FEDERAL COURT OF AUSTRALIA

CMA19 v Minister for Home Affairs [2020] FCA 736

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 30.11 of the Federal Court Rules 2011 (Cth) this proceeding be consolidated with proceeding VID 351/2020, and the consolidated proceeding be known as CMA19 v Minister for Home Affairs and Anor and identified with proceeding number VID 888/2019.

2.    A writ of certiorari issue to quash the decision of the First Respondent made on 24 July 2019 to refuse to grant the Applicant a protection visa.

3.    A writ of mandamus issue to require the First Respondent (whether personally or by his delegate) to determine the Applicant’s application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) as soon as reasonably practicable, and within a period to be fixed following further submissions.

4.    The First Respondent pay the Applicant’s costs of the application.

THE COURT DECLARES THAT:

5.    The First Respondent failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the Applicant a Safe Haven Enterprise visa (protection visa) under s 65 of the Act as soon as reasonably practicable.

6.    The First Respondent has failed (whether personally or by his delegate) to make a decision whether to exercise the discretion under s 501 of the Act to refuse to grant the Applicant a protection visa as soon as reasonably practicable.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant is a young Sri Lankan man, of Tamil ethnicity and Y faith. He spent from the age of 15 until he was 20 years old as a member of the Liberation Tigers of Tamil Eelam (LTTE), actively engaged in the civil war in Sri Lanka. He fled that country in May 2007 to Country A, and arrived in Australia by boat, without a visa, in December 2009. He has been held in immigration detention ever since.

2    The tragedy of this case is that the applicant has lost the prime of his life; having been recruited as a child to fight in a brutal civil war from ages 15 to 20, and having then been confined to immigration detention in Australia from ages 24 to 34, with no end in sight.

3    The applicant applied for a Safe Haven Enterprise (subclass 790) visa (protection visa) on 30 March 2016, doing so promptly once the Minister lifted the bar which prohibited him from making a valid visa application. On 24 July 2019 the first respondent, the Minister for Home Affairs (the Minister), personally decided to refuse to grant the applicant the visa on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act). By this proceeding, the applicant seeks judicial review of that decision, declarations that his detention has been and continues to be unlawful and an order that he be released from detention.

4    The Minister’s decision to refuse to grant the applicant the visa was made against the backdrop that:

(a)    from the ages of 15 to 20 the applicant was an active member of the LTTE and a combatant in the civil war. That included about a year working as an intelligence officer at around age 19 when his activities included surveillance and reporting on civilians who were thought to be cooperating with or affiliated to the Sri Lankan Army and authorities. The applicant accepted that people who he reported on may subsequently have been killed on the orders of his superiors in the LTTE. The applicant’s representative submitted that those activities were undertaken under duress or involuntarily; but the Minister found that the applicant acted voluntarily;

(b)    regardless of whether or not the applicant acted under duress, he has now been detained for more than a decade, and the Minister accepts that there is currently no known prospect of removing the applicant to any other country. He therefore faces indefinite ongoing detention;

(c)    the Minister has positively concluded that the applicant poses no risk of harm to the Australian community;

(d)    the applicant’s mental health has suffered badly from his ongoing detention. He attempted self-harm in March 2011 and again in September 2012, and he has twice required inpatient treatment at a mental health hospital, first in July 2015 for a period of six weeks, and then in December 2016 for three weeks;

(e)    a strikingly large number of people of apparently good repute have provided character references attesting to the applicant’s good character, including a former Centre Manager and former Serco officers at MITA Detention Centre where the applicant has been detained, and a diverse range of other people of apparently good repute who have met or visited the applicant over his years in detention. The number and quality of the character references strongly support the Minister’s conclusion that the applicant does not present a risk to the Australian community; and

(f)    the Commonwealth Ombudsman has repeatedly recommended that having regard to the applicant’s mental health and the length of his detention he should be granted a bridging visa and be released into community detention.

5    For the reasons I explain, I am satisfied that the Minister fell into jurisdictional error in deciding to refuse to grant the applicant a protection visa under s 501(1) of the Act. It is appropriate to order that the Minister’s decision be quashed, and that the applicant’s application for the visa under s 65 of the Act be re-determined in accordance with law. Further, given the serious and unacceptable delay in determining the applicant’s protection visa application it is appropriate to make declarations to record that fact, and to order the Minister to re-determine the application as soon as reasonably practicable, and within a time frame to be fixed. I will hear submissions from the parties as to a reasonable period to fix within which the application must be re-determined.

6    The applicant also seeks a declaration that his continuing detention is unlawful and not authorised by Division 7 of Part 2 of the Act because its duration exceeded that which was reasonably necessary to consider and determine his application, and orders for his release forthwith. For the reasons I explain, in my view the authorities provide that the applicant’s past and continuing detention is lawful.

