FEDERAL COURT OF AUSTRALIA

YNQY v Minister for Home Affairs [2020] FCA 56

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent dated 20 May 2019 be set aside.

2.    The matter be remitted to the second respondent for determination according to law.

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

4.    If the first respondent wishes to seek a different costs order from that set out in paragraph 3, he may do so by giving written notice to the Court and the applicant within seven days. Directions will then be made for the filing of submissions on costs.

THE COURT DIRECTS THAT:

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

6.    In the absence of any agreement:

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

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

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

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    By amended originating application, the applicant applies for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), which affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s visa.

2    The background to the matter can be briefly stated as follows. The applicant, who was born in Sudan, arrived in Australia as a minor on a humanitarian visa in 2006.

3    In 2012, the applicant was sentenced to 70 months’ imprisonment for a number of offences, including armed robbery, for which he was sentenced to 33 months’ imprisonment.

4    On 3 July 2015, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had a “substantial criminal record” (the cancellation decision).

5    The applicant requested revocation of the cancellation decision pursuant to s 501CA.

6    On 16 June 2016, a delegate of the Minister decided not to revoke the cancellation decision. This decision was affirmed by the Tribunal on 15 May 2017. Subsequently, on 7 December 2017, this Court set aside that decision and remitted the matter to the Tribunal.

7    The applicant completed his sentence and was taken into immigration detention.

8    On remittal to the Tribunal, a hearing took place on 13-15 March 2019. On 20 May 2019 the Tribunal affirmed the decision of the delegate not to revoke the cancellation decision and published reasons for decision (the Reasons). This decision of the Tribunal is the subject of the present judicial review application.

9    The applicant relies on four grounds of review, which are summarised below. (The amended originating application contains a fifth ground, but this ground was abandoned at the hearing of the matter.)

(a)    The Tribunal failed to consider whether the applicant would face certain forms of harm in South Sudan (independently of whether the risk of harm was of such a kind that Australia owed non-refoulement obligations with respect to the applicant) (ground 1).

(b)    The Tribunal failed to perform its statutory task, including by reason of a misunderstanding of the Migration Act or its operation. This ground is particularised as follows: the Tribunal wrongly considered that, if the applicant applied for a protection visa, his “non-refoulement claims would be assessed and determined” (ground 2).

(c)    The Tribunal failed to perform its statutory task, including by reason of a misunderstanding of the Migration Act or its operation. This ground is particularised as follows: the Tribunal wrongly considered that, if the applicant applied for a protection visa, his “refugee or complementary claims” would necessarily be “assessed and determined”, including by reason of the operation of Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75) (ground 3).

(d)    The Tribunal failed to comply with Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79). The particulars, which are set out later in these reasons, refer to the Tribunal’s consideration of the best interests of children (ground 4)

10    Both the applicant and the Minister filed outlines of submissions in advance of the hearing. At the hearing, counsel for the applicant proposed that oral submissions not be made at that stage on grounds 2 and 3, as these could be affected by a reserved judgment of the Full Court of this Court. It was proposed that the parties be given the opportunity to make further submissions (perhaps in writing) on grounds 2 and 3 after the Full Court gave judgment. The Full Court subsequently gave judgment in that matter: Minister for Home Affairs v Omar [2019] FCAFC 188. Following that decision, the parties were given the opportunity to make further (oral or written) submissions in relation to grounds 2 and 3. Both parties indicated that they were content to rely on their outline of submissions in relation to those grounds.

11    For the reasons that follow, I have concluded that the application is to be allowed on the basis of ground 1. It is therefore not strictly necessary to consider the remaining grounds. Nevertheless, for completeness, I have indicated my views on the remaining grounds.

Key legislative provisions

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

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

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

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

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

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

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

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

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

…

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

…

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

14    Section 501CA provides:

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

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

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

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

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

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

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

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

(Note omitted.)

Background

15    In addition to the background facts set out in the introduction to these reasons, the following matters are relevant for the purposes of the grounds of review.

16    Following the remittal of the matter to the Tribunal, the parties filed statements of issues, facts and contentions for the purposes of the Tribunal hearing. The applicant’s statement (which commences at AB 926) was prepared by lawyers on his behalf and is a substantial document. It is dated 21 January 2019.

17    The applicant’s statement of issues, facts and contentions stated that his parents were both born in the area that is now South Sudan, and that the applicant is a Dinka and a Christian.

18    In relation to the best interests of children, the statement contained the following submissions:

60.    [The applicant] has two nephews and a niece as well as three younger brothers, two of whom are minors.

61.    Although [the applicant] is not the parent of any of the children, he has a close relationship with his immediate family, including his younger brothers and his sister’s children, one of whom has a significant medical issue.

