FEDERAL COURT OF AUSTRALIA

AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205

ORDERS

THE COURT ORDERS THAT:

1.    By consent, leave is granted to the applicant to rely upon the further amended originating application for review filed on 27 November 2019.

2.    The decision given on 2 May 2018 by the second respondent is quashed.

3.    Costs are reserved.

4.    The parties are to file and serve draft minutes of order (agreed if possible) otherwise giving effect to the reasons to be published in the week of 6 January 2020 within 10 working days of publication of those reasons, together with any short submissions in support of the proposed orders.

5.    In the event that the appropriate order as to costs is not agreed, the parties are to file and serve short submissions in support of their respective positions as to costs within 15 working days of publication of the reasons referred to in order 4 above.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant is a national of Sudan who arrived in Australia in late 2005 on a permanent Class XB (Subclass 202) Global Special Humanitarian visa (humanitarian visa). Before that time, he and his wife, together with their first two children, had spent five years in a United Nations refugee camp. The applicant’s wife resides in Australia and is an Australian citizen. They have been married for over 25 years. Together they have five children, three of whom are minors, with the youngest being under 10 years of age. All of the children hold Australian citizenship.

2    On 2 August 2016, the applicant’s humanitarian visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) upon the applicant being convicted of an offence and sentenced to 12 months’ imprisonment. The applicant has been in immigration detention since 3 August 2016 when he was released from criminal custody following a successful appeal against sentence (Application Book (AB) at 70).

3    This is an application for judicial review of a decision by the then Assistant Minister for Home Affairs, the Hon Alex Hawke MP (the Assistant Minister), dated 2 May 2018. By that decision, the Assistant Minister decided not to revoke the decision by a delegate of the Minister on 2 August 2016 to cancel the applicant’s humanitarian visa. Among other things, the Assistant Minister accepted that Sudan is a “conflict-affected third world country”, that the applicant had previously experienced torture and extreme suffering in Sudan, that he suffers from mental health issues as a result of his experiences in Sudan, and that his mental health issues would be likely to be exacerbated if he were returned. However, the Assistant Minister considered on balance that the applicant represented an unacceptable risk of harm to the Australian community and that this outweighed all other considerations.

4    I note that an earlier decision by the same Assistant Minister was set aside by consent and remitted for redetermination according to law by orders of this Court made on 28 November 2017, on the ground that the Assistant Minister fell into jurisdictional error of the kind identified in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 (BCR16).

5    The applicant was represented by Ms Baw of counsel. The Court expresses its gratitude to Ms Baw for accepting the pro bono referral under r 4.12 of the Federal Court Rules 2011 (Cth).

6    Following acceptance of the referral, the applicant sought to rely upon a draft amended application for judicial review in substitution for the grounds originally drafted by the applicant. The draft amended application seeks to challenge the Assistant Minister’s finding that it was unnecessary to consider whether non-refoulement obligations were owed to the applicant, and the Assistant Minister’s alleged failure to consider whether the applicant may be unable to apply for a protection visa by virtue of ss 197C and 198 of the Act. It also challenges, on the ground of legal unreasonableness, the Assistant Minister’s reliance on an unreliable measure of the applicant’s risk of further sexual offending at [75] of the Assistant Minister’s reasons. The proposed amendments to the application were not opposed by the Minister.

7    When the application was initially heard, the appeal in DOB18 v Minister for Home Affairs (NSD2040/2018) had not yet been heard by the Full Court but was listed for hearing on 12 February 2019. As the applicant’s submissions in the present case took issue with aspects of the reasoning in DOB18 v Minister for Home Affairs [2018] FCA 1523 which were the subject of the appeal, judgment in this matter was deferred by consent pending the Full Court’s decision on that appeal. The Full Court delivered judgment in DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18 (FCAFC)) on 18 April 2019. An application for special leave to appeal to the High Court in DOB18 (S150/2019) was dismissed on 16 October 2019. In the interim, the applicant and the Minister advised by emails dated 27 May 2019 and 16 October 2019 respectively that they consented to judgment in this matter being further deferred pending determination of the special leave application.

8    This application was then relisted for a case management hearing to be held on 20 November 2019. On 19 November 2019, the Registry sent an email to the parties drawing their attention to the Full Court’s decision in Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar (FCAFC)) delivered on 29 October 2019 especially at [39]-[46].

9    Neither party ultimately sought to make further submissions on the final outcome of the appellate processes in DOB18. However, pursuant to leave granted at the case management hearing, the applicant filed a further amended application for judicial review raising the additional question (ground 1(c)) based upon Omar (FCAFC) of whether the Assistant Minister had failed to engage in an active intellectual process with the applicant’s representations in assessing whether he was satisfied of the existence of another reason for revoking the cancellation decision, independently of any future protection visa application. Written submissions on the additional ground were also exchanged.

10    On 23 December 2019, the Registry sent an email to the parties seeking their position as to the proposal that orders be pronounced on 24 December 2019, with reasons to be published in the week commencing 6 January 2020, given the substantial delay in resolving the matter and the likely impact of continuing uncertainty about the outcome of the application upon the applicant and his family. The parties did not object to this course of action, and orders were made accordingly on 24 December 2019 with these reasons published shortly afterwards in the new year. I note that, in line with the email sent on 23 December 2019, the orders did not finally dispose of the matter as they afforded the parties the opportunity to make submissions on consequential orders and reserved the question of costs.

11    For the reasons set out below, the application must be upheld on ground 1(c) of the further amended originating application.

2.    BACKGROUND

2.1    Relevant statutory provisions

12    Section 501(3A) of the Act provides for automatic cancellation of a visa in cases where, relevantly, a person does not pass the character test prescribed by subs (6) because the person has a substantial criminal record and is serving a sentence of imprisonment on a full-time basis. A “substantial criminal record” is defined in s 501(7) to include cases where the person has been sentenced to a term of imprisonment of 12 months or more. It is clear from the use of the word “must” in s 501(3A) that the Minister has no discretion, but is required to cancel a person’s visa where she or he is satisfied that the criteria in s 501(3A) are met.

13    Where a visa has been cancelled under s 501(3A), the person affected is given an opportunity to make representations on the question of whether the cancellation decision should be revoked, including on whether the Minister should revoke the cancellation decision. First, s 501CA(3) requires the Minister, as soon as practicable, to give the person a written notice setting out the cancellation decision and particulars of the “relevant information” as defined in s 501CA(2), together with an invitation to make representations. “Relevant information” is defined as:

… 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.

14    Secondly, the power to revoke the cancellation decision is conferred by s 501CA(4), which provides that:

(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.

