FEDERAL COURT OF AUSTRALIA

FBW18 v Minister for Home Affairs [2019] FCA 1878

ORDERS

THE COURT ORDERS THAT:

1.    Time be extended to the applicant to file the amended Originating application for review of a migration decision dated 4 March 2019 (Application).

2.    The Application be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The applicant seeks an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (the Act) within which to bring a proceeding to review a decision (the migration decision) made personally by the respondent, the Minister for Home Affairs (the Minister), under s 501CA(4) of the Act not to revoke a decision under s 501(3A) of the Act (the original decision) to cancel the applicant’s Class XB Subclass 202 Global Special Humanitarian visa.

2    The applicant was given written notice of the migration decision by letter dated 15 August 2018. Section 477A(1) of the Act provides that an application to the Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Act must be made to the Court within 35 days of the date of the decision. The applicant’s solicitor attempted to file an application for review of the decision (the judicial review application or, simply, the application) on the last day of the prescribed period (being 19 September 2018). However, he lodged the application in the Court’s Registry outside the time prescribed by r 2.25 of the Federal Court Rules 2011 (Cth) for filing documents (i.e. after 4.30 pm) with the consequence that, if accepted for filing, the application would be taken to have been filed on the next business day—that is, outside the time prescribed by s 477A(1) of the Act. The Registry rejected the lodgement for this reason. The applicant’s solicitor was informed of this fact on 24 September 2018. On 25 September 2018, he made a written application to the Court to extend time.     

3    The Minister accepts that the delay is “not especially long” and that he would not suffer prejudice if time were to be extended. He submits, however, that there has been no satisfactory explanation for the delay and that, more importantly, the applicant has not demonstrated sufficient merit in his draft judicial review application to warrant time being extended.

4    In light of this opposition, I have heard full argument on the merits of the proposed judicial review application. This has enabled me to determine the application to extend time, and the judicial review application itself on the basis of the arguments advanced in support of the application to extend time, without the need for, potentially, two hearings.

5    There are three preliminary matters which I should record.

6    The first is that when this matter was called on for hearing, the applicant sought an adjournment on the basis that there were pending appeals to the Full Court in relation to cases involving the exercise of power under s 501CA(4) of the Act or a cognate power, where the Minister had reasoned that, for the purpose of making his decision, it was not necessary for him to consider whether non-refoulement obligations were owed to the applicant in question because the existence or otherwise of those obligations would be fully considered should the applicant in question apply for a protection visa. The application for an adjournment was opposed by the Minister. I was not persuaded that an adjournment was warranted. However, when refusing the adjournment application, I said that I would consider whether the Court’s judgment should await the determination of those appeals.

7    The appeals in question have now been determined: DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) (18 April 2019); Sowa v Minister for Home Affairs [2019] FCAFC 111 (Sowa) (28 June 2019).

8    The second preliminary matter is that three days after hearing the present application, Mortimer J gave judgment in Omar v Minister for Home Affairs [2019] FCA 279 (Omar), which is also of potential relevance to the present case. On 28 March 2019, an appeal from Mortimer J’s judgment was filed, and subsequently listed for hearing on 2 September 2019.

9    After the Full Court gave judgment in Sowa, I informed the parties that I would give them the opportunity to make further submissions in writing. At that time, I also raised the potential relevance of the appeal in Omar and invited the parties to express a view as to whether their further submissions (and, consequently, my judgment) should await the hearing and determination of that appeal.

10    In the course of correspondence between my Associate and the parties on this subject, the Minister expressed the view that the decision in Omar is not relevant. At the time, the applicant, through his legal advisers, did not feel able to express a view, but was content to await the giving of judgment in that appeal.

11    Having regard to my then appreciation of the potential significance of the appeal in Omar, and noting that the Minister’s position was that Omar was not relevant to the present case, I decided that I would not await the hearing and determination of the appeal before inviting further submissions from the parties, and thus gain a greater appreciation of the parties’ respective positions.

12    The applicant filed further written submissions (by different counsel) on 8 August 2019 (the submissions were dated 7 August 2019). The Minister filed further written submissions on 22 August 2019. Although given the opportunity to do so, the applicant did not file any submissions in reply to the Minister’s submissions. The appeal in Omar was dismissed on 29 October 2019: Minister for Home Affairs v Omar [2019] FCAFC 188.

13    The third preliminary matter is that, in the course of his opening, the applicant also sought leave to rely on an amended judicial review application. I said that I would grant leave to the applicant to enable that to be done. The amendments are relatively minor. However, as the Minister opposed the inclusion of certain additional relief in the amended application, I informed the parties that I would grant leave on the basis that, if time were to be extended and the amended judicial review application determined in favour of the applicant, I would allow the parties the opportunity to advance further submissions on the question of the relief that should then be granted.

Background

14    The applicant is aged 23 years and is a national of Sudan. He has resided in Australia under a humanitarian visa since 19 May 2009.

15    On 30 March 2016, he pleaded guilty to and was convicted of four counts of aggravated sexual intercourse with a person aged between 14 and 16 years. He was sentenced in the District Court of New South Wales to an aggregate of four years imprisonment, with a non-parole period of two years.

16    Following his conviction, the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act because he failed to pass the character test stipulated in s 501(6) and was serving a full-time sentence of imprisonment in a custodial institution because he had committed an offence or offences against Australian law.

17    When a mandatory cancellation decision of this type is made, the Minister is required to provide the person the subject of the cancellation with written notice and particulars of the decision, and invite the person to make representations to the Minister about revocation of the decision: s 501CA(3) of the Act. The Minister may then revoke the decision if satisfied that the person does pass the character test or if there is “another reason” why the cancellation decision should be revoked: s 501CA(4).

18    The applicant made representations to the Minister about revocation of the decision. As part of those representations, he wrote:

I know I’d be at risk of being forced into a rebels (sic) faction militia as the country is unstable & a conflict zone. As I left the country when I was nine yrs of age, I have no friend or family & more important in a place such as this, I have no knowledge of any of the customs & social obligations that if are not adhered to could mean beatings or even death. I fear for my safety if returned to Sudan and request asylum.

…

19    The Minister personally considered the applicant’s representations. As I explain below, he addressed the applicant’s claimed fear of harm should he be returned to Sudan. In doing so, the Minister reasoned that it was not necessary for him to determine whether non-refoulement obligations were owed to the applicant.

