FEDERAL COURT OF AUSTRALIA

EGH19 v Minister for Home Affairs [2020] FCA 692

ORDERS

THE COURT ORDERS THAT:

1.    Time is extended for the applicant to rely upon the further amended originating application.

2.    By consent, ground 1 of the further amended originating application be heard and determined as a preliminary and separate question pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the separate question being whether ground 1 of the further amended originating application should be upheld.

3.    The answer to the separate question is “Yes”.

4.    The Minister’s decision dated 11 September 2019 is set aside.

5.    The applicant’s application for a protection visa is remitted for reconsideration according to law.

6.    The Minister pay the applicant’s costs with respect to the hearing and determination of the separate question, as agreed or taxed.

7.    The parties have liberty to apply on the giving of 48 hours’ notice to have the matter relisted concerning the hearing and determination of ground 2 of the further amended originating application.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicant seeks judicial review of a Ministerial decision dated 11 September 2019, by which the Minister exercised his discretionary power under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the applicant a protection visa on the basis that the Minister was not satisfied that the applicant passes the “character test”.

2    The proceedings in this Court have a complicated history. They were commenced by the filing of an application for an extension of time on 29 October 2019. At that time, the applicant, who was and remains in immigration detention, represented himself. On 6 January 2020, the applicant filed an amended application raising 19 separate grounds of judicial review, which apparently were drafted by him. He filed several affidavits in support of his application. The Minister filed several affidavits in response, as well as a lengthy Court Book containing some of the documents relevant to the proceedings.

3    The Court Book did not include a copy of the Department’s Submission which would have been provided to the Minister prior to the decision being made on 11 September 2019. This omission was pointed out by the Court at the commencement of the hearing on 12 May 2020. The Court observed that the failure to provide a copy of the Department’s Submission is inconsistent with statements by the plurality in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [19] per Mortimer J, with whom Moshinsky J agreed. I return to this matter below, including the fact that a copy of the Department’s Submission was made available to the applicant during the course of the hearing after the issue had been raised by the Court.

4    The Minister confirmed in his outline of submissions filed on 28 February 2020 that he did not oppose the applicant having an extension of time. Mr Lim of counsel (who appeared for the Minister) also confirmed at the hearing that the Minister did not oppose time being extended in relation to the subsequent further amended originating application.

5    At first, the parties were content to have the matter heard and determined on the papers and without an oral hearing. This subsequently changed, however, when at a case management hearing on 17 March 2020 the Court raised its intention to make a pro bono referral, having regard not only to the potential relevance of Rares J’s judgment in BAL19 v Minister for Home Affairs [2019] FCA 2189, but also to the Full Court’s decisions in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, GBV18 v Minister for Home Affairs [2020] FCAFC 17 and AXT19 v Minister for Home Affairs [2020] FCAFC 32. After that case management hearing, the Full Court published another potentially relevant decision in EVK18 v Minister for Home Affairs [2020] FCAFC 49. In any event, the Court determined that the matter would proceed in the normal way and not be determined on the papers.

6    Following the case management hearing, Mr Poynder of counsel nobly agreed to accept a referral to represent the applicant under rule 4.12 of the Federal Court of Australia Rules 2011 (Cth). A further amended originating application for review was filed on 1 May 2020. The further amended originating application raised two grounds of judicial review. The first was that the Minister failed to carry out the required statutory task under s 65 of the Act by failing to engage in an active intellectual way with the submissions and the evidence provided by the applicant in relation to the risk of harm that he faced if returned to his country of origin. In support of this ground, the applicant relied upon the series of Full Court decisions referred to above.

7    The second ground relied upon Rares J’s judgment in BAL19.

8    Both parties filed supplementary outlines of written submissions in respect of the further amended originating application. The parties agreed that the hearing and determination of ground 2 should await two relevant Full Court decisions in which the correctness of Rares J’s judgment is raised (the two Full Court proceedings are KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (WAD397/2019) and Minister for Home Affairs v BAL19 (NSD43/2020)). The parties agreed that the hearing and determination of ground 1 of the further amended originating application should occur by way of a separate question. That separate question is whether ground 1 of the further amended originating application should be upheld.

9    A hearing in relation to ground 1 was conducted on 12 May 2020 via Microsoft Teams in response to the constraints imposed upon physical attendance in Court by the COVID-19 pandemic.

Summary of background matters

10    Before outlining the applicant’s migration history, it is convenient to describe his criminal record. Having regard to s 91X of the Act, I will redact references to the applicant’s name and other matters which might disclose his identity, including his country of origin.

11    In July 2005, when the applicant was barely 16 years old, he was convicted of one count of murder. In November 2006, he was sentenced to a term of imprisonment for 22 years with a non-parole period of 15 years and 6 months. On appeal, on 8 November 2013, this sentence was quashed and replaced with a sentence of a term of imprisonment of 17 years and 6 months with a non-parole period of 12 years and 6 months.

12    The following summary of background facts relies heavily on findings of fact made by the Administrative Appeals Tribunal (AAT) in relation to the applicant’s successful review of the delegate’s original decision refusing the applicant a protection visa. The applicant, who is now 30 years old, was born overseas. He first arrived in Australia in 2000 together with his parents and two younger siblings. His older brother remains in his country of origin. The AAT noted at [44] of its reasons for decision that the applicant gave evidence that he had not had any contact with his elder brother and did not know about his current circumstances. The AAT accepted the evidence of both the applicant and his father that the applicant had had no contact with his brother while he had been incarcerated and that the prospects of him being able to call upon his brother in his country of origin were “remote” (at [98]). The family returned to that country in 2002 but then came back to Australia in early 2004, where the applicant has remained ever since.

13    In January 2013, the applicant’s family in Australia (apart from himself) applied for protection visas. In brief, the applicant’s father, who was the primary applicant, stated that he and his family would suffer significant harm in their country of origin, including because there had been ethnic clashes between the father’s tribe and people from other parts of that country. The applicant himself was not included in that protection visa application. The AAT noted at [27] that this was because, as the applicant understood, his father was afraid that the applicant’s criminal history would have an adverse effect on the rest of the family’s application.

