FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2019] FCA 1900

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed with costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant is a citizen of Ethiopia. He entered Australia in 2008 as the holder of a provisional spouse visa. Later, he was granted a partner visa. On 25 September 2015, he was convicted of two counts of indecent assault on a young woman who was a passenger in his taxi. I shall describe these crimes in more detail below. He was sentenced to imprisonment for 16 months for one count and 10 months for the other count (seven months of the second sentence was served concurrently with the first). In 2016, a delegate of the respondent (the “Minister”) cancelled his visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) (the “cancellation decision”). The applicant did not pass the character test. The applicant then made representations pursuant to s 501CA(3) of the Act in support of a revocation of the delegate’s decision. On 28 February 2018, the Assistant Minister decided not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act. The applicant seeks judicial review of that decision in this Court. An earlier hearing date had been vacated with the making of consent orders.

Legislative Provision

2    Section 501CA of the Act provides as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

Facts

3    The applicant did not dispute the account of his criminal offending as set out in the reasons for decision of the Assistant Minister. These had been derived from the sentencing remarks of the presiding County Court judge.

4    In 2013, the applicant was a taxi driver in Melbourne. Late one evening his car was hailed by three young women in the city. One of these was the victim. She was 19 years old. She sat in the front seat. Her two friends were dropped off. The victim instructed the applicant to drive her home. On the way the applicant talked about going into the city with her; he said her fare would be free; he said he could turn the meter off because the victim was “too pretty to have the meter on”. The victim did not respond. The car turned into the victim’s street. She went to pay. The applicant lent towards her and began to kiss her on the mouth. She pulled her head back but the applicant put his left hand on the back of her head and pushed it towards his lap. The victim pulled away and said “No”. The applicant, whilst giggling, put his right hand down the front of her top into her bra and groped her left breast. This was the first count of his offending. The victim tried to get away. The applicant then reached across with his hand, pushed her dress aside, and moved her underwear to expose her vagina which he then licked. This was the second count of offending. The victim then opened the taxi door and stumbled out.

5    The victim was found to have suffered considerably as a result of the applicant’s disgusting behaviour. She experienced flashbacks of the offending when awake and when asleep. She was anxious and did not feel safe in public. She found it difficult to be in the company of men, including her own father and step-father. She ended her relationship with her boyfriend. She had trouble concentrating for many months, which affected her ability to study. She thought of suicide, had high stress levels, low moods and low motivation. She felt “broken”.

6    The sentencing judge was of the view that the applicant’s offending was “very serious indeed and involved the aggravating feature of breach of trust”. The Assistant Minister shared this view. The sentencing judge’s opinion was that the applicant’s prospects of rehabilitation were “good”.

The Assistant Minister’s Reasons

7    It is not necessary to set out the Assistant Minister’s reasons for deciding that there was not another reason to revoke the cancellation decision in any detail. I will describe relevant passages when considering each ground of judicial review.

8    For the moment I note the following:

(1)    The Assistant Minister took into account the representations/documents submitted by or on behalf of the applicant which included the following:

•    He first arrived in Australia during November 2008 at the age of 24 and has resided here for over nine years.

•    He has three young children born from his current marital relationship, a daughter and two sons, and he wants to remain in Australia to provide essential parental support and raise his family. It is not feasible for the family to go with him to Ethiopia to live, so his removal would mean permanent separation from them.

•    His other family members in Australia include his sister and her three minor children.

•    Whilst incarcerated, he was not involved in fights or drug taking and was a model prisoner, as well as participating in rehabilitation programs and training courses.

•    He is full of remorse for his actions and can guarantee that nothing like this will ever happen again. Family members and numerous other persons in the community who know him are of the same view.

•    [The applicant] fears that he would face serious harm amounting to persecution if forced to return to Ethiopia, on the basis of his Oromo ethnicity.

(2)    The Assistant Minister decided as a primary consideration that the best interests of the applicant’s three children supported revocation of the cancellation decision. The Assistant Minister accepted that it would not be reasonable to expect his family to follow him if he were to be deported to Ethiopia because of the conditions prevailing in that country.

(3)    The Assistant Minster considered the expectations of the Australian community. These, he decided, favoured non-revocation of the applicant’s visa.

(4)    The Assistant Minister had regard to Australia’s non-refoulement obligations. As this was a contested issue, I will set out in full below all of the Assistant Minster’s reasons on this issue.

(5)    The Assistant Minister had regard to the strength, nature and duration of the applicant’s ties to Australia.

(6)    The Assistant Minister considered the extent of the impediments the applicant would face if removed. He accepted that the applicant would face hardships if returned to Ethiopia. He observed at [53] and [55]:

… [the applicant’s] involvement in the Oromo community in Australia may put him in danger if he is forced to return to Ethiopia, as shown by country information regarding the treatment of actual and perceived political opponents by the government of that country. Moreover, as a deportee, [the applicant] may be subjected to arbitrary detention, torture, he may be killed or at least subjected to discrimination in employment and social isolation. I have accepted that these circumstances would, in all likelihood, increase the hardships faced by [the applicant] should he be returned to Ethiopia.

