FEDERAL COURT OF AUSTRALIA

DGI19 v Minister for Home Affairs [2019] FCA 1867

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 13 August 2018 not to revoke the decision to cancel the applicant’s visa be set aside.

2.    The respondent determine the applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3.    Subject to paragraph 4, the respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

4.    If the respondent wishes to seek a variation of the costs order in paragraph 3, he may give notice in writing to the Court and the applicant within seven business days. Directions will then be made for the determination of the issue of costs on the papers.

THE COURT DIRECTS THAT:

5.    Subject to paragraph 4, within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the applicant’s costs. In the absence of any agreement:

(a)    within 21 days, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, who was born in Sierra Leone, arrived in Australia in 2009. His mother had been granted a Refugee and Humanitarian (Class XB) – Woman at Risk (Subclass 204) visa, and he had been granted a like visa as a member of her family unit. The applicant was aged 17 years at the time the visa was granted, and 18 years at the time of his arrival in Australia.

2    On 30 January 2015, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). An application by the applicant for revocation of the cancellation decision was rejected by the Assistant Minister for Immigration and Border Protection on 29 August 2016. However, that decision was set aside by the Court on the basis that the Assistant Minister, in reaching the conclusion that the applicant represented “an unacceptable risk of harm to the Australian community”, had failed to consider a particular, significant aspect of the applicant’s submissions and evidence.

3    Following that decision, the applicant’s lawyers, Holding Redlich, made further submissions in support of the applicant’s application for revocation of the cancellation decision. These submissions also referred to and relied on earlier submissions that had been made by, or on behalf of, the applicant. Prominent among the submissions was that the applicant would suffer serious harm if returned to Sierra Leone and that returning the applicant to Sierra Leone would breach Australia’s non-refoulement obligations under international law. In particular, the applicant stated that his country was at war, his sister had been kidnapped by rebels, his father had been killed by rebels, and he feared he would share the same fate if he was returned.

4    On 13 August 2018, the respondent (the Minister) decided not to revoke the cancellation decision (the non-revocation decision). The Minister stated that he was not satisfied, for the purposes of s 501CA(4), that there was another reason why the cancellation decision should be revoked. Of relevance for present purposes, the Minister stated that he considered it unnecessary to determine whether non-refoulement obligations were owed in respect of the applicant, as he was able to make a valid application for a protection visa.

5    By this proceeding, the applicant seeks judicial review of the non-revocation decision. In his amended originating application dated 12 February 2019, the applicant relies on a single ground, namely that the Minister failed to carry out his statutory task by failing to consider a reason claimed by the applicant as to why the cancellation decision should be revoked. By way of the particulars to that ground, the applicant effectively raises four grounds in support of his application for judicial review (set out in paragraph (d)(i), (ii) and (iii) and paragraph (e) of the particulars). Consistently with the way the case was presented, it will be convenient to refer to these as separate grounds. The four grounds may be summarised as follows:

(a)    First, the Minister misunderstood that the applicant’s claims would “necessarily” be considered in the event that the applicant was to make an application for a protection visa (ground 1).

(b)    Secondly, the Minister incorrectly assumed that the applicant’s 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 quite different as between the exercise of the discretionary revocation power in s 501CA of the Migration Act and the determination of a visa application under s 65 of the Act (ground 2).

(c)    Thirdly, 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 s 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations (ground 3).

(d)    Fourthly, the Minister failed to give genuine consideration to matters raised by the applicant as potential consequences of not revoking the cancellation decision (including that he may die if removed to Sierra Leone) (ground 4).

6    Subsequent to the hearing of this matter, a number of relevant judgments were handed down by the Court. Most relevantly, the following judgments were delivered:

(a)    Omar v Minister for Home Affairs [2019] FCA 729 (Omar (first instance));

(b)    DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18);

(c)    Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (Ibrahim); and

(d)    Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar (FFC)).

7    The parties requested and were given leave to file supplementary submissions on the implications of these decisions. Accordingly, a number of supplementary submissions have been filed since judgment was reserved.

8    In my view, the judgments that have been handed down since the hearing of this matter have resolved many of the issues raised by the application for judicial review. In light of those judgments, and earlier relevant decisions, I have reached the following conclusions:

(a)    Ground 1 is not made out.

(b)    Ground 2 is made out, essentially for the reasons given by the majority in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16), as applied by Mortimer J in Omar (first instance). (It was not necessary for the Full Court in Omar (FFC) to consider this issue.)

(c)    Ground 3 is made out, on the basis of the judgment of the Full Court in Ibrahim.

(d)    Ground 4 is made out, on the basis of the judgment of the Full Court in Omar (FFC).

Key legislative provisions

9    It is convenient to set out the key legislative provisions of present relevance before setting out the facts. Section 501 of the Migration Act relevantly provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10    That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide as follows:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or …

11    Section 501CA provides:

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

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

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

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

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

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

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

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

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

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

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

Background facts

12    The following summary of the background facts is based on the materials in the Application Book.

13    The applicant first arrived in Australia in 2009, aged 18, as a dependent of his mother, who had been granted a Refugee and Humanitarian (Class XB) – Woman at Risk (Subclass 204) visa. The applicant was also granted a Woman at Risk (Subclass 204) visa, as a member of his mother’s family unit.

14    In February 2011, the applicant committed the offence of grievous bodily harm. The circumstances of the offending were summarised as follows by the sentencing judge:

… this offence arose out of a plan that groups of diverse races would fight each other. This behaviour of group animosity and violence towards other racial groups is disgraceful.

You, though, went to this incident armed with a knife, and you produced the knife, and you used the knife. Taking a knife to a fist fight and using it, is intolerable.

It seems that the victim, who was only 13 years of age, entered the fray because of your assaulting another whilst holding the knife. You stabbed the victim in the back. The injury was life-threatening. The stab cut the intercostal artery, causing a massive blood loss. Indeed, without surgical intervention the complainant would have bled to death.

15    The applicant (who pleaded guilty) was convicted in the District Court of Queensland of the offence and sentenced to four years and three months imprisonment.

