FEDERAL COURT OF AUSTRALIA

DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 501

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introdcution

1    The applicant (or DCR19) seeks judicial review of a decision of the Administrative Appeals Tribunal (or AAT) made on 16 May 2019. The Tribunal affirmed a decision of a delegate of the responsible Minister made under s 501CA(4) of the Migration Act 1958 (Cth) (non-revocation decision) not to revoke the cancellation of DCR19’s Resolution of Status (Class CD)(subclass 851) visa (ROS visa).

2    The reasons for the Tribunal’s decision are set out in its decision record (or DR) of that date.

Grounds of application for judicial review

3    DCR19’s application for judicial review of the Tribunal’s decision raises two issues:

(1)    Whether it was legally unreasonable for the Tribunal not to have inquired or adjourned the hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so (unreasonableness ground).

(2)    Whether the Tribunal failed to consider a claim or relevant evidence regarding non-refoulement (failure to consider ground).

Background

4    DCR19 is a citizen of the Democratic Republic of the Congo (Congo or DRC). He arrived in Australia in 2002, aged 30.

5    On 28 August 2002, DCR19 was granted a Temporary Protection (Class XA)(subclass 785) visa. He was granted protection as a member of his then wife’s family unit. On 24 February 2003, DCR19’s wife applied for a further protection visa. On 26 May 2005, DCR19 was granted a temporary protection visa on the basis that he was a member of his then wife’s family unit. In each case he made no separate claims.

6    On 26 May 2008, DCR19 applied for a permanent protection visa. In his application form DCR19 responded as follows to questions in the form:

(1)    “Why did you leave your country?” DCR19 said: “Wife’s family was politically active and consequently were persecuted by the Govt. As a result of the marriage, I was also persecuted.”

(2)    “What do you fear may happen to you if you go back to that country?” DCR19 said (as written): “I will still be targetted as everyone knows my connection with [name] who is my wife’s father, + my brother in law [name]. Further details to be provided.”

(3)    “Who do you think may harm/mistreat you if you go back?” DCR19 said: “The Government”.

(4)    “Why do you think this will happen to you if you go back?” DCR19 said: “Due to my connections with the [name] family. Further details to be provided.”

(5)    “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” DCR19 said: “No”.

7    The Court Book includes a copy of a statutory declaration made by DCR19 on 5 August 2008. In it, DCR19 said:

(1)    DCR19 and his then wife had fled the Congo “due to the political unrest in the country” and that “[m]y family had received death threats due to our family’s strong political profile”.

(2)    He had completed 12 years of schooling in Africa, but left before graduating.

(3)    He provided a summary of his work history and financial circumstances after he and his wife arrived in Australia.

(4)    He and his wife separated in “early 2005” after he found out that she had been unfaithful.

(5)    He referred to his convictions on 23 May 2003 (for assault occasioning actual bodily harm to his wife), 20 April 2006 (for making false instruments) and 17 September 2007 (for driving while unlicensed).

(6)    He is a diabetic and suffers depression (beginning when he was in Villawood) for which he takes daily medication.

8    By a letter dated 20 August 2008 addressed to DCR19 at the same address as appears in his statutory declaration, the Department told him that no consideration was being given to refusing him a visa under s 501 of the Migration Act. However, the Department warned DCR19 that if he engaged in further conduct which came within its scope, it could result in consideration being given to cancelling his visa and of the possible consequences were that to occur.

9    DCR19 was granted a ROS visa on 28 August 2008. The letter notifying DCR19 of the grant of the visa noted that the application made on 26 May 2008 for a protection visa was also deemed to be an application for a ROS visa. The letter also advised that, as DCR19 had been granted a ROS visa, he was no longer eligible for the grant of a protection visa and he should withdraw his application for the protection visa.

10    On 7 August 2013, DCR19 was sent a notice of intention to consider cancelling his ROS visa under s 501(2) of the Migration Act. By a letter dated 14 February 2014, DCR19 was notified that a delegate of the Minister had exercised discretion not to cancel the visa. The letter asked DCR19 to note that the decision did not mean that his case could not be considered again if he offended again.

11    On 28 May 2018, a delegate of the responsible Minister cancelled DCR19’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (cancellation decision). The delegate was satisfied that DCR19 did not pass the character test as set out in s 501(6)(a) of the Migration Act on the basis of s 501(7)(c), as he had been sentenced to a term of imprisonment of 12 months or more. On 17 January 2013, DCR19 was convicted of knowingly deal with proceeds of crime-SI and sentenced to three years and three months imprisonment. The delegate was also satisfied that, at the time the cancellation decision was made, DCR19 was serving a sentence of imprisonment on a full-time basis. On 19 March 2018, DCR19 was convicted of the offences of: (a) knowingly produce false/misleading document: state law, for which he was sentenced to 12 months imprisonment with an eight month non-parole period; (b) use unregistered registrable Class A motor vehicle on road, for which he was sentenced to a fine of $500; and (c) never licensed person drive vehicle on road – prior offence, for which he was sentenced to 6 months imprisonment. The Court notes that, on 29 May 2019, on appeal, the effective custodial sentence for the relevant offences was varied to a total effective sentence of ten months imprisonment with a five month non-parole period.

12    On or about 30 May 2018, DCR19 requested the Minister to revoke the cancellation decision, pursuant to s 501CA(4) of the Migration Act which provides as follows:

(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.

13    By a handwritten letter dated 17 June 2018 to the National Character Consideration Centre, DCR19 submitted that:

    He accepts that he has a substantial criminal record and does not pass the character test.

    It is devastating to him that he has not seen his children while he is in gaol and if he is deported to the Congo his chances of being a father to his children will “virtually cease” as his wife will not have the financial means to have them visit him there, leaving the children essentially fatherless. DCR19 said that he supported his family when he was not in gaol.

    If he were deported, two Australians of African heritage who are employed in his business would lose their jobs.

    He has no close ties in the Congo and he will not have a job or any place to live if he were deported.

14    DCR19 returned to the Department a “Personal Circumstances Form” dated 30 July 2018 which was completed as follows:

(1)    DCR19 is currently an Australian citizen.

(2)    He resides in a named correctional centre.

(3)    He has five minor children. Four were born in Australia, ranging in age from 8 to 16 years. He also has a 17 year old son who resides in Africa. The children reside with their respective mothers. He has contact with all of the children and he gets on with each of their mothers. He supports the children financially.

(4)    His mother, two brothers and two sisters reside in the Congo.

(5)    His offences “are minor traffic offences” for which he was sentenced to five months imprisonment. He does not consider himself to be a risk to the community or public. He passed his Australian citizenship test two years previously.

(6)    There is no likelihood that he would re-offend as he is a devoted father who loves and supports his family. It was very hard being apart from them and he does not want to be apart from them again.

(7)    He has been a barber in his own business for fifteen years and has a “great repore” with his local community.

(8)    Under the heading “IMPEDIMENTS TO RETURN”:

(a)    The responses to questions under the sub-heading “Health” was that he is diabetic and suffers from depression for which he takes named medicines.

(b)    In response to questions under the heading “Return to your country of Citizenship”:

(i)    A box was marked “No” in relation to the question “Do you face any criminal charges/convictions in your country of citizenship?”

(ii)    There was no response to the questions “Do you have any concerns or fears about what would happen to you on return to your country of citizenship” and “Are there any other problems you would face if you have to return to your country of citizenship”.

(9)    There was no response to the instruction “Please outline any other information you would like the Minister or delegate to consider when making their decision” under the heading “ANY OTHER INFORMATION”.

15    Upon his release from prison on 19 August 2018, DCR19 was taken to immigration detention.

16    By letter dated 4 December 2018, the Department afforded DCR19 an opportunity to comment on various documents concerning his convictions, including sentencing remarks made by the Local Court in Blacktown and Liverpool and the District Court of New South Wales, a statutory declaration regarding convictions which he made on 5 August 2008, a notice of decision not to cancel a visa dated 14 February 2014 and a formal counselling letter dated 20 August 2008 in relation to his liability under s 501 due to his criminal record. By a further letter dated 7 December 2018, the Department afforded DCR19 an opportunity to comment on a “New South Wales Police Fact Sheet regarding offence on 08/11/2017 and his subsequent conviction on 29/05/2018”.

17    On 24 December 2018, DCR19 faxed a response and additional information to the National Character Consideration Centre. DCR19 first addressed his “risk” to the Australian Community and asserted that he would not be a risk. DCR19 stressed his relationship with his children. He said that he has had no contact with anyone in the Congo since he moved to Australia, pointing out that he had no job or place to live there, he does not know anyone or speak the language and he would not have the benefit of his church and children there. He concluded that his physical and mental health would be impacted by being deported to the DRC as there would be “no proper treatment” for his diabetes and obtaining medication would “most likely be outside of [DCR19’s] financial budget” so that there were “chances [he] could die”.

18    On 21 February 2019, a delegate of the Minister made the non-revocation decision and DCR19 was advised of the decision by a letter from the Department of that date. Attached to the letter was a copy of the reasons for that decision. Also attached was a document headed “HOW TO APPLY FOR MERITS REVIEW BY THE ADMINISTRATIVE APPEALS TRIBUNAL” which comprised four pages. That attachment included the following (as written):

THE EFFECT OF SECTION 500(6A) TO SECTION 500(6L) OF THE MIGRATION ACT 1958

(The law requires that this information is provided to you. Section 500(6A) to s. 500(6L) of the Migration Act refer to decisions under s501 and s501CA of the Migration Act that relate to people in the migration zone (i.e. in Australia))

…

•    Section 500(6H) of the Migration Act provides that the AAT must not have regard to any oral information submitted in support of an applicant’s case unless the information was given to the Minister in writing at least two business days before the hearing (other than a directions hearing).

•    Section 500(6J) of the Migration Act provides that the AAT must not have regard to any documentary information submitted in support of an applicant’s case unless the applicant gave a copy of the document to the Minister at least two business days before the hearing (other than a directions hearing). (Note, this rule does not apply to those documents given to the applicant or the AAT by the Minister pursuant to s501G(2) or s500(6F) of the Migration Act.)

•    Section 500(6K) of the Migration Act provides that if the AAT is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant to the decision under review, the AAT may serve on the Minister a written notice stating that the AAT is of that opinion and requiring the Minister to lodge with the AAT, within the time specified in the notice, a copy or the number of copies specified in the notice of each of those documents that is in the Minister’s possession or under the Minister’s control. The Minister must comply with any such notice.