14    The family’s protection visa application succeeded after the then Refugee Review Tribunal determined on 6 June 2014 that there was a real chance that the primary applicant would suffer serious harm in his home town because of his membership of a particular social group, namely his membership of a particular tribe and the inter-tribal or ethnic-based violence in the relevant area of the country of origin.

15    The applicant lodged his own protection visa application on 21 December 2017. He sought protection on the basis of both his claimed status as a refugee and relying on the complementary protection criteria in s 36(2)(aa) of the Act. This is made clear in [106] of his “Statement & Contentions” dated 21 December 2017, which he provided to the Department in support of his protection visa application. I shall return below to discuss that document in more detail.

16    On 9 February 2018, the Minister’s delegate refused the application, not being satisfied that the applicant had established either limb of his application. As noted, the applicant sought a review of that decision in the AAT. On 27 June 2018, the AAT upheld the applicant’s review.

17    As noted above, the AAT had the advantage of hearing evidence from inter alia both the applicant and his father. The AAT gave detailed and comprehensive reasons for decision. Its primary findings are set out at [86] to [100] of those reasons. They relevantly may be summarised as follows.

(a)    The applicant’s father was a prominent figure in a particular tribe in the family’s country of origin, at least until the family travelled to Australia for the last time in 2004.

(b)    It was accepted that, on balance, the applicant’s father still had a profile which his former rivals would associate with the applicant over 15 years later.

(c)    Media reports suggested that the applicant may have a profile if he returned to his country of origin given the publicity about his conviction and deportation and that this profile would be linked to his father given that his father had generated publicity about the case in the country of origin and had attempted to get support for the applicant from there. The AAT found at [88] that it was satisfied that there was at least a possibility that the applicant would have a profile of some notoriety if he returned to the country of origin and that his profile may be linked to that of his father.

(d)    It was likely that the applicant would return to a major city in his country of origin if he were returned there but, unlike the delegate, the AAT did not accept that the hardships he would face there would be similar to the problems experienced by the population more generally. The AAT gave detailed reasons why it disagreed with the delegate’s reasoning on these matters (see [90] to [93]). The AAT emphasised that it had had the opportunity to question the applicant in detail. The AAT stated at [93] that the delegate’s findings were based on supposition and not on evidence.

(e)    The AAT found that if the applicant returned to a major city where he grew up, unless he was able to find employment, he would probably be forced to live in a settlement shanty town and that, given his background, he would present as middle class and be set apart from other residents in such settlements (at [94] and [95]).

(f)    The AAT concluded at [97] that matters such as these made the applicant “more rather than less vulnerable to the high level of crime” in that city, and also raised significant concerns about his capacity to subsist.

18    Although the AAT found that there was a real chance that the applicant would suffer serious harm if he returned to his country of origin (by either being injured or killed), the AAT did not accept that the applicant met the statutory definition for a refugee in s 5J of the Act (at [114])). This was because the AAT was not satisfied that the applicant’s ethnicity or his membership of a particular social group would be the essential and significant reason for his persecution (at [113]).

19    The AAT found, however, that the applicant met the criteria for complementary protection under s 36(2)(aa). This was because the AAT was satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to his country of origin, there was a real risk that he would suffer significant harm (as defined in s 36(2A)), in the form of being arbitrarily deprived of his life.

20    The AAT’s core reasoning on this matter is reflected in [126] to [128] of its reasons for decision (footnotes omitted, identifying information redacted and emphasis added):

126.    Having regard to these authorities, the commentary in the Complementary Protection Guidelines and the ordinary meaning of the words, we find that arbitrary deprivation of life can encompass the situation where an applicant's life is in danger because of his or her particular circumstances in circumstances where there is widespread violence and systemic breakdown of law enforcement, even where the danger is posed by a non-state actor. As such, the Guidelines recognise that there are two elements that must be satisfied. Firstly, there must be widespread violence and systemic breakdown of law enforcement. Secondly, the real risk of harm must relate to the applicant's particular circumstances.

127.    In the present case, the country information before us supports a conclusion that there are widespread conditions of violence and a systemic breakdown of law enforcement in [country of origin], and in particular [a city]. This is evidenced by a substantial body of independent information about the high level of violent crime in [country of origin].

128.    On the basis of this evidence, we find that the applicant faces a real risk of arbitrary deprivation of life and that this risk is faced by the applicant personally, and therefore s.36(2B)(c) (which provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if 'the real risk is one faced by the population generally and is not faced by the applicant personally') does not apply. In SZSPT v MIBP, the Federal Court reasoned that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace. In the present case we take into consideration the following in respect of the applicant's particular circumstances. His medical condition is not the key driver; it is merely one of the factors that contribute to his particular circumstances and to his potential vulnerability to being killed by criminals, or possibly tribal rivals, in the settlements. In addition to this we have considered his association with his father, possible notoriety from his own criminal conviction in Australia, and social isolation as a result of lack of family or [redacted] support. These factors individually and cumulatively distinguish the applicant from the population generally and the real risk of arbitrary deprivation of life is one that is faced by the applicant personally on account of his particular circumstances.

21    The AAT remitted the matter for reconsideration with a direction that the applicant satisfied s 36(2)(aa) insofar as “there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm”.

22    On 27 September 2018, the Department advised the applicant of the Minister’s intention to consider refusing the applicant a protection visa under s 501(1) of the Act. The applicant was told that he had “an opportunity to comment or provide information on whether you pass the character test, and on whether the decision-maker should exercise his or her discretion to refuse your application for a visa”.

23    By a subsequent letter dated 19 October 2018, the Department advised the applicant that it had new information relating to his conduct in immigration detention and he was invited to comment on it.

The applicant’s submissions to the Minister

24    It is undisputed that the Department received from the applicant a document entitled “Supplementary Statement” dated 24 October 2018. In paragraph 1 of the Supplementary Statement, the applicant referred to the 27 page “Statement & Contentions of [the applicant]” dated 21 December 2017 which he had provided in support of his protection visa application. Importantly, in his Supplementary Statement, the applicant said that he continued to rely upon that material. He also referred to the AAT’s finding that he met the criteria under s 36(2)(aa) in that “there are substantial grounds for believing that, as a necessary and foreseeable consequence of me being removed from Australia to [country of origin], there is a real risk that I would suffer significant harm”. In part of his Supplementary Statement the applicant also responded to the material concerning his conduct in immigration detention.