16    On 30 January 2015, a delegate of the Minister decided to cancel the applicant’s visa under s 501(3A) of the Migration Act (referred to in these reasons as the cancellation decision). This decision was notified to the applicant by a letter of the same date. The letter stated that, while the applicant’s visa had been cancelled and he no longer held a visa, he had the opportunity to request that the cancellation decision be revoked. It was explained that s 501CA(4) of the Migration Act allowed the applicant to make representations about the possible revocation of the cancellation decision on the grounds that: (a) he passed the character test; or (b) there was another reason why the cancellation decision should be revoked. This letter also stated that, if the applicant decided to request revocation, he could write to the Department of Immigration and Border Protection (the Department) “with the reasons why you think the original decision should be revoked” using the attached form. A copy of Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) was also enclosed. It was explained that the Direction identified “issues that are relevant to the revocation consideration” and that the applicant should address each paragraph in Part C of the Direction that was relevant to his circumstances. The letter stated that if the decision-maker (in relation to the decision whether or not to revoke the cancellation) is a delegate of the Minister, the delegate must follow Direction 65, whereas if the Minister makes the decision personally, he or she is not required to give consideration to Direction 65, “though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision”.

17    By letter dated 27 February 2015, Holding Redlich, on behalf of the applicant, provided submissions in support of revocation of the cancellation decision (the February 2015 submissions). On the first page of the letter, Holding Redlich stated:

In brief, [the applicant] is a 23 year old young man who was born in Sierra Leone during the country’s civil war. When he was three years old, his father was murdered and his infant sister was kidnapped by rebels (she has never been found), and his grandfather fled with him to a refugee camp in Guinea. It was there that [the applicant] remained until he was 17 years old, at which time his mother (who had been granted a subclass 204 visa) was able to obtain a visa for him to come to Australia. To describe [the applicant’s] life as ‘difficult’ grossly fails to capture the trauma he has experienced.

18    These matters were reiterated on page 2 of the letter, where the following was stated:

As a young child [the applicant] saw his father killed and his infant sister kidnapped by rebels. At three years old he was taken by his grandfather to a refugee camp in Guinea, and it was there that he lived until 2009 when he was granted a visa as a secondary applicant to his mother’s subclass 204 visa.

19    The applicant completed the request for revocation form and, apparently, submitted it to the Department as an annexure to the February 2015 submissions. In the section headed “Reasons for requesting revocation”, the applicant referred, among other things, to the Ebola crisis in Sierra Leone. It was also stated that full reasons for revocation were set out in Holding Redlich’s attached submissions dated 27 February 2015. In a personal details form, apparently also submitted as an annexure to the February 2015 submissions, in response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the applicant ticked the box for “Yes” and provided the following comments:

Country in War, Ebola Crisis, Sister kidnapped by rebels, Father killed by rebels – in fear I will share the same fate if I am returned or killed by Ebola.

20    The materials that were before the Minister included several letters from the applicant. By an undated letter received by the Department by mail on 24 April 2013, the applicant stated:

Since I was two years old I was with my dad and my young sister in my country[.] When the war start I was eight years old when I saw my dad got kill and my young sister got kill too after my dad and young sister got kill in front me[.] [T]his people that kill my dad kill my uncles my cousin [in front of] me. I was just eight years old so I dont know what wa[s] really going on at that time[.] [T]hey beat my grand dad and rape my grand mum [and] stab me.

…

This are the reason all if I go back to that country I will get kill …

I have lost some of my family like my dad and young sister uncle cousin[.] [A]ll of them was kill in front [of] me [and] that happend When I was eight. Go back to that country now will get kill by this people that kill my dad and sister.

(Errors in original.)

21    By letter dated 4 September 2014, the applicant stated:

My other concerns about my possible return to Sierra-leone is that it is a war zone country not stable at the least. As known upon my application my father was murdered and my younger sister was taken by rebels.

(Errors in original.)

22    By letter dated 12 February 2015, the applicant referred to the seriousness of:

… returning to a country where my Dad was killed killed by rebels and sister kidnapped by rebels and “genocide” is real and the “Ebola” disease [is] going through my hometown “Serria Leone”

(Errors in original.)

He stated that his “chances of survival” were “slim”.

23    The materials that were before the Minister also included a statement from the applicant’s mother. This stated in part:

I … advised of the numerous safety concerns of [the applicant] especially now that Sierra Leone ravaged by the deadly Ebola Virus outbreak which has and still continues to kill thousands of people as the result of the 10 years civil war as such [the applicant] has no contacts or place to stay should he be returned to Sierra Leone and his life would be in danger as a result.

(Errors in original.)

24    On 7 April 2016, Holding Redlich sent a further submission to the Department. This included:

Putting to one side the merits of our client’s application it is apparent that the Government’s non-refoulement obligations are at odds with its powers pursuant to section 501 of the Migration Act, 1958. It is evident that the Government will breach this obligation if it attempts to deport [the applicant] to Sierra Leone, a country which is the subject of civil unrest and health risks of such significance that recently commercial flights in and out of the country were cancelled.

25    As noted above, on 29 August 2016 the Assistant Minister decided not to revoke the cancellation decision. That decision was set aside by this Court, and the matter remitted to the Minister for determination according to law.

26    On 19 October 2017, Holding Redlich provided a further letter on behalf of the applicant. This stated that Holding Redlich referred to, and continued to rely on, the February 2015 submissions. A copy of the earlier letter and annexures were attached to Holding Redlich’s 19 October 2017 letter. The 19 October 2017 letter also referred, among other things, to Freetown having been damaged by landslides, resulting in more than 500 people being killed and 6,000 people being displaced. It was stated that, in the wake of the disaster, the risk of the spread of infectious disease had increased significantly, with urgent intervention being required from international aid to stop the spread of disease. An article regarding the disaster was annexed. Holding Redlich stated:

In this regard we note that the Australian Governments (sic) international non-refoulement obligations prevent persons being returned to countries where they would be at risk of serious harm.

The non-revocation decision

27    As noted above, on 13 August 2018 the Minister decided not to revoke the cancellation decision (referred to in these reasons as the non-revocation decision). The Minister was not satisfied that the applicant passed the character test; nor was he satisfied that there was another reason why the cancellation decision should be revoked. The Minister’s reasons were set out in a statement of reasons dated 13 August 2018.

28    It is unnecessary to refer to the part of the statement of reasons dealing with the character test, as no issue arises as to the Minister’s conclusion in this regard.

29    Having concluded that the applicant did not pass the character test, the Minister considered whether he was satisfied that there was another reason why the cancellation decision should be revoked. The Minister considered the best interests of minor children, concluding that it was in the best interests of the applicant’s son (who is an Australian citizen) that the cancellation decision be revoked. The Minister next considered the expectations of the Australian community. The Minister concluded that, given the serious nature of the offence, which was committed against a child, the Australian community would expect that the applicant should not hold a visa.

