FEDERAL COURT OF AUSTRALIA

BDQ19 v Minister for Home Affairs [2019] FCA 1630

ORDERS

THE COURT ORDERS THAT:

1.    Grounds 2 and 3 of the Applicant’s application for judicial review be upheld, and Ground 1 and Ground 4 be dismissed.

2.    The decision of the Administrative Appeals Tribunal dated 13 February 2019 be quashed.

3.    The matter be remitted to the Administrative Appeals Tribunal for determination according to law by a tribunal differently constituted.

4.    The Minister pay the Applicant’s costs of the application.

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

REASONS FOR JUDGMENT

KERR J:

1    This is an application for judicial review of a decision of the Second Respondent (the Tribunal) affirming a decision of a delegate of the First Respondent (the Minister) not to revoke the mandatory cancellation of the Applicant’s Class CD Subclass 851 (Resolution of Status) visa under s 501CA of the Migration Act 1958 (Cth) (Migration Act).

2    The Applicant, BDQ19, was born in Urizgan Province Afghanistan. He fled that country after he and his family suffered persecution in the aftermath of the Taliban having assumed control of his home area. He arrived in Australia, unaccompanied, on 7 March 2001 when he was 20 years of age. BDQ19 initially held a number of Temporary Protection Visas, prior to his being granted a Permanent Resolution of Status Visa (Visa) on 4 December 2008.

3    Having arrived in Australia, notwithstanding a lack of formal education he found work in a number of industries involving labouring, construction and manufacturing.

4    In 2004 the Applicant commenced a long term relationship with an Australian citizen, Ms Y.S., and together they have had three children. He is also stepfather to that Australian citizen’s daughter from a former partner.

5    That no doubt is all to the good, but unfortunately BDQ19 also acquired a criminal record. He has many convictions dating from 2005 for minor offences, and some for offences of considerable seriousness.

6    By way of a letter dated 20 May 2015 from the Department of Immigration and Border Protection, the Applicant was advised that on 5 May 2015 his Visa had been cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act.

7    BDQ19 was advised that his Visa had been cancelled was because he had failed the character test due to having a substantial criminal record, as defined by s 501(6)(a) and s 501(7) of the Migration Act, and because he was serving a full-time sentence of imprisonment.

8    BDQ19 immediately sought review of the Minister’s delegate’s decision in the Administrative Appeals Tribunal (Tribunal).

9    Upon his release from prison on 14 May 2015 the Applicant was taken into immigration detention pending the completion of the Tribunal’s review.

10    The Tribunal made a decision to affirm the Minister’s delegate’s decision not to revoke the mandatory cancellation of BDQ19’s visa on 13 February 2019. It is that decision which is the subject of these proceedings.

11    There is one further background circumstance that it is necessary to identify before turning to the Applicant’s claims, the Tribunal’s decision and the grounds upon which judicial review has been sought. It is that on 6 October 2016 an International Treaties Obligations Assessment (ITOA) was completed. The assessor found that BDQ19 had a well-founded fear of being persecuted for a Refugee Convention reason and was at real risk of suffering significant harm were he to be returned to Afghanistan. The ITOA accordingly concluded that Australia has non-refoulement obligations to BDQ19. The assessor’s reasoning as submitted to be relevant to BDQ19’s application for judicial review will be returned to later in these reasons.

THE APPLICANT’S CLAIMS

12    The Applicant set out his claims in a document titled “Applicant’s Statement of Facts Issues and Contentions”. He provided this document to the Tribunal on 11 January 2019. Only three of those claims are directly relevant to these proceedings.

13    The first relevant claim relates to the best interests of the Applicant’s minor children in Australia. The Applicant claimed that during the “many remaining years of their childhood” it was in their best interests that he be permitted to remain here. He expressed concern that his absence had already affected them adversely. He also pointed to their desire for him to remain in Australia, expressed in letters already provided to the Department and a further “updated message of support” from his 14-year-old daughter Ms S. He then submitted that it was “highly unlikely” that he would be able to maintain a meaningful relationship with his children were he removed from Australia, given that the Australian Department of Foreign Affairs and Trade (DFAT) advises against travel to Afghanistan in light of the risk of kidnap and terrorist attacks.

14    The second relevant claim relates to Australia’s international non-refoulement obligations. In reliance on the ITOA, the Applicant claimed to be owed such obligations on the basis that should he be returned to Afghanistan he would “face a real chance of being abducted or killed by the Taliban or other Anti-Government Elements on account of his Hazara race, Shia religion, and imputed political opinion as a returnee from the West” creating a “real risk of persecution in all areas of Afghanistan”. He referred to further evidence to establish that the findings in the 2016 ITOA remained current.

15    The third relevant claim relates to the extent of the impediments that the Applicant would face if removed to Afghanistan. The Applicant claimed that he faced a “real risk of suffering significant harm including arbitrary deprivation of life”. One facet of this risk was the risk of persecution described above at [14], flowing from his race, religion and background. However, there was another facet to consider. The Applicant claimed that he would also suffer a real risk of significant harm simply by reason of residing as a civilian in Afghanistan, because:

… [C]ivilians continue to bear the brunt on the longstanding conflict in Afghanistan between Anti Government elements and the Afghan Government and international forces. Even if the Applicant escapes the real risk of targeted persecution, there is a strong chance he will be collaterally killed or injured by Anti Government Elements or Government or international forces, as a civilian.

16    The Applicant also pointed to an additional impediment that he would face if removed: namely a lack of family support and cultural barriers, which he described as follows:

The Applicant would also experience significant difficulty in establishing himself and maintaining his livelihood if he were returned to Afghanistan. He would not have the support of his family or community, as he has stated that they would not approve of his lack of religious observance and his relationship with a Christian woman. A number of family members, including his father, have died. He does not know the whereabouts of many others.

THE TRIBUNAL DECISION

17    The Tribunal found that the Applicant did not pass the character test, and further that it would not be appropriate to revoke the mandatory cancellation of the Applicant’s Visa. As noted above, the Tribunal therefore affirmed the Delegate’s decision.

18    It is convenient to extract in full certain aspects of the Tribunal’s decision that are directly relevant to the issues raised in these proceedings.

19    The Ministerial Direction titled Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 65) governed the Tribunal’s decision-making in this case. That Direction identifies the best interests of the Applicant’s minor children in Australia as one of the primary considerations in making the revocation decision, and provides further guidance as to how that consideration is to be addressed. In relation to this consideration the Tribunal found, relevantly:

77.     There is very limited information before the Tribunal regarding the Applicant’s biological children and stepchild, and so it is very difficult for the Tribunal to determine whether their interests differ and to deal with their interests individually. Consequently, the children will be discussed together (paragraph 13.2(3) of Direction no. 65).

78.     There is limited other evidence before the Tribunal as to the Applicant’s relationship with his children and step-child. With respect to the nature and duration of the Applicant’s relationship with these children (paragraph 13.2(4)(a) of Direction no. 65), the Applicant gave evidence at the Tribunal hearing that he had not seen his children in person for approximately three years due to his being in immigration detention, and his former partner having lost her licence so she had difficulty bringing the children to visit him (transcript, page 25). He gave evidence that, when he was in prison, he would see the children every week.

79.     The Applicant gave evidence that he currently speaks to the children on the telephone or via Facebook every two to three days (transcript, pages 24 - 25). Counsel for the Applicant submitted that the Applicant played an active parenting role and support of the children financially prior to his incarceration (Exhibit A1, paragraph [64]). In his evidence at the Tribunal hearing, the Applicant stated that prior to his incarceration he would undertake an activity with his children every weekend. His evidence was that the children are detrimentally affected by his absence because “now, they don’t listen, they talk differently, they don’t want to go to school, they miss school, they misbehave and mentally, they’re in a very bad state” (transcript, page 24).

80.     Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal is uncertain as to the parenting role that the Applicant will play in the future. As noted above, there is some doubt as to whether the Applicant is still in a relationship with his partner, who is the primary carer for the children, because he described not having spoken to her for approximately seven or eight months leading up to the Tribunal hearing. The children’s mother did not attend the Tribunal hearing to give evidence about the Applicant’s relationship with the children, nor about any domestic violence by the Applicant, and whether the children were present, which is relevant to whether he will be a positive role model in the future. However, given that the children are under the age of 18 years, it is likely that they would benefit from having their father and stepfather in their lives. This is particularly so for the younger children, aged five and 11 years because there are some years remaining until they attain the age of 18 years, including their formative teenage years.

81.     With respect to paragraph 13.2(4)(c) of Direction no. 65, there is no evidence before the Tribunal with respect to the impact of the Applicant’s prior conduct on the children. If he continues to offend, it may have a negative impact on the children.

82.     Applying paragraph 13.2(4)(d) of Direction no. 65, there is little current evidence before the Tribunal to inform an assessment of the impact of any separation on the children. However, in a hand written letter from the Applicant’s partner dated 8 June 2014 (G4, page 115) she describes the potential impact on the children if the Applicant was returned to Afghanistan:

We have 3 children together 2 girls and 1 boy thou (sic) it is not stated on our first childs (sic) Birth Certificate as he was not present.

I also have a daughter from a previous relationship which he has taken to as his own daughter and she looks to him as her father.

I am asking as a mother and a loving partner not to send [the Applicant] back to his country as myself and the children would suffer terribly from this as the situation has been hard enough on them already knowing that they may never have the chance to see him again as it is not safe would break all our hearts.

I understand he has done things he shouldn’t have but also know he shouldn’t be ripped from his family nor should our children from their father.

83.     If the Applicant is removed to Afghanistan, it may still be possible, albeit significantly more difficult, for the children to maintain contact with him by letter, telephone or other electronic means (paragraph 13.2(4)(d) of Direction no. 65). The Tribunal agrees with the submission from Counsel for the Applicant in Exhibit A1, paragraph [70] that it is highly unlikely that the Applicant’s children would be able to travel to Afghanistan to visit the Applicant if he were to return there. Counsel for the Applicant cited the official travel advice from the Australian Department of Foreign Affairs and Trade which is not to travel to Afghanistan “because of the extremely dangerous security situation and the very high threat of terrorist attack” (Exhibit A1, paragraph [70]). The Tribunal agrees that it would be very difficult for the Applicant to maintain a meaningful parental relationship with his children if he were returned to Afghanistan.

…

85.     Regarding the wishes of the Applicant’s children (paragraph 13.2(4)(f) of Direction no. 65), the Tribunal has letters from three of the children, written in approximately 2014. The letter from the Applicant’s step-daughter stating that she misses her father and wants him to come home (G4, page 116). A letter from the Applicant’s eldest biological daughter states that she needs her father to come home because it has been hard without him, she misses him and hopes he will come home every night. She also states that it has been hard on her mother to look after for children without him (G4, page 117). A letter from the Applicant’s son states that he needs his father to come home, that he is unhappy without him, and asks not to take his father away from him (G4, page 118).

…

88.     After applying the factors in paragraph 13.2(4) of Direction no. 65, the Tribunal finds that the best interests of the Applicant’s three biological children and step-child will be better served by revoking the decision to cancel the Applicant’s Visa.

