FEDERAL COURT OF AUSTRALIA

Omar v Minister for Home Affairs [2019] FCA 279

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Assistant Minister made on 27 February 2018 not to revoke the decision of a delegate of the respondent under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s Class BC Subclass 100 Partner (Migrant) visa be set aside.

2.    The respondent pay the applicant’s costs, to be fixed in a lump sum.

3.    If the parties agree on a lump sum figure in relation to the applicant’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 21 March 2019.

4.    In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:

(a)    on or before 4 pm on 28 March 2019, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b)    on or before 4 pm on 4 April 2019, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5.    In the absence of any agreement having been reached on or before 11 April 2019, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The Court has decided the decision of the Assistant Minister not to revoke the cancellation of the applicant’s visa should be set aside. These are the Court’s reasons for that decision.

Introduction and summary

2    This is a judicial review application in relation to a decision of the Assistant Minister made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Migration Act”), in which the Assistant Minister decided not to exercise the discretionary power reposed in him by that provision to revoke an earlier decision of a delegate under s 501(3A) to cancel the applicant’s Class BC Subclass 100 Spouse (Migrant) visa, which I will call the “partner visa” in these reasons.

3    The applicant is a citizen of Somalia who had been granted the partner visa on 2 September 2003, when he was approximately 17 years old. He gained this visa as a dependent on his aunt’s application, where his aunt was the primary visa holder. The evidence establishes, and there is no real debate between the parties, that the applicant has a traumatic background in Somalia.

4    Not long after being granted the partner visa, the applicant committed a number of criminal offences, including thefts, assaults and robbery. In April 2008, the County Court of Victoria convicted the applicant of the offence of intentionally causing serious injury and sentenced him to imprisonment for three years and, in addition, the offence of attempted theft, for which the applicant was sentenced to four months’ imprisonment (with three months to be served concurrently). Shortly after that sentence was imposed, the evidence reveals that a delegate of the Minister notified the applicant that the Department was aware he had a criminal record, and warned him of the risk that, in future, the Minister may consider whether to cancel his partner visa.

5    This was done by way of what is entitled a “Formal Counselling Letter”. The letter stated:

I am writing to you about your Class BC, Subclass 100 Spouse (Migrant - dependant) visa.

It has come to this department’s attention that you have a criminal record. You should therefore be aware of the operation of section 501 of the Migration Act 1958 (the Act).

Subsection 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.

The character test is defined at subsection 501(6) of the Act, which sets out a number of different grounds under which a person may not pass the character test. A copy of section 501 of the Act is attached for your information. You should read this document carefully.

At present, no active consideration is being given to cancelling your Class BC, Subclass 100 Spouse (Migrant - dependant) visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia.

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in fresh consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.

Please sign the attached acknowledgement and return it in the envelope provided.

If you consider that the information in this letter regarding your criminal record is incorrect, please contact the National Character Cancellation Centre on 1300 722 061.

6    As the letter states, the applicant was asked to sign an “acknowledgment” and return it. The copy of the acknowledgement in evidence is signed, and it was accepted the signature was the applicant’s signature. However, submissions were made on the applicant’s behalf to the Minister at the time he was considering revocation about the weight that should be attached to the applicant’s “acknowledgement”:

Mr Omar accepts that his signature appears on this document. However, he instructs that he does not remember receiving or signing it. To the extent that the Minister or Delegate intends to take the formal counselling letter and signed acknowledgement form into consideration, I submit that the following must be given full consideration:

-    At the time of signing, Mr Omar was a prisoner at Thomas Embling. This demonstrates that he was subject to a Secure Treatment Order, which secures him to be significantly psychiatrically unwell;

–    Mr Omar was diagnosed with schizophrenia in around 2006 and this condition remained chronic enough to warrant his continued detention in Thomas Embling;

–    Mr Omar had an intellectual disability at this time, however this was not formally diagnosed until 2012. He therefore would not have had the benefit of an independent third person or professional disability support to assist him to understand the formal counselling letter and possible implication of signing the acknowledgement.

In the circumstances, I submit that the formal counselling letter and acknowledgment should be given no weight.

7    After 2008, the applicant engaged in further offending. In particular, he was convicted in November 2015 by the County Court of Victoria for contravening a community corrections order, and was sentenced to 12 months’ imprisonment.

8    In July 2016, while the applicant was serving this sentence of imprisonment, a delegate of the Minister cancelled his partner visa pursuant to s 501(3A) of the Migration Act, which provides:

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

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

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

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

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

9    The legislative scheme provides that in the circumstances of mandatory cancellation, a person whose visa is cancelled can make “representations” that the cancellation should be revoked. This is the mechanism the scheme provides to “undo” the cancellation decision. The critical provisions in this aspect of the scheme are ss 501CA(3) and 501CA(4):

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

10    In December 2016, after submitting an initial request for revocation in August 2016, the applicant’s representatives made representations to the Minister, as contemplated by ss 501CA(3) and 501CA(4), that the cancellation decision should be revoked. Further representations were made by the applicant’s representatives in written submissions provided to the Minister in August and December 2017. Where necessary, I refer below to the submissions made, and material and information lodged, in support of those representations. The following extract from further submissions made to the Minister on the applicant’s behalf in December 2017 provides an indication of the applicant’s relatively unique circumstances:

The burden of detention weighs more heavily on Mr Omar due to his serious mental health illness and severe developmental related cognitive impairment, head injury and refugee trauma. I submit that Mr Omar is not an appropriate vehicle for visa cancellation and his revocation assessment must take into consideration his exceptional circumstances. This case is comparable to Verdins, where the Victorian Court of Appeal found that people suffering from a mental impairment are generally not an appropriate vehicle for general deterrence, because they cannot be an example to the community as they are not comparable to the general population.