15    Where the original cancellation decision is revoked, s 501CA(5) provides that it is taken not to have been made.

16    Thirdly, under s 501CA(4)(b)(ii) the Minister must revoke the cancellation decision despite being satisfied that the person does not pass the character test, if the Minister is satisfied that there is “another reason” why the decision should be revoked. It is apparent from the terms of s 501CA(4)(b)(ii) that in determining whether there is “another reason”, the Minister may have regard to factors such as the impact that cancellation of the visa may have upon the individual concerned, her or his family, or the Australian community, and the risks of harm to the person if she or he is returned: BCR16 at [24] (Bromberg and Mortimer JJ); Poroa v Minister for Immigration and Border Protection [2017] FCA 826; (2017) 252 FCR 505 at [10] (Perry J).

17    Finally, the Minister’s decision not to revoke the cancellation decision is not subject to merits review by the Administrative Appeals Tribunal (the Tribunal) (s 501CA(7)). The only way in which the Minister’s decision (being relevantly in this case, that of the Assistant Minister) may be challenged is by way of judicial review of the legality of the decision.

2.2    The first decision by the Assistant Minister

18    On 2 August 2016, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act on the basis that the applicant did not pass the character test under s 501(6)(a) by reason of his substantial criminal record, and because the delegate was satisfied that the applicant was serving a full-time sentence of imprisonment.

19    On 22 August 2016, the applicant requested revocation of the cancellation decision under s 501CA(4). On 7 April 2018, the Assistant Minister made the decision, personally, not to revoke the delegate’s decision (the first decision by the Assistant Minister). The Assistant Minister had before him a submission signed on 31 March 2017 by the Acting Assistant Secretary, Character Assessment and Cancellation Branch of the Department (the Ministerial Submission). A number of documents were attached to the Ministerial Submission, including National Police Certificates dated 19 August 2016 and 23 May 2016 (Attachments A and A.1 at AB96 and 98 respectively), the sentencing remarks of the Local Court of NSW on 4 May 2016 (Attachment B at AB100), the personal circumstances form completed by the applicant and received on 22 August 2016 (Attachment D at AB115), and correspondence from the applicant dated 1 October 2016 and 10 March 2017 (Attachments E and I at AB125 and AB136 respectively). As earlier mentioned, the first decision by the Assistant Minister was set aside by consent and remitted for redetermination according to law.

2.3    The second decision by the Assistant Minister

20    On 2 May 2018, the Assistant Minister made a decision personally not to revoke the delegate’s decision on the basis that he was not satisfied that the applicant passed the character test under s 501(6)(a) of the Act, or that there was “another reason” why the decision should be revoked. No updated submission to the Assistant Minister was included in the application book even though the decision by the Assistant Minister is marked “Attachment 1”. It is inferred therefore that the only Ministerial submission before the Minister on this second occasion was that signed on 31 March 2017. However it is clear that the Assistant Minister was provided with an updated set of documents which included a number of additional documents to those before him on the first occasion. These included the sentencing transcript of the District Court of NSW on 28 July 2016 on the appeal from the Local Court (Attachment B1 at AB148), submissions from the applicant dated 27 March 2018 in response to the sentencing transcript of the District Court (Attachment L at AB158) to which was attached correspondence from the applicant’s wife, two of his daughters, and a local community leader, and the new Ministerial Direction No 75 which had come into force since the first decision (AB152).

21    In his statement of reasons (the Assistant Minister’s reasons) at [3], the Assistant Minister found that s 501CA(4)(a) of the Act had been satisfied as the applicant had made representations in accordance with the invitation given to him under s 501CA(3)(b). Nor was it in dispute that the applicant did not pass the character test under s 501 of the Act. As a consequence, s 501CA(4)(b)(i) was not satisfied, as the Assistant Minister found (at [9]). In this regard, the Assistant Minister referred to the National Police Certificate dated 19 August 2016 which recorded that the applicant had been convicted in the Local Court of NSW on 4 May 2016 of “commit act of indecency with person 16 years or over” and that, on appeal to the District Court of NSW, his sentence was reduced from 18 to 12 months’ imprisonment. The Assistant Minister found that the applicant therefore had a “substantial criminal record” under s 501(7)(c) of the Act, and did not pass the character test by reason of s 501(6)(a).

22    The Assistant Minister then turned to consider whether he was satisfied that there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). However, he found that he was not so satisfied having assessed all of the information set out in the attachments including the applicant’s representations and documents (Assistant Minister’s reasons at [10]-[11]). The Assistant Minister’s reasons for so finding may be summarised as follows.

23    First, the Assistant Minister stated that he treated the best interests of any affected children under 18 in Australia as a primary consideration in conformity with art 3 of the United Nations Convention on the Rights of the Child (at [13]). He accepted that the applicant’s three minor children have “experienced difficulties” since his incarceration; that “these difficulties will continue if [the applicant] is returned to Sudan and they remain in Australia”; and that they “will be exposed to greater risk of harm and have a reduced quality of their overall lifestyle if they return to Sudan, a conflict-affected third world country” (at [23]; emphasis added). The Assistant Minister therefore found that it would be in the best interests of the applicant’s three minor children for the visa cancellation decision to be revoked (at [24]). The Assistant Minister further found that it would be in the best interests of the applicant’s grandchildren that he remain in Australia, albeit giving this consideration less weight as the applicant was not responsible for his grandchildren’s day-to-day care (at [27]).

24    Secondly, the Assistant Minister’s treatment of the applicant’s claims to fear harm if returned to Sudan are considered in detail later in the course of considering grounds 1(a) and (c) of the further amended application. Suffice it to say here that the Assistant Minister found it was unnecessary to determine whether international non-refoulement obligations were owed to the applicant by reason of his claims to fear harm if returned, because the existence of non-refoulement obligations would be fully considered in line with the Department’s practice in the course of processing any protection visa application (at [31]-[32]). The Assistant Minister also accepted that regardless of the concept of non-refoulement obligations, the applicant “would face hardship arising from the conflict in his home country, where he has previously experienced torture and extreme suffering, were he to return to Sudan” (at [33]).

25    Thirdly, the Assistant Minister considered the strength, nature and duration of the applicant’s ties to Australia (at [34] ff). The Assistant Minister found that the applicant had resided in Australia for 12 years and had family ties to Australia through his immediate family members. The Assistant Minister accepted that if the applicant’s immediate family remained in Australia and he were returned to Sudan, they would experience “emotional, financial and practical hardship as a result of his absence” (at [43]). The Assistant Minister also accepted that if the applicant’s family returned to Sudan with him, they were “likely to experience practical hardship as a result of living in a conflict-affected third world country” (ibid).

26    Fourthly, the Assistant Minister considered the impediments that the applicant would face if removed to Sudan in “establishing himself and maintaining basic living standards” (at [45]). The Assistant Minister had regard to statements by the applicant that he suffered from “deep depression and anxiety” and was haunted by memories of his life in Sudan, and found that it was “likely that [the applicant’s] depression, anxiety, and the other symptoms he describes, will be exacerbated by returning there” (at [48]). The Assistant Minister did not consider that the applicant would experience any substantial language or cultural barriers to returning, given that he spent his formative years and much of his adult life in Sudan (at [49]). While the Assistant Minister accepted that if the applicant were returned to Sudan he may face economic hardship and difficulties obtaining basic necessities such as food and accommodation (at [51]), he considered that these difficulties may be “mitigated somewhat” by family members and friends he had left behind in Sudan, and that his work experience as a labourer may assist him to financially support himself (at [52]). He also accepted that the applicant may require professional mental health support, while accepting that such support in Sudan may be of a lower standard than in Australia (at [53]) (a finding also challenged by ground 1(c) of the further amended application). Finally, the Assistant Minister accepted that the applicant was likely to face “substantial hardship” in returning to Sudan (at [54]).

