FEDERAL COURT OF AUSTRALIA

AXT19 v Minister for Home Affairs [2019] FCA 1423

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted the requisite extension of time for the filing of the originating application.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs, of and incidental to the application, including the application for extension of time, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

LOGAN J:

1    The applicant is a citizen of Myanmar, once known as Burma. He came to Australia in December 2011 lawfully, pursuant to a Refugee Subclass 200 visa granted to him pursuant to the Migration Act 1958 (Cth) (Act). In April 2015 the applicant was convicted in South Australia of an offence of indecent assault committed against a 14 year old girl. For that offence he was sentenced to four months’ imprisonment wholly suspended upon his entering into a bond in the sum of $200 to be of good behaviour for a period of 18 months.

2    That is by no means the only offence of which the applicant has been convicted since his entry into Australia, as the subsequent reasons of the Administrative Appeals Tribunal reveal. However, this offence is a particularly material offence in the sense that, under s 501(6)(e)(i) of the Act, a person does not pass the “character test” if an Australian court has “convicted the person of one or more sexually based offences involving a child.”

3    Against the background of the commission of and conviction for that offence and that statutory provision, a delegate of the respondent Minister for Home Affairs decided in October 2018 not to revoke the cancellation of the applicant’s visa which had occurred pursuant to s 501(3A) of the Act. The applicant sought review of the Minister’s delegate’s decision by the Tribunal.

4    On 14 January 2019, for reasons given in writing that day, the Tribunal (Senior Member Tavoularis) decided to affirm the Minister’s delegate’s decision. As the Tribunal correctly identified, the subject of revocation of what was, in the circumstances, a mandatory cancellation of the applicant’s visa, is governed by s 501CA(4) of the Act, which provides:

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    It fell to the Tribunal, setting in place of the Minister, to determine whether or not to exercise the revocation discretion for which s 501CA(4) provides.

6    The applicant has sought the judicial review of the decision adverse to him by the Tribunal. Strictly, as the applicant recognised, an extension of time was necessary for such a judicial review application. However, the reasons for the delay in the filing of the judicial review application are persuasively explained in an affidavit made by the applicant. Further, those reasons are to be read in conjunction with whether or not there is an arguable case. For reasons which follow, I was persuaded that at least an arguable case was present. It is not necessary further to delve into the reasons for the delay because, quite properly, the Minister, in the circumstances, did not actively oppose the granting of an extension, preferring instead to meet the case on its substantive merits. I therefore granted an extension of time to the applicant.

7    It now becomes necessary to consider the substantive merits of the application. Though put in various ways, the essence of the jurisdictional error alleged was that the Tribunal had not considered, as it was submitted it was required so to do, the representations made by the applicant in response to the invitation extended to him. In particular, it was submitted that the representations made by the applicant were such that it was necessary for the Tribunal to consider, reach conclusions upon and then determine the weight of the existence or otherwise of a non-refoulement obligation in respect of the applicant.

8    For reasons which I shall detail later, it is at least arguable, having regard to Mortimer J’s judgment in Omar v Minister for Home Affairs [2019] FCA 279, that such an obligation existed. It is further at least arguable that, if such an obligation did exist, it was not discharged by the Tribunal. Those points were developed with considerable care and commendable succinctness by Mr Clift of counsel who appeared on behalf of the applicant.

9    The nature of the submission made, and the response also persuasively made by Ms Wheatley of counsel for the Minister, will emerge from the following.

10    With respect to the representation made by the applicant requesting revocation of the cancellation of his visa, the Tribunal offered at [105] of its reasons a succinct summary of particular points raised in the representation by the applicant:

•    Yes. I left my country to save my life because the authority of Burma searching me to arrest;

•    I must be charged with illegal crossing the border and becoming as a refugee;

•    I must be putting to jail for long time by the authority with my case the reason why I left my country;

•    My life is still danger in my country because the conflict between Burmese Army and ethnic arms group are still happening in the country. Mostly, the ethnic people (minorities) are living with fear every day due to the Burmese army attacked can never stop in the area. Many villagers were arrested and tortured brutally until now. There is no human rights, no freedom and no peace in the country because the country are still under the military controlled. Democratic leader Aung San Su Kyi and her parliament members can do nothing over the military.