I submit that Mr Omar would be immediately eligible for intensive disability and mental health services and this protective factor would appropriately mitigate and manage the risk to the Australian community. Both reports acknowledge that Mr Omar is profoundly disabled and requires intensive care and support. Any risk to the Australian community is best managed by returning Mr Omar’s visa, which is likely to give him immediate access to NDIS funded treatment and support. Protection of the Australian community is not addressed by returning Mr Omar to Somalia or detaining him indefinitely, but rather by restoring his visa and allowing him access to assessment, treatment and management by the disability and mental health sectors.

Mr Omar is a Somali orphan and refugee who is profoundly impaired by schizophrenia and an intellectual disability, which likely predates his arrival. Mr Omar came to Australia as a child with very little family or professional support. Mr Omar has a horrific developmental history and multiple sources of vulnerability. I submit that Australia’s duty of care for Mr Omar given his vulnerability, demands the decision-maker take a compassionate approach. His offending coincided with a severe mental illness and developmental trauma and disability. This is consistent with a lack of therapeutic orders and a failure by the Australian system to manage his care. Mr Omar has demonstrated that he is currently and mostly compliant with his treatment and can comply with therapeutic orders. If returned to permanent visa status, he is likely to be subject to therapeutic orders as appropriate, such as a Community Treatment or Supervised Treatment Order. Mr Omar’s risk of recidivism will be significantly reduced with intensive treatment. Given his extraordinary vulnerability and compelling personal circumstances the burden of his care rests on the Australian government.

(Footnotes omitted.)

11    The Assistant Minister decided, on 27 February 2018, not to revoke the cancellation of the applicant’s partner visa. Where necessary, in explaining my reasons for the resolution of the application, I refer to the content of the Assistant Minister’s statement of reasons for that decision.

The grounds of review

12    The applicant sought leave to rely on a proposed further amended originating application, which was filed with his written submissions. The Minister did not object to leave being granted, but at the hearing itself counsel for the applicant informed the Court that ground 1 of the proposed further amended originating application was not pressed. Thus, the application falls to be determined by reference to ground 2 only.

13    Ground 2 contends, in summary, that the Assistant Minister failed to carry out his statutory task, because he failed to engage with representations made by the applicant about “another reason” put forward by the applicant as to why the cancellation decision should be revoked. He did not do this, the applicant contends, on the basis of either one or both of two misunderstandings of the Migration Act. I set those alleged misunderstandings out below when dealing with this ground.

ResolutioN of the application

General findings

14    In his submissions, the applicant relied on what he was told in the letter sent by the Department on 18 July 2016 about how to seek revocation of the cancellation decision. Relevantly, that letter stated:

Opportunity to seek revocation of the cancellation decision

While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.

You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled “How to make representations about revocation of the decision to cancel your visa” and “Timeframe to make representations about revocation”.

The decision to cancel your visa may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:

•    you pass the character test (as defined by s501 of the Act); or

•    there is another reason why the decision to cancel you r visa should be revoked.

The full text of s501CA of the Act is also included in Attachment 1.

How to make representations about revocation of the decision to cancel your visa

If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form.

Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.

Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.

15    As the Minister noted in his written submissions, while s 499(2A) of the Migration Act provides that “[a] person or body must comply with a direction under subsection (1)”, a Full Court of this Court has held that neither a Minister nor an Assistant Minister themselves are bound to comply with directions given under that provision: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209, [78]-[79]. This is the legal position reflected in the terms of the letter to the applicant.

16    In his written submissions, the applicant emphasised certain parts of Direction 65, to which the letter from the Department referred:

14.1    International non-refoulement obligations

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

(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

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

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

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

(Original emphasis.)

17    The applicant contended, and the Minister did not dispute, that in his representations to the Minister, the applicant directly addressed the fears he held if he were to be returned to Somalia, and noted that any protection claims he may make in any future protection visa application might not be properly assessed because he would not pass the character test. The applicant also contended, as Direction 65 noted, that even if he were assessed as not engaging Australia’s protection obligations, the likely consequence for him would be “indefinite detention”, rather than return to Somalia.

18    The key parts of the Assistant Minister’s reasoning which are said to involve error are at [20] and [21] of his reasons:

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 s501.

Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr OMAR 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.

19    It is necessary at this point to address the content and effect of Direction 75, issued by the Minister pursuant to s 499 of the Migration Act, and referred to in [20] of the Assistant Minister’s reasons.

20    Direction 75 commenced on 6 September 2017. It is expressed to relate to the refusal of protection visas under ss 36(1C) and 36(2C)(b) of the Migration Act. As part of the “preamble” to the Direction, its objectives are set out in cl 4(1)-(6):

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)    Section 5M of the Act provides that a ‘particularly serious crime’ for the purposes of section 36(1C)(b) and section 36(2C)(b) consists of commission of: (a) a serious Australian offence or (b) a serious foreign offence. ‘Serious Australian offence’ and ‘serious foreign offence’ are defined in section 5(1) of the Act.

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.

6)    The purpose of this Direction is to direct decision-makers to refuse applications using section 36(1C) or 36(2C)(b) rather than to refer the case for consideration under section 501 where an applicant presents a danger to Australia’s security or to the community. Under section 499(2A) of the Act, relevant decision-makers must comply with a direction made under section 499.

21    Also in the preamble is the following statement:

The following principles provide a framework within which decision-makers should approach their task of deciding whether to refuse an applicant's visa under section 65 on the basis of section 36(1C) or section 36(2C)(b).

22    The final part of the preamble is headed “Principles” and states:

1)    Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.

2)    The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.

3)    It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.

4)     Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.

23    The operative part of the Direction is contained in “Part 2” and provides:

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).

24    It was common ground that Direction 75’s specification of a particular sequence in which a delegate must consider the various aspects of the protection visa application is designed to address a conclusion reached by a majority of a Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456. Special leave to appeal from BCR16 was refused: see Minister for Immigration and Border Protection v BCR16 [2017] HCATrans 240 (17 November 2017). A Full Court recently rejected the Minister’s argument that the decision of the Full Court in BCR16 was plainly wrong: see Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.