•    Section 500(6L) of the Migration Act provides that if the AAT has not made a decision under s42A, 42B, 42C or 43 of the AAT Act in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with s501G(1) of the Migration Act, the original decision of the Minister is taken to have been affirmed by the AAT under s43 of the AAT Act at the end of that period.

19    On 22 February 2019, DCR19 applied to the Tribunal for review of the non-revocation decision. On the same day, a lawyer from the Prisoner’s Legal Service advised the Tribunal that, while he was giving DCR19 some minor assistance, he was not DCR19’s legal representative in the proceedings before the Tribunal.

20    In the Statement of Facts, Issues and Contentions of the Respondent dated 9 March 2019, which was lodged with the Tribunal on 9 April 2019, the Minister made submissions by reference to Direction 79 Visa refusal and cancellation under s 501 and revocation of mandatory cancellation under s 501CA (Direction 79) made under s 499 of the Migration Act. At [83], the Minister said:

International non-refoulement obligations: cl 14.1

83.    The applicant was first granted a Subclass 785 Temporary Protection visa on 28 August 2002, and a further Subclass 785 Temporary Protection visa on 26 May 2005 which expired on 28 August 2008 (GD 40 to 41). In 2008, he claimed to fear harm because of threats made against his family in 2002. However, he has made no specific claims to fear harm on return in this application. Subject to claims being raised, the Tribunal does not need to engage with the question of non-refoulement.

21    Evidence in support of DCR19’s claim to have a relationship with, and to have provided financial support for, his eldest daughter was provided by way of a letter dated 5 April 2019 from his ex-wife, an undated letter from their daughter, a letter from his daughter’s school principal dated 4 April 2019 and a letter dated 23 April 2019 from a clinical psychologist who had seen his daughter.

22    DCR19’s Statement of Facts, Issues and Contentions was filed with the Tribunal on 25 April 2019. The covering email sent by DCR19’s former solicitor Adrian Joel of Adrian Joel & Co stated that urgent attempts were being made to provide additional evidence. The Statement addressed the issue of non-refoulement at [4]-[14]. At [4]-[7] and [10]-[12] the following was said (as written):

4.    Applicant rejects assertion made in Respondent’s Statement of Facts, Issues and Contentions (RSFIC paragraph 83) in that it may be accepted that the Applicant’s claims should be considered upon the basis “he has made no specific claims to fear harm on his return in this application”.

5.    The Applicant did not have legal representation as at the time of completion of the document entitled “Personal Circumstances Form” (GD 65-75) and submission in support (GD 77-80). Indeed, there is a concerning sub-issue in that whether the Applicant is entitled to any legal representation as per Section 277(1)(c)(ii) of the Act.

6.    The Applicant should not be condemned as excluding reliance upon non-refoulement claims in answering forms that did not seek or refer to such information. It may be viewed as a matter of concern for a non-lawyer to properly comprehend the totality of Direction 65. (GD 126-158).

7.    The factual pattern of the Applicant may be regarded as unique with respect to appraisal of the international non-refoulement obligations. In this instance it is submitted that such obligations have already been formally recognised, as evidenced by grant of the Class XA sub-class 785 Temporary Protection Visa granted 28/08/2002 and 26/05/2005 (paragraph 62, GD 24). The fact that this Visa Class was subsumed by virtue of the operation of sub-class 851 at that time, leading to the evident withdrawal of the Class XA Onshore Protection Visa (63 GD 24), may be viewed as irrelevant for the purpose of any challenge to the existence of non-refoulement issues as at the time of this decision.

…

10.    The Delegate at 64 (GD 24) concludes that it is “unnecessary to determine whether non-foulement obligations are owed” given in effect that the Section 48A prohibition purportedly does not apply, as the Applicant voluntarily withdrew his previous Class XA Protection Visa application (paragraph 63).

11.    Significantly, what has not been considered is the effect of the prior recognition of the non-refoulement obligations with respect to the multiple grants of the sub-class 785 Temporary Protection Visas to the Applicant. If the Applicant was unsuccessful in a subsequent Protection Visa application, he would be indefinitely detained. It was the issue of indefinite detention that was of primary concern to the court in FRH18, viz “The factual circumstances which can give rise to the prospect of indefinite detention can vary considerably” (at 44 of Judgement).

12.    It is submitted that the Delegate had an obligation to take into account the legal consequences of the Decision by reason of the Delegate’s knowledge that Australia had currently existing non-refoulement obligations in respect of the Applicant (refer NBMZ v. Minister for Immigration & Border Protection 2014 220 FCR. Reference may also be made to Minister for Immigration & Border Protection v. Le (2016) 244 FCA at 56 at (60) “necessarily therefore to the extent that the issue is material, it must be addressed at an earlier stage in the decision making process”. Refer also to 12.1(6) of Direction 79.

Thus it may be considered a jurisdictional error to make the decision that is unnecessary to determine non-refoulement obligations in the scenario where the Delegate recognised the grant of multiple temporary Class 785 visas may (and does) give rise to such obligations.

23    In an unsworn affidavit dated 26 April 2019, DCR19 said:

2.    I have grave concern about returning to the Democratic Republic of Congo (DRC) based upon my previous refugee claims. The only reason I did not provide detail of such fear is that the form provided to me (Personal Circumstances Form) did not have any questions that raised this issue. If it did, I most certainly would have provided such detail.

3.    My previous partner, [name of ex-wife] relied upon the consequence of her being the sister of [name]. At the time of my arrival in Australia he was a General in the DRC Army, who was part of a dissident group opposing the power of President Kibilla. In the intervening years all of [ex-wife’s] family have been forced to flee the country. I believe the current president, Joseph Kibilla will persecute me, that is I will face serious intimidation and harassment if I am forced to return to the DRC. This is because I am seen as a supporter as a previous family member of the [name] family. It was General [name] who was part of a group who tried to overthrow the Kibilla Government. I certainly have a very grave fear of return and can provide additional detail.

24    In an affidavit affirmed on 26 April 2019, DCR19’s ex-wife provided evidence supporting DCR19’s non-refoulement claims and his claims concerning contact with and support of their daughter.

25    On 1 May 2019, DCR19’s counsel filed written submissions which are in evidence.

26    On 2-3 May 2019, the Tribunal conducted a hearing at which DCR19 was cross-examined and his former wife and eldest daughter gave evidence by telephone.

27    On 16 May 2019, the Tribunal affirmed the non-revocation decision and issued its decision record.

Tribunal’s decision record

28    The Tribunal stated that it had considered all of the evidence before it: DR[11]. It went on to say at DR[12]:

The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.

29    The Tribunal noted the terms of ss 501(6)(a) and 501(7)(c) of the Migration Act at DR[14]-[15] and set out a summary of DCR19’s “Offending history” at DR[18]. The Tribunal concluded that DCR19 has a “substantial criminal record for the purposes of s 501(6)(a) when read with s 501(7)(c), having been “sentenced to a term of imprisonment of more than 12 months on multiple occasions” and it was therefore satisfied that he did not pass the “character test”: DR[19]-[20].

30    The Tribunal then turned to consider whether there was “another reason” why the cancellation decision should be revoked. It noted that it must comply with any Directions made by the Minister under s 499 of the Migration Act and that in this case, Direction 79 applies: DR[21]-[22]. The Tribunal noted that the considerations relevant to deciding whether to revoke a cancellation decision are set out in Part C of Direction 79 and they involve three primary considerations and “other” considerations. The “other considerations include “international non-refoulement obligations”. It also noted the direction given in cl 8(3) to (5) concerning the weight to be given to “primary” and “secondary” considerations and what Colvin J said in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (Suleiman) concerning a similar direction in Direction 65, which Direction 79 replaced. The Tribunal then set out the principles and framework under which the decision should be made in accordance with cl 6.3 of Direction 79: DR[23]-[31].

31    The Tribunal summarised the evidence of witnesses at DR[32]-[103]. The Tribunal summarised and considered DCR19’s evidence, his visa history and aspects of his offending history at DR[33]-[98]. The Tribunal set out the written evidence given to the Tribunal by DCR19’s ex-wife and daughter referred to above and noted that their evidence given at the hearing was largely consistent with their written evidence: DR[99]-[103].

32    The Tribunal considered “primary consideration A”, protection of the Australian community from criminal and other serious conduct at DR[104]-[172]. The Tribunal found (at DR[132]-[135]) that DCR19’s conduct fell into four categories which were referred to as:

(1)    “violent” offences, including assault occasioning actual bodily harm inflicted on DCR19’s ex-wife in 2002, grabbing a fellow in-mate by the neck in 2012 for which he was penalised with one day in the cells, and an incident in immigration detention in 2018 when he threw punches at a fellow detainee, hit him and accidentally struck a detention officer;

(2)    “scam” offences, including the offence of shoplifting in 2003 and offences of goods in possession suspected of being stolen for which he was convicted in 2006, 2010, 2013 and 2017;

(3)    “dishonesty” offences, relating to DCR19 providing false identification documents to police officers and lying to the police about holding a driver’s licence, the amount of time he had been in Australia and his identity; and

(4)    “traffic” offences, consisting of driving without a licence, having never been licensed to drive and driving an unregistered vehicle.

33    The Tribunal concluded that the “violent” and “scam” offences were particularly serious. DCR19’s conduct involved some violence and crimes of dishonesty repeated over a number of years. There was a “high likelihood” that he would engage in crime similar to his dishonesty and traffic offences and a “real risk” that he would engage in violent conduct and scam activity if he were allowed to remain in Australia and this would result in physical, financial and emotional harm to members of the Australian community. The Tribunal concluded that this “weighed heavily” against revocation of the cancellation decision and the Tribunal attributed “significant weight” to it: DR[168]-[172].

34    The Tribunal considered “primary consideration B”, the best interests of minor children in Australia at DR[173]-[196]. The Tribunal accepted that DCR19 maintains a close relationship with his four children in Australia and that separation would have a severe emotional impact on them. After stating that it had considered the best interests of DCR19’s children both individually and cumulatively, the Tribunal concluded that it was in their best interests that the cancellation decision be revoked and this “weighed heavily” in favour of revoking the cancellation decision. The Tribunal attributed “significant weight” to this consideration: DR[194]-[196].