25    The applicant initially claimed that he had forwarded an additional response to the Department concerning his conduct in immigration detention. The Department maintains that, while it received an email from the applicant on 25 October 2018, there were no attachments to that email. As noted above, a further amended originating application for review was filed on 1 May 2020 and the applicant no longer pressed any ground in respect of that particular matter.

26    As previously mentioned, the applicant made clear to the Department that he continued to rely upon the material he had supplied in support of his protection visa application. The material included the 27 page document headed “Statement & Contentions of [the applicant]” referred to above, which was dated 21 December 2017 and which was signed by the applicant and his migration agent. The Statement provided country information relating to his country of origin, including various material from the Australian Department of Foreign Affairs and Trade (DFAT). The Statement went to some lengths to describe why the applicant was concerned that if he returned to his country of origin he was at grave risk of significant physical harm. He emphasised the inter-tribal fights which had cost many lives and that well-educated individuals and their families were targets. He said that because he had lived in Australia for many years and was unfamiliar with the customs, culture and way of life in his country of origin he would be viewed as an outsider and targeted. He said that he would be targeted not just by random criminal attacks, but by those who have been fighting against his ethnic group for many years. He also claimed that members of his extended family had been the subject of rapes and violence in his country of origin.

27    As noted, the country information included various DFAT reports. The country information strongly supported the applicant’s claims of the prevalence of violent crime in the applicant’s country of origin and the violence between tribal or clan groups.

28    The material before the Minister also included a copy of the “Personal Circumstances Form” dated 20 October 2018 which the applicant provided to the Department in support of his protection visa application. In response to the question as to what would happen if the applicant was returned to his home country and whether he had any concerns or fears, he made express reference to the AAT’s decision, his protection visa application and his “Statement of Contention [of the applicant] dated 21 December 2017”. He emphasised that he “especially” relied on the AAT’s decision. Clearly enough, the applicant was putting to the Minister that he relied upon the AAT’s findings and reasons in coming to the conclusion that he was entitled to complementary protection, because of the findings regarding the real risk of him being killed.

29    In accordance with the statutory obligation under s 501G, the Minister provided the applicant with a written statement of reasons for his decision under s 501(1). Before highlighting the relevant parts of that statement, it is appropriate to say something further about the Department’s Submission.

Department’s Submission

30    As mentioned, at the outset of the hearing, the Court raised with the parties the fact that it appeared that the Court Book did not contain a copy of the Department’s Submission. Instead, part of the Court Book contained three documents which evidently were attachments to the Department’s Submission. Those documents were labelled in the top right hand corner as “ATTACHMENT 1”, “ATTACHMENT 2” and “ATTACHMENT 3” respectively.

31    Attachment 1 set out the options which were available to the Minister in terms of his decision-making. The Minister circled the option he adopted and signed and dated the document. Attachment 2, which is headed “EVIDENCE OR OTHER MATERIAL REFERRED TO IN THIS PAPER” and which listed 37 individual documents as attachments, evidently contained the evidence or other material relied upon by the Department in preparing the Department’s Submission to the Minister. It is therefore evident that the “PAPER” referred to in Attachment 2 is the Department’s Submission. Attachment 3 is the Minister’s statement of reasons. It cannot be inferred that the 37 attachments listed in Attachment 2 were attachments to the Minister’s statement of reasons itself because the body of the statement does not include any specific reference to those particular attachments. The reference at [10] of the Minister’s statement, which refers to the Minister “having assessed the information set out in the attachments” is an apparent reference to the information in the 37 attachments as summarised in the Department’s Submission.

32    In drawing the parties’ attention to the omission from the Court Book of the Department’s Submission, the Court stated that it appeared that the Minister had not heeded the observations made by the plurality in Splendido as referred to at [3] above. There, Mortimer J, with whom Moshinsky J agreed, drew attention to the significance of the Assistant Minister’s failure to provide the Court with a copy of the Department’s Submission. Mortimer J identified at [20] that one consequence of that state of affairs was the need for the Court to be careful about drawing an inference which may be incomplete. Plainly, this is because the Court did not have before it all the material which was before the decision-maker when the relevant decision was made. Although the plurality’s observations were made in the context of an appeal from a decision concerning s 501(3A) of the Act, I consider that they apply equally here.

33    Mr Lim acknowledged that the Department’s Submission had been omitted from the Court Book. He said that he had raised the matter himself with his instructing solicitor and that his initial instructions were that the document was not available. He then added that a copy had only recently been located. After a short adjournment, Mr Lim said that a copy of the Department’s Submission would be made available to the applicant immediately. The Court said that it would permit the parties to make brief supplementary submissions in respect of that material and a timetable for that to occur was agreed. The parties also agreed that a copy of the Department’s Submission should be added to the Court Book. In the events that occurred, Mr Poynder made brief oral submissions in his reply and the Minister indicated after the hearing that he would not be providing any supplementary submissions on that subject.

34    The following are the key relevant features of the Department’s Submission, which is in a familiar form. First, the document commences with a page which sets out the Department’s recommendations to the Minister. In his handwriting, the Minister indicated that he had decided to consider the case personally and to refuse the applicant’s visa application under s 501(1). He also indicated that he wished to discuss with the Department “alternative management options”, including the possible grant of another visa under s 195A of the Act in circumstances where, otherwise, the applicant would have to be removed from Australia as soon as reasonably practicable. It may be interpolated at this point that the Minister did not contend in his defence to this proceeding that those “alternative management options” which he wished to discuss provided an answer to the jurisdictional error raised by the applicant in ground 1 of the further amended originating application.

