FEDERAL COURT OF AUSTRALIA

GBV18 v Minister for Home Affairs [2019] FCA 1132

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs of and incidental to the application.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision by a delegate of the Minister for Home Affairs (Minister) and Minister for Immigration and Border Protection made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation under s 501(3A) of the Act of the applicant's Subclass 202 (Global Special Humanitarian) visa (Visa).

2    The grounds of review advanced in this Court by the applicant primarily centered on the extent to which, and the manner in which, a decision-maker under s 501CA(4) is to consider whether or not Australia’s owes non-refoulement obligations to the person whose visa was cancelled. Debate persists as to the correct approach. This is largely due to the feature of the legislative framework that it customarily remains open for that person to separately make an application for a protection visa, which would ordinarily invite consideration of those obligations as effected under the Act. These reasons consider this debate and how it applied to the Tribunal’s decision.

3    In this case, the Tribunal was not required to consider Australia’s non-refoulement obligations as expressed under the Act, but nonetheless proceeded to do so. In doing so, the Tribunal was required to give active intellectual consideration to the applicant’s non-refoulement claims while maintaining due appreciation that these matters were but one consideration influencing the Tribunal’s balancing exercise under s 501CA(4)(b)(ii).

4    For the reasons below, the Tribunal’s decision does not disclose any jurisdictional error. The aspects of the Tribunal’s reasons impugned by the applicant did not evidence irrational reasoning by the Tribunal nor a failure of the Tribunal to adequately consider the claims and representations put to it by the applicant. Furthermore, even though the Tribunal engaged in consideration of the applicant’s non-refoulement claims, it did not fail to carry out its statutory task by stating that, should the applicant make a protection visa application, those claims “must be comprehensively assessed”. Based on the prevailing weight of authority, there is no error in that statement.

5    The applicant’s judicial review application is accordingly dismissed.

Structure of these reasons

6    The broad structure of these reasons is as follows:

(a)    Background ([7]-[38]): This section summarises the applicant’s circumstances, the litigation history and the judicial review application to this Court;

(b)    Relevant legislation ([39]-[53]): This section outlines the relevant aspects of the Act and the operation of various legislative instruments guiding decision-makers under that legislation;

(c)    Operation of s 501CA(4) ([54]-[90]): This section outlines the general operation of s 501CA(4) of the Act and addresses some points of debate around its application. These matters influence the determination of the applicant’s grounds of review; and

(d)    Consideration of grounds of review: The balance of these reasons outlines the submissions of the parties and considers each of the four grounds of review advanced by the applicant, starting below at [91], [119], [141] and [166] respectively.

Background

7    The applicant is a 27 year old citizen of South Sudan. His childhood was largely spent in displaced persons camps and refugee camps in Sudan and Kenya.

8    The primary applicant for the Visa was the applicant’s eldest sister. The applicant was granted the Visa as her dependant. The applicant and his sister, along with her children, arrived in Australia on 15 December 2004. The applicant was aged 12 years at the time.

9    The maintenance of the applicant’s Visa was subject to the provisions of the Act. Relevantly for current purposes, s 501(3A) of the Act provides that:

Refusal or cancellation of visa on character grounds

…

(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)    …; 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 of a Territory.

10    For the purposes of the character test referred to in s 501(3A)(a), a “substantial criminal record” includes where the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.

11    The applicant has compiled an extensive criminal record since arriving in Australia. The reasons of the Tribunal (AAT Reasons) record that the applicant’s history encompasses 21 court appearances in four states since 2009. His convictions as an adult are for increasingly serious offences, including crimes of violence against innocent citizens, police, emergency workers and a prison officer. This includes a sentence of 12 months’ imprisonment on 10 March 2011 for affray, recklessly causing serious injury and robbery. Accordingly, since this time, the applicant has had a “substantial criminal record” for the purposes of s 501(3A)(a)(i). The criterion in s 501(3A)(a) was satisfied.

12    In November 2016, the applicant was serving a full-time sentence of imprisonment in a custodial institution for an offence against a State law, being a breach of a family violence intervention order and associated offences. The criterion in s 501(3A)(b) was therefore also satisfied.

13    On 28 November 2016, the applicant's visa was cancelled under s 501(3A) of the Act.

14    The Act contemplates that a person who has had their visa cancelled under s 501(3A) may request revocation of that decision. For that purpose, the Minister is required after his decision under s 501(3A) to cancel a visa to provide certain information to the person about the decision, and also invite the person to make representations to the Minister about revocation of the decision: s 501CA(3). Section 501CA(4) of the Act then provides that:

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.

15    On 7 December 2016, the applicant requested revocation of the decision to cancel his visa. In the relevant form initiating his request, the applicant was required to specify the reasons for which he submitted the cancellation should be revoked. He relevantly stated the following:

I came here as a refugee from South Sudan as a war-torn country on sister humanitarian visa.

South Sudan is still in war and a huge violation of human rights abuse, eg. torturing, raping, child soldiers and killing of innocence [sic] people.

I have never gone back to S. Sudan since I came here as a child with my family and I don’t have any relatives there.

I have got immediate family here as a partner and two boys who needs my support at all time.

…

It would be returning me to a place that is extremely unsafe, which is why we fled …

…

I would return and become a target to government/militia/army in order to join to fight. This also places my family here and extended family overseas in emotional turmoil about my life, safety and that of my life.

16    In further correspondence to the Department dated 17 January 2017, the applicant also stated the following:

If I was returned to Sudan, I fear persecution and it is a country that has no welfare system, poor health facilities and there are basically no support structures in place. Being a third world developing country I believe I would become destitute in an instance if returned and a real possibility of being targeted by rebel soldiers.

17    In addition to other various supporting materials, the applicant’s representatives, Victoria Legal Aid (VLA), provided various submissions in support of his revocation request. Of particular relevance is VLA’s submissions dated 7 April 2017 (VLA Submissions), which the applicant continued to rely upon in the Tribunal. In addition to setting out the applicant’s background, the structure of the VLA Submissions reflected the structure of Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 65), which, as explained below at [48], identified for the Minister (and then the Tribunal) certain considerations relevant to determining whether to exercise his (or its) discretion to revoke the visa cancellation. One of those relevant considerations is Australia’s international non-refoulement obligations.

18    The VLA Submissions addressed the relevance of Australia’s international non-refoulement obligations to the applicant’s revocation request. The relevant extract of those submissions (with citations omitted) was as follows:

Other considerations

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 [No.] 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.

[The applicant] is a member of the Dinka ethnic groups, which is one of the indigenous ethnic communities of South Sudan. Thus he would be eligible to be grated South Sudanese Nationality. We note that since 2013 South Sudan has been experiencing civil war with widespread human rights violations accompanying that conflict.

In the recent UN Human Rights Council ‘Report of the Commission on Human Rights in South Sudan’ covering the period July 2016 to February 2017 the following concerns were noted:

•    The conduct of all parties to the conflict suggested deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing). Including killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting.

•    The displacement of an estimated 1.5 million South Sudanese refugees to neighbouring counties, and a further 2 million internally displaced people within South Sudan.

•    Unprecedented levels of hunger, caused by the combination of disease, protracted instability, escalation of conflict and widespread destruction. Food insecurity was expected to reach massive proportions in 2017. It was expected that 5.5 million people (47% of the population) would become severely food insecure between February and April 2017.

•    A cholera outbreak for the third consecutive year.

•    Severe restrictions on the enjoyment of fundamental freedoms and civil liberties including reports of people who had been arbitrarily arrested, detained, tortured or subjected to inhuman or degrading treatment after having expressed criticism of the Government.

19    A footnote accompanying the first paragraph extracted above cited the definition of “non-refoulement obligations” under s 5 of the Act. This definition includes obligations that may arise because Australia is a party to the:

(a)    Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention);

(b)    International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); or

(c)    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)) (CAT).

20    Returning to the chronology, the applicant’s most recent sentence of imprisonment was on 22 December 2016 for an effective terms of one year and three months following a conviction for intentionally causing injury, recklessly causing injury and unlawful assault. After being released from prison on 6 April 2018, the applicant was taken into immigration detention where he currently remains.

21    On 7 August 2018, a delegate of the Minister and the Minister for Immigration and Border Protection decided not to revoke the visa cancellation decision. The delegate’s statement of reasons, like the VLA Submissions, largely followed the structure of the considerations set out in Direction No. 65. The delegate relevantly expressed the following in relation to Australia’s international non-refoulement obligations:

International non-refoulement obligations

…

53.     I note that [the applicant] states that he would face hardship in South Sudan arising from a protracted civil war, ethnic cleansing by all parties in the civil war against civilians, the displacement of refugees to other countries, food insecurity and hunger, a cholera outbreak and the curbing of fundamental freedoms and civil liberties, were he to return to South Sudan. [The applicant] has also expressed fear that he would become a target of the government, militias or the army in order to join hostilities as a soldier, and fears being targeted by rebel soldiers.

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

55.     A Protection visa application is the key mechanism provided for by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Further, I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character–related criteria. To reinforce this practice, the Minister has given a direction under s499 of the Act (Direction 75) which, among other things, requires 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 referring the application for consideration under s501 of the Act. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

56.     I have also considered [the applicant’s] claims of harm upon return to South Sudan outside the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from a protracted civil war, ethnic cleansing by all parties in the civil war against civilians in addition to the displacement of refugees to other countries, food insecurity and hunger, a cholera outbreak and the curbing of fundamental freedoms and civil liberties, were he to return to South Sudan.

22    The applicant made an application to the Tribunal for review of the delegate’s decision not to revoke the visa cancellation. In advance of the hearing in the Tribunal, the applicant’s then representatives, Samuta McComber Lawyers, provided to the Tribunal a Statement of Facts, Issues and Contentions dated 17 September 2018 (Applicant’s Statement). It was structured to address each of the relevant considerations listed in Direction No. 65. The submissions in relation to two of those considerations—Australia’s international non-refoulement obligations and the extent of impediments to the applicant if removed to South Sudan—were as follows:

Other Considerations

…

Australia’s non-refoulement obligations

69.     The Applicant accepts that, consistent with paragraph 14.1(4) of Direction [No.] 65, it is unnecessary for the Tribunal to determine whether non-refoulement obligations are owed to the Applicant for the purposes of determining whether the mandatory cancellation should be revoked.

…

Extent of impediments if removed

76.     It is submitted that the Applicant would face significant detriments on his return to South Sudan, including:

   (a)     lack of access to treatment for his diagnosed Hepatitis B;

   (b)     a lack of social and economic support; and

(c)     a lack of cultural or experience living in South Sudan (given that the Applicant has never lived in South Sudan other than in the context of internally displaced persons camps and, even then, he has not lived in South Sudan since he was 3 years old).

77.     It is accepted that paragraph 14.5 of [Direction No. 65] requires decision-makers to assess impediments relative to the living conditions generally available to other citizens of the country. In that sense, while the Applicant would experience a significant deterioration in living standards were he forced to return to South Sudan, that deterioration in living standards wouldn’t appear to be a prescribed consideration under paragraph 14.5.

78.     However, it is submitted that the deterioration in living standards the Applicant would face if forced to return to South Sudan is a relevant consideration, even if not a consideration prescribed by [Direction No. 65].

79.     It is noted that South Sudan has been in a state of civil war since 2013, resulting in:

(a)     ethnically motivated killings, abductions, unlawful detention and deprivation of liberty, rape and sexual violence, the burning of villages and looting;

   (b)     the displacement of 3.5 million South Sudanese refugees;

(c)     unprecedented levels of hunger, with 5.5 million people being projected to be severely food insecure between February and April 2017;

   (d)     three consecutive years of cholera outbreak; and

(e)     severe restrictions on the enjoyment of fundamental freedoms and civil liberties.

As such, it is a foreseeable consequence of non-revocation that the Applicant would face severe hardship on his return to South Sudan.

80.     In the premises, it is submitted that this consideration weighs heavily in favour of revocation.

…

23    Paragraph 79 of the Applicant’s Statement was accompanied by a footnote citing “UN Human Rights Council. Report on the Commission of Human Rights in South Sudan”, being the same report cited in the VLA Submissions (see above at [18]).