[sic]

11    The Tribunal further recognised, at [106] – [107], that aspects of the original claim made in respect of persecution had been adverted to in the courts of South Australia in the course of sentencing the applicant in respect of various offences, including that which gave rise to mandatory cancellation.

12    The Tribunal then observed surely, with respect, aptly, at [108]:

The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case.

13    Having so done, the Tribunal adverted, as it was required so to do, to particular passages in Direction 65, paragraph 14.1:

1.    A non-refoulement obligation is an obligation not to forcibly return, depart or expel a person to a place where they will be at risk of a specific type of harm …

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 the 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 WK) visa …

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 offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its intentional 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.

14    What followed this reference to paragraph 14.1 of Direction 65 in the Tribunal’s reasons was a rehearsal, as the Tribunal understood it, of the course of practice and related judicial authority concerning the requirement, if any, to consider non-refoulement obligations. This culminated in an understanding voiced by the Tribunal as to the present state of the law, having regard to Ali v Minister for Immigration and Border Protection [2018] FCA 650. For that purpose, the Tribunal adopted a passage in my reasons for judgment in Greene v Assistant Minister for Home Affairs [2018] FCA 919 at [19] in which, in expressing agreement with Ali, I stated:

The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.

15    The Tribunal found that, because the Class XB Subclass 200 refugee visa is a visa distinct from Protection visas, it was not a visa the holding of which would preclude the applicant from applying for a Protection visa. The correctness of that conclusion is not gainsaid by either party to the present application. In light of that conclusion, the Tribunal found, at [113], that the applicant could still apply for a Protection visa. The Tribunal further found at [113] that, in determining whether or not to grant a Protection visa, the decision-maker “would be bound by Direction 75 and so would have to make an assessment of the applicant’s refugee and complementary protection claims before processing any character or suitability concerns that may exist”.

16    The Tribunal then stated:

114.    As the Applicant is already on a Refugee visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that assessment was made before the Applicant came to Australia in December 2011. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:

The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).

115.    As things stand, the Applicant has given evidence that both of his parents and his sister continue to reside in Myanmar, but that he was fearful of what the Burmese army would do to him. While the Respondent’s representative sought to test the Applicant’s evidence about an apprehension of harm were he returned to Myanmar, it seems those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor on or prior to December 2011 that his claims for a refugee visa were genuine. In the hearing before me, the Applicant gave unconvincing evidence about his apparent fear of harm were he to be returned to Myanmar.

116.    In response to the specific question as to who exactly would harm him upon his return, he vaguely answered “The army”. He was asked about how that harm would occur and he responded by saying that he would be forced to join the army and consequently forced to commit violence against other people. He was asked whether the army or anyone else in Myanmar had ever harmed him, his parents or anyone else within his social or family circle. He responded in the negative. As I understood the Applicant’s evidence, his apprehension or fear of harm were he to be returned to Myanmar, crystallises in a possibility that he will be asked to join the army and possibly be ordered to do things he does not want to do. This, to my mind, is a separate and distinct thing from the army (or anyone else in Myanmar) directly inflicting harm on the Applicant.

117.    The Applicant also gave somewhat peculiar evidence to the effect that if returned to Myanmar, he would not be able to be identified or, put another way, he would not have any identity. I found this evidence very unconvincing because it was put to him that, surely, his parents and/or his sister would be able to recognise him and confirm his identity, to which he responded “Yes”.

118.    On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that his Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.

[Emphasis in original; footnote references omitted]

17    Paragraphs [115] – [117] contain a rehearsal of oral evidence given by the applicant and the expression of some views concerning the question of whether that evidence would or would not engage with criteria which would arise for consideration in relation to the grant of a Protection visa or complementary protection. Ultimately though, at [118], in my view, the Tribunal chose to do no more than acknowledge that the “effect of Direction No 75 and subsequent Federal Court decisions is such that the applicant will have further avenues through which he can pursue his refugee status in Australia”.

18    In other words, the Tribunal, though it recognised the existence in the representation made by the applicant of a basis for considering the subject of non-refoulement, also recognised that the this was a subject which, if the applicant chose, as he was entitled, to apply for a Protection visa, would have to be considered first in the context of any such protection visa application. So the ultimate approach by the Tribunal was, in my view, in conformity with the Court’s judgment in what one might term the root authority, namely, Ali. This, though, was submitted nonetheless not to amount to a consideration of the representation as required by statute, having regard to Omar.