…

I note the “Ethiopia 2015 Human Rights Report” provides information with regard to Ethiopian country conditions that supports [the applicant’s] claims that he would face serious harm amounting to persecution on the basis of his Oromo ethnicity if he were forced to return to Ethiopia. This report also provides an extensive list of issues specific to women in Ethiopia along with human rights issues specific to children in Ethiopia.

(7)    The Assistant Minister then considered the need to protect the Australian community and the risk of re-offending. Whilst the sentencing judge thought that the prospects of rehabilitation were “good”, the Assistant Minister was:

(a)    concerned by the applicant’s description of his offending to a psychologist who had prepared a report about him in 2017. The applicant described it as “kissing and caressing”; that the activity had been consensual until the victim changed her mind; that he pleaded guilty to avoid a longer sentence; and that he had made a “mistake”. In amplification, the psychologist said:

[The applicant] said that his offending behaviour occurred during the course of his work as a taxi driver. He drove three women from the city to Doncaster. One of them was extremely drunk and vomited in his taxi. When they arrived at their destination, at the request of the other women, he assisted in getting her into the house. One of the women stayed with the very drunk woman and the other said she wanted to return to the club in the city. [The applicant] said that during the trip she asked him to accompany her. He said he couldn’t do this. Subsequently she changed her mind and he took her to her home. [The applicant] reported that the woman told him “You’re a good man” and showed warmth towards him. He said they began kissing and caressing. [The applicant] denied that he had acted in a predatory manner and indicated that there had been consensual activity until the woman changed her mind. He said the CCTV had malfunctioned and he was adamant that he had no means to engineer this, stating that it required considerable technical expertise.

[The applicant] said he had pleaded guilty in court because he had been advised to do so to avoid a longer sentence. He said he didn’t understand the legal system. He also said “I made a mistake and it was right that I paid for it; I shouldn’t have been involved with that woman”.

(b)    concerned that the foregoing account of what had occurred differed in significant ways from the findings of the sentencing judge. It contained no serious acknowledgement of any wrongdoing whatsoever. In particular, the Assistant Minister said that he could not agree with the psychologist’s comment that the applicant’s account of what had taken place was “candid” and that “there was consistency … with the documents viewed [by the psychologist]”. As a result, the Assistant Minister did not accept that the applicant had “an extremely low probability” of re-offending, as suggested by the psychologist; and

(c)    concerned that the applicant had not himself expressed remorse in relation to his victim for his offending. This was characterised as indicating a lack of empathy for her.

(8)    The Assistant Minister accepted that the likelihood of re-offending was “low” and that the prospects for rehabilitation were “good”, but shared the concern of the sentencing judge that no strong psychological or other explanation had been put forward to explain what had occurred. He thought that if the applicant were to re-offend it could result in “physical/psychological harm to members of the Australian community”.

9    The Assistant Minister concluded, in essence, that the risk of harm to the Australian community “outweighed” the factors which favoured revocation. After summarising those factors, the Assistant Minister said:

92.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by [the applicant], namely two counts of Indecent Assault, that are of a sexual nature and were against a vulnerable member of the Australian community.

93.    Further, I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant].

94.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I 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 children and other minor family members, as a primary consideration, and any other considerations as described above. These include his length of residence, his claims that he will suffer hardship and harm if returned to Ethiopia, his employment, volunteer work within the Oromo community and familial ties to Australia, along with the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

Grounds of Review

10    The applicant relied upon the following three grounds of review, as described by him in his written submissions:

Ground 1:    The Minister misunderstood the Act or its operation in concluding or assuming that certain claims made by the applicant would “necessarily” be considered in the event that the applicant was to make an application for a protection visa.

Ground 2:    Further or alternatively, the Minister misunderstood the Act or its operation in concluding or assuming that the applicant’s claims would be considered in the same manner in any application for a protection visa.

Ground 3:    Further or alternatively, the Minister misunderstood the Act or its operation in concluding or assuming that Australia’s non-refoulement obligations with respect to the applicant would be considered in the event that the applicant made an application for a protection visa.

Each of these grounds attack the Assistant Minister’s consideration of Australia’s non-refoulement obligations. It is therefore appropriate to set out the Assistant Minister’s consideration of that issue. At [34]-[37] of the reasons, the Assistant Minister said as follows:

International non-refoulement obligations

34.    As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face serious harm amounting to persecution if forced to return to Ethiopia on the basis of his Oromo ethnicity. Country information provided indicates that being of Oromo ethnicity in Ethiopia means that an individual is subjected to various forms of harm and discrimination in many aspects of their lives. [The applicant] fears that the ongoing targeting of Oromo people, and his community membership and involvement in Oromo organisations in Australia, mean that he would be targeted and subjected to persecution, serious harm and discrimination in Ethiopia if he is forced to return.

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

36.    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 the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

37.    I have also considered [the applicant’s] claims of harm upon return to Ethiopia 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, he would face hardship arising from his Oromo ethnicity were he to return to Ethiopia.

Ground Three

11    Mr Wood of Counsel, who appeared for the applicant, commenced his submissions with ground three. This was seen to be the “easiest” point. I shall therefore address this first and then deal with grounds one and two in reverse order.