30    The next section of the statement of reasons is headed “International non-refoulement obligations”. Given the significance of this section to the issues raised in the proceeding, I set it out in full:

24.    As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if returned to Sierra Leone. The representations indicate that [the applicant] is concerned for his safety in Sierra Leone, both in relation to the spread of the Ebola virus in that country and his fears that he may be killed or harmed by rebels. His legal representatives submit that [the applicant’s] removal to Sierra Leone would breach Australia’s international treaties. It was submitted in April 2016 that due to civil unrest and health concerns, commercial flights in and out of Sierra Leone were cancelled.

25.    Additionally, [the applicant’s] legal representatives state that landslides in August 2017 in Freetown resulted in deaths and displacement, which the government of Sierra Leone does not have the infrastructure to manage. The result is a significantly increased risk of infectious disease in Sierra Leone.

26.    I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

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

28.    In those circumstances, I consider it 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 the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

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

30.    I have also considered [the applicant’s] claims of harm upon return to Sierra Leone 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 his concerns for his safety were he to return to Sierra Leone.

(Emphasis added.)

31    In the above extract the Minister referred to Direction 75. This is a reference to Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75), made by the Minister on 5 September 2017 under s 499 of the Migration Act. It may be inferred that the direction was made in response to the judgment of the Full Court of this Court in BCR16, which was handed down on 13 June 2017. Direction 75 relevantly provides as follows:

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

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

32    Returning to the statement of reasons, the Minister considered the strength, nature and duration of the applicant’s ties to Australia at [31]-[44].

33    The next section of the statement of reasons is headed “Extent of impediments if removed” and comprises [45]-[59]. In the first paragraph of this section, the Minister stated that, in coming to his decision about whether or not he was satisfied that there was another reason why the cancellation decision should be revoked, he had “had regard to the impediments that [the applicant] will face if removed from Australia to his home country of Sierra Leone in establishing himself and maintaining basic living standards”.

34    In this section of the reasons, the Minister stated at [51]:

[The applicant] has advised that his father was killed by rebels in Sierra Leone and his sister kidnapped by rebels. In a letter submitted to the Department on 24 April 2013, [the applicant] states that he witnessed the death of his father, sister, uncle and cousins when he was eight years of age. He states that his grandfather was beaten and his grandmother raped. In addition, he states that he was stabbed. He states that genocide is real there, and Ebola is going through his home town. He believes he will be homeless if removed from Australia, and that his chances of survival in Sierra Leone are slim. Concerns about his safety in Sierra Leone are reiterated by his mother, de facto partner and the Sierra Leone Descendants Association of Queensland Inc.

35    The Minister referred to the submissions regarding the Ebola virus at [52] and the submissions regarding landslides and the risk of infectious disease at [54]. At [58], the Minister stated: “I acknowledge [the applicant’s] fears for his safety in Sierra Leone as a result of infection from Ebola and other infectious diseases”.

36    The Minister considered the protection of the Australian community at [60]-[107]. Overall, the Minister found that there was a likelihood, albeit low, that the applicant would re-offend. The Minister stated that, should he do so with further crimes of violence, the Minister considered that significant physical and/or psychological harm could flow to a member or members of the Australian community: at [107].

37    In the concluding section of the statement of reasons ([108]-[117]) the Minister summarised his earlier conclusions. The Minister stated, at [116], that he concluded that the applicant “represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child, as a primary consideration, and any other considerations as described above”. The Minister stated that these included (among other things) “his claims regarding international non-refoulement obligations”. Accordingly, the Minister was not satisfied that there was another reason why the cancellation decision should be revoked: at [117].

The application for judicial review

38    The applicant’s grounds of review have been set out above. I will deal with each in turn.

Ground 1

39    By this ground, the applicant contends that the Minister misunderstood that the applicant’s claims would “necessarily” be considered in the event that the applicant was to make an application for a protection visa.

40    The applicant’s contention depends largely on a particular construction of Direction 75. The applicant submits that it does not follow from Direction 75 that non-refoulement obligations would necessarily be considered in the event of a delegate considering a future visa application by the applicant. The applicant emphasises that the first direction in Direction 75 (set out at [31] above) states that the decision-maker must first assess the applicant’s refugee and complementary protection claims before considering “any character or security concerns”. The applicant points out that there are numerous other criteria for a protection visa (such as health criteria and national interest considerations) not referred to here. The applicant submits that, while Direction 75 requires decision-makers to consider an applicant’s refugee and complementary protection claims before considering any character or security concerns, it does not require consideration of refugee and complementary protection claims before other criteria such as health criteria and national interest considerations. Accordingly, the applicant submits that Direction 75 does not necessarily require consideration of an applicant’s refugee and complementary protection claims. For these reasons, the applicant submits that the Minister misunderstood the Migration Act or its operation in making his decision.

41    In my view, these submissions should not be accepted. First, I consider the correct construction of the first direction in Direction 75 to be that an applicant’s refugee and complementary protection claims must be considered. This flows from the use of the word “first” in the first direction in Direction 75 (see [31] above). It is supported by the context in which Direction 75 was introduced, namely in response to the decision of the Full Court in BCR16.

42    Secondly, contrary to the applicant’s submissions, the Minister did not state that the applicant’s claims would “necessarily” be considered in the event that he were to make an application for a protection visa. Rather, the Minister stated that it was “highly likely” that any protection visa application would be considered by a delegate, and that, in such a case, non-refoulement obligations would be considered in the course of processing the application. The Minister also referred, at [29], to the possibility that the Minister, rather than a delegate, may consider any protection visa application, in which case, it was possible (albeit unlikely) that the policy approach set out in Direction 75 may not be followed.

43    Thirdly, insofar as the Minister referred to the Department’s practice in processing visa applications, as reinforced by Direction 75, I consider that the Minister was not asserting any conclusion of law about the process applicable to any protection visa application the applicant might make; the Minister was, instead, setting out propositions of fact about the process: Sowa v Minister for Home Affairs [2019] FCAFC 111 at [47] per Jagot, Bromwich and Thawley JJ; see also (in the context of a decision under s 501BA of the Migration Act) DOB18 at [165] per Robertson J (with whom Logan J generally agreed). The Minister’s statements regarding the manner in which any future protection visa application would be considered did not, therefore, evince an incorrect understanding of the law.