The Tribunal’s decision

24    On 31 October 2018, the Tribunal affirmed the decision of the delegate not to revoke the cancellation of the applicant’s Visa.

25    The Tribunal summarised the evidence before it at [26]-[79] of its reasons. Important to the Tribunal’s decision was [53], in which the Tribunal recorded some of the bases on which the applicant feared returning to South Sudan:

[The applicant] said he considered Australia to be his home. If returned to South Sudan he says there is nothing for him in a country he ‘left when young’ and which he says is ‘uncivilised.’ He continues to speak Dinka fluently, which is the language used by the major ethnic group of South Sudan, but has no recollection of what life is like there. He has no family or other social support, stating that he was unaware of the location of his biological father in South Sudan. Based on what [the applicant] had seen on television and what others told him, he feared any re-settlement in South Sudan. [The applicant] said he left high school in Australia during year 9 and therefore felt his prospects of getting a job if forced to leave Australia were very limited. In response to questions, [the applicant] confirmed he had never worked since arriving in Australia and had depended on social security payments like Youth Allowance and Newstart since arriving here. When asked what his fears of persecution or being forced to fight with the Army or militia in South Sudan were based on, [the applicant] said ‘I have no evidence to back it up – it’s what I’ve heard people saying.’ He felt that if returned to South Sudan, people there would look at him in ‘different ways – they think you have something you don’t have and then you’ll be killed.’ In response to further questions about the basis of his fears, he said: ‘being a target – this is the stuff I hear people speaking.’

(Citations omitted.)

26    After setting out the relevant background and evidence, the Tribunal’s reasons, like the VLA Submissions and the Applicant’s Statement beforehand, followed the structure set out in Direction No. 65. The Tribunal acknowledged it was bound by Direction No. 65 (AAT Reasons at [15]), subject to any respect in which Direction No. 65 was inconsistent with the Act (AAT Reasons at [120]).

27    After considering the “primary considerations” set out in Direction No. 65, the Tribunal turned to the “other considerations” set out in that instrument. Relevant for current purposes, the Tribunal considered at [115]-[129] the relevance of Australia’s international non-refoulement obligations. In doing so, the Tribunal first recognised at [115] that paragraph 14.1(1) of Direction No. 65 “refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm”. The Tribunal then continued at [116]-[123] to outline the relevant material presented by the applicant, highlight the need for the Tribunal to consider Australia’s non-refoulement obligations, and summarised that bases put by the applicant for his fear of harm. In particular, the Tribunal noted at [122] the matters that had been raised in paragraph 76 of the Applicant’s Statement (as extracted above at [22]):

OTHER CONSIDERATIONS

International non-refoulement obligations

…

122.     [The applicant’s] fears about harm arising from a possible return to South Sudan have more recently been advanced as:

(a) Lack of access to treatment for his diagnosed Hepatitis B;

(b) A lack of social and economic support; and

(c) A lack of cultural or experience living in South Sudan (given that the Applicant has never lived in South Sudan other than in the context of internally displaced persons camps and, even then, he has not lived in South Sudan since he was 3 years old).

28    The Tribunal then considered at [125]-[129] the weight to be afforded to Australia’s international non-refoulement obligations. These passages, which constitute the primary battleground between the parties in this Court, expressed the following:

125.    The generally unstable situation in South Sudan is acknowledged. And, in the event that a person who has spent more than half of their life in Australia was returned there, they would undoubtedly encounter difficulties – even if they spoke Dinka as [the applicant] does. These impediments include accessing work, healthcare and other support services. Healthcare would not be of comparable quality or accessibility as services available in Australia. But general observations about the challenges confronting citizens in developing countries like South Sudan do not extend to a reliable finding about a number of the concerns expressed by [the applicant]. These include a fear of persecution, or being forcibly recruited into military or militia service and forced to fight. [The applicant’s] current legal representative submitted in response to the Tribunal’s questions, that there is ‘some difficulty in establishing if [the applicant] is at risk of harm if returned to South Sudan,’ with ‘limited evidence about the precise risk of harm.’ That follows from the fact [the applicant] left South Sudan at a very young age and migrated to Australia as a 12 year-old dependent of his sister.

126.     It is considered [the applicant’s] written and oral submissions tend to conflate potential fear of persecution with potential hardship. It is not possible on the evidence before me to identify why he might be targeted for ‘human rights abuse’ or persecution or torture or forced recruitment into the military or a militia. There is no evidence to support the fear he expresses for the safety of his family, who would remain in Australia. South Sudan is undoubtedly a dangerous place, but it is difficult to discern from the very general claims [the applicant] advances that specific harm in a non-refoulement sense applies to his personal circumstances. As Allsop CJ and Katzmann J held in NBMZ [v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1] at [22], the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant:

[22] The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual’s personal circumstances.

127.     The effect of section 501E(2) of the Act is that [the applicant] is not prevented from making a protection visa application under section 36 of the Act. Should he do so, his claims must be comprehensively assessed. Under Direction 75 a decision-maker is legally-bound to first assess any refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) of the Act, before considering any character or security concerns. I do not accept the submission of [the applicant’s] legal representatives that ‘a non-revocation decision is likely to mean that the Applicant will be permanently excluded from remaining in, or returning to Australia.’ In DOB18 [v Minister for Home Affairs [2018] FCA 1523], Griffiths J commented on the importance of acknowledging the different stages of decision-making under the Act. His Honour reflected with approval on recent court decisions in: Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) per Flick J; Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) per Logan J and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J. Griffiths J held at [35] that Ali, Greene and Turay were ‘plainly correct’ in properly recognising ‘the need to avoid speculation as to what might or might not occur in future decision-making.’ The submissions by [the applicant’s] legal representatives that a ‘likely’ outcome of non-revocation by the Tribunal is that he is ‘likely to be returned’ or permanently excluded ‘from remaining in, or returning to, Australia,’ is premature and speculative. Such submissions assume outcomes of a protection visa claim that is yet to be submitted or determined.

128.     [The applicant’s] claims of harm lack specificity. He says that his fears are underpinned by what other people have told him and what he has seen on television. There is no evidence, however, about who these other people are, their specific knowledge of South Sudan, or expertise in relating risks of harm arising from [the applicant’s] circumstances to Australia’s non-refoulement obligations. There is no evidence, for example, why [the applicant] considers he would be forcibly recruited as a soldier, or subjected to human rights violations.

129.     There is evidence before me that large numbers of South Sudanese have been displaced due to the extended civil war in that country. Although a peace agreement was recently signed between South Sudan’s President Salva Kiir and main rebel leader Riek Machar, it remains to be seen whether it endures. Previous peace deals only held for a matter of months. What is clear is that South Sudan’s population has relatively poor access to healthcare, which may make it difficult for [the applicant] to access the six-monthly checks for his Hepatitis B, or to access the anti-depressant recently prescribed for him, should it be considered necessary to take that medication in the longer term. The risk to [the applicant] arises in the context of South Sudan’s under-developed status within the international system and potential for further conflict and societal disruption. This weighs somewhat in favour of revocation.

(Citations omitted.)

29    Also relevantly, the Tribunal considered the extent of impediments to the applicant if he was removed to South Sudan at [138]-[141] of its reasons:

Extent of impediments if removed

138.     Paragraph 14.5(1) of the Direction states that:

The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)     The non-citizen’s age and health;

b)     Whether there are substantial language or cultural barriers; and

c)     Any social, medical and/or economic support available to them in that country.

139.     On the available country information, South Sudan’s developing economy has been adversely affected by the prolonged civil war, resulting in the slow development of institutional structures, limited services and employment prospects for its citizens. It is highly probable that [the applicant] would face hardship if returned to South Sudan, potentially including homelessness, unemployment, lack of family or social support, and an inability to access depression medication if required, and the six-monthly checks required for his Hepatitis B. Although he speaks Dinka, the fact that he has lived in Australia since the age of 12 means he may also experience cultural barriers. His quality of life is likely to be substantially diminished. That said, [the applicant] is a relatively young man under 30 years of age and would have access to the services and opportunities generally available to other South Sudanese citizens. These would undoubtedly be of lesser quality than what he can access in Australia. He would also lose easy access to members of his family living in Australia, noting that [the applicant’s] previous conduct and sentences of imprisonment have acted to limit that family access.

140.    While I note the evidence about [the applicant’s] telephone calls with his father in 2015, his father’s current location and circumstances are unknown.114 Whether [the applicant] can reconnect with his father or any other relatives of friends in South Sudan also remains unknown, although his unchallenged submission is that he has no social or family ties to rely upon. I accept on the evidence that he has no meaningful relationship with his father or other relatives to rely upon if returned to South Sudan. The prospect of deterioration in [the applicant’s] mental and physical health under such circumstances cannot be discounted.

141.     I find that [the applicant] would have a diminished quality of life and likely face significant difficulties in making a new life for himself in South Sudan, which weighs strongly in favour of revoking the original decision to cancel his visa.

(Citations omitted.)

30    After completing its consideration of the “other considerations” under Direction No. 65, the Tribunal summarised its conclusions at [143]-[148]. The Tribunal expressed at [144] that significant weight was to be placed on the “serious, violent and prolonged nature” of the applicant’s offending. Moreover, the Tribunal observed in the same paragraph that the applicant has “demonstrated a persistent disregard for judicial orders and Australia’s laws, committing further offences, including while on bail or probation”. As a result, the Tribunal determined at [145] that “[t]he primary considerations of Protection of the Australian community and Expectations of the Australian community weigh strongly in favour of refusing to revoke the cancellation of [the applicant’s] visa”.

31    The Tribunal acknowledged, however, that some considerations weighed in favour of revocation. The Tribunal noted at [147] that Australia’s international non-refoulement obligations and the impediments to be faced by the applicant if returned to South Sudan also pointed in favour of revocation:

It is accepted that Australia’s international non-refoulement obligations and the strength, nature and duration of [the applicant’s] ties to Australia weigh somewhat in his favour. If he was required to return to South Sudan, [the applicant] would be confronted by significant impediments in establishing himself in a country that he last resided in as a very young child. That includes access to medical treatment, economic and social supports. He would also likely be socially isolated from his family in Australia. The impediments he would encounter weigh strongly in favour of revocation.

32    Despite this, the Tribunal concluded that, on balance, there was not “another reason” why the decision to cancel the applicant’s visa should be revoked. The result of the Tribunal’s weighing exercise was expressed at [148] of its reasons:

I have placed all of these factors in the balance and conclude there is not ‘another reason’ why the decision to cancel [the applicant’s] visa should be revoked. That is because the primary considerations of Protection of the Australian community and Expectations of the Australian community, outweigh the primary consideration of Best interests of minor children in Australia, and the other considerations which favour revocation.

33    The Tribunal accordingly affirmed the decision of the delegate not to revoke the mandatory cancellation of the applicant’s Visa.

Application for judicial review in this Court

34    On 22 November 2018, the applicant, without the aid of legal representation, filed a notice of appeal against the decision of the Tribunal. This was an incorrect manner of challenging the Tribunal’s decision, which is not open to appeal in the strict sense but is instead amenable to judicial review under s 476(1)(c) of the Act. As such, on 15 March 2019, the applicant, after obtaining legal assistance, filed an amended originating application for review of a migration decision.

35    As the applicant’s initial notice of appeal was filed within 35 days of the Tribunal’s decision (as is required by s 477A(1) of the Act for an application for judicial review), the applicant was unrepresented at that time, and there does not otherwise appear to be any material prejudice to the Minister in defending the application as a result of the amended originating application, it should be taken that the applicant’s notice of appeal to this Court invoked s 476(1)(c) of the Act: see Luy v Minister for Immigration and Border Protection [2015] FCA 405 at [10] per North J.

36    The judicial review application was heard on 6 June 2019. The applicant was represented by Mr Wood of counsel and the Minister was represented by Mr Hill of counsel. Both had prepared and filed detailed written submissions in support of their respective arguments.

37    The applicant sought the quashing of the Tribunal’s decision and an order compelling the Tribunal to determine his application in accordance with law. In support of his application for judicial review, the applicant relied on the following four grounds of review in his amended originating application:

1.    The Tribunal failed to consider whether, on the information and representations before it, which tolerably clearly raised “complementary protection” claims, the applicant would be owed such complementary protection and whether (if so) the existence of such obligations would be a “reason” for revoking the cancellation decision.

