FEDERAL COURT OF AUSTRALIA

Hernandez v Minister for Home Affairs [2020] FCA 415

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue quashing the decision of the respondent made on 14 February 2018 not to revoke the cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return visa.

3.    A writ of Mandamus issue compelling the respondent to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) in relation to the applicant in accordance with the law.

4.    The respondent is to pay the applicant’s costs of the application, as agreed or assessed.

5.    The time to commence an appeal from the orders in paragraphs 1, 2 and 3 be extended so as to expire on 30 June 2020.

6.    The parties have liberty to apply to:

(a)    vary or revoke the order in paragraph 4, such liberty to be exercised within seven days; and/or

(b)    further extend the period specified in paragraph 5, such liberty to be exercised on or before 14 June 2020.

7.    Any application made in accordance with the order in paragraph 6 is to be determined on the papers.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for judicial review of a decision made by the Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth).

2    The applicant, Jose Raul Hernandez, is a 71 year old citizen of El Salvador. He arrived in Australia in 1991 as the holder of a Class BB Subclass 155 Five Year Resident Return visa issued under the Act. He was then aged 43. Mr Hernandez has been convicted of serious criminal offences, including sexual offences against a child. He has a “substantial criminal record” within the meaning of s 501(7) of the Act and so cannot pass the character test prescribed in s 501(6).

3    On 8 July 2015, a delegate of the Minister cancelled Mr Hernandez’s visa. That decision was mandated by s 501(3A) of the Act, the delegate not being satisfied that Mr Hernandez passed the character test.

4    In response to an invitation under s 501CA(3), Mr Hernandez made representations to the Minister advancing reasons why the cancellation decision should be revoked. The Minister refused to revoke the cancellation decision in the personal exercise of the power conferred by s 501CA(4) of the Act. That decision now forms the subject of this application for judicial review.

5    The application should be allowed for the reasons given below.

THE COURT’S TASK

6    This Court’s power to review the Minister’s decision is limited to review for jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. As Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [23]:

Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.

(footnote omitted).

7    The majority said that “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error” (at [25]), and:

27    Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

…

29    That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

(footnotes omitted)

8    A failure to comply with a condition attending the exercise of power will not ordinarily satisfy the threshold of materiality unless it can be shown that compliance with the condition could have resulted in the making of a different decision: Hossain at [31].

THE MINISTER’S DECISION

9    In his handwritten representations to the Minister, Mr Hernandez said:

I understand that my visa has been cancelled and I am to be deported back to the country of my birth, in El Salvador. Since hearing this news I have suffered depression and panic attacks. The situation in my home country, for me, is extremely dangerous to my life and welfare and my return under those conditions will most likely result in adversely affecting my family in Australia, as well. Returning to El Salvador will likely be a death sentence for me. Many people there are killed every day by the Mafias who control it. People like me, who have family in first world countries as Australia are often kidnapped and held for ransom. They demand money from our families who often cannot pay. Often they kill the kidnapped person anyway. I would be a prime target of these people. There is much human trafficking and drug trafficking there. What I say about the conditions in my country and the danger to my life, as well as the burdens to my family in Australia, can be confirmed by the El Salvador consulate or embassy. Please, I would rather remain in jail in Australia for the days of my life than be returned as ‘set free’ to El Salvador.

10    The Minister broadly summarised these claims at [17] of his reasons. He noted that the concerns expressed by Mr Hernandez had been echoed in representations made by Mr Hernandez’s sons. He continued:

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

19.    A protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring the application for consideration under s501. I am therefore confident that Mr HERNANDEZ would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

20.    I have also considered Mr HERNANDEZ’s claims of harm upon return to El Salvador outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr HERNANDEZ’s claims are such as to engage non-refoulement obligations, Mr HERNANDEZ would face hardship arising from his religion and the generally dangerous security situation were he to return to El Salvador.

