FEDERAL COURT OF AUSTRALIA

EKC19 v Minister for Home Affairs [2019] FCA 1823

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Minister made on 13 August 2018 to cancel the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) be set aside.

2.    The respondent pay the applicant’s costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

Introduction

1    On 13 August 2018, the respondent (“the Minister”) made a decision under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel the applicant’s Class XB Subclass 204 (Woman at Risk) visa. The applicant has applied for judicial review of that decision under s 476A(1)(c) of the Act.

The Minister’s decision

2    The applicant is a national of South Sudan. He arrived in Australia on 6 April 2005 at the age of 11 as the holder of a Subclass 204 visa.

3    On 9 September 2013, the applicant was convicted in the County Court of Victoria of sexual penetration of a child under 16 years and sentenced to two years in a youth justice centre. As a result of his conviction and sentence, the applicant does not pass the character test as defined in ss 501(6) and (7) of the Act.

4    After his release, the applicant, in March 2015, was convicted for breach of his reporting requirements by failing to report a change of residential address. In October 2015 he was convicted on two further counts of failing to comply with his reporting obligations.

5    On 20 February 2017, the Department of Immigration and Border Protection (“the Department”) notified the applicant that consideration was being given to cancelling his visa under s 501(2) of the Act. The applicant was provided with an opportunity to put submissions to the Department in response to the Department’s notice. On 27 April 2017, Victoria Legal Aid on behalf of the applicant made a submission in response to the Department’s notice. Relevantly, that submission:

(a)    acknowledged that the applicant did not pass the character test on the basis of his conviction and sentence for a charge of sexual penetration of a child under 16 years;

(b)    noted that the applicant had, during a period of parole, failed to report his change of address but that this was due to a period of homelessness after leaving prison; and

(c)    noted that Australia had non-refoulement obligations under the Refugees Convention, the International Covenant on Civil and Political Rights and the Convention against Torture not to refoule a person to a country where they face a real chance of being seriously or significantly harmed and contended that such protection obligations were engaged with respect to the applicant, referring to country information and support.

6    On 16 February 2018 Victoria Legal Aid made a further submission to the Department again addressing Australia’s protection obligations with respect to the applicant.

7    On 31 May 2018 the Department briefed the Minister about the matter. Relevantly the Department’s brief referred to three convictions for failing to comply with reporting obligations. In respect of one of those breaches, the Department stated that it was “a result of [the applicant] experiencing a period of homelessness after leaving prison”.

8    On 13 August 2018, the Minister decided to cancel the applicant’s visa under s 501(2) of the Act. In his reasons, the Minister stated that he found that the applicant did not pass the character test. The Minister then considered whether to exercise his discretion to cancel the applicant’s visa. Under the heading “Protecting the Australian Community”, the Minister referred to the applicant’s criminal conduct and gave consideration to the nature and seriousness of the applicant’s criminal offending, concluding that his conviction for sexual penetration of a child under 16 years was very serious. The Minister also noted that the applicant had been fined for one count of failing to report a change of residential address and two counts of failing to comply with reporting obligations. Under the heading “Risk to the Australian Community”, the Minister gave consideration to whether the applicant poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending and giving consideration to the steps the applicant has undertaken to reform and address his behaviour. The Minister also took into account the applicant’s overall conduct since his offending and his insight into the offending. The Minister said, relevantly:

37.     I acknowledge [the applicant’s] statements of remorse and accept this lessens the risk of his re-offending. However, I also note that [the applicant] has failed to comply with his reporting obligations on three occasions. I find this shows [the applicant] is still lacking insight into the repercussions of his offending which increases the risk of him re-offending.

…

40.     I have noted that during his period of youth parole, [the applicant] was fined for failing to report his change of address as per the requirements of the Sex Offenders Register. I have considered that this breach was a result of [the applicant] experiencing a period of homelessness after leaving prison.

41.     I note with concern that [the applicant] was convicted of two counts of fail comply with reporting obligations in October 2015, for which no explanation has been offered. This demonstrates a disregard for the law that I find concerning as the behaviour was repeated despite [the applicant] knowing there were consequences and I find that this is indicative of his propensity to re-offend.

