FEDERAL COURT OF AUSTRALIA

GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The decision of the second respondent made on 24 June 2019 is set aside.

3.    The matter is remitted to the second respondent for determination according to law.

4.    The first respondent must pay the applicant's costs of and incidental to the application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant is a national of South Sudan. He seeks judicial review of a decision of the Administrative Appeals Tribunal. His visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test. A delegate of the first respondent (Minister) had decided under s 501CA(4) of the Migration Act not to revoke the cancellation and the Tribunal affirmed that decision.

2    The applicant was 21 years old at the time of the Tribunal's decision. He had what the Tribunal described as a 'difficult upbringing' in South Sudan. His mother separated him and his sister from their father when they were children, and then abandoned them to the care of a maternal grandmother. The applicant's father did not know where the applicant and his sister were for a long time. He located the children after he came to Australia, and they came to join him. Until it was cancelled, the applicant was in Australia under a Class AH Subclass 101 (Child) visa.

3    The applicant was 16 years old when he arrived in Australia. He commenced offending approximately two years after that, and has been convicted of numerous offences since then. There was evidence that the applicant had been abusing alcohol regularly from about 18 years of age, being in the habit of drinking a bottle of Jim Beam whiskey each day. The offences include multiple convictions for burglary, a conviction for assault of a public officer, a conviction for common assault, and two convictions for separate incidents of aggravated robbery. The assault of a public officer was for throwing a brick at a police cadet who was trying to apprehend the applicant when he was fleeing from an incident that had been reported to police. The common assault involved punching a shop assistant twice in the face when the attendant approached the applicant while he was trying to take a pair of jeans from the shop. The incidents of aggravated robbery involved taking mobile phones from victims at different train stations on the same night. The applicant was in the company of juveniles at the time. Both victims were pushed or dragged to the ground and punched and kicked. One of the victims was a minor, being 15 years old. These last two offences resulted in the applicant's imprisonment for two years. On the basis of the applicant's criminal record, the Tribunal found that the primary considerations of the protection of the Australian community and the expectations of that community both weighed heavily against revocation of the visa.

4    Section 501CA(3) requires the Minister, as soon as practicable after cancelling a person's visa under s 501(3A), to give the person a written notice that sets out the decision to cancel and certain relevant information, and to invite the person to make representations to the Minister about revocation of the decision. Under s 501CA(4), if the person makes representations in accordance with the invitation, then the Minister may revoke the cancellation if the Minister is satisfied either that the person passes the character test or that 'there is another reason why the original decision should be revoked'. The Minister extended this invitation to the applicant and the applicant made representations in accordance with it. But a delegate of the Minister refused to revoke the mandatory cancellation and on 24 June 2019, after a hearing at which the applicant was unrepresented, the Tribunal affirmed the delegate's decision.

5    The Minister has made directions under s 499 of the Migration Act about how certain decision-makers must exercise the discretion under s 501CA(4) and comparable provisions. Ministerial Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) is the relevant direction and was in force at the time of the Tribunal's decision in this case. Under s 499(2A), the Tribunal was required to comply with the direction. It was common ground that the direction applied to the Tribunal in making the decision under review here.

6    The present application raises issues as to whether the Tribunal correctly addressed the consideration of the best interests of relevant minor children, which is a mandatory consideration under Direction 79. The applicant also contends that the Tribunal failed to give genuine consideration to representations he made that he feared harm if he were to return to South Sudan. He also contends that the Tribunal's finding that any non-refoulement obligations would be adequately addressed if he applied for a protection visa reflected a misunderstanding of the Migration Act.

7    For the following reasons, the Tribunal fell into jurisdictional error in relation to its treatment of the applicant's representations as to the harm that would befall him on return to South Sudan, and in relation to certain material he advanced in support of those representations. The application will be allowed and the matter will be remitted to the Tribunal.

Grounds 1 and 2

8    The applicant has three siblings who were under 18 at the time of the Tribunal's decision. I will refer to them by their first initials, they were: T, a brother who was 15; L, another brother who was 12; and A, a sister who was 8. The first two grounds of review concern the best interests of these children, and it is convenient to address the grounds together.

9    Paragraph 13(2)(b) of Direction 79 provides that in deciding whether to revoke the mandatory cancellation of a visa, there are three 'primary considerations', one of which is the 'best interests of minor children in Australia'. Paragraph 13.2 is headed 'Best interests of minor children in Australia affected by the decision'. Paragraph 13.2(1) provides that decision-makers 'must make a determination about whether revocation is in the best interests of the child'. Under paragraph 13.2(3), if there are more than one relevant children, their best interests should be given individual consideration to the extent that their interests may differ. Paragraph 13.2(4) sets out a number of factors that 'must be considered where relevant' in considering the best interests of the child. One of these, on which the applicant relied, is paragraph 13.2(4)(d): 'The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways'.

10    By ground 1, the applicant contends that the Tribunal failed to make a determination about whether revocation was in the best interests of the three children. He also contends that the Tribunal did not consider the likely effect that any separation from the applicant would have on each of the children, and so failed to comply with paragraph 13.2(4)(d).

11    By ground 2, the applicant alleges in the alternative to ground 1 that if the Tribunal did make a finding about the best interests of the children, its finding was that the consideration was of neutral weight in relation to the revocation of the cancellation of the visa, and this amounted to a failure to comply with Direction 79. By ground 2 he also claims that the finding was not open, or was legally unreasonable.

