FEDERAL COURT OF AUSTRALIA

DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395

ORDERS

THE COURT ORDERS THAT:

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

2.    A writ in the nature of certiorari issue to the respondent quashing the decision made on 7 May 2018 refusing the applicant’s request to revoke the decision to cancel his visa.

3.    A writ of mandamus issue to the respondent to consider according to law the applicant’s request that the decision to cancel his visa be revoked pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

4.    The respondent pay the applicant’s costs of the application.

5.    Any consent request to amend these orders to fix the costs be made to Chambers by email by 4.00pm on 9 April 2020.

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 a 30 year old Sudanese man who spent most of his childhood in a refugee camp in Kenya. In 1991, when the applicant was an infant, he fled his hometown in Sudan (now South Sudan) with his family after an attack by Arab rebels who killed his father. In April 2008, the applicant and his mother, brother, sister, and his sister’s two children, were granted humanitarian visas and they then resettled in Australia in 2009 when the applicant was 18 years of age.

2    Between 2010 and 2017, the applicant was convicted in Victoria of a number of offences. The list of offences is extensive, and includes: making threats to kill, using a prohibited weapon, intentionally causing serious injury, robbery, perjury, dealing with property being the suspected proceeds of crime, carrying an imitation firearm as a prohibited person, false imprisonment, possession of illicit drugs, contravention of family violence orders, failing to answer bail, possessing ammunition, receiving stolen goods, and unlicensed driving. The applicant was sentenced to imprisonment on a number of occasions. Some of the terms were wholly or partly suspended.

3    On 14 February 2017, the applicant was sentenced by the Magistrates’ Court of Victoria to a term of imprisonment of six months. On 10 March 2017, a delegate of the Minister cancelled the applicant’s Class XB Subclass 202 Global Humanitarian visa on the ground that that the applicant did not pass the character test, and on the ground that he was serving a sentence of imprisonment on a full time basis. By operation of s 501(3A) of the Migration Act 1958 (Cth), the cancellation of the applicant’s visa was mandatory.

4    By a written request dated 17 March 2017, the applicant requested that the decision to cancel his visa be revoked pursuant to s 501CA(4) of the Act. On 7 May 2018, the Minister, acting personally, determined not to exercise his power to revoke the original cancellation decision.

5    By this proceeding, the applicant alleges that the Minister’s decision was affected by jurisdictional error, and seeks certiorari and mandamus. There are three grounds of review. Each alleges jurisdictional error by the Minister in failing to have regard to the consequences to the appellant of the cancellation of his visa and of his removal to South Sudan.

The legislation

6    Section 501CA of the Migration Act relevantly provides –

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

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

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

…

The applicant’s representations

7    Following the cancellation of his visa, the applicant made representations to the Minister which were contained in a number of documents. First, the applicant signed a “Personal Circumstances Form” dated 17 March 2017. That form sought information in response to a number of questions. One question asked whether the applicant had any concerns or fears about what would happen to him on return to his country of citizenship, to which the applicant responded by ticking “Yes”. The completed form continued –

If yes, please describe your concerns and what you think will happen to you if you return.

The people that killed my father will kill me and I don’t have anyone there, there is civil war happening in the country.

Are there any other problems you would face if you have to return to your country of citizenship?

I would be facing death, being caught up in the war, starvation and poverty. I don’t know the language and the country.

ANY OTHER INFORMATION

Please outline any other information you would like to [sic] Minister or delegate to consider when making their decision.

I am the sole carer for my mother who is 65 years old.

I don’t have anyone in South Sudan. There is civil war in South Sudan since 2013 and is still ongoing.