62.    It would be in the best interests of these children for the cancellation to be revoked.

19    Also of relevance for present purposes are the contentions concerning non-refoulement obligations. These were set out in a lengthy section, comprising pp 18-33 of the statement of issues, facts and contentions. The section on non-refoulement obligations commenced with the following submission:

It is submitted that the Tribunal should take into account the non-refoulement obligations arising in [the applicant’s] case, in the light of the decisions of Goundar v Minister for Immigration and Border Protection and BCR16 v Minister for Immigration and Border Protection. These decisions should be followed. Although the Full Court of the Federal Court decided in Minister for Immigration and Border Protection v Le that Australia’s non-refoulement obligations were not a mandatory consideration under s 501(2) where an application for a protection visa can subsequently be made in Australia, the circumstances of Goundar are more apposite to this case because the harm [the applicant] fears if returned to Sudan/South Sudan cannot solely be characterised as “serious harm” or significant harm” cf. Le. Therefore, the consideration of the non-refoulement obligations if [the applicant] were to make a protection visa application would not take all of his fears of harm into account. Accordingly, it is submitted it is mandatory for the Tribunal to consider all the levels and types of harm which [the applicant] fears because, as in Goundar, some of it is harm which would not otherwise be considered.

(Footnotes omitted.)

20    There followed a detailed discussion of the issue of statelessness. It was submitted that there was a real possibility that the applicant was stateless (at [72]). There was discussion of whether the applicant was entitled to citizenship of either or both of Sudan and South Sudan.

21    The section of the statement of issues, facts and contentions dealing with non-refoulement obligations also addressed the risk of harm on the basis of ethnicity, the risk of harm in South Sudan and the risk of harm in Sudan. This section included the following:

Risk of harm on the basis of ethnicity

95.    [The applicant] is a Dinka. Even if [the applicant’s] lawful status is recognised by either Sudan or South Sudan and he is safely able to be moved to one of these countries, he faces a risk of discrimination, harm or even death as a result of his ethnicity. South Sudan is presently one of the most dangerous countries in the world.

96.    South Sudan is a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 between President Salva Kiir (a Dinka) and Vice President Riek Machar (a Nuer) which intertwined both ethnicity and political opinion. Despite being the largest ethnic group in South Sudan, Dinka is assessed by DFAT as being one of three ethnic groups who are most at risk of societal discrimination.

97.    Ethnically motivated inter-tribunal discrimination and violence has been historically common in Sudan due to disputes over land, access to resources, migration and tribunal rivalries. Minority Rights Group International ranks Sudan third on its 2015 Peoples Under Threat Ranking, identifying Ngok Dinka as the most at risk ethnic groups in Sudan; DFAT assesses that this is broadly accurate and that non-Arab ethnic groups face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity, as detailed below.

98.    DFAT also assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. [The applicant] faces a risk of societal discrimination and violence on the basis of his ethnicity as well as a risk of being caught up in the ongoing ethnic-political conflict in South Sudan.

Risk of harm in South Sudan

99.    It is our submission that even if [the applicant] is accepted back to either Sudan or South Sudan, he will face a multitude of harm which cannot solely be characterised as “serious harm” or significant harm”. [The applicant’s] fears of return to Sudan and South Sudan extend to a fear of destitution and famine, societal discrimination and violence on the basis of his ethnicity, being caught up in the ongoing internal conflict and violence, and having no access to medical assistance and facilities to deal with his already vulnerable mental state.

100.    According to the Department of Foreign Affairs (“DFAT”), the humanitarian situation in South Sudan is “dire” and has been aggravated by the recent escalation of conflict. As of August 2016, 1.6 million people were internally displaced, including 190,000 people in Protection of Civilian camps run by the United Nations Mission in South Sudan, and a further 818,950 South Sudanese people seeking refuge in surrounding countries.

…

102.    Amidst the conflict are atrocious breaches of human rights. The Human Rights Watch 2018 World Report on South Sudan states that: “Both sides have committed abuses that qualify as war crimes, including looting, indiscriminate attacks on civilians and the destruction of civilian property, arbitrary arrests and detention, beatings and torture, enforced disappearances, rape including gang rape, and extrajudicial executions. Some abuses may also constitute crimes against humanity.”

103.    The United Kingdom Foreign and Commonwealth Office summarises the current human rights situation in South Sudan as follows:

“The human rights situation in South Sudan deteriorated in 2017, against the backdrop of continuing and widespread conflict, and of the erosion of justice and accountability mechanisms. The targeting of civilians on the basis of their ethnic identity, the pervasive use of rape, the recruitment of child soldiers, the displacement of civilian populations, and the clamping down on freedom of expression, all continued. In March, the UN Commission on Human Rights in South Sudan reported a significant increase in gross human rights violations and abuses, committed by all parties, and warned that ethnic cleansing was underway.

Human rights abuses and violations occurred alongside a rapidly deteriorating humanitarian situation: by September, six million South Sudanese people (56% of the population) lacked sufficient food. In November, the UN reported that the Government of South Sudan was using food as a weapon of war, and was deliberately preventing lifesaving assistance from reaching its citizens. With over four million people displaced, the conflict is driving the largest refugee crisis in Africa.

The conflict had a particular impact on children. The recruitment of children as soldiers continued to be common, despite commitments by some commanders to end the practice. UNICEF estimated that armed groups recruited 19,000 children, while an estimated 900,000 were suffering from psychosocial distress.”