The evidence about the children

12    Questions about whether the Tribunal gave a matter adequate consideration or made an illogical or irrational finding need to be addressed in the context of the evidence about the best interests of the children that was before the Tribunal. That evidence was not extensive. In one of the forms the applicant submitted to the Minister requesting the revocation of the cancellation, the applicant included in the box titled 'Reasons for Revocation' a statement to the effect that everything he has is in Australia, that he loves his brothers and sisters who are all here, and that losing them will affect him. (The statement goes on to talk about not having spent much time with someone, in a way which does not make it entirely clear to whom the applicant is referring, but it is probably referring to his father, not the children.)

13    In another form the applicant listed T, L and A as his brothers and sister in Australia, giving their dates of birth. He also listed his adult sister who, it appears, is the one who had grown up with him in South Sudan (and, before 2011, the Republic of the Sudan). In the same form he referred to certain letters and cards of support, and said that they evidenced that his family and community were already disturbed at the prospect of being separated from the applicant. He also commented on the likely effect on his father and said 'I'm scared of losing them'.

14    The letters and cards of support to which the applicant referred were in evidence. They included a letter dated 26 August 2017 from the applicant's adult sister which said:

We really miss you, wish you could be here with us. [A] really misses you so much, she wishes you could be here for Christmas and eve… Everybody is writing you a letter, including [A], [T], [L] and Dad.

I hope you are okay and happy, but don't worry because we are praying for you and we hope God hears our prayers and accepts it

… so we really miss you.

(This quote and the following quotes from other family members have been corrected in minor ways.)

15    There were short notes from A expressing her love and admiration for the applicant, with drawings. There was a short note from L saying that he wanted to visit the applicant and another short note saying 'we are missing you so much' and '[w]e hope you come home soon'. There was a letter from the applicant's father which also said 'we missed you too much. We here as a family we always thinking of your coming back home'. There is also a note from T expressing a wish that the applicant can come home soon and saying 'we miss you and love you'.

16    The applicant filed a statement of facts, issues and contentions (SOFIC) with the Tribunal. There is no mention of the children in that document other than to say that the applicant was convinced he would live a positive new life with his family. There are references to his 'little sister' whom he has looked after as the 'big brother', but I infer from the use of the singular as well as their history together that this is a reference to his adult sister, who is some 19 months younger than the applicant.

The Tribunal's reasoning about the children

17    The part of the reasons of the Tribunal on the question of the best interests of T, L and A was brief. After setting out the terms of paragraph 13.2 of Direction 79, it said, in its entirety:

66.    The Applicant has three minor siblings born to his father and step-mother in Australia, namely TB born in 2004, LB born in 2007, and AB born in 2010. The Tribunal has regarded the interest of each child separately.

67.    The Applicant has provided a number of letters, notes and drawings from his siblings which clearly show that they miss and love him. The Applicant says that he wants to be part of their lives in the future and, by improving himself, he wants to contribute both financially and as a role model to each.

68.    The Respondent submits that this consideration is of neutral weight as the relationship between the Applicant and his siblings is non-parental, there is no evidence that he has provided any personal or financial support to his siblings and, for a significant period of time, the Applicant has been in custody. It is submitted that there is no evidence upon which the Tribunal can rely to suggest that the Applicant will play a positive or significant role in their future upbringing.

69.    There is no evidence that the Applicant will be impeded in maintaining contact with his siblings in the future should he return to South Sudan.

Conclusion: Primary Consideration B

70.    The Tribunal accepts that the Applicant's siblings love him and will miss him should he return to South Sudan. However, having regard to the whole of the evidence, the Tribunal finds that Primary Consideration B is of neutral weight in respect of the revocation of the Applicant's visa cancellation.

18    The transcript of the hearing before the Tribunal was not before the court so it is not possible to be sure whether anything was said about the children at the hearing. The statement by the applicant recorded in paragraph 67, that he wants to be part of their lives and to contribute both financially and as a role model, does not appear in the documents, so the applicant may well have said it in the hearing.

19    It is also relevant to note that in the section of its reasons concerning the strength, nature and duration of ties to Australia, the Tribunal said that there was no evidence upon which it could make a determination about the nature and extent of the applicant's contact with his siblings.

20    The contention that the Tribunal failed to have regard to the likely effect on the children of separation from the applicant is different to the other errors which he claims the Tribunal made, and will be considered below. But the other errors should be considered together. As developed in submissions, they were variously described as:

(1)    a failure to make a determination about the best interests of the children;

(2)    a determination, impermissible under Direction 79, that the best interests of the children should be given neutral weight;

(3)    conflation of the question of whether the best interests of the children were in favour of revocation with the distinct question of the weight to be given to those interests; and

(4)    an irrational or legally unreasonable finding that the best interests of the children were neutral in relation to revocation.

How did the Tribunal reason to its conclusion about Primary Consideration B?

21    In order to decide whether the Tribunal did fall into any of these errors, it is necessary to analyse its written reasons to determine how it did arrive at its conclusion that Primary Consideration B was of neutral weight in respect of the revocation of his visa cancellation.

22    The Tribunal expressly accepted that the children loved and missed the applicant. Apart from the initial paragraph introducing the children and their ages, that was the only finding of fact that the Tribunal expressly made in this part of its reasons. But that was not the only relevant factor to which it referred. It also set out the submission of the Minister as to the weight that should be given to the primary consideration of the best interests of the children. The Minister submitted that the consideration should have neutral weight. The submission was based on four matters: the relationship between the applicant and the children was non-parental; there was no evidence he had given them any personal or financial support; for a significant period he had been in custody; and there was 'no evidence upon which the Tribunal can rely to suggest that the Applicant will play a positive or significant role in their future upbringing'.