11    Later in his reasons, the Minister referred again to the representations under the heading “Extent of impediments if removed”:

37.    I note that, despite his current fears of returning to El Salvador, during sentencing in 2008 Mr HERNANDEZ’s counsel told the Court that his client ‘would rather do his gaol time in El Salvador’ because his (then) low level of English, cultural differences and age would prevent Mr HERNANDEZ from forming useful and supportive relationships in prison. While I appreciate that he may have changed his mind since then, I consider that the fact he preferred to serve his sentence in El Salvador suggests that he did not at that time fear going there. I further note that he returned to El Salvador for five years between 1993 and 1998.

38.    I accept that removal to El Salvador would separate Mr HERNANDEZ from all of his children and his sister and possibly leave him without a personal support network. I further acknowledge that the general security situation in El Salvador is very dangerous, though this is true for the whole population. However I note that Mr HERNANDEZ retains a good knowledge of Spanish and can be assumed to be generally familiar with the culture of El Salvador, having lived there until the age of 43, well into his adult life. I find that he would be capable of establishing himself in his homeland, albeit with some initial difficulty.

12    The grounds for judicial review challenge the Minister’s reasoning in three respects.

13    It is convenient to deal first with Ground 3.

GROUND 3

14    This ground is expressed as follows:

The decision of the Minister was affected by jurisdictional error in that the Minister failed to give meaningful consideration to a clearly articulated and substantial or significant representation as to risk of harm, and in particular failed to engage with the applicant’s submission, that as a person with family in a first world country, he was at risk of being kidnapped for ransom if returned to El Salvador.

15    Section 501CA(4) of the Act provides:

(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.

16    As the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, representations made by a non-citizen in response to an invitation given under s 501CA(3) of the Act “play a central role in the relevant statutory regime”. The Court said (at [34(g)]):

…  The Minister’s statutory power to revoke (and therefore ‘undo’) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power.

17    The Court went on to say (at [36(d)]) that although s 501CA(4) is expressed in terms containing no express duty to “consider” the non-citizen’s representations “it is necessarily implicit in the statutory regime that there is such an obligation”.

18    The Minister is obliged to “engage in an active intellectual process with significant and clearly expressed representations” made in support of a revocation request: Omar at [37].

19    Whether a particular matter raised in the representations is significant and clearly expressed so as to give rise to that obligation is a question of fact. As Colvin J said in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56 at [68] (in a passage approved by the Court in Omar at [34(i)]):

... the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

20    As to the practical content of the obligation, the Court in Omar said (at [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) 164 ALD 139; [2019] FCA 216 (Ezegbe) at [32]-[36] per Perram J).

21    The Court referred to what Allsop CJ said in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] (Markovic and Steward JJ agreeing at [54] and [55]):

… where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

22    The third ground of review invokes these principles in relation to that part of Mr Hernandez’s representations in which he submitted that, as a person with family in a first world country, he was at risk of being kidnapped for ransom if returned to El Salvador. For the purposes of this ground, no complaint is made regarding the manner in which the Minister dealt with Mr Hernandez’s claim to fear harm by reason of his Christian religion.

23    There were two aspects to the Minister’s submissions in opposition to this ground. First, it was submitted that Mr Hernandez’s claimed fears were “lacking in detail and unsupported by any probative or objective material, including country information” and so must be distinguished from the claims that were categorised by the Full Court to be significant in Omar. Second, it was submitted that the Minister did in any event give meaningful consideration to the claims in the passages extracted at [10] and [11] above.

24    The first question to be answered is whether the representations made by Mr Hernandez contained a “clearly articulated and substantial or significant representation as to risk of harm” such as to give rise to an obligation to consider it. That is a fact sensitive enquiry. It is true that the representations made by Mr Hernandez display a lesser degree of detail and were accompanied by no country information of the kind supporting the claims made in Omar, but it does not follow that the obligation to consider does not arise.

25    There was nothing ambiguous about Mr Hernandez’s claimed fear that he was a prime target for mafia groups rendering him at risk of being kidnapped for ransom and murdered. The nature of his claims was that he was at a special risk of grave harm because he had family members in a first world country. He claimed that he was a person exposed to a degree of risk greater than that to which the general population in El Salvador was exposed. That claim may have been concisely stated, but its brevity affected neither its clarity, nor the significance of its subject matter. The claimed fear was a clearly advanced reason that Mr Hernandez had advanced as to why the cancellation decision should be revoked in response to the invitation that had been extended to him under s 501CA(3). The claimed risk of harm required consideration by the Minister in the sense described by Colvin J in Viane and the Full Court in Omar.