…

106.    [The applicant] has no family and no support network in South Sudan. He will face destitution and famine and would unlikely be able to find paid employment to sustain himself in the currently dire economic circumstances of South Sudan. He is suffering from PTSD as a result of his traumatic past in Sudan and Egypt, and a return to a familiar environment which he escaped would no doubt exacerbate his current condition. He would not have access to quality medical assistance and facilities, particularly in a country where access to clean drinking water and toilet facilities is limited to only a fraction of the population.

Risk of harm in Sudan

…

113.    [The applicant] left Sudan in 2003, over 15 years ago, and no longer has any family or support network in Sudan. He will face destitution and famine and would unlikely be able to find paid employment to sustain himself in the currently dire economic circumstances of South Sudan. He is suffering from PTSD as a result of his traumatic past in Sudan and a return to the same environment from which he escaped would no doubt exacerbate his current condition.

(Footnotes omitted.)

The Tribunal’s decision

22    The Tribunal decided to affirm the decision of the delegate not to revoke the cancellation decision. The Reasons commence at AB 2107.

Background and evidence

23    The Tribunal dealt with background matters at [7]-[12], then the evidence at [13]-[76]. The Tribunal noted at [68] that: the applicant said that he has no family or other social relationships in either Sudan or South Sudan; while he acknowledged that Dinka people in principle have a right to South Sudanese citizenship, he said that he did not have a house or relatives to depend on if repatriated to either country; and he “said he would be killed if returned to either Sudan or South Sudan”.

Statutory framework

24    The Tribunal discussed the statutory framework at [77]-[99], including making reference to Direction 79 (referred to in the Reasons as “the Direction”).

Character test

25    The Tribunal found that the applicant did not pass the character test (Reasons, [100]). Therefore, the issue for determination by the Tribunal was whether there was “another reason” to revoke the mandatory cancellation of the applicant’s visa (Reasons, [101]).

Applicant’s evidence

26    The Tribunal set out instances of the applicant’s evidence giving rise to concerns about his truthfulness (Reasons, [103]). Those concerns covered the applicant’s evidence about: traumatic incidents in Sudan and Egypt; his criminal offending; his misconduct in prison; his alcohol abuse; his illicit drug taking; whether he had suicidal ideation; his school history; and his relationship with his father. The Tribunal found that key aspects of the applicant’s evidence were uncorroborated and, at times, the applicant was prone to exaggeration and embellishment (Reasons, [104]).

Protection of the community

27    In considering the protection of the Australian community, the Tribunal placed considerable weight on the sentencing remarks, and found that the applicant’s offending was “very violent” and “objectively very serious” (Reasons, [109], [112]).

28    The Tribunal stated, at [116], that it did not accept that the applicant constituted an acceptable risk to the Australian community. The Tribunal concluded, at [130], that: the applicant could cause death or serious harm to members of the Australian community if he were to reoffend; he had engaged poorly with much of the counselling and rehabilitative opportunities made available to him; he had not persuasively demonstrated that he had severed his reliance on illicit substances; he represented a moderate risk of re-offending that was not remote, far-fetched or fanciful; and he constituted an unacceptable risk of harm to the Australian community. This primary consideration weighed strongly against revocation (Reasons, [131]).

Best interests of minor children in Australia

29    The Tribunal considered this issue at [132]-[142] of the Reasons.

30    The Tribunal noted at [134] that no reference was made by the applicant’s counsel in written closing submissions to the best interests of children. The Tribunal referred to the matters raised in the applicant’s statement of issues, facts and contentions (which have been set out above).

31    The Tribunal accepted that the applicant received visits in prison and immigration detention from his youngest brother (who is 16) and his sister’s three children under 5 years old. However, since 2012 the applicant’s relationship with those children had been largely conducted via those occasional visits and telephone calls (Reasons, [136]). The Tribunal found that: the applicant’s claims centred on an aspiration to make a more meaningful contribution in the lives of the children; the applicant had not previously made such a contribution to the lives of his niece and nephews, who were all born while he was imprisoned; and his claims about his 16 year old brother were also very general in nature (Reasons, [140]).

32    The Tribunal concluded this section of the Reasons as follows:

141.    It is clear [the applicant] has never played a parental role in the lives of these children and his relationship with them has been characterised by long periods of absence and limited meaningful contact since 2012. There is no evidence that those who have performed a parental or primary carer role during [the applicant’s] imprisonment and immigration detention have in any way been deficient in their responsibilities. While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight.

142.    The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly.

(Emphasis added.)

Community expectations

33    The Tribunal found that the expectations of the Australian community weighed strongly against revocation (Reasons, [149]).

International non-refoulement obligations

34    The Tribunal set out part of Direction 79 and referred to the decision of the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16). The Tribunal then stated at [152]:

152.    The Tribunal must engage with [the applicant’s] submissions, irrespective of whether any claims he makes are unambiguously expressed as being for Convention-related harm, or whether it is open to him to make an application for a protection visa. It must be said that the level of analysis undertaken by the Tribunal cannot be as extensive as the assessment undertaken of a Protection visa claim, which [the applicant] has not made.