23    The Tribunal did not say in terms that it accepted the Minister's submission or that it accepted the truth of any of the four matters. But in my view that acceptance should be implied from its reasons, read fairly. The ultimate finding, that the consideration should have neutral weight, is the finding that the Minister submitted should be made. The first three of the four matters on which the Minister relied were incontrovertible; in reciting them without demur, the Tribunal implicitly accepted them. As to the fourth matter, the Tribunal noted the applicant's professed wish to contribute financially and as a role model. But given the applicant's unfortunate history and the lack of any other material supporting his professed intention, it can be readily inferred that the Tribunal did not consider that to have sufficient weight to require further comment. In my view, the Tribunal accepted what the Minister said, so there was no basis to conclude that the applicant would play a positive role in the upbringing of the children. In addition, the Tribunal said there was no evidence that the applicant would be impeded in maintaining contact with his siblings in the future should he return to South Sudan.

24    Read in all that context, the conclusion at [70] of the Tribunal's reasons does not demonstrate an irrational view. Rather, the Tribunal accepted that, even though the children loved and would miss the applicant, due to other matters the effect of separating them from him would not be disadvantageous to them. Immediately after accepting that they loved and missed the applicant, the Tribunal said that '[h]owever, having regard to all the evidence' the consideration was of neutral weight. That conveys a view that there was evidence that neutralised or weighed against the conclusion which would follow from the fact that the children loved and missed the applicant, if that fact were taken alone. That evidence could only have been the largely incontestable matters on which the Minister relied in his submission, as well with the lack of any evidence that the children could not maintain contact. That last matter must also be understood in a context where there was no evidence about the extent to which the applicant and the children contacted or spent time with each other while he was in Australia, other than what can be inferred from the fact that he had spent a significant period of time in custody. So the Tribunal's reference to 'all the evidence' indicates that the Tribunal accepted those matters and the submission which the Minister based on them. So understood, the Tribunal's conclusion about the best interests of the children was not inexplicable. The four elements of the Minister's submission to which I have referred were capable of reducing the weight to be put on the best interests of the children, and in my view the Tribunal's reasons show that it accepted that they did.

The Tribunal failed to make a determination about the best interests of the children

25    Nevertheless, as a matter of logic, those elements were not such as to entirely negative or neutralise the love the children held for the applicant. So they could not, logically, lead to a conclusion that the best interests of the children taken as a whole neither weigh for nor against revocation. A contrast can be drawn between those elements and, for example, other factors to which paragraph 13.2(4) of Direction 79 adverts, such as evidence that the non-citizen has abused or neglected the child (of which there was no suggestion here). As I discussed in Meyrick v Minister for Home Affairs [2020] FCA 677, a decision published at the same time as this one, those are matters which indicate that revoking the cancellation of the visa will be against the interests of the child. In some cases, factors of that sort will need to be balanced against factors which point the other way, such as a positive emotional connection between the non-citizen and the child. Sometimes, the balance will be struck so that the conclusion is that revocation is neither in the interests of the child nor against those interests (see Meyrick at [39]-[41], [64]-[65]).

26    The difficulty here is that the matters addressed in the Minister's submission, which the Tribunal accepted, are not matters of that kind. They were not capable of entirely countering or neutralising the significance, in the overall weighing exercise, of the love the children held for the applicant. They could only reduce the weight to be given to the interests of the children as a whole. They all concerned the absence of factors which would lend greater weight to concern about the impact of non-revocation on the children: factors such as a parental relationship, frequent contact, financial and emotional support, and taking a positive role in the children's upbringing.

27    The brevity of the Tribunal's reasons makes it difficult to identify the exact process of reasoning which led to its conclusion. There are three possibilities. One is that the Tribunal decided that the best interests of the children were in favour of revocation, but that the other matters to which it referred reduced the weight that should be given to their best interests, which ultimately should be given no ('neutral') weight in the overall exercise of weighing the primary and other considerations. The second possibility is that the Tribunal decided that the interests of the children neither weighed for nor against revocation, with the result that they should be given neutral weight. The third possibility is that the Tribunal did not make a determination about where the best interests of the children lay at all, but simply decided on the basis of the other matters to which I have referred that the consideration should be given neutral weight.

28    In my view it is likely that the third possibility is the correct one. The Tribunal did not say that the best interests of the children weighed in favour of revocation, or that they were, on balance, neither here nor there. The Tribunal had an obligation under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. That obligation means that without sound reason to the contrary, the court should proceed on the basis that if the Tribunal did not state a finding, it did not make the finding: see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [55] (Kenny J, referring to the similar obligations in s 430 of the Migration Act). Also, on the analysis above it is unlikely that the Tribunal did determine that the best interests of the children weighed in favour of revocation, because if it had, it would have had to give those interests some weight, even if it determined that the weight to be given was marginal.

29    In my view the inference that should be made is that the Tribunal, in the brevity of its reasons, simply reached an intuitive conclusion that the best interests of the children should be given neutral weight. That was an error. There were relevant children and that fact was known to the Tribunal, so Direction 79 obliged the Tribunal to make a determination about their best interests: see Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61], [64].

30    Another way of describing the error which counsel for the applicant advanced was that the Tribunal conflated two steps in its reasoning which should have been kept analytically distinct, that is: making a determination about whether revocation is, or is not, in the best interests of the children; and deciding what weight to give to those interests. I doubt it is necessary in all cases for a decision-maker to articulate the steps separately in that way, but I accept that in the present case, the failure to do so led to the error of failing to make a determination about the best interests of the children. The Tribunal went straight to the question of weight.

