection visa application is made under s 65;

(b)    Flick J erred by conflating the decision-making processes under s 65 with the process under s 501CA(4), in circumstances where the former is “a hypothetical question” which may never be reached, while the latter “was a real consideration for the present decision”; and

(c)    Flick J further erred at [33] by failing to appreciate “the different contemplations under an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65…”.

15    It is evident that these three contentions overlap to a substantial extent.

16    The applicant submitted that, while he accepted that the facts in BCR16 are distinguishable, nevertheless the majority’s reasoning at [52] and [60] was applicable here.

17    The applicant submitted that the Minister here should have proceeded on the basis of an “assumption” which favoured the applicant, namely that it was unlikely that any non-refoulement obligations would be considered in advance of character grounds if the applicant were to make a future application for a protection visa. This submission relied upon the gravity of the Minister’s existing, personal findings about the applicant.

18    The applicant submitted that DOB18 was also distinguishable because it concerned a decision under s 501BA, as opposed to a s 501CA(4) decision.

Consideration and disposition of the amended application

19    In my respectful view, the principles established in Ali, as adopted and applied in subsequent authorities which are referred to above, are correct. I reject the applicant’s submission that these principles are plainly wrong, or that the relevant authorities are distinguishable because, for example, in the case of DOB18, a different statutory provision applied.

20    In Ali, in declining to revoke a mandatory cancellation decision, the Assistant Minister reasoned that it was unnecessary to determine whether the applicant there was owed non-refoulement obligations as it was considered that the applicant was able to make a valid application for a protection visa. In that event, “the existence or otherwise of non-refoulement obligations would be considered in the course of processing that application”. The Assistant Minister also made express reference to Direction No 75 and the fact that it required certain decision-makers who are considering an application for a protection visa to 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 of the Act. At [23] of his Honour’s reasons for judgment, Flick J said that these passages from the Assistant Minister’s statement of reasons were unquestionably an attempt to address the majority judgment in BCR16.

21    In Ali, Flick J then addressed a contention which was advanced by the applicant there that the Assistant Minister erred because he did not confront the possibility that in the future the Minister could make a decision under s 501 to refuse to grant a visa on character grounds and without needing to consider other criteria prescribed by s 36(2). His Honour stated at [26] (emphasis in original):

26.    …

•    ... That possibility would emerge if the Minister were to form the view that, whatever the merit of the claim to refugee status may be, the visa applicant did not pass the character test (s 501(1)) or if the Minister reasonably suspected that the person did not pass the character test and was satisfied that a decision to refuse the visa was in the national interest (s 501(3)); and/or

•    the lack of utility in “putting off” any consideration as to whether the Applicant satisfied the criteria prescribed by s 36(2). There would be no utility in “putting off” any assessment as to “the refugee and complementary protection criteria” if the inability to satisfy the character test would or could ultimately result in the refusal or cancellation of a visa, regardless of the conclusion reached as to any protection obligations that may be owed to the Applicant. A person with no lawful authority to remain in Australia, but who could not be returned to the country of origin because of Australia’s non-refoulement obligations under international law, could be exposed to indefinite detention.

22    Although Flick J described the applicant’s contention as having “a certain initial attraction”, he rejected it for the following reasons. First, it was critical to appreciate that the judicial review proceeding related to the Assistant Minister’s decision under s 501CA(4) declining to revoke the original decision. This statutory provision required the decision-maker to have a state of satisfaction as to whether there was “another reason” why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii). It did not require a state of satisfaction to be formed as to whether a person satisfied the criteria for a protection visa as set out in s 36(2) of the Act.

23    Secondly, his Honour reasoned that if the applicant were to apply in future for a protection visa (as might reasonably be expected because the applicant’s visa which was cancelled there, as is the case here, was a Global Special Humanitarian visa and the applicant’s representations there also raised the issue of non-refoulement), such an application could be resolved by a delegate in accordance with Direction No 75.