44    For these reasons, this ground is not made out.

Ground 2

45    By ground 2, the applicant contends that the Minister incorrectly assumed that the applicant’s 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 quite different as between the exercise of the discretionary revocation power in s 501CA of the Migration Act and the determination of a visa application under s 65 of the Act. This ground relies on the judgment of the majority in BCR16, as applied by Mortimer J in Omar (first instance). Consistently with the way this ground was presented, I will consider this ground independently of the matters raised in relation to ground 3.

BCR16

46    In BCR16, the appellant’s visa had been cancelled pursuant to s 501(3A) of the Migration Act. The appellant applied to the Minister for revocation of the cancellation of the visa. In the appellant’s submissions seeking revocation, he referred to being a member of a “minority religious sect currently facing severe persecution”: BCR16 at [9]. However, the appellant did not refer to Australia’s non-refoulement obligations in terms: BCR16 at [11]. The Assistant Minister decided not to revoke the cancellation of the visa. At first instance, an application for judicial review of that decision was dismissed. On appeal, a majority (Bromberg and Mortimer JJ; Davies J dissenting) allowed the appeal and set aside the Assistant Minister’s decision on the basis of jurisdictional error.

47    The critical passage in the Assistant Minister’s statement of reasons is set out at [16] of the judgment of the majority. The Assistant Minister stated:

[The appellant] has made claims that may give rise to international non-refoulement obligations. However [the appellant] is able to make a valid application for another visa. In particular I note that [the appellant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of this decision.

48    The appellant in BCR16 submitted that the Assistant Minister had made two misunderstandings of the law (see BCR16 at [66]):

(a)    the first alleged misunderstanding was that non-refoulement obligations would necessarily be considered in the event that the appellant was to make an application for a protection visa, when this was not the case; and

(b)    the second was that the Minister considered that the subject of the appellant’s representation could, in their entirety, be met by the availability to the appellant, on application, of a protection visa, when this was not the case.

49    The majority accepted that the appellant had made out each of those misunderstandings: at [67], [68] and [70].

50    The majority considered that the error could be characterised as either a denial of procedural fairness or as a failure to carry out the task required under s 501CA(4): at [62]-[65]. The majority referred to Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 (Goundar) at [54], where Robertson J stated that the “satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law”, citing Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 (Wei) at [33] and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ.

51    In the course of their core reasoning, the majority stated at [48]-[49]:

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

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

(Emphasis added.)

A similar point was made by the majority at [73].

52    Special leave to appeal to the High Court from the judgment in BCR16 was refused. Subsequently, in Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523, a Full Court of this Court rejected a submission by the Minister that BCR16 was plainly wrong and should not be followed.

Omar (first instance)

53    Omar (first instance) concerned a cancellation of a visa under s 501(3A) and a decision not to revoke the cancellation pursuant to s 501CA(4). The key parts of the Assistant Minister’s reasoning that were said to involve error were as follows (Omar at [18]):

20.    I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s. 499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

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

54    The applicant in Omar contended that the Assistant Minister had failed to carry out his statutory task, because he failed to engage with representations made by the applicant about “another reason” put forward by the applicant as to why the cancellation decision should be revoked. The applicant contended that the Assistant Minister had failed to do so, on the basis of two alleged misunderstandings of the Migration Act (see Omar at [27]-[28]):

(a)    as to the first misunderstanding, the applicant contended that, contrary to the Assistant Minister’s approach, the application of Direction 75 to any decision-making process under s 65 when a protection visa application is made “is not a substitute for consideration of non-refoulement under section 501CA”; and

(b)    as to the second misunderstanding, the applicant contended that the Assistant Minister was wrong to assume (as the applicant submitted he did) that the question whether Australia had non-refoulement obligations to the applicant would be considered in the course of processing any protection visa application lodged by the applicant; the applicant contended that the scope of Australia’s non-refoulement obligations is different from what is now the “protection criterion” in s 36(2)(a) of the Migration Act, and that any delegate assessing a protection visa application would only be looking at the latter, not the former.

55    Mortimer J concluded that the applicant’s ground of review should be upheld on the basis of the first misunderstanding alleged by the applicant: Omar at [34]. In reaching this conclusion, Mortimer J relied on (among other things) the nature and content of the submissions made to the Assistant Minister on behalf of the applicant and how the Assistant Minister dealt with those submissions: Omar at [34]. Her Honour set out the detailed submissions put to the Assistant Minister and then observed that the submissions “raised fear of harm in Somalia on the basis of the characteristics of [the applicant’s] ethnicity, imputed political opinion, and his disabilities and impairments, or a combination of those characteristics”: Omar at [36].

56    Mortimer J accepted the applicant’s contention (based on BCR16 at [48]-[52], [73] and [94]) regarding the “different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared to their role as, in effect, incidents of one criterion (the ‘protection criterion’) in the requirements for the grant of a protection visa”: Omar at [43]; see also [44]-[45]. Her Honour held that the Assistant Minister did not appreciate “the very different task conferred on him by s 501CA(4)”, and that “the task of considering whether there was ‘another reason’ to revoke the visa cancellation required consideration of all other ‘reasons’ put forward in the representations made by the applicant’s representatives (or at least, all those seriously and substantively advanced)”: Omar at [46].

57    Mortimer J considered Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) and Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene). Her Honour considered that they could be distinguished as the argument presented in those cases was different: Omar at [70], [74] and [75]. Further, the main point was that BCR16 was binding on her as a single judge: Omar at [74].

58    In relation to the second alleged misunderstanding, Mortimer J did not consider this to be appropriately described as a separate, or independent, jurisdictional error, in the sense of a misunderstanding that led to a failure of the Assistant Minister to perform the statutory task in s 501CA(4): Omar at [78]. In her Honour’s view, it was, in substance, another illustration of why active consideration of whether or not Australia had non-refoulement obligations to a person such as the applicant, as he claimed in his representations, needed to occur as part of the exercise of the power in s 501CA(4): Omar at [78].

59    In dismissing an appeal from the judgment at first instance, the Full Court did not need to consider the aspect of the judgment at first instance that is of present relevance, namely the acceptance of the applicant’s contention regarding the different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared with their role as, in effect, incidents of one criterion (the ‘protection criterion’) in the requirements for the grant of a protection visa.