31    To be clear, it is not the neutrality of the conclusion, by itself, which means the Tribunal's reasoning was erroneous. 'Sometimes the best decision "about" whether cancellation is, or is not, in the best interests of the child may be that it is neither': Uelese at [67] (French CJ, Kiefel, Bell and Keane JJ); and see Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 at [40] (Siopis, Griffiths and Charlesworth JJ). The error here is that the Tribunal appears to have reached its conclusion that the children's best interests should be given neutral weight without making any determination about where those interests lay.

32    To put it in terms of the list of possible errors advanced by the applicant which I have given above, I accept that the Tribunal did fail to make a determination about the best interests of the children, and that it made that error because it effectively conflated the question of whether the best interests of the children were in favour or revocation with the distinct question of the weight to be given, by only making a finding on the latter.

33    This could also be said to involve a want of logic, because in deciding to give neutral weight to the best interests of the children, the Tribunal did not ascribe weight to the fact that they loved and missed the applicant, without finding that there was any factor (such as abuse) which could have negatived that fact. It is open to characterise the Tribunal's conclusion concerning the best interests of the children as illogical or irrational in the sense explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131]. If so, a question would then arise as to whether it was the sort of extreme illogicality which subsequent decisions have held is required in relation to the standard outlined in SZMDS if jurisdictional error is to be found: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] (Robertson J); SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84] (McKerracher J, Reeves J agreeing); and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ). However given the view I have reached as to materiality, it is not necessary to consider that question. I now turn to express that view.

The error was not material

34    In order to be a jurisdictional error empowering the court to set aside the Tribunal's decision, the error must have been material to the outcome, in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. That is, the Tribunal's breach of the requirement to make a determination about whether revocation was in the best interests of the children was only a jurisdictional error if compliance with that requirement could realistically have resulted in a different decision: SZMTA at [45] (Bell, Gageler and Keane JJ). Counsel for the applicant, properly, conceded as much.

35    In SZMTA at [46] Bell, Gageler and Keane JJ held:

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

In this case, the Minister submitted that the error was not material in that sense, so materiality was in issue.

36    I agree with the Minister that even if the error I have identified had not been made, the Tribunal's view as to the weight to be given to the best interests of the children would, in substance, have been the same. The Tribunal did consider all the evidence. That evidence was limited. The materials did not indicate whether, if the cancellation of the visa was not revoked, the effect on the children would rise above mild melancholy, or where it would fall on the possible spectrum of reactions between that and overwhelming distress. There was only a brief, general and unclear statement in one of the forms that the applicant's family and community (not the children specifically) were disturbed at the prospect of separation from him. The matters to which the Minister referred in his submission to the Tribunal were further reasons for discounting the impact of non-revocation on the children. It is therefore unsurprising that the evaluative judgment that the Tribunal made in the end was that the best interests of the children should be given neutral weight. And in the course of reaching that conclusion the Tribunal reiterated that the children loved and missed the applicant. It had that fact in mind. So it would have made no difference to the ultimate weighting if it had taken the extra step of saying that the fact meant that the best interests of the children favoured revocation.

37    Perhaps, to avoid the illogic I have indicated above, the Tribunal should have put its conclusion in terms of giving minimal, marginal or negligible weight to the consideration, rather than neutral weight. But there was no realistic prospect that the Tribunal would give sufficient weight to the interests of the children to outweigh the serious concerns the Tribunal held about the protection of the Australian community and the expectations of that community.

Did the Tribunal fail to consider the likely effect that separation would have on the children

38    This aspect of the first ground of review requires separate consideration. In Meyrick at [98] I collected principles about when a decision-maker can fall into jurisdictional error through failing to have regard to a matter. They are well established and I will apply them here without setting them all out again. But of particular relevance to this case are that:

(1)    the court is required to assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put (Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45]); and

(2)    the degree of consideration which is necessary for the jurisdiction to have been exercised in a manner which is authorised is affected by the centrality to the issues of the matter in question, and the prominence the matter assumed (Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)]).

39    That is not to apply rules and standards developed for the purposes of adversarial proceedings to the essentially inquisitorial task of the Tribunal. Nor is it to overlook that care should be taken before applying statements about representations or claims, often made in the context of protection visas, to s 501 cases where certain considerations are made mandatory by Direction 79 and its predecessors. If the consideration is relevant, the Tribunal must consider it whether or not the applicant seeks to make it a positive aspect of the case: see Uelese at [61]-[64]. It is merely to acknowledge that, as Flick J put it in Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 at [19]:

The less important the available evidence or an available submission may be, the lesser may be the necessity for either the Tribunal or a respondent to address the issue. The more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed and resolved - even if not otherwise addressed by an unrepresented party. Where the line is to be drawn will obviously depend upon all of the circumstances of an individual case.

40    That is relevant here because, while counsel for the applicant was correct to describe the reasons of the Tribunal in relation to the best interests of the children as 'exceedingly sparse', the material concerning the interests of the children was also sparse. The applicant's first form seeking revocation mentioned the effect on him of being separated from them. It did not address the effect on them. He subsequently referred to the letters and cards, which the Tribunal accurately summarised as showing that they miss and love him. For present purposes, that is all they show. And there was, at most, only an indirect reference to the children in the applicant's SOFIC. As I have already indicated, there was no evidence that the separation from the applicant would cause more than mild emotions on the part of the children, and certainly no evidence of any practical impact, such as deprivation of financial or other support.