27    In the fifth place, the Assistant Minister considered the protection of the Australian community in light of “the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens” (at [55]). The Assistant Minister noted “in particular [the applicant’s] claim he is rehabilitated” (ibid).

28    In considering this claim, the Assistant Minister noted that sexual offences are very serious. He considered that the “12 month sentence of imprisonment imposed on 28 July 2016 is further confirmation that the court considered [the applicant’s] offending to be very serious” (at [61]). The Assistant Minister concluded on this issue that the applicant’s criminal conduct in relation to his conviction of commit act of indecency with person 16 years or over (the victim being 22 years of age) was “very serious” (at [63]).

29    In the sixth place, under the heading “Risk to the Australian community”, the Assistant Minister referred to a number of “mitigating or causal factors” in the applicant’s offending including the ongoing impact of the trauma that the applicant experienced in Sudan and the applicant’s alcohol abuse (at [65], [66], [69]). The Assistant Minister took into account that the Magistrate ordered the applicant to undergo a sex offender program in custody (at [70]) and accepted that the applicant’s alcohol abuse issues, which in turn arose from his mental health issues and past trauma, contributed to his offending (at [76]). In assessing the applicant’s risk of harm, the Assistant Minister took into account a psychological assessment of the applicant as a moderate to low risk of further sexual offending based upon an actuarial tool relied upon by the sentencing Magistrate: see further the consideration of ground 2 below.

30    In considering the applicant’s claim that he had been rehabilitated, the Assistant Minister accepted on the one hand that the applicant’s most recent offending was of a much more serious nature than past offences, being the first offence resulting in a sentence of imprisonment (at [79]). (The applicant had earlier been convicted in the Local Court of NSW in 2010 of a traffic offence and two counts of failure/refusal to undergo breath analysis (at [62]).) The Assistant Minister also took into account the applicant’s good behaviour in both prison and immigration detention (at [85]). On the other hand, while the Assistant Minister considered the applicant’s submission that he would see a counsellor to address his alcohol abuse issues, he noted “with concern” that the applicant did not appear to have taken such steps before (at [81]). The Assistant Minister further noted that there was nothing before him to indicate that the applicant had undertaken mental health treatment (at [83]). Moreover the Assistant Minister also found that there was no information before him to indicate the applicant had completed a sex offender program in custody, albeit that he acknowledged that it was unlikely that the applicant had had sufficient time to do so (at [84]).

31    The Assistant Minister concluded that the applicant’s submissions as to his rehabilitation were aspirational statements only at that time, in light of his longstanding issues with alcohol and his assessment of a “low to moderate risk of further sexual offending” in relation to which he had not undertaken any interventions (at [88]).

32    The remainder of the Assistant Minister’s reasons may be summarised briefly as follows. The Assistant Minister accepted that the applicant had demonstrated remorse for the harm his behaviour had caused to the victim and the community, and had displayed some insight into the causes of his offending through acknowledging the role of his mental health issues and alcohol abuse (at [95]). In relation to social support, the Assistant Minister considered that the applicant intended to return to his home with his wife and family. However, he found that the social supports available to the applicant in the community had failed to deter him from offending in the past (at [100]).

33    Based upon these matters, the Assistant Minister found that “there is a risk that [the applicant] will reoffend” (at [102]) and that further re-offending could result in psychological harm to members of the Australian community.

34    The Assistant Minister concluded by balancing these considerations, giving significant weight to the serious nature of the crime committed by the applicant being of a sexual nature (at [108]) and to his finding that he could not rule out the possibility of further offending by the applicant (at [109]). Specifically, the Assistant Minister found:

110.    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 as a primary consideration, and any other considerations as described above. These include his claims that he will suffer hardship and harm if returned to Sudan …

3.    CONSIDERATION

3.1    The issues

35    By the draft further amended originating application for review, the applicant contends that:

(1)    The Assistant Minister denied the applicant procedural fairness or constructively failed to exercise his jurisdiction in the following respects.

(a)    The Assistant Minister’s finding at [31] of his reasons that it was unnecessary to consider whether non-refoulement obligations may be owed to the applicant was premised on the understanding that the applicant could apply for a protection visa, and at [32] that Ministerial Direction 75 would require the decision-maker to assess protection-related criteria before “character-related” criteria. However, the Assistant Minister failed to take into account that Direction 75 does not apply if the Minister makes a decision personally (ground 1(a)).

(b)    The Assistant Minister’s findings at [31]-[33] failed to take into account, or misunderstood, the operation of ss 197C and 198 of the Act in that s 198 imposes the obligation on an officer to remove an “unlawful non-citizen” as soon as reasonably practicable notwithstanding that Australia may owe non-refoulement obligations to her or him, as provided for by s 197C. As such, the Assistant Minister failed to consider that the applicant may not be able to apply for a protection visa (ground 1(b)).

(c)    The Assistant Minister failed to provide an active intellectual engagement with the applicant’s representations as to whether the Assistant Minister was satisfied of the existence of “another reason” for revoking the visa cancellation independent of any future protection visa claim. This ground focuses upon the Assistant Minister’s treatment of the applicant’s claims to fear torture, extreme suffering and mental health impacts if returned to Sudan, and relied upon the recent decision of the Full Court in Omar (FCAFC) (ground 1(c)).

(2)    It was legally unreasonable for the Assistant Minister to find at [75] of his reasons that the results of a tool to assess the risk of the applicant re-offending were “the most accurate and objective available measure of [the applicant’s] risk of further sexual offending”, whilst acknowledging that the results of that tool were known to be unreliable (ground 2).

36    As to the nature of the Court’s task on judicial review, it is important to emphasise at the outset that the Court is confined to deciding whether the Assistant Minister’s decision was made lawfully under the Act, that is, whether his decision is invalid by reason of a jurisdictional error.  It is not in issue that the grounds alleged on this application, if established, will found a jurisdictional error.  However, this Court has no jurisdiction to revoke the decision to cancel the applicant’s visa or to correct any mistaken findings of fact by the Minister in the revocation decision or otherwise to engage in merits review: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). While the Assistant Minister’s decision might be regarded as harsh, with consequences of the most serious kind for the applicant and his family, the question of whether or not this Court agrees with the Assistant Minister’s decision and would have made the same decision is not a basis on which the Court could grant relief. As the Minister submitted in his supplementary submissions at [11], even emphatic disagreement with a decision-maker’s assessment of representations does not establish that the decision is invalid by reason of jurisdictional error.