19    In that case, at [44] and [45], Mortimer J stated:

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

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

20    If these views are correct, the Tribunal, by failing to reach conclusions as to the existence or otherwise of a refoulement obligation, would indeed have failed to discharge its statutory function. Of course, it is the case that the representations as a whole must be considered, but the whole is the sum of the parts, and this was undoubtedly an important part of the representations which the applicant made in response to the invitation extended to him.

21    To give context to the observations made in Omar, it is necessary to go back in time and to recall the course of prior authority in relation to whether and when non-refoulement obligations must be considered under the Act. In DOB18 v Minister for Home Affairs [2019] FCAFC 63, I observed at [55] that the course of that prior authority “has its Hegelian qualities.”. I then offered at [55] –[59], the following summary of the course of prior authority:

55.    …It was once thought at intermediate appellate level in this Court that “… by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act”, such that it was not, “open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Refugee Convention”: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at [71]-[72]. That view did not find later favour with the High Court, as Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61/2010E) and Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Plaintiff M70/2011) attest. In Plaintiff M70/2011, Gummow, Hayne, Crennan and Bell JJ, referring to a passage in Plaintiff M61/2010E at [27] and emphasising in so doing, “by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason”, stated, at [94]:

… 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 Refugee Convention.

56.    Parliament’s response to Plaintiff M61/2010E and Plaintiff M70/2011 was the insertion into the Act by an amendment made by Act No 135 of 2014, of, materially, the present s 197C.

57.    The importance of a non-refoulement obligation, as part of the taking up in the Act of Australia’s subscription to the Refugee Convention, as well as the particular focus of s 197C on the removal obligation found in s 198 of the Act, persuaded me, in the exercise of original jurisdiction in Le v Minister for Immigration and Border Protection (2015) 237 FCR 516, that consideration of refoulement must be relevant in the context of an anterior decision by the Minister under s 501(2) of the Act to cancel the visa of a person who had been accepted here as a refugee. Not so said the Full Court on appeal – Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (Le) – it is possible (s 501E) to lodge a later application for a protection visa and the question of whether a protection obligation is owed to the person and thus whether a non-refoulement obligation exists can be considered then.

58.    Then came BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16). In that case, an Assistant Minister, evidently relying upon the Full Court’s judgment in Le, characterised the claim of the appellant in that case to fear harm as possibly giving rise to international non-refoulement obligations but said it was unnecessary to determine whether such obligations were owed because the appellant could apply separately for a protection visa. The Assistant Minister did not acknowledge that any protection visa application made by the appellant could be refused on character grounds before non-refoulement claims were considered. That point had not arisen for consideration in Le. The absence of that acknowledgement was regarded by the Full Court as a distinguishing feature and one productive of jurisdictional error by the Assistant Minister. This same error was identified in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 but it is unnecessary further to refer to that case.

59.    The riposte by the Minister to BCR16 was to issue, pursuant to s 499 of the Act, Direction 75 which, as he stated in his reasons in the present case, required 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 s 501”. That riposte was held sufficient by Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali). In turn, in Greene v Assistant Minister for Home Affairs [2018] FCA 919 I and, in Turay v Assistant Minister for Home Affairs [2018] FCA 1487, Farrell J considered that Ali had been correctly decided. In the present case, the learned primary judge regarded this trilogy of cases as applicable by analogy to a decision under s 501BA of the Act and applied them to hold that the Minister declining to consider refoulement was not, for the reasons given by the Minister, productive of jurisdictional error.

22    Neither party to the present application gainsaid the correctness of that summary. It was against the background of the cases referred to in that summary that Mortimer J made the observations quoted in Omar. Omar was decided prior to the Full Court’s judgment in DOB18, exemplifying nicely thereby the dynamic present in this branch of the law occasioned by the sheer volume of cases which are falling presently for determination both at original jurisdiction and intermediate appellate level, to say nothing of subsequent cases at ultimate appellate level.