60    The Minister submits in his supplementary submissions relating to Omar (first instance) that the case was wrongly decided and should not be followed. I am, however, bound by this decision unless I consider it to be plainly wrong, and I do not consider that to be the case. It reflects the reasoning of the majority in BCR16, in particular the passage at [48]-[49] of that judgment.

Other decisions

61    There are a number of other decisions of single judges of the Court that may, on one view, be considered to be inconsistent with the applicant’s submissions in relation to this ground. I refer, in particular, to Ali at [26]-[34]; Greene at [19]; and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 at [39]-[41]. However, it does not appear that any comparable submissions were made in those cases. In contrast, essentially the same submissions were made, and accepted, in Omar (first instance). It is therefore appropriate, as a matter of precedent, to follow Omar (first instance) in relation to this ground.

62    In DOB18, in the context of a decision under s 501BA, a similar argument to that presented by the applicant in relation to this ground was rejected: DOB18 at [63]-[65] per Logan J, at [193] per Robertson J. In the course of considering this ground, Robertson J referred to BCR16 and Omar (first instance). Robertson J stated that both cases concerned a decision under s 501CA(4) “where different considerations may arise stemming from the place of representations by the visa applicant under that section, and that the discretion to revoke arises, on the common alternative where passing the character test is not in issue, where the Minister is satisfied that there is ‘another reason why the original decision should be revoked’”: DOB18 at [190]. In light of the distinction between the powers in ss 501BA and 501CA identified by Robertson J, I do not consider this aspect of the reasoning in DOB18 to stand in the way of acceptance of the applicant’s contentions on this ground.

63    A further case to which reference should be made is GBV18 v Minister for Home Affairs [2019] FCA 1132 (GBV18). Unlike the decisions discussed above, the proceeding involved an application for judicial review of a decision of the Administrative Appeals Tribunal (rather than the Minister or an Assistant Minister). The decision of the Tribunal was to affirm a decision of a delegate pursuant to s 501CA(4) not to revoke the cancellation of the applicant’s visa under s 501(3A). In addition to the difference in the identity of the decision-maker, the facts of GBV18 differ from the cases discussed above in that the Tribunal did consider the merits of the applicant’s claims based on Australia’s non-refoulement obligations: GBV18 at [3], [28], [108] and [179].

64    In the course of his decision, Anderson J helpfully reviewed the authorities concerning s 501CA(4), in particular the cases relating to the consideration of non-refoulement obligations: GBV18 at [54]-[89].

65    One of the contentions in GBV18 was that the Tribunal had mistakenly assumed that any claims based on Australia’s non-refoulement obligations would be considered in the same manner in the event that the applicant applied for a protection visa: GBV18 at [171]. Anderson J accepted that it would be a mistake for a decision-maker to equate the manner in which non-refoulement obligations were to be considered in making a decision under s 501CA(4) with the consideration of such obligations in determining whether to grant a protection visa under s 65, but considered that the reasons of the Tribunal did not evidence such a mistake: GBV18 at [177]-[178].

Consideration

66    In my view, on the basis of the reasons of the majority in BCR16 at [48]-[49], as applied in Omar (first instance), the applicant’s ground is made out. For the reasons given by the majority in BCR16, there is a qualitative difference in the role that non-refoulement obligations may play in the context of the exercise of the discretionary power in s 501CA and in the context of an application for a protection visa under s 65. It follows that, if and to the extent that the Minister proceeded on the basis that non-refoulement obligations would be considered in the same way, he proceeded on the basis of a misunderstanding as to the operation of the Migration Act. In my view, in the present case, the Minister did proceed on the basis of such a misunderstanding. It is implicit in his reasons for not considering non-refoulement obligations (see [30] above) that he understood that such obligations would be considered in the same way in the context of an application for a protection visa. In this respect the Minister’s statement of reasons is materially the same as the statement of reasons in Omar (first instance).

67    I note the Minister’s submission that the circumstances of Omar (first instance) can be distinguished from the circumstances of the present case. The Minister submits that in Omar (first instance), Mr Omar’s representatives made detailed submissions that expressly represented that Mr Omar was owed non-refoulement obligations. The Minister submits that in the present case the applicant did not make any serious and substantive representation that he was owed non-refoulement obligations. I do not accept this submission. The applicant’s representatives expressly referred to Australia’s non-refoulement obligations in submissions to the Department: see [24] and [26] above.

68    The misunderstanding as to the operation of the Migration Act was material and constitutes a jurisdictional error because there is the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion.

Ground 3

69    By ground 3, the applicant contends that 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. The applicant submits that this is not so, as the criteria for a protection visa under s 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations. The applicant’s submissions in relation to this ground are substantially the same as the submissions advanced by the appellant in Ibrahim in relation to ground 3, which was upheld by the Full Court. I therefore refer to the judgment of the Full Court in some detail.

70    Ibrahim concerned a decision under s 501BA(2) of the Migration Act. The background circumstances are set out at [2]-[10] of the judgment of the Full Court (White, Perry and Charlesworth JJ). It is sufficient to note that the Assistant Minister cancelled the appellant’s visa because he was satisfied that the appellant did not satisfy the character test and because he considered that the cancellation was in the national interest.

71    The Assistant Minister’s statement of reasons included a section regarding Australia’s non-refoulement obligations. The Assistant Minister noted submissions that the appellant faced a risk of harm from violence if returned to Nigeria and a submission of the appellant’s then solicitor that these circumstances warranted an International Treaties Obligation Assessment. The Assistant Minister stated:

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

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

99.    I have also considered Mr IBRAHIM’s claims of harm upon return to Nigeria outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr IBRAHIM’s claims are such as to engage non-refoulement obligations, Mr IBRAHIM may face hardship arising from his Christian faith were he to return to Nigeria.

72    The Full Court considered three grounds. Ground 1 (which was upheld) is not relevant for present purposes. By ground 2 of the appeal, the appellant submitted that the Assistant Minister had not understood that consideration of non-refoulement obligations in the context of a protection visa application would likely be of no benefit to him because an application by him for a protection visa was likely to fail for independent reasons, namely his inability (or possible inability) to satisfy Public Interest Criteria 4001 and/or s 36(1C) of the Migration Act: Ibrahim at [65]. In the Full Court’s view, it was implicit in the Assistant Minister’s reasons that he appreciated that the appellant may be refused a protection visa, even if found to satisfy the protection criteria, because of the “ineligibility criteria”: Ibrahim at [85]. The Full Court therefore rejected ground 2: Ibrahim at [86].

