FEDERAL COURT OF AUSTRALIA

CUV18 v Minister for Home Affairs [2018] FCA 2009

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal not to revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Spouse (Residence) visa be quashed.

2.    The matter be remitted to the Administrative Appeals Tribunal for determination of the application for review in accordance with law.

3.    The first respondent pay the applicant’s costs of the application as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    The applicant sought an order quashing the Administrative Appeals Tribunal’s decision of 23 April 2018 affirming a decision of the Minister’s delegate under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Spouse (Residence) visa under s 501(3A) of that Act: YKZZ and Minister for Immigration and Border Protection (Migration) [2018] AATA 970.

2    The applicant’s visa was the subject of mandatory cancellation under s 501(3A) of the Act because the applicant failed the “character test”, a fact about which there was no dispute. The Tribunal decided that it was not satisfied that there was “another reason why the original decision [to cancel the visa] should be revoked”, as provided for in s 501CA(4), so it affirmed the decision under review.

3    The amended originating application identified a number of grounds of alleged error by the Tribunal. The grounds which were pressed fall into three categories. First, that the Tribunal applied the incorrect provisions of the relevant Ministerial Direction (cl 9 instead of cl 13) causing its consideration to miscarry. Second, that the Tribunal failed to consider the possibility that as a consequence of the decision the applicant would be exposed to indefinite detention which, in the circumstances, was a relevant consideration required to be considered. Third, that the Tribunal’s approach to Australia’s non-refoulement obligations, which were required to be considered under the Direction, miscarried.

4    In my view, the applicant has established the first and the third of these categories of error, with the consequence that the Tribunal’s decision is a nullity and must be quashed.

Background

5    The applicant is a citizen of Iran. On 28 August 2006, whilst offshore, he was granted a TO-300 (Prospective Marriage) visa sponsored by his wife. On 16 November 2006 he arrived in Australia. On 19 December 2007 the applicant’s daughter was born. On 4 January 2008, the applicant was granted a UK-820 (Temporary Spouse) visa and thereafter on 22 June 2009 the applicant was granted a Class BS Subclass 801 Spouse (Residence) visa. The applicant and his wife later separated.

6    The applicant accepted that he failed the “character test” in s 501(3A) of the Act which meant that his visa had to be cancelled. The written submissions for the applicant said:

11.    Most significantly, on 15 March 2015, the Applicant was sentenced to a term of imprisonment of four years and six months, with a non-parole period of two years and six months for offences arising out of him causing a fire in his unit on 9 December 2011 whilst attempting to manufacture drugs. He was also convicted on that day of other offences as a result of being found in November 2013 of having a crude laboratory to feed his drug habit.

12.     …this led to the mandatory cancellation of the Applicant’s visa under s.501(3A) of the Migration Act on 9 May 2016 i.e. the Original Decision. On that same day the Applicant was invited to make representations regarding the cancellation of his visa which he did on 20 May 2016.

13.    Thereafter, on 18 October 2016, a delegate of the Minister determined not to revoke [the mandatory cancellation of] the Applicants visa under s.501CA(4) of the Migration Act.

7    On 23 November 2016 the applicant applied for a Class XA Subclass 866 (Protection) visa. He said that as a member of the Baha’i faith and due to the public reporting of his crimes he has a genuine fear of persecution in Iran.

8    On 2 June 2017 the applicant applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation of his spouse visa.

9    On 6 September 2017 the applicant’s application for a protection visa was refused by a delegate of the Minister. On 18 September 2017 the applicant applied to the Tribunal for review of that decision. On 30 October 2017 the Tribunal heard that application and reserved its decision.

10    On 28 November 2017 the Tribunal heard the application for review of the decision not to revoke the cancellation of the applicant’s spouse visa.

11    On 12 February 2018 the Tribunal decided to affirm the decision not to grant the applicant a protection visa. On 5 April 2018 the applicant applied to the Federal Circuit Court for judicial review of this decision.

12    On 23 April 2018 the Tribunal decided to affirm the decision not to revoke the cancellation of the applicant’s spouse visa. On 25 May 2018 the applicant applied to this Court for judicial review of that decision. These reasons concern that application.