42.     I acknowledge the conclusion drawn in 2013 by Dr Julie Janev, a forensic psychologist, that [the applicant] had a strong potential for rehabilitation, is classified as a low risk of recidivism, has good insight into his existing diagnoses and motivation to live away from the criminal justice system. I have also considered that Dr Janev concluded that when combining [the applicant’s] score on the Static 2000R tool with his assessment of dynamic risk factors, he was classified as a being at a low risk of sexual recidivism. However, I have also considered Her Honour’s comments during sentencing that she was very concerned about the very high scores obtained by [the applicant] on the intimate interpersonal and sadomasochistic fantasy scales on the sexual deviance assessment tool used. Her Honour found [the applicant] had a low general risk of recidivism, but in her view ‘an unascertainable risk of sexual recidivism’.

43.     I acknowledge [the applicant’s] traumatic childhood, efforts at rehabilitation and his remorse. I consider that his rehabilitation has been tested in the community for a relatively short time and during this period, [the applicant] failed to comply with reporting obligations. I am especially mindful of Her Honour’s comments during sentencing that [the applicant] has an unascertainable risk of sexual recidivism.

44.    I find there is an ongoing likelihood that [the applicant] will re-offend, albeit a low likelihood.

(Errors in original.)

9    Under the heading “International Non-Refoulement Obligations” the Minister said:

51.     [The applicant] has made claims that may give rise to international non-refoulement obligations. I note [the applicant’s] statement that would face hardship arising from his Nuer ethnicity and Christian religion were he to return to South Sudan.

52.     Additionally, I note [the applicant’s] submission that while it is unlikely he is eligible for citizenship of Ethiopia, non-refoulement obligations are also engaged in respect of Ethiopia.

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

54.     A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501 of the Act. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

55.     I have also considered [the applicant’s] claims of harm upon return to South Sudan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from famine and civil war were he to return to South Sudan.

56.     I note that [the applicant] was born in Ethiopia and his father lives there. Further, I have considered that to the best of his knowledge, [the applicant] does not have, nor does it appear he is eligible for Ethiopian citizenship. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations in relation to Ethiopia, [the applicant] would face hardship were he removed to Ethiopia.

(Errors in original.)

10    The Minister concluded:

86.     I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act and (2) all other information available to me, including information provided by, or on behalf of [the applicant].

87.     I reasonably suspect that [the applicant] does not pass the character test and he has not satisfied me that he passes the character test.

88.     [The applicant] has committed a very serious crime, that of sexual penetration of a child under 16 years, which is of a sexual nature, and involved a vulnerable member of the community, that being a minor who was in [the applicant’s] care at the time of the offence. [The applicant] and non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia.

89.     I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm.

90.     I found the above consideration outweighed the countervailing considerations in [the applicant’s] case, including the impact on family members. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community, the consequences of my decision for family members and the substantial hardship [the applicant] will face if he returns to South Sudan.

91.     I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for the majority of his life.

92.     In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

93.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel [the applicant’s] Class XB, Subclass 204 Woman at Risk under s501(2) of the Act.

(Errors in original.)

11    The applicant has alleged three legal errors in the reasoning of the Minister as follows:

1.    The Minister purported exercise of discretion to cancel the applicant's visa was unreasonable and/or was affected by irrationality.

Particulars

(a)     Under the heading "Risk to the Australian Community", the Minister stated at [37]: "I acknowledge [the applicant’s] statements of remorse [for his offence) and accept this lessens the risk of his re-offending. However, I also note that [the applicant] has failed to comply with his reporting obligations on three occasions. I find this shows [the applicant] is still lacking insight into the repercussions of his offending which increases the risk of him reoffending."

(b)     It was unreasonable or irrational to find that the applicant's failure to comply with reporting obligations on three occasions was "lacking insight into the repercussions of his offending", and to take such a finding into account in exercising the discretion under section 501 (2) of the Act.