25    The terms of the Assistant Minister’s decision at [20]-[21] of his reasons (see [18] above) reflect an understanding that any delegate considering a protection visa application by the applicant would be bound to adopt the approach set out in Direction 75.

Resolution of Ground 2

26    The applicant identifies two “misunderstandings” which he contends affected the Assistant Minister’s conclusion at [20]-[21] of his reasons. To recap, the Assistant Minister’s conclusion was that it was “unnecessary to determine whether non-refoulement obligations are owed” to the applicant, because the applicant was able to make a valid protection visa application, in which context Australia’s non-refoulement obligations would be considered, and further, that decision-makers have been directed (by Direction 75) to first assess refugee and complementary protection criteria when any such application is made.

27    As to the first misunderstanding, the applicant contends that, contrary to the Assistant Minister’s approach, the application of Direction 75 to any decision-making process under s 65 when a protection visa application is made “is not a substitute for consideration of non-refoulement under section 501CA”.

28    As to the second misunderstanding, the applicant contends that the Assistant Minister was wrong to assume, as the applicant submits he did, that the question whether Australia had non-refoulement obligations to the applicant would be considered in the course of processing any protection visa application lodged by the applicant. The applicant contends the Assistant Minister was wrong to assume that because the scope of Australia’s non-refoulement obligations under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) is different in scope and content from what is now in the “protection criterion” in s 36(2)(a) of the Migration Act, and that any delegate assessing a protection visa application would only be looking at the latter and not the former.

29    The parties agree that prior to the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the scope of Australia's non-refoulement obligations under the Refugees Convention was considered by the High Court in cases such as Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1, Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; 231 CLR 1 and NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161. The applicant contends that after the 2014 amendments, those obligations, as described, do not reflect the “protection criterion” now embodied in s 36(2)(a) of the Migration Act. The applicant contends the codified provisions dealing with protection obligations are narrower than the Convention protection.

30    The example used by the applicant is the treatment by the 2014 amending legislation of the approach to be taken to what is sometimes called the “internal relocation principle” in Art 1A of the Refugees Convention. The applicant contrasts the approach set out by the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [19] with the terms of ss 5H(1) and 5J(1)(c) of the Migration Act, which he submitted have narrowed the circumstances in which protection must be afforded by Australia to a person if that person may be able to relocate to a different part of her or his country of nationality.

31    Under the 2014 amendments, the applicant contends, a person cannot satisfy the criterion under s 36(2)(a) unless “the real chance of persecution relates to all areas of a receiving country”, whereas under the law about Art 1A of the Convention, as it stands on the authority of SZATV, a person with a well-founded fear of persecution in one part of her or his country of nationality will be entitled to the surrogate protection of a contracting state, such as Australia, if it is not reasonable and practicable for her or him to relocate to another part of her or his country of nationality. She or he need not establish that she or he has a well-founded fear of persecution in every part of her or his country of nationality.

32    While the applicant accepts that Parliament may choose to narrow the criteria for the admission of a person into the Australian community through the grant of a visa, he submits that:

… the Minister errs in supposing that the criteria that the legislature has elected to establish for admission by a visa known as a “protection visa” (including as reflected in section 36(2) of the Act) reflect the criteria for refoulement under the Convention. They do not.

33    The Minister’s responses to the applicant’s submissions on the two purported “misunderstandings” are:

(a)    The Assistant Minister considered the issue of non-refoulement obligations when making his decision, substantially in accordance with the terms of Direction 65. It cannot be said that, by stating that it was unnecessary to determine at that time whether those obligations were owed to the applicant, that the Assistant Minister misunderstood the operation of the Migration Act or failed to have regard to the representations made by the applicant.

(b)    The Assistant Minister’s reasons disclose no misunderstanding of the difference in the statutory powers in ss 65 and 501CA, and in any event, the Assistant Minister took into account the fact that the applicant might suffer harm on return to Somalia.

(c)    Similar arguments have been rejected by the Federal Court in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (at [19]-[35]) and Greene v Assistant Minister for Home Affairs [2018] FCA 919 (at [13]-[19]).

(d)    There is no necessary difference, relevantly to the applicant at least, between the scope and content of non-refoulement obligations for the purposes of s 501CA(4) and for the purposes of s 36(2).

(e)    Direction 65, which was given after the introduction of the 2014 amendments, reflects (as it states) Australia’s interpretation of its non-refoulement obligations.

(f)    The applicant’s argument rests on the “asserted effect of ss 5H and 5J on principles of internal relocation” and it has not been suggested that internal relocation principles could have bearing on the assessment of any claim made by the applicant of fear of harm on return to Somalia.

34    I have concluded this ground should be upheld, on the basis of the first misunderstanding alleged by the applicant. The following matters have contributed to me reaching that conclusion:

(a)    The nature and content of submissions made to the Minister on behalf of the applicant, and how the Assistant Minister dealt with them.

(b)    The Full Court’s decision in BCR16 and its application to the Assistant Minister’s approach.

(c)    My satisfaction that the applicant is correct to submit the Assistant Minister misunderstood his task under s 501CA(4) and erred in concluding part of it could be hived off to any (as yet) non-existent protection visa application process.

(d)    My view that the single judge decisions relied on by the Assistant Minister can be distinguished.

The applicant’s submissions to the Assistant Minister

35    To resolve this ground, it is necessary to set out the detailed submissions put to the Assistant Minister on the applicant’s behalf on 8 December 2016:

International Non-Refoulement Obligations

Under international treaties to which Australia is a party it is accepted that there is an obligation not to refoule a person to a country where they face a real chance of being seriously or significantly harmed for specific Convention reasons.