2.    The Tribunal failed to consider certain significant evidence or representations before it, including a recent UN report provided by the applicant, which referred inter alia to the ongoing incidence during the civil war of “deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing)”, “killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting” in South Sudan.

3.    The Tribunal failed to consider certain significant evidence or representations before it, including a recent UN report provided by the applicant, which referred inter alia to the ongoing incidence during the civil war of “deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing)”, “killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting” in South Sudan.

4.    The Tribunal considered that, in the event that the applicant applied for a protection visa, his non-refoulement claims “must be comprehensively assessed”. The Tribunal thereby failed to carry out its statutory task by misunderstanding the Act or its operation.

38    Each of these four grounds of review will be considered in turn below. Before doing so, it is necessary to outline the legislation central to the applicant’s challenge to the Tribunal’s decision.

Relevant legislation

The Act

Revocation of the visa cancellation

39    The legislative provisions governing the cancellation of the applicant’s Visa, and the potential revocation of that cancellation, were noted above. It is convenient to highlight those provisions again.

40    The Act provides for the cancellation of visas granted under that Act in certain circumstances. One circumstance is prescribed in s 501(3A) of the Act, namely where the Minister is satisfied that the person holding the visa does not pass the character test because he or she has a substantial criminal record and the person is serving a relevant sentence of imprisonment. The terms of s 501(3A) and its related provisions were set out above at [9].

41    Next, as explained above at [14], s 501CA of the Act contemplates that a person who has had their visa cancelled under s 501(3A) may request revocation of that decision. The terms of s 501CA are set out in full below for reference:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)     For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(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.

(5)     If the Minister revokes the original decision, the original decision is taken not to have been made.

 (6)     Any detention of the person that occurred during any part of the period:

(a)     beginning when the original decision was made; and

(b)     ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)     A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

Criteria for protection visa

42    Where the Minister is required to consider a valid protection visa application (for which see s 47 of the Act), the criteria for whether that application should be granted or refused are set out in s 65 of the Act. Section 65(1)(a) specifies various criteria of which the Minister must be satisfied, including “other criteria … prescribed by this Act or the regulations”.

43    The criteria provided by the Act for these purposes are set out in s 36 of the Act, which provides the following:

Protection visas—criteria provided for by this Act

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

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

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

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

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

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

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

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

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

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

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

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (a); and

(ii)     holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (aa); and

(ii)     holds a protection visa of the same class as that applied for by the applicant.

(2A)     A non-citizen will suffer significant harm if:

   (a)    the non-citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non-citizen; or

   (c)     the non-citizen will be subjected to torture; or

(d)     the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non-citizen will be subjected to degrading treatment or punishment.

(2B)     However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)     the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

Legislative instruments

44    Section 499 of the Act gives the Minister the power to give written directions to a person or body having functions or powers under this Act if the directions are not inconsistent with the Act and are about the performance of those functions or the exercise of those powers. The person or body to whom the direction is directed must comply with the direction: s 499(2A) of the Act; BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 (BQL15) at [9] per Collier, Flick and Perry JJ.

Direction No. 65

45    Direction No. 65 was made pursuant to s 499 of the Act by the then Minister for Immigration Border and Protection on 22 November 2014. The direction’s stated purpose is to “guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act”: paragraph 6.1(4) of Direction No. 65. Direction No. 65 applied to decisions of the Tribunal, amongst other decision-makers: see Direction No. 65, Annex B, definition of “decision-maker”; BQL15 at [9]; FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 (FKP18) at [34]-[35] per Kenny J.

46    Direction No. 65 has now been replaced by Direction No 79 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s501CA (Cth) in relation to decisions made on or after 28 February 2019: see generally Nathanson and Minister for Home Affairs (Migration) [2019] AATA 642 at [27]-[38]. But Direction No. 65 continued to apply in relation to the decision under review in this case, which was made by the Tribunal on 31 October 2018.

47    Direction No. 65 is divided into three parts; each addressing different forms of decisions. Relevantly for currently purposes, Part C of Direction No. 65 “[i]dentifies 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”: paragraph 5 of Direction No. 65.

48    Part C of Direction No. 65 specifies various “primary considerations” and “other considerations” that, where relevant, must be taken into account by a decision-maker determining whether or not to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are listed as follows:

13.     Primary considerations – revocation requests

    …

(2)     In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

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

   b)     The best interests of minor children in Australia;

   c)     Expectations of the Australian community.

…

14.    Other considerations – revocation requests

(1)     In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)     International non-refoulement obligations;

   b)     Strength, nature and duration of ties;

   c)     Impact on Australian business interests;

   d)    Impact on victims;

   e)    Extent of impediments if removed.

49    Although Direction No. 65 refers to these considerations in the separate classes of “primary consideration” and “other considerations”, one member of this Court has expressed that “it would be contrary to s 501CA(4) to approach the matter on the basis that certain considerations were inherently less important in forming the state of satisfaction required by the Act”: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 (Suleiman) at [40] per Colvin J. See also Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325 (HSKJ) at [35] per Greenwood, McKerracher and Burley JJ.

50    Direction No. 65 proceeds to explain each of these primary and other considerations in further detail. Key to this case is the explanation provided by the direction in relation to the first “other consideration”—Australia’s international non-refoulement obligations. Paragraph 14.1 of Direction No. 65 provides the following:

14.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport of 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 of Punishment (the CAT); and the International Covenant on Civil and Political Rights and is 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 s501CA 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 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given 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.

Direction No. 75

51    Direction no. 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (Direction No. 75) was made pursuant to s 499 of the Act by the then Minister for Immigration and Border Protection on 5 September 2017. Direction No. 75 only applies to “delegates who consider valid applications for Protection visas under section 47 of the Act, and perform functions or exercise powers under section 65 of the Act”. It therefore does not apply to the determination of protection visa applications made by the Minister personally. Neither does it have any bearing on decisions of the Tribunal: Hamidy v Minister for Immigration and Border Protection [2019] FCA 221 (Hamidy) at [35] per Murphy J.

52    The stated purpose of Direction No. 75 is “to direct decision-makers to refuse applications using section 36(1C) or 36(2C)(b) [of the Act] 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”. The directions contained in Direction No. 75 are as follows:

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 does 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).

53    Flick J observed in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) at [18] that Direction No. 75 was presumably issued by the Minister in response to the decision of the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16), as explained further below.

Operation of s 501CA(4)

54    The Tribunal’s decision subject to judicial review in this case was made under s 501CA(4) of the Act. That provision provides that:

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.

55    The task for a decision-maker under s 501CA(4)(b) is to form a state of satisfaction as to whether the person passed the character test or there is another reason why the original decision should be revoked. That satisfaction is a state of mind which must be formed reasonably and on a correct understanding of the law: Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [33] per Gageler and Keane JJ; Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.

Nature of the discretion

56    Section 501CA(4) confers a discretion on the decision-maker. However, for the purposes of s 501CA(4)(b)(ii), once the decision-maker is satisfied that there is another reason why the visa cancellation should be revoked, he or she must act on that satisfaction; the decision-maker does not have a residual discretion to refuse to revoke the cancellation: Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 538 (Gaspar) at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548 (Marzano) at [30]-[31] per Collier J; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 (Viane) at [73]-[74] per Colvin J. Accordingly, the locus of the decision-maker’s discretion in this respect is not the word ‘may’ in the chapeau to s 501CA(4), but in the word ‘should’ in s 501CA(4)(b)(ii). This “imports an assessment by the Minister [or, in this case, the Tribunal] of the propriety of a revocation decision, balancing factors both in favour and against revocation”: Marzano at [32] per Collier J; see also Viane at [27] per Rangiah J.

57    The task of identifying “another reason” was further explained by Colvin J in Viane at [64]:

There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

Consideration of non-refoulement obligations

58    As will become relevant, a central issue to the resolution of this judicial review application is the extent to which, and the manner in which, a decision-maker under s 501CA(4) is to consider whether or not Australia’s owes non-refoulement obligations to the person whose visa was cancelled.

59    A series of recent decisions of this Court either directly consider, or otherwise influence, the appropriate approach to this issue. In chronological order, these decisions include, but are not limited to:

(a)    Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 per Allsop CJ, Griffiths and Wigney JJ (Le);

(b)    BCR16, being BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 per Bromberg and Mortimer JJ, Davies J dissenting;

(c)    Suleiman, being Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 per Colvin J;

(d)    Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9 per Robertson, Moshinsky and Bromwich JJ (BHA17);

(e)    Ali, being Ali v Minister for Immigration and Border Protection [2018] FCA 650 per Flick J;

(f)    Greene v Assistant Minister For Home Affairs [2018] FCA 919 per Logan J (Greene);

(g)    Viane, being Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Reeves, Rangiah and Colvin JJ;

(h)    Turay v Assistant Minister for Home Affairs [2018] FCA 1487 per Farrell J (Turay);

(i)    DOB18 v Minister for Home Affairs [2018] FCA 1523 per Griffiths J (DOB18 (TJ)), which was affirmed on appeal (see sub-paragraph (p) below);

(j)    FKP18, being FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 per Kenny J;

(k)    BKS18 v Minister for Home Affairs [2018] FCA 1731 per Barker J (BKS18);

(l)    Sowa v Minister for Home Affairs [2018] FCA 1999 per Griffiths J (Sowa (TJ)), which was affirmed on appeal (see sub-paragraph (r) below);

(m)    Ezegbe v Minister For Immigration and Border Protection [2019] FCA 216 per Perram J (Ezegbe);

(n)    Hamidy, being Hamidy v Minister for Immigration and Border Protection [2019] FCA 221 per Murphy J;

(o)    Omar v Minister for Home Affairs [2019] FCA 279 per Mortimer J (Omar);

(p)    DOB18 v Minister for Home Affairs [2019] FCAFC 63 per Logan and Robertson JJ, Rares J dissenting (DOB18 (FC));

(q)    Ibrahim v Minister for Home Affairs [2019] FCAFC 89 per White, Perry and Charlesworth JJ (Ibrahim);

(r)    Sowa v Minister for Home Affairs [2019] FCAFC 111 per Jagot, Bromwich and Thawley JJ (Sowa (FC)), which was handed down on 28 June 2019 after the hearing in this matter; and

(s)    Flores v Minister for Home Affairs [2019] FCA 1043 per Yates J (Flores), which was handed down on 5 July 2019 after the hearing in this matter.

60    The interpretation and application of s 501CA(4) in these decisions is not aligned in every respect. It is not currently desirable to conclusively analyse and reconcile the principles discussed in these decisions. It may be expected that task will fall to the Full Court of this Court in time. In this respect, I am aware as at the date of this decision a notice of appeal has been lodged in this Court against the decision of Mortimer J in Omar. So, to quote Le at [61], “[g]iven the inherent complexity of the matter, it would be unwise to be overly prescriptive in summarising the relevant legal principles”. It is necessary, however, to summarise the broad position of the law to address this judicial review application.

Degree of obligation to consider non-refoulement obligations

61    The Act does not itself address the extent to which a decision-maker under s 501CA(4) must, or may, consider Australia’s international non-refoulement obligations. In practice, it appears that, at least at the time of the Tribunal’s decision, Direction No. 65, deriving its authority from s 499 of the Act, was the primary means by which decision-makers were directed to consider these obligations.

62    Paragraph 14(1) of Direction No. 65, as extracted above at [48], expresses that “[i]n deciding whether to revoke the mandatory cancellation of a visa, other considerations [(including Australia’s international non-refoulement obligations)] must be taken into account where relevant” (emphasis added). On the face of this direction, combined with a reading of s 499(2A) of the Act, it may have appeared that Australia’s international non-refoulement obligations was a mandatory consideration for decision-makers under s 501CA(4). However, that is inconsistent with the prevailing authority of this Court.

63    The appropriate and fundamental starting point to explain the appropriate approach to s 501CA(4) is to highlight that the consideration of non-refoulement obligations in exercising a discretion under s 501CA(4) is not to be equated with the manner in which those obligations are relevant in the course of the determination of a protection visa application under s 65. They are different statutory tasks, as explained by the majority in BCR16—Bromberg and Mortimer JJ—at [48]-[49]:

… the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant … (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the [decision-maker]. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.