35    The body of the Department’s Submission drew the Minister’s attention to various matters relating to the applicant’s criminal and migration history and relevant surrounding circumstances. Paragraphs 12 to 16 are as follows (applicant’s name and country of origin redacted):

12.    [The applicant] is a person in respect of whom Australia has been found to owe protection obligations. This means that to remove him to his country of nationality would be in breach of Australia's international non-refoulement obligations. If you decide to refuse to grant [the applicant’s] Protection (ClassXA) visa, he will be an unlawful non-citizen who must be detained under s189 of the Act and kept in immigration detention until, relevantly, he is removed from Australia under s198 or is granted a visa.

13.    I draw to your attention that if you decide to refuse to grant this visa, there is presently no known prospect of removal of him to another country other than his country of origin. Refusing to grant him this visa will mean that, as soon as reasonably practicable and if the other conditions in an applicable subsection of s198 are satisfied, he must be removed to [his country of origin] even though doing so would be in breach of Australia's international non-refoulement obligations. This consequence follows from s 197C(1) of the Act, which provides that "[f]or the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen".

14.    However, if you refuse to grant him this visa, it is open to you to consider alternative management options. In this case, it would be open to you to consider making a residence determination under s197AB to enable [the applicant] to reside in the community, noting that a person covered by a s197AB determination would still be considered 'detained' under the Act.

15.    As a further alternative, it is open to you to consider intervening under s195A of the Act to grant another visa. If you decided to consider whether to intervene under s195A, the consequence will be that [the applicant] is detained until you make a decision in this regard. If you decide not to intervene under s195A, then, again, [the applicant] must be removed to [his country of origin] unless some other country is an available destination at that time. That removal must occur as soon as reasonably practicable if the other conditions in an applicable subsection of s198 are satisfied.

16.    If you indicate that you wish to consider alternative management options, a further submission will be referred for your consideration.

36    It is also desirable to set out [40], which appears under the heading “International non-refoulement obligations”, noting that it contains a summary of the applicant’s refugee claims (as opposed to his complementary protection claims):

40.    In a personal statement (Attachment E) [the applicant] states that his refugee claims are analogous to that of his father's claims. To further expand on his claims for refugee status, [the applicant] states that he was born and raised in [his country of origin] until arriving in Australia when his father was studying in Newcastle. Having resigned from his job to undertake studies, [the applicant] states his father and balance of his family have no ties to [his country of origin], with no home or job to return to. Because of this [the applicant] states that he would suffer hardship. He also states that the security situation in [his country of origin] is deplorable with high incidence of crime and disease. As a member of the [a particular] tribe, [the applicant] states that there have been clashes between tribes and as an educated person he would be targeted by this. [The applicant] also states his health would suffer as a result of returning to [his country of origin] as well as his limited chance of gaining employment. [The applicant] has supplied independent evidence of the current situation in [his country of origin] to support his claims.

37    Additional material relating to international non-refoulement is set out later in the Department’s Submission at [56]-[60] (noting that there is no mention of the basis upon which the AAT found that Australia owed the applicant protection obligations):

International non-refoulement obligations

56.    The Administrative Appeals Tribunal found that [the applicant] is a person in respect of whom Australia has protection obligations, with the country of reference being [his country of origin]. This means that to remove [the applicant] to [his country of origin] would be in breach of Australia's international non-refoulement obligations. [The applicant] could be removed to a country other than [his country of origin] but there is currently no known prospect of removal to such a country.

57.    If you decide to refuse to grant [the applicant’s] application for a Protection visa, he will be prevented by s501E of t h e Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations). According to the relevant provisions of the Migration Regulations, [the applicant] could only apply for a Bridging R (Class WR) visa in response to an invitation. Also, regarding a Protection visa, [the applicant] will be prevented by s48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determined under s48B that s48A does not apply to him).

58.    You should also be aware that if you decide to refuse to grant [the applicant’s] application for a Protection visa, he will, as an unlawful non-citizen, be subject to continued immigration detention under s189 of the Act and removal from Australia under s198 of the Act "as soon as reasonably practicable". In this respect, you should note that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. In relation to the operation of s189, 196, 197C and 198 of the Act in the context of [the applicant’s] case should you refuse to grant him a protection visa, I refer back to paragraphs 11 to 14 above.

59.    You have been asked to indicate whether or not you would like to consider alternative management options in [the applicant’s] case (which encompass the possibility of granting a visa under s 195A) should you decide to refuse to grant him a Protection visa.

60.    It is open to you to give considerable weight to the assessment that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations and to the statutory consequences of a decision to refuse to grant him a Protection visa.

38    It is notable that there is no explicit or direct reference anywhere in the body of the Department’s Submission to the applicant’s concern that there was a real risk that he would be killed if he were returned to his own country nor to the AAT’s finding that there were substantial grounds to believe that if he returned to his home country there was a real risk that he would be arbitrarily deprived of his life. It is the case, however, that a copy of the AAT’s decision and reasons formed one of the 37 attachments to the Department’s Submission.

39    In [12] of the Department’s Submission, the Department drew the Minister’s attention to the fact that the applicant is a person in respect of whom Australia has been found to owe protection obligations and that his removal to his country of nationality would be in breach of Australia’s international non-refoulement obligations. But nowhere is it explicitly stated in the body of the Department’s Submission that this was based upon the AAT’s finding that he met the complementary protection criteria because there were substantial grounds to believe that there was a real risk that he would be arbitrarily deprived of his life if returned to his country of origin.

40    Another relevant and related feature is that when the Department addressed the issue of international non-refoulement obligations in [40], it did so by reference only to the applicant’s refugee claims. No express reference was made to the fact that he had also claimed complementary protection in his protection visa application and that it was this aspect of his claims that was upheld in the AAT.

41    When the issue of non-refoulement was further addressed at [56] of the Department’s Submission, although there is a reference to the AAT having found that the applicant is a person in respect of whom Australia has protection obligations, once again there is no description of the basis upon which that conclusion had been reached and that, in particular, it related to complementary protection and not refugee status.

42    Attachment 1 to the Department’s Submission is what is customarily described as the “Decision Page”. By his handwritten annotations, the Minister indicated that he had determined that the applicant had not satisfied him that he passed the character test and that the Minister had exercised his discretion under s 501(1) to refuse to grant the applicant a protection visa for the reasons set out in the statement of reasons.