8    The applicant also sent a letter to the Department which was received on 3 April 2017 in which he wrote –

I lost my father when he was killed in the war in Sudan a war which we had to flee from since then I have been in a refugee camp for 18 years and have no recollection of any surviving relatives back in south Sudan and my life would be in great Danger if I was to go back to south Sudan due to the ongoing civil war that broke out in 2013 and is continuing, I have serious fears and worries about my livelihood out of Australia

9    The Department sent a notification letter to the applicant dated 27 September 2017 which referred to a National Police Certificate, sentencing remarks of the Magistrate on 14 February 2017, sentencing remarks of His Honour Judge Bowman in the County Court of Victoria on 7 March 2017, and a Complex Case Support Exit Report dated 20 January 2012. The applicant was given an opportunity to respond to this information. By letter dated 4 December 2017, the applicant responded to the notification letter. Amongst other things, the applicant wrote –

As noted above. I had a very poor upbringing. I grew up in a war torn region. I also spent a lot of time in a refugee camp in Kenya. I am not using this as an excuse but all this had a negative impact on me. After my father was shot. I lost focus on life and unfortunately, I did not receive any form of therapy or counselling. To me all this made me feel like I was doomed to fail and resort to the life of crime. I did not see the light that I had ahead of me after I left Africa. The group of people I hung around with also seemed to have little or no purpose in life.

…

I am the youngest in my family and the one who was looking after my mother. I am willing to do the right thing by the Australian community. Please forgive me for all the things I did. I do not have anyone back home and the situation is not safe for me. Sudan is still unstable. Thank you.

10    In further response to the Department’s letter dated 27 September 2017, the applicant made representations that were prepared on his behalf by the Asylum Seeker Resource Centre. Those representations were contained in two letters dated, respectively, 6 February 2018 and 27 February 2018. The representations squarely confronted the applicant’s history of offending. I shall not set out a complete account, but I shall set out those aspects of the representations that are relevant to the applicant’s grounds of review before the Court, which address the topics of international non-refoulement obligations and impediments that the applicant might face should he be removed.

11    In the letter dated 6 February 2018, reference was made to the applicant’s mental state –

49.    Further, the March 2017 Sentencing Remarks highlight the Applicant’s need for psychological support. Judge Bowman refers to a report of 12 December 2016 of Anthony Cidoni, consultant psychiatrist, and a report of 14 April 2015 of Ms Carla Lechner, consultant psychologist. We note that we have not been provided with a copy of these reports in the Applicant’s FOI documents. However, at paragraph 23 of the March 2017 Sentencing Remarks, Judge Bowman notes that Dr Cidoni observed that the Applicant’s psychiatric history is consistent with post-traumatic stress disorder (PTSD) and the Applicant has not had appropriate treatment, and that the Applicant has previously attempted suicide.

12    The letter of 6 February 2018 also set out the following representations under the heading “Non-refoulement obligations” –

63.    Paragraph 14.1 of Direction 65 provides that international non-refoulement obligations can be raised by a non-citizen in a request to revoke a visa cancellation under section 501CA. The visa under consideration is a humanitarian visa, which we submit imports a different range of considerations to other visas. Humanitarian visas are, by their very nature, a recognition of individual circumstances and Australia’s international obligations to protect non-citizens against risks of serious harm. In circumstances where applicants have been found to engage Australia’s international protection obligations, the courts have made it clear that it is crucial that the Minister or his delegate correctly understand the legal consequences of a refusal decision. Accordingly, the Minister is required to consider the legal consequence of his decision, in the sense of the Applicant’s removal to his country of nationality, being South Sudan.

64.    The Applicant and his family were recognised as refugees by the United Nations High Commissioner for Refugees during their time at [redacted] refugee camp. Further, in May 2008, the Australian government recognised the Applicant and his family as refugees under the Act. Therefore, the Department found the Applicant to be a person in respect of whom Australia has international protection obligations.

65.    We note that the security situation in South Sudan is still dire. In 2017, South Sudan’s civil war entered its fourth year, with fighting continuing to escalate and resulting in the displacement of around four million people.3 Human rights abuses against citizens are rampant, with both government troops and opposition fighters committing war crimes, including looting, indiscriminate attacks on civilians and the destruction of civilian property, arbitrary arrests and detention, torture, enforced disappearances, sexual violence, and extra judicial executions.4 We note that the security situation in the Applicant’s hometown, [redacted], is still unstable and civilians require protection from the United Nations Mission in South Sudan.5 Therefore, if the Applicant was returned to South Sudan, there are substantial grounds for believing that he will suffer significant harm in the sense of either:

(a)    arbitrary deprivation of his life;

(b)    being subjected to torture;

(c)    being subjected to cruel or inhuman treatment or punishment; or

(d)    being subjected to degrading treatment or punishment.

