FEDERAL COURT OF AUSTRALIA

XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant is 45 year old man of Chin ethnicity and of Christian faith who is a citizen of Myanmar, which was formerly known as Burma. He left Myanmar in 2008 and arrived in Australia from Malaysia in 2013 as the holder of a Class XB Subclass 200 Refugee Visa. The applicant is married, and has four children.

2    On 13 September 2016, the applicant was sentenced in the County Court of Victoria to a total effective sentence of 20 months’ imprisonment for crimes of violence against his wife and children. The applicant had pleaded guilty to six indictable offences and six related summary offences. The six indictable offences, and the corresponding maximum terms of imprisonment, were as follows –

3    On 6 October 2016, a delegate of the Minister for Immigration and Border Protection cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) on the grounds that by reason of the applicant’s conviction and sentence he did not pass the character test, and that he was then serving a term of imprisonment. The applicant then made representations to the Minister pursuant to s 501CA(4) of the Act seeking revocation of the cancellation of the visa. On 4 September 2017, another delegate of the Minister refused to revoke the original decision to cancel the visa.

4    The applicant then applied to the Administrative Appeals Tribunal pursuant to s 500(1)(ba) of the Migration Act for review of the decision of the delegate to refuse revocation of the cancellation of the visa. On 29 November 2017, the Tribunal affirmed the delegate’s decision not to revoke the original decision to cancel the applicant’s visa. The Tribunal’s decision is published as XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385.

5    By this proceeding, the applicant seeks judicial review of the decision of the Tribunal in the exercise of the Court’s jurisdiction conferred by s 476A(1)(b) of the Migration Act. That jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution: s 476A(2). Relevantly, the jurisdiction requires the demonstration of jurisdictional error: Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [4] (White, Moshinsky and Colvin JJ).

6    The applicant has three grounds of review which are accompanied by detailed particulars. The grounds are best understood against the factual background of the application, and therefore I shall summarise them later in these reasons when addressing the applicant’s submissions to this Court.

Procedural issues

7    By fax dated 12 December 2017, the applicant, who was then self-represented, endeavoured to file with this Court an application for judicial review of the Tribunal’s decision. For reasons that are unnecessary to explore, that endeavour did not result in a filed application within the 35 day period prescribed by s 477A(1) of the Migration Act.

8    On 16 March 2018, the applicant filed an application for an extension of time, which was substantially in the form of an application for an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) to lodge an application for the review of a migration decision. On 14 September 2018, the applicant, who by then was represented, filed a document titled “Amended originating application for review of a migration decision”. On the first day of the hearing, I gave leave to the applicant to file an amended application for an extension of time so that there was no question that it complied with the requirements for an application in s 477A(2)(a) of the Act. Being satisfied that it was in the interests of justice to do so, I then made an order extending to 14 September 2018 the time within which the applicant might make an application for a remedy under s 476A(1)(b) and (c) of the Act, and ordered that the document titled “Amended originating application for review of a migration decision” and dated 14 September 2018 stand as the applicant’s application.

9    During the course of the hearing, it appeared that some of the submissions advanced on behalf of the applicant were not reflected in the grounds of review, and I invited counsel for the applicant to apply to amend the grounds: see, Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497. That application was not opposed by the Minister. I gave leave to the applicant to file and serve what became titled a “Second further amended originating application for review of a migration decision.” I shall refer to this document as the applicant’s application.

10    Also on the first day of the hearing, I ordered that the Tribunal be joined as a respondent to the proceeding, and I made directions for service of the application on the Tribunal. Subsequently, the Tribunal filed a notice submitting to any order the Court may make in the proceeding save as to costs.

11    The Minister was given leave to file further written submissions consequent upon the amendments to the originating application, and did so by supplementary submissions dated 1 February 2019. After the Court reserved its decision in this case, Omar v Minister for Home Affairs [2019] FCA 279 was decided, and shortly thereafter the Court became aware that it was subject to appeal. Both parties were given leave to file further written submissions following the decision of the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569. The applicant filed further submissions dated 18 November 2019, and the Australian Government Solicitor, acting for the Minister, advised the Court that the Minister was content to rely on the submissions that had already been advanced.

The proceeding before the Tribunal

12    The Tribunal was charged under s 500(1)(ba) of the Migration Act with conducting a review of the decision of the delegate of the Minister under s 501CA(4) to refuse the revocation of the original decision to cancel the applicant’s visa. The relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth), which are subject to the qualifications in s 500(6A) to s 500(6L) of the Migration Act, contemplate an oral hearing and the provision of further information to the Tribunal: PQSM v Minister for Home Affairs [2019] FCA 1540 at [31] (Colvin J). In this case, the material before the Tribunal included the representations that were before the delegate, and also other material, such as reports from a psychiatrist and a psychologist, statutory declarations, and written statements of fact, issues, and contentions. A full list of materials that were before the Tribunal appears at [15] of its written statement.

13    There was a time constraint for the review by the Tribunal. Under s 500(6L) of the Migration Act, if the Tribunal did not make a decision within 84 days of the notification to the applicant of the decision under review, it was taken to have affirmed the decision. On his application for review filed with the Tribunal, the applicant stated that he received the delegate’s decision on 6 September 2017. The Tribunal conducted hearings on 10 and 23 November 2017, and made its decision on 29 November 2017, which was the 84th day.

14    Before the Tribunal, the applicant relied on a series of considerations supporting the revocation of the original decision, and especially the interests of his minor children. Of particular relevance to the applicant’s grounds of review argued in the application before the Court were the following –

(1)    A United Nations High Commissioner for Refugees resettlement registration form which stated –

In June 2008, [the applicant] was requested by his villagers to teach Chin language to the children after their regular classes in the school to preserve the Chin literature. One of the Burmese teachers found out about the class and reported to the Myanmar authorities that [the applicant] was teaching Chin language illegally in the school. On 20 August 2008, several Myanmar police came to [the applicant’s] house to look for him while he was working in his farm.

(2)    The form stated that, fearing arrest, the applicant fled, eventually arriving in Malaysia in September 2008 and, in relation to the need for international protection of refugees from Myanmar, stated –

Based on the review of refugee claims presented by individuals from Myanmar during UNHCR Malaysia’s individualized refugee status determination procedures and assessments, the Office has detected prevailing patterns of persecution among this refugee group. Persecution, in particular towards those belonging to ethnic minorities, generally includes forced labour / portering, sexual and gender based violence and torture. Individuals and family members of those having political opinions not tolerated by the Myanmar authorities and those who are known / suspected supporters of insurgent groups are also persecuted. Prevalence of such human rights violations in Myanmar is supported by reliable and prominent country information sources. Furthermore, the Myanmar authorities do not tolerate those who have claimed asylum outside the country. It is reasonably likely that persons who have experienced such persecution or who fears [sic] persecution in the future will be arrested, detained and subjected to persecution if returned to Myanmar. It is therefore UNHCR’s view that these individuals are eligible for refugee status and are in need of international protection.

(3)    Records of the Australian government produced under the Freedom of Information Act 1982 (Cth) that recorded that on 7 August 2012, the applicant had been assessed as being subject to persecution in his home country –

I have today interviewed [the applicant] and found that the claims he made at interview were consistent with those in his UNHCR referral and [he] is subject to persecution in his home country.

(4)    On 1 November 2012, an officer recorded –

I find that [the applicant] cannot be returned safely to Myanmar at this time, and there is no evidence to indicate that he can be resettled in another country. Therefore, there is no other durable solution that would be more appropriate for [the applicant] than permanent resettlement in Australia.

(5)    The applicant made a detailed statutory declaration dated 19 October 2017 in which he stated –

Since the military took over the country in 1962, they [practised] a policy that there must be one language, one religion and one nation, saying this is the only way for peace. They forcibly tried to convert our ethnic people from Christianity to Buddhism, and forced us to speak Burmese. They banned the teaching of ethnic languages in school. A Burmese teacher is sent to every village, so that the education must be in Burmese. They also prohibited celebrating Chin National Day and Chin New Year. We have our own Chin language, and the Bible written in Chin language. When they stop us learning our language, the plan is to slow[ly] turn people to be Burman. Our ethnic language and culture are at risk of extinction.