35    The Tribunal considered “primary consideration C”, the expectations of the Australian community at DR[197]-[217]. The Tribunal concluded that given the serious nature of much of DCR19’s offending, that there was a real risk that he would re-offend, and notwithstanding the negative impacts on his children and the long time he had spent in Australia, the Australian community would consider that the risk of future harm to the community is unacceptable and the Tribunal should not revoke the cancellation decision. The Tribunal found that this consideration weighs against revocation and it placed “significant weight” on this consideration: DR[216]-[217].

36    At DR[218], the Tribunal noted five “other considerations” listed in cl 14(1) of Direction 79, and stated that those “other considerations” were not exhaustive.

37    The Tribunal considered “international non-refoulement obligations” at DR[219]-[290]. After referring to case law regarding whether the Minister is obliged to consider protection claims in the context of a decision under s 501CA(4), the Tribunal concluded (at DR[251]) that it must make an assessment of the risk that non-revocation would breach Australia’s non-refoulement obligations and weigh any such risk with other considerations in determining whether there is another reason why the cancellation decision should be revoked.

38    The parties’ submissions draw attention to most of the paragraphs of the Tribunal’s consideration of “international non-refoulement obligations” from DR[263]-[290]. Accordingly, it is appropriate to set those paragraphs out in full:

263.    The Tribunal has very little evidence before it to make a thorough assessment of the Applicant’s claims. That state of affairs was compounded by the fact that sections 500(6H) and 500(6J) of the Act prevented the Tribunal from having regard to evidence sought to be adduced at the hearing which had not been given to the Respondent two business days before the hearing. However, in accordance with the High Court’s decision in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.

264.    The Tribunal considers that it is very likely that he will lodge a Protection visa application. Indeed, the Applicant told the Tribunal that if he was unsuccessful in the present matter that he would lodge a Protection visa application. Once that application is lodged, Direction No 75 ensures that his claims to be a refugee or to fall within the complementary protection regime will be considered.

265.    In this case, the Tribunal considers that there is only a very remote possibility Australia will breach any non-refoulement obligations owed in respect of the Applicant. It appears from the limited information before the Tribunal that the Applicant’s refugee claims are particularly weak.

266.    The Applicant claims to fear persecution in the Congo from Joseph Kabila and his government because he was previously married to a woman whose brother was a General who fought against the Kabila government in the late 1990s to early 2000s. The Applicant claimed that the persecution that he feared consisted of “serious intimidation and harassment.”

267.    The day before the hearing the Applicant filed written submissions. One of those submissions was that it was unnecessary for the Tribunal to determine whether Australia owed international non-refoulement obligations in respect of the Applicant as the Applicant had been granted a Subclass 785 Protection visa on two separate occasions, and as such, had already been found to be a refugee. Therefore, it was submitted by the Applicant the Tribunal must proceed on the basis that the Applicant is a person in respect of whom Australia has international non-refoulement obligations and that this “fact” presented another reason why the decision to cancel the Applicant’s visa should be revoked.

268.    The Applicant argued that lodging a Protection visa application would be an exercise in futility. That was because, as the Applicant has a substantial criminal record and has been sentenced to imprisonment for a period of 3 years and 3 months, it was almost inevitable that the Applicant would be found to be a danger to the Australian community and thus not meet the criteria for the grant of a Protection visa in sections 36(1C) and 36(2C) of the Act. The Applicant argued that it would be incongruous and inconsistent in circumstances where the Minister had cancelled the Applicant’s visa owing to the threat he presented to the community and had refused to revoke that decision on the same basis, to expect the Minister to find that the Applicant did not present a danger to the community in a future assessment of sections 36(1C), 36(2) of the Act. For the same reason the Applicant argued that the Tribunal could not rely on the Minister exercising a non-compellable discretion which was preconditioned on the Minister finding that it would be in the public interest to do so, in circumstances where the Minister had made multiple previous findings that the Applicant represented a danger to the community. In any event, the Applicant argued that it was purely speculative to consider whether the Minister may exercise a discretion at some point in the future.

269.    The Applicant argued that, because it had already been determined that the Applicant was a person in respect of whom Australia owed protection obligations, but it was all but unavoidable that he would be refused a Protection visa by failing to meet section 36(1C) of the Act, the most likely outcome for the Applicant would be indefinite detention. The Applicant conceded that indefinite detention would not place Australia in breach of its international non-refoulement obligations. Rather, the Applicant indicated that the likely indefinite detention of the Applicant should be considered as an “other consideration” which weighed heavily in favour of revocation of the cancellation decision and presented another reason why the cancellation decision should be revoked.

270.    The Respondent also filed written submissions in relation to Australia’s non-refoulement obligations the day before the hearing. In his submissions the Respondent argued that, while the Applicant had been granted Protection visas previously, the Government had never determined that the Applicant was a person in respect of whom Australia had international non-refoulement obligations. That is because the Applicant was granted a Protection visa on two occasions, not because he was found to have a well-founded fear of persecution in the Congo, but rather because he met the alternative criteria for the grant of a Protection visa, that he was a member of the family unit of his wife who had been found to be a refugee. The Tribunal accepts this submission.

271.    However, that is not to say that the Applicant is not someone in respect of whom Australia owes non-refoulement obligations, only that Australia has yet to determine whether the Applicant is a person in respect of whom Australia owes non-refoulement obligations. The parties both asserted, and the Tribunal accepts, that the Applicant is not barred from applying for a Protection visa. Therefore, there is no legal impediment on the Applicant applying for a Protection visa. As mentioned previously, in response to a question by the Tribunal, the Applicant indicated that if he were unsuccessful in the present proceedings that he would lodge a Protection visa application.

272.    The Respondent argued that it was by no means certain that the Applicant would be refused a Protection visa. He argued that if the Applicant was granted a Protection visa he would remain in Australia. He argued that any future decision as to whether the Applicant met the criteria for Protection visa could be informed by very different evidence, including evidence of rehabilitation, from the evidence before the Tribunal at present. The Respondent argued that if the Applicant did not meet the criteria in section 36(2)(a) or section 36(2)(aa) of the Act he would not be a person in respect of whom Australia owed protection obligations and no such obligations would arise. The Respondent submitted that if the Applicant were to meet the criteria in section 36(2)(a) or section 36(2)(aa) of the Act but did not meet other character related criteria, it was possible for the Minister to grant the Applicant a visa under section 195A of the Act. The Respondent argued that, as a matter of law, the Applicant was incorrect in asserting that the Applicant would be held indefinitely in immigration detention if he were found to be a person in respect of whom Australia owed non-refoulement obligations but he was refused a Protection visa. That is because section 197C of the Act, when read with section 198 of the Act, mandates removal of an Applicant from Australia as soon as reasonably practicable regardless of any international non-refoulement obligations.

273.    The Tribunal is not satisfied that the Applicant has any subjective fear of persecution in the Congo. The Applicant, in his response to the cancellation of his visa, did not mention anything about fearing persecution in the Congo.

274.    In the Personal Circumstances Form provided to the Department in response to the cancellation decision, the Applicant provided information about his children, the mothers of his children, the relationship he had with his children, the effect of cancellation on his children, his mother and siblings in the Congo, his criminal history and risk of reoffending, his employment history in Australia and his medical ailments. However, the Applicant did not raise any fear of harm in the Congo if he had to return there despite specific questions in the form inviting such claims.

275.    In the Personal Circumstances Form, there was a question which asked “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” The Applicant did not provide an answer to that question. The form also contained the question “Are there any other problems you would face if you have to return to your country of citizenship?” Again the Applicant did not provide an answer to that question. The form contained the question “Please outline any other information you would like the Minister or delegate to consider when making their decision.” The Applicant did not provide an answer to that question.

276.    In addition, the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa.

277.    The Applicant only raised the claim that he feared persecution in the Congo once his solicitor, Mr Joel, became involved with the application before the Tribunal and after the Applicant had received the Respondent’s written contentions. The fact that these claims were only raised a week prior to the hearing, and after receiving the Respondent’s contention that the Applicant had not raised no [sic] fears of returning to the Congo and that “Subject to claims being raised, the Tribunal does not need to engage with the question of non-refoulement”, supports the view that the Applicant does not have a subjective fear of persecution in the Congo.

278.    While a subjective fear is necessary for the Applicant to meet the criterion for a Protection visa in section 36(2)(a) of the Act, it is not necessary for the Applicant to have a subjective fear of harm in order to meet the criterion in section 36(2)(aa) of the Act.

279.    In this case, for the purposes of both section 36(2)(a) or section 36(2)(aa), the Tribunal does not consider that there is a real chance that the Applicant will face serious harm or a real risk that the Applicant will suffer significant harm if he were to return to the Congo.

280.    The Applicant has never suffered harm or persecution in the past when he was living in the Congo.

281.    The Applicant told the Tribunal that in Africa, people looking to harm an adversary would also seek to harm all members of the adversary’s family. He said that he would be harmed on this basis as he was the husband of his wife who was the sister of a man who had fought against the Kabila government. The Applicant indicated that, because he was married to a member of the family of a man who had fought against the Kabila government, he would be considered to be a supporter of that man and his family. However, the Applicant gave evidence that neither his mother nor any of his five siblings who remain in the Congo have ever been harmed or threatened as a result of their association with the Applicant or his wife.

282.    In addition, the Applicant has been separated from his wife since 2005. While it is true that the alleged persecutors in the Congo may not know this, the Applicant has been away from the Congo for some 16 years and does not share a surname with his wife or anyone in his wife’s family. In these circumstances it appears unlikely that any potential persecutors would remember or recognise the Applicant or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago.

283.    In addition, although in his written material the Applicant had indicated that Joseph Kabila was still in power in the Congo, at the hearing he admitted that Joseph Kabila and his party were no longer in power in the Congo and that Tshisekedi was the current president of the Congo.

284.    There is no current evidence before the Tribunal that anyone in the Congo is currently seeking to harm or threaten the Applicant.