66.    In addition, there is intercommunal violence between ethnic tribes in South Sudan, including Dinka communities.6 Also, the Applicant would also be at risk of recruitment by armed forces as he is a young male.7 Therefore, if the Applicant is returned to South Sudan as a result of his visa cancellation, it is likely that he would face persecution due to his ethnicity and status as a young male.

67.    As mentioned above, the Applicant fled South Sudan when he was an infant. The Applicant is not in contact with anyone in South Sudan and does not have any family or friends who could assist him. If the Applicant was returned to South Sudan, he would be required to fend for himself without any support. In these circumstances, it is evident that the Applicant would face serious harm on return to South Sudan given the current security conditions in the country.

68.    We submit that in this context, the only reasonable conclusion following a weighing of Australia’s non-refoulement against the seriousness of the Applicant’s offending is that the Applicant’s visa cancellation should be revoked. The Applicant’s removal to South Sudan is contrary to Australia’s non-refoulement obligations. We submit that this is an unacceptable outcome in circumstances where the Applicant has already served his criminal sentences and an additional period of seven months in immigration detention.

13    The footnotes to the passages set out above included references to: Human Rights Watch, World Report 2018 - South Sudan, 18 January 2018; UN Security Council, Report of the Secretary-General on South Sudan (covering the period from 2 September to 14 November 2017), 1 December 2017; and Norwegian Refugee Council/Internal Displacement Monitoring Centre (NRC/IDMC), Global Report on Internal Displacement - 2017, May 2017, pp. 8-9.

14    Under the heading “Other factors”, the letter dated 6 February 2018 stated, inter alia –

72.    Also, paragraph 14.5 of Direction 65 requires the decision-maker to consider the extent of any impediments that the Applicant may face if returned to their home country, including establishing themselves and maintaining basic living standards. As mentioned above, the Applicant fled South Sudan when he was around two years old and does not remember his time in South Sudan. Further, the Applicant cannot speak Dinka fluently. In these circumstances, the Applicant would face substantial language and cultural barriers in establishing himself in South Sudan. Also, as mentioned above, the Applicant does not have any support network in South Sudan that could provide social and economic assistance to the Applicant. In these circumstances and given the current situation in South Sudan as mentioned above, it is evident that the Applicant would face immense difficulties in maintaining basic living standards if he were returned to South Sudan. Further, the Applicant would not be able to receive adequate support for his mental health issues if he were returned to South Sudan, and it is very likely that his mental health would deteriorate.

15    Further representations were made in the letter dated 27 February 2018 under the heading “Non-refoulement obligations” –

2.    Direction No. 65, given under section 499 of the Act (Direction 65), sets out the relevant considerations for the revocation of a mandatory cancellation of a visa. Paragraph 14.1 of Direction 65 provides that international non-refoulement obligations can be raised by a non-citizen in a request to revoke a visa cancellation under section 501CA. The February 2018 Submissions outline relevant information in relation Australia’s non-refoulement obligations to the Applicant. Below we provide additional information in relation to this matter.

3.    The United [Nations] High Commissioner for Refugee’s [sic] position on returns to South Sudan, which was published in 2015, confirms that the security situation in South Sudan is volatile and recommends that States suspend forcible returns of South Sudanese nationals to the country.1 Also, Amnesty International reports that the conflict in South Sudan has taken on an increasingly ethnic dimension, with opposition forces targeting Dinka civilians.2 In addition, country information confirms the ongoing intercommunal violence between ethnic tribes in South Sudan, including Dinka communities.3 The UN Panel of Experts of South Sudan reported that there has been an increase in intra-tribal disputes between Dinka clans because of “the conduct and burden of the conflict, the distribution of power and the issue of the eventual successor to the President”.4 Also, divisions within the government coalition are evident in the conflict between the Bor Dinka (the Applicant’s ethnicity) and Murle ethnic group in Jonglei.5