(c)     First, such a finding a finding is incompatible with the Minister's finding at [40]: "I have noted that during his period of youth parole, [the applicant] was fined for failing to report his change of address as per the requirements of the Sex Offenders Register. I have considered that this breach was the result of [the applicant] experiencing a period of homelessness after leaving prison."

(d)     Secondly, especially in circumstances where the Minister apparently acknowledged the applicant's statements of remorse as genuine, there was no rational connection between a finding that the applicant had failed to comply with reporting obligations on two (or three) occasions and "the repercussions of his offending".

2.     The Minister failed to carry out his statutory task by misunderstanding the Act or its operation in purporting to make his decision.

Particulars

(a)     The applicant claimed that his visa should not be cancelled, because to do so would expose him to removal to South Sudan where he would face a real chance of harm, and would result in the breach of Australia's nonrefoulement obligations.

(b)     The Minister thought it "unnecessary" to consider this matter, because the applicant was "able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application".

(c)     The Minister's decision as affected by three misunderstandings.

i.     Firstly, the Minister incorrectly assumed that the applicant's protection claims would "necessarily" be considered in the event that the Applicant was to make an application for a protection visa.

ii.     Secondly, and further alternatively, the Minister incorrectly assumed that the applicant's protection claims would be considered in the same way if he applied for a protection visa, where the circumstances in which consideration of non-refoulement occurs are different as between the exercise of the discretionary revocation power in section 501 (2) of the Act and the determination of a visa application under section 65 of the Act.

iii.     Thirdly, and further or alternatively, the Minister incorrectly assumed that "the existence or otherwise of non-refoulement obligations would be considered" in the event that the applicant made an application for a protection visa. That is not so, as the criteria for a protection visa under section 36(2) substantially differ from, and do not reflect, Australia's non-refoulement obligations.

3.     Further or alternatively to ground 2, the Minister's purported consideration of "the impediments that [the applicant] will face if he was voluntarily removed from Australia to [South Sudan]" ([73]-[85], [90]): (a) did not involve a consideration of the matter identified above; and (b) in any event, did not involve a real or whole or genuine consideration of the prospect of the claimed human consequences of the applicant returning to South Sudan (including possible death).

(Errors in original.)

Ground 1

12    The applicant submitted that it was unreasonable or irrational for the Minister to find that the applicant’s failure to comply with reporting obligations on three occasions was “lacking insight into the repercussions of his offending” and to take such a finding into account in exercising the discretion under s 501(2) of the Act. It was submitted that such a finding was incompatible with the Minister’s acceptance that one of these offences was a result of the applicant being homeless at the time. It was submitted that it was irrational both to hold that it was a result of being homeless and yet nevertheless use the offence to support an inference that the applicant lacked “insight into the repercussions of his offending”.

13    The Minister submitted that legal irrationality is a demanding standard requiring “extreme” irrationality, citing CQG15 v Minister for Immigration (2016) 253 FCR 496; [2016] FCAFC 146 (“CQG15”) at [60]; DAO16 v Minister for Immigration (2018) 258 FCR 175; [2018] FCAFC 2 (“DAO16”) at [30]. It was submitted that it is not sufficient that individual conclusions are inadequate or that logical or rational or reasonable minds might adopt different reasoning on the same evidence, citing Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]–[131] (Crennan and Bell JJ) (“SZMDS”); Minister for Immigration v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [21] (Allsop CJ); and Minister for Immigration v Sabharwal [2018] FCAFC 160 at [45]. The Minister further contended that although findings or reasoning “along the way” which are illogical or irrational may sometimes establish jurisdictional error, the overarching question is whether the Minister’s decision was affected by jurisdictional error. Consequently the fact that a particular finding is illogical or irrational does not establish jurisdictional error if that finding of fact “was immaterial, or not critical to, the ultimate conclusion or end result” or is “but one of a number of findings that independently may have led to the [Minister’s] ultimate conclusion”: see CQG15 at [60]; DYS16 v Minister for Immigration (2018) 260 FCR 260; [2018] FCAFC 33 at [19]. The Minister submitted that in this case a fair reading of the Minister’s reasons shows that there was no illogicality in the Minister’s reasoning, let alone “extreme” illogicality. It was submitted that the Minister was addressing distinct issues in his reasons at [37], on the one hand, and at [40]–[42] on the other. It was argued that the statement of the Minister at [37] that the applicant failed to comply with his reporting obligations on three occasions was “undoubtedly correct” and therefore the Minister’s reasoning does not exhibit any “extreme” illogicality. Further, it was argued that at [41] the Minister stated that the unexplained October 2015 offending demonstrated a “disregard for the law” (which is a different, more damaging finding than lack of insight) and implicit in the reasons at [40] was that non-compliance caused by homelessness did not cause the Minister to draw the same conclusion about disregard for the law. It was submitted that distinction was appropriately drawn and did not undermine the reasoning on the different issue considered in the reasons at [37].