3.2    Alleged failure to take into account that Direction 75 would not apply to decisions made by the Minister personally on a protection visa application (Ground 1(a))

37    By ground 1(a), the applicant contends that the Assistant Minister fell into error at [31]-[32] of his reasons in that he failed to take into account that Direction 75 would not apply if the Assistant Minister (or the Minister) personally made a decision in relation to any protection visa application by the applicant.

38    At [31]-[32] of his reasons, the Assistant Minister found that:

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

32.    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.

(emphasis added)

39    In support of his submission that the Minister misunderstood the future course of decision-making, the applicant relied in particular upon the Full Court’s decision in BCR16. In BCR16, the majority (Bromberg and Mortimer JJ) held that the Minister’s exercise of the power under s 501CA(4) of the Act had proceeded on a material misunderstanding of the law constituting a jurisdictional error. Specifically the majority held that the Minister had wrongly assumed that non-refoulement claims would necessarily be considered in the course of assessing any application for a protection visa by the appellant because any such application could be refused for other reasons before addressing any non-refoulement claims. An application for special leave to appeal from that decision was refused by the High Court. The decision in BCR16 was confirmed by the Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523 at [87]-[89].

40    In response to this line of authority, the Minister issued Direction 75 pursuant to s 499 of the Act. Direction 75 provides 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 before considering any character or security concerns. As such, Direction 75 removes the possibility that a delegate might refuse to grant a protection visa on character grounds before considering whether Australia’s protection obligations as embodied in the Act were engaged with respect to an applicant. It was not, however, in issue that the Direction would not apply if the decision were made by the Minister or Assistant Minister.

41    Based upon a comprehensive survey of relevant authority as to the effectiveness of Direction 75 in addressing the jurisdictional error upheld in BCR16, Anderson J recently held in GBV18 v Minister for Home Affairs [2019] FCA 1132 (GBV18) that:

67.    … A number of decisions of this Court collectively support the position that, as a result of the issuing [of] 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. …

42    As Anderson J observed, Mortimer J reached a different view in Omar v Minister for Home Affairs [2019] FCA 279 (Omar (FCA)) at [81]-[82]. However, despite some reservations about the issue, Anderson J declined to follow Omar (FCA) in GBV18, holding that:

73.    … 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.

(emphasis in original)

43    Steward J in DYY18 v Minister for Home Affairs [2019] FCA 1901 (DYY18) agreed with Anderson J’s conclusion regarding the weight of authority and followed the decision in GBV18. However, as Steward J also pointed out in DYY18 at [41], that is not the end of the matter. The relevant principles must be taken to have been resolved by the Full Court in DOB18 (FCAFC) (a decision which post-dated Omar (FCA) and, as earlier mentioned, was the subject of an unsuccessful application for special leave to appeal to the High Court).

44    The appellant in DOB18 (FCAFC) submitted that the Minister had fallen into jurisdictional error on two grounds in finding that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the appellant because the existence of any such obligations “would” be fully considered on any application for a protection visa, namely:

(1)    non-refoulement obligations would not necessarily be considered if the application were determined by the Minister personally because Direction 75 would not apply and the Minister could therefore lawfully refuse such an application on other criteria; and

(2)    non-refoulement obligations may play a qualitatively different role in the context of determining a protection visa application, as opposed to the role which they may play in relation to a determination under s 501BA(2) (which was the relevant provision in issue in DOB18 (FCAFC)).

(DOB18 (FCAFC) at [112]-[120] and [131]-[137].)

45    These two grounds essentially mirror the way in which ground 1(a) of the further amended application was argued in this case.

46    Robertson J in DOB18 (FCAFC) (with whose reasons Logan J relevantly agreed at [38]) rejected these grounds. With respect to the first ground, Robertson J held that the Minister was not setting out a legal proposition, but only a factual proposition in the event that the appellant applied for a protection visa (at [165]). As such, to establish error, his Honour held that “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” (at [169]). However, the appellant had failed to do so (ibid).

47    Similarly in the present case, the Assistant Minister was not setting out a legal proposition at [31] but rather explaining what in fact would be the future course of decision-making if the applicant applied for a protection visa by reference to the Department’s practice. As such, the applicant has not established that the Assistant Minister wrongly assumed as a matter of law that non-refoulement obligations would necessarily be assessed should a protection visa application be made. That being so, while there is “no guarantee” (as the applicant contends) that the Minister will not personally decide any protection visa application, applying DOB18 (FCAFC) it was necessary for the applicant to establish that it was likely: (1) that the Minister would make the decision personally; and (2) that she or he would not consider whether the criteria in s 36(2)(a) and (aa) were met before considering any other criteria.

48    The applicant argues that it can be inferred from the fact that the Assistant Minister made both the first non-revocation decision and the decision on remittal that it is likely that he or another duly authorised Minister would decide any protection visa application by the applicant. However, even if that inference were drawn, the applicant has failed to establish on the balance of probabilities that a ministerial decision-maker would not consider the protection criteria first. Importantly in this regard, the Minister’s finding that he was “confident” that the applicant would have the opportunity to have his protection claims fully assessed in the course of any protection visa application was based upon the Department’s practice in processing protection visa applications as “reinforce[d]” by Direction 75: see also DOB18 (FCAFC) at [66] (Logan J). The Minister’s conclusion in this respect was therefore not dependent upon whether the decision-maker assessing a protection visa claim was bound by Direction 75. In this regard, as Logan J stated in DOB18 (FCAFC) at [66], “[u]nder 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.”

49    As to the second ground in DOB18 (FCAFC), Roberson J held that no error was established because: (1) the Minister had in fact considered the appellant’s claim about the risk of harm if returned; and (2) it was otherwise lawful for him to defer any assessment of whether that risk of harm engaged Australia’s non-refoulement obligations to the point in time when any protection visa application was being considered. As his Honour explained:

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].

50    However, Robertson J pointed out that:

184.    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.

51    As such, his Honour drew a 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”, holding that the former must be considered in making a decision under s 501BA(2) (at [185]). His Honour concluded that:

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.

52    The distinction drawn by Robertson J in DOB18 (FCAFC) in these passages was approved by the Full Court in Omar (FCAFC) at [34(f)].

53    In the present case, it is apparent from [33] of his reasons that the Assistant Minister appreciated the need for him to consider the applicant’s claims to fear harm if returned in the context of determining whether there is another reason to revoke the cancellation decision. The real question is that raised by ground 1(c), that is, whether the Assistant Minister gave the applicant’s claims to fear harm meaningful consideration. That question may conveniently be addressed next.

3.3    Alleged failure to engage intellectually with the applicant’s claims to fear harm if returned to Sudan, separately from any protection visa application (ground 1(c))

3.3.1    The decision in Omar (FCAFC): relevant principles

54    As earlier explained, ground 1(c) relies upon the decision in Omar (FCAFC). That decision turned upon the question of whether 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 reasons for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations. In Omar (FCAFC), the representations by the respondent, Mr Omar, included a representation that even if the Minister considered that it was unnecessary to consider non-refoulement obligations, the cogent evidence of Mr Omar’s fragile mental state remained apposite (Omar (FCAFC) at [9]).