(Footnotes omitted.)

Thus the Tribunal understood the effect of BCR16 to be that it was required to engage with the applicant’s claims, and could not leave them for consideration in the context of any protection visa application.

35    The Tribunal found that it was open to the applicant to apply for a protection visa, “upon which his non-refoulement claims would be assessed and determined” (Reasons, [155]). The Tribunal stated that its consideration of any claimed fear of harm was in the context of weighing factors for and against revocation of a visa cancellation decision, in order to determine whether there is “another reason” to reverse the cancellation decision. That was said to be a different and less extensive consideration of protection visa claims than that which is routinely undertaken by the Tribunal when reviewing a refusal of a protection visa (Reasons, [156]).

36    The Tribunal summarised the applicant’s submissions at [157], and noted that the country information received as Exhibit A13 was general in nature and did not deal specifically with the applicant’s personal circumstances (Reasons, [158]). The Tribunal stated that the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant (Reasons, [159]). The Tribunal set out the applicant’s particular claims at [160]-[163].

37    The Tribunal found the applicant’s claims to fear persecution resulting from an imputed political opinion based on his father’s purported role in the army to be tenuous and unpersuasive (Reasons [164]).

38    The Tribunal stated at [165]-[167] (which are relevant to ground 1 of the present application):

165.    It remains unclear to the Tribunal why [the applicant] fears death irrespective of whether he was in Sudan or South Sudan because of ‘ongoing violence and attacks,’ or of being ‘unfairly prosecuted’ or otherwise harmed because of his Dinka origins or ‘accent’. These fears are expressed based on things [the applicant] claims to have ‘heard’ since his family left Sudan. His other concerns relate to personal and practical impediments if repatriated, like access to employment and health services, rather than a well-founded fear of suffering serious or significant Convention-related harm.

166.    The Tribunal notes the submissions of [the applicant’s] legal representatives, citing Goundar, that if [the applicant] were to make a Protection visa application, not all of his fears of harm would be taken into account, particularly given his fears of harm ‘cannot solely be characterised as “serious harm” or “significant harm”’. The respondent submits, rightly in the Tribunal’s view, that any harm not characterised as ‘serious’ or ‘significant,’ is unlikely to give rise to a non-refoulement obligation under ss 36(2)(aa) and 36(2A) of the Act. The Tribunal also notes that in Goundar, the applicant’s claimed fear of harm had a similar ‘private quality’ to that expressed by [the applicant], and the applicant’s claims were considered insufficient to enliven a claim for complementary protection under s 36(2)(aa) of the Act. In [the applicant’s] case, he has not yet made a claim for a Protection visa.

167.    The Tribunal accepts that [the applicant] has lived in Australia for about half his life, having arrived here when he was almost 14. He has not lived in Sudan since approximately the age of 11 and appears to have no remaining family or social contacts there. But a claim for complementary protection does not persuasively arise from his submissions and does not reliably inform a conclusion that he has a well-founded fear of serious or significant harm within the meaning of the Act.

(Footnotes omitted; bold emphasis added.)

39    The Tribunal rejected the submission that there would be a real possibility that the applicant would be stateless. The Tribunal stated that, at the very least, there were processes within the United Nations to assist repatriation of persons to South Sudan in circumstances where their nationality claims were uncertain (Reasons, [168]). The Tribunal stated that: there was no dispute that the applicant was born in Sudan on the outskirts of Khartoum, that his parents were born in what is now South Sudan, and that the applicant is of Dinka ethnicity, which is the predominant ethnic community in South Sudan; and the protracted conflicts between the northern and southern regions of Sudan were readily apparent. The Tribunal considered that, on the available evidence, the applicant has an inalienable right to citizenship of either Sudan or South Sudan by virtue of his or his parents’ birthplace and ethnicity (Reasons, [169]). However, it was not possible to reach a reliable conclusion about the applicant’s ability to exercise any citizenship rights he may be entitled to (Reasons, [170]).

40    The Tribunal stated as follows at [172]-[176] (which are relevant to grounds 1, 2 and 3):

172.    The Tribunal notes that Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b), which binds decision-makers other than a Minister, requires that any refugee or complementary protection claims raised by an applicant are assessed and determined in the course of assessing a Protection visa claim. This must occur before any consideration is given to ineligibility claims like character concerns.

173.    The Tribunal accepts that if [the applicant], who came to Australia on a Global Special Humanitarian visa, were to submit a Protection visa application, his non-refoulement claims would be fully considered. Similarly, any citizenship rights he may have would also be considered under the Protection visa assessment process. If assessed as meeting the relevant protection criteria, [the applicant] would be owed non-refoulement obligations. Australia’s policy is not to remove such persons to a country in respect of which a non-refoulement obligation exists (paragraph 14.1(2) of the Direction). It follows that indefinite detention is not currently an inevitable consequence of any decision not to revoke [the applicant’s] visa cancellation.