14    Additionally the Minister argued that even if there was an error in the reasons at [37], that error was not sufficiently material to require that the Minister’s decision be set aside. It was submitted that it was readily apparent from the reasons that the conclusion in [37] formed only a minor part in the Minister’s reasoning and, given the Minister’s other findings, there was no realistic possibility that the Minister could ever have ruled out the possibility of further offending and, in light of the Minister’s findings that the community should not tolerate any risk of harm, and that the risk of harm outweighed all other matters, there was no realistic possibility that the Minister would have reached a different decision.

15    As the Minister correctly accepted, illogical reasoning or irrational findings by a decision maker on the way to a final conclusion may establish jurisdictional error: SZMDS at [132] (Crennan and Bell JJ). However, merely pointing to some illogical reasoning or irrational finding will not of itself suffice to establish jurisdictional error. The error will not be jurisdictional if the error could not have materially affected the decision that was made so as to deprive a person of the possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (“Hossain”) at [30] (Kiefel CJ, Gageler and Keane JJ), [72] (Edelman J). The way in which the reasons are framed is significant in assessing whether or not a particular finding is material to its conclusions: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [73].

16    The finding at [37] was pertinent to the Minister’s reasoning for his view that there is an ongoing likelihood that the applicant will reoffend, albeit a low likelihood. That view was based in part on the Minister’s view that the applicant’s failure to comply with his reporting obligations “on three occasions” showed that the applicant was “still lacking insight into the repercussions of his offending which increases the risk of him reoffending”. The Minister, in forming that view, did not take into account, as he did at [40], that the explanation for one of those occasions was that the applicant experienced a period of homelessness after leaving prison. The Minister plainly regarded the occasion dealt with at [40] as relevant to the formation of his view at [37] that the applicant is still lacking insight into the repercussions of his offending. There is plainly an inconsistency of reasoning between [37] and [40] and I accept the submission for the applicant that there is an illogicality in the Minister’s reasons.

17    However, I do not think that a jurisdictional error has been established. Contrary to the submission for the applicant, this case is distinguishable from Ayache v Minister for Home Affairs [2019] FCA 80. In that case, Murphy J held at [50] that the Tribunal had erred by inferring from the premise that the applicant had been in Australia without a visa for two separate periods that he had a “willingness to behave as he wishes” in circumstances where there was only evidence of one period where the applicant had been in Australia without a visa. His Honour held at [52] that the Tribunal’s reasons suggested that it considered “repeated occurrences” to be significant to its decision and the erroneous finding as to the applicant’s visa history could not be “stripped out” of the decision to salvage its validity. In the present case though, the Minister at [41] expressly did not take into account the occasion in which the applicant breached his reporting requirements because he was homeless at the time and only took into account the other two counts of failure to comply with reporting obligations, for which no explanation had been offered, in forming the view that those two occasions demonstrated “a disregard for the law” which the Minister found “concerning as the behaviour was repeated despite [the applicant] knowing there were consequences” and the Minister found that “this is indicative of his propensity to reoffend”. In the circumstances, it cannot be concluded that the illogicality in the Minister’s reasoning was material, in the sense that there is a realistic possibility that had the Minister not made the error he might have made a different decision.