7    Having regard to the order requiring the re-determination of the application for a protection visa, the next step in the proceeding will be either an appeal or that re-determination. But further hearings and more litigation while the applicant remains in detention is not the best way forward. This case starkly reveals the stalemate that has arisen. The Minister has decided that the applicant should not be granted a visa principally because, in the Minister’s view, the Australian community would expect that a person who engaged in intelligence activities for the LTTE, which the Minister reasonably suspected constituted war crimes or crimes against humanity, should be denied a visa. But the applicant cannot be returned to Sri Lanka because to do so would be in breach of Australia’s international non-refoulement obligations and there is no known prospect of him being removed to any other country.

8    There is a real risk that if the applicant is required to remain in detention for a further indefinite period his mental health will continue to deteriorate and his life will be at risk. In circumstances where the Minister accepts that the applicant poses no risk to the Australian community, in my respectful view the Minister should give urgent consideration to the special circumstances of the applicant’s case, including considering community detention. It is a matter for the Minister to decide, but this young man has already spent more than a decade in immigration detention, his life is passing fast, and it does not serve anyone for him to be stuck there indefinitely.

The factual and procedural history

9    I have drawn the following from the materials before the Court.

10    The applicant is 34 year old Tamil man from Area C District in Sri Lanka. He is married and has a young daughter but because of his circumstances he has been separated from his wife and child since November 2009.

11    In May 2007, while the civil war in Sri Lanka raged, the applicant fled to Country A. He was followed not long afterwards by his wife, daughter and mother. While in Country A the applicant registered with the UNHCR and he was interviewed for a Refugee Status Determination on 18 February 2009. His status as a refugee was not however determined by November 2009 when he left Country A to travel to Australia, via Country B.

12    The applicant arrived in Australia by boat in December 2009, without a visa. He was therefore an ‘unauthorised maritime arrival’ as then defined under the Act. He was detained in immigration detention where he has remained ever since.

The Refugee Status Assessment

13    As an ‘unauthorised maritime arrival’, the appellant was not permitted to apply for a visa. Instead, his claim for protection as a refugee was assessed by a process of an initial Refugee Status Assessment (RSA) conducted by an officer of the Department of Immigration and Citizenship (Department).

14    It should be noted that over the period the applicant has been in detention, the name and responsibilities of the relevant Department and Minister have changed and relevant decisions have been made by different Ministers. For example, it was the Minister for Immigration and Border Protection who lifted the s 46A(1) bar on lodgement of a valid visa application, and it was the Minister for Home Affairs who made the decision which is the subject of judicial review. The proceeding was commenced against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs but the first respondent was later amended to the Minister for Home Affairs. For convenience, I use the terms “Department” and “Minister” uniformly for the different names of the respective Ministers and their Departments.

15    On 19 December 2009 the applicant was interviewed for the purpose of initial entry processing. On 30 January 2010 he applied for a RSA and in support of that application he provided a statutory declaration dated 30 January 2010 to the Department. He claimed to fear that if he returned to Sri Lanka he will be forced to join the Karuna or Pillayan groups, both Tamil-based paramilitary organisations, or that he would be killed, and that the Sri Lankan authorities would not protect him. He made no mention of having had any involvement in the LTTE. The applicant was interviewed for the RSA by a delegate of the Minister on 4 February 2010 and he again said nothing about any LTTE involvement.

16    On 17 March 2010, a Departmental officer concluded that the applicant was not a refugee and refused the request for an RSA because he did not hold a profile of concern to the Sri Lankan government based on his lawful exit from that country in possession of a genuine passport issued in his name and due to improvements in the security situation in eastern Sri Lanka.

17    Then, on 23 March 2010 the Department received a Refugee Status Assessment Form dated 18 February 2009 from the UNHCR in Country A, which purported to record the claims the applicant made to that organisation. In summary, it recorded the applicant as having made the following claims:

(a)    he joined the LTTE in 2000, when he was only 15 years old. He did so of “his own free will” because he was angry that his father had been killed and burnt by the Sinhalese on account of being a Tamil;

(b)    he undertook military training for six months and was then placed in a “battle team” under the leadership of Colonel P, based in Area C. He took part in 15-20 battles against the SLA and organisations affiliated to the SLA during which he shot at people. He was however unsure whether he had killed anyone because, as he later explained, the shooting was mostly at a distance, at night and in jungle;

(c)    after about one year in the battle team, in about 2002/2003, he was selected to join the LTTE Intelligence Unit under Colonel M. He held that role for approximately one year and was assigned to collect information and conduct surveillance in Town C. This was a very dangerous job because of Sri Lankan police activity and he was in constant danger of being discovered;

(d)    there were two types of intelligence information to be obtained, “military” and “normal”. His task was to obtain military information, being information on organisations affiliated to the SLA. Another aspect of his job was to get information from the public and provide that back to the Intelligence office during weekly meetings with Colonel M. During those meetings Colonel M would make decisions and delegate further work. For instance, if a particular group or person affiliated with the SLA made frequent visits to the SLA in his area he would inform Colonel M of that. The Colonel would then decide the course of action to be taken. If Colonel M deemed the person to be “problematic” he would order the person to be shot. He did not however personally harm any civilian in the course of his duty;

