FEDERAL COURT OF AUSTRALIA

Kio v Minister for Home Affairs (No 2) [2019] FCA 1293

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s decision made on 19 June 2018 to cancel the Applicant’s Class XB Subclass 200 (Refugee) visa be quashed.

2.    The Respondent pay the Applicant’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

Introduction

1    In this proceeding the applicant, Mr Chan Bik Kio, seeks judicial review of a decision of the respondent, the Minister for Home Affairs (Minister), acting personally, to cancel the applicant’s Class XB Subclass 200 (Refugee) visa ( the visa) under s 501(3)(b) of the Migration Act 1958 (Cth) (the Act). The Minister decided to cancel the applicant’s visa on the basis that he reasonably suspected that the applicant has a ‘substantial criminal record’ and therefore did not pass the ‘character test’ under the Act, and was satisfied that cancellation of the applicant’s visa was in the national interest (the Minister’s decision).

2    It is uncontentious that the applicant does not pass the character test for the purposes of s 501 of the Act, as he has a “substantial criminal record” by reason of his having been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more: see s 501(6)(a) and 501(7)(d). Further, having regard to the fact that the applicant is a repeat sexual offender in relation to women and young girls and that his criminal conduct took place over about 8 years, there can be no real question that it was open to the Minister to decide that cancellation of the applicant’s visa is in the national interest.

3    However, the Minister must make any such decision according to law. In my view he did not do so and the Minister’s decision must therefore be quashed.

The facts

4    Mr Kio was born in Myanmar. He left that country in 1998 and lived for a period in Thailand and then Malaysia. He claims that he was a village leader in Chin State from 1992 until he left Myanmar, and that as a village leader both the Chin National Army (CNA) and the Myanmar military visited him. He says that on two occasions the CNA asked him to collect donations from village members and he complied. That fundraising came to the attention of the Myanmar military and they imprisoned and beat him. He claims that he had to escape for his life because the military were looking for him to arrest him again and that if he is returned to Myanmar he will be killed or executed by the death penalty.

5    In 2005 he was assessed by the United Nation’s Human Rights Commission to be a refugee. He came to Australia in 2006, at age 53, on a refugee visa. He has resided in Australia ever since and his wife and three children joined him in Australia after also being granted refugee visas in 2010.

6    In the period from April 2009 to February 2017 the applicant was convicted of a range of criminal offences, including sexual assaults. His most serious convictions were as follows:

(a)    on 3 May 2012 he was convicted of indecent assault and sentenced to 3 months imprisonment, wholly suspended for 12 months. He was placed on the sex offenders register for eight years;

(b)    on 15 April 2014 he was convicted of indecent assault, false imprisonment, and being a convicted sex offender loitering near a school, for which he was sentenced in aggregate to six months imprisonment. He was also convicted of wilful and obscene exposure, two charges of stalking, and unlawful assault and was given a Community Corrections Order;

(c)    on 17 December 2015 he was convicted of sexual assault and sentenced to four months imprisonment and placed on the sex offender register for life; and

(d)    on 8 February 2017 he was convicted of sexual assault and sentenced to 216 days of imprisonment.

7    On 7 October 2016 an officer of the Department of Home Affairs (the Department) undertook an “International Treaties Obligations Assessment” (ITOA) in relation to Mr Kio. The stated purpose of the ITOA was to assess whether Australia has non-refoulement obligations to Mr Kio under the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (CAT); and the International Covenant on Civil and Political Rights (1966) (ICCPR) and its Second Optional Protocol aiming at the abolition of the death penalty (collectively, the relevant international treaties).

8    The ITOA did not accept Mr Kio’s claims that he was living in Chin State immediately prior to his departure from Myanmar, that he was a village leader who collected money for the CNA, that he was identified, harmed and detained by the Myanmar military or that he has a political profile as a supporter of the CNA or an imputed political profile as being anti-government. It found that there was no Refugees Convention nexus for the harm he feared, and that he did not have a well-founded fear of being persecuted for a Convention reason. Accordingly it found that he was not a refugee and that Australia accordingly does not have non-refoulement obligations under the Refugees Convention in respect of him.