20    The Minister was not satisfied that the applicant passed the character test. He was not satisfied that there was “another reason” why the original decision should be revoked. Having reached those conclusions, the Minister determined that the revocation power was not enlivened and declined to revoke the cancellation decision.

21    As the Minister’s decision was made personally, it is not one from which the applicant can appeal to the Administrative Appeals Tribunal (AAT).

The application to extend time

22    The application to extend time to bring the judicial review application is supported by an affidavit made by the applicant’s solicitor, Fardin Nikjoo, affirmed 25 September 2018. Mr Nikjoo has deposed that, following a conference with the applicant on 19 September 2018, he received instructions at 12.43 pm to file the application. At 3.51 pm on that day, he received an email from counsel appearing for the applicant, attaching the proposed application. Mr Nikjoo lodged the application for filing at 5.29 pm, approximately one hour after the “cut-off” time for filing.

23    The adherence to time limits in litigation is extremely important. It is trite that a failure to adhere to those limits can significantly affect the existence of rights that a litigant might otherwise have. Ignorance of the Court’s rules is no real excuse for a legal practitioner. Ignorance on the part of a litigant in person might be more understandable, depending on the circumstances.

24    Without diminishing the importance of adhering to time limits, the delay in the present case is minimal and, as I have said, the Minister accepts that he would not suffer prejudice if time were to be extended.

25    Both parties accept that, in the present case, the merits of the application for judicial review are the dominant consideration. I am persuaded that the judicial review application raises some issues of substance that warrant time being extended.

Relevant case law

26    Before considering the grounds of review advanced by the applicant, it is convenient to summarise the state of the case law which provides the framework for that consideration.

BCR16 v Minister for Immigration and Border Protection

27    The starting point is the Full Court’s decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16). In that case, when purporting to make a determination under s 501CA(4), the Assistant Minister reasoned that, even though the appellant in that case had made claims that may have given rise to international non-refoulement obligations (there was no express claim in that regard), it was not necessary for her to determine those claims because the appellant could apply for a protection visa, in the course of which process the claims would be considered. The majority (Bromberg and Mortimer JJ) held that the Assistant Minister had erred in assuming that non-refoulement obligations would necessarily be considered as part of a protection visa application by the appellant. Such an application could be refused on a number of grounds (for example, character grounds) without active consideration being given to the (then) protection criteria under ss 36(2)(a) and 36(2)(aa) of the Act. For this reason, the Assistant Minister’s decision was affected by jurisdictional error.

28    In apparent response to this aspect of the decision in BCR16, the Minister gave a direction (Direction 75) under s 499 of the Act. Direction 75 is binding on decision-makers (other than the Minister). It provides that, in considering the elements of a protection visa application for applicants who raise character or security concerns, the decision-maker must first assess the applicant’s refugee claims with reference to s 36(2)(a) of the Act, and complementary protection claims with reference to s 36(2)(aa) of the Act, before considering those character or security concerns.

29    In BCR16, the majority also accepted a submission that the circumstances in which non-refoulement obligations fall to be considered under s 501CA(4) are different from the circumstances in which the power to grant a visa under s 65 is exercised:

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.

DOB18 v Minister for Home Affairs

30    In DOB18, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act after the applicant was convicted of an indictable offence and sentenced to imprisonment for a term of two years and eight months. A delegate of the Minister declined to revoke the cancellation under s 501CA(4) of the Act. The non-revocation decision was reviewed by the AAT, which set aside the delegate’s decision and ordered that the visa cancellation be revoked. Some 15 months later, the Minister exercised the discretionary power under s 501BA(2) of the Act to set aside the AAT’s decision, and thereupon cancelled the applicant’s visa on the basis that cancellation was in the national interest.

31    The Minister was required by s 501G of the Act to provide reasons for his decision. In those reasons, he noted the applicant’s claim that he would face harm if returned to his home country because of his stated homosexuality. The applicant said that his life would be in danger. The applicant had, at one time, held a temporary protection visa, because of this feared risk of harm. However, this visa had been replaced and was not the visa which the Minister, in the event, cancelled.

32    The Minister noted that the applicant would not be prevented from applying for a protection visa should his current visa be cancelled. The Minister reasoned that it was not necessary for him to determine whether non-refoulement obligations were owed to the applicant because, if the applicant were to apply for a protection visa, the existence or otherwise of those obligations would be fully considered in the course of the application, having regard to Direction 75.

33    Importantly, the Minister also considered the applicant’s claim to fear harm “outside the concept of non-refoulement and the international obligations framework” and found that the applicant would face hardship arising from his stated homosexuality were he to be returned to his home country. The Minister nevertheless considered that the applicant’s visa should be cancelled in the national interest.

34    The applicant sought judicial review of the Minister’s cancellation decision. The application was dismissed by the primary judge (Griffiths J). In the course of his reasons (DOB18 v Minister for Home Affairs [2018] FCA 1523), Griffiths J noted that Direction 75 did not bind the Minister. Even so, he accepted the Minister’s submission that the fact that the Minister was not so bound had no material consequence in the proceeding.

35    In this connection, his Honour found that the Minister’s statement that “non-refoulement obligations would be fully considered” was an unequivocal representation that could have implications for procedural fairness requirements in the event that it was not honoured in the future, including where the Minister himself might consider whether a protection visa should be granted to the applicant. His Honour did not think that the Minister was obliged to take the matter any further than he did in his reasons, having regard to the particular stage of decision-making with which the Minister was engaged:

31    ... The Minister was explaining why he had exercised his power under s 501BA, which is necessarily an earlier stage in a potentially broader decision-making process which might see the applicant lodge another application for a protection visa as he would be entitled to do having regard to s 501E(2) of the Act. If the applicant makes a valid visa application as defined in s 46 of the Act, the Minister (or a delegate) is statutorily obliged to either grant or refuse the visa under s 65. If it transpires that the applicant makes a valid application and it is refused by the Minister personally and the Minister fails to have due regard to Australia’s non-refoulement obligations, the applicant will be entitled to challenge that decision by way of judicial review (as to which see, by way of analogy, NKWF v Minister for Immigration and Border Protection [2018] FCA 409 and AQM18 v Minister for Immigration and Border Protection [2018] FCA 944). As matters stand at present, however, I do not accept the applicant’s submission that the Minister’s statement of reasons in respect of his decision under s 501BA displays jurisdictional error as alleged by ground 1.