18    Accordingly ground 1 is not made out.

Ground 3

19    It is convenient to deal with ground 3 before ground 2 because the outcome on ground 2 partly depends on the conclusion formed on ground 3.

20    It is claimed by the applicant that the Minister erred by failing to give genuine consideration to the matters raised by the applicant as to why his visa should not be cancelled. The Minister’s reasons stated that he “considered [the applicant’s] claims of harm upon return to South Sudan outside of the concept of non-refoulement and the international obligations framework”. The Minister stated that he accepted that “regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from famine and civil war were he to return to South Sudan”.

21    In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (“Hands”) at [3], Allsop CJ (with whom Markovic and Steward JJ agreed) emphasised the “importance of the human consequences removal from Australia can bring about”. His Honour said:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

In that case, the Minister decided under s 501CA(4) of the Act not to revoke a cancellation decision. In his reasons, the Minister said that, following removal to New Zealand, the applicant “may experience short term hardship” but found that “over time he would be capable of settling in New Zealand without undue difficulty”. Allsop CJ held at [32] that:

The last sentence in [35] contains a finding of fact that was critical to the assessment. There is nothing in the material that could permit a rational finding that Mr Hands “may experience short term hardship”. To any person reading the material before the Assistant Minister, the only conclusion reasonably open would be that the removal of Mr Hands would in all likelihood be a crushing blow to him and his partner, deeply affecting him, his family and his community. The proposition that there would be short term hardship was unsupported by any material, and utterly at odds with any reasonable reading of the whole of the material.

At [46], Allsop CJ held that the making of the findings, without any material to found them, given their central importance in the reasoning, was a sufficient basis to conclude that there had been jurisdictional error. His Honour further stated the fact this could be said raised doubt that those drafting the reasons and the Minister adopting them had considered the whole human consequences of the decision and thus whether real consideration was given to the totality of the representations. His Honour stated that it was sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation.

22    The obligation on the Minister or his delegate to give meaningful consideration to a representation on harm independently of a claim concerning Australia’s non-refoulement obligations was very recently affirmed by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(i)], [39] and [40]. That obligation requires “an active intellectual engagement with the matters raised … relating to the risk of harm” and the failure to consider may constitute a failure to carry out the statutory task and give rise to jurisdictional error: Omar at [41].

23    The Minister has submitted that reading the reasons as a whole, it is apparent that the Minister did give genuine consideration to the applicant’s claims on this point. It was submitted that the Minister dealt with the applicant’s claims in detail under the heading “Extent of Impediments if Removed”. The Minister made findings about the effect of removal on the applicant’s mental and physical health ([74]–[78]) and from [80] onwards considered matters including the war and famine in South Sudan. At [84] the Minister acknowledged the absence of family support for the applicant in South Sudan, the absence of housing and employment, the economic situation, the ongoing civil war, extensive famine and the applicant’s ongoing trauma and health issues, and found that, if the applicant were to return to South Sudan, he would face substantial hardship. Further, it was submitted, the Minister at [90] expressly weighed that substantial hardship against the risk to the Australian community, which amounted to substantive consideration of the matters raised by the applicant. It was further submitted that the present is a very different case from Hands because here the Minister made a finding that was open on the material. I disagree.

24    Although the Minister stated that he took into account the situation in South Sudan in forming the conclusion that the applicant will face hardship if returned there, merely taking account of the fact of civil war did not engage with the representations made on behalf of the applicant, which were before the Minister, namely that country information indicated that there was targeted violence against the Nuer ethnic community of which the applicant is a member, including killings, abductions, unlawful detentions, deprivation of liberty, rape and sexual violence. The Minister did not engage, in any meaningful way, with the nature and gravity of the possibility that the applicant would be killed because of his ethnic group and the reasons simply do not disclose a genuine consideration of all the claimed consequences of the decision (including death). The “obligation of real consideration” required the Minister to give proper and adequate consideration to all the claims made by the applicant and the failure to do so constituted jurisdictional error as there is plainly a realistic possibility that the Minister’s decision could have been different if he had given proper and meaningful consideration to all the applicant’s claims: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 (“SZMTA”) at [45] (Bell, Gageler and Keane JJ).