9    Importantly however, the ITOA accepted that Mr Kio had left Myanmar illegally and that he would be imprisoned for doing so if returned to Myanmar. It described prison conditions in Myanmar in the following terms:

… they remain below international standards and they are under-funded, over-crowded and medical treatment was rare. Inmates have access to poor quality food, a lack of healthcare and they have to pay for bribes for everything such as having a shower, prison uniforms, eating utensils and attending a medical centre. The US State Department report also indicates that former prisoners have complained about poorly maintained physical structures that provided no protection from the elements and were infested with rodents, snakes and mould. Although I accept that prison conditions are slowly improving, based on the above country information I am satisfied that there are substantial grounds for believing that there is a real risk of significant harm now and in the foreseeable future.

10    The ITOA concluded:

…I am satisfied that the claimant has a real chance of being subject to significant harm should he be returned to Myanmar. Accordingly I am satisfied that the claimant, Chan Bik KIO, is a person in respect of whom Australia has non-refoulement obligations under the CAT and ICCPR.

I find that Australia does have non-refoulement obligations to Chan Bik KIO.

(Emphasis in original.)

11    On 25 May 2017 the Minister decided to cancel the applicant’s visa. That decision is not before the Court. It suffices to note that the decision was quashed by consent, on the basis that it was affected by an error of the kind identified in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576.

12    On 18 June 2018, the Department prepared a brief to the Minister to again consider cancelling the applicant’s visa under ss 501(2) or (3) of the Act.

The Minister’s decision

13    On 19 June 2018 the Minister decided to cancel the applicant’s visa under s 501(3)(b) of the Act and he signed the draft reasons for that decision provided by the Department (the Minister’s reasons). The Minister’s reasons state, and it is uncontentious, that by reason of some of the abovementioned convictions the applicant had a “substantial criminal record”. On that basis, the Minister decided that he reasonably suspected that the applicant did not pass the character test.

14    The Minister then turned to consider whether it was in the ‘national interest’ to cancel the applicant’s visa and reached the conclusion that the seriousness of the applicant’s repeated offending, the nature of the harm caused by his criminal conduct and the ongoing risk to the Australian community outweighed the countervailing considerations.

15    The Minister’s reasons said the following in relation to Australia’s non-refoulement obligations (at [83]-[89]):

International non-refoulement obligations

[83]    I have considered Mr KIO’s submissions that he fled Myanmar because of extreme persecution and torture by the military. Mr KIO submits that if he returns to Myanmar he will face persecution and beatings and is at risk of being executed by the military. I also considered the letters of Pastor Lian and Ms McDougall which have expressed concerns for Mr KIO’s welfare in the event he is removed to Myanmar.

[84]    I have considered the International Treaties Obligation Assessment (ITOA) dated 7 October 2016 which found that Mr KIO may be imprisoned for leaving Myanmar illegally. The assessment, conducted for a previous cancellation consideration, found that prison conditions in Myanmar are such that there are substantial grounds for believing there is a real risk of significant harm if Mr KIO returns to Myanmar. I accept that at the time of the ITOA, Mr KIO was a person in respect of whom Australia had non-refoulement obligations.

[85]    Notwithstanding the now dated ITOA finding of 2016, I note Mr KIO can make a valid application for a Protection visa. I am aware that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

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

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

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

[89]    I have also considered Mr KIO’s claims of harm upon return to Myanmar outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr KIO’s claims are such as to engage non-refoulement obligations, Mr KIO would face hardship as Mr KIO has previously faced persecution and torture by the Burmese military and he would face hardship arising from his fear that he would be executed if he was forced to return to Myanmar.

16    Notably the Minister said that in deciding to cancel the applicant’s visa it was unnecessary to consider any possible non-refoulement obligations Australia owed because any obligations of that kind would be considered by a delegate of the Minister in the context of an application for a protection visa, which the applicant was able to make. The application for judicial review centres on the Minister’s conclusion in this regard.

The application for judicial review

17    By an amended originating application the applicant alleges five overlapping grounds.

Ground 3

18    It is convenient to start with Ground 3 of the application, which states:

The Minister failed to act upon correct principle, correctly applied.

Particulars

The Minister assumed that if the applicant made an application for a protection visa, whether the applicant is owed “non-refoulement obligations” would be considered in that context. That is wrong because the scope of Australia’ non-refoulement obligations – as understood in Australian law (being as explained by the High Court and not as the Executive government or as Parliament might understand those obligations) – is not consonant with the “criteria” in s 36(2) of the Act.