In 2008, my village leader requested me to teach Chin language to the children in our village. Because our village is not a big village, I thought that no one would disturb me or report me. I taught in the school, with all the children together, from around 6 or 7 years to 13 or 14 years of age.

I was teaching for about three months. Then unexpectedly the authorities came to our village. They came searching for me at my home. At the time they came, I was working in my farm. They questioned my wife. My wife sent one of the villagers to warn me, saying do not come home, hide somewhere else. When the police are searching for someone, it is a serious situation - once you are in authorities’ hands you cannot get out unless you can pay lots of money. I did not go home, and fled to Thailand and then Malaysia.

…

I cannot return to Burma because I am wanted by the authorities for teaching the Chin language. This information will be on the government list about our town [redacted], and will be known by immigration on my return. Further, I would be charged for escaping the country illegally, which is an offence punishable by imprisonment. I am at greater risk from the authorities now because I have sought protection as a refugee, which the army views very harshly. I fear I would face imprisonment, physical violence, and may be killed.

15    Before the Tribunal was country information concerning Myanmar in the form of a DFAT report dated 10 January 2017 that was tendered by the Minister.

16    Also before the Tribunal was a submission dated 8 June 2017 prepared by Victoria Legal Aid that was also before the delegate, in which it was submitted that the Tribunal should consider grief and trauma to the applicant and members of his family should separation occur. It was submitted that these matters would not be considered in any protection visa application. Broader submissions relating to the principle of the family unit, and the best interests of children were advanced. It was submitted that the removal of the applicant and separation from his children would be inconsistent with Australia’s obligations under the Convention on the Rights of the Child, and that separation of family is not in a child’s best interests, and contrary to the family unity principle, referring to Article 9 of the Convention. It was also submitted that if the decision-maker formed the view that the prospect of indefinite detention and Australia’s protection obligations were not mandatory considerations, the issue of family separation would not be assessed in any future protection visa application.

17    The applicant was represented before the Tribunal by counsel who relied on a statement of facts, issues, and contentions in which the following was advanced –

The circumstances that caused [the applicant] to flee Burma, and the grave risks he would face if he returned, are set out in his statement and need not be repeated here. He is individually and personally targeted for persecution by the Burmese authorities. The Australian government and UNHCR have each separately established, in refugee status determinations, that those risks are genuine and that it would not be safe for him to return to Burma.

18    The material before the Tribunal raised the prospect that if the original decision was not revoked, the applicant would face indefinite immigration detention in Australia, or alternatively, mandatory removal to Burma pursuant to s 197C and s 198 of the Migration Act.

The Tribunal’s decision

19    In affirming the delegate’s decision to refuse to revoke the visa cancellation, the Tribunal was not satisfied that the applicant passed the character test. That issue was not controversial on this application. Additionally, the Tribunal was not satisfied that, for the purposes of the exercise of the power under s 501CA(4)(b) of the Migration Act, there was another reason why the visa cancellation decision should be revoked, and it is that aspect of the Tribunal’s decision that is challenged.

Ministerial Direction No 65

20    The Tribunal stated at [27] of its written statement that in considering whether to revoke the decision to cancel the applicant’s visa, it was required to comply with a ministerial direction, being Direction No 65 made on 22 December 2014 under s 499 of the Migration Act, which provides (inter alia) –

499    Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

…

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

21    Direction No 65 has since been revoked with effect from 28 February 2019, being the date on which Direction No 79 commenced. Those parts of Direction No 65 that are material to the issues in this application are as follows.

22    Paragraph 6.2 of Direction No 65 is headed “General Guidance”, and sub-paragraph 6.2(3) provides (inter alia) –

… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

23    Paragraph 6.3 of Direction No 65 is headed “Principles” and provides –

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

…

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

24    Paragraph 7 of Direction No 65 is headed, “How to exercise the discretion”, and provides –

(1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

…

(b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

25    Paragraph 8 of Direction No 65 is headed, “Taking the relevant considerations into account”, and provides –

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

26    Part C of Direction No 65 identifies the considerations that are relevant to a decision whether to revoke the mandatory cancellation of a visa. Paragraph 13 in Part C is headed “Primary considerations – revocation requests”, and provides (inter alia) –

…

(2)    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The best interests of minor children in Australia;

c)    Expectations of the Australian community.

27    More detailed provisions are then made for the primary considerations in Part C in the following paragraphs –

•    13.1 - protection of the Australian community;

•    13.1.1 - the nature and seriousness of the conduct;

•    13.1.2 -    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct;

•    13.2 - best interests of minor children in Australia affected by the decision; and

•    13.3 - expectations of the Australian community.

28    Paragraph 13.2(4), which concerns the interests of minor children, provides –

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

29    Paragraph 14 of Part C then provides for “other considerations” in relation to revocation requests. Paragraph 14(1) provides –

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

30    Material to the present application are international non-refoulement obligations, which are the subject of the following provisions in paragraph 14.1 –

14.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5)    If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

31    In relation to paragraph 14.1(4) of Direction No 65 set out above, in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, the appellant invoked s 501CA(4) of the Act and sought revocation of an original decision that his visa be cancelled. The appellant made representations that he risked suffering harm should he return to Lebanon. The Assistant Minister characterised the representations as possibly giving rise to international non-refoulement obligations but said it was unnecessary to determine whether such obligations were owed because the appellant could apply separately for a protection visa. That decision was held by the majority (Bromberg and Mortimer JJ) to involve jurisdictional error because there was nothing in the legislation that prevented character criteria being considered first, with the consequences that the application for a protection visa could be refused purely on character grounds, and that the claims for protection would never be considered. The majority also held that the consideration of non-refoulement for the purposes of a decision under s 501CA(4) was different to the consideration of such matters for the purposes of s 65 of the Act in determining whether to grant or to refuse an application for a visa. In substance, their Honours held that non-refoulement claims which relied on the risk of harm might inform the consideration of the exercise of the power under s 501CA(4), whereas for the purposes of assessment of a visa application under s 65, the delegate or the Minister had to be “satisfied” of the existence of the risks in the terms required by s 36(2)(a) and (aa) and associated provisions.

Ministerial Direction No 75

32    Following the decision in BCR16, the Minister on 5 September 2017 made a Direction under s 499 of the Migration Act titled, “Direction No 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)”, which directed the order in which elements of an application for a protection visa should be considered by decision-makers. Under the heading “General Guidance”, Direction No 75 provides (inter alia) –

3)    The following principles provide a framework within which decision-makers should approach their task of deciding whether to refuse an applicant’s visa under section 65 on the basis of section 36(1C) or section 36(2C)(b).

33    And under the heading “Principles”, Direction No 75 provides (inter alia) –

4)    Refusal of a Protection visa because of a specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessary mean that a person should be removed from Australia.

34    The directions themselves are in Part 2 of Direction No 75, and provide that the decision-maker must first assess refugee claims before assessing any character or security concerns –

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

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

2)    Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa specific ineligibility criteria at section 36(1C).

3)    Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision-maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

a)    Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

4)    If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.