Paragraph 14.1 of Direction 65 specifically requires that a decision maker consider the existence of any non-refoulement obligations in coming to a decision about an individual's revocation request. It is not necessary that the person positively raise non-refoulement where those claims are “clear from the facts of the case”.

The relevant legal test under Australian law as to whether the future risk of serious harm is well founded is whether there exists a “real chance” of persecution for a Convention related reason. A “real chance” is one that is not based on mere speculation or that is not remote, but rather, has a real and substantial basis.

In light of the available country information about Somalia, the fact that he left Somalia at a very young age and the likely absence of any close family members remaining in Somalia, it is submitted that there is a real and substantial basis for Mr Omar to believe he may be seriously harmed if forcibly returned there on the basis of his ethnicity, imputed political opinion, disability and impairments or a cumulation of those grounds.

Non-refoulement obligations engaged notwithstanding par.14.1(4) - ITOA is required

Direction 65 par. 14.1(6) in conjunction with 14.1(4) states that only persons who are prohibited by the Act from applying for a protection visa are entitled to an International Treaty Obligations Assessment (ITOA) in the context of a revocation request.

It is submitted that paragraph 14.1(4) is not determinative of the relevance of non-refoulement in Mr Omar’s case. While he may not technically be prevented from applying for a protection visa, the fact is that he has not made any such application.

The application that he makes is for revocation of the decision to cancel the class BC subclass 100 Spouse (Migrant) visa, which appears according to DIBP records to be the visa issued to him before entry to Australia at the age of 15 years. It is submitted that non-refoulement is matter relevant to determining the question of revocation.

Should this submission not be accepted and the decision maker apply 14.1(4) to find it “unnecessary to determine whether non-refoulement obligations are owed” to Mr Omar then the following matters remain apposite:

It is incumbent upon the decision maker to take into account that the existence of a “right” to apply for a protection visa does not guarantee that a visa will ultimately be granted. Nor does it guarantee relief from his immediate circumstances of detention.

Should Mr Omar apply for a protection visa, it is unclear whether the Act extends him a right to be granted a bridging visa while his application is considered. Even if he is accepted as an “eligible non-citizen” for the purpose of a grant of a bridging visa, release from immigration detention on a bridging visa is not an outcome guaranteed under the Act.

While the impact of long term confinement in immigration detention is not a matter that Direction 65 expressly requires be considered by a decision maker, it is relevant that Mr Omar has been detained since July 2016 and for some months on Christmas Island. There is cogent evidence of the fragility of his mental state and we note that he is held in a restricted and isolated environment which is very likely to compromise his mental stability. He faces the prospect of remaining in detention for a lengthy period while his visa status is determined and if a protection visa was refused and his return to his country of origin be unavailable, he faces the very real prospect of being indefinitely detained.

Extent of Impediments if Removed

As detailed, Mr Omar has a confirmed diagnosis of schizophrenia and has been assessed to have an intellectual disability with a cognitive functioning of intelligence quotient of 56 and putting him within the extremely low range.

There is evidence that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment in contravention of obligations pursuant to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

“Many Somalis with mental illness are socially isolated and vulnerable. The pain of this isolation is felt intensely because Somali culture is traditionally communal and family oriented. The mentally ill are generally chained and imprisoned. The country knows only five health care services…

The containment with chains of mentally challenged people is prevalent in both urban and rural areas... This is also used as a locally accepted medical treatment in mental health facilities...chaining patients is seen as an alternative medication, with not only leaving the patients stigmatised but also causing physical injuries on their hands and legs”.

“In addition to the obvious suffering due to mental disorders, there is a hidden burden of stigma and discrimination faced by those Somalis with a mental disorder. Violations of basic human rights and freedom, and denial of civil, political, economic, social and cultural rights to those suffering from mental disorders are a common occurrence in the different Somali regions, both within the mental health facilities and in the community. Much of this goes unreported and therefore remains unquantifiable.”

It is further submitted that forcibly returning Mr Omar to Somalia would expose him to the risk of such treatment. He is prescribed medication for treatment of his schizophrenia. Since his diagnosis in 2006 Mr Omar’s medication has predominantly been administered through a monthly depot injection. His return to Somalia would compromise his access to his medication:

“All Somali zones depend almost entirely on external sources (international aid or international remittances) for health financing. This reflection becomes more worrying when it is applied on mental health, a neglected and almost forgotten sector. It is widely perceived that no governmental or institutional infrastructure exists in the country which is capable of supporting the development or expansion of mental health care…”.

The availability of drugs on a daily basis has been an issue raised by all respondents. The hospitals do not purchase the drugs. They are usually provided on an irregular basis by WHO and/or private donations/INGO supplies… All facilities complained about very poor storage conditions such as poor safety of the store, ventilation and space arrangements”.

In addition to the difficulties in accessing basic income, accommodation and other factors necessary for survival in Somalia, medication security is a significant consideration for M r Omar. Any such access is further compromised by his cognitive impairment and the fact that he has not been in Somalia since he was 8 years of age. He has little memory of the country, no social or family supports and an impaired cognitive capacity that would not facilitate him easily establishing such networks by himself.

Australia is a signatory to and has ratified the Convention on the Rights of Persons with Disabilities. Somalia is not and to return Mr Omar to Somalia would offend Australia’s obligations under this international convention.

(Footnotes omitted.)

36    The submissions made to the Minister on the applicant’s behalf raised fear of harm in Somalia on the basis of the characteristics of his ethnicity, imputed political opinion, and his disabilities and impairments, or a combination of those characteristics. These may all be within the five grounds under Art 1A(2) of the Refugees Convention, in particular if a person’s disability might lead to her or him being seen as a member of a particular social group. Otherwise, depending on the nature of the harm feared, such characteristics may also engage Australia’s non-refoulement obligations under the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) and the ICCPR (International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)), which find expression to some extent in the kind of visa for which s 36(2)(aa) of the Migration Act provides.