Minister’s statement of reasons

43    The key relevant features of the Minister’s statement of reasons are as follows:

(a)    In concluding that the applicant did not pass the character test, the Minister stated at [6] that, on 10 November 2006, the applicant was convicted of murder and sentenced to 17 years and 6 months imprisonment. This is factually incorrect because this was the sentence imposed not in November 2006 but rather on 8 November 2013 when the Court of Criminal Appeal replaced the trial judge’s sentence (see [11] above), but the applicant did not contend that this of itself amounted to jurisdictional error.

(b)    Having found that the applicant did not pass the character test and “having assessed the information set out in the attachments”, the Minister then considered whether or not to exercise his discretion to refuse to grant a protection visa. The Minister stated at [10] that in considering the exercise of his discretion, he took “into account factors that I considered weighed against and in favour of refusing [the applicant’s] visa application”.

(c)    The Minister then considered various factors, including protecting the Australian community, the nature of the applicant’s criminal conduct, the risk the applicant posed to the Australian community, the expectations of the Australian community, and “other considerations”, which included international non-refoulement obligations.

(d)    Under the heading “Risk to the Australian Community”, the Minister took into account matters relating to the applicant’s criminal conduct, as well as his conduct while imprisoned and in immigration detention.

(e)    The Minister’s consideration of international non-refoulement obligations contains the following relevant passages (without alteration, save for redacting the applicant’s name, country of origin and other identifying information):

42.    I accept that the Administrative Appeals Tribunal has found that [the applicant] is a person in respect of whom Australia has non-refoulement obligations.

43.    I note that [the applicant’s] submission include that if he is removed to [country of origin], there is a risk that he would suffer the types of harm described in his protection claims.

44.    [The applicant] states that is (sic) refugee claims are analogous to that of his father's claims. [The applicant] states that he was born and raised in [country of origin] until arriving in Australia when his father was studying in [a city in Australia]. Having resigned from his job to undertake studies, [the applicant] states his father and balance of his family have no ties to [country of origin], with no home or job to return to. Because of this [the applicant] states that he would suffer hardship. He also states that the security situation is deplorable with high incidence of crime and disease. As a member of the [a particular] tribe, [the applicant] states that there have been clashes between tribes and as an educated person he would be targeted by this. [The applicant] also states his health would suffer as a result of returning to [country of origin] as well as his limited chance of gaining employment. [The applicant] has supplied independent evidence of the current situation in [country of origin] to support his claims.

45.    [The applicant] fears clan-based fighting because his father received death threats in the past from foreigners and local politicians. Furthermore [the applicant’s] health also places him at risk as he requires vital medication and regular medical check-ups after one-third of his pancreas was removed in 2007.

…

49.    I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the applicant’s] criminal offending in the making of my decision whether to refuse to grant him a Protection visa.

It is notable that although there is a reference in [43] of the Minister’s statement of reasons to the applicant’s submission that there was a risk that he would suffer “the types of harm described in his protection claims” if he were returned to his country of origin, nowhere in the Minister’s statement of reasons is there any explicit and direct reference to the fact that the applicant claimed, and the AAT had accepted, that the risk was that he would be arbitrarily deprived of his life.

(f)    It is desirable to set out [63] to [70], which record the Minister’s conclusions (without alteration, save for redacting the applicant’s name, and noting that the reference to “(Name)” in [63] is in the original):

63.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act and (2) all other evidence available to me, including information provided by, or on behalf of (Name).

64.    I concluded that [the applicant] does not pass the character test and he has not satisfied me that he passes the character test.

65.    [The applicant] has committed a very serious crime, that of murder, which is of a violent nature. Non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia.

66.    I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm.

67.    I found the above consideration outweighed the countervailing considerations in [the applicant’s] case, including international non-refoulement obligations, impact on family members and impact on victims. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community and or the consequences of my decision for his family members.

68.    I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are insufficient for me not to refuse the visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of his life.

69.    In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

70.    Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant [the applicant’s] application for a Protection (Class XA) visa under s 501(l) of the Act.

(g)    Bearing in mind that the copy of the Minister’s statement of reasons in the Court Book is a copy of the original document which was placed before the Minister and signed and dated by him, it is evident that the Minister made no amendments to the document. More significantly, however, it is evident from [63] of the Minister’s statement of reasons that the draft statement provided to the Minister for his review and consideration was signed by him without an apparent appreciation that the applicant’s name had not been inserted in the pro forma paragraph. This is not a case of the applicant’s name being deliberately redacted because his name appears many times in other parts of the statement of reasons. No explanation was provided to the Court as to why the template paragraph was not adjusted to refer to the applicant personally. This does not reflect well on the thoroughness of the Minister’s consideration of the applicant’s individual circumstances or on the care taken by those responsible for preparing the draft statement of reasons, particularly in a matter which has such grave consequences for the applicant and his family. That is not to suggest, however, that this error alone gave rise to jurisdictional error. Nor did the applicant contend that to be the case.

Consideration and determination

Relevant legislation

44    It is desirable to set out the relevant parts of ss 36(2)(aa) and (2A), 65 and 501 of the Act.

45    Sub-section 36(2)(aa) and (2A) provide:

36    Protection visas—criteria provided for by this Act

…

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

…

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

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

46    The expressions “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are defined in s 5(1). The expression “arbitrarily deprived of his or her life” is not defined but it plainly means being arbitrarily killed.

47    Sub-section 65(1) relevantly provides:

65    Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

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

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

[Notes omitted].

48    Sub-sections 501(1), (6) and (7) of the Act relevantly provide:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

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

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

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

49    Although ground 1 refers to the Minister’s statutory task under s 65 of the Act, it is plain that the applicant also challenged the Minister’s related statutory function under s 501(1) and the hearing was conducted on that basis.

Relevant caselaw summarised

50    The relevant primary legal principles relating to a claim of jurisdictional error because of a decision-maker’s failure meaningfully to engage with a claim or submission are set out in cases such as Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, Omar, GBV18, AXT19, EVK18 and SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [106] to [110] per Griffiths J, and the other relevant authorities referred to in those cases.