20    Direction No 65 then identifies other considerations that must be taken into account where relevant. The Tribunal’s reasoning with respect to two of those other considerations is directly relevant to these proceedings. The first is Australia’s international non-refoulement obligations. The Tribunal addressed this issue as follows:

International non-refoulement obligations

100.     Direction no. 65 relevantly states, in paragraph 14.1:

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

(2)     The existence of a non-refoulement obligation does not preclude nonrevocation 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 nonrefoulement 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 nonrefoulement 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 that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

101.     Australia owes protection obligations to the Applicant. This has been conceded by the Respondent (Exhibit R3, paragraph [33]. An International Treaties Obligations Assessment dated 6 October 2016 found that Australia has non-refoulement obligations with respect to the Applicant on the basis of his Hazara race and Shia Muslim religion (G4, pages 189-190) and found that he has a real chance of being subject to significant harm should he be returned to Afghanistan (G4, page 205).

102.     As noted by the Respondent in Exhibit R3 (paragraph [34]), if the Tribunal were to affirm the Reviewable Decision, the Applicant would be liable to be removed from Australia due to the operation of s 198 of the Migration Act. Relevantly, s 197C(1) of the Migration Act provides that, “For the purposes of section 198, it is irrelevant whether Australia has nonrefoulement obligations in respect of an unlawful non-citizen.” Further, the Applicant would be liable to be held in immigration detention, pursuant to s 189 of the Migration Act, until he could be removed.

103.     With respect to the effect of s 197C of the Migration Act, the Tribunal notes the following passage from North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16) at [26]-[27]:

26.     The argument for the Minister only needs to be stated to expose its weakness. The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.

27.     That view of the Minister’s reasons is supported by the advice provided in the submission to the Minister at [73], which erroneously stated that s 197C does not abrogate, for the purposes of Australia’s domestic laws, Australia’s nonrefoulement obligations assumed under international law. That is an incorrect understanding of the operation of s 197C in conjunction with an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198.

104.     If the Tribunal were to affirm the Reviewable Decision, the consequences for the Applicant of these provisions of the Migration Act would be that the Applicant would be refouled, unless the Respondent decided to consider alternative management options, such as exercising the power under s 195A of the Act to grant the Applicant a visa. In the latter case the Applicant would be detained until the Minister considered whether or not to grant the Applicant a visa under s 195A. However, Exhibit R3, paragraph [37] states that the Minister is not presently considering the Applicant’s case for intervention under s 195A of the Migration Act.

105.     In light of the decision in DMH16, there is a clear contradiction between the operation of s 197C of the Migration Act and the wording of paragraphs 14.1(2) and 14.1(6). Paragraph 14.1(2) and 14.1(6) refer to the fact that Australia “will not remove” a non-citizen to a country in respect of which the non-refoulement obligation exists, and yet s 197C effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations.

106.     This was discussed by Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 (PRHR) at paragraphs [142]-[144] with respect to paragraphs 12.1(2) and 12.1(6) of Direction no. 65, which are the equivalent provisions to paragraphs 14.1(2) and 14.1(6). The difference between the paragraphs is that 12.1(2) and 12.1(6) (in Part B of Direction no. 65) are applicable to a non-citizen’s visa application, whereas paragraphs 14.1(2) and 14.1(6) (in Part C of Direction no. 65) are applicable to the cancellation of a visa. As the provisions are equivalent, the comments of Deputy President Forgie are equally applicable to paragraphs 12.1(2) and 12.1(6) of Direction no. 65.

107.     In PRHR at paragraphs [142]-[144], Deputy President Forgie analysed how Direction no. 65 should be read by the Tribunal so as to be consistent with s 197C of the Migration Act as follows:

142.     Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12.1(2) and (6) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that Australia “will not remove a noncitizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”, is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word “might” or “may” appeared rather than the word “will” would not plainly solve the inaccuracy of the sentence.

143.     To say that Australia “might not remove a non-citizen” in the circumstances described is, I suggest, capable of misleading the reader. The word “might” is the past tense of the word “may”. Whichever is chosen, both are capable of being understood in the sense of expressing permission. If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted – “may not” or “might not” – remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility, the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word “may” is to be understood. Therefore, I suggest that it should be omitted.

144.     The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement that “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations”. In view of s 197C, it is also incorrect to say that “... the operations of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.” Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.

(Footnotes omitted and emphasis added.)

108.     The Tribunal agrees with the opinion of Deputy President Forgie, with the effect that the final sentences of paragraphs 14.1(2) and 14.1(6) of Direction no. 65 should be omitted. This Tribunal also agrees with the following explanation given by Deputy President Forgie as to the legal basis for reading the Direction no. 65 in that way – that is, so that it does not exceed the statutory powers in the Migration Act (PRHR at paragraphs [153]-[155]):

153.     Section 499(2) provides that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with the Regulations. My finding that two passages are inconsistent does not render the whole of Direction No. 65 or even Part B of it null and void. As I have found that it is not a legislation instrument and as it cannot be characterised as rules of court, s 46(2) of the AI [Acts Interpretation] Act requires me to regard Direction No. 65 as if it were an Act of Parliament. Each of its provisions is to be regarded as a section of an Act and it is to be read and construed subject to, in this case, the Migration Act, and so as not to exceed the Minister’s power.

  154.     Section 46(2) of the AI Act provides:

“If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.”

155.     This is not a provision that authorises an instrument to be read as if it were rewritten with other words. It provides that, to the extent that it is not in excess of power, the instrument is to be taken as a valid instrument. This is consistent with the approach taken by the Full Court of the Federal Court in Tervonen. The two sentences can be excised from paragraph 12.1 of Direction No. 65 leaving statements that are within power.

(Footnotes omitted and emphasis added.)

109.     Counsel for the Applicant further submitted that the entire paragraph 14.1(2) of Direction no. 65 should be “disregarded entirely” and that “[with] the second sentence removed, the first sentence does not logically stand” (Exhibit A1, paragraph [97]). The Tribunal respectfully disagrees with this submission because the first sentence of 14.1(2) of Direction no. 65 which reads, “The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia” is a correct statement of the law and the Tribunal’s discretion under Direction no. 65, which does not exceed the statutory powers in the Migration Act.

110.     As explained by the Respondent in Exhibit R3 (see also paragraph 14.1(5) of Direction no.65) due to the operation of s 501E of the Migration Act, if the Applicant remained in Australia, he would not be permitted to make an application for another visa. As stated by s 501E(2)(a) of the Migration Act, he would not, however, be prohibited from making an application for a Protection Visa, but would only be able to do so if the Minister personally gave written notice under s 48B of the Migration Act to determine that s 48A, which provides that a non-citizen whose visa has been cancelled can only apply for particular visas, does not apply. The Respondent explained that the Applicant could only apply for a Bridging R (Class WR) visa after an invitation from the Minister (s 46(2) of the Migration Act and regulation 2.20A of the Regulations). Given that the Minister is not presently considering intervening under s 195A of the Migration Act, it appears unlikely that these other options, which require Ministerial intervention, will be available to the Applicant. Indeed, in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, Buchanan J explained, at paragraph [131], that it is not open to the Tribunal to speculate as to whether or not the Minister may intervene in such a manner in the future:

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

111.    In conclusion, the Tribunal finds that non-refoulement obligations are owed to the Applicant, and that a decision to affirm the Reviewable Decision would require him to be immediately removed to Afghanistan. Taking these factors into account, on balance, the Tribunal finds that this other consideration weighs strongly in favour of the revocation of the decision to cancel the Applicant’s Visa.

21    The second other consideration that is relevant to these proceedings is the extent of impediments that the Applicant would face if he were removed from Australia. In relation to this consideration, the Tribunal reasoned:

120.     Paragraph 14.5(1) of Direction no. 65 provides:

(1)     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.

121.     As noted in paragraph [101] above, the Applicant has a real chance of being subject to significant harm should he be returned to Afghanistan. This is a major impediment that the Applicant will face if returned.

…

123.     The Applicant is likely to experience cultural difficulties in readjusting to life in Afghanistan because he has resided in Australia for approximately 18 years. He is also a member of an ethnic minority (transcript, page 96). The Applicant does, however, speak Dari, Hazaraghi and English, so there would be no language barriers for him.

124.     The Applicant’s mother and two sisters live in Afghanistan (transcript, page 69). The Applicant stated at the Tribunal hearing that his mother is elderly, and his two sisters work for the government in Kabul and do not reside in the Applicant’s home province (transcript, page 69). It is unclear whether they may be able to offer him any support if he is returned. It was also submitted by Counsel for the Respondent that his family may disapprove of his westernisation (transcript, page 96), however there is no evidence before the Tribunal as to the views of the Applicant’s family. The Applicant also gave evidence that he has few ongoing ties in Afghanistan because many of his family members, including his father, have died in recent years (Exhibit A1, paragraph [30]).

…

126.     Overall, the hardship the Applicant would suffer if he were returned to Afghanistan, particularly with respect to the risk of harm if he is returned, the Applicant’s mental health, and the length of time he has resided in Australia weigh in favour of the revocation of the decision to cancel his Visa.

THE CURRENT PROCEEDINGS

22    The Applicant sought review of the Tribunal’s decision by way of an application under s 476A of the Migration Act 1958 (Cth) on 20 March 2019. The Applicant subsequently filed an amended application, which particularised the grounds of application, on 12 July 2019. That amended application identifies four grounds.

Ground 1

23    The first ground on which the Applicant seeks to rely is as follows:

The Tribunal fell into jurisdictional error by:

(a)     failing to comply with Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65);

(b)     alternatively, by failing to take into account relevant government policy.

PARTICULARS

(a)     In its decision record, the Tribunal determined that the final sentences of cl 14.1(2) and (6) of Direction 65 should be omitted (at [108]).

(b)     The Tribunal ought not to have determined that the final sentence of cl 14.1(2) of Direction 65 should be omitted.

(c)     Alternatively to paragraph (b) of these particulars, the Tribunal ought to have treated the final sentence of cl 14.1(2) of Direction 65 as an articulation of relevant government policy and taken that policy into account.

Applicant’s Submissions

24    It is convenient to reproduce in full the Applicant’s written submissions on this issue:

4.     The Tribunal, agreeing with the reasons of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782, reasoned (at [106]-[108]) that the final sentences of paras 14.1(2) and 14.1(6) of Direction 65 “should be omitted”.

5.     Paragraph 14.1(2) stated as follows:

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 county in respect of which the non-refoulement obligation exists.

6.     The Tribunal relevantly reasoned (at [105]) that, in light of this Court’s decision in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, there was a “clear contradiction” between the second sentence of para 14.1(2) and the operation of s 197C of the Migration Act, because that sentence refers to the fact that Australia “will not remove” a non-citizen to a country in respect of which a non-refoulement obligation exists, “and yet s 197C effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations”.