19    Under this ground the applicant contends that the Minister made a jurisdictional error analogous to the error found by the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (Ibrahim) (at [87]-[119]) (White, Perry and Charlesworth JJ). In Ibrahim the Assistant Minister for Home Affairs decided to cancel Mr Ibrahim’s visa under s 501BA(2) of the Act and provided written reasons which said the following in relation to non-refoulement obligations:

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

[98]    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under 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 of the application for consideration under s501. I am therefore confident that Mr IBRAHIM would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

(See Ibrahim at [67].)

20    Mr Ibrahim appealed to the Full Court from the primary judge’s dismissal of his application for judicial review of the visa cancellation decision. He raised various grounds, one of which was that the Assistant Minister, when reasoning that Australia’s non-refoulement obligations in respect of him would be addressed in the context of an application for a protection visa, had not understood that the content of Australia’s non-refoulement obligations differ in material respects from the criteria contained in s 36 of the Act, and that it was only the criteria in the Act which would be considered on any application for a protection visa: see Ibrahim at [88].

21    The Full Court noted Mr Ibrahim’s submissions as follows (at [89]-[92]):

[89]    Counsel’s submission proceeded as follows:

•    the appellant’s former solicitor had submitted, as the Assistant Minister had noted, that his case warranted an “International Treaties Obligations Assessment” (ITOA), at [95];

•    an ITOA is the form of an assessment, not provided for in the Act, by which the Department assesses whether Australia owes non-refoulement obligations to an individual under, amongst other things, the Convention Relating to the Status of Refugees (1951) as Amended by the Protocol Relating to the Status of Refugees (1967) (the Refugees Convention): Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [9];

•    the Assistant Minister said in [97] of his reasons that it was not necessary for him to consider whether non-refoulement obligations were owed to the appellant, because the existence or otherwise of such obligations would be considered in the course of processing an application for a Protection visa which it was open to the appellant to make;

•    the “non-refoulement obligations” which the Assistant Minister said that he need not consider should be understood as a reference to the obligations of Australia under international law;

•    in reasoning that the existence or otherwise of those “non-refoulement obligations” would be considered in the context of an application for a Protection visa, the Assistant Minister had assumed that the criteria which attract the international obligations are the same, or substantially the same, as those under s 36(2) of the Act; and

•    the Assistant Minister’s assumption was wrong.

[90]    Counsel noted that, before the amendments to s 36 of the Act effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment) which came into operation on 18 April 2015, the criterion in s 36(2)(a) of the Act had largely “picked up” the definition of “refugee” in Art 1 A(2) of the Refugees Convention, namely:

… [O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

[91]    In their form before the 2014 Amendment, ss 36(2)(a) and (2)(aa) had provided:

(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 under the Refugees Convention as amended by the Refugees Protocol; 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

(Emphasis added.)

[92]    Since the 2014 Amendment, ss 36(2)(a) has provided as follows:

(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

(Emphasis added.)

22    As the Full Court noted (at [93]-[94]), before the 2014 Amendment the protection obligations to which s 36(2)(a) referred were those arising under the Refugees Convention. The 2014 Amendment removed the reference to the Refugees Convention and substituted the words “because the person is a refugee”. The terms “refugee” and “well-founded fear of persecution” which it incorporates are defined in the act in ss 5H and 5J respectively.

23    The Full Court noted (at [95]) that the Minister did not dispute that the criteria under ss 5H and 5J are narrower than those under the Refugees Convention, including in relation to the “internal relocation principle”. Under this principle persons may be found to be refugees within the meaning of the Refugees Convention if they have a well-founded fear of persecution in one part of their home country and it would not be reasonable to expect them to relocate to another part: SZATV v Minister for Immigration and Citizenship [2007] HCA 40, (2007) 233 CLR 18 at [19]-[22]. Following the 2014 Amendment, s 5J(1)(c) effectively removed the internal relocation principle from consideration in an application for protection under s 36(2)(a): BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 at [46].

24    The Full Court said (at [100]-[103]):

[100]    The term “non-refoulement obligations” derives from Art 33 of the Refugees Convention. That Article provides (relevantly):

Article 33

PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

1.    No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

...

[101]    The scope of the obligation imposed by Art 33 has been discussed by the High Court in several decisions including NAGV and NAGW of 2002 and Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) [2011] HCA 32; (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ said of the non-refoulement obligation imposed by Art 33(1):

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

(Citation omitted.)