12    In essence, Mr Wood submitted that the Assistant Minister had misunderstood the law in a material way. Such a material misunderstanding can constitute jurisdictional error. Thus in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gaudron J said at 339-340 [41]:

... there is said to be a “constructive failure to exercise jurisdiction” when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

(Footnote omitted.)

See also, for example: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1.

13    The misunderstanding was said to appear at [35] of the Assistant Minister’s reasons where he observed that if the applicant were to apply for a protection visa the existence or otherwise of “non-refoulement obligations would be fully considered in the course of processing the application”. That was said to be a mistake. Those obligations would not be “fully considered” because the provisions in the Act relating to the issue of a protection visa are different from Australia’s international obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force for Australia 13 December 1973) (the “Convention”). The provisions in the Act are different because they give potential refugees diminished protection.

14    To illustrate his point, Mr Wood referred to the “internal relocation principle” for the purpose of the definition of a refugee in Art 1A of the Convention. The principle has recently been described by Gordon and Edelman JJ in CRI028 v Republic of Nauru [2018] HCA 24; (2018) 356 ALR 50 at [23] as follows:

According to what is sometimes described as the internal relocation principle, a person is not a refugee if there is an area in the country of their nationality: (1) where the person would not have a well-founded fear of persecution; and (2) to which the person could, “in all the circumstances”, reasonably be expected to relocate.

Mr Wood submitted that this test had been “radically altered, if not abolished” by ss 5H and 5J(1)(c) of the Act. As a result, a person cannot satisfy s 36(2)(a) of the Act unless there is a real chance of persecution “that relates to all areas of the receiving country”. Contrastingly, the Convention recognises that persecution may occur in “only one part of a country, and that in such situations a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if in all the circumstances it would not have been reasonable to expect him to do so”: Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at 327 [26] per French CJ, Hayne, Kiefel and Keane JJ. It followed that the Assistant Minister misunderstood the differences between the Convention and the domestic law.

15    Mr Wood contended that this submission was supported by the decision of the Full Court of this Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89. He respectfully submitted that I was bound by that decision. As I understood it, Mr Hill of Counsel, who appeared for the Minister, agreed that I was bound by the reasoning in Ibrahim, but submitted it did not determine the outcome here. Ibrahim concerned an exercise of the power conferred on the Minister by s 501BA(2) of the Act. A submission had been made that the appellant’s circumstances in that case warranted an International Treaties Obligation Assessment. The Minister considered that it was unnecessary to determine whether non-refoulement obligations were owed to that appellant for reasons which are almost identical to those set out in the Assistant Minister’s reasons in this case. White, Perry and Charlesworth JJ decided that the Minister had erred in conflating domestic law under the Act with the Convention. Their Honours said at [106]-[114]:

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.

16    Whilst, in my view, not strictly binding upon me (because the decision turned on the characterisation of reasons given in respect of an exercise of power under s 501BA), I was urged by the applicant to apply Ibrahim given the very great similarity in the reasons given by the Assistant Minister in that case with those given here. In both cases, the same mistake, it was said, had been made.

17    Mr Hill submitted that Ibrahim was distinguishable. He submitted that any conflation of domestic law with the Convention here was an immaterial error. In Ibrahim, the applicant had raised objections about internal relocation thus sparking real differences between the Convention and domestic law that might have affected the exercise of power pursuant to s 501BA. In contrast, here, no such claim had been made. It had not been suggested, it was submitted, that the applicant, who is of Oromo ethnicity, would face harm in one part of Ethiopia and not another. In other words, the claim was not premised on the differential safety of areas within Ethiopia. Rather, the claim was put at a high level of generality: that the applicant would face hardship if returned to that country. The Assistant Minister expressly accepted that submission as well as other factors that supported the revocation of the cancellation decision. But, in the Assistant Minister’s view, those factors were outweighed by the judgment he reached that the applicant represented an unacceptable risk of harm to the Australian community. That judgment was based upon the quality of the applicant’s offending.

18    Mr Wood forcefully contended that the Ibrahim error was sufficiently material for the following reasons.

19    First, whilst fairly acknowledging that the applicant had never invoked the “internal relocation principle”, Mr Wood submitted that the materials presented to the Department suggested that the applicant’s exposure to risk in Ethiopia was not uniform. He contended that if the Assistant Minister had not conflated the law, there was material before him that might have led the Assistant Minister to reach a different conclusion in exercising his power under s 501CA(4). The possibility of such an outcome was “realistic”. I was referred, for example, to the following submission which had been made on behalf of the applicant in support of revocation:

The applicant belongs to the Oromo ethnic group in Ethiopia. The Oromo people though being a majority of the population, have historically been oppressed and denied their basic rights by various regimes in the country. They still suffer persecution from the [Ethiopian] government. The government does not single out whom to persecute through arbitrary arrest, torture, imprisonment or summary execution. It does not matter whether one has a high or low profile in the community.

Neither are women and children spared in this ongoing human rights abuse against the Oromo people. It is submitted that the applicant would be no exception to the persecution [were] he to be deported to Ethiopia. The regime is even more paranoid and highly suspicious of anyone who [is] deported back to the country from the west.