4.    In addition, the February 2018 Submissions note that the Applicant’s psychiatric history is consistent with post-traumatic stress disorder and he has not received appropriate treatment for his condition. The Applicant’s mental health will significantly deteriorate if he returns to South Sudan and he will face serious harm due to his psychiatric condition. Country Information confirms that the availability of mental health and psychosocial support services is very limited in South Sudan. A report published by Amnesty International in February 2017 describes the dire situation for those suffering from mental health illnesses in South Sudan:

Juba Teaching Hospital – the only public medical facility that provided psychiatric care still – only had 12 beds in its psychiatric ward. The availability of psychotropic drugs was inconsistent and limited. There were only two practising psychiatrists in the country, both of whom were in Juba. Neither of them saw patients on a full-time basis. Due to the lack of appropriate services and facilities, people with mental health conditions continued to be routinely housed in prisons, even if they had not committed any crime. In prison, mental health patients continued to receive insufficient medical care and were sometimes chained or held in solitary confinement for long periods.6

5.    Also, as mentioned in the February 2018 Submissions, the Applicant would be at risk of forced recruitment by armed forces as he is a young male.7 This risk is further exacerbated because the Applicant has no support network in South Sudan and will be vulnerable to exploitation.

6.    Therefore, it is evident that the Applicant will face serious harm on return to South Sudan due to the unstable security situation, and particularly in relation to the following grounds that should be considered on an individual and cumulative basis:

(a)    his Dinka ethnicity;

(b)    his status as a person suffering from a psychiatric illness; and

(c)    his status as young male with no support network.

7.    We note that the Minister or his delegate must consider the legal consequences in relation to the revocation of a visa cancellation. In the Applicant’s case, the legal consequence of the non-revocation of his visa cancellation is his removal to South Sudan.

8.    Also, the application of paragraph 14.1(4) of Direction 65 should be consistent with recent case law regarding the consideration of non-refoulement obligations in relation to a person’s visa cancellation. The Full Federal Court of Australia in BCR16 v Minister for Immigration and Border Protection8 held that a decision maker could not defer consideration of non-refoulement obligations when considering a visa cancellation decision for an applicant who still had the option of applying for an onshore protection visa, because the Migration Act did not guarantee that non-refoulement will be assessed as part of the protection visa application process. Further, the Court held that there is a difference between considering non-refoulement obligations as an exercise of the discretionary revocation power in section 501CA which involves a weighing of several factors including non-refoulement, as opposed to the exercise involved in granting a protection visa under section 65 of the Migration Act which requires the Minister to be ‘satisfied’ about the nature, quality and level of risk of harm.9

9.    In this context, the only reasonable conclusion following a weighing of Australia’s non­refoulement obligations against the seriousness of the Applicant’s offending is that the Applicant’s visa cancellation should be revoked.

16    The footnotes to the above passages included references to the following: UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update 1, 14 April 2015, 9; Amnesty International, If Men Are Caught, They Are Killed, if Women Are Caught, They are Raped, South Sudan - Atrocities In Equatorial Region Turn Country’s Breadbasket into Killing Field, 4 July 2017, pp 8, 13; UN Security Council, Report of the Secretary-General on South Sudan (covering the period from 2 September to 14 November 2017), 1 December 2017, S/2017/1011,27; United Nations Security Council, Letter dated 20 September 2017 from the Panel of Experts on South Sudan addressed to the President of the Security Council - Report of the Panel of Experts on South Sudan (S/2017/789), 11; GardaWorld, News Alerts - South Sudan: Ethnic violence kills 43 In Jonglel state (east) Nov. 28, 30 November 2017; Amnesty International, Amnesty International Report 2016/17 - South Sudan, 22 February 2017; and Norwegian Refugee Council/Internal Displacement Monitoring Centre (NRC/IDMC), Global Report on Internal Displacement - 2017, May 2017, pp. 8-9.

The Minister’s decision

17    The Minister was not satisfied that the applicant passed the character test, which is uncontentious. Further, the Minister was not satisfied that there was another reason why the original decision to cancel the applicant’s visa should be revoked. The Minister’s decision was accompanied by a signed a statement of reasons of ten pages which addressed the following topics –

(1)    best interests of minor children;

(2)    expectations of the Australian community;

(3)    international non-refoulement obligations;

(4)    strength, nature and duration of ties;

(5)    extent of impediments if removed;

(6)    protecting the Australian community;

(7)    criminal conduct;

(8)    risk to the Australian community; and

(9)    conclusion.