37    To take an example, not the only one, the above submissions made on behalf of the applicant (see [35] above) noted that the World Health Organisation had reported the common practice in Somalia of chaining up people with mental health problems as a locally accepted form of alternative medication. In recounting that submission at [33] of his reasons, the Assistant Minister certainly did not reject that as a likely factual scenario for the applicant.

38    Another point made on behalf of the applicant in the above submissions, concerning the protection visa process, is a substantial one, and another important illustration of what the Full Court observed in BCR16 at [48]-[49] about the differences between making a further visa process available to an individual, and properly examining, at the time of the exercise of power, whether there is another reason to revoke the cancellation of an individual’s visa. As the applicant’s submissions point out, even if the applicant were to apply for a protection visa, that process is likely to take a considerable amount of time – during which time the applicant may continue to be deprived of his liberty, without any certainty of outcome in being granted such a visa, and in any event not being restored to the kind of visa he has held since he was 17 years old.

39    Although it was not the subject of any evidence, a further point flowing from the submissions made on behalf of the applicant to the Minister about the difference between restoring his cancelled visa, and the possibility (no more than that) he may be granted a protection visa if he applied for one in the future, concerns what particular consequences flow from the possession of different visas. It is apparent from the legislative scheme, including the terms of the Migration Regulations 1994 (Cth), that there are different conditions attaching to, and benefits flowing from, different kinds of visas. Some visas are temporary, and others are permanent. Different conditions may attach about eligibility for social security benefits, access to public healthcare, and entitlements to work or study. There is no necessary equivalence in content between the kind of visa the applicant held and which was cancelled and any protection visa he might be granted, unlikely as that might seem: see BCR16 at [52].

The Full Court’s decision in BCR16 and its application to the Assistant Minister’s reasoning

40    The applicant submitted:

The simplest way of characterising the errors, reflecting the characterisation adopted by the majority of the Full Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, is that the [Assistant] Minister “failed to carry out his statutory task” ([62]) by reason of certain misunderstandings about the Act and its operation.

41    I accept that submission.

42    In BCR16, the identification of error in the Assistant Minister’s reasoning process arose because of a linkage in the Assistant Minister’s reasons between her refusal to consider the other “reason” put forward by the appellant in that case as a ground to revoke the visa cancellation (which was the risk of significant harm if returned to Lebanon) and the Assistant Minister’s erroneous understanding (as a majority of the Full Court found) of what would occur during the protection visa application process. The latter point is, as I have noted earlier, something which Direction 75 has sought to address by requiring decision-makers to consider refugee and complementary protection criteria before other criteria when assessing an application for a protection visa.

43    The applicant here relies on a different aspect of BCR16. He relies on those passages, principally at [48]-[52] (but also at [73] and [94]) where the majority identify the different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared to their role as, in effect, incidents of one criterion (the “protection criterion”) in the requirements for the grant of a protection visa.

44    I accept the applicant’s contentions. While it might be said that the existence of Direction 75 has affected the practical operation of the legislative scheme by directing decision-makers faced with a protection visa application to assess the refugee and complementary protection criteria in ss 36(2)(a) and 36(2)(aa) before other criteria (such as those pertaining to an applicant’s character), that does not address the aspects of the Assistant Minister’s approach to the s 501CA(4) discretion which remain erroneous, and which were identified by the Court in BCR16.

45    Fundamentally, that is the failure to appreciate the very different role the consideration of non-refoulement obligations can have in the exercise of a discretionary power, such as that contained in s 501CA(4). In that context, if Australia’s non-refoulement obligations are engaged, the Assistant Minister may be faced with a choice between factors favouring revocation (including but likely not limited to the engagement of non-refoulement obligations) and the prospect of a person being indefinitely detained if their visa remains cancelled. That is a very different assessment process. It concerns whether a person who is currently part of the Australian community should remain in the community, or, potentially, should be detained indefinitely. It is not concerned with whether a person can satisfy one criterion necessary for the grant of a different visa. The latter perspective is quite different. That is the point being made by the majority in BCR16, especially, for example, at passages such as [48]-[49].

46    I am satisfied, on the basis of his reasons, that the Assistant Minister did not appreciate the very different task conferred on him by s 501CA(4), and that the task of considering whether there was “another reason” to revoke the visa cancellation required consideration of all other “reasons” put forward in the representations made by the applicant’s representatives (or at least, all those seriously and substantively advanced). The Assistant Minister was not authorised to simply carve out aspects of the representations made and particular “reasons” advanced, and decline to deal with them. That was not a lawful performance of his statutory task: see BCR16 at [63] and [94]. See also One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 356 ALR 535 at [169]-[170], where at [169] the Full Court referred to Re Patterson; ex parte Taylor [2001] HCA 51; 207 CLR 391 and stated:

In our view the nature of the Commissioner’s error is best described as a failure to perform the statutory task required of him. This form of jurisdictional error was described by Gaudron J in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; 64 ALD 545; [2001] HCA 51 at [82]:

A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form. By failing to appreciate that it was necessary for there to be something in the nature or seriousness of Mr Taylor’s criminal convictions or in the circumstances in which his crimes were committed before she could be satisfied that it was in the national interest to cancel his visa, the Parliamentary Secretary misconceived her duty, failed to apply herself to the question to be decided and misunderstood the nature of the opinion she was to form.

47    As Robertson J found in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56], the representations “as a whole” made by a person whose visa has been cancelled and who is seeking revocation can be characterised as a mandatory relevant consideration under s 501CA(4). This has been confirmed by the Full Court in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at [47]. The observations of the Full Court in DRP17 at [47] were approved by Rares and Robertson JJ in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [49].

48    A failure by the Minister or Assistant Minister to consider representations made about a particular “reason” for revocation may well constitute a denial of procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389, 394 [24] (Gummow and Callinan JJ), 408 [95] (Hayne J), NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, [55], Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319, 356 [90], Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [77], [108] (Colvin J). I would also respectfully agree with the descriptions given by Rangiah J in Viane at [20]-[30] (with whom Reeves J generally agreed) of the several kinds of possible jurisdictional error to which such a failure may give rise, and with his Honour’s discussion of the relevant authorities.