23    Omar was the subject of supplementary submissions in DOB18, but it was not necessary in that case for the Full Court to confront whether or not Omar was correctly decided. In DOB18 at [193], in a passage with which I agreed in my separate judgment in that case, Robertson J stated:

193.    While I accept the appellant’s submission that the role that non-refoulement obligations might play in a protection visa application, it is very different to the role they might play in a s 501BA determination, I do not accept a premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minster accepted that the appellant would face hardship if returned to Bangladesh –the factual basis said to engage non-refoulement obligations – and took that hardship into account.

[Emphasis added]

24    It is, with respect, difficult to reconcile, as the Minister submitted, the emphasised sentence in DOB18 with the observation quoted from Omar, but there is another reason why I am unable to accept the correctness of that observation. Her Honour’s judgment in Omar contains, with respect, an erudite discussion of the importance of the non-refoulement obligation in refugee law. Having regard to my judgment in Le v Minister for Immigration and Border Protection (2015) 237 FCR 516, I could hardly, with respect, gainsay that importance. But as the Full Court on subsequent appeal in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 stated, there is a statutory scheme to be found in the Act, and it is against that background that one must decide whether and when non-refoulement falls for consideration. In particular, the Full Court stated at [41]:

41.    For the following reasons, we respectfully consider that the primary judge erred in holding that the issue of Australia’s obligation not to refoule Ms Le was a mandatory consideration in the particular circumstances of Ms Le’s case when the Minister was considering whether or not to exercise his discretion to cancel her 1994 visa under s 501(2) of the Migration Act. In our view, this was not a mandatory relevant consideration under s 501(2) in circumstances where it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia’s non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister. It is critical to this analysis that, as the Minister acknowledged in both paragraph 48 of his statement of reasons and in his submissions to the Court, there is no legal impediment to Ms Le applying in Australia for a protection visa.

25    In another appeal decided after Omar by a Full Court, Sowa v Minister for Home Affairs [2019] FCAFC 111 at [49], the Full Court stated:

49.    The same conclusion must apply to the second ground of alleged error by the primary judge. It might or might not be the case that a protection visa application by Mr Sowa in the future would be refused on character grounds, but that does not mean the application would be invalid. Nor does it mean that the complementary protection provisions would not be considered. The Assistant Minister’s assessment that it was highly likely that a delegate would consider any such application so that Direction 75 would apply, thereby requiring consideration of the refugee and complementary protection criteria before any ineligibility criteria, was rational and intelligible given the available material. Further, insofar as the present decision-making process under s 501CA(4) is concerned, the reasoning in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [61(e)] would apply. The Full Court said:

in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused

26    In light of Sowa, there is no basis for distinguishing Le because the present case concerns the exercise of a discretion under s 501CA(4), whereas Le arose in the context of a discretion to cancel under s501(2) of the Act.

27    It is not possible, in my respectful view, to reconcile the observations quoted from Omar with the Full Court’s judgment in Le, quite apart from the passing observation made in DOB18 at [193]. The effect of Le, in my view, which does not appear to have been cited, much less pressed in argument, before her Honour in Omar, is that Omar is clearly wrong. That being so, the central plank of the applicant’s argument must fail.

28    This is just a case where the Tribunal has recognised that part of the representation made in response to the invitation does raise subjects which engage, at least potentially, with a non-refoulement obligation, further recognised that the applicant is not precluded from making a Protection visa application, and yet further recognised that having regard to Direction 75, it would necessarily be the case that if such a protection visa application were made, the question of non-refoulement would fall for consideration at that stage.

29    This apart, the present is one of those hard cases where the Tribunal has made a value judgment balancing particular aspects of the applicant’s criminal conduct with other factors which were raised in the representation, including factors which stood in favour of revoking the cancellation.

30    The Tribunal’s reasoning in that regard, premised particularly as it was on a well-evidenced history of offending perpetrated while the applicant was the subject of intoxication is hardly illogical. The possibility that the applicant’s intoxication may be symptomatic of the particular persecution which motivated the grant to the applicant of his Class 200 visa in the first place does not appear to have been raised either before the delegate or the Tribunal. Equally and perhaps explanatory of the raising of that possibility, here is no medical evidence one way or the other on that subject.

31    The result then is that the application must be dismissed.

Associate:

Dated:    30 August 2019