55    After emphasising that a statement of reasons must be read fairly and not with an eye keenly attuned to the detection of error, the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) explained the relevant legal principles at [34] as follows:

(e)    The representations made on behalf of the respondent in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described …

…

(g)    The representations play a central role in the relevant statutory regime. The Minister’s statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane [v Minister for Immigration and Border Protection (2018) 263 FCR 561] at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. …

(h)    In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the Minister has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” (see BCR16 [v Minister for Immigration and Border Protection (2017) 248 FCR 456] at [70]-[73] per Bromberg and Mortimer JJ).

(i)    While it may have been open to the Assistant Minister here ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not “another reason” for revoking the visa cancellation, the Assistant Minister was nevertheless obliged to give meaningful consideration to the representations on this issue. Again, as Colvin J stated in Viane at [67]-[68] in the context of the Minister’s statutory task under s 501CA(4):

67.    In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.

68.    Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

(citations omitted; italicised emphasis added)

56    With respect to explaining what the duty to consider the merits of Mr Omar’s case entailed, the Full Court at [36(c)] considered the following observations of Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 451 (Tickner) at 495 to be “particularly apposite”:

To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say …

57    The Full Court also considered at [37] that the Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request was consistent with the following observations by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):

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

(emphasis added)

58    The Full Court concluded on the issue of principle that:

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

40.    That is particularly the case here where representations were clearly made on the respondent’s behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country. It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia’s treatment of the mentally ill, which claim was supported by the WHO 2010 report. As Robertson J stated in DOB18 [v Minister for Home Affairs [2019] FCAFC 63] at [190] (with whom Logan J agreed), “the nature and content of submissions made to the Minister” in support of a revocation request under s 501CA(4) is relevant. There had to be an active intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm.

41    The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error (see Viane at [28]-[30] per Rangiah J and at [67] per Colvin J and Ezegbe at [37] per Perram J).

59    Applying these principles, the Full Court held that the Assistant Minister had failed to consider Mr Omar’s representations. Aspects of the Minister’s reasons in Omar (FCAFC) which were taken into account by the Full Court in reaching this conclusion included that the Minister merely “noted”, or said that he had taken into consideration or account, some of the matters raised by the respondent on the subject of risk of harm in Somalia, or had merely recorded a submission (such as a likelihood that Mr Omar would be chained or imprisoned contrary to Australia’s international human rights obligations) without making any finding as to whether or not that may occur (at [43]). Their Honours also found that such deficiencies in the decision-making process “are not overcome by broad statements such as those that are made at the commencement of [91] and [98] of the Assistant Minister’s statement of reasons (i.e. ‘I considered all relevant matters …’ and ‘Having given full consideration to all of these matters’)” (Omar (FCAFC) at [43(g)]).

60    Finally, it is important to emphasise that a finding that a decision-maker has not engaged in an active intellectual process will not lightly be made: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [48] (the Court). Furthermore, as the Minister submitted, each case will necessarily turn upon its particular facts and circumstances and requires a court exercising supervisory jurisdiction to engage in a qualitative assessment, taking into account the available evidence and reasonable inferences as to all the relevant facts and circumstances of the case: Carrascalao at [47]-[48]; Omar (FCAFC) at [39]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45] (Rares and Robertson JJ) (approved in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (the Court)).

3.3.2    The parties’ submissions

61    The Minister submitted that this case is distinguishable from Omar (FCAFC).

(1)    First, he submitted that the Assistant Minister in fact considered the representations made by the applicant regarding his fears of returning to Sudan, pointing to the following aspects of his reasoning.

(a)    The Assistant Minister acknowledged the distinction recognised in Omar (FCAFC) between the Minister’s duty to consider significant matters advanced in representations in support of revocation on the one hand and his duty to consider Australia’s non-refoulement obligations on the other hand.

(b)    The Assistant Minister expressly had regard to “and positively accepted as a fact, the conflict in Sudan and the applicant’s previous experiences of torture and suffering” (Minister’s supplementary submissions at [8]).

(c)    Separately from any consideration of non-refoulement obligations, the Minister submitted that the Assistant Minister took into account the applicant’s representations concerning the conditions in Sudan and the hardship the applicant would suffer there. In particular, the Assistant Minister accepted that: it was likely that the applicant’s depression, anxiety and other symptoms would be exacerbated by returning to Sudan (reasons at [48]); Sudan was a conflict affected, developing country; and the applicant may face economic hardship and difficulties if returned (at [51]). The Assistant Minister also expressly took into account his representations about his mental health issues (at [53]), concluding that he was likely to face “substantial hardship” if returned (at [54]).

(2)    Secondly, the Minister submitted that any lack of detail in the Assistant Minister’s reasons may be attributed to the brevity of the representations made (citing Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620; (2018) 261 FCR 385 at [62] (Thawley J)). In those circumstances, the Minister submits that it was unnecessary for the Assistant Minister to make additional findings in the circumstances (citing FBW18 v Minister for Home Affairs [2019] FCA 1878 (FBW18) at [105]-[108] (Yates J); and referred by “stark contrast” to the representations made in Omar (FCAFC) at [8]-[15] (see the Minister’s supplementary submissions at [10])). In his submission, the Assistant Minister did more than merely acknowledge the applicant’s representations, both in relation to his fear of torture and death if returned to Sudan and his mental health concerns.

3.3.3    Consideration and disposition of ground 1(c)

62    It was not in dispute that the applicant’s representations as to his fear of harm if returned were clearly expressed and significant, and that the Assistant Minister was required to give them meaningful consideration. Furthermore, as the Minister submitted, the Assistant Minister at [33] of his statement of reasons considered the applicant’s claims to fear harm outside the framework of Australia’s non-refoulement obligations. As earlier indicated, the central question raised by ground 1(c) is whether, in all of the circumstances, including the alleged lack of detail in the applicant’s claims to fear harm, the Assistant Minister gave meaningful consideration to those representations. In the particular circumstances of this case, that question must be answered “No” for the following reasons.

63    First, the representations by the applicant included the following:

(1)    In his revocation request, the applicant said that he “would face alot of problems that why we eskip sudan To egipt Then to Australia, also the government awear about what happening in sudan” (AB124; errors in the original).

(2)    In his statement dated 10 March 2017, the applicant said relevantly:

I can only say that my unfortunate past along with the extreme suffering & torture that I had to go through, has led me to deep depression & anxiety For years I was constantly haunted by unpleasent memories of my previous life. Having daily nightmares & waking up in the middle of the night frightened & scared has become part of my life. The feeling of insecurity & that I’ve been abandoned by the very people & country that I once called home. Fleeing my mother land & war-torn cities that seemed no longer familiar to me, chaotic & inhumane, slowly turning into a living nightmare, was the hardest choice I ever had to make.