73    The appellant in Ibrahim required leave to pursue ground 3. By this proposed ground, the appellant contended that the Assistant Minister had not understood, when reasoning that Australia’s non-refoulement obligations in respect of the appellant would be addressed in the context of an application for a protection visa, that the content of the former differ in material respects from the criteria in s 36 of the Migration Act, these being the criteria that would be considered on an application for a protection visa: Ibrahim at [88]. The Full Court granted the appellant leave to argue ground 3 and upheld this ground: Ibrahim at [117].

74    The Full Court set out the submissions of the parties at [89]-[99]. In the course of doing so, the Full Court referred to the amendments to s 36 of the Migration Act effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment). The Full Court referred to the appellant’s counsel’s submission that, before the 2014 Amendment, the criterion in s 36(2)(a) of the Migration Act had largely “picked up” the definition of “refugee” in Art 1A(2) of the Refugees Convention. The Full Court set out s 36(2)(a) and (aa) before the 2014 Amendment, and s 36(2)(a) as it has stood since the 2014 Amendment. The Full Court noted that counsel for the appellant submitted, and counsel for the Minister did not dispute, that the criteria under ss 5H and 5J of the Migration Act are narrower than those under the Refugees Convention: Ibrahim at [95]. Reference was made, in counsel for the appellant’s submissions, to the “internal relocation principle”: see Ibrahim at [95]. The Full Court noted the submission by counsel for the Minister that the Assistant Minister should be understood as having used the term “non-refoulement obligations” and its cognates “within the context of the statutory framework” applying since the 2014 Amendment: Ibrahim at [99].

75    The Full Court held, in summary, that the Assistant Minister had fallen into error by conflating Australia’s non-refoulement obligations under the Refugees Convention with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa. Given the significance of this judgment for present purposes, I set out the Full Court’s reasoning in full:

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

Article 33

PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

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

…

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

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

(Citation omitted)

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

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

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

(i)    the Refugees Convention; or

(ii)    the Covenant; or

(iii)    the Convention Against Torture; and

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

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

104    Before the 2014 Amendment, the term “non-refoulement obligations” was often used interchangeably with the term the “protection obligations” contained in s 36(2)(a) of the Act. That usage has continued after the commencement of the 2014 Amendment. See, for example, Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 (MIBP v Le) at [41], Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148. However, the issue now before the Court had not been raised in these cases.

105    In MIBP v Le, Ayoub and COT15, it was held that the existence or otherwise of non-refoulement obligations was not a mandatory relevant consideration in decisions under s 501(2).

106    In our opinion, a number of matters support the conclusion that the Assistant Minister did conflate Australia’s non-refoulement obligations under the Refugees Convention with the protection obligations to which the Act refers and which are considered on an application for a protection visa. First, there is the very use by the Assistant Minister of the term “non-refoulement obligations” which, as indicated, derives from the Refugees Convention. The Assistant Minister used that term and not the term “protection obligations” appearing in s 36(2)(a) of the Act. It is reasonable to infer that, in doing so, the Assistant Minister was intending to deal with the appellant’s submission concerning Australia’s obligations under international law in the terms in which it had been expressed.

107    Secondly, the Assistant Minister gave as his reason for holding that it was unnecessary for him to consider whether non-refoulement obligations were owed the fact that the appellant was able to apply for a Protection visa. That is strongly suggestive of a belief on the Assistant Minister’s part that non-refoulement obligations under the Refugees Convention are the same as protection obligations under s 36(2)(a).

108    Thirdly, the Assistant Minister’s reference in [98] to the manner in which protection applications are assessed confirms his conflation of the two obligations. This is apparent in the Assistant Minister’s expression of confidence in the last sentence of [98] that the appellant would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

109    Fourthly, the Assistant Minister’s reference in [99] to his consideration of the appellant’s position “outside of the concept of non-refoulement and the international obligations framework” indicates a belief by the Assistant Minister that he had addressed the issues of non-refoulement and the international obligations framework in the preceding two paragraphs.

110    Finally, it is pertinent that, despite the difference between non-refoulement obligations under the Refugees Convention, on the one hand, and protection obligations under s 36(2)(a), on the other, the Assistant Minister did not advert to those differences.

111    In our view, when the Assistant Minister’s reasons are read fairly and with regard to the surrounding context, it is apparent that he used the term “non-refoulement obligations” in [97] of his reasons as a form of shorthand reference to both non-refoulement obligations arising under international law and to protection obligations arising under s 36 of the Act. His statement that “the existence or otherwise of non-refoulement obligations would be considered in the course of processing the [Protection visa] application” is a strong indication of this.

112    For these reasons, we consider that the Assistant Minister did proceed on the misapprehension for which the appellant contends, namely, that both non-refoulement obligations under the Refugees Convention as well as protection obligations under s 36(2)(a) would necessarily be considered in the context of an application by the appellant for a Protection visa.

113    The Assistant Minister’s belief involved misapprehension of the effect of the Act because, on an application for a Protection visa, it is only the criteria in s 36 which are to be considered. Section 65 has the effect that a Protection visa is to be granted if the Minister is satisfied of those criteria and refused if they are not. The internal relocation principle in relation to the existence or otherwise of non-refoulement obligations cannot form part of that consideration, at least in the application of s 36(2)(a).

114    For the reasons given earlier, it was necessary for the Assistant Minister to have a correct understanding of the Act when forming the state of satisfaction required by s 501BA(2). That is so, even if the existence or otherwise of non-refoulement obligations in respect of the appellant was not a mandatory relevant consideration under s 501BA(2) (MIBP v Le at 41]). It is understandable, given that it is a matter concerning Australia’s international obligations and the terms of s 197C of the Act, that the Assistant Minister did consider it appropriate that account be taken of Australia’s obligations with respect to non-refoulement. As already noted, his reasons indicate that he intended to do so. However, the Assistant Minister misapprehended the way in which that could occur under the Act.

115    The Assistant Minister’s error was material given the potential for the internal relocation principle to be applied in the appellant’s circumstances.

116    Accordingly, we conclude that the Assistant’s Minister’s error was jurisdictional. It was the form of error to which the majority in BCR16 referred at [72].

76    In the present case, as in Ibrahim, the applicant’s submissions relied expressly on Australia’s international non-refoulement obligations.