In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.

See also Omar at [45] per Mortimer J and DOB18 (FC) at [63] per Logan J.

64    However, the majority in BCR16 did not say that non-refoulement obligations must be taken into account. Their view was that it was “not to contend that the scope, subject-matter and purpose of the revocation power in s 501CA(4) requires that Australia’s intentional non-refoulement obligations be taken into account”: BCR16 at [61]. See also, in the context of an exercise of power under s 501(2), Le at [65] per Allsop CJ, Griffiths and Wigney JJ and, in the context of an exercise of power under s 501BA(2), DOB18 (FC) at [180] per Robertson J.

65    Although non-refoulement obligations are not mandatory relevant considerations, the majority in BCR16 held that a decision-maker under s 501CA(4) will fail to carry out his or her statutory task if he or she fails to address or turn his or her mind to the risk of harm that an applicant may face on return to her or his country of nationality because of an assumption that the non-refoulement obligations would necessarily be considered through the protection visa process: see FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 at [32] per Perry J, citing BCR16 at [62] and [72] per Bromberg and Mortimer JJ; see also BHA17 at [73] per Robertson, Moshinsky and Bromwich JJ. In the view of the majority in BCR16, this risk of harm would include, but extends beyond, “harm as that concept is understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations”: BCR16 at [73]. The result is that BCR16 imposed upon a decision-maker an obligation to “consider the consequences of the non-revocation of the cancellation decision, so far as the consequences are reasonably capable of being ascertained”: AFY18 v Minister for Home Affairs [2018] FCA 1566 at [45] per Charlesworth J.

66    These principles in BCR16 were premised on the basis that a decision-maker under s 501CA(4) could not conclude that Australia’s international non-refoulement obligations would necessarily be considered as part of a subsequent application for a protection visa: see BHA17 at [73] per Robertson, Moshinsky and Bromwich JJ. The assumption that non-refoulement obligations would necessarily be considered is commonly referred to as the “first misunderstanding” in BCR16. It was a misunderstanding because, at least at the time BCR16 was decided, a protection visa application may have been determined other than by reference to the criteria specified under s 36(2) of the Act: BCR16 at [35]-[46]. As a simple example, it is possible that the Minister could refuse the grant of a visa solely on the basis of non-satisfaction of the health criteria for the granting of such a visa: s 65(1)(a)(i) of the Act; BCR16 at [42]. A recent example of a decision-maker under s 501CA(4) displaying this misunderstanding, and therefore falling into jurisdictional error, is found in FKP18 at [25]-[37].

67    Debate has developed as to the applicability of BCR16 since the issuing of Direction No. 75 on 5 September 2017. As noted above at [51]-[53], the first direction in Direction No. 75 directs that, where a protection visa application raises character or security concerns, a delegate of the Minister assessing that application must first assess the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act prior to considering any character or security concerns. A number of decisions of this Court collectively support the position that, as a result of the issuing Direction No. 75, a decision-maker under s 501CA(4) does not commit the first misunderstanding in BCR16 if he or she states that it is not necessary for him or her to consider Australia’s non-refoulement obligations (thereby, in practice, deferring the consideration of such obligations until the determination of any protection visa application): Ali at [33]-[34] per Flick J; Greene at [19] per Logan J; Turay at [51] per Farrell J; DOB18 (TJ) at [23] per Griffiths J; BKS18 at [112]-[118] per Barker J; Sowa (TJ) at [27] per Griffiths J; Ezegbe at [24] per Perram J; DOB18 (FC) at [59]-[67] per Logan J and [164]-[173] per Robertson J; Ibrahim at [71]-[86] per White, Perry and Charlesworth JJ. Similarly, although Direction No. 75 was apparently not raised by the parties in Flores, Yates J expressed at [50] that when claims regarding Australia’s non-refoulement obligations are made, “it is not necessary for the decision maker to determine whether non-refoulement obligations are owed when determining whether the cancellation should be revoked”.

68    This appears to be so even though there is a possibility that the Minister, who is himself not bound by Direction No. 75, will personally consider the application for a protection visa. However, the rationale for that position varies slightly between the authorities. Factors supporting that position include:

(a)    recognition of departmental practice – the recognition in the reasons of the decision-maker under s 501CA(4) that the ordinary departmental practice for any future protection visa application was that the decision-maker would consider the application of protection-specific criteria before proceeding with any consideration of other criteria was sufficient in Ali, Greene and Turay;

(b)    clear representation that non-refoulement obligations will be considered – a “clear and unambiguous” statement in the reasons of the decision-maker under s 501CA(4) that, should the applicant apply for a protection visa, the issue of any non-refoulement obligations “would be fully considered in the course of processing the application” was sufficient in DOB18 (TJ) at [25]-[30] and Ibrahim at [84]-[85]. Griffiths J in DOB18 (TJ), and Logan J on appeal in DOB18 (FC) at [66], noted that such a statement may have implications for procedural fairness obligations;

(c)    contemplation of the possibility that the Minister will personally consider the protection visa application – a statement in reasons of the decision-maker under s 501CA(4) that expressly anticipates the prospect that a protection visa application may be assessed by the Minister personally was relevant in Sowa (TJ) at [27] and [29] and Ezegbe at [25];

(d)    degree of likelihood that the Minister would consider the application personally – a statement in reasons of the decision-maker under s 501CA(4) that it was “highly likely” that a future protection visa application would be considered by a delegate of the Minister, rather than the Minister personally was relevant in Sowa (TJ) at [27]. Similarly, Robertson J held in DOB18 (FC) at [167], [169] that the appellant had not established that the Minister would be likely to make the decision personally. See also Sowa (FC) at [49]; and

(e)    Australia’s system of responsible government – According to Logan J in DOB18 (FC) at [66], Direction No. 75 is not just the department’s practice, it is the Minister’s practice for which he is responsible to Parliament.

69    It may be observed, however, that these rationales appear to have drifted from the premise underlying the jurisdictional error in BCR16 (which was followed as not plainly wrong in BHA17). The impugned assumption in BCR16 was that Australia’s international non-refoulement obligations would necessarily be considered through the protection visa process. And, in the view of the majority in BCR16, it was insufficient for the decision-maker to point to a “real possibility” that the protection criteria might be address during consideration of any protection visa: BCR16 at [73].

70    Even after the issuing of Direction No. 75, it cannot be stated that Australia’s international non-refoulement obligations would necessarily be considered in the course of an application for a protection visa. For one, Direction No. 75 only applies to “delegates who consider valid applications for Protection visas under section 47 of the Act, and perform functions or exercise powers under section 65 of the Act” (emphasis added). Direction No. 75 will not apply where the Minister himself considers such an application. Neither will it apply where the Tribunal, upon subsequent merits review, considers such an application: Hamidy at [35] per Murphy J.

71    There is moreover doubt in my mind whether Direction No. 75 truly has the effect that delegates of the Minister will necessarily consider the protection criteria. Without resorting to previous authority, I am attracted to the applicant’s submission, the relevance of which is returned to below at [170], that Direction No. 75 does not require that the protection criteria in s 36(2) to be considered in the course of a protection visa application. The first direction in Direction No. 75, as extracted above at [52], only states that, when a protection visa assessment raises character or security concerns, the decision maker must assess the protection criteria in s 36(2) “before considering any character or security concerns”. As counsel for the applicant submitted, this direction does not say that the protection criteria must be assessed before every other criterion. For instance, as explained by Bromberg and Mortimer JJ in BCR16 at [42], “the Act envisages non-satisfaction of health criteria could result in a duty to refuse a visa. There is nothing in the scheme to prevent or preclude health criteria being examined first”. The same could be said, for example, about the criterion that the decision-maker is satisfied that the grant of the protection visa is in the national interest: see s 65(1)(a)(i) of the Act; cl 866.226 of Sch 2 of the Migration Regulations 1994 (Cth).

72    If the applicant’s submission in this respect were accepted, BCR16 would possibly assume its original significance prior to the issuing of Direction No. 75: a decision-maker under s 501CA(4) would again fail to carry out his or her statutory task if he or she failed to address or turn his or her mind to the risk of harm that an applicant may face on return to her or his country of nationality because of the assumption that the non-refoulement obligations would necessarily be considered through the protection visa process.

73    However, notwithstanding these reservations, the clear weight of authority relevant to the review of administrative decisions made after the issuing of Direction No. 75 favour the conclusion that the first direction under Direction No. 75, combined with sufficiently clear and unequivocal reassurances regarding the practices of relevant decision-makers not covered by Direction No. 75, is sufficient to overcome the possibility of jurisdictional error based on the “first misunderstanding” identified in BCR16.

Obligation to consider representations

74    Intertwined with this debate are the principles compelling a decision-maker under s 501CA(4) to deal with the particular representations made by a person whose visa has been cancelled. As noted by Mortimer J in Omar at [48], a failure by a decision-maker to consider representations made about a particular “reason” for revocation may constitute a denial of procedural fairness. See also Viane at [77] and [108] per Colvin J. Alternatively, failure to deal with the representations of the applicant “as a whole” may be characterised as a failure to take into account a mandatory consideration: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56] per Robertson J; Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 (Buadromo) at [49] per Besanko, Barker and Bromwich JJ; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 (DRP17) at [47] per Jagot, Rangiah and Banks-Smith JJ; and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [49] per Rares and Robertson JJ. And, if the decision-maker overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error: Viane at [30] per Rangiah J, cited in DRP17 at [47].

75    On the other hand, however, a decision-maker under s 501CA(4) is not required to consider a reason in favour of revocation not advanced by the person making representations to the decision-maker: Sowa (FC) at [43] per Jagot, Bromwich and Thawley JJ, citing BHA17 at [79(3)], [80] per Robertson, Moshinsky and Bromwich JJ.

76    In the context of s 501CA(4), Colvin J summarised the general position as follows in Viane at [67]-[68]:

…s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the [Act] requires.

Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

77    These principles underpin the basis on which Mortimer J held in Omar, in apparent opposition to the weight of authority outlined above, that, despite the issuing of Direction No. 75, the decision-maker under s 501CA(4)—the Assistant Minister in that case—was not entitled to defer consideration of whether non-refoulement obligations were owed to the applicant.

78    The key findings of Mortimer J in Omar were recently outlined by the Full Court of this Court in Sowa (FC) at [23]-[39]. In the judgment of Mortimer J, the expression by the decision-maker that it was unnecessary to determine whether non-refoulement obligations were owed was a “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)”: Omar at [45]. “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”: Omar at [46]. Her Honour concluded as follows at [81]-[82]:

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.

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.

79    Although there is cogency to this rationale, the approach of Mortimer J in Omar is, with respect, contrary to the weight of authority expressed in the decisions cited above at [67]. Those decisions, at least in substance, do permit a decision-maker under s 501CA(4) to “carve out” those aspects of the applicant’s representations that are related to Australia’s non-refoulement obligations for consideration in the course of any subsequent application for a protection visa. This is so notwithstanding the general position, as highlighted above, that a decision-maker must consider the claims put to him or her as bases for a “reason why the original decision should be revoked”.

80    It was unnecessary for the Full Court in Sowa (FC) to decide whether Omar was correctly decided. Omar was distinguished on the basis that, in Sowa (FC), the representations made by the person seeking revocation were in relation to a fear harm generally, and did not make reference to non-refoulement obligations: Sowa (FC) at [43]-[44].

81    Although the representations in this case did make reference to non-refoulement obligations, I do not wish to express a final personal opinion on whether Omar was a correct interpretation of the law. Given that a notice of appeal has been lodged in this Court against the decision of in Omar, it may be expected that the Full Court will in due course have the opportunity to consider whether that is so, in addition to other matters raised in these reasons. For the time being, however, it appears to me that Omar is an outlier on the jurisprudential spectrum.

Current position of the law

82    Having read and considered the relevant authorities, my interpretation of the current position of the law, based on the prevailing weight of authority, is as follows.