(AB136; errors in the original)

(3)    In his submissions dated 27 March 2018 in response to the sentencing transcript of the District Court of NSW, the applicant referred to the Court’s acknowledgment of his mental health issues and that he “migrated to Australia in 2005 as a refugee due to living in a rural village in Africa which was subjected to considerable danger as a result of a civil war in that Community”. He also made the further submission that:

I came to Australia under a Refugee and Humanitarian (Class XB) Subclass 202 – Global Special Humanitarian visa.

If I am returned to my country of nationality I will be torture and or killed as the civil war has not ended and as an escaped person I will be tortured and then killed.

…

If I am removed to Africa my Family would follow me even though they are aware that it would place their life at serious risk of being tortured and or killed. If I was removed from Australia to Africa, this would place me and my whole family at risk of being tortured and killed due to the civil war in Africa.

(AB159 and 160)

64    Secondly, with respect to the applicant’s representations that he arrived as a refugee in Australia on the humanitarian visa (being the visa the subject of the cancellation), it can reasonably be inferred that the Assistant Minister was aware that the Department must have accepted that the applicant feared discrimination amounting to gross violation of human rights in Sudan when he made the application and at the time when the visa was granted in 2005: see the “primary criteria” specified by cll 202.2, 202.211(1)(a), 202.212(a), 202.221, and 202.222 of Schedule 2 to the Migration Regulations 1994 (Cth) as at 26 July 2005 and as currently in force.

65    Thirdly, in his statement of reasons the Assistant Minister correctly identified at [12] that the reasons given by the applicant as to why the original decision should be revoked included that:

•    he is in fear of being tortured and/or killed if he is returned to Sudan, where he has previously been tortured and caused extreme suffering;

•    he experiences anxiety and depression arising from previous traumatic experiences in Sudan …

(emphasis added)

66    The Assistant Minister then correctly observed that as part of his representations seeking revocation, the applicant “makes reference to the war-torn state of the country, and describes it as ‘a living nightmare’, where he has previously experienced ‘extreme suffering’ and ‘torture’, and lived in the ‘the most dangerous of conditions’” (Assistant Minister’s reasons at [28]). The Assistant Minister also “note[d]” that in the sentencing remarks of 28 July 2016, the Judge stated that the applicant “lived in a rural village which was subjected to considerable danger as a result of the civil war in that Country” (Assistant Minister’s reasons at [29]; emphasis added). The Assistant Minister then stated that he had “considered” the applicant’s claim in his submissions of 27 March 2018 that the civil war in Sudan has not ended and his claim that “as an escaped person I will be tortured and then killed” (Assistant Minister’s reasons at [30]).

67    However, while the Assistant Minister accepted that the applicant “would face hardship arising from the conflict in his home country”, that finding falls well short of a finding as to whether or not he may suffer torture or extreme suffering or be exposed to highly dangerous conditions (Assistant Minister’s reasons at [33]; emphasis added). Yet the Assistant Minister accepted that Sudan was (still) a “conflict-affected third world country” (at [23]; see also at [33]) and that the applicant “has previously experienced torture and extreme suffering” in his home country (at [33]; emphasis added) because of the conflict – a finding which it can reasonably be inferred was based at least in part upon the fact of the earlier grant of the humanitarian visa to the applicant. Despite those findings, there is no consideration by the Assistant Minister of whether the situation in Sudan had changed such that, notwithstanding the ongoing conflict, the applicant was no longer at risk of suffering to the same extreme level as the Assistant Minister accepted he had been subjected to in the past.

68    It also follows that while the applicant’s submissions about the harm which he says that he would face if returned are brief as the Minister submits, that brevity must be understood in a context where the Department has already accepted that the applicant would be subjected to discrimination amounting to a gross violation of human rights in Sudan.

69    Equally, the Assistant Minister’s reasons with respect to the applicant’s mental health and the availability of mental health support in Sudan fall well short of a direct or genuine confrontation with the hardship which the applicant may suffer by reason of his mental health conditions if returned. In this regard, the Assistant Minister accepted at [48] that “it [is] likely that his depression, anxiety, and the other symptoms he describes, will be exacerbated by returning there”, the other symptoms described including flashbacks, daily nightmares and waking nightly in fear (at [47]). In so finding, the Assistant Minister expressly accepted (at [48]) the submission that these symptoms arose from the applicant’s previous traumatic experiences in Sudan. Given these findings, the Assistant Minister also understandably accepted at [53] that as a result, the applicant may require “professional supports to assist with his mental health issues if he returns”. Yet the finding at [53] is merely that:

I find that [the applicant] will have similar levels of access to any available mental health, and other services as that generally available to other Sudanese citizens in the same position as [the applicant], although I recognise that any available services may be of a lower standard than those available to him in Australia.

(emphasis added; errors in original)

70    Merely to “recognise” that “any” available mental health services “may” be of a lower standard involves, with respect, no active intellectual engagement with the hardship that might be caused to the applicant if he is returned in this respect. At the very least, the Assistant Minister was required to confront the fact that self-evidently the availability of mental health services, access to these and other relevant services, and the standard of such services (if any) which are available, would be impacted upon by the fact, as the Assistant Minister accepted, that Sudan is a “conflict-affected third world country”. Indeed, the fact that the material before the Minister does not reveal the nature and extent of the discrimination on the basis of which the applicant was granted the humanitarian visa, and that no finding is made in this regard, reinforce the impression that the finding by the Minister at [53] did not reflect in a meaningful way upon the human consequences involved and therefore with the applicant’s representations. In other words, how can it be found that the applicant would have similar levels of access to services as other Sudanese citizens “in the same position as [the applicant]” (whatever that may mean) without apparent consideration of any information about those services?

71    It follows that the Assistant Minister failed to engage in an active intellectual way with the applicant’s express and significant representations as to the risk of harm if returned to Sudan and the impact upon the applicant’s mental health. As a result, the Assistant Minister did not discharge his statutory duty to consider whether or not he has the requisite state of satisfaction to revoke the cancellation. Ground 1(c) of the further amended application must therefore be upheld.

72    Finally, three other troubling aspects of the decision of the Assistant Minister should be mentioned, albeit that it was not contended that they sounded in jurisdictional error.

73    First, the submission that the applicant’s representations are brief is somewhat disengaged from the reality of the applicant’s position, bearing in mind that: the applicant was unrepresented and in immigration detention on Christmas Island; he drew the Minister’s attention to his lack of primary and secondary education in his submissions dated 27 March 2018; the applicant did not speak English as his first language (as was apparent, for example, from the transcript of Local Court sentencing remarks); and as the Assistant Minister accepted, the applicant was suffering from mental health issues as a result of what had occurred to him in Sudan in the past.

74    Secondly, the applicant submitted to the Assistant Minister that the Australian Government was aware about what was happening in Sudan, apparently considering that that was sufficient. Yet, while the onus lay upon him to put relevant material to the Minister in support of his claims to fear harm, there is no evidence that the Department advised him that his apparent understanding as to where the onus lay was incorrect despite the disadvantages under which he laboured.