49    The question whether, if the Minister or Assistant Minister fails to evaluate representations about a particular “reason” for revocation, this – without more – can be said to be jurisdictional error, has been left open: see Flick J in Ali at [42]. This is not a debate into which it is necessary to enter on this application, as the error is of a different kind.

50    In this proceeding, unlike BCR16 (see the majority reasons at [72]), the applicant, through his representatives’ submissions, specifically identified Australia’s non-refoulement obligations as “another reason” the visa cancellation should be revoked. Some time was spent in the submissions developing why this was an important issue in the consideration of revocation in the applicant’s case. Thus, this application squarely raises an issue not raised in BCR16, but to which in my opinion the majority’s reasons in that case are nevertheless still applicable.

The Assistant Minister misunderstood his task

What did the Assistant Minister need to consider?

51    One consequence of the applicant’s arguments, and what he submits the Assistant Minister’s reasons revealed he did not understand, is that a conclusion that Australia’s non-refoulement obligations are engaged in respect of a person may be a distinct, and very different kind of conclusion, to the question of whether a person should be granted a protection visa.

52    For the former, the inquiry is solely about what is likely to happen to a person on return to her or his country of nationality, and why.

53    In this respect, Hathaway and Foster observe in The Law of Refugee Status (2nd ed, Cambridge University Press, 2014) at pp 36, 39 and 47:

The foundational jurisprudence has clearly acknowledged what is undoubtedly the most critical constraint on the right of state parties to rely on protection elsewhere policies, that being the duty to avoid refoulement, direct or indirect.

…

The traditional concern of courts has been whether the sending away of the applicant under a protection elsewhere rule would expose her, directly or indirectly, to the risk of being persecuted in her home country. More specifically, the question is framed as whether there is a risk that Art. 33 of the Refugee Convention (or comparably narrow international [including the CAT and ICCPR], regional, or national provisions) would be breached by reason of a failure accurately to identify or protect the refugee.

…

The primary focus of the pre-removal inquiry will thus be whether the state party to which removal is contemplated can be relied upon to respect the refugee's already acquired rights - that is, those that inhere in refugees who are simply under a state’s jurisdiction, or within its territory. Any deprivation of such rights is, for the reasons previously described, attributable to the sending state itself.

(Footnotes omitted.)

54    The nature of the non-refoulement obligations contained in Art 33(1) of the Refugees Convention was described by the High Court in Plaintiff M70, in which Gummow, Hayne, Crennan and Bell JJ observed at [92]-[94]:

Australia’s power to remove non-citizens from its territory is confined by the practical necessity to find a state that will receive the person who is to be removed. Ordinarily, Australia would look, in the first instance, to a person’s country of nationality to receive that person. Australia would do that on the footing that it has long been accepted, as a principle of international law, that the national of a country has a right to re-enter the territory of that country and a country of nationality has a duty to admit its nationals to its territory. This principle of customary international law is reflected, but not in any way superseded, in many international instruments to which Australia is party.

The general expectation that Australia can and should look to the country of a person’s nationality to receive that person on removal from Australia is necessarily subject to some qualifications. First, other considerations may arise where a person is stateless or where the controller of a vessel that carried a passenger denied entry to Australia may be compelled to remove that passenger. But those kinds of case may be put aside from further examination in these matters.

The second and more relevant qualification is that Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Accordingly, for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugees Convention.

(Footnotes omitted.)

55    The non-refoulement obligations in Art 33 also extend to individuals in respect of whom a determination of refugee status is yet to be made. This was emphasised by French J (as his Honour then was) in Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554; 106 FCR 119 at [28], where his Honour stated that “[a]s a matter of necessary implication, [Art 33] will apply to persons seeking protection under the Convention whose entitlement has not been established”, and that “[t]he obligation of non-refoulement is of fundamental importance notwithstanding that individuals may not have been recognised as refugees”.

56    If a conclusion is reached that those obligations are engaged, then particularly having regard to s 197C of the Migration Act (which operates on the removal obligation under s 198), such a conclusion is likely to be a factor of some weight in the assessment to be made under s 501CA(4), not least because if non-refoulement obligations are engaged, and if the Minister decides not to revoke the cancellation, the likely alternative for a person is indefinite detention. See, for example, the circumstances in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, where the Minister did consider indefinite detention as a possible outcome.

57    Given that potential consequence, an active consideration of whether a person’s circumstances engage Australia’s non-refoulement obligations as part of the exercise of discretion under s 501CA(4) is capable of having a significant impact on the conclusions about revocation which might ultimately be reached. Consigning a person who engages Australia’s non-refoulement obligations to indefinite detention instead of deciding to revoke a visa cancellation, bearing in mind that the power must be exercised rationally and reasonably, would require careful and serious consideration.

58    This contrasts with the way non-refoulement obligations do or do not come into play during the assessment of whether a person satisfies the criteria for the grant of a protection visa. Contrary to the Minister’s submissions and the approach taken by the Assistant Minister, the relevant issue in the visa context is not whether non-refoulement obligations will be considered. They will not be. These obligations are, as the High Court pointed out in Plaintiff M70, assumed by a State to a person as a consequence of the situation that person may face on return to her or his country of nationality. At most, in determining whether the refugee and complementary protection criteria are satisfied, assessments of a not dissimilar kind may arise, but subject to statutory modifications of the content of the protection criteria. However, this relates only to the determination of one of the many criteria for the grant of a different kind of visa. There is no direct consideration of Art 33 of the Refugees Convention or the equivalent articles in the ICCPR and CAT.