41    Importantly, the Tribunal also referred to the lack of evidence that the applicant would be impeded in maintaining contact with his siblings should he return to South Sudan. In doing so it was, in the words of paragraph 13.2(4)(d), 'taking into account the child's or non-citizen's ability to maintain contact in other ways'. This indicates that the Tribunal had regard to, and did not overlook, the mandatory consideration under that paragraph.

42    Do its reasons indicate that, nevertheless, the Tribunal failed to engage in an 'active intellectual process' directed at paragraph 13.2(4)(d)?: see Tickner v Chapman (1995) 57 FCR 451 at 464. I am not satisfied that they do. The Tribunal had regard to the fact that the children loved the applicant and missed him. It can be inferred that the Tribunal also accepted that the children would continue to miss him if he was forced to return to South Sudan. There is nothing more that the material permitted the Tribunal to say about the effect of separation on the children, so I do not consider that the Tribunal's omission to take the extra step of expressing a conclusion on that matter bespeaks a failure to engage with the question. While s 43(2B) of the Administrative Appeals Tribunal Act required the Tribunal to include its findings on material questions of fact, the finding that separation would cause the children to continue to miss the applicant is readily apparent on the face of its reasons.

43    I do not uphold grounds of review 1 and 2.

Ground of review 3 - consideration of the effect on the applicant of return to South Sudan

44    The applicant made representations to the Minister which can be broadly described as indicating that he feared harm if he returned to South Sudan. Under ground 3 the applicant asserts three errors by the Tribunal that are related to those representations:

(1)    The Tribunal incorrectly found that there was no independent evidence of post war instability in South Sudan, when the applicant had referred to such evidence, specifically an article by William Charnley titled 'South Sudan: Post civil war instability' which was published by an organisation called Global Risk Insights.

(2)    The Tribunal reached the state of satisfaction contemplated under s 501CA(4) of the Migration Act, that there was no 'other reason' to revoke the cancellation of the applicant's visa, on the basis of a misunderstanding of the law, namely that Australia's non-refoulement obligations engaged the same principles as would be engaged if the applicant applied for a protection visa.

(3)    The Tribunal failed to give any or any adequate consideration to the representations the applicant made as to the harm he would suffer if he was returned to South Sudan.

The representations and material advanced by the applicant

45    Before considering these alleged errors I will describe the relevant representations and materials that were before the Tribunal, and the reasons of the Tribunal that are relevant to those matters.

46    In the personal circumstances form which the applicant submitted to the Department after the mandatory cancellation of his visa in 2018, the applicant said, in response to a question about any diagnosed medical or psychological conditions (all errors in quotes from the form are in the original): 'because of my hard up-bringing I have developed anxiety which effects me i am seeking with pcs & medical assists'. There was also a note on the same page 'seen the counsellor over 20x since Ausgust 2016 Here in prison'.

47    In response to a question about whether the applicant had any concerns or fears about what would happen to him on his return to his country of citizenship, the applicant said, 'I will get kill, perhaps torture or even hold ransom as they will find out my details and circumstances & use this against me & the people I love'.

48    In response to a question about any other information he would like the Minister or delegate to consider, the applicant wrote:

Pior to coming to Australian when me & my friends we kicking the soccerball in the scrub I saw a public execution which involved a man getting his stomach blow out in front of him by a shotgun then his female get decapitated after this has stayed with me my whole life. My family can back my story up I don't really want to talk much more about Sudan.

49    The SOFIC filed on behalf of the applicant in the Tribunal said (paragraph 8, all errors in original):

The applicant being a citizen of South Sudan which is a country facing a post civil war instability and there are still clashes between Governtment forces and National Salvation Front (South Sudan: Post civil war instability by William Charnley, March 19, 2019) therefore the curent appeal in front of the tribunal is also bound by the non-refoulment obligation treatee which Australia signed and by that mean that Australia must not return any person who is in Australia to a country where there are substantial grounds for believing that they face a real risk of death, torture or cruel, inhuman or degrading treatment or punishment.

50    The article by William Charnley was in evidence before the court. It appears on a website globalriskinsights.com, and there was evidence it was the first result for a Google search of the phrase 'South Sudan: Post civil war instability'. It is dated 19 March 2019. Relevant excerpts from it are:

One of the greatest humanitarian disasters today, South Sudan's civil war has led to the deaths of nearly 400,000 people and millions more displaced. September's peace deal was greeted with apprehensive relief. Now, with many of the provisions still unaddressed, the scepticism was seemingly justified.

…

Humanitarian disaster

A recent UN report has revealed that 60% of the population experiences food insecurity. Moreover, 1.9 million out of a total population of 12 million are internally displaced. 2.2 million have fled to surrounding nations like Uganda, Sudan, and DRC.

…

Though the UN states levels of political violence have 'dropped significantly' since the deal, ethnic violence is still prominent. Acts of rape, murder and theft are still carried out with impunity. All sides have used rape as a tool for spreading fear and displacement. In some areas, 65% of females and 36% of males have been sexually victimised. Suspected perpetrators of the crimes against civilians range from army and opposition commanders, state governors, and county commissioners.

…

A step towards stability or business as usual?

So far - unlike past ceasefire attempts, the main warring factions have managed to maintain a wave of peace. War weariness has forced numerous opposition leaders to commit to ending hostilities out of necessity.

…

The fighting continues

When considering the continued fighting in South Sudan, it is hard to deem the peace deal a success. Currently, the main clashes are between government forces and the National Salvation Front (NAS), led by Thomas Cirillo, in the Central and Equatoria regions. Likened to the infamous Ugandan warlord Joseph Kony, Cirillo is noted by Kiir to be the greatest threat to peace in South Sudan. The recent wave of fighting has caused an estimated 13,000 to flee their homes.