[102]    The term “non-refoulement obligations” appears only twice in the Act: in s 197C(1) and (2). It is defined for that purpose in s 5(1). Both s 197C and the definition were inserted into the Act by the 2014 Amendment. The s 5 definition is as follows:

non-refoulement obligations includes, but is not limited to:

(a)    non-refoulement obligations that may arise because Australia is a party to:

(i)    the Refugees Convention; or

(ii     the Covenant; or

(iii)    the Convention Against Torture; and

(b)    any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

[103]    The definition confirms that the term “non-refoulement obligations” encompasses obligations undertaken by Australia pursuant to certain international treaties (and not just the Refugees Convention). It is not confined to the protection obligations to which s 36(2) refers.

25    The Full Court concluded (at [106]-[111]) that on a fair reading of the Assistant Minister’s reasons he conflated Australia’s non-refoulement obligations under the Refugees Convention with the protection obligations to which the Act refers and which are considered on an application for a protection visa. Their Honours based that conclusion on the fact that the Assistant Minister:

(a)    used the term “non-refoulement obligations” which derives from the Refugees Convention and not the term “protection obligations” which is the language of s 36(2)(a) of the Act (at [106]);

(b)    gave as the reason for holding that it was unnecessary to consider whether non-refoulement obligations were owed, that Mr Ibrahim was able to apply for a protection visa. That strongly suggested that the Assistant Minister believed that non-refoulement obligations under the Refugees Convention are the same as protection obligations under the Act (at [107]);

(c)    said that Mr Ibrahim would have the opportunity to have his protection claims fully assessed in the course of an application for a protection visa, which confirmed that the Assistant Minister conflated the two obligations (at [108]);

(d)    referred to consideration of Mr Ibrahim’s position “outside of the concept of non-refoulement and the international obligations framework” which indicated that the Assistant Minister believed that he had addressed the issues of non-refoulement and the international obligations framework (at [109]); and

(e)    did not refer to the differences between non-refoulement obligations under the Refugees Convention on the one hand and protection obligations under s 36(2)(a) on the other (at [110]).

26    The Full Court concluded (at [112]-[114]) that the Assistant Minister proceeded on a misapprehension that both any non-refoulement obligations under the Refugees Convention as well as any protection obligations under s 36(2)(a) would necessarily be considered if Mr Ibrahim applied for a protection visa. The Court held that in deciding whether to cancel Mr Ibrahim’s visa it was necessary for the Assistant Minister to act under a correct understanding of the Act. Their Honours said at [115] that the Assistant Minister’s error was material given the potential for the internal relocation principle to be applicable in circumstances where Mr Ibrahim claimed to have a well-founded fear of persecution in the north of Nigeria. The error was accordingly jurisdictional.

27    Mr Kio submits that the Minister's reasons in the present case reveal a similar error to that in Ibrahim, and that for similar reasons the Minister fell into jurisdictional error in the present case. He contends that because he has been assessed by an ITOA, which decided that Australia owed non-refoulement obligations in respect of him under the CAT and the ICCPR, the Minister’s error was material because the internal relocation principle might apply in his circumstances. He also argues that the criteria for a protection visa under s 36(2) of the Act includes a requirement of intentionality by the definitions set out in s 5(1), which require that “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” be intentionally inflicted, whereas the corresponding definitions under the relevant international treaties do not impose intentionality as a necessary feature of the treatment: see SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [1]-[5] (Kiefel CJ, Nettle and Gordon JJ). He submits that the requirement for intentionality might apply in his circumstances and therefore there is a realistic possibility that the Minister would have reached a different conclusion had the Minister understood that Australia’s international non-refoulement obligations differ from the protection obligations under the Act.

28    The Minister accepts that Ground 3 of the application is substantially the same as the relevant ground in Ibrahim, but submits that the outcome in Ibrahim reflected the particular and different circumstances of that case, and it is not on all fours with the present case. The Minister argues that he expressly recognised that an ITOA had been made which found that Australia owed non-refoulement obligations in respect of Mr Kio at the time of that assessment. On the Minister’s submissions, that recognition amounted to an adoption of the various findings in the ITOA which, in conjunction with the statement in the reasons that the Minister “had considered Mr Kio’s claims of harm upon return to Myanmar outside of the concept of non-refoulement and international obligations framework”, demonstrated that he had a correct understanding of the difference between Australia’s international non-refoulement obligations and any protection obligations under s 36(2) of the Act.

29    The Minister submits in the alternative that if the Court finds that the Minister conflated Australia’s non-refoulement obligations under the relevant international treaties with the protection obligations under s 36(2) of the Act, there was no material consequence. He contends that neither the relocation principle nor the requirement of intentionality are clearly engaged by the facts of Mr Kio’s case.