26    The circumstance that the claims were not supported by objective country information does not render them insignificant so as to relieve the Minister of the obligation to consider them. The absence of corroborative evidence may legitimately bear on the manner in which such claims are considered and determined, but could not (at least on the facts of this case) justify the issue raised in the claim being ignored.

27    The next question is whether the Minister discharged his obligation to “consider”. That question turns on the proper interpretation of the Minister’s reasons, observing the injunction that the reasons of an administrative decision-maker are not to be overzealously scrutinised with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272.

28    The Minister’s conclusion that Mr Hernandez would face “hardship” from the “generally dangerous security situation were he to return to El Salvador” may be fairly understood as involving an acceptance that the general security situation in El Salvador was as Mr Hernandez had claimed it to be: the country was extremely dangerous because of the activities of “mafia groups” there. As an aside, that part of the Minister’s findings suggests that Mr Hernandez’s failure to point to country information supportive of his claims was no impediment to the Minister forming a view as to the general security situation there. In my view, the Minister gave meaningful consideration to that part of Mr Hernandez’s claim premised on the general security situation in El Salvador. The Minister accepted the factual contention that El Salvador was a dangerous place.

29    However, there is nothing in the Minister’s reasons to indicate whether he accepted or rejected Mr Hernandez’s claim to be a “prime target” for the mafia groups and so was exposed to a particular risk different than that to which the general population was exposed. Nor can it be said that that part of the claim is subsumed in findings of greater generality. Whether Mr Hernandez is in fact a “prime target” for mafia groups who might kidnap him for ransom and murder him is left undecided.

30    The submission that the Minister grappled with the claim in the passages extracted at [10] and [11] above must be rejected. The conclusion at [20] of the reasons is that Mr Hernandez “would face hardship arising from his religion and the generally dangerous security situation were he to return to El Salvador” (added emphasis). The Minister’s conclusion at [37] was that the general security situation in El Salvador was very dangerous “though this is true for the whole population”. Properly understood, these two conclusions neither accept nor reject the claim as Mr Hernandez had advanced it.

31    The imperative to construe the Minister’s words beneficially does not require that the meaning of the words be stretched beyond their natural capacities. Read in context, the word “hardship” is not capable of encompassing the risk of kidnap and murder to which Mr Hernandez had specifically referred.

32    I have concluded that the Minister did not consider Mr Hernandez’s claim to be exposed to a particular risk greater than that to which the general population was exposed. The power was exercised without regard to whether the risk existed or not, and without any assessment of its magnitude and the consequences for Mr Hernandez and his family should the risk transpire.

33    It may be accepted that notwithstanding Mr Hernandez’s submission that the El Salvador consulate or embassy would support his claims, the Minister is under no legal obligation to seek out and obtain evidentiary materials additional to those provided by the non-citizen in support of his or her representations: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selwyn JJ) (at [61]). As has already been said, the lack of corroborating evidence supporting the claims might well justify the rejection of the factual premises underlying them. However, as I have said, the Minister did not in fact point to the lack of country information as a reason for rejecting the claims in any event. This Court expresses no view as to the merits of the significant matters advanced by Mr Hernandez in his representations. Determination of the merits is a matter for the Minister. That essential part of the statutory task has not been completed.

34    I am satisfied that a different decision might have been made had there been active intellectual engagement with the claim in compliance with the conditions on the exercise of the Minister’s power. Accordingly, the error is material and properly characterised as jurisdictional.