5)    The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

The Tribunal’s consideration

Primary considerations

35    The Tribunal considered the applicant’s circumstances in some detail. The Tribunal identified at [34] the three primary considerations referred to in paragraph 13(2) of Direction No 65, which I have set out at [26] above. The Tribunal addressed those considerations, and took account of –

(1)    the remarks of the sentencing judge upon the applicant’s convictions for offences of violence and threats to kill committed against his wife and children, who described the applicant’s offending as “humiliating”, “disturbing”, “very serious”, and involving “significant violence”;

(2)    the circumstances of the offending, as described by the sentencing judge, which the Tribunal stated reflected “considerable judicial concern” in relation to the applicant’s conduct;

(3)    the position of the applicant’s wife and children as vulnerable members of the Australian community, and the Tribunal’s view that they should not, ever, under any circumstances, live in fear of threat or injury from their father or husband;

(4)    the Tribunal’s view that the applicant’s conduct should be viewed as very serious, and that overall his offending demonstrated a degree of recklessness towards the well-being of the Australian community that cannot be tolerated or dismissed, which weighed heavily against the revocation of the decision to cancel the applicant’s visa;

(5)    the weighted risk of the applicant reoffending, which took account of the serious nature of the offences, the Tribunal’s concern that the applicant did not complete an anger management course while in prison, and what the Tribunal considered to be an alarming lack of insight on the part of the applicant in relation to his issues with anger and domestic violence;

(6)    the Tribunal’s doubts about whether the applicant’s rehabilitation and therapeutic efforts would prove successful in the long term, and its view that there remained a real risk that the applicant would continue to abuse alcohol if released into the community with a consequential risk that he would reoffend, and that this posed an unacceptable risk to the Australian community;

(7)    that should the applicant reoffend, the result for the community (and, in particular, his wife and children) would again be completely unacceptable; and

(8)    while it was in the best interests of the applicant’s children to have the decision to cancel the applicant’s visa revoked, this consideration was tempered by the effect that the applicant’s offending had on his children, which lessened its weight, and in any event, this consideration did not outweigh the nature and seriousness of the applicant’s crimes and the risk, which was significant, to the Australian community and his family should the applicant reoffend.

36    After referring to the above considerations, the Tribunal stated at [87] of its written statement –

The Tribunal is of the view that women and children have the right to live without fear of violence and that the majority of Australians would find domestic violence to be a most disturbing crime with far reaching negative consequences. In the circumstances of this matter, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as [the applicant], who was convicted of very serious domestic violence offences, who has shown disregard for the laws of Australia and who has shown a lack of insight into the nature and consequences of his conduct should expect to lose his visa.

Other considerations

37    The Tribunal then turned to “other considerations”, and referred to paragraph 14(1) of Direction No 65, which is set out at [29] above. The Tribunal identified that the following “other considerations” referred to in paragraph 14(1) of Direction No 65 were relevant –

(1)    international non-refoulement obligations [paragraph (a)];

(2)    the strength, nature and duration of ties [paragraph (b)]; and

(3)    the extent of impediments if removed [paragraph (e)].

International non-refoulement obligations

38    As to Australia’s non-refoulement obligations, the Tribunal considered that, following the decision of the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, the Tribunal was required to assess any international non-refoulement obligations that might arise in relation to the applicant, and a return to Myanmar, whether or not the applicant specifically framed the risk of harm as a non-refoulement issue. This approach, which requires consideration of the claim of harm regardless of its characterisation, has been confirmed as being correct by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [34(f)] and [39]. The Tribunal stated at [91] –

… It was agreed by both parties that the High Court has now upheld the decision of the Full Court of the Federal Court in [BCR16]. As such, following the principles outlined by the Full Federal Court, it was agreed that the Tribunal must now assess any international non-refoulement obligations that might arise if [the applicant] returned to Myanmar. This is so despite the fact that an applicant can apply for a protection visa and regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.

39    The Tribunal considered that it was not required to, and could not, undertake the same sort of analysis as that which would be undertaken by those who would consider such claims in support of an application for a protection visa, citing the Full Court’s decision in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [28]. The Tribunal stated that it did not have the benefit of an International Treaties Obligations Assessment, or the full body of evidence one would expect in a protection visa hearing. The Tribunal described the information from the applicant himself as dated and sketchy. As to the DFAT Country Information Report, the Tribunal stated that it had been provided by counsel for the Minister at very late notice, and on this basis, counsel for the applicant had objected to its use. The Tribunal at [95] described the evidence before it on these issues as “scant”, and “less than ideal”.

40    At [103] of its written statement, the Tribunal found that the applicant faced at least some risk of harm if he returned to Myanmar –

103.    Based on the limited evidence before it, the Tribunal finds that [the applicant] faces at least some risk of harm if returned to Myanmar because he departed the country illegally and is technically subject to up to five years imprisonment for having illegally crossed a border ([DFAT Country Information Report received as “R3”]). The Tribunal also holds some concerns about the safety of teachers of his minority language. Myanmar is a country in turmoil. The country information available to the Tribunal is now also arguably dated but on the evidence available it is at least arguable that non-refoulement concerns do arise here.

41    In relation to the submissions put by counsel for the applicant before the Tribunal that affirmation of the decision under review would expose the applicant to being removed from Australia, or to indefinite detention, the Tribunal stated at [107]-[109] –

107.    [The applicant] arrived in Australia as the holder of a Refugee visa. He has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. He is, accordingly, able to apply for a Protection visa in accordance with s 501E(2) of the Migration Act.

108.    A decision to affirm the delegate’s decision not to revoke the cancelation of [the applicant’s] visa will mean that [the applicant’s] visa will remain cancelled pursuant to s 501(3A) of the Migration Act. Should this occur, the applicant would remain an unlawful non-citizen in the relevant migration zone.

109.    In accordance with s 189 of the Migration Act, [the applicant] would initially be detained in immigration detention. It is not disputed that he could, at this time, apply for a protection visa and, arguably, a bridging visa. It is noted in this context that any character findings made in relation to [the applicant] in these proceedings would not negate any protection claims he may have from being assessed. This is so because of the operation of Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) – Part 2, which specifically precludes character findings arising from a criminal deportation finding being assessed first (and instead requires any protection claims to be assessed first).

42    The Tribunal then addressed the question whether the applicant would be deported before any such assessment could be made, and the alternative prospect of permanent detention. In relation to deportation, the Tribunal referred to s 198(2B) of the Migration Act, which relevantly provides –

198    Removal from Australia of unlawful non-citizens

…

(2B)    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.

43    It is convenient also to set out s 198(6), which counsel for the applicant submitted would be applicable here –

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

(a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

(ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

44    The Tribunal also referred to s 197C of the Migration Act, which provides –

197C    Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(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.

45    The Tribunal found at [117] that any concern that arose in relation to the deportation of the applicant if the decision to cancel his visa was not revoked was minimised by a clear commitment from the Australian government not to refoule anyone who is owed protection once that need for protection is properly assessed. The Tribunal relied on four matters in support of this finding –

(1)    the Tribunal referred at [109] of its written statement to Direction No 75 (see [34] above), and its requirement that any protection claims are to be addressed first;

(2)    the following statements in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which related to the addition of s 197C of the Act –

1132.    The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.

...

1144.    The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so... In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.

(3)    a passage in the applicant’s statement of facts, issues and contentions before the Tribunal, which referred to one of the principles in Direction No 75 (see [33] above) –

Section 197C notwithstanding, the Ministerial Direction stipulates in terms that ‘Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations’, a commitment that is also reflected in the Explanatory Memorandum relating to the enactment of s 197C itself.

(4)    confirmation by counsel for the Minister in oral submissions that it was not the Minister’s intention to breach Australia’s treaty obligations and to refoule someone in circumstances where they have been identified as being at risk of harm if returned to their country of origin.

46    The Tribunal stated at [117] that the fact that the applicant could apply for a protection visa went a considerable way towards addressing any concerns that the Tribunal might have about risk of harm should the Tribunal not revoke the decision to cancel the applicant’s visa.

The risk of permanent detention

47    In relation to the risk of permanent detention, the Tribunal at [119] referred to s 196(1) of the Migration Act, which provides –

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

48    The Tribunal referred at [120] to the decision of the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513, and set out extracts from [18]-[20] of the Full Court’s reasons, emphasising the following passage in [19] –

Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.

49    The Tribunal then referred to the reasons for judgment of Bromberg and Mortimer JJ in BCR16 at [84]-[89] before stating at [122]-[129] –

122.    It is clear here that it remains open for [the applicant] to apply for a protection visa. This goes a considerable way towards addressing any concerns that [the applicant] will be permanently detained if the Tribunal does not revoke the decision to cancel his visa. Permanent detention is not a “given” here as other avenues are indeed open. These include an application for a protection visa and a bridging visa pending resolution of [the applicant’s] protection visa application.