51    The relevant primary principles may be summarised as follows.

(a)    Careful attention must be paid to the relevant statutory provisions applicable to the decision which is the subject of challenge. Some of the cases referred to above relate to different Ministerial powers under the Act, including ss 501A(2), 501CA(3), 501CA(3A) and 501CA(4). Some of those powers make explicit reference to an applicant’s statutory entitlement to make representations to the Minister as to why a particular decision should be revoked. There is no express reference to “representations” in s 501(1). It is indisputable, however, as is made explicit in the heading to the sub-section, that the exercise of the Minister’s power under that provision is subject to the requirements of natural justice (in contrast with the position under s 501(3)). Natural justice requires the Minister to provide a person such as the applicant here with an opportunity to respond to a proposal to refuse to grant a visa under s 501(1), including by making submissions or representations. In those circumstances, I consider that the general principles outlined in cases relating to “representations” also apply generally to the exercise of power under s 501(1).

(b)    The material provided by the applicant as part of his or her natural justice rights in the s 501(1) decision-making process plays an important part in the Minister’s determination of whether or not he or she should exercise the power under that provision to refuse to grant a person a visa if the Minister is not satisfied that the person passes the character test. The Minister is obliged to give meaningful consideration to a submission which is squarely raised or clearly articulated.

(c)    Whether a claim has been squarely raised or clearly articulated will depend upon the facts and circumstances of an individual case. A claim or submission which is unsupported by any other material and is essentially a bare assertion is unlikely to constitute a claim or submission which has been squarely raised or clearly articulated.

(d)    In assessing whether this particular type of jurisdictional error has been established, it is critical to bear in mind the need to maintain the distinction between review of legality and merits review. This was emphasised by the Full Court in AXT19 at [56]:

56.    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

(e)    Careful consideration must also be given to the individual facts and circumstances of a particular case in determining whether or not the decision-maker has engaged in an active intellectual process and meaningfully considered a claim or submission which has been squarely raised. Some of the considerations which may be relevant to that assessment were identified by the Full Court in EVK18. They include whether the decision-maker’s reasons indicate that:

(i)    the decision-maker has not merely repeated the relevant claim, but has gone further and demonstrated an understanding of the factual basis upon which the claim has been made;

(ii)    the use of terms in a statement of reasons such as “acknowledge”, “note” and “I have taken into account” need to be read in context with a view to assessing whether they simply repeat the claim or submission which has been made or rather whether they are to be understood as an acceptance by the decision-maker that there is a factual substance to the claim or submission.

(f)    Although each case necessarily turns upon its own particular facts and circumstances, it may be noted, again by way of general guidance, that in EVK18 the Full Court explained at [35] why it was satisfied that the Assistant Minister there had engaged in an active intellectual process and that his reasons were more than a mere repetition of a claim. Rather, the use of terms there such as “acknowledge” and “I have taken into account”, when read in context, went beyond simply repeating the claim made and were to be understood as the Assistant Minister accepting that there was factual substance to the claim. The Full Court concluded at [35] as follows:

…

Such consideration of the materials of relevance to the claim in respect to “mental health” goes well beyond, for example, those statements of reasons to be found in other cases which merely summarise the claims made and thereafter make no attempt to go back and try to relate those claims to the materials relied upon and to each of the matters raised for consideration. The variety of references to the materials or relevance to the Appellant’s “mental health” expose an active consideration of the relevance of those claims to the matters otherwise required to be taken into account.

(h)    In GBV18 at [32(d)] the Full Court reaffirmed the Chief Justice’s important observations in an earlier case, which in their terms are directed to s 501 generally and not merely to s 501CA(3) (emphasis added):

The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis in original):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are 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. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(i)    Another important guideline is that identified by the Full Court in GBV18 at [32(e)] regarding the need, at least in some cases, for the decision-maker to make specific findings of fact as part of the process of giving meaningful consideration to a claim (or submission) which has been clearly articulated:

(e)    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “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”.

(j)    It is not suggested that the Minister must always make findings of fact in respect of every claim or contention of a person in the applicant’s position. That is made clear in binding authorities such as Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [46]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [41] and Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [103].

(k)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (Carrascalao at [48]). As has been emphasised, each case necessarily turns on its own facts and circumstances. Moreover, in accordance with well-established authorities, a statement of reasons is not to be read with an eye finely attuned to the detection of error (noting, however, the need not to overstate that principle, as observed by Bell P and Payne JA recently in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [79] and [80]).

Application of the principles to this case

52    For the following reasons, I consider that ground 1 of the further amended originating application has been established. That is essentially because the Minister has failed to make relevant findings underpinning his conclusion that non-refoulement obligations existed. Instead, the Minister purported to address the applicant’s submissions regarding complementary protection at a level of generality, including in respect of relevant findings in the applicant’s favour by the AAT, which failed to meet the requirements of a meaningful consideration of those submissions.

53    As previously mentioned, the Minister stated at [42] of his statement of reasons that he accepted that the AAT had found that the applicant is a person in respect of whom Australia has non-refoulement obligations (as to which, see the non-exhaustive definition of “non-refoulement obligations” in s 5(1) of the Act). I accept the Minister’s submission that, fairly read, this is an implicit and indirect reference to the AAT having found in the applicant’s favour that he met the complementary protection criteria (in circumstances where this was the only basis upon which the AAT concluded that there were non-refoulement obligations). But that is not the end of the matter. The following two points need to be made.

54    First, I do not accept the Minister’s submission that his acceptance of the fact that the AAT had found that Australia owed protection obligations to the applicant should be viewed as an acceptance by him of the factual substratum for that finding. I would not draw that inference in this particular case, not least because, as has been repeatedly emphasised, there is no direct reference at all in either the Minister’s statement of reasons or in the Department’s Submission to the applicant’s clearly articulated claims for complementary protection (as opposed to his refugee claims). Indeed, complementary protection is not even directly mentioned in either document, nor is there any reference in either document to the applicant’s claim that there was a real risk of him being arbitrarily deprived of his life if he were returned to his home country. Even if it were to be assumed in the Minister’s favour that he had personally read the AAT’s comprehensive reasons for decision, there is nothing in his statement of reasons which indicates that he appreciated or understood that the AAT had upheld the applicant’s claim for complementary protection and the basis upon which that conclusion had been reached, most notably with reference to the finding that there was a real risk that the applicant would be killed.