83    In the circumstances where:

(a)    upon invitation under s 501CA(3), a person makes representations that he or she will experience a risk of harm in the receiving country of a character that may engage Australia’s non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act; and

(b)    at the time of making those representations, it remains open for the applicant to make an application for a protection visa; and

(c)    it is certain, or at least highly likely, that Australia’s international non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, will be considered as part of that application,

the decision-maker under s 501CA(4) will not commit a jurisdictional error by, in the course of exercising his or her discretion, deferring consideration of such non-refoulement obligations until the determination of any application for a protection visa.

84    For the purposes of determining whether it is highly likely that Australia’s international non-refoulement obligations will be considered as part of a protection visa application, the existence of Direction No. 75, combined with sufficiently clear and unequivocal reassurances regarding the practices of relevant decision-makers not covered by Direction No. 75, will be sufficient to meet that test.

85    In the circumstances described above at [83], a decision-maker may consider Australia’s international non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, in the course of undertaking the balancing exercise required by s 501CA(4)(b)(ii). If the decision-maker decides to do so, he or she must give active intellectual consideration to these matters, although there is no necessity for the decision-maker to engage in the same level of analysis as would be expected in a protection visa application: see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 (Ayoub) at [28] per Flick, Griffiths and Perry JJ. An example of a decision-maker under s 501CA(4) electing to deal with a non-refoulement claim, but then failing to adequately engage with that claim, is found in Flores at [35] and [44]-[53].

86    Moreover, where the decision-maker decides to consider Australia’s non-refoulement obligations, what remains critical is that the decision-maker retains an appreciation of the differences in statutory tasks between the determination of a protection visa application under s 65 and the discretion conferred by s 501CA(4)(b)(ii). Most fundamentally, the decision-maker must appreciate that the determination under s 501CA(4)(b)(ii) of whether there is “another reason” why the visa cancellation “should” be revoked requires a balancing of relevant factors, and not one to be conclusively determined upon the existence of a particular factor.

87    The position that a decision-maker under s 501CA(4) will not commit a jurisdictional error in the circumstances described above at [83] does not, however, absolve the decision-maker from considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act. Where the person making representations advances the risk of such “alternative” harm if returned to the receiving country, that is a matter to which the decision-maker must resort as influencing the exercise of his or her discretion under s 501CA(4)(b)(i): Ezegbe at [27]-[38]. There is no “carve out” of such harm.

88    The necessity to consider harm of a kind falling short of engaging the criteria for a protection visa is illustrated by the recent decision of Perram J in Ezegbe, where the person making representations to the Minister—Mr Ezegbe—put part of his case for why his visa cancellation should be revoked on the basis that he would be harmed if returned to Nigeria. Perram J expressed the following at [28]:

Regardless of the non-refoulement claim (which required demonstration of a risk of harm at quite a high standard), the Minister still had to consider Mr Ezegbe’s case that if he were deported to Nigeria he would be harmed. It had to be weighed in the balance against the factors favouring his deportation. For example, a decision-maker could accept that Mr Ezegbe faced a risk of some serious harm falling short of the kind of harm which might enliven s 36(2)(aa) and nevertheless still use that as a consideration under s 501CA(4).

89    On the facts of Ezegbe, Perram J, after analysing the reasons of the Minister, concluded at [38] that “the Minister failed to consider those aspects of the submission which were made to him and were not related to claims which might be made for a protection visa. For the reasons given, that involved a jurisdictional error”.

90    With this examination of s 501CA(4) complete, I now turn to the first ground of review raised by the applicant.

Ground (1) – Failure to consider complementary protection obligations

91    The applicant’s first ground of review contends the following:

The Tribunal failed to consider whether, on the information and representations before it, which tolerably clearly raised “complementary protection” claims, the applicant would be owed such complementary protection and whether (if so) the existence of such obligations would be a “reason” for revoking the cancellation decision.

92    It is necessary to briefly introduce what is meant by “complementary protection” claims. In short, it refers to a claim for protection afforded to a visa applicant pursuant to the criterion specified in s 36(2)(aa) of the Act. This criterion took effect in 2012 to give express effect to Australia’s international obligations under the ICCPR, CAT and the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CROC).

93    The history of, and basis for, the enactment of s 36(2)(aa) was traced by Edelman J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [69]-[79]. Prior to the enactment of this statutory criterion, a visa applicant was not expressly entitled to a protection visa pursuant to protection obligations under these international instruments, although the applicant could otherwise follow a convoluted procedural path in order to request the favourable exercise of the Minister’s residual discretion to grant a protection visa: see SZTAL at [69]-[71].

94    The claim for protection under s 36(2)(aa) stands complementary to the criterion for a protection visa set out in s 36(2)(a) of the Act, which embodies Australia’s protection obligations under the Refugee Convention. Broadly speaking, such protection will apply where the visa applicant has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group: see ss 5H and 5J of the Act. In contrast, the core basis for complementary protection is, according to the terms of s 36(2)(aa), with certain exceptions, “a real risk that the non-citizen will suffer significant harm”. In accordance with s 36(2A) of the Act, a person will suffer “significant harm” if:

(a)    the person will be arbitrarily deprived of his or her life;

(b)    the death penalty will be carried out on the person;

(c)    the person will be subjected to torture;

(d)    the person will be subjected to cruel or inhuman treatment or punishment; or

(e)    the person will be subject to degrading treatment or punishment.

Applicant’s submissions

95    The applicant contended that, despite the information before the Tribunal raising “complementary protection” claims, as a matter of inference from the Tribunal’s reasons, the Tribunal failed to consider whether the applicant would be owed such complementary protection and, if so, whether the existence of such obligations would be a “reason” under s 501CA(4)(b)(ii) of the Act for revoking the visa cancellation.

96    In support of this inference, the applicant argued in summary that:

(a)    the Tribunal repeatedly referred to the Refugee Convention in its reasons, but nowhere refers to the ICCPR or CAT;

(b)    the Tribunal referred repeatedly to the concept of “persecution” (an essential component to a claim for refugee protection), but nowhere refers to the criteria for complementary protection whether as expressed in the ICCPR or CAT or, to the extent relevant, the criterion for a protection visa under s 36(2)(aa) of the Act; and

(c)    by relying on the reasoning in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (NBMZ) at [126] of its reasons, the Tribunal was considering a requirement under the Refugee Convention for a nexus relating to the applicant’s personal circumstances that is absent under the ICCPR or CAT.

Minister’s submissions

97    The Minister conversely submits that a proper analysis of the Tribunal’s reasons discloses that the Tribunal considered the possibility of the applicant’s complementary protection claim.

98    The Minister points in particular to the reference in [115] of the Tribunal’s reasons to the definition of a “non-refoulement obligation” under paragraph 14.1 of Direction No. 65. That definition refers to both refugee claims and complementary protection claims. As a result, where the Tribunal subsequently referred to and considered “non-refoulement obligations” in its reasons, this included consideration of Australia’s complementary protection obligations.

99    Responding to the applicant’s argument summarised above at [96(c)], the Minister submitted that there was no error in the Tribunal stating that there was no evidence of the applicant being “targeted” for human rights abuse, or persecution, torture or forced recruitment into the military or a militia. Although the notion of “targeting” is relevant to a claim for refugee protection, it is also relevant to a complementary protection claim insofar as the Tribunal was required by s 36(2B)(c) of the Act to consider whether a “real risk is one face by faced by the population of the country generally and is not faced by the [applicant] personally”.

100    The Minister finally raised that, to the extent that there is ambiguity in the Tribunal’s reasons, this was caused by the applicant’s submissions to the Tribunal that did not distinguish between refugee claims and complementary claims. Indeed, in the Minister’s submission, those submissions did not make any representations about the applicant’s race, religion, nationality, membership of a particular social group or political opinion, being the grounds relevant to refugee claim.

Consideration

Complementary protection claims raised by the applicant

101    It is clear from the information before the Tribunal that the applicant raised with the Tribunal factual matters pertinent to a complementary protection claim. In his request to the Minister for revocation of his visa cancellation (see [15] above), the applicant expressed that one of the submitted reasons for revocation was that “South Sudan is still in war” and that there had been human rights abuses, and provided torture as an example.

102    Moreover, the VLA submissions, the relevant passage of which is referred to above at [18]-[19], specifically referred to Australia’s “non-refoulement obligations” by reference to the definition of that phase under the Act, which includes obligations under the ICCPR and CAT. The VLA submissions also considered the United Nations Human Rights Council’s Report of the Commission on Human Rights in South Sudan dated 13 March 2018 which stated that “[s]evere restrictions on the enjoyment of fundamental freedoms and civil liberties including reports of people who had been arbitrarily arrested, detained, tortured or subjected to inhuman or degrading treatment after having expressed criticism of the Government”.

Was the Tribunal required to consider these claims?

103    At the time of making representations to the Tribunal, it remained open, as a result of s 501E(2) of the Act, for the applicant to make an application for a protection visa. Section 501E provides the following:

Refusal or cancellation of visa—prohibition on applying for other visas

(1)     A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a)     at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b)     the decision was neither set aside nor revoked before the application time.

…

(2)     Subsection (1) does not prevent a person, at the application time, from making an application for:

(a)     a protection visa; or

(b)     a visa specified in the regulations for the purposes of this subsection.

…

104    As the cancellation of the applicant’s Visa was made pursuant to s 501(3A) of the Act, the effect of s 501E(1), in isolation, would be to prevent the applicant from thereafter making a visa application. However, s 501E(2)(a) supplies the exception by which the applicant is permitted to apply for a protection visa.

105    At the time of the Tribunal’s decision, it was also “highly likely” that Australia’s international non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, would be considered as part of such an application. Direction No. 75 applied to decisions of delegates of the Minister. And, in respect of the possibility that the Minister would himself assess the protection visa application, there were strong statements in the delegate’s statement of reasons, as relevantly extracted above at [21], that Australia’s non-refoulement obligations would be considered in the course of a valid application for a protection visa. The delegate stated that “the existence of otherwise of non-refoulement obligations would be fully considered in the course of processing that application” and, separately, that he was “confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection Visa”. Based on the authorities outlined above at [67]-[68], these statements are sufficient to warrant the conclusion that it is highly likely that Australia’s non-refoulement obligations, as expressed under the Act, would be considered in the course of any protection visa application.

106    Although the Tribunal has authority in respect of its own policies (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 642 per Brennan J), it is not in a position to make representations itself about the future decision-making practices of the Minister and, in particular, the likelihood that the Minister would consider the criteria in ss 36(2)(a) and 36(2)(aa) of the Act if he was to determine a protection visa application personally. In these circumstances, my view is that the Tribunal was entitled to rely on the statements made in the delegate’s statement of reasons to determine the likelihood that the non-refoulement obligations would be considered in the course of any protection visa application.

107    Accordingly, on the basis set out above at [83], to the extent that the claims advanced by the applicant asserted that he would experience a risk of harm in South Sudan of a character that may engage the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, the Tribunal was entitled to decline consideration of such matters.

108    The Tribunal, however, proceeded to consider the claims advanced by the applicant. It was entitled to, for the reasons explained above at [85], although it appears that the Tribunal proceeded in this case on the mistaken belief that it was compelled by BCR16 to do so: AAT Reasons at [120]. Based on the prevailing weight of authority, that was the correct position prior to, but not after, the issuing of Direction No. 75.

109    In proceeding to consider the matters raised by the applicant relevant to a protection claim, the Tribunal was thereby required to give active intellectual consideration to these matters and otherwise maintain a proper understanding of its statutory task under s 504CA(4)(b)(ii).

Tribunal’s consideration of the complementary protection claims

110    The essence of the applicant’s argument in respect of this first ground of review is that the Tribunal only had resort to the bases for a refugee claim but failed to have regard to the bases for a complementary protection claim. In my view, that argument must fail.

111    Paragraph 14.1 of Direction No. 65, as extracted above at [50], referred to a “non-refoulement obligation” as extending beyond refugee claims; it also included grounds for “complementary protection”. This was the definition adopted by the Tribunal at [115] of its reasons.

112    Accordingly, although the term “non-refoulement obligations” may derive from the Refugee Convention, when the Tribunal referred to a “non-refoulement obligation” in its reasons, it was doing so in the broader sense; encapsulating both refugee and complementary protection claims. For instance, when the Tribunal referred at [126] of its reasons to the applicant advancing specific harm “in a non-refoulement sense”, it was referring to the broad sense described above. Likewise, when the Tribunal referred at [128] of its reasons to there being no evidence about who was informing the applicant about the relationship between risks of harm and Australia’s non-refoulement obligations, the Tribunal was here also referring to Australia’s complementary protection claims.