36    Griffiths J also considered the implications of Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) which was applied in Greene v Assistant Minister for Home Affairs [2018] FCA 919 at [19] (Greene) and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 at [41] (Turay). Each decision involved a challenge to decisions under s 501CA(4) not to revoke a mandatory visa cancellation decision. His Honour regarded these decisions as relevant to the process of decision-making under s 501BA(2) of the Act.

37    Adopting the reasoning in Ali, Griffiths J said that the decision-making process under s 501CA(4) requires satisfaction to be formed as to whether there is “another reason” why the original (cancellation) decision should be revoked, not whether the applicant satisfies the criteria for the grant of a visa under s 36(2) of the Act. If, in the future, the applicant were to apply for a visa (including a protection visa) which came to be decided by the Minister, the Minister would need to make a number of choices—but these were not choices that impacted on the exercise of power under s 501CA(4). The power under s 501CA(4) must be exercised having regard to the facts and circumstances existing at the time the power is exercised.

38    Griffiths J concluded that the reasoning in Ali (as followed in Greene and Turay) was “plainly correct”. As to that reasoning, his Honour said:

35        ... In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making, such as that presented by the Minister’s decision here under s 501BA.

39    Griffiths J also considered a challenge to the Minister’s statement that, in the course of processing a protection visa application, the question whether non-refoulement obligations were owed to the applicant would be “fully” considered. The applicant’s argument was that there was a real and substantial risk that any application by him for a protection visa would fail because of certain ineligibility criteria and the need for the decision-maker to be satisfied that the grant of the visa would be in the national interest. The applicant argued that the legal effect of ss 197C and 198 was that he would be removed from Australia if he were to be refused a visa (there being no indication that the Minister would grant him a detention visa under s 195A of the Act or make a residence determination under s 197AB). His Honour rejected this challenge for reasons similar to those he expressed for rejecting the other challenge to which I have referred.

40    On appeal, Robertson J (at [169]) concluded that, when expressing the view that non-refoulement obligations in respect of the (then) appellant would be fully considered in the course of processing a protection visa application (should one be made), the Minister was not setting out a legal proposition; he was only looking to what would be, in fact, the future course of decision-making in respect of the appellant. Therefore, in order to succeed, the appellant would need to have shown (but had not shown) that it was likely that the Minister himself would make the decision on the visa application (as opposed to one of his delegates) and that, as a matter of fact, he (the Minister) would not consider protection-specific criteria before proceeding to consider other criteria for the grant of the visa.

41    Robertson J also emphasised that, in exercising the power under s 501BA(2), the Minister was not refusing to take into account the appellant’s claim of harm. To the contrary, the Minister expressed his satisfaction that, whether or not the appellant’s claims were such as to engage Australia’s non-refoulement obligations, the appellant would face hardship arising from his stated homosexuality were he to return to his home country. Robertson J said that, had he not addressed this claim, the Minister may well have failed to complete his statutory task, and thereby fallen into jurisdictional error:

185      In circumstances where the decision maker has assessed the prospect that the person in question is likely to apply for a protection visa and there is no impediment to that person doing so, that assumption not being the subject of any dispute in the present appeal, I do not regard the references to non-refoulement obligations as demonstrating an incorrect understanding of the law. In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.

186    In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found the by the Minister in the present case need not be considered in making a decision under s 501BA(2).

42    Robertson J then turned to consider a number of other cases, one of which was the first instance decision in Omar.

43    In Omar, the applicant had been convicted of indictable offences and imprisoned. The applicant was warned that consideration would be given to cancelling his visa should he be convicted of further crimes or engage in other conduct that came within the scope of s 501(6) of the Act. The applicant re-offended and was imprisoned. His visa was mandatorily cancelled under s 501(3A) of the Act.

44    The applicant made representations to the Minister as to why the cancellation of his visa should be revoked, but an Assistant Minister declined to revoke the cancellation. As in other cases, such as Ali and those which followed it, the Assistant Minister did not consider it necessary to determine whether non-refoulement obligations were owed to the applicant because, once again, that question would be determined in the course of processing a protection visa application. That said, the Assistant Minister did purport to consider the risk of harm to the applicant should he be returned to Somalia, finding that, if returned to Somalia, the applicant would face significant difficulties given his various complex health issues, medication requirements, his fears due to the treatment of mentally ill persons in Somalia, and the absence of any support network and appropriate medical care for him. Nonetheless, the Assistant Minister concluded that these matters did not outweigh the protection of the Australian community and that there was not “another reason” why the original decision under s 501(3A) to cancel the applicant’s visa should be revoked.

45    Mortimer J found that the Assistant Minister had failed to carry out his statutory task having regard to the nature and content of the submissions which the applicant had made. Her Honour accepted the applicant’s submission that the Assistant Minister could not simply “hive off” a consideration of Australia’s non-refoulement obligations to the applicant to an (as yet) non-existent protection visa process:

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

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

46    I am satisfied, on the basis of his reasons, 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). The Assistant Minister was not authorised to simply carve out aspects of the representations made and particular “reasons” advanced, and decline to deal with them. That was not a lawful performance of his statutory task: see BCR16 at [63] and [94]. …

46    Her Honour also said:

50    In this proceeding, unlike BCR16 (see the majority reasons at [72]), the applicant, through his representatives’ submissions, specifically identified Australia’s non-refoulement obligations as “another reason” the visa cancellation should be revoked. Some time was spent in the submissions developing why this was an important issue in the consideration of revocation in the applicant’s case. Thus, this application squarely raises an issue not raised in BCR16, but to which in my opinion the majority’s reasons in that case are nevertheless still applicable.

47    In reaching her conclusion, Mortimer J distinguished Ali because the grounds of review in that case “were very much concerned with that aspect of BCR16 to which Direction 75 was directed”: see at [69]. Her Honour said:

79    The pronouncement of Direction 75 does not alter the conclusions I have reached. That Direction operates only once a valid protection visa application has been lodged. It is wholly concerned with providing guidance to delegates who consider valid protection visa applications, and perform functions or exercise powers to grant or refuse such applications.