However, the severity of these clashes are questionable. For one thing, the NAS is in desperate need of ammunition, reports claim that some fighters even resorted to bows and arrows. Additionally, Cirillo claims to command 30,000 fighters. This is highly overestimated according to intelligence analysis. Moreover, there is large ambiguity regarding the chain of command and location of the force due to their disorganised nature - prompting some to suspect Kiir's government of exaggerating the threat.

…

What to expect

…

It is highly likely that NAS's operations will significantly deflate once the rainy season takes hold in May. At which point the transportation of its dwindling food and munitions supplies will struggle to reach the disorganised groups of fighters via the mud-choked roads. However, the planned wave of military discharges presents a significant risk to regional stability. Without a comprehensive reintegration strategy, these ex-fighters will be susceptible to recruitment from the many opposition groups desperate to replenish their ranks.

Famine is a distinct likelihood. The continued blockage of relief supplies and the displacement of farmers during the key planting season means that food supplies will suffer substantially. A consequence could be yet another surge of refugees coming from South Sudan, thus applying further stress on its relationship with its neighbours. Internal resentment against the incapable government and the risking of more opposition groups will also be a risk. What does this mean for the peace deal? - makes it more difficult to sustain peace?

Machar's return to Juba poses a major test for the integrity of the peace deal. During a 2017 reconciliation effort, Machar's attempt to return to the capital only caused a resumption of violence. Many fear the same outcome in May.

South Sudanese Church representatives call on the government to 'be responsive to citizens' and 'constructively engage all stakeholders' in the national dialogue. Only then can a 'conductive political, social and economic environment' for peace be achieved. Given the countries current leadership, however, they might just be asking for a miracle.

51    The above evidence about the article was admitted at the hearing without objection. There was also an affidavit that was admitted subject to its relevance, which provided more information about Global Risk Insights. The affidavit indicates that the organisation describes itself on its web page as 'a world-leading publication for political risk news and analysis' and that the website features testimonials from several distinguished people. The website also features links to articles and reports by a large number of well-known media outlets and other organisations who refer to the work of Global Risk Insights. The objection the Minister took to the relevance of that information about Global Risk Insights is that there was no evidence that the Tribunal was aware of the information.

The Tribunal's reasons concerning non-refoulement and impediments on return

52    As with its reasons in relation to the best interests of the applicant's minor siblings, the Tribunal's reasons in relation to the matters raised above were brief so that, after excising its quotation of the relevant paragraphs of Direction 79, the passages can be set out in full.

53    Under the heading of 'Other consideration 1: International non-refoulement obligations', the Tribunal said:

80.    The Applicant says he is a citizen of a country that is facing post-civil war instability and that there are still clashes between Government forces and the National Salvation Front. However, there is no independent evidence of that fact before the Tribunal.

81.    The Applicant is able to make an application for a Protection visa, at which time any claim of international non-refoulement obligations can be properly raised, tested and assessed.

82.    When asked in evidence about his fear and concern should he return to South Sudan, the Applicant said "I have nobody". He said he has been there during the war; people were killed. However, he did not identify any current basis upon which this Other Consideration is enlivened.

83.    He said his country is destroyed. He last spoke to the elderly lady who raised him in 2014 and she has subsequently died. He said that everyone in his village has left and gone to another country. He said only dogs live there.

Conclusion: Other Consideration 1

84.    The Tribunal accepts that the Applicant genuinely does not want to return to South Sudan, but that does not enliven the consideration of Australia's non-refoulement obligations. There was no evidence before the Tribunal relevant to this Other Consideration.

85.    The Tribunal therefore finds that no weight can be attributed to this Other Consideration.

54    Under the heading of 'Other Consideration 5: Extent of impediments if removed' the Tribunal said:

106.    There is [sic] no substantial language or cultural barriers given the Applicant spent most of his youth in South Sudan. He would have the same rights as other citizens in South Sudan.

107.    The Respondent submits that the lack of family ties in South Sudan would only be a short term impediment and does not preclude resettlement. The Respondent further submits that the Applicant should be able to overcome that impediment.

108.    The Tribunal accepts that the Applicant fears returning to South Sudan because of his past experience when living there. However, in the absence of any acceptable evidence that there is any basis for that fear being currently held, the Tribunal does not accept that this factor will be an impediment.

Conclusion: Other Consideration 5

109.    Having regard to the whole of the evidence, the Tribunal gives neutral weight to Other Consideration 5.

110.    There are no more Other Considerations that the Tribunal should have regard to on the available evidence.

The finding that there was no independent evidence of post-war instability in South Sudan

55    The first basis on which the applicant criticised the Tribunal's reasoning in relation to these matters concerns the finding that there was no independent evidence that South Sudan was facing post-civil war instability and that there are still clashes between Government forces and the National Salvation Front, and the finding that there was no evidence before the Tribunal relevant to the consideration of international non-refoulement obligations. The applicant submits that the Global Risks Insight article was evidence relevant to that consideration which was properly described as independent. While the applicant did not give a copy of the article to the Tribunal, it was readily available and there was no need for the applicant, who was disadvantaged and in detention, to proffer it. He therefore claims that the findings were not open on the evidence.