There is hence no doubt that, they would label him a terrorist and kill him without taking him to trial. For regimes such as Ethiopia, it is inconceivable for them to believe that one could be deported from a country after serving time in prison for a crime other than opposition against the government. Whereas, the applicant is not apologetic for what he did, it is submitted that sending him back to his home country under visa cancellation powers, would be extreme. Accordingly, the decision maker should exercise their discretionary powers and recommend revocation.

20    I was also referred to the following submission, which refers to an area where the applicant had been accused of helping Oromo rebels:

[The applicant] was born in Ethiopia and is of Oromo ethnicity. Due to this, [the applicant] and his family were subjected to suspicion, ill treatment and persecution in Ethiopia and regarded as enemies of the state due, [the applicant] believes, to the Oromo people’s desire for independence. [The applicant] was raised in the context of this persecution against people of his ethnicity and the broader conflict in Ethiopia. In his childhood, [the applicant’s] father was beaten so badly by Ethiopian officials that he was left paralysed. His father was tortured by governmental officials on a number of occasions, as was his eldest sister. [The applicant] fled to Kenya at the tender age of 15 and lived in a refugee camp with two of his sisters for three years following accusations that he and his family had been helping Oromo rebels in the area. It was only when [the applicant’s] mother developed breast cancer some years later that [the applicant] returned to Ethiopia to care for her. This ongoing conflict and persecution has resulted in the displacement of [the applicant’s] extended family, some members of whom – including some of [the applicant’s] siblings – are still unable to be located.

That submission also noted the following:

Oromos make up around one-third of the population of Ethiopia. A February 2016 International Business Times article explained that “The Oromo are divided in two main sub-groups. People belonging to the Borana Oromo group mainly inhabit southern Ethiopia and parts of Kenya. The Barentu Oromo can be found in Oromia as well as other areas of Ethiopia and Somalia.”

Despite the size of the Oromo population, Oromos do not have proportionate representation in political life and face restrictions on the use of their language, literature and media, forced displacement and evictions, which has resulted in discrimination as well as political and socio-economic marginalisation.

(Footnotes omitted.)

21    Yet another submission made on behalf of the applicant stated:

While more comprehensive and recent country information has subsequently been provided in this respect in our submissions of 27 July 2017, it is submitted that the USDOS report supports the well-founded nature of [the applicant’s] fears of persecution in Ethiopia based on his Oromo ethnicity, as well as [the applicant’s] family’s concerns for their well-being should they be forced to choose to travel to Ethiopia to avoid the permanent separation of their family unit.

It is again submitted that should the cancellation of [the applicant’s] Australian visa be upheld, he would be forced to return to Ethiopia where he would face serious harm amounting to persecution on the basis of his Oromo ethnicity. The country information outlined in the USDOS report and in our previous submissions indicates that being of Oromo ethnicity in Ethiopia means that an individual is subjected to various forms of harm and discrimination in many aspects of their lives. [The applicant] fears that the ongoing targeting of Oromo people, and his community membership and involvement in Oromo organisations in Australia, mean that he will likewise be targeted and subjected to persecution, serious harm, and discrimination in Ethiopia if he is forced to return. It is submitted that this humanitarian aspect of [the applicant’s] claims should be given strong weight in favour of the revocation of the cancellation of his Australian visa.

22    However, there was evidence in the material before me and before the Assistant Minister, that what unified the Oromo was not their location in a particular area of Ethiopia, but the existence of a common language and culture. In a report entitled “Human Rights in Ethiopia: Through the Eyes of the Oromo Diaspora” by “The Advocates for Human Rights”, dated December 2009, being part of the country information considered, the following observations were made:

The Oromo, found predominantly in what today is the country of Ethiopia, is Ethiopia’s largest ethnic group. The U.S. Department of State estimates that the Oromo constitute 40 percent of the Ethiopian population, or approximately 31 million people. Although many social, economic, and religious differences exist among the Oromo people, the Oromo are united by a common linguistic tradition. Also, the Oromo share a strong sense of ethnic and national identity. In the Oromo culture, family and kinship play a central role. A patriarchal society, men are considered the head of the household, though the family’s daily life depends upon the women.

The common language of the Oromo binds the Oromo as a people. A Cushitic language, a subgroup of the Afro-Asiatic languages, Oromo is spoken in Ethiopia, northern Kenya, and parts of Somalia, and is spoken as a first language by approximately 20 million people in the region. During much of the 20th Century the Oromo language was banned from use in education, the media, and public life Although Ethiopian law today permits the use of the Oromo language, Amharic is still listed as the country’s official language.

(Footnotes omitted.)