24    Thirdly, Flick J then addressed the significance of the possibility that any future application by the applicant for a protection (or any other) visa might be considered by the Minister rather than by a delegate. Consequently, Direction No 75 would not bind the Minister. His Honour said that, in such circumstances, the Minister would need to consider whether:

(a)    the visa application should again be refused pursuant to ss 501(1) or (3) upon the basis that the visa applicant did not satisfy the character test; and/or

(b)    the applicant should be given some form of visa, possibility subject to conditions, regularising his continued presence in Australia.

25    It is well to set out Flick J’s reasoning at [31] to [33] (emphasis in original):

31.    …

The difficulties confronting the Minister would then be considerable. One possibility to be 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. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

32.    The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia’s international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.

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.

26    Justice Flick concluded that the Assistant Minister’s statement of reasons exposed no misunderstanding as to the power then being exercised (i.e. s 501CA(4)), nor any misunderstanding as to the sequence in which claims would be resolved in accordance with Direction No 75 or the manner in which any future applications would be resolved if made by the Minister. His Honour explained why the majority’s reasoning in BCR16 was inapplicable. This was partly because of the Minister having made Direction No 75 to address that reasoning and, insofar as the Minister’s personal decision-making is concerned, unlike the position in BCR16, the Minister understood the possible sequence of future decision-making under the Act.

27    In my respectful view, Flick J’s reasoning in Ali should be adopted and applied here (as it also was in Greene per Logan J, Turay per Farrell J, DOB18 per Griffiths J and BKS18 per Barker J). I do not consider that that reasoning is inapplicable because, unlike the position in Ali, the Minister’s statement of reasons includes findings and observations by the Minister that it was “highly likely” that any future protection visa application would be considered by a delegate, who would be bound by Direction No 75 (see [26] to [28] of the statement of reasons). Moreover, the Minister here specifically addressed the possibility that any future protection visa application made by Mr Sowa might be considered and determined by the Minister personally rather than by a delegate (see [29] of the statement of reasons). The Minister correctly acknowledged that, in that event, he would not be bound by Direction No 75 and “would not necessarily determine whether non-refoulement obligations are owed” in respect of Mr Sowa. The Minister concluded that such a situation would “only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75”. In this way, the Minister did turn his mind to possible future scenarios but took the view that they could be taken no further at this stage because they were hypothetical.

28    I reject the applicant’s contention that there is “an insufficient logical or evidentiary basis” for the Minister to find at [27] of his statement of reasons that it is “highly likely” that a future protection visa application will be considered by a delegate who would be bound by Direction No 75. It was plainly open to the Minister to reason as he did in [27]. It may reasonably be inferred that the Minister is familiar with the processes of decision-making within his own Department.

29    As to the applicant’s claim that there is “real possibility” that a future protection visa application by him will be decided on character grounds given the Minister’s existing personal adverse findings about the applicant and this matter was not taken into account by the Minister, this submission is rejected. On the assumption that any such future application fell to be determined by a delegate, the delegate will be bound by Direction No 75. If the application fell to be determined by the Minister, the Minister expressly stated that he had taken into account the “unlikely” possibility that he might depart from the policy approach set out in Direction No 75. It is clear from [29] that the Minister took this remote possibility into account in making his decision under s 501CA(4). That is the decision which is the subject of the applicant’s judicial review challenge in this proceeding.

30    No jurisdictional error is disclosed in reasoning as the Minister did, bearing in mind that the matter being determined was whether or not to revoke the original decision, as opposed to a consideration and determination of any protection visa application which may or may not arise in the future. As Flick J pointed out, it will be at that time that attention may need to be given to any non-refoulement obligation, as well as the operation and effect of provisions such as ss 196, 197C and 198 of the Act.

31    The sequence of decision-making under the Act is critical (see DOB18 at [32]-[35] per Griffiths J and the cases cited therein, as well as BKS18 at [101] per Barker J).

32    I reject the applicant’s submission that DOB18 is distinguishable on the basis that it involved a different statutory provision. The reasoning in Ali is equally applicable to such a case.

33    The Court was advised that a notice of appeal has been filed in DOB18 and that an application for leave to appeal has been filed in respect of BKS18. As matters stand at present, I consider that the relevant legal principles are clear. The applicant did not seek an adjournment pending the outcome of those appeal processes.

Conclusion

34    For these reasons, the amended application will be dismissed, with costs.

Associate:

Dated:    14 December 2018