7.     That reasoning was erroneous. It takes, as its premise, the proposition that the second sentence of para 14.1(2) of Direction 65 is a statement of the law, which it is not. The second sentence of para 14.1(2) is a statement of government policy as to the manner in which the Migration Act will be administered. That articulation of policy was consistent with s 197C and, because it formed part of a written direction made under s 499(1), the Tribunal was obliged to take it into account. Its failure to do so was a jurisdictional error.

B. Government policy as to the administration of the Migration Act

8.     It is convenient first to consider s 197C of the Migration Act, read with ss 189(1) and 198.

9.     Section 189(1) of the Migration Act requires an officer of the Department to detain a person he or she reasonably suspects to be an unlawful non-citizen. Relevantly, s 198 is framed in mandatory terms, and states that an officer “must remove as soon as reasonably practicable” an unlawful non-citizen who falls within its terms. As a Full Court of this Court held in SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1 at [38]-[39], the effect of the High Court’s decision in Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319 is that the officer on whom s 198 imposes a duty is not obliged to remove the applicant if steps are being taken to ascertain whether the Minister’s powers in ss 48B, 195A or 417 of the Migration Act should be exercised. Each of those provisions confers a non-compellable discretionary power on the Minister. Respectively, those powers are to:

  (a)     lift the bar which s 48A imposes on certain categories of persons applying for a protection visa (s 48B);

   (b)     grant a visa to a person who is in detention under s 189 (s 195A); and

(c)     substitute, for a decision of the Tribunal under s 415, another decision that is more favourable to the applicant (s 417).

10.     Section 197C speaks directly to the issue of Australia’s non-refoulement obligations, and to their relevance to the duties imposed under s 198. In SZSSJ, the Full Court considered the operation of s 197C, and held (at [49]-[52]) that s 197C does not prevent the officer referred to in s 198 from taking into account the fact that the Minister is considering whether to exercise one of the personal non-compellable powers in ss 48B, 195A or 417, even if the subject matter of the Minister’s consideration is itself the issue of non-refoulement.2

11.     Accordingly, the officer on whom s 198 imposes a duty is not obliged to remove a non-citizen if steps are being taken to ascertain whether the Minister’s powers in ss 48B, 195A or 417 of the Migration Act should be exercised, even if the subject matter of the Minister’s consideration is itself the issue of non-refoulement. Sections 197C and 198 leave open, as a matter of law, the possibility that a non-citizen will not be removed, while the Minister decides to consider assessing whether to exercise one of the personal non-compellable powers.

12.     Therefore, the Tribunal was wrong to find that s 197C of the Migration Act “effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations” (emphasis added). Certainly, if the Minister decided in every case not to consider the exercise of one of the personal non-compellable powers, that would be the effect of ss 197C and 198. But it would be equally open to the Minister to decide that, in every case where s 198 imposes a duty on an officer to remove an unlawful non-citizen in respect of whom Australia has non-refoulement obligations, the Minister will give consideration to whether the powers in ss 48B, 195A or 417 of the Migration Act should be exercised.

13.     As was explained in para 14.1(1) of Direction 65, a non-refoulement obligation is an obligation under international law not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the Refugees Convention,3 the Convention Against Torture4 and the CCPR.5 Paragraph 14.1(1) went on to state that the Migration Act “reflects Australia’s interpretation of those obligations”.

14.     For the reasons discussed above, it would be consistent with the provisions of the Migration Act, and specifically ss 197C and 198, for the Government to adopt a policy that, notwithstanding those provisions, 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. Consistently with ss 197C and 198, the Government could give effect to that policy by recourse to the Minister’s personal non-compellable powers under the Migration Act.

15.     The applicant submits that, on its proper construction, the second sentence of para 14.1(2) of Direction 65 is an articulation of a policy of precisely that kind.

16.     First, if the second sentence of para 14.1(2) is construed as a statement of law, it would be inconsistent with ss 197C and 198, because those provisions contemplate that Australia may 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.

17.     However, s 499(2) provides that s 499(1), under which Direction 65 was made, does not empower the Minister to give directions that would be inconsistent with, relevantly, the Migration Act. And s 46(1)(c) of the Acts Interpretation Act 1901 (Cth) has the effect that Direction 65 is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the Minister.

18.     It follows that, if an alternative construction of the second sentence of para 14.1(2) of Direction 65 is available that is not inconsistent with ss 197C and 198, that construction should be preferred.

19.     Second, the applicant’s proposed construction of the second sentence of para 14.1(2) is supported by consideration of extrinsic material associated with the insertion of s 197C: Acts Interpretation Act 1901 (Cth), ss 15AB, 46(1).

20.     That provision was inserted together with various other amendments by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and came into force on 16 December 2014. Direction 65 was made six days later, on 22 December 2014.

21.     The Explanatory Memorandum for the Bill for the Amending Act relevantly stated:

1140.     The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances as set out in section 198 of the Migration Act.

1141.     This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.

1142.     Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

22.     Similarly, in the Statement of Compatibility with Human Rights, which was Attachment A to the Explanatory Memorandum, the following was stated (at 28):

Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from the duty established by the removal power.

23.     Third, it is also relevant to note that, in the Minister’s reasons for refusing to grant a protection visa to the applicant in DMH16, the Minister had stated “In making my decision I am aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding s 197C of the Act) …” (at [12]). In that case, the Minister submitted to this Court that that statement in his reasons “should be read as a statement of intent from a policy perspective, rather than a statement relating to legal power” (at [25]).

24.     For the preceding reasons, properly construed, the second sentence of para 14.1(2) is a statement of government policy as to the manner in which the Migration Act will be administered. That articulation of policy was consistent with ss 197C and 198. The Tribunal erred in “omitting” that sentence from Direction 65 and erred jurisdictionally by failing to comply with it, contrary to s 499(2A).

(Footnotes omitted).

25    In oral argument, counsel for the Applicant Mr Ciolek further submitted that:

[W]here the second sentence of paragraph 14.1(2) was a clear and unequivocal articulation of government policy it spoke to the weight that decision makers might put on international non-refoulement obligations … [a]nd the [weight] which the government placed on that consideration …

The direction states [that] decision makers must take into account the considerations in Part C in order to determine whether the mandatory cancellation of the non-citizen’s visa will be revoked. An[d] international non-refoulement [is] one of those considerations that the tribunal must take into account … [However, the Tribunal] constructively failed to comply with the direction by not taking into account that consideration in the manner in which the direction required it to do so.

26    As to materiality of the alleged error, the Applicant submits that:

26.     The Tribunal found (at [101]) that Australia owes protection obligations to the applicant. As correctly observed by the Tribunal (at [110]), by reason of s 501E of the Migration Act, if the applicant remained in Australia, he would not be permitted to make an application for another visa, other than a protection visa (s 501E(2)(a)). After the applicant was granted his Resolution of Status visa on 4 December 2008 (CB292), he was refused a protection visa, on 22 June 2009. Accordingly, the applicant is prevented by s 48A(1) of the Migration Act from making any further application for a protection visa while in the migration zone.

27.     The Tribunal found further (at [104]) that, if it were to affirm the decision under review, the consequences for the applicant would be that he would be refouled, unless the Minister decided to consider alternative management options, such as exercising the power under s 195A of the Migration Act to grant the applicant a visa.

28.     However, the Minister had submitted to the Tribunal (at [104]) that he was not presently considering the applicant’s case for intervention under s 195A of the Migration Act. No other evidence was adduced as to whether the exercise of a different personal non-compellable power was under consideration by the Minister.

29.     Accordingly, the Tribunal concluded (at [110]-[111]) that, given the Minister’s position as to the exercise of power under s 195A, and given that the Tribunal was not permitted to speculate as to what the Minister might do in future:

non-refoulement obligations are owed to the Applicant and … a decision to affirm the Reviewable Decision would require him to be immediately removed to Afghanistan. Taking these factors into account, on balance, the Tribunal finds that this other consideration weighs strongly in favour of the revocation of the decision to cancel the Applicant’s visa.

30.     Paragraph 14.1(6) of Direction 65 stated:

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.

31.     By failing to take into account the Government’s policy, as articulated in the second sentence of para 14.1(2) of Direction 65, the Tribunal disabled itself from taking into account the fact that a decision to affirm the decision under review would put Australia in breach of its international non-refoulement obligations, despite the unequivocal policy articulated in para 14.1(2), that Australia will not do so.

32.     It was open to the Tribunal to give significant weight to that consideration. Had the Tribunal not disabled itself from taking that policy into account, there is a realistic possibility that the Tribunal would not have affirmed the decision under review, in order to avoid the consequence that the applicant would be refouled, contrary to the clear and unequivocal policy articulated in para 14.1(2) of Direction 65.

(Footnotes omitted).

27    At the hearing, Mr Ciolek summarised the argument with respect to this issue as follows:

… [T]he reason why I say that the error was material was that, if one were to adopt the metaphor of placing objects on a scale, those things favouring affirming the decision under review and those things setting aside the decision under review, plainly, the fact that he would be returned to Afghanistan where he would be killed is a matter of significant weight, and the tribunal found that it was a matter of significant weight that would favour revocation.

What the [T]ribunal didn’t weigh on that side of the ledger, to mix my metaphors, is the additional circumstance that the consequence of affirming the decision under review would be that Australia would thereby breach its international obligations, do so contrary to its clearly stated policy as articulated in the direction, and where that policy is clearly stated and unambiguous, in my respectful submission, it is a matter that could be given significant weight by the tribunal in the weighing process.

Minister’s Submissions

28    It is also convenient to reproduce the Minister’s submissions with respect to this ground in full:

14.     First, contrary to [7], [15] and [24] of the applicant's submissions (AS), the final sentence in [14.1(2)] of Direction 65 purports to be a statement as to the operation of the Act in the event that a person is found to be somebody to whom Australia owes non−re foulement obligations but is the subject of a decision not to revoke a decision to cancel his or her visa. The former cannot be read in isolation. The first sentence in that paragraph, which provides that "[t]he existence of a non−re foulement obligation does not preclude non−revocation of the mandatory cancellation of a non−citizen's visa", describes a possible outcome of the exercise of the power in s 501CA(4)(b)(ii) where a person is owed non−re foulement obligations. The impugned sentence then states why that is so ("[t]his is because ..."). It would be curious if that sentence were a statement of policy when it flies in the face of s 197C of the Act.

15.     Moreover, the language used in the impugned sentence in [14.1(2)] is the same as that which is used in the first clause in the final sentence in [14.1(6)1, yet the balance of that sentence refers to ss 189 and 196 of the Act operating in such a way that the person to whom non−refoulement obligations are owed but whose visa remains cancelled would face the prospect of indefinite detention. In other words, like [14.1(2)], [14.1(6)] is seeking to explain how the Act operates if a decision to cancel a non−citizen's visa is not revoked.

16.     Contrary to AS [23], appeals to what the Minister argued in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (DMH16) are inapt. Justice North rejected those arguments. In particular, his Honour rejected the argument that a form of words employed by the Minister in his statement of reasons (which was consistent with the second sentence in [14.1(2)] of Direction 65) was merely a "statement of intent from a policy perspective, rather than a statement relating to legal power". The applicant's submissions seek to resuscitate an argument that has already been rejected by this Court.