23    That report also noted the movement within Ethiopia of different ethnic groups. It stated as follows:

In addition to moving Oromos off their land in Oromia, many individuals reported that other ethnic groups are being moved into the Oromo region. One interviewee told The Advocates that the Tigray from the north are being encouraged to move into the more fertile southern Oromo area. Several interviewees indicated that Tigrayans and Amharas have moved into the southern lowlands where the Oromo have traditionally farmed. Others indicated that the Ethiopian government is giving Oromo land to Somalis. An Oromo man reported that more Oromos are moving from Eastern Ethiopia to the western part of Oromia. One woman stated that the government has been moving the Wolita, Kambata, Amhara, and Arcopa into Eastern Oromia, and has moved Eastern Oromos into the western part of Oromia. The relocation of Oromos from fertile to infertile areas creates instability. The relocation of Oromos disrupts their traditional land base, creates real and perceived resource scarcity, and exacerbates environmental problems like drought. As one Oromo educator stated, “Oromia has famine, which it never had before. It ha[d] always been the ‘breadbasket’ of Ethiopia.”

(Interviewee identifiers omitted.)

24    In my view, I respectfully disagree with the proposition that, if the Assistant Minister had not adopted a mistaken view of the law as alleged, he might have revoked the cancellation decision here because the material supported an application of the internal relocation principle. First, I do not think that the material that was before the Assistant Minister disclosed: (i) that the applicant’s fear of persecution was localised to a specific area in Ethiopia; and (ii) that it was unreasonable “in all the circumstances” for the applicant to relocate to another area in Ethiopia where the applicant might reasonably be sheltered from the risk of harm that had been alleged. In the absence of such a twofold claim being made by the applicant, the issue of internal relocation did not sufficiently arise from the materials and was not otherwise sufficiently raised: cf Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15. As Hill J said in SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 771 at [21] after his Honour’s consideration of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 was a decision of the Full Court decided after Applicants S134/2002 [(2003) 211 CLR 441]. There is a discussion in the judgment of Black CJ, French and Selway JJ of the question whether there will be a constructive failure to exercise jurisdiction if the Tribunal does not address a claim not in fact advanced: see paras [58]-[63]. While the Full Court accepted that there is no obligation on the Tribunal to deal with a claim not advanced, the view is taken that there will be a review obligation on the part of the Tribunal when it is apparent on the face of the material before the Tribunal that an applicant to it has sufficiently raised the relevant issue. No doubt, in reaching this conclusion the Full Court was conscious of the fact that many applicants before the Tribunal are unrepresented and indeed that lawyers, not being also migration agents, have no right, without leave, to make submissions to the Tribunal. There is no system of pleadings in the Tribunal which define the issues which the Tribunal – an inquisitorial Tribunal – must decide. The conclusion reached by their Honours that there will be a constructive failure on the part of the Tribunal to exercise jurisdiction, in a case where an applicant’s claim is apparent on the face of the material before the Tribunal, even if the claim is not expressly or distinctly raised by the applicant for decision would seem consistent with the requirement that the Tribunal give justice to those who apply to it. It is not necessarily inconsistent with Applicants S134/2002.

25    Secondly and moreover, in my view, the critical factor in the present case is the Minister’s finding that the applicant would face hardship arising from his Oromo ethnicity were he to return to Ethiopia (at [37], [53] and [55]). That finding is not confined to a part or parts of Ethiopia, but, I infer, applies to the entire country. In other words, that finding contemplates a degree of hardship that is graver than a case where the internal relocation principle might have been engaged. It was nonetheless open to the Minister to go on and determine that the risk of harm to the Australian community and the protection of the Australian community “outweighed the best interests of [the applicant’s] children and other minor family members … [and] his claims that he will suffer hardship and harm if returned to Ethiopia” (at [94]). It follows that I respectfully agree with the Minister’s submission that the suggested error could not have made any difference to the outcome here because no claim had been made based upon the internal relocation principle and because any such claim had been subsumed by the broader finding about hardship reached by the Assistant Minister. In other words, in my view, there is not a “realistic possibility”, to use the language adopted in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [48], that the Minister might have made a different decision if he had not misunderstood the law as alleged: cf FQM18 v Minister for Home Affairs [2019] FCA 1263 at [14] per Davies J.

26    Secondly, in his written submissions, the applicant also noted that the complementary protection criteria in s 36(2)(aa) of the Act requires existence of a person who has a specific “intention” to cause the applicant harm. However, there is no need for such an intention to be present for the purposes of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976): SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 366 [4]-[5] per Kiefel CJ, Nettle and Gordon JJ. That such differences exist is not doubted. However, it was not demonstrated on the material before me that this further alleged legal misunderstanding was a material error. It was not shown that the issue of “intention” and been raised as part of the applicant’s claims.

27    Thirdly, I note the submission that it would be entirely speculative for the Court to determine that the Assistant Minister’s suggested mistakes made no difference to the outcome. It was said, for example, that it was not incumbent on the applicant “proleptically to deal with the possibility of relocation”. I disagree. It was for the applicant to show on the evidence that the likelihood that the Minister might have made a different decision rose to the level of realistic possibility. Here, with respect, that contention rose no higher than speculation.

28    Ultimately this is a case where the severity of the applicant’s offending outweighed all that could be said in favour of revocation. It is analogous to the recent decision of O’Callaghan J in VPKY v Minister for Home Affairs [2019] FCA 1767 where his Honour said at [31]:

The Tribunal found that the protection of the Australian community (a primary consideration) should weigh “very heavily” in favour of not revoking the cancellation decision … That finding, in itself, would be sufficient to base a conclusion that the cancellation decision should not be revoked.”