13    On 5 June 2018 the Federal Circuit Court allowed the application for judicial review of the Tribunal’s protection visa decision and remitted that matter to the Tribunal for determination according to law. The Tribunal later affirmed the decision not to grant the protection visa.

14    On 1 August 2018 the Tribunal made a direction, citing s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), that the text of its reasons for decision not to revoke the cancellation of his spouse visa be amended. The amendments were to a section in which the Tribunal considered protection of the Australian community as a primary consideration, purportedly in compliance with Ministerial Direction No. 65 (the Direction). The amendments changed citations in that section from cl 9.1 of Part A of the Direction to cl 13.1 of Part C of the Direction. It was common ground that Part A of the Direction was inapplicable and irrelevant and that Part C of the Direction applied and had to be considered.

The revocation power

15    By s 501CA(4) of the Act, if a visa is cancelled on character grounds under s 501(3A), the Minister may revoke the cancellation, if:

(a)    the person makes representations …; 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    In exercising the power under s 501CA(4) the Tribunal was bound to comply with the Direction: s 499(1) and (2A) of the Act.

17    The Direction comprises several parts. Part C “identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa”. Part A “identifies the considerations relevant to visa holders in determining whether to exercise the discretion to cancel a non-citizen’s visa”. As noted, it is common ground that in the present case Part C applied and had to be considered by the Tribunal.

18    The following table, provided for the applicant, shows the differences between cll 9 and 13 of the Direction, with any differences the applicant submitted were relevant in italics:

Grounds of review

19    On 18 September 2018 the applicant filed an amended originating application. The grounds pressed were directed to the Tribunal’s consideration of whether it was satisfied there was “another reason why the original decision should be revoked”: see s 501CA(4)(b)(ii). Those grounds (with a numbering error corrected) were as follows:

1.    The Tribunal fell into jurisdictional error by applying the wrong law, namely Part A of Direction 65, as opposed to Part C of Direction 65, as was required.

1A.    In making a direction on 1 August 2018 (the 1 August 2018 Direction) purporting to alter the text of the Decision to correct a clerical error, such that [citations to Cl 9.1 were amended to cl 13.1] the Tribunal exceeded its power in s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and therefore fell into jurisdictional error.

…

4.    The Tribunal, in failing to consider the consequences of a refusal to revoke the cancellation of the Applicant’s visa (namely the possibility of indefinite detention), failed to take into account a relevant consideration, and therefore fell into jurisdictional error.

5.    The Tribunal fell into jurisdictional error in at Reasons [52] in taking into account an irrelevant consideration, namely the availability of “Ministerial discretion” available to the Applicant having regard to Australia’s international non-refoulement obligations as was required by Direction 65.

20    It was also common ground that if the Tribunal in fact considered cl 9 rather than cl 13 of the Direction then the errors in the reasons were not capable of amendment under s 43AA(1) of the AAT Act because they would not be “obvious errors” as provided for in the provision: Re Murray and Repatriation Commission (1998) 52 ALD 117 at [31]; Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160 at [65]; Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570 at [24]–[25]. Accordingly, ground 1A is immaterial. In short, as the parties accepted during the hearing:

(1)    if the Tribunal in fact considered cl 9 rather than cl 13 of the Direction then the relevant issue is whether that error was material and, if material, amendment of the reasons could not cure the error which would warrant the description of jurisdictional error and would vitiate the Tribunal’s decision; and

(2)    if the Tribunal in fact considered cl 13 rather than cl 9 of the Direction, with the consequence that the references to cl 9 in the Tribunal’s reasons are a typographical error, then there would be no jurisdictional error vitiating the Tribunal’s decision irrespective of the amendment of the reasons.