285.    Further, although Tribunal appreciates that a subjective fear of harm is not necessary for the purposes of determining that a person falls within the complementary protection regime, the Tribunal considers that the Applicant’s lack of subjective fear of harm in the Congo is a matter which can be considered in determining whether there is an objective real chance that the Applicant will face serious harm or a real risk that the Applicant will face significant harm if returned to the Congo. The Tribunal notes that not only did the Applicant not raise any fears of harm in the Congo before this issue was raised by the Respondent in these proceedings, neither did his ex-wife. The Applicant [sic] ex-wife provided a statement to the Tribunal dated 5 April 2019. That statement focuses almost entirely on the relationship between the Applicant and their daughter and the potential effect on their daughter if the Applicant were to be removed from Australia. There is nothing in that statement which mentions any harm that the Applicant may suffer at the hands of others if he were to return to the Congo.

286.    It was only after the Respondent had indicated that the Applicant had not to [sic] claimed to fear harm in the Congo, and the day after Mr Joel had filed written contentions on behalf of the Applicant, that on 26 April 2019 the Applicant’s ex-wife claimed that if the Applicant returned to the Congo “he faces a continuing, serious threat, as the current government of DRC will not hesitate to eliminate any opposition.” The Tribunal considers that the Applicant’s wife’s failure to mention any harm to the Applicant should he return to the Congo in her first letter, and that she only raised this prospect after the Respondent indicated no such claim had been made, supports the view that the Applicant’s ex-wife does not consider that the Applicant will suffer harm if he returned to the Congo. That she has belatedly made this claim is understandable given that her daughter has a close relationship with her father and desperately wishes for him to remain in Australia. However, the Tribunal considers that its findings that the Applicant and his ex-wife do not consider that the Applicant will suffer harm if he returned to the Congo, supports the Tribunal’s conclusion that there is no real chance that the Applicant will suffer serious harm if returned to the Congo and there is no real risk that the Applicant will suffer significant harm if returned to the Congo.

287.    Thus, the Tribunal considers it likely that the Applicant will not be found to meet the criteria for a Protection visa in either section 36(2)(a) or section 36(2)(aa) of the Act as being a person in respect of whom Australia owes protection obligations, and that he will be refused a Protection visa on that basis. If this is correct, the removal of the Applicant from Australia will not result in any breach of Australia’s international non-refoulement obligations.

288.    However, the Applicant’s claims for a Protection visa will ultimately be decided by a decision maker once that application is made. That decision maker will not be bound in any way by the findings that I have made in relation to the consideration of Australia’s international non-refoulement obligations for the purpose of exercising the discretion under section 501CA of the Act.

289.    In this case, the Tribunal considers that there is only a very remote possibility that Australia will breach any non-refoulement obligations owed in respect of the Applicant. Although the Tribunal has found that there is only a very remote possibility the non-revocation of the cancellation of the Applicant’s visa may result in Australia breaching its international non-refinement obligations, for the reasons discussed above, that outcome is possible.

290.    The Tribunal gives this consideration slight weight in favour of revocation.

39    The Tribunal found that, other than the strong ties to his children, DCR19 did not have particularly strong ties to Australia, notwithstanding the significant time he had lived in the country. The Tribunal placed “low weight” on this factor: DR[294]. The Tribunal placed no weight on the considerations of “impact on Australian business” and “impact on victims”, in the first instance because neither party argued that the consideration was relevant and in the second instance because there was no evidence going to that factor: DR[295], [297].

40    In relation to the consideration of the factors “extent of impediments if removed” and “hardship and harm to the applicant”, the Tribunal found that DCR19 would face difficulty in re-establishing himself in the Congo, that he may find it difficult to obtain adequate medical treatment for his diabetes and depression and non-revocation of the cancellation decision would have a significant negative effect on him. Those matters favoured revocation of the cancellation decision and the Tribunal attributed “significant weight” to them: DR[306]-[312].

41    After considering all of those matters, the Tribunal concluded that there was not “another reason” to revoke the cancellation decision and affirmed the delegate’s decision. The Tribunal summarised its findings at DR[309]-[316] and concluded as follows at DR[317]-[320]:

317.    In this case the Tribunal considers that there is a high likelihood that the Applicant will reoffend in Australia. The questions which remain, and which I have attempted to address, appear to be when that offending will take place and how serious that offending will be. The Applicant has been given multiple opportunities to reform his behaviour and has failed to do so. The Applicant has a problem with acting in an honest way and has lied repeatedly to authorities in Australia. He has sought to dispossess people of their property. Finally he has shown that he has some propensity for violence. The Applicant’s dishonesty and propensity for violence have been demonstrated again quite recently. In these circumstances the Tribunal considers that the primary considerations of the protection and expectations of the Australian community weigh heavily against setting aside the decision not to revoke the cancellation of the Applicants [sic] visa. However, this is a difficult decision because the Applicant has four Australian children who will be devastated by the departure of their father. Their interests clearly weigh in favour of revoking the cancellation decision. In addition, the Applicant will return to a poor, developing country where he is likely to suffer hardship including the possibility of receiving inadequate medical treatment, and will likely find difficulties in re-establishing himself there. These matters also weigh heavily in the Applicant’s favour.

318.    After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.

319.    The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.

320.    Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.

Unreasonableness ground

42    This ground raises the issue of whether it was legally unreasonable for the Tribunal not to have inquired or adjourned the hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so.

Submissions made on behalf of DCR19

43    Mr Chia, DCR19’s counsel on the application to this Court, did not represent DCR19 at the Tribunal hearing on 2 and 3 May 2019, although DCR19 was represented by counsel at that hearing. Mr Chia relied on transcripts of the two days of hearing before the Tribunal which were annexed to the affidavit of Farin Nikjoo affirmed on 21 October 2019.

44    Mr Chia drew to the Court’s attention some parts of the transcript of the Tribunal hearing on 2 and 3 May 2019. For convenience, those parts have been put in the context of the discussion at that point of the transcript

45    First, Mr Chia relied on the bolded sentence at T6 of the transcript towards the commencement of the hearing:

MEMBER: We can do that. Luckily we have blocked off tomorrow also. I assume you are available tomorrow?

DCR19’S COUNSEL: Yes.

MEMBER: Excellent. I understand you have made available tomorrow free. I thank you for that.

MINISTER’S LAWYER: If we could finish by 4:00 tomorrow I would be very grateful. I need catch a flight but other than that - - -

MEMBER: We have to make a decision by the 16th so - which is time pressured so- I tried to look if we could do it on another day it just wasn’t ---

MINISTER’S LAWYER: I appreciate, Member, it’s our Act so it is our responsibility.

MEMBER: There’s that and I am in a number of these cases so this isn’t the only one that I am writing up in that time.

MINISTER’S LAWYER: Yes.

MEMBER: All right. What we’ll do is we’ll adjourn for about an hour. All of the material - I don’t anticipate - there’s nothing new in there, is there?

MINISTER’S LAWYER: No.

MEMBER: Okay. So it’s the stuff that we’ve been sent and I appreciate that it is recently. I have only received it recently also but I understand that the reason for that is because non-refoulement obligations - well, at least the respondent says have been more squarely raised more recently and the thrust at least of both of the submissions that I’ve received are about that. That’s a difficult issue. We’re going to spend a lot of time on that. We’ll adjourn for an hour. Have a look at the exhibit register. If there is ‘things that need to be added to that, let me know. Of course you’re both aware of the two day rule so I can’t take in anything new from the applicant at the moment and then also [counsel for DCR19], if you have any issue with any of the documents in terms of objecting to their tender into evidence, I will hear those. That’s how I propose to proceed. [Counsel for DCR19], was there anything you would like to say? Is there any issue with that proposed course of action?

DCR19’S COUNSEL: That’s okay by the applicant, Member, but I also have- I would like to tender a copy of the submissions. There was a little bit of an error in the last - - -

Counsel noted that the bolded words are a reference to ss 500(6H) and 500(6J) of the Migration Act which apply to applications for review of a decision under ss 501 or 501CA(4) where the decision relates to a person in the migration zone.

46    Second, Mr Chia drew attention to the bolded words in the following exchange at T41:

MEMBER: [Minister’s lawyer], I am going to rely on you to – if the Minister has any objection to the answers that are being given to the extent that they fall foul of those provisions.

MINISTER’S LAWYER: Yes.

MEMBER: All right. Otherwise I am just going to ….

MINISTER’S LAWYER: Certainly Member.

MEMBER: Sorry, [DCR19’s counsel], please? Sorry, you can continue with your line of questioning. I am just letting him know I want the respondent – if they have an objection to any of it to point it out when it is happening rather than at the end once we have heard everything.

Mr Chia submitted that the bolded language this was a direction by the Tribunal member to the Minister’s representative to bring to the member’s attention anything that fell foul of the two day rule.

47    Third, Mr Chia drew attention to the bolded words in the following exchanges at T43, T45-47 and T49-52:

At T43:

DCR19’S COUNSEL: So are you aware of any political problem in Congo?

MINISTER’S LAWYER: I object to that question.

DCR19’S COUNSEL: Okay. So the people you say you fear harm from, are they still looking to harm you?

MINISTER’S LAWYER: I object to that question.

MEMBER: Just give me a second. Is that on the basis of the information before the tribunal is limited to what happened when he came out?

MINISTER’S LAWYER: That is correct.

MEMBER: That is that there is no current information about - - -

MINISTER’S LAWYER: About people, about that his claims to fear harm from people beyond what he has already explained.

MEMBER: [DCR19’s counsel], is that right or do you dispute that?

DCR19’S COUNSEL: Well, I do say that he – part of the claim that he advances is that he is in fear of returning to Congo as a result of what occurred in the past. The line of questioning is – revolves around the extent to which that harm still visits.

MEMBER: Unless you can point me to somewhere in his statements where the answer to your question is provided for, I think those provisions are going to prevent me from considering any answer that he might give.

At T45-47:

DC19’S COUNSEL: I will just ask you this question, subject to the two day rules. What do you think would happen to you if you go back to Congo?

MINISTER’S LAWYER: I object.

MEMBER: Whereabouts is that on the material – the answer?

I’m sorry [DCR19’s counsel] if you haven’t encountered this before I know that it is very difficult. Sometimes in effect it means sometimes applicants don’t even give evidence because really, they are restricted to what they have written, so there might be some small amount of leeway whereby if there was something that was in the material he might be able to expand on but that would be something like, for example, if he had a child that was in school somewhere he might be able to say the name of the school, it wouldn’t be something completely new, especially as it regards the case, so I know – I appreciate that it is difficult. That is just a restriction that I have under the legislation.