59    Critically, what matters for the exercise of the s 501CA(4) discretion is not the consideration of a visa criterion which might have similar content (in some respects) to Australia’s non-refoulement obligations: it is whether Australia’s non-refoulement obligations are engaged in respect of a particular individual. That is what the Assistant Minister was being asked to consider through the submissions made on the applicant’s behalf: whether Australia’s non-refoulement obligations were engaged in relation to the applicant. And this is what gives rise to the Assistant Minister’s misunderstanding: where non-refoulement obligations are put forward as another reason to revoke a visa cancellation, the question is whether those obligations are engaged, and if so, what effect that should have on the exercise of discretion under s 501CA(4). In this context, they were being put forward as a reason to restore the partner visa to the applicant.

60    Engagement of Australia’s non-refoulement obligations may be a consequence or outcome of a successful conclusion to the protection visa process, through the grant of a visa. That is one way in which Australia’s obligations under Art 33 and its equivalents are fulfilled. If no visa is granted, there is no protection from non-refoulement unless that occurs in the exercise of some other power, and in that context the imperative language in s 197C would need to be considered. However, as the applicant submitted, these matters are in the realm of speculation and, just as this Court should not engage in speculation, neither should the repository of the power under s 501CA(4).

The irrationality of the Assistant Minister’s reliance on the theoretical protection visa process

61    The Assistant Minister found (at [97] of his reasons) that the applicant posed an “unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed” all other considerations which may have favoured revocation – of which there were many, as the Assistant Minister’s reasons appear to acknowledge. The considerations which may have favoured revocation included the following matters (at [32]-[37] of the Assistant Minister’s reasons):

I note that Mr OMAR has a confirmed diagnosis of schizophrenia and has been assessed to have an intellectual disability with a cognitive functioning of intelligence in the extremely low range.

I take into consideration the submission provided on behalf of Mr OMAR which states that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, arguably amounting to cruel, inhumane and degrading treatment. Furthermore, it is stated that many Somalian nationals with mental illness are contained with chains and this is a locally accepted treatment in mental health facilities as it is seen as alternative medication.

I note the submissions include that returning Mr OMAR to Somalia would offend Australia’s obligations under the Convention on the Rights of Persons with Disabilities.

I acknowledge that Mr OMAR’s medication has predominantly been administered through a monthly depot injection. I further acknowledge the submission which states that it is widely perceived that no governmental or institutional infrastructure exists in Somalia which is capable of supporting the development or expansion of mental health care. Additionally, the hospitals do not purchase the drugs and they are usually provided on an irregular basis by World Health Organisation (WHO) and or private donations. I find that Mr OMAR’s return to Somalia would compromise his access to required medication and appropriate medical treatment, care and support given his complex mental health issues.

I note that Mr OMAR has been absent from Somalia since the age of eight as he spent a period of six years in a refugee camp in Kenya before arriving in Australia. I accept that he has little memory of Somalia, no social or family supports and an impaired cognitive capacity that would not facilitate establishing such networks by himself. I find that this will impact his ability to access a basic income, accommodation and other necessities.

Taking into account all of the above considerations, I find that returning to Somalia would cause Mr OMAR significant difficulties given his various complex health issues, medication requirements, his fears of return due to the treatment of mentally ill persons in Somalia and other concerns, combined also with the absence of any support network and appropriate medical care or other support services in Somalia.

62    Despite these factual findings, which I infer formed part of the “strong countervailing considerations” favouring revocation of the visa cancellation summarised by the Assistant Minister at [96], the “unacceptable risk of harm to the Australian community” posed by the applicant was found by the Assistant Minister to outweigh all such matters. How it could be suggested, given what has been said in the Assistant Minister’s reasons, that there was any real prospect of Australia’s non-refoulement obligations being engaged though the grant of a protection visa to the applicant, is difficult to comprehend. That is, no doubt, part of the reason why the applicant’s representatives asked the Assistant Minister to consider whether those obligations were engaged in relation to the applicant as part of the revocation discretion.

63    Insofar as the Minister seeks to rely on this part of the reasoning of the Assistant Minister as a rational explanation for why there was no consideration of Australia’s non-refoulement obligations as “another reason” to revoke the visa cancellation, I do not consider there was any such rational explanation, and it does not provide an adequate foundation to reject the applicant’s second ground of review.

The Assistant Minister’s assessment of risks of harm in Somalia

64    It is correct, as the Minister submits, that the Assistant Minister did examine risks of harm to the applicant if he had to return to Somalia. This also distinguishes the circumstances of this proceeding from the circumstances of BCR16, where this did not occur.

65    Harm was certainly put forward as “another reason” by the applicant in the submissions made by his representatives. The Assistant Minister considered in some detail the nature of the harm likely to be encountered by the applicant if he were to return to Somalia. The Assistant Minister accepted there would be harm, but found that in the exercise of the revocation discretion, other factors outweighed whatever harm the applicant might suffer in Somalia. The Assistant Minister appeared to accept at a factual level, and certainly did not reject, all the substantial factual contentions put on behalf of the applicant in submissions about the significant difficulties and likely harm he would experience in trying to exist in Somalia.

66    That exercise is not, however, the same exercise as an assessment of whether Australia owes the applicant non-refoulement obligations under international law. If the Assistant Minister were to decide such obligations were not engaged, that might be the end of her or his consideration of that matter. If, however, the Assistant Minister were to decide such obligations were engaged, then, in the consideration of how the revocation discretion in s 501CA(4) should be exercised, weighing the presence of such international obligations in the balance would be quite a different task. Deciding whether Australia’s international obligations to a person should be respected, or are outweighed by risk posed by that person to the Australian community, or that the likely compromise is indefinite detention, frames the issues for the exercise of the s 501CA(4) discretion in quite a different perspective.

67    The Assistant Minister’s reasons disclose no understanding of these matters, and certainly do not reveal that he sought to undertake any such task. Rather, he diverted any such consideration to a non-existent future process: one which, as I have explained, involved quite distinct matters and considerations, and was – at the time of the exercise of power – nothing more than speculation.