21    The grounds of review, accordingly, fall into the three categories noted in [3] of these reasons.

Ground 1: the Tribunal applied the wrong law

22    It was submitted for the applicant that when considering the “protection of the Australian community from criminal or other serious conduct” at [30]–[43] of its reasons the Tribunal considered and applied Part A rather than Part C of the Direction as required. These were not mere clerical or typographical errors. The citations of the wrong clause occurred in six separate paragraphs. The text of the provision cited, cl 9.1, was not identical to the text of the provision that applied, cl 13.1. Clause 13.1.1 contains factors, (a) to (h), which are referred to in cl 13.1.1(1) as factors the Tribunal “must have regard to”. Further, in [5] of the Tribunal’s reasons it referred to a discretion “to not cancel the applicant’s visa”, relevant to Part A of the Direction, when in fact the Tribunal was required to consider whether to revoke a mandatory cancellation decision under Part C of the Direction. The Tribunal thus applied the wrong law to its task which constitutes jurisdictional error as it cannot be said that the Tribunal necessarily would have reached the same conclusion had it applied Part C of the Direction as required: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [29]–[37].

23    The first respondent submitted that, when read as a whole, it should be inferred that the Tribunal had considered Part C of the Direction and that its reasons, in referring to cl 9, involved mere typographical errors. Alternatively, if the Tribunal in fact considered cl 9 rather than cl 13, the errors were immaterial because the substance of the provisions, insofar as they could apply to the applicant, were the same.

24    The Tribunal said in its reasons:

3.    A decision by a delegate of the respondent not to revoke the mandatory cancellation in the exercise of discretion was made in October 2016.

4.    The issue is whether the mandatory cancellation of the applicant’s visa should remain. That is, whether discretion should be exercised in the applicant’s favour notwithstanding the fact that the applicant fails to meet the character test under the Migration Act 1958 (Cth) because of his criminal record.

5.    Discretion may be exercised to not cancel the applicant’s visa and that discretion is to be exercised in accordance with Direction 65 made under s 499 of the Act.

…

21.    It is Part C of Direction 65 which is applicable in this case.

22.    Part C requires a decision-maker to have regard to three primary considerations as well as other considerations.

23.    The primary considerations are:-

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The best interests of minor children in Australia; and

(c)    The expectations of the Australian community (Part C, cl 13(2)).

…

28.    There is no question here that the applicant does not pass the character test referred to in s 501. Notwithstanding this, Direction 65 allows for the non-revocation of the applicant’s visa in light of the considerations contained in Direction 65.

29.    I turn now to the considerations under Direction 65.

PRIMARY CONSIDERATIONS

(a)    Protection of the Australian community from criminal or other serious conduct

30.    Australia is committed to protecting the Australian community from harm as a result of criminal activity (cl 9.1(1)). It is necessary to give consideration to the nature and seriousness of a non-citizen’s conduct and to the risk to the Australian community should the non-citizen commit further offences (cl 9.1(2)).

31.    In assessing the nature and seriousness of the conduct, one is to look at, amongst other things, the sentence imposed by the courts (cl 9.1.1(e)) and the frequency of offending (cl 9.1.1(f)).

32.    Here, the sentences imposed were for substantial gaol terms on two occasions. I would regard the applicant’s conduct as being serous in terms of offending. The first major offence involving the fire on 9 December 2011 when the applicant’s wife and child were in the premises was a serious matter. Notwithstanding that offence, the applicant was found again to have a clandestine laboratory for making drugs in November 2013. He also breached bail conditions following the December 2011 offence.

33.    This is not a case where there has been a sole offence. There are, in addition to the fire and later laboratory offences, other offences to which I have referred.

34.    It is true that the applicant says he had become dependent on drugs and that he has undertaken rehabilitation. However, the gravity of the offences cannot be ignored.

35.    The applicant has not been in the community at large since around March 2015. His second prison sentence – as a result of being found of having a crude laboratory for making drugs – occurred after the earlier conviction for starting a fire associated with his earlier drug-making laboratory in a residential unit. For a second time, the applicant put people at risk. The applicant did not learn from the fire incident despite undergoing some rehabilitation.

36.    In considering whether the person represents an unacceptable risk, regard is to be had to the principle that the Australian community tolerance for any risk of further harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)).

37.    Regard is to be had to (a) the nature of the harm and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct (cl 9.1.2(2)(b)).

38.    What is relevant here is the information and evidence of the risk and evidence of rehabilitation.

39.    In the present matter, the applicant has had a long period of offending and has put others in danger. His conduct has offended community standards by his drug-taking despite coming before the courts. Even after causing a fire and being charged, his offending persisted and this was so despite undertaking rehabilitation programs.