DCR19’S COUNSEL: Yes, Member. His affidavit does point to – page 2 – what he says will happen to him.

MEMBER: Whereabouts?

DCR19’S COUNSEL: Page 2 of A2 – exhibit A2.

MEMBER: No, whereabouts on the page on page 2?

DCR19’S COUNSEL: The first sentence, the first paragraph starting from - - -

MEMBER: All that he can tell me is that – that is all that he can tell me. If he is going to say other things then I can’t have regard to them.

Mr Respondent, is that - - -

MINISTER’S LAWYER: That would be our position, yes.

DCR19’S COUNSEL: That significantly curtails the number of questions that I can put through to - - -

MEMBER: Yes. So basically if there is any material that is before us which provides the answer to the question that you might ask then that would probably be permissible.

MINISTER’S LAWYER: Yes.

MEMBER: But otherwise - - -

DCR19’S COUNSEL: There is (indistinct) because if he is limited to what is in the document and he can’t provide or expand on – because my understanding was that he couldn’t bring up new topic or he could expand on a topic that was already before - - -

…

MEMBER:

The tribunal must not have regard to any information presented orally in support of the applicant’s case.

That is quite broad. Like I said, I think I have seen cases where if it were something along the lines of, you know, if he said he worked in a barber shop and then you asked him, “What was the name of the barber shop” that - - -

DCR19’S COUNSEL: A clarification?

MEMBER: Well, that’s expanding – that’s new information but it’s not something that’s critical. In this case the question that you asked in relation to the harm that he fears, what does he think would happen to him if he goes back is restricted to what he has provided and that is central, as you can appreciate, to this case. So I am not sure that I can do anything about that.

As I said, I appreciate it puts you in a difficult position, especially if you weren’t anticipating this problem before you came in today.

DCR19’S COUNSEL: I was anticipating it.

MEMBER: Sure.

Why don’t we have a short adjournment, I mean like have a few minutes, just because I know this – I can appreciate the position that you are in.

DCR19’S COUNSEL: Yes.

MEMBER: And it is a position faced by all applicants in these cases, just so that you have a chance to look over the provision, if there is anything you want to say to me about that or if there is other material in the material that is before the tribunal that you wish to rely on so that you can ask him questions. But really, as you can appreciate, I am really limited to what I have already got.

At T49-52:

DCR19’S COUNSEL: If you were to go back to Congo, how would you maintain relationship with your children?

DCR19: First place I’m not sure if I’ll be alive.

DCR19’S COUNSEL: Why do you say - - -

MINISTER’S LAWYER: I object to that.

DCR19: Because I know the system, they will come after me.

MINISTER’S LAWYER: I object to that evidence being relied upon.

MEMBER: Sure.

DCR19’S COUNSEL: Sorry, which part of that?

MINISTER’S LAWYER: The answer to the question, he’s not sure that he would even be here.

MEMBER: There’s no reference I suppose - is that on the basis that there’s no reference that he would be killed if he returned?

MINISTER’S LAWYER: Yes.

MEMBER: Right.

DCR19’S COUNSEL: I refer, Member to exhibit A2, where he says the current President will persecute him.

[Discussion about affidavit ensues]

DCR19’S COUNSEL: He says “I believe” so that’s the first paragraph of the second page where he says:

I believe the current President Joseph Kabila will persecute me.

…

MEMBER: Right, but that’s persecution - while killing someone may be a subset of persecution I’m not sure, it doesn’t work the other way around. The evidence that I have is that he believes that Joseph Kabila will persecute him and that he will suffer serious intimidation and harassment. That’s the evidence that I have.

MINISTER’S LAWYER: If I could take it a step further, Member.

MEMBER: Yes.

MINISTER’S LAWYER: He says that he will persecute him and then he qualifies what persecution means by saying

That is I will say face serious intimidation and harassment.

MEMBER: Yes, that’s probably the most obvious reading of that sentence. So to the extent that he’s answering about intimidation or harassment, I can probably accept that but he’s doing something more than that at the moment.

DCR19’S COUNSEL: He’s saying he’s not sure whether he would live or die.

MEMBER: Yes, the statement doesn’t say that, because presumably - - -

DCR19’S COUNSEL: That’s a - - -

MEMBER: Presumably that information - well, I suppose it depends. If he’s saying it in the sense that I don’t know whether I’m going to live or die before the hearing tomorrow, it may not go to anything so it’s not relevant. But if he’s saying it because he’s indicating that relevantly I could take into account he may be killed by the regime, then that hasn’t been – that’s not before me.

DCR19’S COUNSEL: Because I believe he’s put it in a way that says as a possible consequence of intimidation and harassment.

MEMBER: Well he hasn’t said that. He said:

I believe the current President Joseph Kabila will persecute me, that is I will face serious intimidation and harassment if I am forced to return to the RC.

Even on your interpretation it would be stretching the language to say that intimidation and harassment equates to murder.

DCR19’S COUNSEL: No, I don’t think he’s said and I won’t spend a lot of time here. I don’t think he said he will be killed. He is basically saying that a possible consequence of the serious intimidation and harassment could be that, not that he will certainly be dead.

MEMBER: Well you can ask him to clarify that and depending on what his answer is I may or may not be able to rely on it.

DCR19’S COUNSEL: Okay. So why do you say you’re not sure whether you will live or die?

DCR19: Why I say like that because in Africa, all over Africa, especially Congo, anybody involved – any things involve government to just eliminate the person that the system that work in Africa. Dead to Africa’s nothing. Killing someone in Africa is like killing chicken.

MINISTER’S LAWYER: I object.

MEMBER: I’m pretty sure – I’m pretty sure that - - -

DCR19’S COUNSEL: I think that answer is linked to what he says that the source of (indistinct) arises well, because he’s a supporter of a previous family member. I think that’s probably the extent to which - - -

MINISTER’S LAWYER: That goes to evidence about the nature of killings by African government.

MEMBER: Sure. What I can take from that - what I can take from all of his evidence is basically what is provided, so that just basically reinforces – to the extent that he’s saying that it is the government that might intimidate or harass him, I can take that bit into account. But to the extent that he’s saying that he fears that he will be killed or eliminated, that’s not in evidence.

48    Mr Chia submitted that:

(1)    What is relevant about the exchanges at T43, T45-47 and T49-52 is the approach taken by the Tribunal member. In all of these instances, questions were asked and the answers were not allowed. While the member may have been applying ss 500(6H) and (6J) to examination in chief, the member had a discretion to seek information, to inquire or to adjourn. Instead, the Tribunal member simply left it at that without any apparent consideration of adjournment or asking DCR19 to answer important questions such as “What do you think would happen to you if you go back to Congo?”. This is despite what the Tribunal (at DR[263]) acknowledged to be a paucity of information on non-refoulement.

(2)    Despite what is otherwise a detailed decision record, there is not one word which suggests that the Tribunal considered making such an enquiry or adjourning the hearing so that DCR19 could put on evidence relating to non-refoulement. The inference should be drawn that it failed to do so.

(3)    Even if the Tribunal had given consideration to that issue, its failure to make further inquiry or to adjourn lacks intelligible justification and was otherwise legally unreasonable, amounting to jurisdictional error. It is not necessary for this Court to infer what the Tribunal’s reasoning was to identify error in it: the result bespeaks error (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [85] (Hayne, Kiefel and Bell JJ)).

(4)    The Tribunal member asking “What do you think would happen to you if you go back to Congo?” would not have involved any delay which would have jeopardised its ability to meet the deadline imposed by s 500(6L).

(5)    It is not a case where the Court has no evidence as to what the oral evidence DCR19 would have given, had he been allowed by the Tribunal to give it, because that can be inferred from the questions that were asked and the extent to which answers were given. It also does not matter that DCR19 has failed to give evidence before the Court of what evidence he might have given the Tribunal, had he been allowed to answer the questions. The Court is not required to determine that, had the Tribunal undertaken an inquiry, had it adjourned or considered doing so, DCR19 would have had a favourable outcome on the review. That is not what the law requires. The question for the Court is whether, had the Tribunal done any of those things, there was a possibility that DCR19 could have had a favourable outcome.

49    Counsel relied on the High Court’s decision in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, (2015) 256 CLR 203 at [59], [66]-[68] (French CJ, Kiefel, Bell and Keane JJ) (Uelese) as follows (footnotes omitted).

59.    … Where information is adduced in cross-examination by the Minister or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process.

…

66.    It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection, on which the Minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the Tribunal of the preclusory effect of s 500(6H).

67.    It is not necessary here to seek to chart the boundaries of the Tribunal’s obligation to inquire after the best interests of the children of an applicant for review. …

68.    It is not necessary to canvass these possibilities further because the issue in this case is not whether the Tribunal failed to go far enough to discharge its obligation to conduct its review having regard to the interests of all the appellant’s children; rather, the point is that the Tribunal, by reason of its misunderstanding of the effect of s 500(6H), failed to address one of the primary considerations affecting the decision required of it. It failed to conduct the review required by the Act, and thereby fell into jurisdictional error.

50    Mr Chia also relied on Uelese at [70] in relation to the issue of adjournment. In Uelese at [70] French CJ, Kiefel, Bell and Keane JJ said (footnotes omitted, emphasis added):

It is a matter for concern, however, that the failure on the part of the appellant’s representative to seek an adjournment seems to have reflected a view, common to all parties, that s 500(6H), as understood in Goldie, left the Tribunal no discretion to grant an adjournment to enable the parties to deal with Ms Fatai’s “surprising” revelation. Further, the effect of s 500(6H) upon the power of the Tribunal to grant an adjournment was one of the principal issues agitated by the parties in this Court. In these circumstances, it is desirable that this Court should express its opinion on the issue. In particular, it is desirable to make it clear that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment in order to ensure that its review is conducted thoroughly and fairly.

51    Mr Chia submitted that the effect of those passages from the High Court’s decision in Uelese is that there are cases where the Tribunal has an obligation to inquire or grant an adjournment and it will be in breach of that obligation to conduct the review thoroughly and fairly if it does not do so. In DCR19’s case, the obligation arose from the fact that it was only a week before the Tribunal hearing that he was able to get legal representation and it was only the day before the hearing that counsel filed submissions raising the issue of non-refoulement. It does not matter to the Tribunal’s obligation to fulfil its function that here, as in Uelese, counsel for DCR19 did not ask for an adjournment or an opportunity to provide further evidence either at the hearing or before the decision was made. Nor does it matter that DCR19’s counsel did not suggest to the Tribunal that it make the inquiry that his counsel was attempting to make.