17.     Secondly, contrary to AS [7], [14], [18] and [24], there is nothing in the final sentence in [14.1(2)] that is consistent with s 197C of the Act. That section, read with s 198, is, contrary to AS [18], intractable in its terms: subject to one matter, an unlawful non−citizen must, in the circumstances described in the applicable subparagraph(s) in s 198, be removed from Australia as soon as reasonably practicable irrespective of whether he or she is a person to whom Australia owes non−re foulement obligations. The qualification to that proposition is that the continued detention of a person is permitted while the Minister considers the exercise of the powers conferred by provisions such as ss 195A and 197AB.2 Contrary to AS [11], it is the words "as soon as reasonably practicable" in s 198, and not the terms of s 197C, that accommodate the making of inquiries to enable the Minister to decide whether to exercise his non− compellable powers.

18.     At [12], the applicant argues that the Tribunal, at CB 522 [105], "was wrong to find that s 197C of the Act 'effectively provides that a non−citizen will be removed regardless of any non−refoulement obligation'. There are two difficulties with this submission. First, it is wrong. The Tribunal accurately described the effect of s 197C, read with s 198. Secondly, it takes the Tribunal's statement out of the context in which it was made. At CB 521 [102], the Tribunal observed that, if it affirmed the decision under review, the applicant "would be liable to be removed" [emphasis added]. A similar statement was made at the end of that paragraph. At CB 521 [104], the Tribunal said that, if it affirmed the delegate's decision, the consequences for the applicant of ss 197C and 198 would be that he "would be refouled, unless the [Minister] decided to consider alternative management options" [emphasis added]. It went on to note that the Minister "[wa]s not presently considering the [a]pplicant's case for intervention under s 195A". It is in this context that the Tribunal's finding, at CB 522 [105], needs to be read.

19.     At AS [19]−[22], the applicant seeks to draw support from the Explanatory Memorandum to the Bill that led to the enactment of s 197C. In circumstances where the language used in s 197C is clear, appeals to extrinsic material are of no assistance

20.     It follows, therefore, that, even if the final sentence in [14.1(2)] amounted to a statement of policy, the Tribunal was entitled to find, as it did at CB 522 [105], that there was "a clear contradiction" between s 197C, on the one hand, and [14.1(2)], on the other. By reason of s 499(2) of the Act and s 46(1)(c) of the Acts Interpretation Act 1901 (Cth), s 197C of the Act (read with s 198) prevails to the extent of any inconsistency between it and the terms of the final sentence in [14.1(2)] of Direction 65. That is how the Tribunal approached the inconsistency at CB 523 [108]. It was correct in so doing.

21.     Thirdly, the Tribunal's not having had regard to the final sentence in [14.1(2)] of Direction 65 did not amount to an error of law, let alone a jurisdictional error. Direction 65 requires a decision−maker such as the Tribunal to have regard to certain 'primary' considerations and, where relevant, 'other' considerations. Whether Australia owes to a person non−refoulement obligations is one such 'other' consideration. However, the final sentence in [14.1(2)] does not require the decision−maker to do, or to refrain from doing, anything.6 It is not being suggested, for example, that the Tribunal failed to have regard to non−re foulement in deciding whether or not to affirm the delegate's decision.

23.     In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J made the following pertinent observations as to the relationship between compliance with Direction 65 and jurisdictional error (at [39]):

[T]he trend of authority in this Court supports the proposition that in order to give effect to the terms of s 499(2A) (and subject to any validity issues about a particular Direction), a failure by a decision−maker or Tribunal to comply with a clear obligation imposed by a s 499 direction should be characterised as meaning the decision−maker or Tribunal constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction. Put another way, where there is a valid direction made under s 499 of the Act and s 499(2A) applies, any obligations imposed by that direction as part of the statutory task of the decision−maker are, and are intended by the scheme of the Migration Act by reason of the presence of s 499(2A), to be an essential or inviolable limitation on the power conferred by the relevant provisions of the Migration Act ...

24.     The second sentence in [14.1(2)] of Direction 65 does not impose any obligation on a decision−maker; rather, it describes (albeit incorrectly) the consequence of a decision being made by a decision−maker not to revoke a decision to cancel a non−citizen's visa where he or she is found to be a person to whom Australia owes non−refoulement obligations.

25.     Contrary to AS [7], there is no support in the authorities for the proposition that a decision−maker such as the Tribunal or the Minister will make an error of law by not having regard to a particular statement contained in Direction 65 (that does not impose any duty on the decision−maker) merely because "it formed part of a written direction made under s 499(1)".

26.     In some cases, a decision−maker will make a jurisdictional error if he, she or it has misunderstood the legal consequences of the exercise of power. The judgment of DMH16 is one such case. However, no error of the kind that was made by the Minister in that case was made by the Tribunal here. Indeed, the applicant has conceded as much at AS [27].

27.     Fourthly, and in any event, the Tribunal considered that the existence of non−refoulement obligations "weigh[ed] strongly in favour of the revocation of the decision to cancel the [a]pplicant's [v]isa": CB 525 [111]; see also CB 528 [130]. The applicant did as well as he could have on the question of non−refoulement. In those circumstances, for the Tribunal to have had regard to an asserted statement of policy in the final sentence in [14.1(2)] of Direction 65 could not realistically have made any difference to the outcome.7 The Tribunal was required to have regard to the legal consequences of its decision.8 It did so when it found that the applicant would be returned to his receiving country unless the Minister exercised one of his non− compellable powers: CB 521 [104]. The applicant's submissions at AS [31]−[32] seek to elevate the final sentence in [14.1(2)] into a legal consequence of the Tribunal's decision. To do so would be at odds with DMH16 and the cases that have followed it.

(Footnotes omitted, emphasis in original).

29    In oral argument, counsel for the Minister Mr Brown emphasised that in the Minister’s view the decision of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 (PRHR) was a “complete answer” to the Applicant’s contentions concerning the construction of cl 14.1(2) of Ministerial Direction No 65.

30    Mr Brown also made further oral submissions in relation to the suggestion, arising during the hearing, that the words of the second sentence of cl 14.1(2) have no implications for the Tribunal’s decision-making (and accordingly were appropriately overlooked in this case) but rather indicate that whatever the Tribunal’s decision the Australian Government would exercise certain non-compellable powers to prevent refoulement. Mr Brown said:

… [The] exercise, or potential exercise, of non-compellable powers is something that is quite separate from any consideration that the [T]ribunal has to take into account. So there is no obligation upon the tribunal to take account of the – or, indeed, to speculate as to the possibility of another means being found as to not refouling a person in circumstances where a decision-maker has determined that, weighing all the factors, that the mandatory cancellation decision should not be revoked. That can be, I think, readily regarded, your Honour, as a separate universe of questions which is not for the tribunal to attend to.

It’s the [T]ribunal’s task to apply the direction, the provisions of the direction – those that are not at odds with the law as it currently stands – and, in doing so, to come to a conclusion as to whether the applicant is owed non-refoulement obligations and, if so – and that’s what happened here – then to weigh that against all the other factors and come to a conclusion. That conclusion, once reached, that’s the end of the tribunal’s task and what actually then happens in relation to that person is a set of questions and are not questions that the tribunal is required to turn its mind to.

Consideration

31    Ground 1 raises a question of considerable difficulty. It requires this Court to identify, on the facts of this appeal, the legal duty of the Tribunal when confronted with what both parties accept was the uncontentious fact that on 6 October 2016 the ITOA had determined that BDQ19 had a well-founded fear of being persecuted for a Refugee Convention reason and was at real risk of suffering significant harm were he to be returned to Afghanistan. It is not in dispute that the ITOA concluded that Australia had non-refoulement obligations with respect to BDQ19.

32    The Minister does not suggest that the Tribunal proceeded on a basis other than that those obligations continued to exist and remained current.

33    A question of potential conflict of duties arises at the threshold, because the Tribunal was bound to comply with both the terms of the Migration Act as it has been construed by the High Court of Australia and with Ministerial Direction No 65 in which the Minister had prescribed in writing how the Tribunal was to conduct its review function under the Act.

34    The legal analysis required to resolve any potential tension in that regard might seem simple at first sight. Section 499(1) of the Migration Act, which provides the authority for the Minister to give such directions, is qualified by s 499(2) which clarifies that s 499(1) “does not empower the Minister to give directions which would be inconsistent with this Act or the regulations.”

35    However, the apparent simplicity is, unfortunately, deceptive. That is because the relevant alleged inconsistency in the present case, at least arguably, is not as between a provision of the Act and a specific direction given by the Minister with which the Tribunal was required to comply. Rather, it arises between the Act and an express premise stated by the Minister which then forms the foundation upon which a number of the terms of Ministerial Direction No 65 binding on the decision maker are stated.

36    The problem arises in this way.

37    Division 8 of Part 2 of the Migration Act is concerned with the removal from Australia of unlawful non-citizens. That which is of relevance to these proceedings is set out in s 198(6):

An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)     the non-citizen is a detainee; and

(b)     the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)     one of the following applies:

(i)     the grant of the visa has been refused and the application has been finally determined;

    (ii)     the visa cannot be granted; and

(d)     the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

38    Section 197C provides:

(1)     For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)     An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

39    Section 197C of the Act came into effect on 16 December 2014. As the Applicant’s written submissions at [21] (see above at [24]) correctly note, the Explanatory Memorandum for the Bill introducing that provision (the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)) is entirely consistent with the literal and ordinary grammatical reading of its text: the duty of an officer to remove an unlawful non-citizen in circumstances in which s 198 applies is intended to have valid operation irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.

40    However, the Explanatory Memorandum continues:

1142.     Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

41    Ministerial Direction No 65 came into effect seven days later, on 23 December 2014.

42    As is relevant to this proceeding, Ministerial Direction No 65 consists of two components. The first component, s 1, includes a preamble stating the objectives of the Direction and sets out “General Guidance” and “Principles” for the attention of all decision makers whose decisions are subject to the direction. The second component includes s 2 cll 7-8, and Part C which identifies with greater particularity the considerations a decision maker is required to take into account when considering whether to exercise their discretion to revoke the mandatory cancellation of a non-citizen’s visa. That, of course, was BDQ19’s circumstance before the Tribunal.

43    Part C identifies the primary considerations that the decision maker must consider in such a circumstance. They are those as are referred to in cl 13(2):

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

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

(c)    Expectations of the Australian community.

44    Part C cl 14 then identifies (non-exhaustively) certain other considerations that must be taken into account if they are relevant to a non-citizen’s circumstances. They include, inter-alia, any “International non-refoulement obligations”.

45    In that regard, the decision maker is directed as follows:

14.1     International non-refoulement obligations

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

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

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA 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, ił 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 W R) visa (section 501 E 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 that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

46    The difficulty at the heart of the issues raised by Ground 1 can now be identified.

47    Both the Minister, represented by Mr Brown of counsel, and BDQ19, represented by Mr Ciolek of counsel, agree, and the Court accepts, that having regard to the terms of s 197C of the Migration Act, the statement in cl 14.1(6) of Ministerial Direction No 65 that refers to the operation of ss 189 and 196 as permitting the indefinite detention of an unlawful non-citizen to whom non-refoulement obligations are owed is wrong in law. That statement is inconsistent with the terms of the Act where the conditions of s 198(6)(a)-(d) have been met: the circumstances of the present case, assuming the Tribunal’s decision is not set aside.