40.    The Australian community can be said to tolerate some risk. Here, however, the applicant continued to re-offend after coming to the attention of authorities. He has participated in rehabilitation programmes and has engaged in the “Getting Smart Programme” while in prison. The applicant has engaged in other programmes in prison and whilst in detention.

41.    In my view, given that the applicant has been in custody or detention for some time, there is a risk that the applicant could revert to old patterns and that this is a risk which must be taken into consideration. I say this knowing that the applicant believes that he has put all of that behind him. He has a collection of favourable references which I have considered.

42.    In summary though, I regard this first primary consideration to weigh strongly against the applicant.

43.    I now come to the next primary consideration.

25    It will be apparent that the Tribunal correctly identified the task it was required to undertake in [4] of its reasons and that it was required to consider Part C of the Direction in [21] of its reasons. However, when it came to consider the first primary consideration, the protection of the Australian community from criminal or other serious conduct, the Tribunal consistently referred to cl 9 which is in Part A of the Direction and which is inapplicable rather than the relevant provision, cl 13, which is in Part C of the Direction.

26    If the only problem was the loose language in [5] and [28] of the Tribunal’s reasons the applicant’s concern would be without substance. There can be no doubt that the Tribunal knew it was deciding whether or not to revoke the cancellation of the applicant’s visa. But that is not the only problem with the Tribunal’s reasons. In that part of its reasons in which it was meant to consider Part C of the Direction, its reasons refer only to cl 9 in Part A.

27    Contrary to the submissions for the first respondent, [37] of the Tribunal’s reasons does not suggest that the Tribunal was merely repeatedly committing a typographical error. Both cl 9.1.2(2) and cl 13.1.2(2) contain sub-paras (a) and (b). Accordingly, [37] is equally capable of supporting either inference – that the Tribunal had in mind cl 9 in Part A or cl 13 in Part C.

28    I do not accept that inferring that the Tribunal failed to consider cl 13 and in fact considered cl 9 of the Direction would involve reviewing the Tribunal’s reasons with “an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287. The following considerations lead me to infer that despite its correct reference to Part C of the Direction in [21]–[23] of its reasons the Tribunal in fact considered Part A when dealing with the protection of the Australian community from criminal or other serious conduct:

(1)    In the part of its reasons dealing with the primary consideration of the protection of the Australian community from criminal or other serious conduct the Tribunal consistently referred to cl 9 in Part A. It never once referred to cl 13 in Part C. Contrary to the submissions for the first respondent, in my view, the fact that there is not even a stray reference to either cl 13 or Part C of the Direction under the heading “(a) Protection of the Australian community from criminal or other serious conduct” in the Tribunal’s reasons is a strong indicator that it had in mind cl 9 in Part A and not cl 13 in Part C.

(2)    Clause 13 includes a preamble to the primary considerations which does not appear in cl 9. The preamble to cl 13 includes as part of the Direction the statement that “Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case”. While it may be accepted that, when exercising the discretion to cancel a visa and considering Part A of the Direction, the decision-maker must also consider the individual case before the decision-maker, the preamble to cl 13 expressly provides that “the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case”. There is no reference in the Tribunal’s reasons to this requirement.

(3)    While cl 13.1.2(2)(b) refers to decisions not being “delayed in order for rehabilitative courses to be undertaken”, cl 9.1.2(2)(b)(ii) refers to “evidence of rehabilitation achieved by the time of the decision”. In [38] of its reasons the Tribunal referred to “evidence of rehabilitation” which is the language of cl 9.1.2(2)(b)(ii) and not the language of cl 13.1.2(2)(b).

29    I do not accept the submissions for the first respondent that the errors were immaterial. The circumstances are not analogous to those in Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34. In that case, the legal criterion in each provision, that the applicant be the “spouse” of the sponsoring partner, was identical. Accordingly, the reference to the incorrect provision in the reasons for decision could not have affected the outcome of the decision: see at [50]–[51].