77    The relevant part of the Minister’s reasons in the present case (see [30] above) was in substantially the same terms as the Assistant Minister’s reasons in Ibrahim (see [71] above). In particular:

(a)    in the present case (as in Ibrahim), the Minister stated that he considered it unnecessary to determine whether non-refoulement obligations are owed in respect of the applicant for the purposes of the present decision, as the applicant was able to make a valid application for a protection visa;

(b)    in the present case, the Minister stated that in the (highly likely) case that such an application is considered by a delegate, “non-refoulement obligations would be considered in the course of processing the application”. Similarly, in Ibrahim, the Assistant Minister stated that “the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application”.

78    Although Ibrahim concerned an exercise of power under s 501BA rather than s 501CA(4), the reasoning of the Full Court in upholding ground 3 is, in my view, equally applicable in the present case. The Full Court at [106]-[110] set out five matters that supported the conclusion that the Assistant Minister had conflated Australia’s non-refoulement obligations under the Refugees Convention with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa. In my view, each of these matters is true of the Minister’s statement of reasons in the present case. They support the proposition that the Minister conflated Australia’s non-refoulement obligations under international treaties (not just the Refugees Convention) with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa. The five matters are:

(a)    The very use by the Minister of the term “non-refoulement obligations”. The Minister used that term and not the term “protection obligations” appearing in s 36(2)(a) and (aa) of the Migration Act.

(b)    The Minister gave as his reason for holding that it was unnecessary for him to consider whether non-refoulement obligations were owed, the fact that the applicant was able to apply for a protection visa. That is strongly suggestive of a belief on the Minister’s part that non-refoulement obligations are the same as protection obligations under s 36(2)(a).

(c)    The Minister’s reference at [26] of the statement of reasons as to the manner in which protection applications are assessed confirms his conflation of the two obligations.

(d)    The Minister’s reference at [30] of the statement of reasons to his consideration of the applicant’s position “outside of the concept of non-refoulement and the international obligations framework” indicates a belief by the Minister that he had addressed the issues of non-refoulement and the international obligations framework in the preceding four paragraphs.

(e)    Finally, it is pertinent that, despite the differences between non-refoulement obligations, on the one hand, and protection obligations under s 36(2), on the other, the Minister did not advert to those differences.

79    In my view, when the Minister’s reasons in the present case are read fairly and with regard to the surrounding context, it is apparent that he used the term “non-refoulement obligations” in [28] of his statement of reasons as a form of shorthand reference to both non-refoulement obligations arising under international law and to protection obligations arising under s 36 of the Migration Act. His statement that “non-refoulement obligations would be considered” by a delegate in the course of processing a protection visa application is a strong indication of this. Accordingly, the Minister did proceed on the basis of the misunderstanding alleged by the applicant. The Minister’s belief involved a misapprehension as to the effect of the Migration Act.

80    It was necessary for the Minister to have a correct understanding of the Migration Act when forming the state of satisfaction referred to in s 501CA(4): BCR16 at [63]-[65]; Goundar at [54]; Wei at [33]. The misunderstanding as to the operation of the Migration Act was material and constitutes a jurisdictional error because there is the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion.

81    In the Minister’s first set of written submissions (filed before the decision of the Full Court in Ibrahim), the Minister submitted, first, that there was no reason why the nature of non-refoulement obligations considered for the purposes of s 501CA(4) must necessarily differ from the nature of such obligations considered for the purposes of s 36(2) and, secondly, that the Minister’s consideration of the issue of non-refoulement obligations substantially accorded with the terms of Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65). Direction 65 at [14.1] states that Australia has non-refoulement obligations under the Refugees Convention, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The paragraph also states that the Migration Act “reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act”. In light of Ibrahim, I do not accept these submissions. The first submission is inconsistent with Ibrahim. For the reasons set out above, there is a distinction between Australia’s international non-refoulement obligations and the criteria for a protection visa under s 36(2), and the Minister conflated the two. In relation to the second submission, even if the Minister’s approach accorded with Direction 65, this does not assist the Minister in relation to the present issue. The passage from Direction 65 relied on by the Minister does not negate the proposition that the Minister conflated Australia’s international non-refoulement obligations with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa. Indeed, on one view, [14.1] of Direction 65 also conflates the two.

82    In his written submissions filed after the Full Court’s decision in Ibrahim, the Minister “formally submits” that the Full Court in Ibrahim erred in finding that the Assistant Minister had conflated Australia’s non-refoulement obligations under international law with the protection obligation criteria in s 36(2) of the Migration Act, and that the misunderstanding gave rise to jurisdictional error affecting the exercise of power by the Assistant Minister under s 501BA. Of course, as a single judge, I am bound by the decision of the Full Court.

83    The Minister next submits that, in any event, there are two ways in which the circumstances in Ibrahim are distinguishable. First, it is submitted that the exercise of power under s 501BA is non-delegable (see s 501BA(4)) and, unlike s 501CA(4), is not the subject of any explication in Direction 65. However, I do not consider these matters to be relevant bases for distinction. The fact that s 501BA is a non-delegable power did not figure in the essential reasoning of the Full Court in Ibrahim. While s 501CA is the subject of explication in Direction 65, that direction does not bind the Minister. Further, as discussed in [81] above, even if the Minister’s approach accorded with Direction 65, this does not assist the Minister in relation to the present issue.

84    Secondly, the Minister submits that: the factual circumstances of this matter are distinct from those in Ibrahim; in that case, international relocation principles could have potentially had a bearing on the existence of non-refoulement obligations owed at international law to the appellant; those principles would not, however, affect an assessment of the appellant’s ability to satisfy the protection obligation criteria in s 36(2) of the Migration Act; on that basis the Full Court held that conflation of Australia’s non-refoulement obligations at international law with the protection obligation criteria in s 36(2) was material to the outcome of the Assistant Minister’s decision: Ibrahim at [115]. Here, on the other hand, the Minister submits, no issue of internal relocation would or could properly arise on the basis of the applicant’s representations; any purported conflation by the Minister (which is denied) was not material and did not give rise to jurisdictional error: see Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [28]-[31]; Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [45]-[46]. In my view, these matters do not provide a basis for distinguishing Ibrahim. First, as stated at [80] above, the misunderstanding as to the operation of the Migration Act was material and constitutes a jurisdictional error because there is the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion. Secondly, it is not incumbent on an applicant proleptically to deal with the possibility of relocation. Thus, there was and is potential for the application of the principle in this case. Thirdly, Parliament’s decision not to reflect the “internal relocation principle” in the visa criterion in s 36(2)(a) is not the only respect in which there is a substantial divergence between the content of Australia’s non-refoulement obligations and the protection visa criteria. Another example is Parliament’s decision to require an applicant to satisfy the decision-maker that a person has a specific “intention” to cause him or her certain kinds of harm in order to satisfy the visa criterion in s 36(2)(aa): see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [4]-[5].