55    Secondly, and related to the first point, nowhere in the statement of reasons does the Minister state the basis upon which he apparently agreed that non-refoulement obligations were owed to the applicant. There is no analysis in the Minister’s statement of the complementary protection criteria or why those criteria were satisfied in the case of the applicant. Notably, there is no express reference in the statement of reasons to whether or not the Minister agreed with the AAT’s conclusion that the complementary protection criteria were satisfied in the applicant’s case because there was substantial grounds for believing that there was a real risk of arbitrary deprivation of life if he were returned to his country of origin. For reasons explained above, I do not accept that it is a fair reading of [42] of the Minister’s statement of reasons that the Minister was saying that he accepted the substratum of facts underpinning the AAT’s conclusion that non-refoulement obligations were owed in respect of the applicant. It might also be noted that the Department’s Submission did not address these matters either. This omission was in circumstances where, as noted above at [28], the applicant had emphasised in his “Personal Circumstances Form” that he “especially” relied on the AAT’s decision.

56    At [43], the Minister stated that “I note” the applicant’s submission that there was a risk that he would suffer the types of harm described in his protection claims. When the Minister’s use of the term “note” is viewed in context, it should not be read as the Minister stating that he accepted the factual substratum for the applicant’s submission. The sentence in [43] is pitched at such a high level of generality that neither the applicant nor any reasonable reader of the Minister’s statement of reasons could be confident that the Minister has appreciated (and accepted) that one of the harms feared by the applicant (as accepted by the AAT) was that he would be arbitrarily deprived of his life if he were returned to his country of origin. There can be no more serious harm. Moreover, the Minister then proceeded at [44] to summarise the applicant’s “refugee claims”, including that as a member of a particular ethnic group, the applicant “states that there have been clashes between [ethnic groups] and as an educated person he would be targeted by this”.

57    Again, it is notable that:

(a)    nowhere did the Minister state that he found that the applicant satisfied the complementary protection criteria because there were substantial grounds for believing that he was at risk of being arbitrarily deprived of his life if he were returned to his home country nor did he make any specific findings of fact in respect of the applicant’s claim why he met those criteria; and

(b)    similarly, there is no such analysis in the Department’s Submission.

58    The Minister did state at [45] that the applicant “fears clan-based fighting because his father received death threats in the past from foreigners and local politicians”. Fairly read, and in context, this statement relates to the applicant’s refugee claims, and not to his claims for complementary protection. In any event, the Minister did not make specific findings in respect of this matter.

59    At [49], the Minister stated that he had “had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the applicant’s] criminal offending in the making of my decision whether to refuse to grant him a protection visa”. For similar reasons to those given above in respect of [42] of the Minister’s statement of reasons, I do not accept his submission that [49] should be understood as the Minister taking into account and accepting the factual substratum for those obligations.

60    It is notable that nowhere in the Minister’s statement of reasons does he clearly explain how non-refoulement obligations exist in the applicant’s case, with particular reference to whether or not there were substantial grounds to believe that if he were returned to his country of origin he faced a real risk of significant harm in the sense of being arbitrarily deprived of his life. In particular, the Minister does not make any specific findings as to the nature of the “significant harm” (as defined in s 36(2A)) that the applicant would be exposed to so as to give rise to complementary protection obligations for the purposes of s 36(2)(aa) of the Act. Furthermore, the Minister made no explicit finding at all as to whether or not he agreed with the AAT’s conclusion, as relied upon by the applicant in resisting the proposed exercise of power under s 501(1), that there was a real risk of arbitrary deprivation of life if he was returned to his country of origin. Mr Lim did not dispute that there is no explicit or direct reference in either the Department’s Submission or in the Minister’s statement of reasons to the risk claimed by the applicant that if he were returned to his country of origin there were substantial grounds to believe that there was a real risk that he would be arbitrarily deprived of his life, i.e. killed.

61    The Minister needed to squarely grapple with the applicant’s submissions in relation to complementary protection and make relevant findings in order lawfully to weigh up the competing considerations which were relevant to the exercise of the discretion under s 501(1), namely whether the non-refoulement obligations arising from the applicant’s claim for complementary protection outweighed the seriousness of the applicant’s criminal offending, as referred to in [49] of the statement of reasons. The seriousness of the criminal offending is not in doubt. Whether or not it is outweighed by non-refoulement obligations required the Minister to make relevant findings which underpinned a conclusion that non-refoulement obligations were owed. For example, it is one thing to weigh the competing considerations where there is a risk that a person will be killed if they return to their country of origin, as opposed to being subjected to some lesser type of “significant harm” as defined in s 36(2A) of the Act. The Minister simply failed to turn his mind actively to analyse and make relevant findings in respect of the applicant’s claim for complementary protection. The failure is all the more poignant in circumstances where those claims had been accepted by the AAT. Yet the Minister never articulated why the balancing exercise under s 501(1) should be carried out in the manner that it was by him in circumstances where there was a claim, which had been accepted by the AAT, that there were substantial grounds to believe that there was a real risk that the applicant would be arbitrarily killed if he were returned to his home country. The Minister simply never confronted that significant and clearly articulated aspect of the applicant’s case.

62    It should be made abundantly clear that my reasoning above for finding jurisdictional error in this particular case does not mean that the Minister, in considering whether or not to exercise the power under s 501(1), is not entitled, in an appropriate case, to take a different view to that taken by the AAT in the review of a decision under s 65 of the Act. Equally, while noting that the decision-making process under s 501 is different to that under s 65 (or a review by the AAT of a s 65 decision), it is open to the Minister to adopt the AAT’s findings as long as he or she also meaningfully considers the applicant’s squarely articulated submissions.