35    The third ground of review is upheld and the application for judicial review allowed on that basis.

THE REMAINING GROUNDS OF REVIEW

36    The first ground of review proceeds from the premise that in exercising the power conferred by s 501CA(4) of the Act, the Minister was required to proceed on a correct understanding of the law and the legal consequences of the decision. It alleges that the Minister misunderstood the course of any protection visa application Mr Hernandez may have been entitled to make in four respects:

i.    the Minister failed to appreciate the role played by the consideration of Australia’s international non-refoulement obligations as a reason for revoking the cancellation decision as distinct from the different role played by consideration of the ‘protection criteria’ in the course of determining an application for a protection visa; and/or

ii.    the Minister failed to appreciate that his refusal to consider whether non-refoulement obligations were owed would mean that the Applicant would be deprived of any opportunity to have that issue considered as bearing upon the question of whether cancellation of his Class BB (Subclass 155) Five year Resident Return visa was in the national interest and whether that visa should be cancelled in the exercise of a discretion; and/or

iii    the Minister failed to appreciate the Applicant’s potential inability to satisfy the criteria in public interest criteria 4001 and/or the criteria in s 36(1C) of the Migration Act, the potential effect of the Minister’s own decision on that issue, and that the legal and/or probable consequence of such inability, by reason of ss 197C and 198 of the Migration Act, was that the Applicant could be removed to El Salvador, including in breach of Australia’s international non-refoulement obligations, without any further discretionary consideration of those obligations or the national or public interest in Australia’s complying with them; and/or

iv    the Minister incorrectly assumed that ‘the existence or otherwise of non-refoulment obligations would be fully considered’ in the event that the applicant made an application for a protection visa, when that was not so because the criteria under s 36 of the Migration Act 1958 (Cth) which must be considered on an application for a protection visa differ substantially from, and do not reflect, Australia’s non-refoulement obligations; …

37    The second ground of review is that:

In the alternative to ground 1, the Minister’s decision was affected by [jurisdictional] error in that:

a.    If the Minister proceeded on a correct understanding that the exercise involved in the determination of a protection visa application by reference to the ‘protection criteria’ is a qualitatively different exercise from the consideration of Australia’s international non-refoulement obligations in the exercise of the discretion conferred by s 501CA (including that meeting the criteria in s 36(2) will not assist the Applicant if the grant of the visa is refused by reason of his failure to meet another criterion), then the Minister, in identifying the mere fact that the Applicant may apply for a protection visa as the basis for not substantively considering Australia’s non-refoulement obligations in the course of the exercise of the power in s 501CA, failed to identify a rational basis for not considering those claims in the exercise of that power. …

38    It is submitted that these errors are material because they led the Minister to find that it was unnecessary to determine whether non-refoulement obligations were owed to Mr Hernandez and so led to a failure to consider (or making findings about) whether deporting him to El Salvador would be inconsistent with those obligations.

39    Before turning to some common issues arising on these grounds it is desirable to survey the provisions of the Act bearing on Mr Hernandez’s immigration status and the significance (or non-significance) of any non-refoulement obligations that may be owed to him.

40    A consequence of the cancellation decision was that Mr Hernandez was an unlawful non-citizen within the meaning of s 14 of the Act. As an unlawful non-citizen, Mr Hernandez was liable to be taken into immigration detention: s 189. Section 196 relevantly requires that he be held there until he is removed from Australia under s 198 or s 199 or deported under s 200, or granted a visa. Section 198(2A) is to the effect that an officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen has made representations to the Minister in accordance with an invitation issued under s 501CA in relation to the revocation of a decision to cancel his or her visa, and the Minister has decided not to revoke the cancellation decision. Mr Hernandez is presently in that position as a consequence of the decision presently under review.

41    Had the Minister revoked the cancellation decision, Mr Hernandez’s visa would have been reinstated, with the consequence that he would not be liable to detention, deportation or removal in accordance with the above provisions.

42    Section 197C provides:

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.

43    For the purposes of s 197C, the phrase “non-refoulement obligations” is defined in s 5 to include a non-refoulement obligation that may arise because Australia is a party to certain international agreements, namely the Refugees Convention, the Covenant and the Convention Against Torture, each of which is separately defined. It is common ground that Australia would owe obligations under international law not to return Mr Hernandez to El Salvador if he is a refugee within the meaning of Article 1A(2) of the Refugees Convention, namely a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

44    As the Minister correctly identified, Mr Hernandez was (and remains) entitled to apply for a protection visa notwithstanding the cancellation decision: Act, s 501E(2).