123.    Overall, the Tribunal does accept that non-refoulement obligations do arise here and that, accordingly, there is at least some prospect that, at some point in the future, [the applicant] may face permanent detention. That is not, however, a given and it cannot be determined here on limited evidence whether or not that will indeed occur. It is, however, a relevant consideration and concern.

124.    The question the Tribunal needs to ask here, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.

125.    The Tribunal finds that these findings do not outweigh the primary considerations outlined above. The Tribunal finds that, on the limited evidence before it, [the applicant] may face harm if returned to Myanmar. He may also equally face hardship if indefinitely detained at some undetermined point in the future. The evidence in support of these findings is, however, scant.

126.    Overall, the Tribunal finds these secondary considerations are tempered by:

•    a government commitment not to return an applicant who faces harm once it has been determined that a non-refoulement obligation exists; and

•    the prospect of a protection visa application that would allow for a full and detailed analysis of [the applicant’s] protection claims and which arguably limits the risk of permanent detention.

127.    The Tribunal needs to weigh any concerns it does have in relation to refoulement (which may not occur on the Minister’s statements) and permanent detention (which, again, is not a given on the evidence here because other options still exist) with the very strong concerns outlined above in relation to the seriousness of [the applicant’s] crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on clear and unequivocal evidence.

128.    Overall, the Tribunal does not accept that these secondary considerations outweigh the primary considerations detailed above. Noting that the primary considerations in Direction No. 65 (based here on very clear evidence) are normally given greater weight than the other considerations (here, based on less than complete evidence), the Tribunal finds that the primary considerations here clearly outweigh any secondary considerations.

129.    None of the above should, however, be seen as a comment by the Tribunal as to the prospects of any future protection visa application by [the applicant].

50    It is relevant to the applicant’s first ground of review in this Court to note that, at [124], [126], and [128] set out above, the Tribunal equated “other considerations” with “secondary considerations”.

The strength, nature and duration of the applicant’s ties to Australia

51    In relation to the applicant’s ties to Australia, the Tribunal referred to paragraph 14.2(1) of Direction No 65, which required decision-makers to have regard to the non-citizen’s ties to Australia. The Tribunal referred to the material before it on this topic, and concluded at [134]-[135] –

134.    [The applicant] and his wife have been married for 16 years. They have four children, all of whom live in Australia. He also has relatives here and has friends associated with his ethnic community and his church. He is active in his community through his church and has a group of friends who support him and speak of the positive impact he has had in their lives.

135.    On the evidence, the Tribunal finds that [the applicant] has contributed to some degree to the Australian community. The Tribunal also accepts that [the applicant’s] wife and children will be negatively affected if the Tribunal does not revoke the decision to cancel his visa. All of this weighs in favour of revoking the decision to revoke [the applicant’s] visa. Balanced against this, however, is [the applicant’s] history of domestic violence. As correctly stated by counsel for the Minister, [the applicant’s] criminal record does not reflect a positive contribution to the Australian community. While the Tribunal finds that [the applicant] does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above

The extent of impediments if the applicant is removed from Australia

52    In relation to any impediments the applicant might face if removed from Australia, the Tribunal referred to paragraph 14.5(1) of Direction No 65, which required decision-makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards. The Tribunal referred to submissions that were made on behalf of the applicant at the hearing before the Tribunal, and to the submissions in the Minister’s statement of facts, issues and contentions, and concluded at [140]-[142] –

140.    In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal accepts that [the applicant] may face impediments if removed to Myanmar. It is clear that life will be challenging for him if he is returned to Myanmar, given that he has not lived there since 2008. He will face very limited job prospects and has limited family support in Myanmar.

141.    The Tribunal also notes and repeats its comments above in relation the risk of possible physical harm for [the applicant] if he is deported. As above, the Tribunal finds that any risk of harm is minimised by the fact that [the applicant] can apply for a protection visa and will not be returned if he is found to be owed protection.

142.    Overall, although the Tribunal considers that this consideration weighs in [the applicant’s] favour, this consideration does not outweigh any of the primary considerations outlined above.

The Tribunal’s conclusions

53    The Tribunal summarised its findings, and stated that it was of the view that the Australian community would expect that the applicant’s visa would remain cancelled. The Tribunal referred to the factors that weighed in favour of revocation, but concluded at [151]-[153] that the correct and preferable decision was to refuse to revoke the cancellation of the applicant’s visa –

151.    There are considerations that weigh in favour of revocation of the decision to cancel [the applicant’s] visa. These include his ties to the Australian community, the best interests of his children and the extent of the impediments he may face if returned to Myanmar. The Tribunal also finds, on the rather limited evidence before it, that Australia may owe non-refoulement obligations to [the applicant].

152.    The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above. The Tribunal notes that any concerns [the applicant] has in relation to non-refoulement obligations or risks of harm he may face if returned to Myanmar can be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed. In this context, any concerns that arise in relation to refoulement and the risk of mandatory detention are clearly outweighed by the primary considerations detailed above – findings which are based on the unequivocal evidence before the Tribunal.

153.    Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of [the applicant’s] visa.

The applicant’s grounds of review

54    The applicant relied upon three grounds of review which were accompanied by detailed particulars. In summary, those grounds of review and the applicant’s submissions in support of them are set out in the sections below.

Ground 1 – applicant’s submissions

55    The applicant claimed that the Tribunal erred in the weight that it gave to the “other considerations” referred to in paragraph 14 of Part C of Direction No 65 that were material to his representations. This ground was developed in two related ways. First, the applicant claimed that the Tribunal treated the relevant “other considerations”, to which Direction No 65 required that the Tribunal have regard, as “secondary considerations”, and thereby did not give them sufficient weight, relying principally on Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 (Colvin J). I referred at [50] above to [124], [126], and [128] of the Tribunal’s written statement, where it referred to “secondary considerations” on four occasions. In making his submissions, counsel for the applicant also drew the Court’s attention to the subsequent decision of the Full Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 291 which considered a similar issue.

56    However, counsel for the applicant stated to the Court that he accepted that the mere use of the word “secondary”, in and of itself, was not enough to make out the first ground, and that in conjunction the applicant relied on the second way in which the first ground was put. The applicant submitted that the Tribunal had weighed all the primary considerations for and against revocation against each other, concluding that the best interests of the applicant’s children were outweighed by other primary considerations, before weighing the other considerations individually against the interim conclusion reached after weighing the primary considerations. The applicant submitted that the Tribunal thereby failed to take account of the cumulative effect of all the considerations that favoured revocation of the original decision to cancel the applicant’s visa. The applicant submitted that this feature of the Tribunal’s written statement supported the first submission, namely that the Tribunal had in substance treated “other considerations” as “secondary considerations”. The applicant developed this claim by relying on the structure of the Tribunal’s written statement. The applicant submitted that at [82] of its written statement, the Tribunal weighed the interests of the applicant’s children against other primary considerations, namely the nature and seriousness of the applicant’s crimes, and the risk to the Australian community and his family should he reoffend –

82.    Based on the evidence presented, the Tribunal accepts that it is in the best interests of the applicant’s children for the decision to cancel the applicant’s visa [to] be set aside and the applicant’s visa to be reinstated and that this conclusion weighs in the applicant’s favour. However, this consideration is tempered by the effect that the applicant’s offending has had on his children, which lessens its weight. Overall, and in any event, this consideration in his favour does not outweigh the nature and seriousness of the applicant’s crime and the risk, which is significant, to the Australian community and his family should the applicant reoffend.

57    The applicant then relied on the Tribunal’s written statement at [124], [125], [135], and [142] (see [49] and [51]-[52] above), and submitted that the Tribunal weighed the “other considerations” that favoured revocation individually against the adverse conclusion that it had reached at an antecedent stage upon weighing the primary considerations, thereby precluding the combined weight of all the considerations favourable to the applicant being evaluated. The applicant submitted that the Tribunal’s conclusions at [151]-[153] of its written statement (see [53] above) do not amount to a cumulative consideration of all the factors that favoured revocation, because the Tribunal’s written statement had to be read fairly and as a whole, and that the conclusions reached should be understood in light of the approach that the Tribunal had taken earlier in its written statement.