30    First, and in contrast to Pokharel, it is relevant in the present case that there is a material difference between a statutory duty expressly requiring that where “the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case” (as in cl 13 of the Direction) and one which does not expressly impose such an obligation, leaving it to the general principles of administrative law to ensure that the individual circumstances of each case are considered where it is necessary to do so (as in cl 9 of the Direction). It is not that in complying with Part A of the Direction a decision-maker could do other than consider the “specific circumstances of the case”. It is that in complying with Part C of the Direction a decision-maker is expressly instructed to apply each provision of cl 13 “given the specific circumstances of the case”. To my mind, in discharging the duty imposed by s 499(2A) of the Act to comply with the Direction, the Tribunal was bound to comply with the Direction in the terms in which it was expressed. For cl 13, the terms of the Direction required the decision-maker to consider whether to revoke the cancellation given the specific circumstances of the case. The erroneous references to cl 9 in the Tribunal’s reasons, together with the matters referred to above which found the inference that the Tribunal considered cl 9 and not cl 13, also lead to the inference that the Tribunal did not turn its mind to the preamble to cl 13 in its reasoning process.

31    While it is not possible to know the effect that complying with this express instruction in the preamble to cl 13 would have had on the Tribunal’s decision, the possibility that compliance would have led the Tribunal to reach a different result cannot be excluded. This is sufficient to make the Tribunal’s errors material. The contrary conclusion would reduce the preamble to cl 13 of the Direction to mere verbiage which, in my view, it is not.

32    Second, having regard to my conclusions above, I also infer that the Tribunal treated the “evidence of rehabilitation achieved by the time of the decision” as a mandatory relevant consideration (because it is such a consideration in cl 9.1.2(2)(b)(ii)). As noted, the Tribunal used this very expression, “evidence of rehabilitation”, in [38] of its reasons. That expression appears in cl 9.1.2(2)(b) (the provision to which the Tribunal also expressly referred in the immediately preceding paragraph of its reasons at [37]). However, the “evidence of rehabilitation” is not a mandatory relevant consideration under cl 13.1.2(2)(b). The phrase never appears in the applicable provision, cl 13.1.2(2)(b).

33    This reference to the “evidence of rehabilitation” in cl 9.1.2(2)(b)(ii), which does not appear in cl 13.1.2(2)(b), must add something to the assessment process under cl 9.1.2. In particular, it must add something to the way in which the risk of re-offending is weighed given that it appears in that context and the other references to rehabilitation in the two provisions are in the same terms (that is, the qualifying statement that a decision should not be delayed in order for rehabilitative courses to be undertaken).

34    Again, it is not that evidence of rehabilitation would have been an irrelevant consideration under cl 13. Plainly enough, the reference in cl 13.1.2(2)(b) to decisions not being delayed in order for rehabilitative courses to be undertaken means that evidence of rehabilitation would be relevant to the application of that provision. Similarly, evidence of rehabilitation would be relevant to the ultimate question posed by both cl 9.1.2 and cl 13.1.2 about the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

35    It is well-established, however, that mandatory relevant considerations are required to be given weight as “a fundamental element in” the decision-making process: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333 and 337–338. Mandatory relevant considerations are not matters which merely “take their place amongst any other relevant considerations” but are the “focal point” of the decision-making process: Evans v Marmont (1997) 42 NSWLR 70 at 79-80 cited in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [73]; see also Commissioner of Police (NSW) v Industrial Relations Commission (NSW) [2009] NSWCA 198; (2009) 185 IR 458 at [73].

36    Given that:

(1)    the risk of the non-citizen re-offending was a mandatory relevant consideration under cl 13.1.2(2)(b);

(2)    the “evidence of rehabilitation” was a mandatory relevant consideration under cl 9.1.2(2)(b) but the only reference to rehabilitation in cl 13.1.2(2)(b) is that the “decisions should not be delayed in order for rehabilitative courses to be undertaken”, which also appears in cl 9.1.2,

it is not possible to know what effect the Tribunal’s treatment of the “evidence of rehabilitation” as a mandatory relevant consideration had on the decision. At the least, the possibility of a favourable outcome cannot be excluded. And again, to conclude otherwise would be to reduce the clear textual difference between cl 9.1.2(2)(b) and cl 13.1.2(2)(b) to mere verbiage which, in my view, it is not.