Minister’s submissions

52    Many of the Minister’s submissions are subsumed in the Consideration set out below. The following submissions are noted.

53    The Minister noted that in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]-[26], the High Court observed that a failure by the Tribunal to make an obvious inquiry about a critical fact the existence of which is easily ascertained might give rise to jurisdictional error. The Minister submitted that DCR19 has not pointed to any “critical fact” or “obvious enquiry” that would have been “easily ascertainable” by the Tribunal.

54    The Minister noted that, at the end of the first day of the hearing, the Minister’s lawyer asked a question designed to clarify DCR19’s claim to fear harm from President Kabila and his government:

MINISTER’S LAWYER: All right. I only have two more questions for you, Mr [DCR19] and they’re about your non-refoulement claims. You claim to fear harm, if you are returned to the DRC, from President Kabila and his government. Is that correct? Who is the current president of the Democratic Republic of Congo?

DCR19: Now?

MINISTER’S LAWYER: Yes?

DCR19: lt is Tshisekedi. The name is Tshisekedi. Tshisekedi something. I forget the full name.

MINISTER’S LAWYER: Okay, thank you. I don’t have any further questions.

55    The Minister submitted that the Tribunal did what counsel for DCR19 now says it should have done: it asked DCR19 questions that went to his non-refoulement claims. The Minister drew the Court’s attention to the following examples of questions asked by the Tribunal member at the hearing on the second day, characterising many of them as open-ended questions the response to which was not affected by the two business day rule and the Tribunal plainly took the answers into account:

(1)    At T129, the Tribunal member asked whether DCR19 would apply for a protection visa if he was unsuccessful on his application, to which DCR19 responded that he would.

(2)    At T136-138, the Tribunal asked DCR19 questions about his family ties and his family’s circumstances in the Congo to which DCR19 responded. He said that it “might be a mistake” that he had said previously that he had no ties with his family. He said that he had two living brothers and three sisters, that he talked with his mother, that he did not have contact with his siblings “most of the time but we talk” and that they live in different places. In relation to whether he could live with one of his siblings or his mother, DCR19 said “I don’t know the condition, like living there. The place they live maybe it’s enough for them and not got the space for me, because for my age to go live people’s house. Is my brother, my sister, but they got the family”.

(3)    At T138-140, the Tribunal asked a line of questions dealing directly with the claim to fear harm on the basis that, in Africa, if you are a family member of or you have been involved with “those kinds of people” you are persecuted by the government. The questioning established that none of his family members had been harmed, notwithstanding DCR19’s connection by marriage to someone who had been involved in an uprising against the Kabila government. At T139-140 the following exchange occurred:

MEMBER: So when did you leave the Congo?

DCR19: ln 2002.

MEMBER: Or 01?

DCR19: No, 2001.

MEMBER: In late 2001, was it?

DCR19: Yes.

MEMBER: All right. When did this incident with your wife’s brother, that uprising, when did that happen?

DCR19: In 2000.

…

MEMBER: It has been some time since then. You have said that the government is essentially still run by the same family, but you haven’t been with your partner since 2005 I think, is that right, that former partner?

DCR19: M’mm.

MEMBER: And you’ve said that none of your family have been targeted because of what had happened. So why is it that I should accept that you’re likely to be persecuted by the government if you return?

DCR19: Why? Because they know me. I was married for the family member. What happened here we separate, them there they don’t know I’m separated in that family, because they consider - they know me, I’m involved in (indistinct).

(4)    At T147-148, the Tribunal asked DCR19 a question about the impediments and difficulties he would face in the Congo as follows:

MEMBER: All right. Now, we have talked about the issue with your former partner and why you left the Congo. I understand that and I understand that you fear persecution by the government if you return there. I understand that that’s what you’ve told me. Yesterday - or you’ve told the tribunal that you have no place to stay in the Congo and also that you might have problems getting employment. So what I am asking you is about another thing that I have to consider, which is any impediments for you re-establishing yourself in the Congo. I know the issue about the persecution claim, but other than that, and you have already told me that you don’t think you would have a place to stay or that you might have problems with finding employment. Is there anything else that you want to tell me about impediments or difficulties you might have in re-establishing yourself in the Congo?

DCR19: You know Africa is a difficult continent. Africa is not easy the way this country is. In Africa - people live in Africa to me they living because they not got choices to be there. Any but Africa you got chance to live in the country. You must – you no hesitate; you go, because nothing good is there to Congo.

MEMBER: All right. Sorry, go on?

DCR19: The government not doing what’s supposed to do for the citizen. The system - to be in Africa, and I’m talking Africa generally, as not Congo, is a place - people survive living good there; otherwise you are a politician, or second or you’re a criminal doing bad, bad things, you can survive is in Africa. Third, people surviving good there the pastor, making church to make money. That option Africans they have got there, to survive Africa, otherwise is not options to live to Africa. Everybody trying to leave the country.

(5)    At T149: the Tribunal asked DCR19 about the absence of evidence from friends who could speak to his risk of harm in the Congo:

MEMBER: ... This is important. What you’re telling me, what your lawyers are telling me is that the claim is that if you were to return to the Congo you will be persecuted, that is you will suffer serious harm or there’s a real risk or real chance that you will suffer serious harm, significant harm if you return to the Congo. Now you telling me that you didn’t ask your friends to provide letters or that you didn’t have your daughter fly up here to give evidence before the tribunal because you were embarrassed that the community that by your own admission you’re not all that close with might gossip about you, mind [sic: might] tend to suggest - obviously I haven t made up my mind - but the suggestion might be made that you don’t really fear harm of going back because you could have bolstered your case which might have meant that you could stay here, by your friends coming in giving evidence - your daughter didn’t - by your daughter coming and giving evidence, but you’ve decided not to because it’s more important to you not to be embarrassed. Do you understand?

DCR19: Yes.

MEMBER: Do you have anything to say about that?

DCR19: No, because maybe they (indistinct) different way, because our community they talk too much. That’s why I no want this.

MEMBER: Essentially what I am saying is this; one way you can view it, one way, and I am not necessarily saying that I view it that way, but one argument that could be put is you would rather risk the chance - you would rather go back to the Congo than for the African community in Sydney to know that you were in gaol or in detention. Do you see what I’m saying?

DCR19: Yes.

MEMBER: Do you have anything more to say about that?

DCR19: No.

MEMBER: All right. Is there anything arising from that?

MINISTER’S LAWYER: Not from me, Member.

DCR19’s COUNSEL: Not from me.

Submissions in reply

56    The Court notes that in reply to the Minister’s submissions, Mr Chia submitted that the Tribunal’s questions did not cover questions that DCR19’s counsel had attempted to put to him on the first day of the hearing; they related to specific subject areas. The Tribunal did not, for instance, ask why DCR19 had said “I’m not sure I will be alive”.

Consideration

57    Legal unreasonableness is invariably fact dependent and requires a close consideration of the particular factual circumstances of the case and must be assessed against the scope, subject and purpose of the particular statutory scheme pursuant to which the impugned decision was made: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2013) 264 CLR 541 at [79]-[80] (Nettle and Gordon JJ) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42] and [48] (Allsop CJ, Robertson and Mortimer JJ).

58    Here, the statutory context is ss 499, 500 and 501CA(4) of the Migration Act and relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to the extent that they remain relevant having regard to the application of s 500 of the Migration Act.

59    Having regard to Direction 79, made under s 499 of the Migration Act, an issue that the Tribunal was required to consider was Australian’s non-refoulement obligations in respect of DCR19, if any. The Tribunal was required to weigh that issue with the other primary and secondary considerations referred to in that Direction and any other matters the Tribunal member considered to be relevant.

60    Among other things, s 500 sets out a regime for review of a delegate’s decision to refuse to revoke a cancellation decision made under s 501CA(4) of the Migration Act upon application by a person in the migration zone. Relevantly to review of non-revocation decisions, s 500 addresses the following matters:

(1)    It excludes the operation of some but not all of the provisions of the AAT Act in relation to the process that the Tribunal undertakes in reviewing a decision. Specifically, ss 28, 29(1)(d), 29(7),(8),(9) and (10), 29AC(1)(b) and 37 of the AAT Act are excluded: ss 500(6A), (6B) of the Migration Act. Section 500 makes different provision for the matters dealt with in those provisions of the AAT Act.

(2)    An application for review of the delegate’s decision must be lodged with the Tribunal within 9 days after the person was notified of the decision under s 501G(1) of the Migration Act. The application must be accompanied by a copy of the document notifying the person of the delegate’s decision and one of the sets of documents given to the person under s 501G(2) of the Migration Act: ss 500(6B) and (6C).

(3)    The Registrar of the Tribunal must notify the Minister of the application: s 500(6D).

(4)    Within 14 days after the Minister receives the notification from the Tribunal, the Minister must lodge with the Tribunal a copy of every document that is in the Minister’s possession or under the Minister’s control that was relevant to making the decision and contains “non-disclosable” information. The Tribunal may have regard to the information but must not disclose it: s 500(6F).

(5)    Where an application is made to it, the Tribunal must not hold a hearing (other than a directions hearing) or make a decision under s 43 of the AAT Act until at least 14 days after the Minister was notified that an application was made: s 500(6G).

(6)    The Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review: s 500(6H).

(7)    The Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under ss 501G(2) or s 500(6F): s 500(6J).

(8)    If the Tribunal is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant to the decision under review, the Tribunal may cause to be served a notice requiring the Minister, within a time specified in the notice, to give the Tribunal copies of the documents which are in the Minister’s possession or under the Minister’s control, and the Minister must comply with the notice: s 500(6K).

(9)    If the Tribunal has not made a decision under ss 42A, 42B, 42C or 43 of the AAT Act in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with s 501G(1), at the end of that period the Tribunal is taken to have made a decision under s 43 of the AAT Act to affirm the decision under review: s 500(6L).