80    The decision of the Assistant Minister, which is subject to judicial review by this Court, was not a decision about whether or not to grant the applicant a protection visa. It was a decision about the exercise of the discretionary power conferred by s 501CA(4). A repository of that power cannot avoid the task imposed by the statute by referring to another, presently hypothetical, decision-making process and what may occur during that process, in particular where – as I have endeavoured to demonstrate in these reasons – quite a different assessment would in any event occur pursuant to that process.

48    In the appeal in DOB18, Robertson J noted that, in Omar, the nature and content of submissions made to the Minister on behalf of the applicant was one of the matters which contributed to Mortimer J’s conclusion. His Honour also noted that, in DOB18, the Minister had separately considered the applicant’s claim of harm outside the notion of non-refoulement and Australia’s international protection obligations. He said:

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

49     At [38], Logan J expressed general agreement with Robertson J’s reasons.

50    Rares J dissented, finding that the Minister had failed to consider a relevant consideration. His Honour said that the most up to date information before the Minister, when he exercised his power under s 501BA(2), was the Tribunal’s finding that the applicant was owed protection obligations that engaged Australia’s non-refoulement obligations. Rares J said that, instead of considering this information, the Minister ignored it and erroneously said that it was not necessary for him to determine whether those obligations were owed in respect of the applicant. His Honour said:

28        The question in respect of whether Australia has international law obligations in respect of a non-citizen and, if it does, whether it will abide by them or decline to give them effect, quintessentially requires consideration of the national interest. The criterion of the national interest cannot be compartmentalised to exclude some questions of national interest, such as Australia’s international law obligations in respect of a visa holder in the position of the appellant, when the Minister exercises a personal power that requires him to be satisfied that cancellation of the person’s visa “is in the national interest”, as opposed to some part of that interest: Graham 347 ALR at 363-364 [57].

Sowa v Minister for Home Affairs

51    In Sowa, the applicant’s visa was mandatorily cancelled under s 501(3A) following his conviction on several indictable offences, involving lengthy sentences of imprisonment. The applicant made representations in support of his request that the visa cancellation be revoked. As relevant to the grounds of review before the primary judge (Griffiths J), those reasons included a claim that he would face harm if returned to his home country (Sierra Leone) due to the unstable and violent political environment there. He said that his father had been brutally killed at the hands of political rivals and that other family members were involved in human rights and political activities. He said this caused him to fear that his family had many enemies in Sierra Leone who would seek to harm him if he were to return there. A statutory declaration from his mother supported his claims that he would be in danger if he returned.

52    The Assistant Minister considered it unnecessary to determine whether non-refoulement obligations were owed to the applicant because the existence of such obligations could be determined in the course of processing a protection visa application, should the applicant make such an application. Nonetheless, as in DOB18, the Assistant Minister considered the applicant’s claims of harm “outside the concept of non-refoulement and the international obligations framework”. The expression of this part of the Assistant Minister’s reasons is very similar to the expression of the Minister’s reasons, on the same subject, in the present case. The Assistant Minister declined to revoke the cancellation, and the applicant sought judicial review. As I have noted, the grounds of judicial review that were raised in Sowa reflect, substantially, the grounds of review raised in the present case.

53    Griffiths J dismissed the application for judicial review. In doing so, his Honour followed the reasoning in Ali, which had been adopted in Greene and Turay and which had, by this time, also been adopted in DOB18 (by his Honour at first instance) and in BKS18 v Minister for Home Affairs [2018] FCA 1731 at [118] (BKS18). In this connection, Griffiths J noted that the sequence of decision-making under the Act is critical: see at [26] – [32].

54    On appeal, the appellant argued that his Honour erred, in effect, by not adopting Mortimer J’s reasoning in Omar. The Full Court rejected that contention. Their Honours reasoned that the outcome in Omar depended on the terms of the representations that had been put to the Minister. The Full Court concluded that, in the case before it, the representations made by the applicant were not analogous. The Full Court said:

43        The outcome in Omar, accordingly, depended on the terms of the representations which had been put to the Minister. Contrary to the appellant’s submissions, the representations in the present case are not analogous to those that are the subject of consideration in Omar. It is clear from BCR16 at [60] and [72] that there is a difference between claiming to fear harm if required to return to a place and non-refoulement obligations. In the present case, the representations by the appellant make no reference at all to non-refoulement obligations. The representations at AB 73 to 74 are about the appellant’s fear of harm if required to return to Sierra Leone. In contrast to the position in Omar, there is no reference in the representations to Australia’s practice of not returning a person to a place if non-refoulement obligations are owed and there is the potential consequence of indefinite detention. The representation is about a fear of harm if required to return to Sierra Leone, which the Assistant Minister expressly considered in his reasons. As the Minister submitted, the Minister is not required to consider a reason in favour of revocation not in fact put by the appellant: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [79(3)] and [80]. In the present case, nothing was put about non-refoulement obligations and the potential consequences of those obligations for the appellant.

55    The Full Court also said:

46        The submissions for the appellant attempt to re-cast the representations made in the present case into representations of the kind made in Omar. That attempt must fail. In contrast to Omar, it cannot be concluded that the Assistant Minister failed in any way to consider the representations as put. As a result it is unnecessary to consider the Minister’s alternative submission that Omar was wrongly decided.

56    Further, the Full Court said:

47        Nor can it be concluded that the Assistant Minister erred in his reasoning in any of the respects for which the appellant contended. As in DOB18, the Assistant Minister was not asserting any conclusion of law about the process applicable to any protection visa application Mr Sowa might make. The Assistant Minister was setting out propositions of fact about the process. The Assistant Minister said it was highly likely that any such application would be considered by a delegate who would be bound by Direction 75. Further, the Assistant Minister said the Minister considering any application personally (so that Direction 75 would not apply) was a “possibility” but it was unlikely in that event that the Minister would depart from the policy approach set out in Direction 75, that is, to consider whether the refugee and complementary protection criteria are met before considering ineligibility criteria. As in DOB18, the appellant has not discharged his onus of proving these factual predictions to be incorrect or otherwise irrational or unreasonable.

Minister for Home Affairs v Omar

57    On appeal from Mortimer J (whose reasons are referred to above at [43] – [47]), the Full Court (at [3]) noted a number of key issues as potentially arising. These included whether Mortimer J erred in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application by the respondent. Another potential issue was whether (as contended by the respondent, Mr Omar) the primary judge erred 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. As events transpired, the Full Court determined the appeal on the basis of the latter issue alone. This meant that the other issues (including the first noted above) did not fall for consideration.