Consideration

30    I do not accept the Minister’s submissions. As the Full Court held in Ibrahim (at [100]-[104]) the concept of non-refoulement obligations imported by the relevant international treaties is broader than the protection obligations to which s 36(2)(a) of the Act refers, and the same is true in relation to s 36(2)(aa). On a fair reading of the Minister’s reasons he conflated Australia’s non-refoulement obligations under the relevant international treaties with the protection obligations to which the Act refers and which would be applied if Mr Kio made an application for a protection visa.

31    This can be seen in the following parts of the Minister’s reasons, which are relevantly similar to the Assistant Minister’s reasons in Ibrahim:

(a)    first, the Minister’s reasons used the expression “non-refoulement obligations” which derives from the Refugees Convention and not the term “protection obligations” appearing in s 36(2)(a) of the Act;

(b)    second, the Minister’s reasons oscillate between referring to Australia’s non-refoulement obligations assessed by reference to international treaties and referring to those obligations required to be considered under the Act, without distinguishing between them;

(c)    third, and most importantly, the Minister’s reasons state (at [87]) that it was unnecessary to determine whether non-refoulement obligations are owed in respect of Mr Kio, because non-refoulement obligations would be considered (I infer fully) in the course of deciding any application Mr Kio made for a protection visa. That strongly suggests that the Minister believed that the protection obligations under the Act are the same as Australia’s non-refoulement obligations under the relevant international treaties;

(d)    fourth, the Minister’s reasons state (at [88]) that if the Minister personally considered Mr Kio’s protection visa application the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of Mr Kio. This tends to confirm that the Minister believed that a determination of the protection obligations under the Act would be the same as a determination of Australia’s non-refoulement obligations under the relevant international treaties;

(e)    fifth, the Minister’s reasons refer (at [89]) to consideration of Mr Kio’s position “outside of the concept of non-refoulement and the international obligations framework” which indicates that the Minister believed that he had fully addressed the issues relating to non-refoulement within the framework of the relevant international treaties.

32    I am also satisfied that the Minister’s error in this regard is material in the sense described in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [25]-[31] and Minister for Immigration and Border Protection v SZMTA and Another [2019] HCA 3; (2019) 363 ALR 599 at [45]. In my view there is a realistic possibility that the outcome of the visa cancellation decision would have been different had the Minister not predicated his decision on an incorrect understanding of Australia’s non-refoulement obligations.

33    Both the internal relocation principle and the requirement of intentionality are potentially applicable in the circumstances of Mr Kio’s case:

(a)    in relation to the internal relocation principle – Mr Kio’s claim to fear harm if returned to Myanmar is connected to a particular part of that country, being Chin State, and the activities of the CNA. Mr Kio may thus be able to establish that he has a well-founded fear of persecution even if that fear does not extend to his living in another part of the country. If non-refoulement obligations are assessed by reference to s 36(2)(a) or (aa) of the Act, he is required to show that he has a well-founded fear of persecution in the entire country, whereas if the assessment is by reference to the relevant international treaties, the application of the internal relocation principle would mean that he may be able to make out his claim for protection by showing that he has a well-founded fear in Chin State alone; and

(b)    in relation to the requirement of intentionality – the ITOA found that Australia had non- refoulement obligations in respect of Mr Kio because of the prison conditions he would face if returned to Myanmar. If Australia’s non-refoulement obligations in respect of Mr Kio are determined by reference to the CAT and the ICCPR he does not need to establish that the Myanmar officials responsible for his imprisonment harbour an intention to inflict the requisite degree of pain, suffering or humiliation on him, whereas he must be able to establish such intent to succeed in application for protection under s 36(2)(aa) of the Act: SZTAL at [1]-[5] and [26]-[29]; SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [109]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 158 ALD 198 at [42](c).

34    The ITOA determined, by reference to the CAT and ICCPR, that Mr Kio has “a real chance of being subject to significant harm should he be returned to Myanmar” and that Australia owed non-refoulement obligations in respect of him. Had the Minister understood that the protection obligations considered in a protection visa application under the Act are narrower than the non-refoulement obligations which exist under the relevant international treaties there is a realistic possibility that, in considering whether to cancel Mr Kio’s visa, the Minister would have taken Australia’s international non-refoulement obligations into account and reached a different decision.