61    In Uelese at [54]-[59], French CJ, Kiefel, Bell and Keane JJ discussed contextual and purpose considerations relevant to s 500(6H) and relevant provisions of the AAT Act as follows (some footnotes inserted into text):

Contextual considerations

54    Section 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise the Tribunal to give less than the “proper consideration of the matters before [it]” required by s 33 of the AAT Act.

55    Section 33(1) of the AAT Act provides generally that in a proceeding before the Tribunal the procedure of the Tribunal is within its discretion, that it is not bound by the rules of evidence, and that the proceeding is to be conducted with as little formality and technicality as, inter alia, a proper consideration of the matters before it permits.

56    Section 40(1)(c) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may “adjourn the proceeding from time to time”.

57    Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal’s understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to “ensure that every party to a proceeding … is given a reasonable opportunity to present his or her case”; s 33(1)(c), which allows the Tribunal to “inform itself on any matter in such manner as it thinks appropriate”; and s 33(2A)(a), which allows the Tribunal to “require any person who is a party to the proceeding to provide further information in relation to the proceeding”.

Considerations of purpose

58    The apparent purpose of s 500(6H) was to prevent applicants from manipulating the system in an attempt to delay deportation. The Explanatory Memorandum to the Bill that led to the enactment of s 500(6A)-(6L) of the Act stated [Australia, Senate, Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998, Explanatory Memorandum, p 9, Item 21] that:

“These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government’s concern to expedite review of character decisions against the need to ensure that the [Tribunal] has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person’s character.”

59    The purpose of ensuring the expeditious determination of applications for review under s 500 of the Act by requiring that the Minister be given “an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing” [Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at 390 [25]], which might result from a late change to the applicant’s case, is not compromised by accepting that the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross-examination by the Minister or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process.

62    The 84 day time limit for the Tribunal to make a decision under s 500(6L) is of particular relevance because its effect is “immutable”: see Uelese at [116] (Nettle J). If the Tribunal fails to make a decision within that timeframe, the delegate’s decision would be affirmed by force of s 500(6L).

63    In this case, the Tribunal was required to make a decision by 16 May 2019. The days of the hearing were Thursday and Friday, 2 and 3 May 2019. The transcript of the proceedings before the Tribunal indicates that the Tribunal member had struggled to find the two hearing days and was required to complete reasons in relation to other matters as well (see [45] above). The Court accepts the Minister’s submission that, when the two business day requirements of ss 500(6H) and 500(6J) are also taken into account, there was a very tight timeframe in which any effective adjournment might have been achieved, having regard to time required for DCR19 to file new evidence, two business days to pass before an adjourned hearing and time for the Tribunal member to complete reasons by 16 May 2019 and the Tribunal member’s workload. The allegation of legal unreasonableness must be considered having regard to this chronology.

64    DCR19’s response to these factual constraints imposed by the legislative framework was that all the Tribunal needed to do was ask DCR19 the questions that his counsel had tried to ask in examination in chief and this would not have resulted in any prejudice to the Tribunal’s capacity to meet the deadline imposed by s 500(6L). DCR19 also submitted that the Minister’s contention that the Tribunal did, in substance, do that by asking the questions set out at [55] above should be rejected because those questions did not address all of the issues raised by questions which DCR19’s counsel had attempted to ask at that hearing. For instance, the Tribunal did not ask DCR 19 why he said “I’m not sure if I’ll be alive” (see [47] above).

65    The Court accepts the Minister’s submission that DCR19’s submissions proceeded on a misconception about the Tribunal’s role. Further, the Court finds that the Tribunal’s observation at DR[263] as to the paucity of information on the basis of which to assess DCR19’s non-refoulement claim do not establish a sound foundation for the imposition on the Tribunal of obligations to inquire or adjourn in this case.

66    As found in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57] (Gummow and Hayne JJ, Gleeson CJ agreeing at [1]), it is for the review applicant “to advance whatever evidence or argument [he or she] wished” and “for the Tribunal to decide whether [his or her] claim had been made out”. It is necessary for the review applicant to put before the decision-maker sufficient evidence and information to permit the positive finding he or she says should be made: see Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68]. It is not for the Tribunal to make out a review applicant’s case for him or her, especially where (as here) the person was represented by a solicitor and counsel (cf. Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; (1985) 6 FCR 155 (Wilcox J) at 169-170).

67    The Court accepts the Minister’s submission that the Tribunal’s comment at DR[263] arose directly out of the way DCR19 chose to conduct his case from the time he sought revocation of the cancellation decision up to the time the Tribunal rendered its decision. Although the Tribunal referred to there being “very little evidence before it to make a thorough assessment of the Applicant’s claims”, DCR19 has not shown, by adducing evidence or submission, what evidence he would have given had he been asked by the Tribunal member to answer the questions asked of him by his counsel or had he been granted an adjournment that the Tribunal would have been put in a position to make a different assessment. Further, the Tribunal did not say that it was actually disabled from making a proper and lawful assessment of non-refoulement.

68    DCR19 did not raise any fear of serious harm in the Congo in his Personal Circumstances Form, or in the handwritten letter to the delegate dated 17 June 2018 or in in the typewritten letters to the Department in response to the possible revocation of his visa bearing a fax transmission date of 24 December 2018. As noted by the Tribunal at DR[277], DCR19 only raised the claim that he feared persecution in the Congo after DCR19 had received the Minister’s written contentions and once his solicitor became involved with the application before the Tribunal, a week before the hearing and after a substantial number of the 84 day period that the Tribunal had to make a decision.

69    DCR19 told the Tribunal that he is illiterate in English and that other people, whose names he could not remember, had assisted him with those documents (see DR[77]). Mr Chia made the same submission to this Court. He submitted that the Court should have regard to the fact that, when DCR19 was legally represented in 2008, he did raise a fear of returning to the Congo. Mr Chia submitted that the fact that DCR19 only obtained the assistance of lawyers late in the Tribunal’s process formed the basis for imposing an obligation on the Tribunal to make inquiry about the issues addressed by the questions asked of DCR19 by his counsel at the hearing or permit an adjournment for further evidence to be adduced.

70    In the Court’s view, it was entirely open to the Tribunal to make the finding that DCR19 did not have a subjective fear of serious harm upon return to the Congo having regard to the way DCR19 responded to the many opportunities he had to raise the non-refoulement claim in seeking to have the cancellation decision revoked. Although his relationship with his children was clearly prominent in his mind, it is unlikely that a genuine fear of serious harm upon return to the Congo would not be sufficiently prominent to mention where there was a clear opportunity given for him to do so. The Personal Circumstances Form contained plainly worded specific questions addressed to that issue (contrary to DCR19’s assertion in his submissions to the Tribunal) to which DCR19 did not respond, while he did respond to other questions. No reason has been offered for why those assisting him would have addressed some but not all of the questions in the Personal Circumstances Form or the other correspondence he provided to the Department. It was open to the Tribunal to find that it is also unlikely that, if DCR19’s ex-wife perceived that there was a real risk of serious harm to him in the Congo, she would focus solely on issues relating to DCR19’s relationship with his daughter in the material which she provided to the Department and the Tribunal before the non-refoulement issue was raised in the Minister’s contentions to the Tribunal. It is also notable that when the issue was raised in the materials provided to the Tribunals in late April 2019, neither DCR19 nor his professional advisors sought to address current circumstances in the Congo.

71    DCR19 has not adduced any evidence to show that a “useful result” could actually have come from an inquiry by the Tribunal beyond those that were in fact made by the Tribunal during the hearing as discussed in the Minister’s submissions set out above: see Karan v Minister for Home Affairs [2019] FCAFC 139 at [30] (Rares, Griffiths and Burley JJ). Albeit that DCR19 did respond to one of his counsel’s questions with “I’m not sure if I’ll be alive”, he has not said what further information he would have provided (in addition to the information he provided in response to the Tribunal’s questions) had he been asked the questions by the Tribunal that his counsel had sought to ask. He has not said what additional material he would have put forward within any necessary timeframe if an adjournment had been given. To the extent that his claim to protection relied on fear of a government dominated by the Kabila family, DCR19’s evidence was that there is a different President. There is nothing in evidence which suggests that he has anything to fear from his government other than his wife’s unsupported claim made in her affidavit dated 26 April 2019 that if DCR19 was forced to return to the Congo, he would face a “continuing serious threat, as the current government of the DCR will not hesitate to eliminate any opposition”. It is notable that DCR19’s ex-wife did not address the fact that there had been a change of government since her brother participated in a rebellion more than 16 years ago.

72    The Court accepts the Minister’s submission that it is mere speculation to suggest that any answer to the questions asked by DCR19’s counsel or anything put on after an adjournment would have benefited him, let alone that it would have been something critical to the review. In those circumstances, even if the Tribunal erred by failing to ask the questions or grant an adjournment, that error would not be material because an adjournment would not realistically have led to a different decision: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ) (SZMTA).

73    In the Court’s view, in considering the reasonableness of the Tribunal’s conduct, it is relevant that:

(1)    DCR19 had the opportunity to make a non-refoulement claim and put on evidence relevant to it from approximately 21 February 2019. It was only in late in the Tribunal’s process, well into the 84 day period allowed for the Tribunal to make a decision which favourable to DCR19, and after the Minister’ Statement of Facts, Issues and Contentions had been given to the Tribunal that DCR19 put on evidence about non-refoulement. That evidence was the witness statements made by DCR19 and his ex-wife on 26 April 2019, neither of which addressed the obvious issue of the current circumstances in the Congo.

(2)    DCR19’s legal advisors did not, before or during the hearing, seek an adjournment of the Tribunal hearing to allow DCR19 an opportunity to address the obvious question of why he feared serious harm in the Congo more than 16 years after the uprising against the Kabila government and after a new President had been appointed or to provide information relevant to the questions which DCR19’s counsel has sought to ask.

(3)    Any period of adjournment would necessarily have been short.

(4)    DCR19’s counsel did not ask the Tribunal member to ask DCR19 the questions his counsel had put to him at the hearing so that the answers could be taken into account having regard to the authority of Uelese.

(5)    When the Tribunal member raised the issue of how the hearing would proceed with respect to the operation of ss 500(6H) and 500(6J), DCR19’s counsel was asked expressly if there was anything she wished to say and counsel indicated that she did not: see [44] above.

(6)    It is clear from the whole context of the quoted material at [45] above the Tribunal member was not directing the Minister’s legal representative to make objections in relation to material which fell foul of ss 500(6H) and 500(6J). The Tribunal member was indicating a preference for dealing with objections as the occasion for them arose rather than at the end of the hearing.