Ground 1 – Minister’s submissions

58    The Minister submitted that while the Tribunal at times referred to “secondary” considerations, when read as a whole, the written statement showed that the Tribunal was alive to the possibility that any of the “other” considerations might be capable of having equal or greater weight than a primary consideration. This was demonstrated by the fact that the Tribunal weighed “other” considerations, such as non-refoulement obligations, against the primary considerations. The Minister also relied on the concluding paragraphs of the written statement at [152]-[153] (see [53] above) which referred to “countervailing considerations” and “other relevant considerations”, and the absence of any reference to “secondary considerations” in the complete statement of the Tribunal’s conclusions at [142]-[153] of the written statement. The Minister relied on the decision of the Full Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 291, where the respondent to that appeal failed to sustain a similar claim, and submitted that the present case was relevantly indistinguishable.

59    In relation to the applicant’s claim that the Tribunal had removed from further consideration those primary considerations that were favourable to revocation that it held did not outweigh the other primary considerations, the Minister also submitted that the Tribunal’s written statement was to be read fairly and as a whole, and that at [151] and [152] (see [53] above) the Tribunal had engaged in a cumulative assessment of all the considerations. Further, the Minister submitted that it was necessary for the Tribunal to weigh primary considerations against each other, because paragraph 8(4) of Direction No 65 provided that primary considerations should generally be given greater weight than secondary considerations, and paragraph 8(5) provided that one or more primary considerations may outweigh other primary considerations (see [25] above).

Ground 2 – applicant’s submissions

60    The applicant claimed that the Tribunal erred because it misunderstood the operation of the Migration Act and the likely course of decision–making under the Act. The applicant relied on the Tribunal’s statement at [141] of its written statement (see [52] above) that any risk of harm to the applicant should he be deported was minimised by the fact that he could apply for a protection visa and would not be returned if he is found to be owed protection. The applicant submitted that there were a number of errors in the Tribunal’s statement at [141].

61    The applicant submitted that the Tribunal failed to recognise that any future application by the applicant for a protection visa would almost certainly be refused on character grounds, and that the operation of the Act would then require his immediate removal pursuant to s 197C and s 198 of the Act, or alternatively detention for an indefinite period unless the Minister decided to exercise the personal power under s 195A to grant the applicant a visa. The applicant relied on the statutory criteria for the granting of a protection visa specified in the Act, and the regulations, and which are picked up by s 65. The applicant relied on s 36(1C)(b) of the Act that provides –

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

…

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

62    Further, the complementary protection criterion in s 36(2)(aa) of the Act, is qualified by s 36(2C)(b)(ii), which provides –

(2C)    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(b)    the Minister considers, on reasonable grounds, that:

…

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

63    Section 5M of the Act defines “particularly serious crime” as including a reference to a crime that consists of the commission of a “serious Australian offence” which in turn is defined by s 5 of the Act as –

… an offence against a law in force in Australia, where:

(a)    the offence:

(i)    involves violence against a person; or

(ii)    is a serious drug offence; or

(iii)    involves serious damage to property; or

(iv)    is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)    the offence is punishable by:

(i)    imprisonment for life; or

(ii)    imprisonment for a fixed term of not less than 3 years; or

(iii)    imprisonment for a maximum term of not less than 3 years.

64    It was submitted on behalf of the applicant that the offences of which the applicant was convicted, being offences involving violence against persons carrying maximum sentences of up to 10 years (see [2] above), engaged this definition.

65    Counsel for the applicant also relied on s 501(1) of the Migration Act as entitling the Minister to refuse any application by the applicant for a protection visa on character grounds –

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

66    Under s 501(6) of the Act, a person does not pass the character test if the person has a “substantial criminal record” as defined by s 501(7), which is relevantly engaged if (inter alia) the person has been sentenced to a term of imprisonment of 12 months or more.

67    Counsel for the applicant also relied on the Migration Regulations 1994 (Cth). Section 35A of the Migration Act provides for three classes of protection visas, namely a permanent protection visa, a temporary protection visa, and a safe haven enterprise visa. Section 31(3) of the Act provides that the regulations may prescribe criteria for specified classes of visa, including the classes provided for by s 35A of the Act. The applicant relied on regs 2.02, 2.03, and the criteria for a Subclass 866 (Protection) visa in Schedule 2 of the Migration Regulations, which at clause 866.225 provides that an applicant must satisfy the public interest criteria in clause 4001 of Schedule 4, which is in the following terms –

4001    Either:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

68    The applicant submitted that he would not engage sub-clauses 4001(a) or (b).

69    Counsel for the applicant submitted that in light of all the above provisions, any application by the applicant for a protection visa would almost certainly be refused on character grounds, following which the operation of s 197C and s 198 of the Act would require the applicant’s removal. It was submitted that therefore the Tribunal’s reasons proceeded upon a misunderstanding of the operation of the Act. Accordingly, the Tribunal’s reliance on Direction No 75 (see [32]-[34] above) and its requirement that decision-makers should assess whether the refugee and complementary protection criteria are met before considering ineligibility grounds was erroneous, because in whatever order the issues were considered, the character criteria would almost certainly result in the applicant failing to obtain a protection visa.

70    The applicant also submitted that upon the Tribunal affirming the delegate’s decision not to revoke the original decision to cancel the applicant’s visa, there arose under s 198(2B) of the Migration Act an immediate obligation upon an officer to remove the applicant from Australia as soon as practicable. Further, this obligation arose whether or not there was an assessment of Australia’s non-refoulement obligations in the context of the applicant’s claims, unless the Minister exercised a non-compellable personal power under s 195A of the Act to grant a visa to the applicant as a person in detention, which the applicant submitted was unlikely to occur.

71    As to the prospect of indefinite detention, to which paragraph 14.1(6) of Direction No 65 and [107]-[109] of the Tribunal’s written statement refer (see [41] above), the applicant relied on the reasons of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 at [26]-[27] to support a submission that if an application for a protection visa was refused, then the applicant would either be removed immediately, or detained for a definite period, namely until the Minister considered whether to exercise the personal power under s 195A of the Act to grant a visa to the applicant. If the Minister refused to exercise that power, then the applicant would be removed.

72    The applicant submitted that the Tribunal was in error in giving weight to the statement in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which is set out at [45(2)] above, and submitted that it was no more than a policy statement that did not have any statutory force, relying on the obiter in BCR16 at [57] (Bromberg and Mortimer JJ). The applicant also submitted that for similar reasons, the Tribunal was in error in relying on the reference to paragraph 14.1(1) of Direction No 65 (see [30] above), and that the Tribunal was in error in giving weight to the submissions by counsel for the Minister set out at [45(4)] above.

73    The applicant also submitted that the Tribunal was in error at [141] in stating that any risk of harm would be minimised by the fact that the applicant could apply for a protection visa because not every risk of harm was relevant to such an application, but only the real risk of “serious harm” for the purposes of s 5J of the Act and its definition of “well-founded fear of persecution”, or “significant harm” for the purposes of the complementary protection criteria in s 36(2)(aa) of the Act: see BCR16 at [48] (Bromberg and Mortimer JJ).

Ground 2 – Minister’s submissions

74    The Minister submitted that the Tribunal had not misunderstood the course of decision-making, because it could reasonably be inferred that the Tribunal was cognisant that it was not guaranteed that the applicant would succeed in any future application for a protection visa. The Minister submitted that the Tribunal, after having set out at [90] of its written statement paragraph 14.1 of Direction No 65 concerning international non-refoulement obligations (see [30] above), then engaged with the applicant’s protection claims. The Minister relied in particular on [91] of the Tribunal’s written statement, which I have set out at [38] above, as demonstrating that the Tribunal engaged with the applicant’s protection claims. The Minister submitted that, unlike the decision-maker in BCR16, the Tribunal did not defer consideration of the claims. The Minister submitted that there was no error by the Tribunal in its account at [109] of the written statement (see [41] above) in relation to what would, and could, occur to the applicant upon a decision to affirm the decision of the delegate not to revoke the cancellation of the applicant’s visa.