48    However, Mr Brown submits that the reasoning of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 (PRHR) as was applied by the Tribunal in BDQ19’s case, provides a complete answer to the problem. In PRHR Deputy President Forgie had been confronted with a directly analogous problem, albeit that in that instance it had arisen under Part B of Ministerial Direction No 65 which applies where a decision-maker is determining whether to exercise their discretion to refuse a non-citizen’s visa application (rather than to revoke a mandatory cancellation). The relevant language of Parts B and Part C is identical. There is nothing in the text as would provide a reason to distinguish the present case from PRHR.

49    Deputy President Forgie concluded that Ministerial Direction No 65 was not a legislative instrument as defined by s 8 of the Legislation Act 2003 (Cth) (LA). However, because it was an instrument made under the power conferred on the Minister by s 499 of the Migration Act, by virtue of s 46(1) of the Acts Interpretation Act 1901 (Cth) (AIA) that Act applied to its construction.

50    Section 46(2) of the AIA provides:

If any instrument…would but for this subsection, be construed as being in excess of the authority’s power, it is taken to be a valid instrument to the extent to which it is not in excess of that power.

51    The issue as to whether or not Ministerial Direction No 65 is a legislative instrument was material in PRHR because of a potential accrued entitlement under a former Ministerial Direction claimed by the review applicant in that case. However, the issue is not material in this instance and need not be decided. That is because, even if Ministerial Direction No 65 is properly to be understood as a legislative instrument, s 13(2) of the LA is in identical terms to s 46(2) of the AIA. Whatever its legal status, Direction No 65 must be construed on the same basis.

52    Deputy President Forgie, in rejecting the proposition that an available means for resolving the tension between the Act and Ministerial Direction No 65 was to read the words “will not” in cll 12.1(2) and 12.1(6) as if they were “might not” or “may not” reasoned as follows:

142.    Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12(2) and (6) (sic) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that Australia “will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”, is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word “might” or “may” appeared rather than the word “will” would not plainly solve the inaccuracy of the sentence.

143.    To say that Australia “might not remove a non-citizen” in the circumstances described is, I suggest, capable of misleading the reader. The word “might” is the past tense of the word “may”. Whichever is chosen, both are capable of being understood in the sense of expressing permission. If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted – “may not” or “might not” – remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility, the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word “may” is to be understood. Therefore, I suggest that it should be omitted.

144.    The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement that “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations”. In view of s 197C, it is also incorrect to say that “… the operations of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.” Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.

…

148.    On behalf of the Minister, Ms Jackson submitted that Direction No. 65 is not a legislative instrument but an instrument to which s 46(2) of the Acts Interpretation Act 1901 (AI Act) applies. That means that, to the extent to which it is not in excess of the relevant authority’s power, it is to be taken as a valid instrument. It is more than mere policy in that it is binding upon those, including the Tribunal, performing functions or exercising powers under the Migration Act. To the extent that it is in excess of power, consideration must be given to whether it is possible to sever those parts. Ms Jackson referred to Minister for Home Affairs v Tervonen [2008] FCAFC 24; (2008) 166 FCR 91; 245 ALR 710; 101 ALD 12 at [105]-[106]; 724; 26; Jacobson, Bennett and Buchanan JJ (Tervonen) and to the application of common law principles of severance considered in Coco v R. [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415. Severance is possible in this instance and, putting aside the two instances in paragraphs 12.1(2) and (6), the validity of Part B, and of Direction No. 65, is not affected.

149.    In Re Jagroop and Minister for Immigration and Border Protection [2015] AATA 751; (2015) 67 AAR 288 at [39]-[53]; 303-307 (Jagroop), I considered the characterisation of Direction No. 55 as well as Direction No. 65. I decided that Directions made under s 499, as are both those Directions, are not legislative instruments. Having regard to the submissions that have been made in this case, I have come to the same conclusion and adopt those reasons for doing so. In essence, I have decided that the power that Parliament has given to the Minister under s 499 is not a power to modify what would otherwise be the law or its operation. Section 499(2) underlines that Parliament did not intend that to be the case.

…

151.    As I said in Jagroop (at [47]):

“It is clear from the power given to the Minister under s 499 that it is a power to give guidelines as to the way in which the discretion inherent in s 501 is to be exercised. That is so even if, consistent with the example given in s 499(1A), those guidelines were to require a person to exercise power under s 501 rather than under s 200 when both powers were available. …”

152.    That is so whether a direction is given as to the provision under which to make a decision, the matters to which consideration must be given or the weight to be given to some matters relative to others. Whether they might be characterised by some as policy or not, they remain directions in the sense that they are instructions about how a person exercising functions and powers under the Migration Act is to go about the performance of those functions or exercise of those powers. They are capable of being complied with, or not as the case may be. Compliance requires regard to be had to them if they arise in the particular circumstances of a case. Direction No. 65 does not seek to limit a decision-maker in having regard to relevant matters that arise in the particular factual context of a particular case. That is clear from paragraph 12(1) when it sets other considerations that must be taken into account but specifically notes that those considerations are not limited to the four that are developed in paragraphs 12.1 to 12.4.

153.    Section 499(2) provides that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with the Regulations. My finding that two passages are inconsistent does not render the whole of Direction No. 65 or even Part B of it null and void. As I have found that it is not a legislation instrument and as it cannot be characterised as rules of court, s 46(2) of the AI Act requires me to regard Direction No. 65 as if it were an Act of Parliament. Each of its provisions is to be regarded as a section of an Act and it is to be read and construed subject to, in this case, the Migration Act, and so as not to exceed the Minister’s power.

154.    Section 46(2) of the AI Act provides:

“If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.”

155.    This is not a provision that authorises an instrument to be read as if it were rewritten with other words. It provides that, to the extent that it is not in excess of power, the instrument is to be taken as a valid instrument. This is consistent with the approach taken by the Full Court of the Federal Court in Tervonen (at 105]-[106.] The two sentences can be excised from paragraph 12.1 of Direction No. 65 leaving statements that are within power.

53    I am satisfied that Deputy President Forgie states the law correctly at [151] and [152] in her reasons as to the potential breadth of what may be comprehended within a written direction given by the Minister under s 499 of the Migration Act. A direction is no less a direction if it states in detail and explains to a decision maker why some greater or lesser weight, or no weight at all, should be given to a particular factor. That is, of course, subject to the limitation that such a direction cannot be inconsistent with the Act.

54    I am also satisfied that Deputy President Forgie states the law correctly at [144] of her reasons that the final sentence of cl 12.1(6) of Ministerial Direction No 65 is inconsistent with the Act. In the present proceeding, the identical sentence in cl 14.1(6) of the Direction is incorrect for the same reasons.

55    I am further satisfied that the learned Deputy President was correct to have rejected the proposition that it was open to her to re-write the text of that sentence as if the words “will not” read “might not” or “may not” for the reasons stated at [143].

56    However, I respectfully have found myself unable to accept the reasoning of the learned Deputy President in two other particulars.

57    First, in my opinion, the learned Deputy President was wrong to have reasoned that the Ministerial Direction was relevantly inconsistent with the Act insofar as it stated, contextually, as cl 12.1(2) (and cl 14.1(2)) currently does, that Australia “will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”.

58    That statement would be wrong in law only if that obligation were required to be understood as being inherently tied to a particular means of securing the posited outcome: namely, indefinite detention. However, as the Explanatory Memorandum that introduced s 197C explained, it remains open to Australia to continue to meet its non-refoulement obligations through mechanisms other than the removal powers in s 198 of the Migration Act.

59    Parliament was specifically advised that in removing any previous implied restraint on the removal power, Australia’s non-refoulement obligations would continue to be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under ss 46A, 195A and 417.

60    I apprehend nothing in the structure or terms of cl 12.1 before Deputy President Forgie, or in the identical structure and terms of cl 14.1 in this proceeding, as would require the conclusion that the general terms of subcl (2) are to be read subject to the error that all parties accept infects the last sentence of subcl (6).

61    I accept that Mr Ciolek is correct to submit that counsel for the Minister had informed the Tribunal that “the Minister is not presently considering the applicant’s case for intervention…”. However, that was unexceptional. Nothing in the advice so conveyed to the Tribunal is inconsistent with the statement at cl 14.1(2) of Ministerial Direction No 65. At that time there was no requirement that the Minister “presently consider” intervening in BDQ19’s case. Australia’s obligations not to refoule might never be engaged, depending on the then unknown decision of the Tribunal.

62    The second difficulty with the reasoning of the learned Deputy President is related, but distinct. To delete the relevant words in cl 14.1(2) would introduce a far graver surgery on the text than is permitted by principle. Coupled with the necessary excision of the final sentence of cl 14.1(6), the deletion of the second sentence of cl 14.1(2) would transform a direction to the decision maker that they may proceed to make a decision notwithstanding the existence of a non-refoulement obligation because Australia will not remove any non-citizen to a country in which a non-refoulement obligation exists, into a direction that the decision-maker is to proceed to make a decision notwithstanding that the removal of person to whom non-refoulement obligations exist will occur.

63    In any event, the implausibility of such a construction being given to Ministerial Direction No 65, issued as it was only days after the passage of the legislation which introduced s 197C and in circumstances in which the Parliament had been assured at the time of the passage of the Act introducing that provision that Australia would continue to observe its international commitments not to refoule is, in my opinion, self-evident.

64    There is nothing in the text of Ministerial Direction No 65 that can be understood to manifest the possibility that those commitments will not be honoured. Indeed, self-evidently, the contrary is manifested in the text of cll 10.1(2), 12.1(2) and 14.1(2). Moreover, it is entirely implausible that the Minister intended to consign a matter of such high significance to those subject to his direction as a second order concern in contrast to the primary considerations in Part C.

65    In Coco v R [1994] HCA 15; 179 CLR 427 the High Court dealt with an authority issued by a judge which had purportedly authorised the use of listening devices. It was argued that an invalid component of the approval might be severed to save the approval’s validity. Mason CJ, Brennan, Gaudron and McHugh JJ rejected that submission (at 443-444):

If it were necessary to consider the question from the viewpoint of severance, we would come to the conclusion that it is not possible to sever. The fact that what is bad is an integral and essential element of what is good leads to the conclusion that the approval is wholly void.