18    The Minister’s reasons addressed in some detail the nature of the applicant’s offending, pointing to the serious and violent nature of some of the offences. The Minister concluded that there was an ongoing risk of the applicant reoffending, and that should he reoffend, he would likely cause physical or psychological harm to a member of the Australian community.

19    In relation to the representations made on behalf of the applicant concerning international non-refoulement obligations, and by or on behalf of the applicant concerning the impediments that he would face if he were returned to South Sudan, the Minister’s statement contained the following reasoning. Under the heading “International non-refoulement obligations”, the Minister stated –

19.    As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if returned to South Sudan due to the ongoing civil war. His legal representative also submitted that there are substantial grounds for believing that he will suffer significant harm if he were returned to South Sudan in the sense of either arbitrary deprivation of his life, being subjected to torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading treatment or punishment and that returning [the applicant] to South Sudan is contrary to Australia’s non-refoulement obligations.

20.    I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s 499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s 501.

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

20    By [20] of the Minister’s statement of reasons set out above, the Minister assumed that the applicant could make a valid application for a protection visa. This was not put in issue on this application: see, Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 at [15]-[18]. The Minister referred to Direction 75, which is a Direction made by the Minister 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)”. By that Direction, the Minister directed decision-makers as to the order in which elements of an application for a protection visa should be considered. The material substance of the Direction is a requirement that a decision-maker must first assess the applicant’s refugee claims with reference to s 36(2)(a) of the Act and any complementary protection claims with reference to s 36(2)(aa) before considering any character or security concerns.

21    Returning to the Minister’s statement of reasons, under the heading “Extent of impediments if removed”, the Minister stated –

30.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that [the applicant] will face if removed from Australia to his home country of South Sudan in establishing himself and maintaining basic living standards.

31.    [The applicant] is a 27 year old man. He states that he has a metal rod in his arm due to a previous fracture. He has not indicated that this has had any substantial impact on his physical capacity. I note court transcripts of 20 March 2012 in the County Court of Victoria indicate that [the applicant] has poor eyesight but is reluctant to get glasses. I also note court transcripts of 7 March 2017 in the same court indicate that [the applicant] has had ongoing major alcohol and drug problems, sustained a head injury while in a refugee camp in Kenya which reportedly causes him to have intense headaches during cooler weather and has a psychiatric history consistent with post-traumatic stress disorder.

32.    [The applicant] has no recollection of South Sudan, having spent nearly all of his life before coming to Australia in a refugee camp, and does not know whether he has any remaining relatives there and cannot speak Dinka. He states that his life will be in danger and he will be killed due to the ongoing civil war, and would face starvation and poverty.

33.    I accept that, given the circumstances in which he left South Sudan, [the applicant] may experience significant difficulties re-establishing himself in South Sudan and securing employment and accommodation, and I have taken this into consideration. I also accept that [the applicant] may experience emotional and financial hardship if removed from Australia and separated from his immediate family and that his medical and mental health issues may impact on his ability to reintegrate into his home country.

22    Under the heading “Conclusion”, the Minister stated –

61.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his nephew and niece and other minor family members, as a primary consideration, and any considerations as described above. These include his familial and community bonds, his claims that he will suffer hardship and harm if returned to Sudan and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

62.    Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel [the applicant’s] visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and [the applicant’s] Class XB Subclass 202 Global Special Humanitarian visa remains cancelled.

The grounds of review

23    By his amended originating application, the applicant advanced the following grounds of review –

1.    The Minister constructively failed to exercise jurisdiction by asking himself the wrong question and/or misconstruing his statutory task.

Particulars

(a)    The Minister considered it unnecessary to determine whether non-refoulement obligations were owed in respect of the applicant for the purposes of the revocation decision because the applicant was able to make a valid application for a protection visa in which case the existence or otherwise of non-refoulement obligations would, by reason of the application of Direction 75, be considered in the course of processing the application.