75    Thirdly, it is also troubling that the documents provided to the Assistant Minister for the purposes of the non-revocation decision apparently did not include any documents relating to, or information about, the grant of the humanitarian visa, despite the fact that these documents might reasonably be expected to be in the Department’s possession, and this being arguably an obvious and relevant line of enquiry: cf e.g. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); and Jahangir v Minister for Immigration and Border Protection [2014] FCA 218; (2014) 222 FCR 91 at [56] (Katzmann J). Yet such information is likely to have identified with particularity the basis on which the Department had granted the humanitarian visa: cf e.g. DOB18 (FCAFC) at [183] (Robertson J) where the Minister had noted the appellant’s visa history, including the grant of a temporary protection visa in 2006 due to his stated homosexuality.

3.4    Alleged failure to take into account the operation of ss 197C and 198 of the Act (Ground 1(b))

76    With respect to ground 1(b), the applicant argues that the Assistant Minister failed to consider the legal consequences of ss 197C and 198 of the Act when he made the non-revocation decision.

77    Section 198(2B) of the Act provides that:

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

(a)     a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)     since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)     in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision – either:

(i)     the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)     the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.

Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

78    Section 198 must be read subject to s 197C which reads:

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

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

79    Based upon these provisions, the applicant submitted that:

27.    The legal consequence of the Assistant Minister’s decision is that by s.197C and 198, the applicant must be removed from Australia as soon as practicable, if a person does not hold any relevant visa, or no alternative management options have been made by the Minister or decision-makers holding a ministerial office. The effect of s.197C is that international non-refoulement obligations are no longer relevant to the obligation to remove a person under s.198; and the consequence is that, subject to the Minister considering alternative management options such as s.195A, the person must be removed as soon as reasonably practicable notwithstanding that Australia may have non-refoulement obligations in respect of the person. This means that there is no guarantee that the applicant will have the opportunity to make a protection visa application. Accordingly, in this case the Assistant Minister failed to consider the operation and effect of the provisions ss.197C and 198 of the Act.

80    However an argument to this effect was rejected by Barker J in BKS18 v Minister for Home Affairs [2018] FCA 1731 (BKS18). In that case, the applicant also submitted that the legal consequence of the non-revocation decision was misunderstood by the Assistant Minister, in that there was no guarantee that the applicant would have an opportunity to apply for a protection visa, due to the effect of ss 197 and 198 of the Act (BKS18 at [95]). However, notwithstanding the terms of ss 197C and 198, Barker J held that:

101.    In the present case, however, it seems to me the time for s 197C and s 198 to apply have not arrived. The applicant may, as the Minister submits, have the question of Australia’s nonrefoulement obligations to him considered as part of a protection visa application, should he make such an application. It is for the applicant to decide whether he wishes to avail himself of that opportunity. He is not precluded from doing so.

102    In my view, if he makes that application, Australia’s non-refoulement obligations to the applicant would not be ignored, having regard to the materials currently before the Court.

81    (I note that, while as at the date of the hearing of this application, an application for leave to appeal from BKS18 was pending, the parties drew the Court’s attention to the fact that the applicant had withdrawn that application on 4 February 2019.)

82    Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) expressed a similar conclusion to that reached by Barker J in the context of holding that the Minister, in considering under s 501CA(4) whether to revoke a cancellation decision, did not err in deferring a consideration of whether Australia owed non-refoulement obligations until any protection visa application was made (at [28]-[34]). These decisions in turn were subsequently followed by Yates J in FBW18 at [85] where his Honour held that the significance, if any, of these provisions is a matter for consideration at a later state of decision-making.

83    Against this, the applicant sought to rely upon the decision of Rares J in FRH18 v Minister for Home Affairs [2018] FCA 1769; (2018) 266 FCR 413 (FRH18). That decision concerned an application for judicial review of the Minister’s decision under s 501A(2) of the Act to personally intervene to cancel the applicant’s partner visa on the basis that his criminal history and risk of re-offending justified cancellation in the national interest. In the course of his reasons, the Minister had acknowledged that Australia owed the applicant non-refoulement obligations but considered that “alternative management options” other than removal from Australia were available to address those obligations.

84    Rares J at [44] referred first to the distinction drawn by the Full Court in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56 at [61] (Allsop CJ, Griffiths and Wigney JJ) between a case where it is open to a person whose visa has been cancelled to apply for a protection visa, on the one hand, and a case where that is not open, as follows:

(e) in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;

(f) this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or s 501(2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and

(g) the position is also different where, in a case such as NBMZ [v Minister for Immigration and Border Protection (2014) 220 FCR 1] or NBNB [v Minister for Immigration and Border Protection (2014) 220 FCR 44], the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or s 501(2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances.

(emphasis as inserted by Rares J in FRH18)

85    Importantly, unlike the present case, the circumstances of the applicant in FRH18 fell within scenario (g) because s 48A of the Act prevented the applicant from applying for a protection visa. In effect, his Honour also held that the case was one where there was no assurance that any consideration would subsequently be given to Australia’s non-refoulement obligations. In this regard, Rares J held that each of the non-compellable powers to “lift the bar” imposed by s 48A, to grant a visa under s 195A, or to permit a detainee under s 197AB to reside in a place other than immigration detention, turned upon an assessment by the Minister that it was in the public interest to exercise the power. Yet, Rares J held that:

51.    No reasonable person in the Minister’s position could have found any potential for using his discretion to grant another visa under s 195A or his other non-compellable powers as an “alternative management option” to meet Australia’s non-refoulement obligations would remain available to him if, as he found, the national interest required cancellation of the partner visa because of the risk of a mere possibility that the applicant would reoffend …

86    Indeed, Rares J found at [53] that “[i]t is as clear as burning daylight that the Minister had closed his mind to the possibility of granting the applicant a visa in the future, or at least within any reasonable time after he cancelled the partner visa.”

87    Rares J therefore held that the Minister had misunderstood and therefore failed to take into account the legal consequences of his decision because “he had not considered how, in light of the cancellation of the visa and ss 197C and 198, any ‘alternative management option’ could lead to an outcome other than refoulement by force of ss 197 and 198” (at [60]). The present case is therefore distinguishable from FRH18 because it remains open to the applicant to apply for a protection visa and there has been no finding indicative of a closed mind to the grant of such a visa in the future.

88    The applicant also sought to rely upon the decision in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576 (DMH16). In DMH16, the Minister had accepted that Australia owed non-refoulement obligations with respect to the applicant, but refused the grant of a protection visa on character grounds. North ACJ held that in so deciding, the Minister had acted upon an incorrect understanding of the law that Australia will not remove a non-citizen in respect of whom a non-refoulement obligation exists, apparently overlooking the effect of s 197C of the Act. Again therefore the decision in DMH16 is distinguishable from the present case because the option remains open to the applicant to apply for a protection visa.