66    I have previously rejected (above at [60]) the proposition that what is bad in cl 14.1(6) is an integral and essential element of what is stated in c 14.1(2). However, assuming I am wrong in that regard the consequence would be the invalidity of Ministerial Direction No 65 as a whole, or at least of the whole of any part thereby affected. Severance is not available if doing so would effectively require the remaking of a document to a different substantive effect. The observations of Kirby J (in dissent as to the result, but not so as to affect the principles to which his Honour referred) expressed in the context of the closely analogous provision of s 15A of the AIA in New South Wales v Commonwealth [2006] HCA 52; 229 CLR 1 (Work Choices Case) state the orthodox approach Australian courts have taken with respect to provisions such as ss 46(2) of the AIA and 13(2) of the LA:

595    So far as s 15A of the Acts Interpretation Act is concerned, there are limits upon the power of the Parliament to direct the courts, in effect, to make a new law or to choose what a remade law should be. The limit is reached where, faced with a conclusion of apparent constitutional invalidity of particular provisions, a court "cannot separate the woof from the warp and manufacture a new web"]. From time to time, this Court has invoked other metaphors to explain when the Court has arrived at that limit. Thus, it has indicated a willingness to undertake amputation and excision, where necessary, but not to perform judicial "plastic surgery" upon the challenged law. By inference, this is a reference to judicial excisions that would substantially alter the appearance of the law, presenting a law that looks quite different from that which was made by the Parliament.

596     The reason why this Court will not undertake such a task is ultimately based on the proper function of the Judicature established by the Constitution and on the principle of the separation of the judicial from other governmental powers. Thus, in the guise of construing a challenged federal law, the Court cannot be required to perform a feat that is, in essence, legislative and not judicial.

597     As to s 15A of the Acts Interpretation Act, the provision can save the validity of a federal law generally where the law itself indicates a standard or test that may be applied for the purpose of limiting its operation and preserving the validity of the law thus limited, so long as the outcome has not been changed so as to make it something different from the law enacted by the Parliament]. If the Court concludes that the challenged law "was intended to operate fully and completely according to its terms, or not at all", the Court will not, under the guise of interpretation and severance, uphold what would effectively be a new and different law.

598     If the invalidated portions are relatively few and specific, surgery involving particular invalidation and reading down will be available and appropriate, as it was in the Industrial Relations Act Case. Where, however, the resulting invalidation is substantial and would strike down key provisions of a comprehensive and integrated legislative measure, the invocation of statutory or constitutional principles of severance will be inappropriate. They will be unavailing to save the parts of the new law that are not specifically struck down as invalid for constitutional reasons.

(Footnotes omitted)

67    Because I do not proceed on the premise that cl 14.1(2) is controlled by, or must be construed subject to, cl 14.1(6) it is unnecessary to consider the question of wider invalidity further. I am satisfied that the final sentence in Part C, cl 14.1(6) (and by logical extension the identical statements in Part A, cl 10.1(6) and Part B, cl 12.1(6)) is all that is required to be severed in order to secure the validity of Ministerial Direction No 65. That surgery is limited to that which is available and appropriate to avoid inconsistency with the Migration Act. Such more limited severance preserves the operation of Ministerial Direction No 65 without changing its character or essential elements such that it would differ in substance from the direction originally made by the Minister.

68    To construe the relevant clauses in that way leaves the decision maker to proceed on the basis that the existence of a non-refoulement obligation will not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa even in circumstances where, absent non-compellable Ministerial intervention, that cancellation would necessitate their removal to a country in respect of which a non-refoulement obligation exists. It is a direction to the decision maker to proceed in that manner because Australia ultimately will not refoule such a person.

69    I reject Mr Ciolek’s submission that such a reading places a decision maker in a position where he or she is subject to inconsistent direction. On the reading the Court gives to Ministerial Direction No 65 the decision maker is simply made aware that for so long as the subject of a visa revocation decision remains owed non-refoulement obligations by Australia he or she will not be removed to a country where those obligations will be violated because Australia will, by other means legally available to it, adhere to its international obligations not to return him or her to that country.

70    The suggestion of inconsistency conflates the notion of durable settlement with non-refoulement. The international community and Australian refugee policy both give preference to durable solutions. However, the duty not to refoule that Australia has accepted under the conventions cited in cll 10.1, 12.1 and 14.1(1) of Ministerial Direction No 65 does not extend that far. The commitment stated in cl 14.1(2) is no larger than that which Australia has accepted under those conventions: namely, that Australia will not remove a non-citizen to a country in respect of which a non-refoulement obligation exists.

71    Circumstances can change over time. For example, a civil war (even such as result in genocide, as in Rwanda) from which a person may have fled as a refugee may come to an end. Such a circumstance may bring with it the end of any international obligation to protect, and not to refoule, earlier owed to a person.

72    The decision maker therefore is not inconsistently told by Ministerial Direction No 65 to proceed both on the basis that an unlawful non-citizen owed non-refoulement obligations will be removed, and that he or she will not be removed. The decision maker is simply told to assess the case before him or her on the basis that the existence of a non-refoulement obligation does not preclude the non-revocation of the non-citizen’s visa.

73    Insofar as a person is, or may be owed, non-refoulement obligations, cl 14 of Ministerial Direction No 65 simply advises the decision-maker to take that circumstance into account as one of what may be several “other considerations.” Clause 14.1 explains how that is to be done. The decision maker must, in proceeding, be mindful of s 2 cl 8(4) of Ministerial Direction No 65 and its command that such “other considerations” should generally be given lesser weight than the three “primary considerations” set out in Part C.

74    If in the event, having regard to cl 8(4) and what it directs, an illegal non-citizen’s visa remains revoked but he or she is owed non-refoulement obligations by Australia, the decision maker need not speculate as to how those obligations will be met. It is uncontentious that there are available legal means as can secure that outcome. The unavailability of indefinite detention as one of those means, which the Minister by his counsel accepts is the law, does not alter that position.

75    If Ministerial Direction No 65 is read as a whole, with only the last sentence of cl 14.1(6) necessarily excised, there is no relevant inconsistency.

76    Having regard to the above discussion I am satisfied that the Tribunal, by adopting and applying the reasoning of Deputy President Forgie in PRHR, erred in law as BDQ19 alleges in Ground 1(b) as it is particularised.

77    However, I am not satisfied that this error was material such that it could have affected the outcome.

78    In his oral submissions on behalf of the Minister Mr Brown submitted that the Tribunal approached its task in relation to the question of whether non-refoulement obligations were owed correctly, and found they were. It placed weight on that determination and, in doing so, avoided falling into the trap of seeking some sort of solace in a lesser consideration of the consequences of the decision for the applicant. The Tribunal made its decision in the full knowledge that the consequences for the individual of an affirmation of the decision under review were very serious. He would be returned to Afghanistan even though there was a real risk he would be targeted and killed by the Taliban.

79    That, the Court accepts, save in respect of its submitted legal correctness, is an accurate summary of what the Tribunal actually understood was its task and the consequence of its decision. The error the Tribunal made in stating the law in the terms of PRHR thus resulted in the Tribunal making a decision on premises more favourable to BDQ19 than those the Court has concluded actually applied. It proceeded on the basis that BDQ19 would be returned to Afghanistan upon it making that decision, rather than on the premise that he would returned to Afghanistan if, but only if, the circumstance that Australia had non-refoulement obligations towards him no longer applied.

80    The Tribunal’s decision that the revocation of BDQ19’s visa should not be revoked, even if that meant he would be returned to Afghanistan where he faced a real risk of harm by reason of his being targeted and killed by the Taliban was a harsh decision, and perhaps one that other decision makers may not have made. However, the fact that the Tribunal made that decision in full knowledge that BDQ19 was owed non-refoulement obligations, in the Court’s opinion, makes it impossible to contend that had the Tribunal understood and applied the law correctly as the Court has stated it, it would have reached a different conclusion.

81    I reject Mr Ciolek’s submission that the error was material because the Tribunal, while accepting the fact of BDQ19’s status as a refugee gave no consideration to a material factor: the violation of Australia’s international non-refoulement obligations.

82    On the view I have taken of the law that submission cannot succeed.

83    Any error in that regard is self-evidently immaterial. Neither Mr Brown nor Mr Ciolek drew the Court’s attention to any fact or evidence to suggest that those obligations will not be honoured.

84    While the Court accepts that the Tribunal erred in law in construing cl 14.1(2) of Ministerial Direction No 65 as it did, the Court does not accept, in the particular facts of this case, that the error of construction was material. The High Court’s statement in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179 (Craig) is directly relevant:

If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

(Emphasis added.)

85    It is important not to ignore the words of qualification as emphasised above. The legal error made by the Tribunal went to its jurisdiction only if the Tribunal’s exercise or purported exercise of power was “thereby affected”. In the Court’s opinion the requisite premise is not made good.

86    The legal error the Tribunal made was not jurisdictional error as would invalidate its decision. Ground 1 fails.

Ground 2

87    The second ground on which the Applicant relies is as follows:

2.     The Tribunal fell into jurisdictional error by failing to consider essential integers of the Applicant’s claims.

PARTICULARS

(a)     First, the Applicant claimed that an impediment that he would face if he were removed from Australia to Afghanistan was that he would be subject to the risk of being collaterally killed or injured by anti-government elements or government or international forces, as a civilian.

   (b)     The Tribunal did not address that claim in its decision record.

(c)     Second, the Applicant claimed that an impediment that he would face if he were removed from Australia to Afghanistan was that he would experience significant difficulty in establishing himself and maintaining his livelihood if he were returned to Afghanistan.

(d)     An essential integer of that claim was that the Applicant would not have the support of his family or community, as they would not approve of his lack of religious observance and his relationship with a Christian woman.

(e)     In its decision record, in considering the extent of any impediments if the Applicant were removed, the Tribunal found that the Applicant’s mother and two sisters live in Afghanistan, but said that it was unclear whether they may be able to offer the Applicant any support if he is returned. The Tribunal said that “[i]t was also submitted by Counsel for the Respondent [sic] that his family may disapprove of his westernisation … , however there is no evidence before the Tribunal as to the views of the Applicant’s family”. The Tribunal also recorded that the Applicant had given evidence that he has few ongoing ties in Afghanistan because many of his family members, including his father, have died in recent years (at [124]).

(f)     The Tribunal did not otherwise address the Applicant’s contention that he would not have the support of his family or community, as they would not approve of his lack of religious observance and his relationship with a Christian woman.

(g)     There was evidence before the Tribunal as to the views of the Applicant’s family in the relevant respect. Among other things, in a signed statement of the Applicant dated 25 July 2018, the Applicant stated that if he were to be returned to Afghanistan, he would be “at risk of harm from my extended family and the community because they are practising Shia Muslims. I do not practise a religion and have been in a relationship with Christian woman and had children in Australia. My family and the community will not accept this.”

Applicant’s Submissions

88    The Applicant’s submissions with respect to this ground relate to one of the “other considerations” identified in the relevant part of Ministerial Direction No 65: the extent of the impediments that the Applicant would face if he were removed from Australia.

89    With respect to the risk of being killed or injured as a civilian, the Applicant submits that:

36.    … [T]he applicant raised for the Tribunal’s consideration, as an impediment that he would face if he were removed from Australia to Afghanistan, the fact that, even if he were to escape the risk of targeted persecution, he would be subject to the risk of being collaterally killed or injured by anti-government elements or government or international forces, as a civilian (at [114]). That was because, he asserted, civilians “continue to bear the brunt of the longstanding conflict in Afghanistan between Anti Government Elements and the Afghan Government and international forces”.