(b)    The Minister failed to have regard to Australia’s non-refoulement obligations because the applicant is able to make a valid application for a protection visa. The Minister treated the applicant’s ability to make a protection visa application as determinative of the consideration to be given to the applicant’s claim to fear harm. The applicant’s fear of harm was advanced as “a reason” why the cancellation decision should have been revoked. It was not open to the Minister to decline to consider that reason on the basis that the applicant could make a protection visa application.

2.    The Minister erred by failing to have regard to the legal consequences of his decision.

Particulars

(a)    The Minister must take into account the Migration Act 1958 (Cth) (the Act) and its operation in making a decision. To make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision.

(b)    The statutory consequence of the Minister’s decision was that the applicant was required to be removed from Australia as soon as reasonably practicable (s 198 of the Act). By reason of s 197C of the Act there was no obligation for the Minister or any officer to consider Australia’s non-refoulement obligations before removing the applicant.

(c)    At least two legal consequences that flow from the Minister’s decision. The first is that the applicant may be refouled to South Sudan, notwithstanding that the applicant may be a person to whom Australia owes protection obligations. The second is that if the applicant were refouled, Australia would be in breach of the non-refoulement obligations enshrined in Article 33 of the Convention Relating to the Status of Refugees, to which Australia is a signatory.

(d)    The Minister did not address either of these legal consequences. By failing to do so, the Minister erred.

3.    The Minister erred by failing to actively and intellectually engage with the applicant’s contention that his fear of harm in South Sudan was “a reason” why the cancellation decision should be revoked.

Particulars

(a)    The Minister purports to have had regard to the underlying harm feared by the applicant when considering the extent of impediments if the applicant were to be removed. However, despite the extensive submissions made by the applicant, and on his behalf, in relation to the applicant’s fear of harm, the Minister addresses these considerations in a single paragraph.

(b)    The Minister made no finding of fact about the applicant’s fears. The Minister did not make findings about whether the applicant might be killed on return to South Sudan, nor whether the applicant would face death by starvation on return to South Sudan.

(c)    Where a decision-maker is required to have regard to several specified or prescribed mandatory considerations, he or she must genuinely have regard to each and every one of those considerations and must engage actively and intellectually with each and every one of those considerations by thinking about each of them and by determining how and to what extent (if at all) each of those criteria might feed into the deliberative process and the ultimate decision.

(d)    The paucity of the reasoning in paragraph [32], coupled with the failure to make findings in relation to the applicant’s claims of harm, supports an inference that the Minister failed to properly engage with the submissions and the evidence. There was a lack of active intellectual engagement with the contention that “another reason” for revoking the cancellation decision was that the applicant would suffer harm on his return to South Sudan comprised of death in the civil war or death from starvation.

The parties’ submissions

24    The parties made written and oral submissions, and they 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 (Omar).

Ground 1

25    In support of ground 1, counsel for the applicant submitted that the Minister had failed to consider his claims to fear harm because he was able to make a valid application for a protection visa, and that this was determinative of the consideration to be given to the applicant’s claims. The applicant submitted that this was the same type of error as that identified by the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [72] (Bromberg and Mortimer JJ). Counsel for the applicant submitted that whether or not the fear of harm engaged Australia’s protection obligations, the Minister was required to consider it as a reason advanced by the applicant for revocation of the decision to cancel his visa. This was so despite the terms of Direction 75, to which the Minister referred in his statement of reasons, because the Direction could not operate to exclude the matters on which the applicant relied, which had a different significance for the purposes of the power exercisable under s 501CA(4) than they did for the purposes of determining under s 65 whether the applicant should be granted a protection visa.