58    In the result, the Full Court found that the Assistant Minister had failed to give meaningful consideration to the representations that had been made as to the risk of harm that might befall Mr Omar if he were to return to Somalia. The Full Court held (at [45] – [46]) that, as a consequence, the Assistant Minister failed to carry out his statutory duty according to law. This gave rise to a jurisdictional error because there was a possibility that if the Assistant Minister had truly engaged in an active intellectual process with the significant matters put forward on the likelihood of harm, he may have come to a different conclusion on the issue of revocation.

59    Having regard to the way in which the appeal was decided, and the way in which the present case has been advanced, no occasion arises for the parties to revisit the further submissions they have made (see [12] above) on the relevance of Omar to the present case.

Summary of principles

60    The following principles emerge from this summary of the cases:

(a)    The nature and content of the representations made to the Minister pursuant to s 501CA(3)(b) of the Act are important in order to determine whether the applicant has raised non-refoulement and Australia’s international protection obligations as a reason why, under s 501CA(4) of the Act, the Minister should revoke the visa cancellation decision made with respect to the applicant.

(b)    Where the applicant has raised non-refoulement and Australia’s international protection obligations as a reason why the Minister should revoke the visa cancellation decision, it is incumbent on the Minister to consider and take into account those representations when exercising the statutory power under s 501CA(4), otherwise the Minister will not have undertaken the proper exercise of that power, and jurisdictional error will result.

(c)    However, in exercising the statutory power under s 501CA(4), it is not a jurisdictional error for the Minister to reason that the question of whether non-refoulement obligations are owed to the applicant will be determined by a delegate of the Minister in the process of the applicant making a valid protection visa application or are likely to be determined by the Minister himself or herself on such an application, and for the Minister to decline, for that reason, to determine the question of non-refoulement at the time the decision under s 501CA(4) is made.

(d)    Where the Minister declines to reach a decision on an applicant’s claim to be owed non-refoulement obligations in the circumstances referred to in (c), there will be no jurisdictional error if the Minister nonetheless considers and takes into account the factual basis said to engage those non-refoulement obligations (without reaching a decision on that particular question) when considering, under s 501CA(4), whether “another reason” exists for revoking the cancellation decision.

61    In expressing the propositions in (c) and (d) above, I acknowledge that there is tension between the reasoning of the majority in DOB18 and Mortimer J’s reasoning in Omar. Even though DOB18 involved a different section of the Act, I should follow the reasoning of the majority in that case which, in substance, endorsed the reasoning in Ali (and the other cases at first instance which have followed Ali).

The grounds of the judicial review application

62    The applicant’s amended application for judicial review contains a number of headings under the general heading “Grounds of application”. However, a number of these headings do not identify what could properly be called “grounds” of judicial review. Many of them are just headings identifying subject matter considered by the Minister when making his decision.

63    One heading is:

Ground 1: The Minister either misapplied the relevant law, failed to give genuine consideration to the applicant’s claims, or the Minister’s decision lacked evident and intelligent justification when deciding not to revoke the applicant’s humanitarian visa.

64    Of course, the Minister’s decision was not a decision “not to revoke the applicant’s humanitarian visa”. It was a decision not to revoke an original decision to cancel the applicant’s visa. Leaving that infelicity to one side, counsel who appeared for the applicant at the hearing of the application explained Ground 1 as a “suite of arguments”.

65    Thus, the allegation that the Minister misapplied the relevant law was said to be informed by another heading:

Jurisdictional error 1: The international non-refoulement obligations

66    As the applicant’s case was developed in opening, this ground is directed to the manner in which the Minister treated Australia’s international non-refoulement obligations when considering whether, for the purposes of s 501CA(4)(b)(ii) of the Act, there was “another reason” why the original decision should be revoked.

67    The draft application for review also contains two headings, expressed as follows:

Jurisdictional error 2: The strength, nature and duration of the applicant’s ties to Australia if returned to Sudan

Jurisdictional error 3: The extent of impediments faced by the applicant if removed from Australia to Sudan

68    These two headings were explained as informing the allegations in Ground 1 that the Minister failed to give genuine consideration to the applicant’s claims and that the Minister’s decision lacked an evident and intelligent justification.

69    Therefore, as explained, the amended judicial review application raises three asserted jurisdictional errors attending the Minister’s decision not to revoke the cancellation of the applicant’s visa.

Jurisdictional Error 1

The Minister’s reasons

70    As part of his representations seeking revocation of the original decision to cancel his visa, the applicant raised his fear of harm should he be returned to Sudan. The Minister considered this claim in two broad ways.

71    The first way in which he considered the claim was with respect to the concept of non-refoulement and Australia’s international protection obligations. The Minister considered it unnecessary to determine whether the applicant was owed non-refoulement obligations. This was because the applicant was able to apply for a protection visa. The Minister considered that, if the applicant were to make such an application, it would be highly likely that the application would be determined by one of his delegates. If so, the delegate would be obliged to follow Direction 75 issued under s 499 of the Act. The Minister was satisfied that, in these circumstances, the question of whether Australia owed the applicant non-refoulement obligations would be considered in the course of processing any such application.

72    The Minister also recognised that he might personally consider such an application, in which event he would not be bound by Direction 75 and might not necessarily determine whether Australia owed non-refoulement obligations to the applicant. However, he said:

… 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.

73    The second broad way in which the Minister considered the applicant’s claim was “outside the framework of Australia’s international protection obligations”. So considered, the Minister accepted that, if returned to Sudan, the applicant would “face hardship arising from war and instability”.

The applicant’s case

74    The applicant’s submissions, advanced orally at the hearing, were difficult to follow, to say the least. His written submissions were no easier to follow. However, as I understand them, the substance of the applicant’s submissions, presented at the hearing (both orally and in writing), were as follows.

75    The applicant submitted that it is unlikely that a future protection visa application by him will not be decided on character grounds, with the consequence that it is unlikely that the Minister or his delegate will consider whether Australia owes non-refoulement obligations to him. Therefore, according to the applicant, the Minister’s assumption that Australia’s non-refoulement obligations to him would be considered as part of any application he might make for a protection visa is wrong in fact and law. The applicant submitted that, in fact, the Minister should have assumed that, in the applicant’s case, it is unlikely that non-refoulement obligations would be considered ahead of character considerations.