45    A non-citizen may make an application under s 45 of the Act for a visa of a particular class. The Minister must consider a valid visa application: s 47. Subject to exceptions that do not presently apply, s 65(1) provides that, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

…

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section … 501 (special power to refuse or cancel) …

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

46    The criteria for the grant of a protection visa include those prescribed in s 36 of the Act. It relevantly provides:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(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.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(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.

47    The phrase “particularly serious crime” is defined non exhaustively in s 5M as follows:

5M Particularly serious crime

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

(a)    a serious Australian offence; or

(b)    a serious foreign offence.

48    The criteria for a protection visa also include those prescribed in cl 866.225 of Sch 2 to the Migration Regulations 1994 (Cth), which include “public interest criteria 4001” in Sch 4 (PIC 4001), namely:

Either:

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

(b)    the Minister is satisfied, after appropriate enquiries, 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.

49    In addition to these provisions, s 501(1) of the Act confers powers on the Minister to refuse to grant a visa of any kind:

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.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

50    A person (other than the Minister) exercising the power under s 65 of the Act must follow a course of decision making prescribed in a direction issued by the Minister under s 499. Direction 75 came into effect on 1 September 2017. Its stated purpose is to:

… direct decision-makers to refuse applications using section 36(1C) or 36(2C)(b) rather than to refer the case for consideration under section 501 where an applicant presents a danger to Australia’s security or to the community. …

51    Part 2 of Direction 75 directs decision-makers to assess applicants who raise character or security concerns to proceed in the following way:

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).

52    As Robertson J said in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [185], there is a difference between claims of a risk of harm or hardship on the one hand and “the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state)” on the other.

53    In light of that distinction, an issue arises as to whether the representations made by Mr Hernandez in response to the invitation given under s 501CA(3) of the Act ought to have been understood by the Minister to have included not only a claim to fulfil the criterion in s 36 of the Act, but a discrete claim to the effect that Australia owed an obligation under international law not to return him to El Salvador.

54    In my view, the submissions ought to have been so understood, notwithstanding that they contained no express reference to Australia’s international law obligations and no express reference to their source. The submissions clearly asserted facts that, if accepted, they would have the consequence that Mr Hernandez was to be regarded as a refugee in accordance with international agreements to which Australia is a party. The representation ought reasonably to have been understood to include an assertion by Mr Hernandez that he was a person to whom non-refoulement obligations were owed.

55    I am fortified in that conclusion by the circumstance that the Minister was not in fact under any misapprehension that the existence of non-refoulement obligations was indeed an issue that Mr Hernandez had raised. Paragraphs [18] and [19] of the Minister’s reasons relate to that discrete issue, whereas [20] (the subject of the third ground of review) relates to the different question of the claimed risk of harm “outside the non-refoulement context”. By those passages, the Minister correctly recognised the distinction to which Robertson J referred in DOB18. He correctly understood Mr Hernandez to assert that non-refoulement obligations were advanced as a reason why the cancellation decision should be revoked.

56    A material failure to consider that question would constitute jurisdictional error. That is not because the existence of non-refoulement obligations is to be regarded as a mandatory relevant consideration in every case falling for the Minister’s consideration under s 501CA(4) in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. It is simply a reflection of the fact that in the present case the existence of the obligation was a matter of significance that had in fact been advanced as a reason why the cancellation decision should be revoked. On the facts, the Minister’s power under s 501CA(4) was conditioned by a requirement that he consider it.

57    Failure to comply with that condition will not satisfy the threshold of materiality unless it can be shown that compliance with the condition could have resulted in the making of a different decision: Hossain at [31]; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] (Kiefel CJ, Gageler and Keane JJ).

58    This case is one in which questions concerning the identification of error and the assessment of materiality of the error are difficult to disentangle. Perhaps that is because the Minister exposed his thinking as to why his express refusal to engage with the issue was a permissible course for him to take. The parties’ submissions (reflected in the manner in which the second and third grounds of review are expressed) focused upon alleged flaws in the Minister’s stated explanation for failing to make a finding concerning the obligations that might be owed to Mr Hernandez at international law. The submissions focused on two related issues.