26    In response to the applicant’s submission that there was error in the Minister’s decision on account of his failure to have regard to Australia’s non-refoulement obligations because the applicant could make an application for a protection visa, counsel for the Minister submitted that to the extent that the applicant’s representations raised issues of non-refoulement, they were correctly recognised by the Minister as such, and there was no error in the way that the Minister dealt with them. Counsel for the Minister submitted that to the extent that the applicant identified matters pertaining to his return to South Sudan that might not be comprehended by non-refoulement obligations, the Minister specifically addressed such concerns at [30]-[33] (see [21] above), and concluded that he might experience significant difficulties re-establishing himself and securing employment and accommodation in South Sudan. Counsel submitted that the Minister had also accepted that the applicant’s medical and mental health issues might affect his ability to reintegrate into his home country, and took such matters into account, including in the final analysis as to whether there was another reason to revoke the cancellation decision

Ground 2

27    Counsel for the applicant submitted that the statutory consequence under s 198 and s 197C of the Migration Act of the Minister’s decision not to revoke the cancellation of his visa was that the applicant was required to be removed from Australia as soon as practicable with the result that the applicant would be refouled to South Sudan in breach of Australia’s non-refoulement obligations under Article 33 of the Convention Relating to the Status of Refugees. The applicant submitted that, while he might apply for a protection visa, it was likely that any application would be refused having regard to the public interest criterion in s 36(1C)(b) or s 36(2C)(b)(ii), or upon character grounds under s 501 of the Act. The applicant submitted that the legal consequence of the Minister’s decision was that there was a real prospect that the applicant would be refouled to South Sudan, which was a prospect to which the Minister did not have regard.

28    In response, counsel for the Minister accepted that jurisdictional error might occur if the Minister did not have regard to the legal consequences of his decision, citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1. Counsel submitted, however, that any enquiry as to ultimate consequences to the applicant involved speculation, and that it was not known what might happen under other decision-making processes, such as the determination of an application for a protection visa. Further, to the extent that legal consequences were foreseeable, they were correctly understood by the Minister. Counsel submitted that by operation of Direction 75, the applicant would be given the opportunity for his protection claims to be assessed, and if it was determined that the protection criteria in s 36(2) of the Migration Act were engaged, then it would be open to the Minister to exercise his personal power under s 195A of the Act to grant the applicant a visa, or under s 197AB of the Act to make a residence determination.

Ground 3

29    The applicant submitted that the Minister made no findings of fact about the applicant’s representations about his fear of harm if returned to South Sudan, and failed actively and intellectually to engage with the representations. The applicant submitted that while the Minister accepted that he might experience significant difficulties re-establishing himself in South Sudan and securing employment and accommodation and may experience emotional and financial hardship if removed from Australia, and also accepted that the applicant’s medical and mental health issues might affect his ability to reintegrate into his home country, those findings were limited to their subject matter. The applicant submitted that they were not directed to the claim to fear death, torture, or cruel or inhumane treatment, degrading treatment, or punishment. Equally, they were not findings about whether the applicant’s difficulties in South Sudan were likely to result in a threat to his subsistence.

30    The applicant submitted that the paucity of the reasoning in [32] of the Minister’s statement of reasons, coupled with the failure to make findings in relation to the applicant’s claims of harm, supported an inference that the Minister failed properly to engage with the submissions and the evidence. The applicant submitted that there was a lack of active intellectual engagement with the contention that “another reason” for revoking the cancellation decision was that the applicant would suffer harm on his return to South Sudan comprised of death in the civil war or death from starvation.

31    Following the publication of the Full Court’s decision in Omar, counsel for the applicant submitted in writing that the applicant had made substantial stand-alone representations to the Minister relating to the harm that he would suffer if he were returned to South Sudan, which were significant matters that the Minister failed to consider in the relevant legal sense. In consequence, counsel submitted that the Minister had failed to carry out the relevant statutory function according to law, citing the Full Court’s reasons in Omar at [45].

32    In response, counsel for the Minister submitted that the Minister had correctly understood that the applicant’s claims that he would be harmed in connection with any future return to South Sudan were claims that would be considered in the context of any future application for a protection visa, and that the Minister did not deal with, or purport to deal with, such claims in his decision for this reason. Counsel submitted that to the extent that the Minister considered claims relating to South Sudan that operated outside of the non-refoulement framework, such claims were properly considered in the context of the extent of impediments the applicant would face if removed from Australia.

33    Following the publication of the Full Court’s decision in Omar, counsel for the Minister submitted in writing that the Minister continued to rely on the submissions that had been put, and submitted that to the limited extent that the applicant had raised claims outside of the non- refoulement obligation framework to fear harm in South Sudan, those claims were considered by the Minister in the requisite legal sense.