37    If cll 9 and 13 had been in identical terms then I would have accepted that the Tribunal’s errors were immaterial. To explain, the relevant legal criterion for the decision was that specified in s 501CA(4) of the Act, whether there was “another reason why the original decision should be revoked”. In deciding this question, however, the Tribunal was bound to comply with the Direction, the applicable clause of which was cl 13 and not cl 9. If the two clauses had been in identical terms I would not have characterised a mere erroneous reference, or even repeated erroneous references, to the number of the provision as a jurisdictional error. The error would be one of numbering only and could have had no effect on the application of the legal criterion for the decision. But as I have explained, the clauses are not identical. They are different in at least two respects, one difference being positive (that is, the duty in cl 13.1.2 to consider whether to revoke the cancellation given the specific circumstances of the case) and the other being negative (that is, the fact that the inapplicable provision, cl 9.1.2(2)(b) refers to the “evidence of rehabilitation” whereas the applicable provision, cl 13.1.2, does not). While the effect of each difference on the Tribunal’s reasoning process cannot be known I consider that the possibility that each difference, of itself, might have led the Tribunal to a different conclusion cannot be excluded. Given my inference that the Tribunal in fact considered cl 9 and not cl 13 of the Direction in evaluating the primary consideration of the protection of the Australian community from criminal or other serious conduct, it necessarily follows that the Tribunal’s errors were jurisdictional errors which vitiate its decision.

38    While the facts of the present case are different from those which Greenwood J considered in SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63; (2007) 238 ALR 611, in which the Tribunal referred to the applicant being a national of the wrong country, the same conclusion that the errors are “neither merely typographical errors nor errors of fact at the margin of the Tribunal’s review” which his Honour expressed in SZIFI at [45] must also apply in the present case. The Tribunal did not comply with the Direction as it was required to do by s 499(2A) of the Act. Its decision was beyond power and thus a nullity.

39    Accordingly, it also follows that the Tribunal’s purported correction of its errors under s 43AA(1) of the AAT Act cannot be effective. The Tribunal’s reasons did not contain “obvious error[s]” which were able to be corrected by exercise of the power in s 43AA(1) of the AAT Act. In my view, the Tribunal’s reasons accurately reflected its consideration of the application for review, and that consideration was vitiated by jurisdictional error.

40    As a result of this conclusion, it is unnecessary to consider the other two categories of alleged jurisdictional error but I will do so briefly.

Ground 4: failure to consider consequences of decision

41    In that part of its reasons dealing with Australia’s international non-refoulement obligations, the Tribunal said:

52.    The applicant is a member of the Baha’i faith and fears persecution if returned to Iran. Whilst this may be accepted, there are other avenues available to the applicant including Ministerial discretion.

53.    Whilst living in Iran the applicant had employment and was able to engage in the community.

54.    Whilst this consideration is, on balance, in the applicant’s favour, it must be weighed against the primary considerations and be balanced with the other considerations.

42    It was submitted for the applicant that the Tribunal fell into the same kind of error discussed in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1. In NBMZ at [128], Buchanan J explained that an applicant “is entitled to have his application to this Court determined by reference to the legal consequences for him of the decision which was in fact made about his visa application”. In the circumstances of NBMZ, Buchanan J continued in these terms:

129.    As will become apparent from the terms of the Minister’s decision, the speculative possibilities that this Court was asked to entertain are not ones to which any reference was made in the Minister’s reasons for decision. In any event, they are not relevant to the present application.

130.    The applicant’s present position is that he must be removed from Australia as soon as reasonably practicable (subject to his continuing protection under Article 33 of the Refugees Convention). Until he can be removed the applicant must be detained. Because there is no known prospect of finding a country to which he may be removed the applicant’s detention will be, so far as is known, indefinite. Those matters are the direct consequence of the decision to refuse the applicant a visa.

131.    The Minister did not, at the time of refusal, grant the applicant a visa under s 195A as he might have done. I do not think it is permissible to speculate, much less to proceed upon any form of assumption, that the Minister might change his mind or take a different course at some future time. Such possibilities or assumptions have no relevance to the applicant’s present position.