89    It also follows that properly analysed, the decisions in DMH16 and FRH18 do not undermine the line of authority upon which the Minister relied. Applying therefore the reasoning in BKS18, Ali and FBW18, ground 1(b) of the further amended application must be dismissed.

3.5    Alleged legal unreasonableness (Ground 2)

90    Finally, ground 2 challenged the Minister’s reasons at [75] in the context of considering the risk that the applicant might re-offend on the ground that they were legally unreasonable.

91    The relevant principles were not in doubt and are conveniently summarised by the Minister in his submissions as follows:

27.    As observed by Perry J in Azar v Minister for Immigration and Border Protection [2018] FCA 1175 at [59], the requirement that a statutory discretion be exercised reasonably is sourced in the implication that Parliament intended that it be so exercised: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]-[26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[89] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58]. Her Honour observed that “the starting point for any evaluation of whether an administrative decision is legally unreasonable, and therefore outside the range of lawful possible outcomes, must be the terms, scope and policy of the statutory source of the power”, citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90]).

28.     As emphasised by Allsop CJ in Stretton at [8], the Court’s function of reviewing administrative decisions for unreasonableness is limited strictly to a supervisory function. In the same case, at [92], Wigney J opined:

In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.

92    Placed in context, the relevant passages in the Minister’s reasons challenged by ground 2 are as follows:

73.     The Judge [in his comments in the 28 July 2016 sentencing transcript in the District Court (Judge Hanley SC)] also made reference to a pre-sentence report dated 20 April 2016, which indicated [the applicant] “is unable to moderate his drinking behaviour and seemed to believe that it was not a problem.” The pre-sentence report was also noted to make reference to the sexual nature of [the applicant’s] offending, which he attributed to “the lack of relationship with his wife”. The Judge noted that [the applicant] had been assessed by psychologist T Wakeman as a moderate to low risk of further sexual offending using the Static-99 R Assessment Actuarial Tool.

74.     I note [the applicant’s] submissions regarding the Static-99 R assessment in his submissions of 27 March 2018, where he makes reference to the sentencing transcript of 28 July 2016, where the Judge expressed “some considerable doubts as to how much assistance can be placed upon its results.”

75.    While I acknowledge the Judge’ reservations about the Static-99 R assessment, I note the Judge also stated “However, it is regularly used despite its inherent limitations.” In light of these comments regarding the regular use of this assessment, I consider it the most accurate and objective available measure of [the applicant’s] risk of further sexual offending, notwithstanding any limitations it may have.

76.    I accept that [the applicant’s] alcohol abuse issues have contributed to his offending, and these issues have arisen from mental health issues relating to past traumatic experiences. In light of the sentencing Magistrates [sic] comments on 4 May 2016, I also consider that [the applicant’s] attitude towards women contributed to his sexual offending, and note that he has been assessed as a moderate to low risk of further sexual offending through the application of an actuarial assessment tool.

(emphasis added)

93    In support of ground 2, the applicant’s counsel submitted that the finding at [75] that the assessment tool was “the most accurate and objective available measure” of the applicant’s risk of further sexual offending was legally unreasonable for the following reasons:

a.    There was an insufficient evidentiary basis for the Assistant Minister to conclude that the tool was the optimal measurement, in light of the following:

i.    the reservations expressed by the sentencing judge;

ii.    the evidence supports the conduct being fuelled by alcohol abuse;

iii.    it was a one-off serious offence ever committed by [the applicant]; and

iv.    he has not had any previous history of any sexual misconduct or behaviour of this kind.

b.    The risk of re-offending is a critical factor for consideration in a character test assessment, given the considerable doubt cas[t] by the sentencing judge on the tool, the Assistant Minister did not consider the possibility that the tool may have overstated the risk to “moderate to low”, in circumstances where [the applicant] has only ever committed the one offence of this nature.

c.    The High Court and Full Federal Court have repeatedly emphasised the care with which protection visa assessment should be made in the context of the grave circumstances for an applicant. In this case, [the applicant] submitted that he feared persecution if returned to Sudan. In such circumstances, the possible impact on [the applicant] should have been considered before making such an unequivocal finding on an unreliable result about such a critical matter.

(Applicant’s outline of submissions at [45])

94    The Minister did not have the psychologist’s report or any further information about the Static-99R Assessment Actuarial Tool before him at the time that he made his decision. All of the information that the Minister had before him with respect to the tool was set out in the following brief passage in the District Court’s sentencing remarks:

He was subjected to assessment by that section of the Community Corrections Service that looks at offenders committing sexually orientated offences and the psychologist T Wakeman assessed him as having “moderate to low risk” of reoffending pursuant to the results achieved from the application of the Static-99 R Assessment Actuarial Tool. It is a tool that I have some considerable doubts as to how much assistance can be placed upon its results. However, it is regularly used despite its inherent limitations.

(AB149)

95    Nonetheless, it seems clear from these remarks that the District Court Judge did not entirely discount the results from the actuarial tool given its regular use presumably in sentencing decisions. Equally, it seems clear that the District Court Judge did not afford that the results of the actuarial tool great weight given the “considerable doubts” which he expressed about the level of assistance which the use of the tool could afford.

96    While the basis for the finding at [75] of the Minister’s reasons might be thought to be weak, in my view the Minister correctly submitted that the non-revocation decision did not lack an evident or intelligible justification (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332); nor was it a decision that no reasonable decision-maker could have made (citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611). As the Minister submitted, it was within the bounds of legal reasonableness for the Assistant Minister to take into account the results of the psychological assessment before the District Court when the applicant was sentenced. Nor did the finding that it was “the most accurate and objective available measure” lack an evident and intelligible foundation. There was no other psychological or expert evidence addressing this issue. Furthermore, the sentencing Judge accepted that the tool was regularly used, notwithstanding his Honour’s reservations about the assessment which the Assistant Minister expressly acknowledged. Nor did the Assistant Minister take the results of the assessment tool as determinative in assessing the risk that the applicant might re-offend. He also took into account other considerations, including the applicant’s problems with alcohol abuse (at [66]-[76]). While, therefore, reasonable minds may disagree, even strongly, with the Assistant Minister’s finding at [75] as to the reliability of the measure and the weight apparently given to the results of the actuarial tool by the Assistant Minister, it cannot be said that the finding was legally unreasonable. It follows that ground 2 must be dismissed.

4.    CONCLUSION

97    For these reasons, ground 1(c) of the application for judicial review must be upheld and the decision of the Assistant Minister quashed, with the matter remitted for rehearing. In the circumstances, the parties should be afforded the opportunity to make submissions as to whether it is appropriate for the matter to be remitted to be determined by a person other than the Assistant Minister in order to avoid any possible perception of bias, given that the Assistant Minister has decided the matter adversely to the applicant on two prior occasions. In so suggesting, I would emphasise that I am not suggesting that the Assistant Minister would in fact approach the matter otherwise than with an open mind.

98    Finally, while I have reserved costs given the complex history of this matter, my preliminary view is that there is no reason why the applicant should not be awarded his costs.

Associate:

Dated:    7 January 2020