29    For these reasons ground three is rejected.

Ground Two

30    By ground two the applicant submits that the Assistant Minister again misunderstood the law. He mistakenly did not understand that the circumstances in which non-refoulement obligations would be considered for the purposes of s 501CA(4) are “quite distinct” from a consideration of those obligations for the purposes of s 65 of the Act (i.e. for the purposes of consideration of the issue of a protection visa). Differences were said to include the fact that s 501CA is a discretionary power (although the Full Court of this Court in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, has disagreed with that view: at 547-548 [73]-[74] per Colvin J, with whom Reeves and Rangiah JJ agreed) and the suggestion that a visa may be denied because the applicant might fail to meet a criterion that has nothing to do with protection. The error appears in the statement at [35] that it was “unnecessary” to determine the applicant’s non-refoulement obligations because he could apply for a protection visa.

31    The applicant placed reliance on BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456. At 473 [73], Bromberg and Mortimer JJ said:

… the role of the consideration of whether serious or significant harm might befall the appellant in Lebanon (for Convention or non-Convention related reasons) has a quite different place in a discretionary decision about revocation, to the place it may have, if reached, in a protection visa assessment. In the former, it need not have any particular quality to affect the exercise of discretion – the weight of the prospect of harm is a matter for the Assistant Minister rather than part of any fixed visa criterion. That is in stark contrast to the role these matters play under s 65 of the Act.

It was submitted that the issuance of Direction No. 75 since that decision did not deny the force of the foregoing observations. That Direction, which does not bind the Minister, requires decision-makers who are considering the issue of a protection visa to assess first whether the refugee and complementary protection criteria are met before considering other ineligibility criteria. That is because even in cases where the risk of harm is significant a protection visa may nonetheless not issue for other reasons.

32    The applicant submitted that the decision of Griffiths J in DOB18 v Minister for Home Affairs [2018] FCA 1523, relied upon by the Minister, did not detract from ground two, or should not be followed. DOB18 was a s 501BA case. The reasons of the Minister under consideration in that case contained a similar reliance, as in this case, upon Direction No. 75 for the purpose of considering non-refoulement obligations. Griffiths J held that the Minister did not thereby err in law. At [29], his Honour said the following:

It may reasonably be inferred, however, that the Minister was well aware that s 65 of the Act also empowered him personally to make a decision in respect of any valid application for a protection visa (see s 46) as required by s 47 of the Act. If that occurred, the Minister would be obliged, in the context of making a determination under s 65 of the Act, to consider the relevance, if any, of Australia’s non-refoulement obligations in respect of the applicant. This is what the Minister apparently had in mind when he made the unambiguous statement in [80] that “the existence of otherwise of non-refoulement obligations would be fully considered in the course of processing” any future protection visa application (emphasis added). Arguably, such an unequivocal statement could have implications for procedural fairness requirements in the event that the statement was not honoured in the future and the applicant was not given a prior opportunity to comment upon the proposal not to honour the statement (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [45]-[48] per Kiefel, Bell and Keane JJ).

33    An appeal from this decision was dismissed: DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18 (FC)”). In separate judgments, Logan J and Robertson J rejected the submission that the Minister erred because he misunderstood the different role that non-refoulement obligations would play in any decision under s 65 compared to the role they may play in relation to the exercise of discretion under s 501BA. Further, the fact that Direction No. 75 did not bind the Minister as distinct from his department, was of no moment. Logan J observed at [66]:

It was submitted though that the Minister might make the protection visa application decision personally and that s 499 of the Act does not bind him to follow Direction 75. In Re Patterson; ex parte Taylor (2001) 207 CLR 391, Gummow and Hayne JJ observed, at [220], “The central purpose of responsible government is secured by the requirement in s 64 of the Constitution for administration of the departments of State by Ministers who are members of one or other Houses of the Parliament.” Under our system of responsible government, the departmental practice of which the Minister is aware is the practice for which he is responsible to Parliament. It is not just the department’s practice; it is the Minister’s practice. The Minister has deliberately announced this practice to the appellant in explaining why, in relation to the exercise of the power under s 501BA, he has chosen not to advert to non-refoulement considerations. The appellant is entitled to expect, in relation to any protection visa application that he may make in the future, that, as a matter of procedural fairness, the Minister will follow this announced practice, should the Minister come to consider that application personally: Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam [2003] HCA 6; (2003) 214 CLR 1. In these circumstances, it is nothing to the point that Direction 75 does not, in terms, bind the Minister. That direction confirms the Minister’s policy for the department for which he is responsible to Parliament. At the time when the Minister made his decision under s 501BA of the Act, there was no reason to anticipate that, if a protection visa application were made, either he or a delegate within his department would do anything other than first consider whether the appellant was a person to whom a protection obligation was owed (or a person entitled to complementary protection).