113    Moreover, I agree with the Minister’s submission that there was no error committed by the Tribunal in stating (in particular at [126]) that the applicant was required to identify why he would be targeted. Although the notion of “targeting” may be relevant to a refugee claim, it is, as the Minister submitted, also broad enough to accommodate the requirement under s 36(2B)(c) of the Act (see above at [43]). The effect of that provision is that the criterion for complementary protection will not be satisfied where a real risk that a non-citizen will suffer significant harm in a country is one faced the population of the country generally and is not faced by the non-citizen personally. That is, in broad terms, the non-citizen must be targeted personally.

114    Relatedly, I do not view the quotation of NBMZ at [126] of the Tribunal’s reasons as indicating that the Tribunal only had the criteria for a refugee claim in its mind, and otherwise disregarded the criteria relevant to a complementary protection claim. Although it is correct that these remarks in NBMZ were solely addressed to the Refugee Convention, my view is that the Tribunal in this case adopted those remarks to illustrate a broader principle; one that is also relevant to complementary protection claims as a result of s 36(2B)(c). The broader principle is that it will be rare for a decision-maker to be satisfied that an individual from a particular country is owed non-refoulement obligations on the basis of “general considerations” relevant to that country “divorced from the individual’s personal circumstances”.

115    This, indeed, appears to be the central basis on which the Tribunal did not afford greater weight to Australia’s international non-refoulement obligations in exercising its discretion under s 501CA(4)(b)(ii). The Tribunal accepted at [126] that “South Sudan is undoubtedly a dangerous place, but it is difficult to discern from the very general claims [the applicant] advances that specific harm in a non-refoulement sense applies to his personal circumstances”. Similarly, the Tribunal concluded at [128] the applicant’s claims of harm lacked specificity. The fears of the applicant were based on what he had heard about what was occurring in South Sudan generally.

116    Given that paragraph 14.1(1) of Direction No. 65 specifically directed the Tribunal to the tests for Australia’s non-refoulement obligations under the Act, it would have been preferable for the Tribunal to have referred to, and distinguished between, such criteria under the Act with greater clarity in its reasons. But it must be recalled that, in this context, Australia’s international non-refoulement obligations is but one factor amongst many affecting the Tribunal’s decision. And, moreover, the precision required of the Tribunal’s reasons in distinguishing between the components of Australia’s international non-refoulement obligations expressed under the Act is not the same as would be expected in determining the application for a protection visa: Ayoub at [28] per Flick, Griffiths and Perry JJ.

117    The applicant asked me to draw the inference from the Tribunal’s reasons that it had failed to consider whether the applicant would be owed complementary protection. After considering the totality of the information provided to the Tribunal, and the reasons provided by the Tribunal for its decision, my view is that the inference is not warranted.

118    For these reasons, the first ground of review raised by the applicant must be dismissed.

Ground (2) – Misapplication of non-refoulement obligations

119    The applicant’s second ground of review contends the following:

The Tribunal accepted that there was a real chance of the applicant being a victim of a violent attack in South Sudan, but was not satisfied that he was the subject of non-refoulement obligations on the basis that he supposedly conflated “persecution” with “hardship”, and failed to advance evidence unique to his particular personal circumstances. The Tribunal thereby failed to carry out its statutory task by misunderstanding the scope of Australia’s non-refoulement obligations (whether as expressed at international law or in the criteria for a protection visa in section 36 of the Act). Or, alternatively, if it is to be supposed that the Tribunal correctly understood the law, the Tribunal engaged in irrational reasoning.

Applicant’s submissions

120    The applicant premises the second ground of review on the basis that the Tribunal made factual findings that were capable of engaging Australia’s complementary protection obligations. In particular, the applicant highlights the Tribunal’s finding at [126] that “South Sudan is undoubtedly a dangerous place”.

121    The applicant challenges the Tribunal’s consequent reasoning, particularly in [126] and [128] of its reasons, that the applicant conflated “persecution” with “hardship” and failed to advance evidence unique to his particular personal circumstances or identify why he might be targeted. The applicant’s written submissions contended that:

such reasoning evinces a misunderstanding of non-refoulement obligations (especially complementary protection obligations), or irrational reasoning. On any view, a risk of being killed or tortured (which the applicant’s evidence specifically adverted to) are risks of being subjected to harm of a kind with which Australia’s non-refoulement obligations are concerned, and are risks that are not capable of being characterised as mere “hardship”. And, as explained above, no nexus between the harm feared and any particular attribute of the applicant (e.g., race, religion, political opinion) is necessary to invoke Australia’s complementary protection obligations (whether as expressed in the CAT or ICCPR or – to the extent relevant – the criterion for a protection visa in section 36(2)(aa) of the Act). Nor did the applicant need to demonstrate some “particularized evidence” of a risk that he faced uniquely or distinctly.

122    The applicant argued that, in respect of the complementary protection obligations, there was no requirement for the applicant to provide to the Tribunal evidence of a particularised or unique risk pertaining to the applicant as an individual. In the applicant’s submission, s 36(2B)(c) of the Act, as raised by the Minister in response to this ground of review, was not relevant because that provision only pertained to an application for a protection visa. Primarily relying on Ibrahim, counsel for the applicant submitted at the hearing that s 36(2B)(c) of the Act has no relevance to the content of Australia’s international non-refoulement obligations.

Minister’s submissions

123    The Minister argues there is no error in the Tribunal’s reasoning. In the Minister’s submission, the Tribunal correctly applied Australia’s non-refoulement obligations as implemented under the Act as directed by Direction No. 65. In particular, the Minister asserts that:

(a)    any refugee claim by the applicant would need to connect the claimed fear of persecution to reasons of the applicant’s race, religion, nationality, membership of a particular social group or political opinion (see s 5J(1)(a) of the Act); and

(b)    any complementary protection claim by the applicant would need to distinguish between a real risk of significant harm faced by the applicant as an individual, and a real risk is faced by the population of the country generally (s 36(2B)(c) of the Act).

The Minister argues that the applicant’s submissions to the Tribunal did not attempt to satisfy either of these elements.

124    In response to the applicant’s argument that the Tribunal erred in stating that the applicant conflated “persecution” with “hardship”, the Minister argues that this comment by the Tribunal was directed at particular claims of the applicant dealing with the applicant’s health issues and lack of support in South Sudan, as summarised at [122] of the Tribunal’s reasons. Additionally, when the Tribunal considered that those claims lacked specificity, this was, in the Minister’s submission, not requiring “particularised evidence”, but merely reflected that complementary protection claims under the Act do not extend to risks faced by the population in general.

Consideration

Relevance and application of s 36(2B)(c) of the Act

125    Contrary to the submission of the applicant, s 36(2B)(c) of the Act does hold relevance to the exercise of the Tribunal’s discretion under s 501CA(4) of the Act in determining whether or not to revoke the cancellation of the applicant’s Visa. The relevance of s 36(2B)(c) is not confined to an application for a protection visa.

126    The considerations relevant to the broad discretion under s 501CA(4) were informed by the matters set out in Direction No. 65. Paragraph 14(1) of the Direction No. 65 specified that decision-makers were required to consider Australia’s international non-refoulement obligations, although the strictness of this requirement should be tempered for the reasons explained above at [62]-[64].

127    When Direction No. 65 referred to consideration of non-refoulement obligations, it was instructing the decision-maker to consider, not the obligations owed in international law by Australia, but the obligations that the Commonwealth Parliament has given effect to under the Act. This is clear from the instruction by Direction No. 65 that “[t]he Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act”. The same instruction is evident in other aspects of Direction No. 65: see paragraphs 10.1(1) and 12.1(1). Although the second sentence of paragraph 14.1(1), and these other paragraphs, make particular reference to the Refugee Convention, the ICCPR and the CAT, this is merely to explain the original source of Australia’s obligations. The key instruction in paragraph 14.1(1) is its final sentence: the “decision-makers should follow the tests enunciated in the Act”.

128    In this respect, it must be recalled that Direction No. 65 was issued within a year after the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act), one purpose of which was “codifying in the Migration Act Australia’s interpretation of its protection obligations”: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at 2 (emphasis added). See also ibid at 10 and 28. Although it was not the Government’s intention to resile from Australia’s international obligations (see ibid at 10), it is clear that the effect of the Amending Act was to create a distinction, at least in certain respects, between Australia’s international obligations and the obligations codified in the Act. Given Direction No. 65 was issued within a year after the Amending Act came into operation, Direction No. 65 should be construed and applied in harmony with the reforms introduced by the Amending Act.

129    Section 36(2B)(c) of the Act, which has the potential to negate the existence of a complementary protection claim, was clearly an important limb in following the tests enunciated in the Act. Consequently, in considering the possibility that the applicant was owed non-refoulement obligations in accordance with the Act for the purposes of its discretion under s 501CA(4)(b)(ii), the Tribunal was required to inquire whether risks of harm claimed by the applicant were ones faced by the applicant personally or by the population of South Sudan generally.

130    The Tribunal’s reasons exhibit engagement in that inquiry. At [126], the Tribunal concluded that “it is difficult to discern from the very general claims [the applicant] advanced that specific harm in a non-refoulement sense applies to his personal circumstances”. And at [128], the Tribunal further noted that “[the applicant’s] claims of harm lack specificity” and that “his fears are underpinned by what other people have told him and what he has seen on television”. It was open to the Tribunal to form the view that the evidence before it did not strongly support the conclusion that any risk of significant harm would be one faced by the applicant personally.

131    The Full Court’s decision in Ibrahim does not aid the applicant’s argument that s 36(2B)(c) holds no relevance to the exercise of s 501CA(4)(b)(ii). It may readily be accepted that Ibrahim stands for the broad proposition advanced by the applicant—that Australia’s international non-refoulement obligations differ from those expressed under the Act as criteria for a protection visa, particularly those criteria for complementary protection: Ibrahim at [113]. That was essential to the conclusion in Ibrahim that the Assistant Minister had conflated Australia’s obligations under the Refugee Convention with the obligations effected under the Act: Ibrahim at [106]-[113]. As explained in Ibrahim at [113], this “involved misapprehension of the effect of the Act because, on an application for a Protection visa, it is only the criteria in s 36 which are to be considered”.

132    No such misapprehension is evident from the Tribunal’s reasons. There is no suggestion that the Tribunal assumed that Australia’s non-refoulement obligations under international law would be considered in the course of a protection visa application. On the contrary, the Tribunal’s reference to Direction 75 in [127] of its reasons displays awareness that it would be the criteria under the Act that would be assessed.

Conflation of “persecution” and “hardship”

133    In the first sentence of [126] of its reasons, the Tribunal expressed that it considered that the applicant’s submissions “tend to conflate potential fear of persecution with potential hardship”. With respect to the Tribunal, the inclusion of this observation in the particular section of the Tribunal’s reasons—which related to the relevance of Australia’s non-refoulement obligations—tended to distract from the central analysis of those obligations.

134    The central theme of the Tribunal’s consideration of Australia’s international non-refoulement obligations was the specificity or individuality of the claimed risk of harm. As discussed, this is the theme to which s 36(2B)(c) of the Act is directed. The relevant question was whether the purported harm claimed by the applicant was a kind that he would face individually, or whether it was a kind that is faced by South Sudan in general. This is the central basis on which the Tribunal did not afford great weight to Australia’s non-refoulement obligations.

135    The focus of the observation in the first sentence of [126] of the Tribunal’s reasons, however, was the quality of the claimed harm. This centered on the inquiry as to whether the claimed harm was sufficiently harmful to warrant protection. In the context of a complementary protection claim of the Act, this is a question of whether the claimed harm satisfies the definition of “significant harm” under s 36(2A) of the Act.