25    Accordingly ground 3 succeeds.

Ground 2

26    It is also convenient to deal with the three parts to ground 2 out of order and to start with ground 2(c)(iii).

27    It was accepted by the Minister that the Minister’s reasons were materially identical to the reasons of the Assistant Minister in another case where legal error was found: Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (“Ibrahim”). In Ibrahim, the relevant reasons given by the Assistant Minister included that the Minister considered that it was unnecessary to determine whether non-refoulement obligations were owed in respect of Mr Ibrahim for the purposes of considering whether to cancel Mr Ibrahim’s visa under section 501(2) of the Act, reasoning that he was able to make a valid application for a protection visa in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing that application. In the present case, the Minister similarly considered at [53] that:

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

28    The Full Court in Ibrahim held at [112] that the like reasoning in that case involved a misapprehension that Australia’s non-refoulement obligations under international law would be considered in an application for a protection visa, whereas non-refoulement obligations under international law were not co-extensive with the protection visa criteria. Relevantly, the internal relocation principle in relation to the existence or otherwise of non-refoulement obligations no longer forms part of the consideration of an application for a protection visa under s 36(2)(a) of the Act. The Minister accepted that as this Court is bound by Ibrahim in this proceeding, there was legal error in the Minister’s reasons by the conflation of the criteria for the grant of a protection visa under s 36 of the Act with Australia’s non-refoulement obligations under international law.

29    It was argued for the applicant that the legal error constituted jurisdictional error because the error was material in the sense that there is clearly a “realistic possibility” that, if the Minister had not made the same misunderstanding of the Act in the present case as the Assistant Minister did in Ibrahim, he might have made a different decision: cf SZMTA at [45] (Bell, Gageler and Keane JJ). It was argued that had the Minister correctly understood that non-refoulement obligations would not be considered, and that the protection visa criteria do not reflect Australia’s non-refoulement obligations, he may well have decided to consider whether Australia owes non-refoulement obligations to the applicant. Thus, it was said, it is clearly possible that the Minister would have been persuaded that non-refoulement obligations were owed and that this was a reason not to cancel the applicant’s visa.

30    The Minister argued to the contrary that the error was not shown to be material, and the reasons demonstrate that the Minister accepted the underlying claim that the Applicant would face hardship “arising from famine and civil war” were he to return to South Sudan. Thus, it was said, the possibility of internal relocation was not raised by the Minister as a reason to reject the claim to fear harm on the applicant’s return, so that the difference between international law and statutory criteria could not affect the findings actually made: cf Hossain at [35] (Kiefel CJ, Gageler and Keane JJ). However, it was also conceded for the Minister that if the Court found for the applicant on ground 3, it could not be said that there was no realistic possibility that the Minister might have made a different decision had the Minister not made the same misunderstanding of the Act as the Assistant Minister did in Ibrahim. In view of my conclusion on ground 3, the applicant also succeeds on ground 2(c)(iii).

31    Grounds 2(c)(i) and (ii) raise alternative arguments.

32    Ground 2(c)(i) relies on the decision of the Full Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 (“BCR16”). In that case, the Assistant Minister decided that it was unnecessary to consider whether Australia had protection obligations towards the appellant when deciding not to revoke a visa cancellation decision under s 501CA of the Act on the basis that the appellant was able to apply for a protection visa and any such protection obligations could be assessed at that time. It was held that the Assistant Minister misunderstood the likely course of decision making under the Act by assuming that non-refoulement obligations would necessarily be considered in any later protection visa application, and that such an error was jurisdictional: at [72]. It was argued that the same error applies in the present case even after the issuing of Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (“Direction 75”). That Direction was made on 5 September 2017, after the decision of the Full Court in BCR16. Relevant parts of Direction 75 read:

…

3    Application

This Direction applies to delegates who consider valid applications for Protection visas under section 47 of the Act, and perform functions or exercise powers under section 65 of the Act to grant or refuse to grant Protection visas.