75    The Minister relied on [117] of the Tribunal’s written statement which stated that any concern that arose in relation to the deportation of the applicant was minimised by “a clear commitment from the Australian government not to re-foule anyone who is owed protection once that need for protection is properly assessed”. The Minister also relied on [122] and [123] of the Tribunal’s written statement (see [49] above), which referred to the possibility of indefinite detention, stating that it was not a “given”, and that it could not be determined on limited evidence whether or not it would occur. The Minister also pointed to paragraph 3(a) of Part 2 of Direction No 75, which I have set out at [34] above, and stated that it supported the idea that a non-citizen might still be the subject of Australia’s non-refoulement obligations, even if the disqualifying criteria for a protection visa were engaged.

76    As to the correct understanding of the operation of s 197C and s 198 of the Act, the Minister submitted that the Tribunal had acknowledged what it described as a clear commitment by the Minister as a minimising or ameliorative factor of which the Tribunal took account, but it did not misunderstand the effect of the provisions.

Ground 3 – applicant’s submissions

77    The applicant claimed that the Tribunal denied him procedural fairness, or alternatively failed to carry out its statutory task under s 501CA of the Migration Act because it failed to consider representations that his separation from his wife and children and its psychological consequences would be inconsistent with Australia’s obligations under the Convention on the Rights of the Child, and would not be the subject of consideration in any future application for a protection visa. I have referred to these submissions at [16] above.

78    The applicant accepted that the Tribunal had concluded that the interests of the applicant’s children were best served by revoking the cancellation decision, but submitted that the Tribunal had not considered whether separation of the applicant from his children would be inconsistent with Australia’s international treaty obligations, which the applicant submitted had been a substantial argument.

Ground 3 – Minister’s submissions

79    In relation to the applicant’s claim that the Tribunal did not consider the representations that had been made that separation of the applicant from his children would be inconsistent with Australia’s obligations under the Convention on the Rights of the Child, and that these matters would not be relevant on an application for a protection visa, the Minister submitted that while the representations of the applicant as a whole were a mandatory relevant consideration, the Tribunal was not required to refer to every submission advanced, or to make findings in relation to every matter raised by the applicant. Further, having regard to the fact that the Tribunal considered the substance of the submission by addressing the effect of removal of the applicant on his wife and children, there was no error by the Tribunal, still less a jurisdictional error.

Consideration

Ground 1 - consideration

80    Paragraph 8(3) of Direction No 65 provides that both primary and other considerations may weigh in favour of, or against, whether to revoke the mandatory cancellation of a visa. Paragraph 8(4) of Direction No 65 then provides that primary considerations should “generally” be given greater weight than the other considerations. When sub-paragraphs 8(3) and (4) are read together, it may be accepted that the Tribunal is not required in all circumstances to give greater weight to primary considerations, and depending upon the particular circumstances, one or more “other” considerations are capable of outweighing the primary considerations.

81    In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545, Colvin J made an order setting aside a decision of the Tribunal that had treated “other” considerations referred to in Direction No 65 as “secondary” considerations. Colvin J held at [26] and [28] –

26    It is true that the Tribunal did not in terms state that secondary considerations could not be treated as having equal or greater importance in any particular case. However, equally it did not say that despite the description ‘secondary considerations’, they may be afforded equal or greater weight than primary considerations in an appropriate case. In my view, the use of the term ‘secondary’ conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances. It is a term that the Tribunal used in the heading before considering the other considerations: at [89]. It is also a term that it used when weighing the primary considerations and the other consideration of risk of harm if Mr Suleiman was returned to his country of nationality.

…

28    To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated’ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight.

82    In a later case, Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 291, the Full Court (Greenwood, McKerracher and Burley JJ) addressed the question whether “other” considerations, to which the Tribunal had also referred as “secondary” considerations, had been treated such that they could not be afforded equal or greater weight than primary considerations. This question directed attention to the Tribunal’s written statement, which the Full Court held, when read as a whole, did not reflect an understanding that “other” considerations must always be given less weight than primary considerations. The Full Court reasoned as follows –

[31]    First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as:

[W]hether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.

[32]    The reference to “secondary” in this context is ambiguous, because it may be synonymous with “other” or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it “needs to weigh” these safety concerns with the “very strong” earlier identified (primary) concerns in relation to the seriousness of the respondent’s crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than other considerations and that the Tribunal finds “that the primary considerations here clearly outweigh this secondary consideration” (emphasis added). The reference to “normally” indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the “other” or “secondary” consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in section 8(4) provides that “primary considerations should generally be given more weight than other considerations”. The word “normally” indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.

[33]    This understanding of the Tribunal’s reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the “strength, nature and duration of ties” that it is not convinced that “on balance” they outweigh the primary considerations identified earlier.

[34]    Further, in its conclusions at [119]–[124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the “other” considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not “outweigh the other primary considerations” which are “generally afforded greater weight” (emphasis added). This language indicates that the Tribunal did not take the view that “other” considerations were always subservient to primary considerations.

[35]    Taken together, we consider that the ambiguity apparent from the twice used word “secondary” does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. …

83    In order to evaluate the applicant’s submissions in the present case, it is necessary to read the Tribunal’s written statement fairly, and as a whole. The Tribunal referred in a number of places to “other” considerations as “secondary” considerations. However, I am not persuaded that as a matter of substance the Tribunal fell into error in the way that it evaluated those considerations. The Tribunal used the term “secondary considerations” interchangeably with “other considerations”, as [128] of its written statement set out under [49] above demonstrates. To avoid ambiguity, it might have been better to use the term “non-primary considerations”, as Drummond J did in Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; 113 FCR 268 at [18]-[19] and [21] when considering the terms of Direction No 17. However, fairly read, I consider that the Tribunal used the term “secondary” to convey more clearly the fact that the “other” considerations were not primary considerations, in circumstances where, as the Tribunal recognised at [128], primary considerations are generally to be given greater weight than the other considerations. Although at [128] of its written statement the Tribunal used the word “normally” rather than “generally”, this did not involve any material departure from the import of Direction No 65.

84    As to the applicant’s submission that the Tribunal had erred in the way that it went about weighing the primary and secondary considerations, I do not accept that when read as a whole, the written statement discloses error of that type. The structure of the Tribunal’s written statement relevant to this ground of review is as follows –

(1)    At [70], the Tribunal found that the applicant posed an unacceptable risk to the Australian community that weighed against any revocation of the decision to cancel his visa. This addressed the first primary consideration, namely protection of the Australian community from criminal or other serious conduct.

(2)    At [82], the Tribunal concluded that the best interests of the applicant’s children favoured revocation of the decision to cancel the applicant’s visa. However, this consideration did not outweigh the nature and seriousness of the applicant’s offending, and the significant risk to the Australian community and to his family should he reoffend. This addressed the second primary consideration, namely the best interests of minor children in Australia.

(3)    At [87], which I have set out at [36] above, the Tribunal concluded that the expectations of the Australian community were that the applicant, who had been convicted of very serious offences involving domestic violence, and who had shown disregard for the laws of Australia, and who had shown a lack of insight into the nature and consequences of his conduct, should expect to lose his visa. This addressed the third primary consideration, namely the expectations of the Australian community.

(4)    At [127]-[128], which I have set out at [49] above, after considering at some length the claims made on behalf of the applicant by reference to international non-refoulement obligations, the Tribunal concluded that the concerns that the Tribunal had in relation to refoulement and permanent detention did not outweigh the primary considerations, finding that the primary considerations “clearly outweigh any secondary considerations”. This addressed the non-primary consideration referred to in paragraph 14(1)(a) of Direction No 65, namely international non-refoulement obligations.