34    Robertson J said that what mattered was that the Minister in that case had considered the claim that the appellant would face harm if returned to Bangladesh. Thus, at [183] and [193], his Honour said:

183.    In my opinion, the appropriate analysis in the present case involves an appreciation that the Minister did not say, at [80]-[81], that he was refusing to take into account in the exercise of the power under s 501BA(2) that the appellant claimed he would face harm. Indeed, at [82], the Minister said that he accepted that regardless of whether the appellant’s claims were such as to engage non-refoulement obligations, the appellant would face hardship arising from his stated homosexuality were he to return to Bangladesh. This was in the context where, at [75]-[78], the Minister had noted the appellant’s earlier submission that he would face harm if returned to Bangladesh and the Minister had noted the appellant’s visa history, including the grant of a Class XA subclass 785 Temporary Protection visa on 16 November 2006 due to his stated homosexuality. The Minister also noted that the appellant had said that his life would be in “very real danger” if he returned to Bangladesh. This was the harm and hardship which the Minister addressed at [82].

…

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.

35    The finding about hardship at [82] of the Minister’s reasons considered in DOB18 and referenced above by Robertson J was in the following terms (as redacted):

I have also considered [the appellant’s] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].

This finding about hardship uses language which is strongly similar to the language found in the Assistant Minister’s reasons here at [37] (reproduced above).

36    The Minister submitted that the difference between s 501CA and s 65 – discretionary weighing of competing factors (although note what was said in Viane) as compared to satisfaction of prescribed criteria – is addressed: (i) in part by Direction No. 75 (to ensure that protection obligations are in fact considered under s 65); and (ii) also by the Assistant Minister here considering the underlying factual basis of the claims for protection and the harm the applicant would face if returned to Ethiopia, albeit outside the concept of non-refoulement, at the s 501CA stage. The Assistant Minister accepted that the applicant would be exposed to hardship but this did not outweigh the risk of harm to the Australian community. I agree with the Minister’s submission and respectfully adopt the reasoning of Robertson J at [193] in DOB18 (FC) with respect to a decision made under s 501CA.

37    Ground two is therefore rejected.

Ground One

38    Ground one relied upon the decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279. In that case her Honour decided that the Assistant Minister in that case was not entitled to defer a consideration of a non-refoulement claim to an analysis of such claims in an application for a protection visa. And this was so notwithstanding the issuance of Direction No. 75. Her Honour reasoned as follows at [81]-[82]:

Where a representation is made pursuant to an invitation under s 501CA(3)(b), it is a failure to perform the statutory task then required by s 501CA(4) for the Assistant Minister to decline to determine factual matters raised by the representations by reference to a different statutory process, which is non-existent at the time of the exercise of power, whose invocation is entirely speculative, and during which process the engagement of Australia’s non-refoulement obligations is not a criterion for the grant of a visa.

The question before the Assistant Minister is whether or not to revoke the cancellation of a particular visa: a previously existing visa, which entitled the person to remain in the Australian community, on a particular basis, with the particular status and benefits that accompany that visa. Thus, the question for the Assistant Minister was whether to restore that particular visa to the applicant. In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.

39    Direction No. 75 had been issued following BCR16. In that case the Minister had misunderstood the law in assuming that an assessment of non-refoulement obligations would necessarily take place in the future upon the making of an application for a protection visa. That assumption was incorrect because such an application could be refused for other reasons not relating to the non-acceptance of non-refoulement claims. Direction No. 75 addressed that difficulty in the way described above.

40    In GBV18, Anderson J declined to follow Omar. His Honour extensively surveyed the post Direction No. 75 cases in this Court and said at [67]:

Debate has developed as to the applicability of BCR16 since the issuing of Direction No. 75 on 5 September 2017. As noted above at [51]-[53], the first direction in Direction No. 75 directs that, where a protection visa application raises character or security concerns, a delegate of the Minister assessing that application must first assess the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act prior to considering any character or security concerns. A number of decisions of this Court collectively support the position that, as a result of the issuing Direction No. 75, a decision-maker under s 501CA(4) does not commit the first misunderstanding in BCR16 if he or she states that it is not necessary for him or her to consider Australia’s non-refoulement obligations (thereby, in practice, deferring the consideration of such obligations until the determination of any protection visa application): [Ali v Minister for Immigration and Border Protection [2018] FCA 650] at [33]-[34] per Flick J; [Greene v Assistant Minister For Home Affairs [2018] FCA 919] at [19] per Logan J; [Turay v Assistant Minister for Home Affairs [2018] FCA 1487] at [51] per Farrell J; [DOB18 v Minister for Home Affairs [2018] FCA 1523] at [23] per Griffiths J; [BKS18 v Minister for Home Affairs [2018] FCA 1731] at [112]-[118] per Barker J; [Sowa v Minister for Home Affairs [2018] FCA 1999] at [27] per Griffiths J; [Ezegbe v Minister For Immigration and Border Protection [2019] FCA 216] at [24] per Perram J; [DOB18 v Minister for Home Affairs [2019] FCAFC 63] at [59]-[67] per Logan J and [164]-[173] per Robertson J; [Ibrahim v Minister for Home Affairs [2019] FCAFC 89] at [71]-[86] per White, Perry and Charlesworth JJ. Similarly, although Direction No. 75 was apparently not raised by the parties in [Flores v Minister for Home Affairs [2019] FCA 1043], Yates J expressed at [50] that when claims regarding Australia’s non-refoulement obligations are made, “it is not necessary for the decision maker to determine whether non-refoulement obligations are owed when determining whether the cancellation should be revoked”.