85    For these reasons, ground 3 is made out.

Ground 4

86    By ground 4, the applicant contends that the Minister failed to give genuine consideration to matters raised by the applicant as potential consequences of not revoking the cancellation decision (including that he may die if removed to Sierra Leone). This ground is substantially the same as the respondent’s ground of contention that was upheld by the Full Court in Omar (FFC).

87    In Omar (FFC), the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) set out the key issues at [3]. Issue (e) was as follows:

Did the primary judge err, as contended by the respondent, in not holding that the Assistant Minister had made a jurisdictional error by failing to consider the matters (including factual matters) raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations.

88    The Full Court upheld this ground of contention, making it unnecessary to consider the other issues raised by the appeal. The Full Court set out the relevant principles at [34]-[41]. In brief summary, the Full Court held that, in the context of a decision under s 501CA whether or not to revoke the mandatory cancellation of a visa, the Minister is required to consider significant and clearly expressed representations made in support of a revocation request, and the discharge of this obligation requires the Minister to engage in an active intellectual process with reference to such representations: see, in particular, [34](i), [36](d), [37] and [40]. Further, the Full Court stated at [39]:

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J).

89    The Full Court considered that the Assistant Minister’s failure to consider, in the relevant legal sense, significant matters raised clearly by the respondent’s representations constituted a failure to conform with the Migration Act or, to put it another way, to carry out the relevant statutory function according to law: at [45], referring to Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [75] per Colvin J.

90    Applying those principles in the present case, in my view the Minister failed to discharge his duty to consider significant and clearly expressed representations in support of the revocation request, in the sense that his statement of reasons indicates that he did not engage in an active intellectual process with reference to such representations. The relevant representations have been set out at [17]-[26] above. These included that: the country was at war; the applicant’s father had been killed by rebels and his sister had been kidnapped by rebels; and the applicant feared that he would share the same fate if he was returned to Sierra Leone. The representations also referred repeatedly to the danger posed by the deadly Ebola disease, which had killed thousands of people.

91    The applicant’s representations were referred to in two sections of the Minister’s statement of reasons, namely the sections headed “International non-refoulement obligations” and “Extent of impediments if removed”. These sections have been set out or summarised earlier in these reasons. While the Minister did note the relevant representations (eg at [24] of the statement of reasons), he did not make any specific findings in relation to them.

92    It is true that, at [30] of the statement of reasons, the Minister stated “I have also considered [the applicant’s] claims of harm upon return to Sierra Leone outside of the concept of non-refoulement and the international obligations framework”, and in the next sentence, the Minister stated:

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 his concerns for his safety were he to return to Sierra Leone.

However, in circumstances where the applicant claimed that the country was at war, rebels had murdered his father and kidnapped his sister, and the applicant feared the same fate if he was returned to Sierra Leone, to describe this merely as “hardship” is, in my respectful opinion, to fail to confront the human consequences of the decision: see Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at [3] per Allsop CJ (with whom Markovic and Steward JJ agreed), quoted with approval by the Full Court in Omar (FFC) at [37]. Thus, I would not characterise the Minister’s statement at [30] as a specific finding in relation to the applicant’s representations because it did not engage in any detail with the particular, serious representations that the applicant had made.

93    The Minister also referred to the relevant representations at [51] of the statement of reasons. But, again, the Minister did not make any specific findings about the representations. Similarly, at [58], the Minister referred to the representations in relation to the Ebola disease but did not make any findings.

94    In the present case, as in Omar (FFC), giving meaningful consideration to the applicant’s key representations required more than simply acknowledging or noting that the representations had been made; the Minister was required to make specific findings of fact in relation to the key representations.

95    In his supplementary submissions following Omar (FFC), the Minister submits that, in making the non-revocation decision, the Minister did not misapply the principles under consideration in Omar (FFC). It is submitted that, for the reasons set out in the Minister’s previous oral and written submissions, the Minister considered, in the requisite legal sense, the risk of harm faced by the applicant in Sierra Leone. The Minister submits that, given what was “clearly expressed” and “significant” in the materials before the Minister (see Omar (FFC) at [34](g)-(h) and [37]), it cannot be said that the Minister failed to take into account the applicant’s risk of harm in Sierra Leone and to weigh that matter in the balance in exercising the discretionary power in s 501CA. In oral submissions at the hearing, the Minister relied heavily on the section of the statement of reasons under the heading “Extent of impediments if removed” ([45]-[59] of the statement of reasons). However, this section merely recited or acknowledged the applicant’s key representations without making any specific findings about them: see, in particular, [51] and [58]. In a footnote to the Minister’s supplementary submissions, he refers to a number of factual distinctions between the claims that were the subject of Omar (FFC) and the applicant’s representations in the present case. In my view, the differences between the representations in the two cases do not provide a basis to distinguish Omar (FFC). The applicant’s key representations (summarised in [90] above) were significant and clearly expressed, and related to the risk of harm.

96    In my view, considering the statement of reasons as a whole, and consistently with the principles discussed in Omar (FFC), the Minister failed to engage in an active intellectual exercise with reference to the applicant’s key representations. The Minister’s error was material and gives rise to jurisdictional error because there is the possibility that if the Minister had truly engaged in an active intellectual process with the representations, he may have come to a different conclusion: see Omar (FFC) at [46].

97    For these reasons, I conclude that ground 4 is made out.

Conclusion

98    For these reasons, the application for judicial review is to be allowed. I will make orders that the non-revocation decision be set aside, and that the Minister determine the application for revocation of the cancellation decision pursuant to s 501CA of the Migration Act according to law. In relation to costs, it appears to be appropriate to order that the Minister pay the applicant’s costs of the proceeding. I will make an order to this effect, but will allow a short period of time for the Minister to indicate if he wishes to seek a variation of the costs order, in which case directions will be made for the filing of submissions, with the issue to be determined on the papers.

Associate:

Dated:    14 November 2019