(7)    The Tribunal is not required to give reasons for taking (or not taking) procedural steps in the course of the review: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 at [37]-[40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The fact that there is no reference in the Tribunal’s decision record to the issue of an adjournment or asking DCR19 the same questions as his counsel has done does not support an inference that it did not consider doing so: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 (2015) 258 CLR 173 at [25] (French CJ, Bell, Keane and Gordon JJ). In any event, questions asked by the Tribunal member went to the substance of the claims made by DCR19.

74    This case is distinguishable from Uelese. There is no evidence that any of the legal representatives of the parties or the Tribunal member was under a misapprehension about how ss 500(6H) and 500(6J) operated. A review applicant will generally be bound by the forensic choices made by his or her legal representatives in running the case. The making of new claims in a review applicant’s own evidence in chief is exactly the issue which ss 500(6H) and 500(6J) were designed to address and no explanation has been offered for why a fear of death (as opposed to persecution) was not raised previously. The fact that DCR19 was not legally represented until a week before the hearing is not an adequate explanation when DCR19 and his ex-wife both put on new evidence addressed to his refoulement claims for the first time in the proceedings during that time and written submissions prepared by his lawyers were filed the day before the hearing (without request for adjournment). In the Court’s view, to accept the position put by DCR19 would have the effect of subverting Parliament’s clear purpose in enacting ss 500(6H), 500(6J) and 500(6L) and it would be inconsistent with the principles discussed at [66] above.

75    The Court discerns no legal unreasonableness in the course taken by the Tribunal. This ground is not make out.

Failure to consider ground

76    This ground raises the issue of whether the Tribunal failed to consider a claim or relevant evidence regarding non-refoulement.

DCR19’s submissions

77    DCR19 submitted that:

(1)    The Tribunal’s finding that DCR19 did not face a real chance of significant harm if he were returned to the Congo was based on its conclusion that he did not have a subjective fear of persecution in the Congo.

(2)    The Tribunal’s conclusion that DCR19 did not have a subjective fear of persecution in the Congo was on the basis that he and his ex-wife had only claimed that he faced a “continuing, serious threat” after his solicitor was retained in the matter. The Tribunal concluded that DCR 19’s ex-wife only made the belated claim because their eldest daughter desperately wished for him to remain in Australia (see DR[277], [286]). Contrary to the Minister’s submissions, at DR[277] the Tribunal does not say that DCR19 only raised his claim to fear harm in the Congo in the proceedings after the Minister raised the non-refoulement issue, the statement is that he had not raised the claim at all before his solicitor became involved and that is not true.

(3)    However, in his application for a protection visa lodged on 26 May 2008, DCR19 had claimed to have been persecuted in the Congo and that if he returned to that country he would be “still targetted” (see [6] above). That material was before the Tribunal.

(4)    In 2002, his ex-wife had also claimed that DCR19 was “wanted to fight by the rebels” and that all her brothers had had to leave the Congo. That material was before the Tribunal.

(5)    The Tribunal’s reasoning relied on no such claim having been made previously. The existence of the material before the Tribunal necessarily means that the Tribunal had overlooked these claims and did not consider this evidence in finding that DCR19 did not have a subjective fear of harm and therefore did not face a real chance of significant risk of harm upon return to the Congo.

(6)    Accordingly, there were claims and evidence which, if accepted, were relevant and significant to DCR19’s claims based on Australia’s non-refoulement obligations. While the Tribunal might not have to accept the claims, it did have to consider them and decide what weight any breach of Australia’s non-refoulement obligations should be given in deciding whether to affirm the non-revocation decision: see Suleiman at [23]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [40], [98] (Robertson J).

(7)    The absence of such past claims having been made was central to the Tribunal’s course of reasoning. The mere fact that DCR19 and his ex-wife had in fact made claims before his solicitor became involved in the matter meant that the Tribunal’s reasoning in relation to his subjective fear of harm could not stand and amounts to jurisdictional error.

(8)    Relevant to these propositions is the Full Court of the Federal Court’s decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ)(WAEE). “Considering” a claim requires that it be given “proper, genuine and realistic consideration”: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at [25] (Gummow J). See also Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (Griffiths, White, Bromwich JJ).

Minister’s submissions

78    The Minister noted the following matters:

(1)    The Tribunal expressly referred to the claims made by DCR19 in his application for a protection visa filed on 26 May 2008 at DR[41] and expressly referred to the matters referred to at [77(3)] above;

(2)    The Tribunal discussed DCR19’s ex-wife’s application for a protection visa made in 2002 at DR[35]. While the focus of that discussion is the fact that DCR19 did not make separate claims for protection, but rather applied as a member of his ex-wife’s family unit, it is not necessary for the Tribunal to refer to every piece of evidence before it, relying on Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320; (2018) 362 ALR 48 at [48]-[49] (Besanko, Barker and Bromwich JJ).

(3)    At DR[276] (see [38] above), the Tribunal noted that DCR19 did not make his own claims to fear harm in the applications which his wife made in 2002 and 2003. That is factually true.

(4)    In relation to the application which DCR29 made in May 2008 for a protection visa, the Tribunal noted (at DR[276]) that he gave evidence at the hearing that his migration agent applied for the visa and he had no idea that he was applying for a protection visa. It is not accurate to say the Tribunal either overlooked it or failed to consider its existence. Further, it is also true that, as found by the Tribunal (at DR[271]), Australia has yet to determine whether DCR19 is a person in respect of whom Australia owes non-refoulement obligations.

(5)    Contrary to DCR19’s submissions, the Tribunal’s finding that there was “only a very remote possibility” that Australia would breach any non-refoulement obligations was because the Tribunal did not consider that DCR19 faced a real risk, or real chance, of serious or significant harm on return to the Congo – see DR[279]. The reasons for that finding were not, as DCR19 submitted, “based” on DCR19 not having a subjective fear of harm – see in particular the Tribunal’s reasoning at DR[280]-[289] where the Tribunal considered these matters which led to the conclusion that there was only a remote possibility of harm to DCR19 if he returned to the Congo:

(a)    DCR19 never suffered harm or persecution in the past when he was living in the Congo.

(b)    In relation to DCR19’s claim that, in Africa, people looking to harm an adversary would also seek to harm or members of the adversary’s family, neither his mother nor any of his five siblings who remain in the Congo had ever been harmed or threatened as a result of their association with DCR19 or his ex-wife.

(c)    DCR19 has been separated from his ex-wife since 2005. While alleged persecutors in the Congo might not know that, he has a different surname from his ex-wife and her family and more than 16 years had passed so that it was very unlikely that any potential persecutors would remember, recognise or want to harm him on the basis that he was married to someone whose family members had opposed the government 16 years ago.

(d)    There is no current evidence before the Tribunal that anyone in the Congo was currently threatening or seeking to harm DCR19.

(e)    While it is unnecessary for DCR19 to have a subjective fear of harm to come within the complementary protection regime, his subjective lack of fear is relevant to determining whether there is an objective real chance that he will face serious harm. The Tribunal noted that neither DCR19 nor his ex-wife raised the non-refoulement before the Minister raised the issue; all material filed before then focused on the potential effect on DCR19’s daughter of his removal from Australia.

(f)    The Tribunal considers that likely that DCR19 will not be found to meet the criteria for protection under either of ss 36(2)(a) or 36(2)(aa).

(6)    Accordingly, even if the Tribunal had failed to consider the claims made in DCR19’s 26 May 2008 application for a protection visa and the material specific claims regarding DCR19 made by his ex-wife in her 2002 protection application referred to above, no jurisdictional error results. That evidence was not significant or important to the Tribunal’s reasoning and while any such failure is not conceded by the Minister, it would not have been material to the Tribunal’s decision and it could not have resulted in a different outcome: see SZMTA at [45]-[46]; SZRKT at [111]-[112].

(7)    The Tribunal’s point was that DCR19 did not now, in 2019, have a subjective fear of harm. That view was reached for the reasons given at DR[274]-[275] and [285]-[286]. Whether or not DCR19 made a claim in 2008, 11 years before the Tribunal made its decision, is not of sufficient significance or importance to the Tribunal’s finding, given the effluxion of time since he had been in the Congo and the obvious importance placed by the Tribunal on DCR19’s subsequent failure, in 2019, to raise any such fear of harm.

(8)    Even if the Tribunal had failed to consider the claims made in DCR19’s 26 May 2008 application for a protection visa and the material specific claims regarding DCR19 made by his ex-wife in her 2002 protection application referred to above, no jurisdictional error results. That evidence was not significant or important to the Tribunal’s reasoning and while any such failure is not conceded by the Minister, it would not have been material to the Tribunal’s decision and it could not have resulted in a different outcome: see SZMTA at [45]-[46]; SZRKT at [111]-[112].

Consideration

79    The failure to consider ground should be dismissed for the reasons given by the Minister.

80    It is appropriate to make the following other observations. As DCR19 submitted, in WAEE at [47] the Full Court said:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

81    In this case, the Tribunal was plainly aware that DCR19 had applied for a protection visa in May 2008 (see DR[41] and [276]). At DR[276] the Tribunal expressly refers to that fact in noting DCR19’s evidence that he had no idea that he was applying for a protection visa at that time. That remark provided context for the Tribunal’s remarks at DR[277] concerning the fact that DCR19 only raised non-refoulement claims after he had received the Minister’s written contentions (which noted that no such claim had been made up to that point in DCR19’s attempts to have the cancellation decision revoked), which supported the view that he did not have a subjective fear of persecution in the Congo. In the context of DR[274]-[277], it is plain that DR[277] refers to the manner in which DCR19 conducted his application for revocation of the non-cancellation decision. This is not a case where the Tribunal referred to a material fact or claim with which it did not subsequently deal in performing its statutory task.

82    On the evidence, it was open to the Tribunal to find that DCR19 did not have a subjective fear of serious or significant harm if he returned to the Congo. However, the ultimate finding, that there was only a remote chance that he would suffer serious or significant harm if he was returned to the Congo was plainly made on the broader basis discussed at [78(5)] above.

83    This ground is not made out.

Conclusion

84    As neither ground of the application for judicial review has been made out, the application is dismissed with costs.

Associate:

Dated:    17 April 2020