…

4    Preamble

Objectives

...

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

General Guidance

...

2)    In order to effectively protect the Australian community where Protection visa applicants present serious character or security risks, these issues should be considered as early as possible and, where possible, as part of the process for assessing whether the section 36 criteria are met. Decision-makers should assess whether the refugee and complementary protection criteria are met before considering ineligibility grounds.

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

Principles

…

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

Part 2 of Direction No. 75 – Directions

In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.

1.    The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.

2.    Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).

3.    Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision-maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

a)    Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

4.    If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria does not apply to the applicant the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501[.]

5.    The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

33    Two propositions were advanced on behalf of the applicant:

(a)    First, Direction 75 only requires decision makers to consider the protection criteria before any consideration of the “specific ineligibility criteria” in ss 36(1C) and (2C)(b) and before any referral for consideration of possible refusal under s 501 of the Act. Thus, it was said, Direction 75 does not preclude a delegate from refusing a visa under s 65(1)(b) on the basis that the applicant does not satisfy the “national interest” criterion in cl 866.226 of Sch 2 to the Migration Regulations 1994 (Cth) without ever considering or determining the “protection” criteria.

(b)    Second, Direction 75 only binds delegates; it does not bind the Minister where the Minister himself considers such an application, nor the Tribunal on any review application.

34    In GBV18 v Minister for Home Affairs [2019] FCA 1132, Anderson J considered a similar argument to the first proposition advanced in this case. His Honour stated that he was “attracted” to the argument, reasoning at [71] as follows:

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

However, his Honour made reference to a number of cases which, his Honour stated, collectively supported the position that, as a result of the issuing of Direction 75, a decision maker under s 501CA(4) does not commit the first misunderstanding in BCR16 if he or she states that it is not necessary for him or her to consider Australia’s non-refoulement obligations: see [67] and the cases cited. His Honour considered that the clear weight of authority relevant to the review of administrative decisions made after the issuing of Direction 75 favoured the conclusion that the first direction under Direction 75, combined with sufficiently clear and unequivocal assurances regarding the practices of relevant decision makers not covered by Direction 75, was sufficient to overcome the possibility of jurisdictional error based on the first misunderstanding identified in BCR16: at [73] and [182].

35    In this case it was urged for the applicant that the constructional argument based on Direction 75 had not been advanced in the cases referred to by his Honour. However, a review of those cases indicates a consistent approach to the effect of Direction 75, and I am not persuaded that I should depart from those cases, notwithstanding the inelegancy of the language of Direction 75 which, for the reasons given by Anderson J, is not as clear as it could be.

36    The second proposition advanced by the applicant may be accepted but, as Robertson J (with whom Logan J agreed on this point) reasoned in DOB18 v Minister for Home Affairs [2019] FCAFC 63, Direction 75 does bind delegates and the possibility that a later protection visa decision could be made by the Minister personally rather than by a delegate did not reveal error: at [167]; see also Sowa v Minister for Home Affairs [2019] FCAFC 111 at [47]-[48]. The same reasoning applies with respect to the possibility of subsequent merits review by the Tribunal.

37    Ground 2(c)(ii) is based upon the decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279 (“Omar”). The correctness of Omar was put into issue by the Minister in this proceeding and the Court was urged not to follow that decision as a matter of comity. At the time of the hearing the Full Court was reserved on an appeal from Omar. Judgment has since been delivered but the Full Court did not determine the point raised in ground 2(c)(ii): Minister for Home Affairs v Omar [2019] FCAFC 188 at [5]. It is unnecessary to reach a view on the merits of this ground as the applicant has succeeded on grounds (2)(c)(iii) and (3) and a decision on ground 2(c)(ii) is not required in order to determine the application. It is also undesirable to deal with this ground as although the Court has written submissions from both parties in support of their competing arguments, neither party developed their written submissions in oral argument and the Court has not had the benefit of full and proper argument on this ground.

CONCLUSION

38    For the above reasons the decision of the Minister to cancel the applicant’s visa should be set aside.

Associate:    

Dated:    8 November 2019