43    In Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84], the Full Court said that:

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. …

44    However, as was said by the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [19]:

NBMZ … is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. …

45    Accordingly, in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [70], the Full Court concluded that:

The further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention.

46    It is unnecessary to dwell on the applicant’s capacity to request that the Minister exercise the personal non-compellable powers in ss 195A and 417 of the Act. The inescapable fact is that at the time the Tribunal decided to affirm the decision not to revoke the cancellation of the applicant’s visa, a review of the decision not to grant the applicant a protection visa was underway (comprising merits review then judicial review: see [11]-[13] above), so the application had not been “finally determined” and the applicant could not be removed or indefinitely detained: ss 5(9) and 198(6) of the Act. As a result, “the direct and immediate statutorily prescribed consequences of the decision in contemplation” did not include indefinite detention but continued detention until determination of the applicant’s protection visa application which may or may not have been unfavourable to the applicant.

47    For these reasons, ground 4 should be rejected.

Ground 5: irrelevant consideration

48    It was submitted for the applicant that in considering the applicant’s claims to fear returning to Iran due to his Baha’i faith the Tribunal had regard to the irrelevant consideration that “there are other avenues available to the applicant including Ministerial discretion”. These avenues, presumably the Minister’s personal and non-compellable powers in ss 195A and 417 of the Act, may never arise. The applicant had not sought the exercise of these powers and the Minister could not be compelled to exercise them. According to the submissions for the applicant, the applicant having raised his fear of persecution if required to return to Iran, and the Tribunal having entered upon the consideration of that matter, the obligation of consideration could not be discharged by reference to the mere vague and speculative possibility that there might be other avenues available to the applicant which would not involve either indefinite detention or a return to Iran.

49    It may be accepted, as the first respondent pointed out, that cl 14.1(4) of the Direction states that where “a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked”. However, as the majority of the Full Court noted in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [48] the risk of harm to a person in their country of nationality may or may not involve international non-refoulement obligations and, either way, such a risk is a matter to be weighed in the balance in deciding whether there is “another reason why the original decision should be revoked” as provided for in s 501CA(4) of the Act.

50    In the present case, the applicant raised as a matter relevant to the issue whether there was another reason why the cancellation decision should be revoked that he was of the Baha’i faith and feared persecution if returned to Iran. The Tribunal apparently accepted these matters or, at least, was prepared to assume this was so in the applicant’s favour at [52] of its reasons, but then discounted this factor because of the possibility of “other avenues” being available to the applicant. It then at [53] weighed that discounted factor against the fact that while living in Iran the applicant was employed and was able to engage in the community, leading it to the conclusion at [54] that this consideration was “on balance, in the applicant’s favour” but outweighed by the primary and other considerations.

51    In other words, first, it must be inferred that the Tribunal considered that the possibility of the applicant returning to Iran despite of non-refoulement obligations was a real enough risk to weigh in the applicant’s favour and, second, the discounting of the applicant’s fears of persecution by reference to the “other avenues” available to the applicant “including Ministerial discretion” was critical to the Tribunal’s conclusion. To the extent those other avenues included the undetermined protection visa application, as in BCR16 at [69], the Tribunal’s reasons fail to disclose an awareness of the fact that the applicant’s failure of the character test would “inevitably intrude” on any decision about a protection visa. To the extent those other avenues involved the personal non-compellable powers of the Minister in ss 195A and 417 of the Act, as in NBMZ at [128], [129], and [131] these mere speculative possibilities were not relevant to the Tribunal’s evaluative task or, if permissible to be considered in the particular circumstances of the present case, effectively disabled the Tribunal from considering the issue in fact raised by the applicant as another reason why the cancellation of his visa should be revoked. On these bases, I also would have found the Tribunal’s decision to be vitiated by jurisdictional error if necessary.

Conclusions

52    The applicant has established that the Tribunal’s decision is vitiated by jurisdictional error. The Tribunal’s decision should be quashed and the matter remitted to the Tribunal for determination in accordance with the law, with an order for costs being made in the applicant’s favour. It should be assumed that the Minister and Ministerial delegates will not act on the decision, which is a nullity, so no order in the nature of prohibition as sought in the amended originating application is necessary.

Associate:

Dated:    14 December 2018