56    It would have been open to the Minister to submit in response that the Tribunal did not obtain and read the Global Risks Insight article, and that it was under no obligation to do so. But the Minister did not make that submission. Rather, he joined issue on the basis that the Tribunal had read the article and dismissed it as having no weight, and so correctly found that there was no independent evidence of the asserted facts about South Sudan. The Minister's submission noted that the wording of [80] of the Tribunal's reasons closely matches the wording of paragraph 8 of the applicant's SOFIC, which shows that the Tribunal had regard to the latter. Since that paragraph of the SOFIC refers to the Global Risks Insight article, 'it is therefore to be inferred that the Tribunal did consider that article'. So the statement that there is no independent evidence of the claim before the Tribunal shows that the Tribunal rejected the evidence of the article and gave it no weight.

57    I do not accept the Minister's submission. The similarity of wording between paragraph 8 of the SOFIC and [80] of the reasons does show that the Tribunal took note of the former. But it does not follow that it obtained or considered the article that is cited in paragraph 8. And the finding the Tribunal then states shows either that it did not consider it, or that it irrationally and unreasonably characterised it as not being independent evidence of those matters. The article does describe post-civil war instability in South Sudan, and clashes between Government forces and the National Salvation Front. In the administrative decision making context of the Tribunal's review, it was evidence of those matters. So the Tribunal's finding cannot be explained on the basis that there was no such evidence.

58    As for the question of independence, in the present context the ordinary meaning of saying that there is no independent evidence is that there is no evidence independent of the applicant and the evidence he has given. In my view that is what the Tribunal meant by the statement. It identified no other person or organisation in relation to whom the independence of Global Risk Insights or the author of the article, or lack of it, could be relevant. On the face of the article, its author and the organisation publishing it were independent of the applicant. Given the applicant's background and present circumstances, any suggestion to the contrary would be bizarre. I rule that the affidavit I mention above is not admissible because there is no suggestion that the Tribunal was aware of the information it contains. But there is no need to rely on that affidavit to conclude that there was no probative material before the Tribunal providing any basis for any finding that the evidence contained in the Global Risks Insight article was not independent. On the face of the article, it was.

59    I do not accept that the Tribunal found that the article should be given no weight or otherwise rejected it. The reasons do not say that there was evidence of post-war instability in South Sudan, but it should be given no weight; they say that there was no independent evidence before the Tribunal. The Tribunal's reasons disclose no process of weighing evidence, no statement that it does not accept the article as evidence of anything, and no articulation of why: cp. Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [50].

60    Either the Tribunal (1) somehow overlooked, or neglected to obtain and read the article, or (2) did read it, but irrationally concluded that the evidence it contained did not support the applicant's contention, or was not independent evidence.

61    If the first of these possibilities is what occurred, that indicates a failure to consider a representation made by the applicant in support of his revocation request. In Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(d)] the Full Court held that:

even though there is no explicit statutory duty on the Minister under s 501CA(4) to 'consider' representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court's approach in Tickner (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

The same may be said of a decision-maker such as the Tribunal, reviewing a decision of a delegate of the Minister made under s 501CA(4).

62    In Helena Valley/Boya Association (Inc) v State Planning Commission (1990) 2 WAR 422 at 445-446 Ipp J (Pidgeon J agreeing) considered that a failure to consider appropriate material and to make inquiries in order to discover material that was readily available could support a finding that a decision-maker did not properly apply its mind to a relevant question. The consideration required in the present context was engagement in an active intellectual process with reference to the representation about the situation in South Sudan. The statement was a 'substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute "another reason" for revoking the visa cancellation', so failure to consider it was a failure to carry out the statutory task potentially giving rise to jurisdictional error: Omar at [41] and see also [45].

63    I am also disposed to think that in fact the Tribunal neglected to obtain and read the article, and that given how easy it would have been to get it, that was legally unreasonable: see Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [49] (Nettle J) and the cases referred to there. But in view of the way the Minister joined issue with this ground of review, it is not necessary to reach a conclusion as to an error of that kind.

64    If the second possibility, that the Tribunal did read the article, is the correct one, then the Tribunal made an irrational finding that was not based on any probative material. That illogicality was both of a kind, and sufficiently extreme, to be capable of being jurisdictional error: see SZMDS at [101]-[103], [130], [135].

65    Whichever error the Tribunal committed, it was a material error, as proper engagement with the material that the applicant had presented as to the risk and harm he faced on return to South Sudan could realistically have led to a different outcome. The Minister did not suggest otherwise. In making the findings at [80] and [84] of its reasons, the Tribunal fell into jurisdictional error.

Misunderstanding as to non-refoulement obligations and protection visa criteria

66    This contention by the applicant relied on the decision of the Full Court (White, Perry and Charlesworth JJ) in Ibrahim v Minister for Home Affairs [2019] FCAFC 89. In that case, the Assistant Minister gave reasons for a decision under s 501BA(2) of the Migration Act which indicated that he conflated Australia's non-refoulement obligations under the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) with the protection obligations which, under the Migration Act, are considered on an application for a protection visa: Ibrahim at [106]-[112]. The Full Court held that the term 'non-refoulement obligations' encompassed obligations undertaken by Australia under international treaties, including but not limited to that convention: Ibrahim at [103]. So the Assistant Minister's belief involved misapprehension of the effect of the Migration Act because, on an application for a protection visa, matters such as the reasonableness of relocation to an area of the receiving country where there is no real chance of persecution cannot be considered in relation to the question of whether a person is a refugee: Ibrahim at [113]; and see FCS17 v Minister for Home Affairs [2020] FCAFC 68.

67    It has been held that a misapprehension of that kind can give rise to jurisdictional error in a decision made under s 501CA(4) of the Migration Act, albeit in a case where the decision was made by a minister who was not obliged to comply with a direction under s 499: DGI19 v Minister for Home Affairs [2019] FCA 1867 at [78] (Moshinsky J).