59    The first was whether the Minister was correct to assume that the existence of non-refoulement obligations would be fully assessed in the course of determining any application for a protection visa Mr Hernandez may make. Counsel for Mr Hernandez identified differences between the statutory definition of the word “refugee” and the definition of the word “refugee” for the purposes of the Convention. The Full Court identified one such difference in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [106] (White, Perry and Charlesworth JJ). The difference identified in Ibrabhim supported the conclusion that the Minister had wrongly equated the statutory and Convention refugee definitions in a way that materially affected the outcome in that case. The reasoning of the Full Court reflects the way that the grounds for judicial review were expressed in that case, both as to the existence of the error and as to its materiality.

60    In this case it has not been shown that the claims made by Mr Hernandez might be such as to satisfy the definition of a refugee for the purposes of the Convention, but not for the purpose of the Act. To the extent that there is a difference between the tests for a person’s status as a “refugee” under the Act on the one hand and in accordance with an international agreement on the other, the difference is not one upon which the outcome of this application for review turns.

61    The second issue was whether there was any legal or practical difference between a case where non-refoulement obligations are identified in the course of exercising the power conferred by s 501CA(4) of the Act and a case where such obligations are identified in the course of exercising the power conferred by s 65 on an application for a protection visa.

62    In my view there is a material difference.

63    Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.

64    On the other hand, if the decision-maker responsible for assessing Mr Hernandez’s visa application were to make findings of fact giving rise to non-refoulement obligations at international law, the existence of those obligations would be irrelevant to the exercise of the mandatory power conferred by s 65. The decision-maker would be compelled under s 65(1)(b) to refuse to grant the visa if not satisfied that the requirements of s 65(1)(a) were met.

65    The course of decision making under Direction 75 exposed Mr Hernandez to the probable consequence that he may be refused a protection visa notwithstanding that he was a person to whom Australia owed non-refoulement obligations under international law. That is because none of the matters falling for determination under s 65(1)(a) turned on the existence or non-existence of refoulement obligations as the case may be. Whilst the issue might arise if the matter were referred to the Minister for consideration under s 501 of the Act (and so return full circle to the Minister’s attention), Direction 75 directed the decision-maker not to make any such referral without first determining whether the visa application should be refused by reference to s 36(1C) or s 36(2C)(b). The circumstance that Mr Hernandez was a person to whom Australia owed non-refoulement obligations would be irrelevant in determining either character related criteria. Moreover, the circumstance that Mr Hernandez was liable to be deported in accordance with s 197C of the Act in contravention of Australia’s obligations under international law would be an irrelevant consideration in determining whether the protection visa should or should not be granted in the exercise of the bifurcated power conferred by s 65. I should add that on this application it was not submitted by the Minister that s 197C rendered non-refoulement obligations an irrelevant consideration in the exercise of the power conferred under s 501CA(4) and the Minister did not in fact proceed on that basis in exercising the power.

66    These circumstances illuminate the materiality of the Minister’s error in failing to give active intellectual engagement to the particular matters Mr Hernandez had advanced as reasons for exercising, in his favour, the only statutory power then under consideration.

67    Turning now to the second ground for judicial review, I am satisfied that the reasons advanced by the Minister for refusing to consider Mr Hernandez’s claim to be a person to whom non-refoulement obligations were owed are irrational in the relevant sense. That is because identification of non-refoulement obligations per se in the course of determining a visa application could not affect the outcome of a decision under s 65 of the Act and so could be of no benefit to Mr Hernandez.

68    In my view, the error I have identified above is material, whether or not the Minister was conscious of the consequences of not deciding for himself the non-refoulement issue. If the Minister did correctly appreciate the consequence, it would be irrational to point to the protection visa application process as a reason not to decide the question, and ground 2 would be upheld. If the Minister did not appreciate the consequence, that may support a conclusion that the contentions underpinning ground 1 should be upheld, but I do not consider it necessary to go so far. It is sufficient to conclude that the decision was affected by jurisdictional error because of a material failure to consider the non-refoulement issue. The application for judicial review should be allowed on that additional basis.

Associate:

Dated:    31 March 2020