The single judge decisions relied on by the Minister can be distinguished

68    The Minister relies on, and the applicant seeks to distinguish, the approach taken by Flick J in Ali.

69    Subject to one matter I outline below, the grounds of review before Flick J, and the basis on which his Honour proceeded, were different from the present grounds and the basis on which I have considered the applicant’s arguments. I do not consider the ratio of his Honour’s decision is incompatible with the conclusions I have reached on this application. The grounds of review before his Honour were very much concerned with that aspect of BCR16 to which Direction 75 was directed. At [24] of Ali, Flick J found:

Read literally, para [20] is an express finding as to the Departmental practices to be followed in “processing Protection visa applications” and a finding that the matter “first” addressed is the question as to whether a visa applicant meets “the refugee and complementary protection criteria”. The reasons at para [20] demonstrate that the Assistant Minister had no “misunderstanding” as to the sequence in which matters are considered and no “misunderstanding” as to the future necessity to first address “the refugee and complementary protection criteria” as required by the terms of Direction No 75.

70    The other argument advanced in Ali was summarised by Flick J at [26]. As the applicant submitted, and I accept, that is not the argument advanced on this application. Justice Flick’s rejection of that argument in Ali does not compel rejection of the applicant’s arguments in this application.

71    Indeed, what his Honour says at [28] is consistent with the conclusions I have reached in this proceeding:

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).

(Emphasis added.)

72    The passage in bold is consistent with the way the applicant puts his arguments on this application, and the conclusions I have reached.

73    I accept there is one part of Flick J’s reasons where his Honour reproduces (at [19], in what is identified as “16.2” of the applicant’s written submissions) an argument which does appear to resemble the arguments put by the applicant on this application:

Second, that “the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in section 501CA(4) and an exercise of power” by a delegate of the Minister under the protection visa framework (at 48 – 51) (the Distinction in Powers) …

74    That point, as articulated, is no more than a repetition of what the majority stated in BCR16 at [48]. It is that point the applicant has built on in this application, but in a way apparently not developed before Flick J in Ali. Accordingly, despite the presence of these words in submissions before Flick J, the way his Honour resolved the application in Ali involved reasoning in relation to arguments quite different from the arguments which I have upheld in this application. Further, as the applicant submitted, the main point is that BCR16 is binding on me as a single judge.

75    For similar reasons, I do not consider the decision of Logan J in Greene, in particular at [19], where his Honour relies on Ali, is incompatible with the conclusions I have reached.

The second misunderstanding put forward by the applicant

76    In the alternative, the applicant contends there was a further misunderstanding of the Migration Act apparent in the Assistant Minister’s reasoning at [20] and [21]. That understanding is contended to be revealed by the reference to non-refoulement obligations in the Assistant Minister’s reasons, in connection with consideration of a protection visa application. The applicant contends that after the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the scope of Australia’s non-refoulement obligations under the Refugees Convention – as those obligations have been explained (see above at [53]-[55]) – does not reflect the “protection criterion” now embodied in s 36(2)(a) of the Migration Act. As I have set out above, the applicant contends the codified provisions dealing with protection obligations are, as a consequence of those amendments, now narrower than the Convention protections. The Assistant Minister’s reasons, he contends, disclose no consciousness of this.

77    At a factual level, I accept, and find, that the Assistant Minister’s reasons contain nothing that would justify a conclusion that he understood that the content of Australia’s non-refoulement obligations may differ from the statutory protection visa criteria, as expressed after the 2014 amendments. No such submission was put to him by the applicant’s representatives, so it is not surprising this matter is not dealt with in his reasons.

78    I do not consider this is appropriately described as a separate, or independent, jurisdictional error, in the sense of a misunderstanding which led to a failure of the Assistant Minister to perform the statutory task in s 501CA(4). In substance, it is another illustration of why active consideration of whether or not Australia has non-refoulement obligations to a person such as the applicant, as he claimed in his representations, needed to occur as part of the exercise of the power in s 501CA(4). Had that been done, such differences might well have been noted as part of that consideration.

Direction 75

79    The pronouncement of Direction 75 does not alter the conclusions I have reached. That Direction operates only once a valid protection visa application has been lodged. It is wholly concerned with providing guidance to delegates who consider valid protection visa applications, and perform functions or exercise powers to grant or refuse such applications.

80    The decision of the Assistant Minister, which is subject to judicial review by this Court, was not a decision about whether or not to grant the applicant a protection visa. It was a decision about the exercise of the discretionary power conferred by s 501CA(4). A repository of that power cannot avoid the task imposed by the statute by referring to another, presently hypothetical, decision-making process and what may occur during that process, in particular where – as I have endeavoured to demonstrate in these reasons – quite a different assessment would in any event occur pursuant to that process.

Conclusion

81    Ground 2, in terms of the first contended “misunderstanding” of the Assistant Minister, should be upheld. Where a representation is made pursuant to an invitation under s 501CA(3)(b), it is a failure to perform the statutory task then required by s 501CA(4) for the Assistant Minister to decline to determine factual matters raised by the representations by reference to a different statutory process, which is non-existent at the time of the exercise of power, whose invocation is entirely speculative, and during which process the engagement of Australia’s non-refoulement obligations is not a criterion for the grant of a visa.

82    The question before the Assistant Minister is whether or not to revoke the cancellation of a particular visa: a previously existing visa, which entitled the person to remain in the Australian community, on a particular basis, with the particular status and benefits that accompany that visa. Thus, the question for the Assistant Minister was whether to restore that particular visa to the applicant. In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.

83    The decision made by the Assistant Minister not to revoke the cancellation of the applicant’s partner visa should be set aside. Orders will be made for the respondent to pay the applicant’s costs, to be fixed in a lump sum.

Associate:

Dated:    7 March 2019