37.     Not only did the applicant squarely and clearly raise that specific claimed impediment to his return to Afghanistan, the applicant’s fears in this regard were substantiated by evidence that was before the Tribunal (CB51-56).

38.     The Tribunal noted that the applicant had a real chance of being subject to significant harm should he be returned to Afghanistan, by reason of his Hazara race and Shia Muslim religion (at [121]). However, the Tribunal did not address the applicant’s claim that he would be subject to the risk of being killed or injured, simply in virtue of being a civilian in Afghanistan.

39.     Had the Tribunal given proper consideration to that claim, and to the evidence before the Tribunal which supported it, there is a realistic chance that the Tribunal might have given greater weight to the extent of impediments that the applicant would face if he were returned to Afghanistan, and thereby made a different decision.

90    Regarding the Minister’s argument (described below) that the issue of the generalised risk posed to the Applicant as a civilian was subsumed by the Tribunal’s more serious finding that the Applicant had a real chance of being subject to significant harm by reason of persecution, Mr Ciolek sought to distinguish the cases raised by the Minister. He said:

I’m saying this is a different case. It’s not a case of a more specific finding … throwing out a more general finding ... here we’ve got two sets [of findings].

91    In oral argument, Mr Ciolek submitted that the “cumulative nature of risks” meant that the failure to consider this risk could have affected the Tribunal’s decision, notwithstanding its findings regarding persecution.

92    Mr Ciolek further addressed the Minister’s contention (also described below) that the Tribunal had picked up the relevant claims by picking up the findings in the ITOA concerning the risk to civilians in Afghanistan. He submitted that:

[T]he assessor has not purported to draw any individualised conclusions as concerns the applicant from the discussion of the current security situation in Afghanistan. So … even if what the tribunal was doing [is] correctly described as picking up the reasoning of the assessor, that reasoning did not involve anything that could be picked up in such a way as to ascribe that relevant reasoning to the Tribunal.

Minister’s Submissions

93    The Minister submits that the Tribunal did consider the risk of the Applicant suffering persecution or significant harm if returned to Afghanistan, because:

(1)    In considering Australia’s non-refoulement obligations, the Tribunal accepted that there was a real chance that the Applicant would be subject to significant harm should he be removed. It further accepted that this would be a “major impediment” to him if he were returned. Any finding that the Applicant was also subject to a general risk of harm as a civilian, rather than on the basis of his race, religion, or background, was “subsumed” by those findings (citing Flick J in ZMBZ v Minister for Home Affairs [2018] FCA 455 at [34]; citing also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 353 [91] per McHugh, Gummow and Hayne JJ and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604-605 [47] per French, Sackville and Hely JJ).

(2)    The Tribunal had before it, and referred to, the ITOA. The ITOA contained evidence that Afghanistan was unsafe for civilians. As such, the Tribunal “can be taken to have considered, and accepted, that the [A]pplicant would be at risk of being killed or injured as a civilian if he were returned to Afghanistan”. Mr Brown submitted the ITOA “did pick up” the issue of generalised risk to civilians and the “broad security picture”. Those issues were, in turn, picked up by the Tribunal.

(3)    The Tribunal accepted that “it would be very difficult for the [A]pplicant to maintain a meaningful parental relationship with his children” if he were returned, as country information advised against travel there due to the “extremely dangerous security situation and the very high threat of a terrorist attack”. This was further evidence that the Applicant’s claim to be at risk as a civilian “was considered and determined in his favour”.

94    As to the Applicant’s claims concerning his family, the Minister submits that:

34.     The latter claim was also considered … It was impliedly identified (and accepted) at CB 520 [101] in so far as the Tribunal there found that Australia owes non−refoulement obligations to the applicant and that he has a real chance of being subject to significant harm if he were returned to Afghanistan. In that connection, the Tribunal accepted the findings made in the ITOA. The ITOA, in turn, relevantly referred to the applicant's claim that he would be at risk of harm from members of his mother's family, given their religious belief … It was on that basis (that is to say, as a matter pertaining to whether Australia owed non−refoulement obligations"), that the claim was put by the applicant in his statement dated 25 July 2018 …

35.     Further, at CB 527 [124], the Tribunal referred to the claim, made orally by the applicant's representative, that "his mother's family, being strictly religious, would disapprove of his westernisation, and they, the family itself, may pose a risk of harm to the applicant." That claim referred to those parts of the ITOA identified in the preceding paragraph … [T]herefore the Tribunal's observation that "there is no evidence before the Tribunal as to the views of the [a]pplicant's family" can only fairly be understood as referring to an absence of evidence from those members. The Tribunal was, plainly, aware of the applicant's claim, having considered, and made findings in relation to, the conclusions reached by the assessor in the ITOA.

36.     In any event, it is difficult to see how an express finding in relation to the claim could realistically have made any difference to the outcome in circumstances where … the Tribunal accepted that the impediments that the applicant would suffer if he were to be returned to Afghanistan "weigh[ed] in favour" of revocation.

Consideration

95    The nub of this issue is whether, as Mr Brown submits, the first limb of Ground 2, which relates to collateral consequences of returning to Afghanistan as a civilian, was picked up in, and subsumed by, the Tribunal’s finding that there had indeed been a decision made by the ITOA assessor that the applicant was owed non-refoulement obligations.

96    Mr Brown submits the Tribunal thereby also picked up the basis upon which the ITOA reached that conclusion.

97    In my opinion, notwithstanding what is perhaps some squeamishness or euphemism in the Tribunal’s reasoning - which avoids any specific mention of the ITOA’s conclusion that BDQ19 was at risk of being targeted by the Taliban and killed - the second of Mr Brown’s propositions, in the absence of any ground of review advanced to the contrary, must be accepted to be correct.

98    However, when the reasoning and conclusions of the ITOA are closely examined the first of Mr Brown’s propositions appears to be unsound. The ITOA does refer to a significant body of country information which might be relevant to the collateral risk that BDQ19 might face if he were to return to Afghanistan as a civilian. However, that material is drawn on only in respect of the ITOA’s ultimate conclusion that BDQ19 had a reasonable fear that he would be killed by the Taliban. That conclusion was the exclusive basis for the ITOA’s assessment that BDQ19 was owed non-refoulement obligations both under the Refugee Convention and the complementary protection provisions of the Convention Against Torture and the International Covenant on Civil and Political Rights as have been codified by ss 36(2)(aa) and 36(2A) of the Migration Act.

99    For that reason, I do not accept Mr Brown’s submission that the further risks which BDQ19 might face as a civilian must be understood as having been subsumed within the Tribunal’s acceptance of the conclusions of the ITOA.

100    Mr Brown does not submit that BDQ19 did not advance a substantial contention before the Tribunal that this was another reason why the earlier revocation of his visa should be revoked.

101    Nor, in my view, is it plausible to suggest that BDQ19’s submission in this regard was in respect of a matter capable of being validly dismissed without the Tribunal referring to it.

102    The collateral risk of harm that BDQ19 might face simply by being present in a place riven by violent extremism was a factor that the Tribunal was required to consider. It potentially added to the risks BDQ19 would face as a person specifically targeted by the Taliban if he were to return to Afghanistan. It was a matter the Tribunal was bound to take into account (if it accepted the truth of the proposition) pursuant to cl 14(1)(e) of Ministerial Direction No 65.

103    I decline to accept that the Tribunal’s failure to consider that claim was immaterial. The weighing of all relevant considerations, guided by Ministerial Direction No 65, is for the Tribunal, not the Court. It is not open to this Court to reason that had that additional factor been placed in the balance in BDQ19’s favour, the Tribunal necessarily would have made the same decision.

104    Having reached that conclusion with respect to the first, and what the Court apprehends to be the most significant of particulars, advanced by BDQ19 in respect of Ground 2, it is unnecessary to go further.

105    I would uphold Ground 2.

Ground 3

106    The third ground on which the Applicant seeks to rely, insofar as it was ultimately pressed by Mr Ciolek at the hearing, is as follows:

The Tribunal fell into jurisdictional error by failing to consider information or evidence that was relevant to the assessment of the best interests of the Applicant’s minor children.

PARTICULARS

(a)     The Tribunal failed to take into account the letter from B S [name redacted] dated 7 January 2019 (Ex A3).

107    The correspondence from Ms S. was an e-mail from the Applicant’s 14 year old biological daughter regarding the Applicant’s relationship with her and her siblings. It was in the following terms:

To ever whom this may concern

Hi my name is [Ms S] [BDQ19’s] daughter and this letter is regarding my dad’s release. with things going on as a teenager a daughter needs her dad. Him having 3 beautiful kids and a step daughter u need a fatherly figure. My dad taught me things from having to stand up for myself through to fishing and even sports from being there from my first steps and who we are as a family today. We haven’t been able to get in contact from my father for over 4 years but via facebook we’ve been able to get to communicate . We enjoy the little things in life from talking to one another and face timing we miss him dearly and and need our dad’s encouragement. We all make mistakes but we also learn from them. I’m sure he’s learnt his lesson. I know we have a mother by our side but need a our dad. He has a son (5) he hasn’t seen since he was only a few months old. Aswell as a cheeky little 12 year old I myself a 14 year old with responsibilities and my 16 year old step sister. Me sometimes having to step up and taking responsibility it would be nice to have an extra set of hands like my dads. My dad coming out would not just help me but my whole family out. Missing you is an understatement we hope to see u soon. We love and miss you dearly you don’t understand .

“Dad your memoires have become my heart beats which means I am thinking of u all the time just to stay alive I miss you” - [Ms S] and family

(Spelling in original).

Applicant’s Submissions

108    The Applicant submits that it can be inferred that the Tribunal did not take the letter into account. With respect to the interests of minor children in Australia affected by the decision, the Tribunal at [85] referred to the wishes of the Applicant’s other children as expressed in the letters to the Department which were written in 2014. However, the Tribunal omitted to mention the more recent letter from Ms S. The Applicant submits that from this omission it can be inferred that the Tribunal overlooked Ms S’s letter.

109    The Applicant further submits that Ms S’s letter was capable of affecting the Tribunal’s assessment of the impact that separation from the Applicant was likely to have on his children, and the extent to which their mother could adequately fulfil a parental role in his absence. This is particularly so given that it was the only “contemporaneous document” of this nature.

110    At the hearing, Mr Ciolek submitted that other aspects of the Tribunal’s treatment of the children’s views supported his submission that the Tribunal had made an error. He noted the Tribunal’s statement at [77] that there was “very limited information … regarding the Applicant’s biological children and stepchild, and so it is very difficult for the Tribunal to determine whether their interests differ and to deal with their interests individually”. He also alleged that there was a further error in the Tribunal’s summary of the children’s wishes at [85] of its reasons. He said:

[T]here’s an error where the [T]ribunal says a letter from the applicant’s son states that he needs his father to come home. That he is unhappy without him, and asks not to take his father away from him. Now, your Honour … that’s not right. The applicant’s son was five at the time that the decision was made, and one year old at the time that the other letters before the tribunal were written. The letter was that of his second biological daughter.