(5)    At [135], the Tribunal concluded that the applicant had contributed to some degree to the Australian community, and accepted that the applicant’s wife and children would be negatively affected if the Tribunal did not revoke the decision to cancel the applicant’s visa. While the Tribunal considered that these matters favoured revocation, it stated that it was not convinced that the nature and strength of the applicant’s ties outweighed the primary considerations. This addressed the non-primary consideration referred to in paragraph 14(1)(b) of Direction No 65.

(6)    At [140]-[142], the Tribunal concluded that although the applicant might face impediments if removed to Myanmar, and that this weighed in his favour, overall this consideration did not outweigh any of the primary considerations. This addressed the non-primary consideration referred to in paragraph 14(1)(e) of Direction No 65.

85    Up to [142], the Tribunal weighed the interests of minor children (the second primary consideration) against the first primary consideration, and it then weighed each of the non-primary considerations against “the primary considerations”, which are fairly to be understood as being the first and third primary considerations that favoured cancellation of the applicant’s visa. As an interim step in the reasoning process, I see no error in this approach. Each of the material considerations, both primary and non-primary, fell to be evaluated by giving them relative weight: they were not to be considered in an a priori way, or in a vacuum. This is recognised by sub-paragraphs 8(3) and (4) of Direction No 65 which invited a weighing process, including weighing primary considerations against each other. Weighing individual considerations in this way so as to give them relative weight, and thereby to put them into perspective, does not detract from a final, overall evaluative process.

86    Had the Tribunal’s path of reasoning terminated at [142], there might have been some force in the applicant’s claims that the Tribunal had failed to consider cumulatively those matters that favoured revocation of the decision to cancel the applicant’s visa. However, it is tolerably clear from [151]-[152] of the written statement, which I have set out at [53] above, that the Tribunal considered the cumulative effect of all the considerations that favoured revocation against the considerations that favoured cancellation, and engaged in an overall balancing exercise before reaching the conclusion that the original decision to cancel the applicant’s visa should not be revoked.

87    For the above reasons, I reject the first ground of review.

Ground 2 - consideration

88    An administrative decision-maker may commit jurisdictional error if he or she does not take account of the legal consequences of the decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]-[10], [17] (Allsop CJ and Katzmann J); Taulahi v Minister for Immigration & Border Protection [2016] FCAFC 177; 246 FCR 146 at [84], [86] (Kenny, Flick and Griffiths JJ). And jurisdictional error may be committed if, in addressing the legal consequences of a decision, there is a material misunderstanding as to those consequences such that there is a failure to carry out the statutory task: Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [193]-[196] (Gummow and Hayne JJ); BCR16 at [62] (Bromberg and Mortimer JJ).

89    I have summarised the Tribunal’s reasons in relation to international non-refoulement obligations at [38]-[50] above. The resolution of the competing submissions in relation to the applicant’s second ground of review require that attention be focussed on the Tribunal’s conclusions in relation to non-refoulement and the prospect of indefinite detention, which I shall now summarise –

(1)    The evidence before the Tribunal of the risk of harm to the applicant was scant – [95].

(2)    The applicant faced at least some risk of harm if he returned to Myanmar, because he departed the country illegally – [103].

(3)    There was evidence before the Tribunal, which it did not doubt, that in 2008 the applicant had been exposed as a teacher of the Chin language at a secret school in Myanmar, which caused him to flee – [96]-[97]. The Tribunal stated that it held concerns about the safety of teachers of the applicant’s minority language – [103].

(4)    Myanmar was a country in turmoil, and it was at least arguable that non-refoulement concerns arose – [103].

(5)    A decision not to revoke the original decision to cancel the applicant’s visa would result in the applicant being detained in immigration detention in accordance with s 189 of the Act – [109].

(6)    The applicant was able to apply for a protection visa in accordance with s 501E(2) of the Act, and arguably, a bridging visa – [107], [109], [122].

(7)    Because of the operation of Direction No 75, character findings made in relation to the applicant in the proceeding before the Tribunal would not prevent protection claims from being assessed if the applicant applied for a protection visa – [109].

(8)    The Tribunal accepted a statement made by counsel for the Minister in oral submissions that it was “not the Minister’s intention to breach Australia’s treaty obligations and to refoule someone in circumstances where they have been identified to be at risk of harm if returned to their country of origin” – [116], [117].

(9)    The Tribunal stated further, at [117] –

… any concern that arises here in relation to [the applicant] being deported if the decision to cancel his visa is not revoked is minimised by a clear commitment from the Australian government not to re-foule anyone who is owed protection once that need for protection is properly assessed. In this context, it is noted that [the applicant] can now apply for a protection visa. This too goes a considerable way towards addressing any concerns the Tribunal might have about the risk of harm should the Tribunal not revoke the decision to cancel his visa.

(10)    Permanent detention was not a “given”, as other avenues were open to the applicant, including an application for a protection visa, and a bridging visa pending resolution of the protection visa application – [122].

(11)    Overall, non-refoulement obligations arose, and there was at least some prospect that at some point in the future the applicant would face permanent detention, but whether that would occur could not be determined on the limited evidence available to the Tribunal, although it was a relevant consideration and concern – [123].

(12)    The secondary (or non-primary) considerations relating to the prospect of refoulement or permanent detention were tempered by –

(a)    a government commitment not to return an applicant who faces harm once it has been determined that a non-refoulement obligation existed; and

(b)    the prospect of a protection visa application that would allow for a full and detailed analysis of the applicant’s protection claims and which arguably limited the risk of permanent detention – [126].

(13)    The Tribunal expressly stated that nothing it said should be seen as a comment by the Tribunal as to the prospects of any future application for a protection visa – [129].

(14)    In relation to the applicant’s claims of impediments if he were removed to Myanmar, the Tribunal stated that any risk of harm was minimised by the fact that the applicant could apply for a protection visa and would not be removed if he was found to be owed protection – [141].

(15)    Any concerns that the applicant had in relation to non-refoulement obligations or risks of harm he might face if he returned to Myanmar could be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed – [152].

(16)    Any concerns that arose in relation to refoulement and the risk of mandatory detention were clearly outweighed by the primary considerations – [152].

90    I do not accept the applicant’s claim that the Tribunal misunderstood the course of decision-making under the Act. In its written statement, the Tribunal directed attention to three possibilities: (1) deportation; (2) indefinite detention; and (3) the prospect that the applicant might be granted a visa. In addressing these possibilities, the Tribunal gave attention to what in fact would be the possible courses of decision-making: see DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [165] (Robertson J, with whom Logan J at [38] agreed). There was no material error in that approach. It is clear from the Tribunal’s written statement that it understood that there was the possibility that if the applicant applied for a protection visa, it might not be granted. At [125], [141], and [151] of its written statement, the Tribunal considered the applicant’s claims of potential harm in Myanmar upon the hypothesis that he would be deported. The Tribunal at [129] stated that it made no comment as to the prospects of any future protection visa application by the applicant. Further, the Tribunal’s consideration of the possibility that the applicant might face indefinite detention necessarily proceeded upon the premise that a protection visa might not be granted.

91    Further, there was no material error by the Tribunal in considering the possibility that the applicant might be granted a visa. The application of s 501(1) of the Migration Act and clause 4001 of the regulations, if applicable, would involve exercises of discretion by the Minister upon considering the application (cf, BAL19 v Minister for Home Affairs [2019] FCA 2189, which is currently subject to appeal). That discretion would likely fall to be exercised after the applicant’s claims for protection had been assessed, as Direction No 75 contemplates. And as to the disqualifying criteria in s 36(1C) and s 36(2C)(b)(ii) of the Act, they are to be assessed at the time of the consideration of the application for the protection visa on the basis of any claims that the applicant might then put. There is the further issue that, for the purposes of the disqualifying criteria in s 36(1C) and s 36(2C)(b)(ii) of the Act relating to protection visas, “danger” may not be the same as “risk”: see the discussion by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [69]-[72].