41    Anderson J observed that Omar was an “outlier” on the “jurisprudential spectrum” (at [81]) and thus declined to follow it. His Honour said at [73]:

However, notwithstanding these reservations, the clear weight of authority relevant to the review of administrative decisions made after the issuing of Direction No. 75 favour the conclusion that the first direction under Direction No. 75, combined with sufficiently clear and unequivocal reassurances regarding the practices of relevant decision-makers not covered by Direction No. 75, is sufficient to overcome the possibility of jurisdictional error based on the “first misunderstanding” identified in BCR16.

I respectfully agree with and adopt the foregoing.

42    Omar was the subject of an appeal to a Full Court of this Court: Minister for Home Affairs v Omar [2019] FCAFC 188. The issues before that Court were summarised in a judgment of the Court (comprising Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) as follows:

(a)    Did the primary judge err 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?

(b)    Are non-refoulement obligations mandatory relevant considerations under s 501CA?

(c)    Is the decision of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [106]-[116] plainly wrong, as contended by the Minister? In light of this contention, the Chief Justice directed that the appeal be heard by five Judges.

(d)    Does Direction No 75 reverse the effect of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456?

(e)    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.

The Court did not decide the first four issues and thus did not consider whether Mortimer J’s conclusion about the effect of Direction No. 75 was correct. Rather, the Court said at [5]:

As will shortly emerge, we consider that issue (e) should be determined in the respondent’s favour, consequently the other issues need not be determined, including the challenge to the correctness of Ibrahim. Also, although issue (a) need not be determined separately from issue (e), there is some overlap between the two issues inasmuch as there are some factual matters which underpin both issues.

No ground equivalent to “issue (e)” above was made before me.

43    I return to consider DOB18 (FC). Two principles of importance emerge from the judgment of Robertson J. As already mentioned, the reasoning adopted by the Minister in that case concerning the consideration of non-refoulement issues was very similar to the reasoning deployed here. Robertson J decided that this reasoning did not involve the type of legal misunderstanding identified in BCR16. Rather, his Honour characterised the reasoning as addressing a factual proposition, namely looking at what would in fact be the future course of decision-making if the applicant were to make a valid application for a protection visa. Robertson J said at [166]-[169]:

166.    I would therefore reject the appellant’s proposition that the Minister erred in assuming that non-refoulement obligations would necessarily, as a matter of law, be assessed in the course of any future protection visa application.

167.    While I accept that Direction 75 does not bind the Minister, and does bind other decision-makers addressing the question of whether or not to grant a protection visa, I do not see that as establishing error. Although in the case of a decision by the Minister there would be nothing in the legislation or in Direction 75 to require the Minister first to assess whether the refugee and complementary protection criteria are met, the appellant has not established that the Minister would be likely to make such a decision personally.

168.    The appellant appears to accept that the Minister made no jurisdictional error if as a matter of fact any future application for a protection visa is to be decided by persons other than the Minister, such as by officers of the Department.

169.    Since I have concluded that the Minister, at [80]-[81] of his reasons, was not setting out a legal proposition but a factual proposition as to the future if a protection visa application was made by the appellant, in my opinion it would be for the appellant at trial to show both that it was likely the Minister personally would make a decision on the protection visa application and that as a matter of fact the Minister would not consider the application of the protection specific criteria before proceeding with any consideration of other criteria. The appellant has not done this.

The foregoing passage applies in this proceeding. The applicant has not shown both that it was likely the Minister personally would make a decision on the protection visa application and that as a matter of fact the Minister would not consider the application of the protection specific criteria before proceeding with any consideration of other criteria. See also DOB18 (FC) at [66] per Logan J.

44    The second proposition is that Robertson J decided that a distinction existed between a claim to fear harm as giving rise to a reason for revocation as against a consideration as to whether such a claim engaged a non-refoulement obligation. His Honour said at [185]-[186]:

... 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.

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 by the Minister in the present case need not be considered in making a decision under s 501BA(2).

The foregoing distinction was accepted as correct by the Full Court in Omar (at [34(f)]) and thus binds me.

45    As already mentioned, Robertson J decided that the Minister in DOB18 (FC) had considered the applicant’s claims about the risk of harm. He had therefore not erred in not considering whether those claims had engaged Australia’s non-refoulement obligations. Had the Minister failed to consider the issue of harm at all, he may well have erred. At [184], Robertson J thus said:

If the Minister had not addressed that matter, my view would have been that the Minister may well have failed to complete his statutory task and thereby made a jurisdictional error of a similar, although not identical, kind to that considered in BCR16.

Here, the Assistant Minister not only accepted that the applicant would face hardship arising from his Oromo ethnicity at [37], he undertook a more detailed consideration of those claims of harm at [53] and [55] of his reasons (reproduced above). Accordingly, the reasoning of Robertson J in DOB18 (FC) applies here.

46    Ground one is therefore rejected.

47    For the foregoing reasons, the application for judicial review is dismissed with costs.

Associate:

Dated:    18 November 2019