35    Ground 3 of the application is made out.

Grounds 1, 2 and 4

36    Grounds 1, 2 and 4 of the application are as follows:

(a)    Ground 1 alleges that the Minister did not think necessary to determine whether non-refoulement obligations were owed by the Commonwealth and thus fell into a similar kind of jurisdictional error as BCR16;

(b)    Ground 2 alleges that the Minister failed to appreciate the different quality of consideration of non-refoulement required as between the cancellation power of s 501(3) and in an application for a protection visa under s 65 of the Act; and

(c)    Ground 4 alleges that the Minister erred because there was no direct evidence to indicate that Mr Kio would make an application for a protection visa, and thus erred in finding that a later consideration of Australia’s non-refoulement obligations would necessarily occur.

37    Each of these grounds arise from the same paragraphs of the Minister’s reasons dealt with under Ground 3, and they overlap to some degree. In circumstances where Ground 3 is made out it is unnecessary, and in my view undesirable, to decide these grounds. Mr Kio did not withdraw the grounds but the parties were content for the application to be dealt with by reference only to Grounds 3 and 5.

Ground 5

38    Ground 5 of the application states:

The Minister failed to consider lawfully the argument that the applicant might be executed upon return to Burma, independently of whether that engaged any non-refoulement obligations.

39    The Minister’s reasons (at [89]) state as follows:

… I accept that regardless of whether Mr KIO’s claims are such as to engage non-refoulement obligations, Mr KIO would face hardship as Mr KIO has previously faced persecution and torture by the Burmese military and he would face hardship arising from his fear that he would be executed if he was forced to return to Myanmar.

(Emphasis added.)

40    Mr Kio argues that this passage showed that the Minister only considered the hardship he might face arising from fear of execution, which was different to his claim that he would in fact be executed if returned to Myanmar. He relies on Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Ezegbe) in which Perram J held that the Minister’s decision was directed to Mr Ezegbe’s fear of harm, rather than the potential or risk of harm itself. His Honour said (at [34]):

… the Minister did not consider Mr Ezegbe’s case based on harm outside the protection visa context. By dealing with the matter through the false lens of Mr Ezegbe’s fears, the Minister has avoided any actual consideration of the issues he was bound to consider which were about harm not fear. There was simply no active intellectual process brought to bear on the question: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [77]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at 364 [46].

41    In response, the Minister argues that his reasons reflect the ITOA’s findings that Mr Kio’s claim to apprehend harm, including execution by reason of his imputed political opinion, were fabricated and not credible. Given the findings of the ITOA, the Minister submits that fear is the appropriate lens through which to consider the potential hardship arising should Mr Kio be forced to return to Myanmar because the veracity of Mr Kio’s claims were rejected. The Minister also seeks to distinguish Ezegbe on the basis that it was uniquely concerned with the review of a decision made pursuant to s 501CA(4) of the Act, which the Minister argues involved a qualitatively different exercise of power to that reposed in the Minister under s 501(3) of the Act.

Consideration

42    There are differences in the power exercised under ss 501CA(4) and 501(3) but I do not accept the Minister’s contention that they are relevantly qualitatively different. The analysis in Ezegbe is directed to the requirement for decision-makers to engage in an active intellectual process when exercising a statutory discretion, which applies to both provisions. At [34] Perram J cites Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 for the proposition, which itself is a case about a cancellation decision under s 501(3).

43    Mr Kio claims that he will face execution by the Myanmar military if he is returned to that country, and it is that claim rather than a fear of execution that the Minister was required to consider. However, I am not persuaded that the Minister’s reasons provide a sufficient basis for an inference that he failed to give active intellectual consideration to Mr Kio’s claims. In my view Mr Kio tries to read too much into the relevant passage.

44    The Minister’s reasons refer with apparent approval to the ITOA, which found that Mr Kio’s claims that he will be killed or executed by death penalty if returned to Myanmar are not credible. It appears that, in the Minister’s view, Mr Kio will not face execution if returned to that country. That provides a basis for the Minister’s reasons referring to the hardship to Mr Kio arising from fear of execution, rather than to his claim that he will face execution.

45    I note also that the fear of execution to which the Minister's reasons refer (at [89]) relates to harm outside of the concept of non-refoulement, as the Minister earlier accepted that Mr Kio was a person in respect of whom Australia had non-refoulement obligations under the CAT and ICCPR, at least as at October 2016.

46    This ground fails.

Costs

47    I have made orders to quash the Minister’s decision made 19 June 2018 and it is appropriate to order the Minister to pay Mr Kio’s costs.

Associate:

Dated:    20 August 2019