92    As to the Tribunal’s reference at [113] of its written statement to the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which is set out at [45(2)] above, and to the submissions by counsel for the Minister before the Tribunal that it was not the Minister’s intention to breach Australia’s treaty obligations, I find that there was no material error in the way the Tribunal treated those matters. The Tribunal found on the limited evidence before it that the applicant faced at least some risk of harm if he returned to Myanmar, and at [123] accepted that non-refoulement obligations were owed in respect of the applicant. The Tribunal found at [117] that any concern that the applicant might be deported was minimised by the commitment by the Australian government not to refoule anyone in respect of whom protection is owed. In the passage from the Explanatory Memorandum that the Tribunal cited, reference is made in this regard to the Minister’s non-compellable personal power under s 195A of the Migration Act. Statements as to Ministerial intention were factual matters for the Tribunal to evaluate, and there was no material error by the Tribunal in taking them into account.

93    Finally, there was no material error by the Tribunal in finding at [141] that any risk of harm to the applicant if he was deported was minimised by the fact that he could apply for a protection visa, and would not be refouled if he was found to be owed protection. The Tribunal’s reasons at [141] are to be understood as picking up its earlier path of reasoning at [122]-[129]. The risk of harm to which the Tribunal referred was considered by the Tribunal for the purposes of evaluating the extent of impediments if the applicant was removed to Myanmar in addition to the consideration of non-refoulement obligations (see [38] above). As to that risk of harm, the Tribunal accepted that non-refoulement obligations were owed. The Tribunal did not state that the risk would be eliminated by the fact that the applicant could apply for a protection visa, but only that it would be minimised.

Ground 3 - consideration

94    I reject the applicant’s third ground of review, and I do so for three reasons. First, in my view, the Tribunal considered the substance of the applicant’s representations concerning the effect of the cancellation of his visa on his family, and in particular his children. In the representations to the delegate that were before the Tribunal, to which I have referred at [16] above, it was submitted on the applicant’s behalf by reference to Article 9 of the Convention on the Rights of the Child that –

    “…separation of family is not in the child’s best interest and contrary to the family unity principle”;

    “If the decision maker forms the view that the prospect of indefinite detention and Australia’s protection obligations are not mandatory considerations, we submit that the issue of family separation would not be assessed in any future protection visa application.”

    “Family separation is likely to cause [the applicant] and his family serious psychological pain and suffering and we submit that this is a mandatory consideration.”

95    In considering the interests of the applicant’s children, the Tribunal at [72] of its written statement set out paragraph 13.2(4) of Direction 65, to which I referred at [28] above, which listed the factors that must be considered, where relevant, in considering the best interests of a child. In my view, the requirement in Direction No 65 that a decision-maker consider the best interests of minor children may be seen to further Australia’s treaty obligations.

96    At [74], the Tribunal set out extracts from a statutory declaration made by the applicant’s wife –

6.    Our children miss him very much. They are not happy at school or church, because they miss him when they see the other families with their fathers. The youngest always asks me, why is dad not back yet. He asks me not to close the door at night when he is going to sleep because his dad is coming back. My older sons accuse me, saying why is he not coming back, you are telling us a lie. This is very hard for me.

7.    I am not able to help them with their education because the school curriculum is English and I don’t know any of that. [The applicant] knows English and he could help them, he used to help them with their homework before he went to prison. It would be good for them to have their dad back, to help them with their learning again.

8.    It is a bad situation for me living as a single mother with four children. There are no other single mothers who I know. It is very difficult economically. It is distressing to see the impact that this separation is having on our children. I cannot live without him. I ask that the government please give [the applicant] his visa back, to take away our suffering and for the future good of our family.

97    The Tribunal then proceeded to consider the interests of the applicant’s children at [75] to [82] of its written statement. At [78], it set out passages from the statement of facts, issues and contentions lodged on behalf of the applicant with the Tribunal that addressed the topic of the effect of the cancellation of the applicant’s visa on his family. Those contentions included the following –

28.    Second, the Tribunal should also consider the practical and economic hardship that the family now experiences, and will continue to experience without [the applicant] being able to provide for them, while [the applicant’s wife] struggles to get by as, in effect, a single mother with four children, and scarce prospects of improving their situation, especially given her minimal knowledge of English and lack of professional qualifications or experience.

29.    [The applicant’s] children have expressed goals for their study and for their future after school, the achievement of which could be made harder in the absence of their father.

…

32.    What happens to [the applicant] will inevitably have an impact on his children. If his visa remains cancelled then they will be left knowing that their father has been left imprisoned indefinitely in immigration detention, with no hope of freedom – save for return to the serious danger from which he fled and the continuous fear that he may be seriously harmed, persecuted or killed.

33.    That knowledge would be a lasting, heavy and traumatic burden of grief for his children to live with into the future.

34.    It is noted that the delegate also formed a view that ‘the children’s best interests can still be served’ if the whole family were to return to …

35.    That is a surprising proposition. To do so would involve uprooting the children from Australia – the two youngest of whom have no memory of Burma and don’t even speak the language – and taking them to a place where [the applicant] may be seriously harmed and both parents would face the prospect of imprisonment for having illegally left the country and sought asylum. Any hope of a comfortable future for the children, or even a minimally safe and secure future, would be highly dubious.

36.    That could not possibly be considered ‘in the best interests’ of children who are settled safely in Australia, and the very possibility of it occurring would also be a factor weighing in favour of the revocation of [the applicant’s] visa cancellation.

98    The pithy representations made on behalf of the applicant to the delegate with reference to the Convention on the Rights of the Child did not materially add to the more detailed submissions that were the subject of the applicant’s contentions before the Tribunal, and which are set out above.

99    At [82], the Tribunal accepted that it was in the best interests of the applicant’s children that the decision to cancel his visa be revoked, although this was tempered by the effect that the applicant’s offending had had on his children. The Tribunal thereby formed a conclusion in relation to the substance of the submission that was made with reference to Article 9 of the Convention on the Rights of the Child, which had been developed by the more detailed contentions that were before the Tribunal.

100    As to the representation that the issue of family separation would not be assessed in any future protection visa application, this was prefaced by a qualification that this representation arose if the decision-maker formed the view that “the prospect of indefinite detention and Australia’s protection obligations were not mandatory considerations”. It is not evident that the Tribunal formed this view, because it did address the prospect of indefinite detention, and it did address international non-refoulement obligations. Accordingly, this part of the applicant’s submissions did not require attention.

101    Second, while the representations that were made on behalf of the applicant in response to the invitation under s 501CA(3) of the Act, viewed as a whole, were a mandatory relevant consideration, not every statement in the representations can be so described: Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [34(e)]; and see also, Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [69]-[72] (Colvin J, with whom Reeves J at [3] generally agreed). A decision-maker does not fall into jurisdictional error merely by failing to consider every individual submission advanced on behalf of an applicant, still less every nuance or variation of a submission. The submission in the representations to the delegate that the removal of the applicant would be inconsistent with Australia’s obligations under the Convention of the Rights of the Child did not materially add to the substance of the other submissions that the Tribunal set out and considered in a way that was favourable to the applicant. Paragraph 13(2)(b) in Part C of Direction No 65 (see [26] above), and to which the Tribunal referred at [34] of its written statement, provided that the best interests of minor children are a primary consideration in deciding whether to revoke the original decision to cancel a visa. The Tribunal gave effect to this part of Direction No 65 by addressing that topic. And as I have held at [100] above, the submission that was contingent on the Tribunal finding that the prospect of indefinite detention and Australia’s protection obligations were not mandatory considerations, did not arise.

102    Third, even if as part of its review function the Tribunal was required, but failed, to give separate consideration to the applicant’s representations that are the subject of the third ground of review, in order to establish jurisdictional error, the applicant has to show that any such failure was material in the sense that, but for the failure, there was a realistic possibility of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45], [46] and [49] (Bell, Gageler and Keane JJ). As I have mentioned, the Tribunal took account of the interests of the applicant’s minor children in a way that was favourable to the applicant. The applicant has not established that any failure by the Tribunal to address in terms the submissions that are the subject of ground 3 was material in the requisite sense.

Conclusions

103    The application will be dismissed with costs.

Associate:    

Dated:    13 March 2020