63    The applicant did not suggest that s 501A was an exhaustive source of the Minister’s power to take a different view from that of the AAT where that body has conducted a review of a relevant migration decision. For the purposes of this proceeding, it may be accepted that the Minister’s power under s 501(1) entitles him, in an appropriate case, to take a different view from that of the AAT in a s 65 review and to refuse an applicant a visa in the circumstances specified in that provision. The fundamental point, however, is that in exercising that power, the Minister must act in accordance with legal requirements, which include giving meaningful consideration to clearly articulated submissions that have been made by the visa applicant and, in appropriate circumstances, making specific findings of fact in accordance with the caselaw as outlined above.

64    The Minister’s statutory obligation under s 501G to provide the person directly affected by an adverse decision under s 501(1) with a written notice which sets out the reasons for the decision (the content of which will be informed by s 25D of the Acts Interpretation Act 1901 (Cth)), is an important aspect of the Minister’s accountability and the transparency of the decision-making process. The imposition of that obligation on the Minister no doubt reflects the Parliament’s recognition of the grave consequences which may flow to a person directly affected by an adverse decision, as well as their family. While it is open to the Minister to take a different view to a visa applicant as to how the competing considerations should be balanced and the weight to be given to individual considerations in considering whether or not to exercise the power under s 501(1), the Minister must demonstrate that he has meaningfully engaged with the applicant’s submissions.

65    The need for an “efficient, transparent and accountable system for considering complementary protection claims” was expressly acknowledged in the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth), which introduced the complementary protection regime in the Act. The following relevant statements appear in the Explanatory Memorandum (bold emphasis added):

The Migration Amendment (Complementary Protection) Bill 2011 (the “Bill”) amends the Migration Act 1958 (the “Act”) to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under the International Covenant on Civil and Political Rights (the “Covenant”), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the “CROC”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”). Protection from return in situations that engage these non-refoulement obligations is often referred to as “complementary protection”, that being protection under international treaties that is additional to the protection given to refugees under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (the “Refugees Convention”).

The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

66    The need for the Minister to meet these legal standards and requirements is all the more stark in a case such as the present where the applicant asserted, and the AAT found, that there was a real risk that he would be killed if he were returned to his home country.

67    After judgment was reserved in this case, the Minister’s solicitor forwarded to the Court a copy of Kerr J’s recent judgment in CCF20 v Minister for Home Affairs [2020] FCA 676, which was published on 20 May 2020. Presumably the Minister relied upon the fact that Kerr J rejected a submission similar to that raised here, namely that the Minister failed to give meaningful consideration to a substantial and clearly articulated submission. CCF20 involved a Ministerial decision under s 501CA(4). Justice Kerr’s reasons for judgment vividly illustrate the point I have repeatedly emphasised above, namely that each case necessarily turns on its own particular facts and circumstances.

68    After carefully considering the structure and wording of the Minister’s statement of reasons there, particularly [25] and [26], as well as the terms of the applicant’s submissions and other relevant surrounding circumstances, Kerr J found that the Minister had implicitly adopted detailed and favourable findings of his Department, which had concluded that Australia owed non-refoulement obligations to the applicant there. His Honour said at [68]:

However, as noted, Mr Hill submits that what is plausible on first impression is less so once it is accepted that an inference may properly be drawn that what appears in the Minister’s reasons at paragraph [26] is responsive to the representations the Applicant made which the Minister had summarised at paragraph [25]. The result, he submits on behalf of the Minister, is that the only fair reading of paragraph [26] is that he should be understood to have expressed that he accepted not only his Department’s conclusion that the Applicant was owed non-refoulement obligations but also its findings in the ITOA as to the harms the Applicant was at real risk of suffering if returned to Somalia. Those were the same risks as those that the Applicant identified and pressed in his later representations to the Minister. By so adopting the findings in the ITOA, the Minister had sufficiently discharged his duty to engage in an active intellectual process with respect to those significant and clearly expressed relevant representations made by the Applicant in support of his revocation request.

69    In accepting Mr Hill’s submission on behalf of the Minister, Kerr J referred to the need for the Minister’s reasons to be read fairly and not with an eye keenly attuned to the perception of error (see at [51(j)] above), as well as to the effect of authorities such as Buadromo (see [51(i)] above). Notably, Kerr J described the case before him as “finely balanced” (at [73]) and as involving “quite unusual and specific circumstances” (at [75]).

70    As observed in GBV18 at [32(g)] and the relevant authorities referred to there, the question whether or not a decision-maker has meaningfully engaged with a clearly articulated submission is not resolved by a formulaic approach or by simply focussing upon whether some or all of the features of previously decided cased are present or absent in the case at hand.

71    I do not consider that there is any inconsistency between CCF20 and the outcome here. I have sought to explain above, in applying the relevant principles to this case, the particular relevant facts and circumstances which indicate that the Minister did not meaningfully engage with the applicant’s submissions that there was a real risk that he would be arbitrarily killed if he were returned to his home country. In contrast with the position in CCF20, that conclusion has been reached not only with reference to the Minister’s statement of reasons, but also to the relevant features of both the Department’s Submission and the detailed findings of the AAT.

72    For the reasons given above, I consider that the Minister failed to comply with the relevant legal requirements in the particular circumstances here.

Conclusion

73    For these reasons, time should be extended for the applicant to rely upon the further amended originating application. By consent, ground 1 of the further amended originating application should be heard and determined separately. The separate question is whether ground 1 of the further amended originating application should be upheld. The answer to the separate question is “Yes”. The Minister’s decision dated 11 September 2019 should be set aside. The applicant’s application for a protection visa should be remitted for reconsideration according to law. The Minister must pay the applicant’s costs of the hearing and determination of the separate question, as agreed or taxed. Having regard to the fact that the hearing and determination of ground 2 remains outstanding, the parties should have liberty to apply to have the matter relisted. Appropriate orders will be made accordingly.

74    Finally, the Court expresses its gratitude to Mr Poynder of counsel who accepted a referral from the Court to act as the applicant’s pro bono counsel. He provided considerable assistance to the Court, as did the Minister’s counsel, Mr Lim, as is his custom.

Associate:

Dated:    25 May 2020