68    However I do not find that the Tribunal's reasoning here was influenced by any misapprehension of the kind identified in Ibrahim. It is true that at [81] the Tribunal said that the applicant was able to apply for a protection visa, 'at which time any claim of international non-refoulement obligations can be properly raised, tested and assessed'. But that is not what led the Tribunal to give the 'Other Consideration' of non-refoulement obligations no weight. It was, rather, the Tribunal's view (expressed at [82]) that the applicant 'did not identify any current basis upon which this Other Consideration is enlivened' and its conclusion (at [84]) that the applicant's wish not to return to South Sudan was not enough to enliven consideration of Australia's non-refoulement obligations and that there was no evidence before the Tribunal relevant to that consideration. So the Tribunal did not act on any misunderstanding of the scope of non-refoulement obligations, it simply did not consider the possible existence of those obligations at all.

69    That conclusion means it is unnecessary to consider whether Direction 79 itself incorporates the misapprehension identified in Ibrahim, and if so what consequences that has where the decision-maker was bound by the direction as the Tribunal was here.

70    The Tribunal did not fall into jurisdictional error in the second way advanced under ground of review 3.

Did the Tribunal give adequate consideration to the applicant's representations about harm?

71    The third error for which the applicant contended under the heading of ground 3 was, again, an error of the kind identified in Omar, consisting of a failure to consider, or consider adequately, representations that the applicant faced a risk of being killed, tortured, held for ransom or destitute and homeless in South Sudan. That was said to be in the context of representations that he lacked a support network in that country, and suffered mental health problems. This was raised independently of any question of non-refoulement obligations. It was, rather, advanced by reference to the statement of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Markovic and Steward JJ agreeing, and affirmed in Omar at [37]) that:

where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.

72    In Omar at [39], the Full Court went on to say:

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

73    I am satisfied that here, the Tribunal failed to consider clearly articulated and significant representations made by the applicant as to the risk of harm that would face him if he returned to South Sudan. It could not be said that the representations were especially detailed or compelling, but nor were they entirely insubstantial. The Tribunal appeared to accept that the applicant had experienced a difficult upbringing. His claim in one of the forms that this caused him to suffer from anxiety, while not backed up by independent psychiatric evidence, was plausible in the circumstances. The applicant claimed to have received frequent counselling for the anxiety in prison. The applicant had also described witnessing a horrific incident of violence in South Sudan while playing soccer with friends, yet the Tribunal did not advert to that evidence, let alone give any reason for discounting it. It too, was plausible, so an inference that the Tribunal did not consider it to be material is not easily reached.

74    The applicant's claim that he feared death, torture or (it would seem) kidnapping for ransom in South Sudan also needed to be assessed in the context of his evidence about his past experience there. And it should have been assessed in the context of the Global Risks Insight article which the Tribunal either neglected to obtain, overlooked or irrationally misunderstood. But instead the Tribunal said that the applicant did not identify any current basis to enliven the consideration of non-refoulement obligations. Paragraph 14.1(1) of Direction 79 describes a non-refoulement obligation as an obligation 'not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm' and refers not just to the Refugees Convention, but also to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), which is the basis of protection obligations in relation to risks of harm for reasons other than those that activate obligations under the Refugees Convention. So the Tribunal's statement that this consideration had not been enlivened was a statement to the effect that the applicant had not identified any basis to think that he faced a real risk of harm if he returned to South Sudan.

75    That statement was, with respect, wrong. There was material which was sufficient to require the Tribunal to address the question of the harm that may befall the applicant on his return to South Sudan. Save for his separate complaint about the Global Risk Insights article, the applicant did not criticise the statement as an irrational finding not open on the evidence. But in any event it evidences a lack of proper intellectual engagement with the representations that the applicant made. A decision-maker who had adequately engaged in that way may well have rejected the representations, but he or she would not have said there was no evidence of them, or that the need to consider them had not even been enlivened.

76    The Tribunal's reasons under the heading 'Extent of impediments if removed' are also cursory. They record a submission by the Minister that the applicant 'should be able to overcome' the impediment of having no family ties in South Sudan. It may be that, as with the Minister's submission on the best interests of the applicant's minor siblings, the Tribunal implicitly accepted this submission but, in contrast to the former submission, this one was not supported by any specific facts, let alone incontrovertible facts. Both as recorded by the Tribunal and as made in the Minister's SOFIC, it was a bare assertion. Accepting it does not reveal adequate intellectual engagement with the applicant's representations.

77    As with the Tribunal's statements about lack of evidence discussed above in connection with the non-refoulement consideration, the statement at [108] of the reasons that there was no acceptable evidence giving a basis for the applicant's fear of returning to South Sudan was incorrect, and shows a lack of intellectual engagement with the material before the Tribunal.

78    For those reasons, I am satisfied that the Tribunal erred by failing to give adequate consideration to the applicant's representations that he feared harm if he returned to South Sudan.

79    That error was material; proper engagement with the human consequences of returning a young man with a possible psychiatric condition and a clear problem with alcohol abuse to a war torn country where he had no support network could, realistically, have led to a different outcome, even in light of the Tribunal's serious concerns about the risk to the Australian community and the expectations of that community. Once again, the Minister did not submit to the contrary.

80    Ground of review 3 will be upheld.

Conclusion

81    The decision of the Tribunal will be set aside and the matter will be remitted to it to be determined according to law. The Minister must pay the applicant's costs.

Associate:

Dated:    20 May 2020