174.    The Tribunal notes publicly-available advice from the DFAT dated 16 January 2018, which recommends that in relation to Sudan, Australians should ‘reconsider your need to travel’ due to the possibility of violent unrest and the threat of terrorist attack – particularly in the southern border within 15km of the border with Eritrea and Ethiopia. In relation to South Sudan, DFAT’s latest advice recommends that Australian ‘do not travel,’ because of instability, ongoing conflict and a deterioration of law and order.

175.    The Tribunal acknowledges the generally unstable situation in Sudan and South Sudan, but the available evidence does not support [the applicant’s] submissions that he would be killed or suffer unfair ‘prosecution’ irrespective of where he might be repatriated. [The applicant’s] claims are overly speculative and do not sustain a finding he is at risk of death, persecution or other Convention-related harm within the meaning of the Act. It remains open to him to submit an application for a Protection visa and to have his claims in this regard more comprehensively considered. The Tribunal also concludes [the applicant’s] submissions about non-refoulement often conflate fears of Convention-related harm with the extent of potential impediments if returned. That includes accessing work, healthcare, or health support. These impediments fall short of, and are different in character to, the sort of harm necessary to attract non-refoulement obligations. These non-Convention related aspects of [the applicant’s] concerns are further considered under Extent of impediments if removed, later in these reasons.

176.    The Tribunal places little weight on [the applicant’s] submissions about international non-refoulement obligations, finding this consideration weighs neither for nor against revocation.

(Footnotes omitted; bold emphasis added.)

Extent of impediments if removed

41    After considering certain other matters, the Tribunal considered the extent of impediments the applicant would face if he were removed at [186]-[190]. This passage of the reasons is relevant to ground 1. The Tribunal referred to paragraph 14.5(1) of Direction 79 and then stated:

187.    The available DFAT country information notes that Sudan and South Sudan are developing economies, which have been adversely affected by prolonged conflict. Institutional structures and services have developed slowly and appear rudimentary. Employment prospects appear limited.

188.    Having been in Australia since the age of 14, the Tribunal considers [the applicant] is likely to experience cultural barriers if resettled in either country. His quality of life is likely to be substantially diminished. Despite his relative youth and ability to speak the Dinka language, [the applicant] has not been in Sudan since he was a young boy and would likely experience significant hardship if returned. That includes separation from his family and social networks in Australia, from which he derives significant emotional support. As noted by the psychologist who examined [the applicant] in early 2016, the ‘lack of access to family support and safe predictable structure would likely further aggravate’ his PTSD.

189.    He is also likely to experience difficulties accessing required health care, counselling and medications. That includes current medications like Methadone, if he is unable to successfully cease his reliance on it as he aspires to do. Any healthcare and other services [the applicant] may be able to access would undoubtedly be of lesser quality than what is available to him in Australia, but consistent with that available to other citizens in Sudan or South Sudan. Under such circumstances, any medical or psychological conditions [the applicant] may be suffering from may worsen.

190.    The Tribunal finds this consideration weighs strongly in favour of revocation.

(Footnote omitted.)

Conclusions

42    The Tribunal placed significant weight on the serious and violent nature of the applicant’s criminal offending (Reasons, [193]). The Tribunal found that the best interests of minor children weighed in the applicant’s favour, but only slightly. The Tribunal also accepted that the strength, nature and duration of the applicant’s ties to Australia, and the extent of impediments he would face if removed, weighed strongly in his favour (Reasons, [195]). The Tribunal concluded that the considerations weighing in favour of revocation, whether individually or collectively, did not outweigh the considerations of protecting the Australian community and expectations of the Australian community (Reasons, [196]). Therefore, the Tribunal concluded that there was not another reason why the cancellation decision should be revoked.

The application for judicial review

43    On 26 June 2019, the applicant sought review of the Tribunal’s decision. The applicant has, with leave, filed an amended originating application dated 3 September 2019. The grounds relied on by the applicant have been summarised above. I will now consider each ground in turn.

Ground 1

44    By this ground, the applicant contends that the Tribunal failed to consider whether the applicant would face certain forms of harm in South Sudan (independently of whether the risk of harm was of such a kind that Australia owed non-refoulement obligations with respect to the applicant).

45    The applicant’s submissions can be summarised as follows:

(a)    The Tribunal was obliged by s 501CA of the Migration Act, in reviewing the delegate’s decision, to consider representations made as to a claimed “reason” why the cancellation decision should be revoked. Such representations are mandatory relevant considerations: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [41].

(b)    Accordingly, and as is now well-established, the Tribunal would be obliged to consider any representation to the effect that: (i) the applicant would face harm in his home country; and (ii) that was a “reason” to revoke the cancellation of his visa. That is so “[r]egardless of [a] non-refoulement claim”: see, e.g., Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Ezegbe) at [27]-[28], applying BCR16 at [49], [70]-[72]. That is to say, that is so regardless of whether the applicant’s claims would (if accepted) also be such as to engage Australia’s non-refoulement obligations at international law.