136    The apparent reason for the blending of themes can be traced back to the manner in which the Tribunal addressed the applicant’s written submissions made in advance of the Tribunal hearing. The Applicant’s Statement, as relevantly extracted above at [22], addressed each of the considerations in Direction No. 65 in turn. The content in relation to Australia’s non-refoulement obligations was short, and is not relevant to recite here. However, the content in relation to another “other consideration” noted in Direction No. 65—the “[e]xtent of impediments if removed”—was lengthier. It included the following submission:

Extent of impediments if removed

76.    It is submitted that the Applicant would face significant detriments on his return to South Sudan, including:

  (a)     lack of access to treatment for his diagnosed Hepatitis B;

  (b)     a lack of social and economic support; and

(c)     a lack of cultural or experience living in South Sudan (given that the Applicant has never lived in South Sudan other than in the context of internally displaced persons camps and, even then, he has not lived in South Sudan since he was 3 years old).

(Citations omitted.)

137    As would be expected, these bases of detriment were addressed by the Tribunal under the hearing “Extent of impediments if removed” at [138]-[141] of its reasons, as extracted above at [29]. However, they were also quoted earlier at [122] of the Tribunal’s reasons, as extracted above at [27], in the context of the Tribunal considering Australia’s international non-refoulement obligations. The consequent complication was that these matters were not presented by the applicant as matters pertaining to such non-refoulement obligations. In addressing the applicant’s submissions in this manner, the Tribunal opened itself to the risk of conceptual confusion.

138    My ultimate view, however, is that, upon a reading of the Tribunal’s reasons as a whole, the reference to these bases of detriment in the section of the Tribunal’s reasons that considered Australia’s international non-refoulement obligations did not infect the Tribunal’s reasoning in respect of those obligations. On balance, my view is that the Tribunal was not referring to these bases of detriment on the basis that they were the sole bases advanced by the applicant for a claim for protection. Instead, the Tribunal was primarily citing these bases of detriment by way of juxtaposition against matters that would genuinely warrant a claim for protection—broadly, a well-founded fear of persecution based on prescribed grounds or a real risk of “significant harm” that is faced personally by the applicant.

139    The critical element of the Tribunal’s reasoning in assessing the relevance of Australia’s international non-refoulement obligations was that it was not possible on the evidence before the Tribunal to support the finding of sufficiently “specific harm in a non-refoulement sense” (emphasis added). The observation of the Tribunal that the applicant’s submissions tended to conflate a fear of persecution with a fear of hardship, while apt to confuse in the particular context of the Tribunal’s reasons, did not undermine the integrity of that facet of the Tribunal’s reasoning. As a result, my view is that the Tribunal did not fail to carry out its statutory task or engage in irrational reasoning in a manner that affected the Tribunal’s conclusions.

140    For these reasons, the second ground of review raised by the applicant must be dismissed.

Ground (3) – Failure to consider ethnic violence detailed in UN Report

141    The applicant’s third ground of review contends the following:

The Tribunal failed to consider certain significant evidence or representations before it, including a recent UN report provided by the applicant, which referred inter alia to the ongoing incidence during the civil war of “deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing)”, “killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting” in South Sudan.

142    The reference to a “recent UN report” in these grounds of review is to the United Nations Human Rights Council’s Report of the Commission on Human Rights in South Sudan dated 13 March 2018 (UN Report). The content of the UN Report was raised with the Tribunal by the applicant in the VLA Submissions, as extracted above at [18], and the Applicant’s Statement, as extracted above at [22]-[23].

143    Although the third ground of review was framed on the basis that the UN Report was but one form of “significance evidence or representation” that the Tribunal failed to consider, the UN Report was the sole focus of this ground of review at the hearing.

Applicant’s submissions

144    The applicant highlighted the reference to the UN Report in the VLA Submissions. In particular, the VLA Submissions summarised that the UN Report noted concerns in relation to the “deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing)” during the civil was in South Sudan, which included “killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting”.

145    The applicant contended that, given the importance of that information, and the reliability of its source, the Tribunal’s failure to refer to that information in its reasons justifies an inference that it was overlooked rather than that it was considered by the Tribunal to be immaterial. The inference that the Tribunal overlooked the UN Report is strengthened, in the applicant’s submission, by the Tribunal’s remarks at [128] of its reasons that “[t]here is no evidence … why [the applicant] considers he would be forcibly recruited as a soldier, or subjected to human rights violations”. The applicant submitted that there plainly was such evidence in the form of the UN Report.

Minister’s submissions

146    The Minister argues that the Tribunal was not obliged to refer to every piece of evidence in its reasons. Moreover, it is not always a jurisdictional error to overlook evidentiary material; it will be relevant to consider the cogency of the evidence in the context of the applicant’s claims.

147    The Minister submitted that, although the UN Report is undoubtedly a “cogent” source of information, it provided information on the position in South Sudan generally and did not address the gaps in the applicant’s specific claims. For instance, although the UN Report refers to civilian populations being target based on their ethnic identity, the application did not provide any information about whether his ethnic group was one of the groups targeted. Likewise, although the UN Report stated that there were severe restrictions on the enjoyment of fundamental freedoms and civil liberties by persons who had criticised the government, the applicant has not provided any submissions on the profiles of the persons whose freedoms and liberties had been restricted, and whether he met that profile.

148    The Minister notes that, although the Tribunal’s reasons did not make specific reference to the UN Report, the Tribunal acknowledged at [125]-[126] the generally unstable situation in South Sudan, and (at [129]) that a large number of South Sudanese has been displaced due to the extended civil war. Additionally, in considering the extent of impediments to the applicant if he was removed to South Sudan, the Tribunal referred at [139] to the “prolonged civil war” in South Sudan, and the hardship the applicant would face there. In doing so, the Minister argues that it was unnecessary for the Tribunal to itemise the ways in which South Sudan was dangerous and unstable because it accepted at [141] that these impediments “weighed strongly” in favour of revoking the visa cancellation. The specific matters in the UN Report were subsumed in findings of greater generality by the Tribunal.

Applicable principles

149    Section 430(1) of the Act provides that, where the Tribunal makes a decision on review, the Tribunal is required to provide a written statement that, relevantly, sets out the decision of the Tribunal on the review; sets out the reasons for the decision; sets out the findings on any material questions of fact; and refers to the evidence or any other material on which the findings of fact were based.

150    The effect of s 430(1) is that this Court is entitled to infer that a matter not mentioned in the reasons of the Tribunal was not considered it to be material: HSKJ at [46]-[48] per Greenwood, McKerracher and Burley JJ, citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ. However, that inference is not irrebuttable; “the manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts, or even displaces, the inference”: SZMTD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [19] per Perram J, approved and quoted in HSKJ at [44]. Moreover, the fact that a matter is not mentioned in the Tribunal’s reasons does not necessarily mean the matter was not considered at all; the Tribunal may have considered the matter but found it not to be material: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] per Katzmann, Griffiths and Wigney JJ, citing Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31] per French CJ and Kiefel J. Indeed, the Tribunal is not obliged to refer to every piece of evidence in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] per French, Sackville and Hely JJ; Buadromo at [49] per Besanko, Barker and Bromwich JJ.

151    The relevant principles were likewise summarised in the context of s 501CA(4) by Rangiah J in Viane at [28]-[30]:

In the context of an application for a protection visa, it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant’s claims: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; 302 ALR 572; 136 ALD 41; [2013] FCA 317 (SZKRT) at [111]–[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431; 136 ALD 547; [2013] FCAFC 114 at [68]–[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [52]–[56]. In SZRKT, Robertson J explained at [111]:

The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error.

The Minister has not submitted that there is any relevant distinction between the functions of a tribunal considering an application for a protection visa and the Minister’s function under s 501CA(4) of the Act.

If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision, the Minister’s error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as “information” (or “material”, or “evidence”), rather than an “argument”, there may be jurisdictional error where the “information” is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is “critical” in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome.

(Emphasis added.)

In addition to the authorities cited by Rangiah J, see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [62] per Griffiths, Perry and Bromwich JJ and BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [65] per Robertson, Steward and Thawley JJ.

152    This passage from Viane highlights that it is not always a jurisdictional error to overlook evidentiary material. Whether the material is “sufficiently important” will depend on the circumstances of the case and the nature of the material, including:

(a)    the cogency of the evidence; and

(b)    the place of that material in the assessment of the applicant’s claims.

Consideration

153    There is no express reference to the UN Report in the Tribunal’s reasons. It is therefore necessary to compare the matters raised by the applicant with the substance of the Tribunal’s reasoning to determine whether the Tribunal considered the relevant information in the UN Report. In determining whether the Tribunal sufficiently considered this information, it is important to characterise how the applicant said that information should be used by the Tribunal.

Presentation of the UN Report to the Tribunal

154    As explained, the VLA Submissions—dated 7 April 2017—were presented in advance of the delegate’s decision, although the applicant also relied on those submissions in the Tribunal. As extracted above at [18], the VLA Submissions referred to the UN Report in the context of Australia’s international non-refoulement obligations. It is not precisely clear, however, how the VLA Submissions intended the information in the UN Report to be used.

155    The paragraph of the VLA Submission preceding the citation of the UN Report noted that the applicant was a member of the Dinka ethnic group, one of the indigenous ethnic communities of South Sudan, and that South Sudan had been experiencing civil war since 2013 with widespread human rights violations. The VLA Submissions then summarised some key concerns noted by the UN Report. Those submissions did not, however, explain how those matters applied to the applicant personally. Given the context in which the UN Report was cited, and the reference to the finding of the UN Report that there had been “deliberate targeting of civilian populations based on their ethnic identity”, the probable inference is that this aspect of the VLA Submissions was purporting to argue that there was a real risk that the applicant would face ethnic based targeting upon his return to South Sudan.

156    The UN Report was subsequently cited in the Applicant’s Statement—dated 17 September 2018—provided in advance of the Tribunal hearing. However, the Applicant’s Statement raised the UN Report, not in the context of Australia’s international non-refoulement obligations, but in the context of the “[e]xtent of impediments [to the applicant] if removed” to South Sudan. As extracted above at [22], paragraph 79 of the Applicant’s Statement paraphrased the same five findings from the UN Report that were summarised in the VLA Submissions. The Applicant’s Statement then expressed that, as a result of those matters, “it is a foreseeable consequence of non-revocation that the Applicant would face severe hardship on his return to South Sudan”. As can be seen, the UN Report was being used in the Applicant’s Statement, not to evidence any ethnic based targeting, but rather to evidence “severe hardship” on the applicant.

Tribunal’s use of the UN Report

157    The reasonable inference from the Tribunal’s reasons is that the Tribunal did resort to the UN Report. This is evident from the Tribunal’s remark at [129] of is reasons that “[t]here is evidence before me that large numbers of South Sudanese have been displaced due to the extended civil war in that country” (the displacement of South Sudanese refugees being a matter raised by the UN Report as summarised in the VLA Submissions and Applicant’s Statement). The inference is also supported by the fact that at [125] the Tribunal acknowledged “[t]he generally unstable situation in South Sudan” and proceeded to consider at [139] the impact of the civil war on South Sudan’s economy, and the consequent impact on the applicant’s access to medical support.

158    The applicant maintains, however, that the ethnically motivated violence—being the first concern in the UN Report that was summarised in the VLA Submissions and Applicant’s Statement—was “qualitatively different” from generic concerns about the impact of the civil war on the economy and infrastructure in South Sudan. The applicant asks me to draw the inference that the Tribunal overlooked this particular aspect of the UN Report in exercising its discretion. However, in my view, such an inference is unjustified. In the context of the applicant’s circumstances, and the manner in which the applicant put his submissions to the Tribunal, there was no requirement for the Tribunal to grant prominence to this historical ethnic violence.

159    To start, in these circumstances where I am to inquire into whether the Tribunal considered the ethnic violence raised by the UN Report, the question I should ask myself is whether the Tribunal considered that information for the purpose of which it was advanced by the applicant. Read at its highest, the VLA Submissions argued that there was a real risk that the applicant would face ethnic based targeting upon his return to South Sudan. However, the Applicant’s Statement, provided subsequent to the VLA Submissions and shortly prior to the hearing of the Tribunal, only presented the UN Report as being evidence of “severe hardship” on the applicant should he be returned to South Sudan, not ethnic based targeting.