76    In support of this submission, the applicant relied on the Full Court’s decision in BCR16, particularly on the majority reasons at [44], [48] – [49], [52], [60], and [67] – [69]. However, in almost the same breath, the applicant volunteered that his case was distinguishable from BCR16 given the application, in the present case, of Direction 75 (should the applicant apply for a protection visa and should that application be determined by a delegate of the Minister).

77    Direction 75 was made by the Minister to address the very concern raised by the majority in BCR16 (that non-refoulement considerations might not be considered ahead of character considerations in any subsequent application for a protection visa). Thus, the first matter to note when considering the applicant’s submissions on this aspect of his case is that there is no dispute that his case is distinguishable from BCR16. The same point of distinction was recognised by Flick J in Ali. It is convenient to quote in full his Honour’s analysis in this regard:

28    At the end of the day, the decision sought to be reviewed in the present proceeding is the decision made on 25 October 2017 to not exercise the power conferred by s 501CA(4) to revoke the original decision. That decision‐making process relevantly required a state of satisfaction to be formed — not as to whether a person satisfied the criteria prescribed by s 36(2) — but a state of satisfaction as to whether “there is another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii).

29    To the extent that the Applicant raised claims for consideration in the submission made on 31 October 2016 — and, more specifically, the submission that he claimed to fear persecution and that his return to Afghanistan would be contrary to “Australia’s obligations under the non‐refoulement principle” — that was a submission which was addressed when making the decision on 25 October 2017. The Assistant Minister considered it “unnecessary to determine whether non‐refoulement obligations are owed”.

30    To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non‐refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75.

31    To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether:

•    that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or

•    the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia.

    The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia’s international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, “it is irrelevant whether Australia has non‐refoulement obligations in respect of an unlawful non‐citizen”.

32    The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia’s international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.

33    But these are all decisions to be made and — if necessary — reviewed at some point of time in the future. The prospect that future decision‐making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised — and was in fact exercised — by reference to the facts and circumstances then prevailing.

34    Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:

•    the sequence in which claims would be resolved in accordance with Direction No 75.

    Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:

•    the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.

78    As I have noted, this reasoning has been accepted and applied at first instance in Greene, Turay, BKS18, DOB18 and Sowa. I also note that similar reasoning was applied in FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 at [31] – [33], although reference was not made in that case to Ali or to the other cases that have followed it. In DOB18 (at first instance), Griffiths J expressed the view that the reasoning in Ali was “plainly correct”.

79    In the present case the applicant advanced the converse proposition. He submitted that all these cases were “plainly wrong” and should not be followed.

80    I do not accept that submission. Importantly, the appeals in DOB18 and Sowa have now been heard and dismissed. As I have noted, in DOB18 (on appeal) Robertson J (at [193], with whom Logan J at ([38] expressed agreement) did not accept that it was a jurisdictional error in all circumstances for the Minister to reason that consideration of whether non-refoulement obligations are owed can be deferred for full consideration to another occasion—namely, in the course of processing a valid application for a protection visa. Of course, this finding was accompanied by a critical rider: even though it was not a jurisdictional error to defer consideration of whether Australia’s non-refoulement obligations were engaged, completion of the Minister’s statutory task still required the Minister to address the underlying claim of harm that the non-citizen had made.

81    This conclusion was expressed in respect of a decision under s 501BA, not s 501CA; but it seems to me that the same reasoning must apply when considering whether, under s 501CA(4)(b)(ii), there is “another reason” why the original cancellation decision should be revoked.

82    What is of particular importance is the fact that, in the present case, as in DOB18, the Minister did proceed to consider the applicant’s claim to fear harm. The applicant does not contend that the Minister did not give meaningful consideration to this claim. The Minister accepted that, if returned to Sudan, the applicant would face hardship arising from war and instability, as well as other forms of hardship, which the Minister characterised as, cumulatively, “significant”. What the Minister did not do was reach a view on the discrete question of whether the applicant’s claims engaged Australia’s non-refoulement obligations.

83    As regards Sowa, I repeat my earlier observations that the expression of the Assistant Minister’s reasons in that case is very similar to the expression of the Minister’s reasons, on the same subject, in the present case. Further, the grounds of judicial review raised in Sowa in respect of the Assistant Minister’s treatment of claims of non-refoulement reflect, substantially, the grounds agitated by the applicant here. The Full Court did not find error in Griffith J’s reasoning and conclusions, and otherwise distinguished Mortimer J’s decision at first instance in Omar.

84    For completeness, I record that, in conjunction with this ground of review, the applicant also submitted that it was a jurisdictional error for the Minister to fail to consider expressly the operation of s 189 of the Act (which requires the detention of an unlawful non-citizen who is in the migration zone) and s 196 of the Act (which requires that a person be kept in immigration detention until removed from Australia or granted a visa). The applicant submitted that the combined operation of these provisions meant that the applicant could face indefinite immigration detention under the Act. The applicant also submitted that it was a jurisdictional error for the Minister to fail to consider expressly the operation of s 198 of the Act (which would require the applicant to be removed from Australia as soon as practicable) given the effect of s 197C of the Act (which provides that, for the purposes of s 198 of the Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen).

85    The applicant did not venture to suggest how, in the present case, these two submissions can stand side-by-side. Moreover, for the reasons given by Barker J in BKS18 at [97] – [101], the argument that the applicant could face indefinite detention is flawed because, now, s 197C operates to require an unlawful non-citizen to be removed from Australia, subject only to the Minister considering “alternative management options”: DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576; NKWF v Minister for Immigration and Border Protection [2018] FCA 409; AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. It is not necessary, however, for me to dwell further on this facet of the appellant’s submissions because the significance, if any, of these provisions is a matter for consideration at a later stage of decision-making, as explained in the passages from Ali which I have quoted at [77] above.

86    In his additional written submissions filed pursuant to the Court’s invitation after the appeal judgments in DOB18 and Sowa had been given, the applicant submitted that the outcomes in DOB18, Sowa and Omar depended on each case’s individual and legal circumstances, particularly in relation to the representations made by each applicant. The applicant submitted that in his representations to the Minister he specifically stated that, if returned to Sudan, he would be at risk of being forced into a rebels’ faction militia. The applicant submitted that, having regard to the fact that he made his representations without legal assistance, this particular representation should be understood as raising the question of Australia’s non-refoulement obligations to him in relation to potential harm he might suffer as a member of a particular social group. I note in this connection that the applicant also made an explicit claim for asylum: see [18] above.