Consideration

Grounds 1 and 3

34    I shall address grounds 1 and 3 together.

35    The applicant has established that there was jurisdictional error by the Minister in making the non-revocation decision substantially for the reasons advanced in support of grounds 1 and 3. The applicant made representations that he feared harm if he were to be returned to South Sudan that were independent of his reliance upon international non-refoulement obligations. The representations were clearly expressed, and they were significant. The Minister treated them as being independent of the protection visa context, because at [32] of his statement of reasons, he made separate reference to the applicant’s claims that his life would be in danger, and that he feared being killed due to the ongoing civil war (see [21] above). The applicant made the representations himself by the personal circumstances form dated 17 March 2017, to which I referred at [7] above, by his letter that was received by the Department on 3 April 2017, to which I referred at [8] above, and by his letter dated 4 December 2017, to which I referred at [9] above. In relation to the representations made on the applicant’s behalf by the Asylum Seeker Resource Centre, although the relevant representations appeared under sections of the two letters concerned with non-refoulement obligations, by [8] of the letter of 27 February 2018, the representations were also put on the basis that they should be separately considered for the purposes of the power of revocation under s 501CA(4) by reason of the weighing process that s 501CA(4) invited, which was different from the operation of s 65 of the Act, which required that the Minister be “satisfied” of the engagement of the criteria prescribed by the Act, citing BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [48]-[49] (Bromberg and Mortimer JJ).

36    In Omar at [34]-[41], the Full Court set out a number of guiding legal principles which I shall not reproduce in full, but to which I have had regard. The principles in Omar have been referred to and applied by the Full Court in GBV18 v Minister for Home Affairs [2020] FCAFC 17, and EVK18 v Minister for Home Affairs [2020] FCAFC 49. In particular, the following guidance in Omar at [34] is relevant to the present case –

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

37    If a clearly expressed and significant representation is made such that its consideration is required, then the consideration of it must be meaningful, which requires an active intellectual process with reference to the representation, although each case turns on its own particular facts: Omar at [34(i)], [36(d)-(e)]. See also, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (Allsop CJ, Markovic J and Steward J agreeing). In Omar at [39], the Full Court stated –

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

38    I have set out the two material sections of the Minister’s statement of reasons at [19] and [21] above. At [19] to [21] of the statement, the Minister concluded that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the applicant, and did not give any consideration to the harm that the applicant claimed he might suffer. There was no discussion of the type of risks that the applicant had advanced, and which the Asylum Seeker Resource Centre had supported with the citation of several reports. Whatever relevance the applicant’s representations had to the issue of non-refoulement, the representations also amounted to a straight-forward argument that the applicant would be harmed, and possibly be killed, if he were returned to South Sudan: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [36] (Perram J).

39    As to [30] to [33] of the Minister’s statement, while the Minister referred at [32] to the applicant’s representation that his life would be in danger, and that he would be killed due to the ongoing civil war, and that he would face starvation and poverty, there is no consideration of these claims. The Minister did not make any findings of fact, including as to whether the feared harm was likely to eventuate. Indeed, in the following paragraph, [33], there appears to be no reference to these representations at all, still less evidence of any active intellectual process of engagement with them. The failure to consider significant matters raised by the appellant’s representations was a failure to carry out the relevant function according to law: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [75] (Colvin J), cited in Omar at [45].

40    The Minister’s error was material and gives rise to jurisdictional error because, having regard to the significance and gravity of the subject matter of the relevant representations, there must have been a realistic possibility of a different outcome if there had been an active intellectual engagement with them. The applicant has therefore established error as alleged by particular (b) of ground 1, and by ground 3.

Ground 2

41    Given that the applicant has established jurisdictional error as alleged in grounds 1 and 3, ground 2 would not be dispositive of the application, and it is unnecessary that I consider it.

Conclusions

42    The applicant is entitled to relief in the nature of a constitutional writ of certiorari quashing the Minister’s decision, and a writ of mandamus requiring that the Minister consider according to law the applicant’s request for revocation of the decision to cancel his visa. The Minister should pay the applicant’s costs.

Associate:    

Dated:    26 March 2020