(c)    However, nowhere did the Tribunal consider whether the applicant would in fact (and regardless of the engagement or otherwise of Australia’s non-refoulement obligations) be exposed to certain kinds of harm that he said he would be exposed to on return. These included (without limitation):

(a)    exposure to discrimination and violence, as a Dinka (see the applicant’s statement of issues, facts and contentions at [95]-[99]);

(b)    exposure to destitution and famine (see the applicant’s statement of issues, facts and contentions at [99] and [106]); and

(c)    exposure to risk of crimes against the person and property, including “looting, indiscriminate attacks on civilians and the destruction of civilian property” (see the applicant’s statement of issues, facts and contentions at [102]).

(d)    The significance of the failure of the Tribunal to engage in any (let alone any detailed) consideration of these matters should also be assessed in light of the observations of Allsop CJ (with whom Markovic and Steward JJ agreed) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (Hands) at [3].

46    The Minister’s submissions in response can be summarised as follows:

(a)    The Minister accepts that the Tribunal is required to consider all of the integers of the claims put by the applicant: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[57]. However, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. For example, it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. It is necessary to consider the context in which claims are presented, especially (if an applicant is represented) the way that claims are framed in submissions to the Tribunal: AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 (AEG16) at [25]-[26]; see also AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18(d)].

(b)    Here, the applicant’s claims were framed in the submissions to the Tribunal by the applicant’s representative, as explained by the applicant’s written and oral evidence (summarised in the Reasons at [68]-[71] and [160]-[161]). Many of the applicant’s claims were expressly and clearly considered by the Tribunal.

(c)    The Tribunal was looking for claims dealing particularly with the applicant’s personal circumstances: Reasons, [158]-[159]. There is no error in that approach. Paragraph 14.1(1) of Direction 79 states that “[t]he Act reflects Australia’s interpretation of [non-refoulement] obligations and, where relevant, decision-makers should follow the tests enunciated in the Act”. That means the Tribunal considers “non-refoulement obligations” as given effect by the Migration Act: GBV18 v Minister for Home Affairs [2019] FCA 1132 at [127]-[130], considering the equivalent paragraph in previous Direction 65. In the case of complementary protection, s 36(2B)(c) of the Migration Act excludes a risk that is faced by the population of the country generally and is not faced by the non-citizen personally.

(d)    The Tribunal was therefore correct to state that any harm that is not “serious harm” or “significant harm” is unlikely to give rise to a non-refoulement obligation under ss 36(2)(aa) and 36(2A) (Reasons, [166]). The Tribunal was not saying that these claims did not need to be considered at all; merely that these claims did not need to be considered under “non-refoulement obligations”. That is correct, for the reasons set out above. Instead, the Tribunal considered those non-Convention related aspects of the applicant’s concerns under “Extent of impediments if removed” (Reasons, [175]).

(e)    The applicant contends that there were several specific claims that were not considered. The first claim is exposure to discrimination and violence as a Dinka. Those claims were expressly made as claims that would attract non-refoulement obligations (applicant’s statement of issues, facts and contentions, [95]-[98]), and were considered as such. The Tribunal expressly noted claims that the applicant would fear “ongoing violence and attacks” and being “unfairly prosecuted” because of his Dinka origins and accent at Reasons, [165]. The Tribunal noted DFAT’s advice not to travel to South Sudan because of instability, ongoing conflict and a deterioration of law and order, and acknowledged the generally unstable situation in Sudan and South Sudan. However, the Tribunal found that the available evidence did not support submissions that the applicant was at risk of “death, persecution or other Convention-related harm within the meaning of the Act” irrespective of where he might be repatriated (Reasons, [174]-[175]).

(f)    The applicant also refers to other claims of exposure to destitution and famine, and exposure to risks of crimes such as looting and indiscriminate attacks (applicant’s statement of issues, facts and contentions at [99] and [102]). These claims were put as claims that could not solely be characterised as serious harm or significant harm: statement of issues, facts and contentions at [99]. These particular claims were not specific to the applicant’s circumstances, and the Tribunal was therefore correct not to consider them under non-refoulement as given effect by the Migration Act.

(g)    The general position in Sudan and South Sudan was instead considered under “Extent of impediments if removed”. The Tribunal referred to DFAT country information that the economies of Sudan and South Sudan have been adversely affected by prolonged conflict (Reasons, [187]). The Tribunal found that the applicant’s quality of life is likely to be “substantially diminished”, and that he would likely experience “significant hardship” if returned (Reasons, [188]). These statements should be read together with the Tribunal’s earlier recognition of the generally unstable situation in Sudan and South Sudan (Reasons, [175]). The Tribunal also referred specifically to difficulties with the applicant’s medical treatment in Sudan or South Sudan (Reasons, [189]). Crucially, the Tribunal found that the extent of impediments “weighed strongly” in favour of revocation (Reasons, [190]). That is, it was not necessary for the Tribunal to develop its reasons any further, because it accepted the substance of the applicant’s claims on this point. This case is therefore very different from Hands, where there was no probative basis for a central finding that sought to minimise the difficulties that a person would face on return.