87    The applicant submitted that Mortimer J’s decision in Omar should be followed in the present case because of the similarity in the way in which the Minister’s/Assistant Minister’s reasons had been expressed in both cases; that the judgment of the Full Court in Sowa is not directly applicable because the nature and scope of the representations made by the appellant in that case were different to those made by the applicant here; and that the majority reasons in DOB18 are not directly applicable because, in that case, a different statutory provision was under consideration. The applicant submitted further that, in DOB18, Robertson J erred at [169] when addressing the evidential onus borne by an applicant seeking to challenge the likely course of decision-making by the Minister personally (as opposed to one of the Minister’s delegates) on the question of non-refoulement: see [40] above. The obvious difficulty with this particular submission is that it is directed to challenging, as it happens, a majority finding in the appellate jurisdiction of the Court. Quite apart from that, in the present case the Minister takes no such evidential point in any event. This particular submission can, therefore, be put to one side.

88    In response, the Minister submitted that, contrary to the applicant’s position, the approach of the Minister to Australia’s non-refoulement obligations in the present case was in materially identical terms to the approach of the Assistant Minister in Sowa. The Minister submitted that the present case is, for the reasons expressed by the Full Court in Sowa, distinguishable from Omar. The Minister submitted further that, in the present case, the applicant is trying to recast the representations he actually made in response to the invitation given by the Minister under s 501CA(3)(b) of the Act, as the applicant in Sowa had attempted to do, and that this should not be permitted. He characterised the present case as being “on all fours” with Sowa, or at least “materially indistinguishable” from Sowa, and distinguishable from Omar.

89    It is true that, in his representations to the Minister, the applicant did not explicitly raise the issue of non-refoulement obligations, as the applicant in Omar had done. It is also true, as I have previously said, that the Minister in the present case expressed his reasons in terms closely similar to the terms expressed by the Assistant Minister in Sowa. Indeed, I would accept that, in relevant respects, the reasoning in each case is “materially indistinguishable”, as the Minister has submitted. Nonetheless, in the present case the Minister clearly understood that the applicant was making a claim that Australia owed him non-refoulement obligations. If this were not so, it is difficult to understand why the Minister specifically directed his attention to international non-refoulement obligations in [13] – [17] of his reasons, and why, in [18] of his reasons, he directed his attention to the applicant’s claims of harm “outside of the concept of non-refoulement and the international obligations framework”. Thus, although there are factual differences between the present case and Omar, the fact remains that, in each case, it was accepted that representations were made that Australia owed the applicant in question non-refoulement obligations. However, the same was also true in DOB18 and in Ali and the other cases which followed it. In Sowa, the Assistant Minister appears to have taken on board the possibility that Australia’s non-refoulement obligations might be engaged, in light of the representations that were made. The appeal in Omar was dismissed without deciding whether the primary judge erred in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application. The other cases were decided on the basis that it was not necessarily a jurisdictional error for the Minister or Assistant Minister to defer consideration of that question to that other time. At the appellate level, this is most clearly seen in DOB18, although it is also the case in Sowa. As I have said, I propose to follow the majority reasoning in DOB18.

Conclusion

90    For these reasons, I am not satisfied that the Minister committed a jurisdictional error in the way in which he dealt with the applicant’s claims to fear harm if returned to Sudan. The Minister recognised that the applicant was advancing, as “another reason” why the original cancellation decision should be revoked, the fact that he was at risk of harm. The Minister did not ignore that claim. He recognised the possibility that the applicant’s claim of harm might engage Australia’s non-refoulement obligations but reasoned that that question could be deferred for consideration in the context of an application for a protection visa. The prospect that the applicant might apply for a protection visa is not in dispute. The Minister considered the factual basis on which it was claimed that Australia’s non-refoulement obligations were engaged and was, in fact, satisfied that, should he be returned to Sudan, the applicant would face hardship arising from war and instability.

Jurisdictional Error 2

The Minister’s reasons

91    In coming to his decision, the Minister had regard to the strength, nature and duration of the applicant’s ties to Australia. The Minister noted that the applicant had resided in Australia for (at that time) nine years, having arrived in Australia at 14 years of age. The Minister found that, as the applicant had lived in Australia from a young age, “the Australian community may afford a higher tolerance of criminal conduct”. But he also found that, as the applicant had started to offend relatively soon after arriving in Australia, less weight should be given to this consideration.

92    The Minister then noted that the applicant’s mother and father, and three siblings, were living in Australia. The applicant has four other siblings, but their whereabouts are unknown. The Minister also noted that the applicant had eight uncles/aunts, 10 nieces/nephews and eight cousins living in Australia. The Minister noted further that the applicant was said to have had a positive relationship with his mother, but the relationship with his father had broken down since the applicant’s imprisonment.

93    As part of his representations to the Minister, the applicant had stated:

My family means the world to me and if I was to be sent back to Sudan I will never see my family again. My family struggle to make ends meet and my main goal is to create a better life for them and myself

94    The Minister noted these representations, but also noted that there was no further information submitted by the applicant, or available from other sources, that would provide greater insight into the applicant’s relationship with his family in Australia. Even so, the Minister found that the applicant’s family would experience emotional hardship should a decision be made not to revoke his visa application.

95    After reviewing the applicant’s educational and work history in Australia, the Minister found that the applicant had made a positive contribution to the Australian community, but only for a very limited time.

96    The Minister concluded by saying:

I have considered the effect of non-revocation upon [the applicant’s] immediate family in Australia and accept that those persons would experience emotional hardship. I have taken this into account and also recognise the effect of non-revocation for family members in Australia.

The applicant’s case

97    In his amended application for review, the applicant contended that, although the Minister purportedly gave consideration to the question of non-revocation on the applicant’s immediate family in Australia, the Minister did not consider the impact on the applicant of being separated from his family. However, in his written submissions, the applicant limited himself to a different submission. He submitted that he “may” contend that the alleged failure was that the Minister “made no finding as to whether revocation was in the best interests of those members of the applicant’s family who are children”. I observe that, on the material before me, the applicant made no representation to the Minister about whether revocation was in the best interests of those members of his family who are children, and indeed in his reasons the Minister noted that the applicant submitted “no further information” that would “provide greater insight into his relationship with his family in Australia”. It is little wonder, then, that the Minister made no specific finding in that regard. Further, and importantly, the applicant made no submission that the Minister failed to consider the impact of separation on the applicant himself.