160    It may readily be accepted that “ethnically motivated killings, abductions, unlawful detention and deprivation of liberty, rape and sexual violence, the burning of villages and looting” are of a different quality of risk than, for example, the risk of insufficient access to medication, a matter that was also of concern to the applicant. The former class of risks clearly include matters to which Australia’s non-refoulement obligations are acutely concerned. However, to the extent that the finding in the UN Report was used to support the existence of ethnic based targeting, it was insufficient for the applicant to simply observe that such ethnically motivated conduct has historically occurred in the receiving country. The risk of such conduct needed to be linked to the applicant personally.

161    Considered alone, the references to ethnic violence in the UN Report only established was that such violence had occurred in South Sudan during the prolonged civil war. Although the Tribunal did not specifically reference this violence, it was clear that the Tribunal appreciated the civil war in South Sudan and the “unstable situation” it had created in that country. However, without further evidence from the applicant establishing the link between this background information and how the applicant would himself be at risk of such violence, the Tribunal could not have been expected to accentuate the ethnic violence to a greater degree in its reasons. Given that the Tribunal highlighted the absence of such evidence at [126] and [128] of its reasons, there was no compulsion for it to dwell further on the historical ethnic violence.

162    The Tribunal’s statement at [128] of its reasons—that “[t]here is no evidence … why [the applicant] considers he would be forcibly recruited as a soldier, or subjected to human rights violations”—should be understood in this light. Read in context, what the Tribunal was expressing was that there was no evidence supporting the conclusion, in respect of the applicant personally, that the applicant would be forcibly recruited as a soldier, or subjected to human rights violations. The UN Report may have provided reputable evidence as to the situation in South Sudan generally, but it was open to the Tribunal to conclude that it alone did not provide sufficient foundation for concluding that the relevant risks of harm were faced by the applicant personally. This reasonably explains the absence of specific reference to the ethnic based violence by the Tribunal.

163    This analysis is strengthened by the fact that the Tribunal considered that the “considerations” raised by Direction No. 65 to which the UN Report was most relevant—being Australia’s international non-refoulement obligations and the extent of impediments to the applicant if removed to South Sudan—both weighed in favour of revocation: see AAT Reasons at [147]. Given this, and the fact that, in the view of the Tribunal, the applicant had not sufficiently advanced a link between the historical ethnic violence recorded in the UN Report and the future risks he would personally face if removed to South Sudan, the Tribunal should not be expected to have given central and specific prominence to the findings of historical ethnic violence in the UN Report.

164    To summarise, the failure of the Tribunal to specifically reference the particular finding of the UN Report—that the civil war in South Sudan had led to “ethnically motivated killings, abductions, unlawful detention and deprivation of liberty, rape and sexual violence, the burning of villages and looting”—did not constitute a jurisdictional error by the Tribunal. In all the relevant circumstances of the case, including the manner in which that information in the UN Report was put to the Tribunal, and the fact that the Tribunal made separate reference to matters raised by in the UN Report, the cogency of that information did not render it sufficiently important such that failure by the Tribunal to specifically refer to it would lead the Tribunal into error.

165    For these reasons, the third ground of review raised by the applicant must be dismissed.

Ground (4) – Failure to carry out statutory task by stating non-refoulement claims “must be comprehensively assessed” in protection visa application

166    The applicant’s fourth ground of review contends the following:

The Tribunal considered that, in the event that the applicant applied for a protection visa, his non-refoulement claims “must be comprehensively assessed”. The Tribunal thereby failed to carry out its statutory task by misunderstanding the Act or its operation.

167    The applicant is here referring to the remarks of the Tribunal at [127] of its reasons. For reference, that paragraph expressed the following:

127.     The effect of section 501E(2) of the Act is that [the applicant] is not prevented from making a protection visa application under section 36 of the Act. Should he do so, his claims must be comprehensively assessed. Under Direction 75 a decision-maker is legally-bound to first assess any refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) of the Act, before considering any character or security concerns. I do not accept the submission of [the applicant’s] legal representatives that ‘a non-revocation decision is likely to mean that the Applicant will be permanently excluded from remaining in, or returning to Australia.’ In DOB18 [v Minister for Home Affairs [2018] FCA 1523], Griffiths J commented on the importance of acknowledging the different stages of decision-making under the Act. His Honour reflected with approval on recent court decisions in: Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) per Flick J; Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) per Logan J and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J. Griffiths J held at [35] that Ali, Greene and Turay were ‘plainly correct’ in properly recognising ‘the need to avoid speculation as to what might or might not occur in future decision-making.’ The submissions by [the applicant’s] legal representatives that a ‘likely’ outcome of non-revocation by the Tribunal is that he is ‘likely to be returned’ or permanently excluded ‘from remaining in, or returning to, Australia,’ is premature and speculative. Such submissions assume outcomes of a protection visa claim that is yet to be submitted or determined.

(Emphasis added.)

168    Section 501E(2) of the Act, as referred to in the first sentence of the passage above, was extracted above at [103] in the course of considering the first ground of review. Direction No. 75, as referred to in the second sentence of the passage above, was introduced above at [51]-[53].

Applicant’s submissions

169    The applicant relied on two broad bases for his contention that the Tribunal misunderstood its statutory task by stating that, in the event the applicant applied for a protection visa, his claims for protection under the Act “must be comprehensively assessed”.

170    First, the applicant contends that, for the reasons explained in BCR16, the criteria in s 36(2) of the Act would not necessarily be considered in the event that the application applied for a protection visa. This is so even taking into account Direction No. 75. That direction does not require the s 36 criteria to be considered before all other criteria for a protection visa; it only requires the s 36 criteria to be considered before any consideration of the “specific ineligibility criteria” in ss 36(1C) and (2C)(b) and before any consideration of refusal under section 501. There are numerous criteria for a protection visa, any one of which the Minister or his delegate or the Tribunal might consider before section 36, and which the applicant might fail. In this event, consideration of s 36 might never be reached.

171    Second, it is a mistake, in the applicant’s submission, to suppose that any claims would be considered at all in the same manner in the event that the applicant applied for a protection visa. The differences in the assessment of a protection visa application under s 65 of the Act, and a discretionary decision under s 501CA(4), are manifold. Moreover, not only will claims be considered in a different manner if an applicant applied for a protection visa, but “non-refoulement obligations” under the relevant international treaties will simply not be considered at all when a person applies for a protection visa.

Minister’s submissions

172    The Minister firstly contended that, properly read, Direction No. 75 instructs decision-makers to assess refugee and complementary protection claims before any other concerns. As a result, Direction No. 75 is effective to overcome the “first misunderstanding” in BCR16 (as was explained above at [66]). In the Minister’s submission, that interpretation is supported by Ali, Greene, Ibrahim, Sowa (TJ) and Ezegbe.

173    Second, although it is true that BCR16 states that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65, these remarks were obiter dicta. In the Minister’s submission, it is not a jurisdictional error for the Tribunal to state that, should the applicant make an application for a protection visa, the applicant’s claims for protection under the Act “must be comprehensively assessed”.

174    In support of this position, the Minister’s written submissions provided a detailed analysis of the varying, sometimes conflicting, case law underpinning this submission. Much of this case law was summarised above. Counsel for the Minister submitted that the approach of Logan J in DOB18 (FC) was correct: there is no jurisdictional error because the Tribunal was not obliged to consider whether non-refoulement obligations were owed. In his submission, the decision of Mortimer J in Omar was wrongly decided.

175    Third, the Minister objects to the contention of the applicant that the Tribunal erred because a protection visa application considers statutory criteria, and not “non-refoulement obligations” as such. The Tribunal only states that the applicant’s “claims must be comprehensively assessed” (emphasis added). This does not evidence any misunderstanding of the operation of the Act. In any event, Direction No. 65 states that it is the tests under the Act, not Australia’s obligations in international law, that decision-makers should follow.

Consideration

176    Various aspects of the answer to this fourth ground of review have already been considered above, including in the course of the analysis of s 504CA(4) set out above at [54]-[89]. That analysis was set out upfront because it underpinned the consideration of each ground of review. However, the analysis was particularly key to the determination of this fourth ground of review.

Misapprehension of statutory task?

177    It would undoubtedly be a mistake for a decision-maker to equate the manner in which non-refoulement obligations were to be considered in making a decision under s 501CA(4) of the Act with the consideration of such obligations in determining whether to grant a protection visa under s 65. The reason for that is clearly explained by Bromberg and Mortimer JJ in BCR16 at [48]-[49], as extracted above at [63], even if, as the Minister contended, that passage is obiter dicta. The statutory tasks under s 65 and s 501CA(4) are clearly different.

178    However, the reasons of the Tribunal do not evidence such a mistake. As explained above at [132], the Tribunal, by referring to Direction No. 75 in [127] of its reasons, was expressing an awareness of the differences in statutory tasks between decisions under s 65 and s 501CA(4) of the Act. Neither does the substance of the Tribunal’s reasoning display a misapprehension of its statutory task. The Tribunal was aware that s 501CA(4)(b)(ii) required “an evaluative process”: AAT Reasons at [25], citing Gaspar at [38] per North ACJ. The structure of the Tribunal’s reasons centered on the sequential assessment of the various considerations set out in Direction No. 65. Australia’s international non-refoulement obligations was one such consideration, amongst others. Then, at [143]-[148] of its reasons, the Tribunal summarised its conclusions. The Tribunal at [148] “placed all of these factors in the balance” and concluded that there was not “another reason” why the decision to cancel the applicant’s Visa should be revoked.

179    The Tribunal’s engagement with Australia’s non-refoulement obligations differs with the cursory manner in which the delegate in this case (see above at [21]), and the decision-makers in cases such as Ali, Greene, Turay, BKS18, Ezegbe, and Sowa, referred to those obligations. In each of those cases, the decision-maker expressed that he or she considered that it was unnecessary to determine whether non-refoulement obligations were owed for the purposes of the decision under s 501CA(4) because the existence or otherwise of such obligations would be considered in the course of any protection visa application. In this case, although the Tribunal correctly recognised that the applicant’s claims for protection would be comprehensively assessed in the course of a protection visa application, the Tribunal, unlike the decision-makers in these other cases, but similar to the decision-maker in Flores, nonetheless engaged in the merits of these claims.

180    The Tribunal’s engagement of these claims did not, however, evidence a misunderstanding of its statutory task. It was entitled to do so, as noted above at [85]. And, although some aspects of its reasons may have been improved, as highlighted in these reasons, there is no ground, in my view, to conclude that the Tribunal failed to carry out its statutory task by misunderstanding the operation of the Act.

Effect of Direction No. 75

181    The Tribunal assumed that, should the applicant make a protection visa application, the decision-maker would necessarily consider the criteria under ss 36(2)(a) and 36(2)(b) of the Act. That is clear from the Tribunal citation of Direction No. 75 in the third sentence of [127] of its reasons. As such, when the Tribunal stated in the second sentence of [127] that the applicant’s “claims must be comprehensively assessed”, my view is that the Tribunal was conveying its view that the criteria under ss 36(2)(a) and 36(2)(aa) of the Act “must be comprehensively assessed”.

182    As noted above at [71], without resorting to previous authority, I would have been attracted to the applicant’s submission that Direction No. 75 does not necessarily require that the protection criteria in s 36(2) to be considered in the course of a protection visa application. However, the clear weight of authority relevant to the review of administrative decisions made after the issuing of Direction No. 75, as cited above at [67], favour the conclusion that decision-makers do not fall into jurisdictional error by relying on Direction No. 75 to defer consideration of Australia’s international non-refoulement obligations until such time as a protection visa application is made.

183    Following these authorities, the applicant’s argument—that the Tribunal failed to carry out its statutory tasks merely by stating that, should the applicant apply for a protection visa, the applicant’s protection claims must be comprehensively assessed—must be rejected.

The correctness of Omar

184    Although the analysis above follows the weight of authority over the decision of Omar, as explained above at [81], I do not wish to express a final personal opinion as to whether Omar was wrongly decided. As a notice of appeal has been lodged against Omar, it is expected that the Full Court will speak authoritatively on that question in due course.

Conclusion and orders

185    For the reasons set out above, the applicant’s judicial review application must be dismissed. The applicant will pay the Minister’s costs of and incidental to the application.

Associate:

Dated:        29 July 2019