47    For the reasons that follow, I consider that the Tribunal failed to give genuine consideration to the three claims or representations relied on by the applicant in relation to ground 1, namely:

(a)    exposure to discrimination and violence, as a Dinka (see the applicant’s statement of issues, facts and contentions at [95]-[99]);

(b)    exposure to destitution and famine (see the applicant’s statement of issues, facts and contentions at [99] and [106]); and

(c)    exposure to risk of crimes against the person and property, including “looting, indiscriminate attacks on civilians and the destruction of civilian property” (see the applicant’s statement of issues, facts and contentions at [102]).

48    The key portions of the Reasons are [165]-[167], [172]-[176] and [187]-[190], which have been set out above.

49    At [165]-[167] and [172]-[176], the Tribunal considered the applicant’s claims only through the lens of Australia’s non-refoulement obligations, as implemented by the Migration Act. That the Tribunal considered the claims in this way is apparent from the emphasised portions of [165]-[167] and [172]-[176] (as set out earlier in these reasons) including, for example, the reference to “serious or significant Convention-related harm” in the last sentence of [165], and the references to “complementary protection” and “serious or significant harm within the meaning of the Act” in the last sentence of [167]. In these passages, the Tribunal did not, therefore, consider the applicant’s claims irrespective of whether they engaged Australia’s non-refoulement obligations (as implemented by the Migration Act). It is, however, clear that the applicant’s claims were put on this (wider) basis. This was emphasised in the applicant’s statement of issues, facts and contentions, in particular at [68] and [99]. In those paragraphs, the applicant explicitly acknowledged that some of the harms he would face could not solely be characterised as “serious” or “significant” harm, and submitted that the Tribunal was required to consider all of the levels and types of harm he would face.

50    In [166], the Tribunal noted the applicant’s submissions that his fears of harm could not solely be characterised as “serious harm” or “significant harm”. The Tribunal then stated that any harm not characterised as “serious” or “significant” was “unlikely” to give rise to a non-refoulement obligation under ss 36(2)(aa) and 36(2A). Having noted the applicant’s submission, and having made that observation, the Tribunal did not, however, go on to consider the matters referred to in [47] above irrespective of whether they qualified as “serious harm” or “significant harm”.

51    Contrary to the Minister’s submissions, I do not consider that the claims referred to in [47] above were subsumed by findings or conclusions of greater generality. This follows from the fact that, in [165]-[167] and [172]-[176], the Tribunal considered the applicant’s claims solely through the lens of Australia’s non-refoulement obligations (as implemented by the Migration Act), and the fact that the applicant’s claims were put on a wider basis.

52    Further, the Tribunal did not consider the three claims referred to in [47] above in the section of the Reasons dealing with the “Extent of impediments if removed”. The Tribunal here dealt with the matters identified in paragraph 14.5(1) of Direction 79, including access to healthcare, employment prospects and cultural barriers. These matters were of a different nature to the three claims referred to in [47] above.

53    It follows from the preceding paragraphs that the Tribunal did not deal with the applicant’s claims set out in [47] above other than through the lens of Australia’s non-refoulement obligations (as implemented by the Migration Act). The error in the present case is similar to that discussed by Perram J in Ezegbe at [27]-[28]. The claims referred to in [47] above were significant and clearly expressed representations. There is no issue between the parties that the Tribunal was required to consider all of the integers of the claims put by the applicant. For the reasons set out above, the Tribunal failed to do so. Had the Tribunal considered these claims, it may have affected its conclusion. Had the Tribunal considered, for example, the representation regarding “destitution and famine”, it may have concluded that this was a factor weighing in favour of revocation. This could have affected its ultimate conclusion. The failure to deal with the applicant’s claims constituted a jurisdictional error. It follows that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for determination according to law.

54    In light of this conclusion, it is not strictly necessary to consider the remaining grounds. However, for completeness, I will set out my views in relation to these grounds.

Ground 2

55    The applicant contends that the Tribunal failed to perform its statutory task, including by reason of a misunderstanding of the Migration Act or its operation. This ground is particularised as follows: the Tribunal wrongly considered that, if the applicant applied for a protection visa, his “non-refoulement claims would be assessed and determined”.

56    The applicant’s submissions in support of this ground rely on the judgment of the Full Court of this Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (Ibrahim). The applicant submits that, similarly to the Assistant Minister in Ibrahim, the Tribunal misapprehended that Australia’s non-refoulement obligations under international law would be considered on an application for a protection visa, when only the visa criteria in s 36(2) of the Migration Act would be considered. The applicant submits that the criteria for a protection visa under s 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations.

57    I dealt with a ground that was substantially the same as this ground in DGI19 v Minister for Home Affairs [2019] FCA 1867 (DGI19) at [69]-[85]. I refer to and incorporate by reference the discussion of Ibrahim and the applicable principles in DGI19 at [70]-[75], [78] and [80].