Minister’s Submissions

111    The Minister refutes the inference that the Applicant seeks to draw, submitting that “the fact that reference has not been made to a particular matter does not mean that it was overlooked”. The Minister submits that the better inference is that the Tribunal simply did not consider Ms S’s letter to be material.

112    At the hearing, Mr Brown further highlighted [15] of the Tribunal’s reasons. That paragraph relevantly provides:

[15]     The Tribunal admitted the following documents into evidence at the hearing:

…

(c)    letter from the Applicant’s 14 year old daughter dated 7 January 2019.

113    Mr Brown therefore submitted that:

[T]he [T]ribunal was aware of the existence of that document … as part of what was before the [T]ribunal. We say that it’s open to the court to imply that that means that the tribunal had read the document, and we say that that was one of the pieces of material that informed the assessment that the applicant made of the best interests of the child at paragraph 85.

114    In any case, the Minister submits that the letter is “not central to the assessment of the Applicant’s claims”. The Tribunal had considered the views of the Applicant’s other children, which were “no different in substance” to the sentiments expressed by Ms S, and come to the conclusion that the best interests of the children were served by the Applicant remaining in Australia.

Consideration

115    The Tribunal identified that it had “very limited information … regarding the Applicant’s biological children and stepchild” before it. Although it admitted Ms S’s 2019 e-mail into evidence the Tribunal did not, in its reasoning with respect to one of the three primary considerations to which Ministerial Direction No 65 directed it to give regard (the best interests of minor children in Australia affected by the decision) advert to that e-mail.

116    Mr Brown submits that the better inference is not that the Tribunal accidentally overlooked that evidence, but rather that the Tribunal simply did not consider Ms S’s letter to be material.

117    The Court is not persuaded by that submission. Having regard to the context in which the Tribunal expressly noted that it had only very limited information before it, the Court is satisfied that the better explanation for an absence of any reference to the letter is simply that it was inadvertently overlooked. It is implausible that had it been considered the Tribunal would have referred to past evidence and to the Tribunal having “very limited information” while treating as immaterial the views Ms S had very recently sought to communicate to it on her own and BDQ19’s other children’s behalf.

118    Mr Brown submits that the views expressed in Ms S’s e-mail were no different in substance to those that had been earlier expressed in 2014 by BDQ19’s children.

119    That may be accepted, but the significance of Ms S’s letter is that it purported to reflect the current views and interests of his children in Australia. It was the position as at the time of the Tribunal’s decision rather than that which had applied some five years in the past, which was, to apply Mr Brown’s language, “central to the assessment of the Applicant’s claims”.

120    In that circumstance I am satisfied that that the Tribunal fell into error by ignoring what was plainly relevant material.

121    The e-mail the Tribunal failed to address was potentially significant because reference to it would have confirmed to the Tribunal that BDQ19’s children still wanted him in their lives as a father figure notwithstanding that over the past five years he had been convicted of an undoubtedly serious crime of violence and had been imprisoned for much of that time and later detained.

122     The e-mail contained up to date information relevant to one of the primary considerations the Tribunal was required by Ministerial Direction No 65 to take into account. By ignoring it the Tribunal exceeded its authority or powers.

123    It may be accepted to be unlikely, but is impossible to reason that had the Tribunal had regard to that material its decision might not have been different. It is for the Tribunal, not the Court, to assess what weight to give to such material.

124    As Craig establishes, if relevant material going to a consideration the Tribunal was required to take into account is ignored that error is jurisdictional error which will invalidate any order or decision of the Tribunal reflecting it.

125    I would uphold Ground 3.

Ground 4

126    The fourth ground on which the Applicant relies is as follows:

The Tribunal fell into jurisdictional error by erroneously construing and applying Direction 65 and thereby constructively failed to exercise its jurisdiction.

PARTICULARS

(a)     In its decision record, the Tribunal erroneously determined that the Applicant’s convictions for the offences of resisting arrest and failing to comply with a request to give police personal details were convictions for crimes committed against government officials in the performance of their duties, within the meaning of cl 13.1.1(1)(b) of Direction 65 (at [42]).

Applicant’s Submissions

127    The Applicant submits, in submissions filed after the hearing, that the error was as follows:

… [T]he phrase “crimes committed against ... government representatives or officials ... in the performance of their duties” in para 13.1.1(1)(b), properly construed, describes criminal conduct comprising an interference with the legally protected interests of a government representative or official.

The offences of resisting arrest, and failing to comply with a request to provide personal information to an officer, can each be made out without the prosecution needing to establish that an accused has engaged in conduct involving an interference with the legally protected interests of a police officer. And, in the absence of any evidence about the nature of the relevant offences for which the applicant was convicted, the Tribunal was not permitted to speculate about what conduct on the applicant’s part resulted in those convictions.

128    Mr Ciolek further submitted that the alleged error could have made a difference to the Tribunal’s decision. This is because, he submitted, it led to these offences being improperly characterised as serious offences for the purposes of Ministerial Direction No 65 and as such potentially being given too much weight in the Tribunal’s analysis.

Minister’s Submissions

129    The Minister submits that:

The short response to this ground is that the applicant's offences of resisting arrest and, "albeit to a far les[s] extent", failing to comply with a request made by the police to provide personal details, can fairly be characterised as ones that are "offences against officials in the performance of their duties". The offences reveal a disregard for lawful actions taken, and requests made, by officials employed by, and acting on behalf of, the Executive. In that sense, they were committed "against" government officials.

130    In any case, Mr Brown submitted for the Minister that the characterisation of these offences as offences committed against government officials in the performance of their duties was not material in the context of a “bigger picture of unlawful conduct”.

131    The Minister further contends, in post-hearing submissions, that the relevant characterisation of the offences was also “immaterial to the weighting [the Tribunal] assigned to the nature and seriousness of the applicant’s offending”.

Consideration

132    Clause 13.1.1(1) is in the following terms:

13.1.1    We nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   c)    The sentence imposed by the courts for a crime or crimes;

d)    The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

   e)    The cumulative effect of repeated offending;

f)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

g)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

h)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

133    Neither party has identified any authorities that would assist the Court with the task of construing cl 13.1.1(1)(b) of Ministerial Direction No 65.

134    In the Court’s opinion, in that context, the offence of failing to comply with a request made by the police to supply personal details, per se, is not relevantly a “serious offence”. It is not, on its face, an offence committed against government representatives or officials due to the position they hold, or in the performance of their duties. The position is more doubtful with respect to the offence of resisting arrest. In the Court’s view, a conviction for resisting arrest might or might not fall within that language. The issue would seem to turn on the precise terms of the statute (in respect of which there was no information before the Tribunal) and the facts of any conduct constituting that offence. There may be circumstances in which a person will have committed such an offence “against” a public official in the performance of his or her duties.

135    However, where the only evidence before a decision-maker is the fact of a conviction described as “resist arrest” (as in the present case) I am doubtful that it would be open to a decision maker affirmatively to conclude that that offence falls within the language of cl 13.1.1(1)(b).

136    Is not necessary to reach any concluded finding. Let it be accepted that the Tribunal did err in each instance as Mr Ciolek submits it did, nonetheless the Court is unpersuaded that anything flowing from those errors could have been material.

137    There was ample evidence before the Tribunal for it lawfully to have concluded that BDQ19’s criminal history involved at least three “serious offences” within the meaning of cl 13.1.1(1)(a) of Ministerial Direction No 65: that history includes unlawful wounding in circumstances of aggravation, and two convictions for assault.

138    The Tribunal set out BDQ19’s Court and Traffic history, comprising a total of 42 offences, at [39] of its reasons as follows:

39.    To date, the Applicant has a Court and Traffic history comprising a total of 42 offences (G4, page 38-40). These are comprised of:

(a)    Offences involving violence:

(i)    “assault occasioning bodily harm (2 charges)” (23 November 2005);

    (ii)    “common assault (2 charges)” (8 December 2006);

(iii)    Two convictions for “unlawfully wounded in circumstances of aggravation” (15 January 2014);

(b)    Driving and traffic offences:

(i)    “no motor driver’s licence”, “exceed .08” and “fail to stop when called upon” (13 May 2005);

(ii)    “no motor driver’s licence – under suspension” and , “no motor driver’s licence – under suspension (2 charges)” (27 July 2005);

(iii)    “no motor driver’s licence – under suspension” and “unlicensed vehicle” (24 April 2006);

(iv)    “exceed speed limit” and “no motor driver’s licence – under suspension” (8 December 2006);

(v)    “no authority to drive – disqualified/suspended” (24 December 2008);

(c)    drug offences:

    (i)    “possess a prohibited drug” (24 February 2006);

    (ii)    “possess a smoking utensil” (19 December 2008);

(iii)    “possess a prohibited drug (methylamphetamine)” (31 January 2014);

(d)     breaches of court imposed orders and police orders:

    (i)    “breach of bail granted” (13 May 2005);

    (ii)    “breach of suspended sentence” (24 April 2006);

(iii)    “breach of protective bail granted conditions” (3 charges) (8 December 2006);

(iv)    “breach of police order” (8 December 2006 and 22 February 2007);

(v)    three convictions for “breach of police order” (27 August 2012);

(e)    offences involving public officers:

    (i)    “resist arrest” (13 May 2005);

(ii)    “fail to comply with request to give police personal details” (23 June 2006);

(f)     public order offences:

    (i)    “disorderly conduct” (13 January 2005);

(ii)    “disorderly behaviour in public” (24 April 2006, 8 December 2006 and 20 December 2006);

(g)    other offences:

    (i)    “possessed a controlled weapon” (23 November 2005);

(ii)    “carried an article with intent to injure (disable)” (20 December 2006);

(iii)    “left a public passenger transport service” (23 June 2006);

    (iv)     “unlawful damage” (8 December 2006);

    (v)     “trespass (2 charges)” (8 December 2006)

(Dates cited are conviction dates.)

139    Having regard to that list of offences which includes three offences involving violence, and having particular regard to the Tribunal’s analysis at [40] in which it described the deep and serious wounds which BDQ19 had inflicted on his female victim when committing the offence of unlawful wounding; and at [41] in which the Tribunal rejected BDQ19’s claims of having acted in self-defence in respect of that conviction, I am entirely unpersuaded that the two errors of categorisation asserted, assuming both were errors, could have made any difference to the ultimate conclusion the Tribunal reached in respect of BDQ19’s offending conduct.

140    In coming to that view I accept Mr Ciolek’s submission that only the bare possibility that an error of law might affect the Tribunal’s decision need be established in order to establish that the error is jurisdictional error. However, in the specific facts of this case, I am satisfied that Mr Brown is correct to submit that that there is no plausible basis for the Court to conclude that even a bare possibility that the Tribunal might have decided this aspect of its review differently exists.

141    I would dismiss Ground 4.

142    As I have upheld Grounds 2 and 3, I will remit BDQ19’s application to review the Minister’s revocation of his visa for determination according to law by a tribunal differently constituted.

143    I apprehend no reason why costs should not follow the event. I will so order.

Associate:

Dated:    4 October 2019