98    At the hearing, the applicant’s oral submissions departed from his written submissions. It is difficult to understand what the applicant’s precise point was. The applicant’s counsel commenced by submitting:

With regard to ground 2, your Honour, and that concerns the strength, nature and duration of the applicant’s ties to Australia if returned to the Sudan, and here we were raising sort of the – I guess it’s a hybrid of the failure to give proper genuine consideration to the claims and/or legal unreasonableness …

99    He continued by submitting:

But, your Honour, there’s really two elements of this, and that is there’s (1) whether there’s a logical basis for the non-revocation decision, and (2) an evidentiary basis. The logical basis would be whether there was a proper genuine realistic consideration of the claims. And then the evidentiary basis falls behind it, and we say that there was an insufficient logical or evidentiary basis for the Minister to make this decision on these two aspects …

100    It is not clear to me what counsel meant by referring to “these two aspects” in the last sentence of this passage. It may be that counsel was referring to the asserted jurisdictional error now being discussed and the further asserted jurisdictional error which I discuss in the next section of these reasons. Counsel then advanced the submission that the Minister had, indeed, failed to take into account a relevant consideration. However, in a different vein to the written submissions, but now aligned with the ground stated in the amended application for review, counsel submitted:

But there was no consideration of the effect on him. Considered the family but didn’t consider him. Then you will see, your Honour, from 22 to 23, he made representations that he has a mother, father, two brothers, a sister, eight uncles/aunties, 10 nieces/nephews, eight cousins, living in Australia, but the Minister did not consider the impact on the applicant from being separated from his family. He said the impact on the family but not on him, and we say that that was relevant and it should have been taken into account.

101    What is to be made of all this? I commence by observing that the Minister specifically noted (indeed, quoted) the applicant’s representation that his family meant the world to him and that, if he were sent back to Sudan, he would never see them again: see [93] above. It is tolerably clear that, by quoting the applicant’s representation in this regard, the Minister was taking into account, without qualification, the very consideration which the applicant was urging on him in relation to his own position. Thus, the submission that the Minister failed to consider the effect on the applicant of non-revocation of the cancellation decision cannot realistically be sustained.

102    Next, the Minister turned to consider, and expressly addressed, the effect on non-revocation on the applicant’s family in Australia and accepted that, on the basis of the representations that had been made, they would experience emotional hardship if the cancellation decision was not revoked. However, as the Minister’s reasons make clear, the applicant had placed very little material before him on this question. As I have noted, the applicant made no representation specifically touching on those members of his family who are children.

103    The applicant’s various submissions that there was insufficient or no logical or evidentiary basis for the Minister’s decision; that the Minister failed to give “proper genuine realistic consideration” to the applicant’s claims; and that the Minister’s decision was legally unreasonable, also cannot realistically be sustained in respect of the Minister’s findings as to the strength, nature and duration of the applicant’s ties to Australia. The applicant’s submissions on this score were simply a catalogue of unexplained assertions, the terms of which I have quoted above.

Conclusion

104    For these reasons, I am not satisfied that the applicant has demonstrated jurisdictional error on the part of the Minister in respect of that part of the Minister’s decision concerning the strength, nature and duration of the applicant’s ties to Australia.

Jurisdictional Error 3

The Minister’s reasons

105    In coming to his decision, the Minister had regard to the impediments that the applicant would face if removed from Australia and returned to Sudan. The Minister noted the applicant’s representations that he left Sudan when he was nine years of age; that he has no family or friends in Sudan; and that his whole family now live in Australia. The Minister noted that the applicant had no known physical or mental health concerns. The Minister said:

I acknowledge [the applicant’s] concerns for his safety if returned to Sudan, as discussed above. In respect to the impediments to settling in his home country, I acknowledge that [the applicant] has no familial or other support available to him in Sudan and that having left Sudan aged nine years, he has spent his formative teenage years in Australia and would have difficulties re-adjusting to the language, social and cultural aspects of life in Sudan. These difficulties would be exacerbated by the generally poor economic and security situation in Sudan. I find that [the applicant] would face significant hardship upon his return.

The applicant’s case

106    In his amended application for review, the applicant contended that, although the Minister purportedly considered that the applicant would face significant hardship if returned to Sudan, the Minister made no finding with regard to the applicant’s claim that he would be at risk of being forced into a rebels’ faction militia because Sudan is unstable and a conflict zone. The applicant’s written and oral submissions conformed to this allegation. The applicant submitted, without elaboration, that, as a consequence, the Minister either misapplied the relevant law or failed to give genuine, proper or realistic consideration to the applicant’s claims. The applicant also submitted, once again without elaboration, that the Minister’s decision lacked evident and intelligent justification that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any considerations “as described above”.

107    This submission cannot be sustained. In the first sentence of the passage in the Minister’s reasons quoted at [105] above, the Minister said:

I acknowledge [the applicant’s] concerns for his safety if returned to Sudan, as discussed above.

108    The reference to “as discussed above” is to that part of the Minister’s reasons where he was discussing non-refoulement obligations. In that part of his reasons, the Minister summarised the applicant’s concerns for his safety and the harm he might suffer if returned to Sudan, including specifically the representation that he would be at risk of being forced into a rebels’ faction militia as Sudan is unstable and a conflict zone. It was on the basis of these representations that the Minister found that the applicant would face hardship arising from war and instability if were he to return to Sudan. Although the Minister did not make explicit findings in respect of each specific individual statement the applicant made in this regard, it is tolerably clear that the Minister was accepting that the applicant would indeed face the risks he identified as rising from war and the instability to which the applicant referred.

Conclusion

109    For these reasons, I am not satisfied that the applicant has demonstrated jurisdictional error on the part of the Minister in respect of that part of the Minister’s reasons concerning the impediments that the applicant would suffer if removed from Australia and returned to Sudan.

Conclusion and disposition

110    As I have said, I will extend time to the applicant to file his application for review in the amended form handed up at the hearing. However, for the reasons I have given, I will dismiss the application. The applicant is to pay the Minister’s costs.

Associate:

Dated:    15 November 2019