58    Unlike Ibrahim and DGI19, which concerned a decision of a Minister or Assistant Minister, the present case concerns a decision of the Tribunal. Further, and more significantly, unlike Ibrahim and DGI19, where the Minister or Assistant Minister considered it unnecessary to consider Australia’s non-refoulement obligations, in the present case the Tribunal did undertake a consideration of Australia’s non-refoulement obligations, albeit not as extensive a consideration as would take place in the context of an application for a protection visa: see the Reasons at [152], [155]-[156] and [175].

59    In my view, the second difference noted above represents a critical distinction between Ibrahim and DGI19 (on the one hand) and the present case (on the other). In circumstances where the Tribunal did consider the applicant’s claims based on Australia’s non-refoulement obligations (as reflected in the provisions of the Migration Act), it is not shown that any error of the kind identified in Ibrahim was material, in the sense that there was a realistic possibility that the Tribunal’s decision could have been different if it had not made the error. The position may be contrasted with reasons for concluding that the error was material in DGI19 at [80]. Accordingly, this ground is not made out.

Ground 3

60    The applicant contends that the Tribunal failed to perform its statutory task, including by reason of a misunderstanding of the Migration Act or its operation. This ground is particularised as follows: the Tribunal wrongly considered that, if the applicant applied for a protection visa, his “refugee or complementary claims” would necessarily be “assessed and determined”, including by reason of the operation of Direction 75.

61    I dealt with a ground that was substantially the same as this ground in DGI19 at [39]-[44]. I refer to and incorporate my reasons in that case for rejecting a comparable ground. For the same reasons, this ground is not made out in the present case.

Ground 4

62    The applicant contends that the Tribunal failed to comply with Direction 79. The particulars to this ground refer to the Tribunal’s consideration of the best interests of children. The particulars are as follows:

a.    The Tribunal failed, as required by clause 13.2(1) of Direction 79, to make a determination about whether revocation was in the best interests of various children affected by the decision to be made.

b.    The Tribunal also failed to comply with Direction 79 by concluding the applicant posed an “unacceptable risk” to the Australian community, analytically prior to having any regard to the interests of the children.

63    The applicant notes that clause 13.2(1) of Direction 79 provides that the Tribunal must make a “determination” about whether revocation is in the best interests of the child. Here, the applicant submits, the Tribunal made no determination about whether revocation of the cancellation decision would be in the best interests of various children affected by the decision.

64    The applicant also submits that: the Tribunal’s analysis involves a conceptual distortion; the Tribunal stated at [141] that the applicant may play a more meaningful role in the children’s lives “in circumstances where he did not constitute an unacceptable risk of reoffending”; however, what the Tribunal was required to do, was to make a determination whether or not revocation would be in the best interests of the children, and then to give that weight as a “primary consideration” in making the ultimate decision; here, it appears that the Tribunal, analytically prior to any consideration of the interests of children, decided that the applicant posed an “unacceptable risk” to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was “unacceptable” was one to be formed after consideration of all of the relevant considerations (including after having made a determination as to whether revocation was in the best interests of the children); the Tribunal’s approach did not comply with Direction 79.

65    The applicant contends that the Tribunal’s decision was affected by jurisdictional error on each of the bases set out above.

66    In my view, neither of the above contentions is made out. Insofar as the applicant submits that the Tribunal failed to make a determination regarding the best interests of children, I consider this to have been implicit in the Tribunal’s consideration of the issue, in particular its conclusion (at [142]) that “this primary consideration weighs in favour of revocation, but does so only slightly”.

67    Insofar as the applicant submits that the Tribunal, in effect, inverted the order of consideration of issues, while I accept that the Tribunal’s use of the words “in circumstances where he did not constitute an unacceptable risk of offending” in [141] may give this impression, when these words are read in context, I do not consider that the Tribunal made the error that the applicant contends it made. In the earlier part of [141], the Tribunal noted that the applicant had never played a parental role in the lives of the relevant children and that his relationship with them had been characterised by long periods of absence and limited meaningful contact since 2012. The Tribunal stated that it was satisfied that the children would be likely to miss the applicant if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of re-offending. Although the words used by the Tribunal in the last part of that sentence were inapt, when these words are read in the context of the sentence and paragraph as a whole, I consider that the Tribunal was intending to refer to the applicant playing a more meaningful role in the children’s lives in circumstances where the cancellation decision was revoked and he could remain in Australia (i.e. the obverse of the circumstances considered in the first part of the sentence). This is consistent with the Tribunal referring, in the concluding section of the Reasons, to the best interests of minor children as a consideration in its own right. Thus, I do not consider that the Tribunal was, in effect, inverting the order of consideration of the issues.

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

Conclusion

69    It follows from my conclusion in relation to ground 1 that the decision of the Tribunal is to be set aside and the matter remitted to the Tribunal for consideration according to law. It would appear to be appropriate for the Minister to pay the applicant’s costs. I will make an order to this effect, but will also allow a short period of time for the Minister to indicate if he seeks a different costs order, in which case directions will then be made for the filing of written submissions on costs.

Associate:

Dated:    6 February 2020