(e)    in about 2004/2005 the applicant was assigned to the Politics Unit. Before starting work with that unit he was sent for six months intensive training including in heavy weapons. He was then sent to work as a political leader in Town C where he met with the founder and leader of the LTTE, Mr Prabakharan. In this role he had 35 subordinates and his duties included meeting with government servants in the area, handling corruption issues, managing funds and food supplies for the LTTE and handling complaints. In this period he did not engage in any battles and neither he nor his subordinates harmed any civilians in the course of their duty;

(f)    his ageing mother pleaded with him to leave the LTTE so he could care for her and she wrote a letter to Mr Prabakharan, seeking the applicant’s release from the LTTE. There existed a ruling within the LTTE that those who had served more than five years could apply to leave provided there was a good reason for doing so. He was permitted to leave but his punishment for doing so was that he was required to work as a cook for the LTTE for about six months. He was ultimately released in May 2006 after some LTTE leaders in the area spoke up on his behalf;

(g)    following release from the LTTE he could not live in Area C because he feared for his life there, and he moved to Town D where his fiancée lived. He was not though safe in Town D because of the poor security situation and the ongoing battles in Town D. The SLA regularly conducted checks, and he was rounded up twice. On one occasion he was detained and not permitted to leave for a period. There was also racial conflict and tension between the Tamils and Muslims in the area;

(h)    because of the deteriorating security situation in Town D the applicant followed Mr X and moved to Town E, to live in a building there. While living in Town E he married his fiancée. It was not safe for him to stay in Town E because the Karuna and Pillayan groups had offices there and they were looking for new faces in the area and would round them up. To avoid them he hid and stayed indoors in the church or in a neighbour’s house;

(i)    in August 2006 he and his wife moved to Town F to live with his Mr Z. In Town F he faced problems because it was a Sinhalese area with very few Tamil people. The Sri Lankan authorities came to know of his presence in the area and questioned him on several occasions. They threatened him that if there were any bombings in the area he would be held responsible. As a result he was unable to remain in Town F;

(j)    he and his wife returned to Town D but they could not live there because his house, along with others, had been destroyed in the war. Apart from that, he also feared the Karuna and Pillayan groups who had set up offices in many areas and were moving towards Town D. There were also frequent inspections and roundups by the SLA;

(k)    he believed that if returned to Sri Lanka he would be abducted or killed by the Karuna and Pillayan groups. He had worked with the leaders of both groups when they were still LTTE members and they knew of his LTTE involvement and activities. At that time those leaders were members of Parliament or held positions in the Area C government and worked with the government in killing many LTTE members and supporters. He also feared the Sri Lankan authorities as a former LTTE member; and

(l)    he regretted joining the LTTE. The only reason he did so was because he was angry over the murder of his father and his joining was at a time when he was young and impressionable. He wanted nothing more to do with the LTTE.

18    Following receipt of the Refugee Status Assessment Form from the UNHCR, the delegate held a second interview with the applicant on 20 April 2010. During this interview the applicant said that the claims he made to the UNHCR were fabricated and that he was never a member of the LTTE. However, on 29 May 2010 the applicant’s migration agent informed the Department that during an interview with the Australian Security Intelligence Organisation the applicant had made admissions that he had been a member of the LTTE.

19    On 16 August 2010 the applicant’s migration agent submitted a further statutory declaration, incorrectly dated 5 January 2010 (the August 2010 Declaration). The applicant said that he had lied about his LTTE involvement in his January 2010 Declaration because he heard that Australia was refusing asylum to Tamils who had been LTTE members, and he could not return to Sri Lanka where his life was in danger. He said that the statement he provided to the UNHCR was “true and correct in every respect”.

20    On 2 September 2010 the applicant was again interviewed by a delegate of the Minister, including so as to afford him an opportunity to provide information as to why he should not be excluded from protection under the provisions of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) by operation of Article IF. That Article, now reflected in s 5H(2)(a) of the Act, relevantly provides:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)    he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

….

21    In the third interview the applicant reiterated what he had said to the UNHCR, including the following:

(a)    he was approached by the LTTE when he was only 15 years old. He was reluctant to join and they threatened that if he did not join they would kill him, harm his mother and force his younger brother to join;

(b)    when he attended the initial LTTE training camp he and some other boys tried to escape. They were caught and punished by having their head shaved and beaten in front of others in the camp;

(c)    when he was assigned to the Intelligence Unit he was required to meet daily with and take direction from Colonel M. His role was to identify civilians suspected of working with the SLA or passing through LTTE controlled areas. Once a person was identified they were detained and transported back to base in a van. Those people were then handed over to the Central Intelligence unit (CI) who undertook their own questioning. He was aware that CI would imprison people of concern to the LTTE and kill them if they were of major concern, but he was not aware of any cases of people he had detained and handed over subsequently being killed;

(d)    in 2004 he was deployed to Town C and he was given a more responsible role; to meet with people who were of adverse interest to the LTTE, such as those people who may have been involved in abducting young boys. He would warn them if they continued their activities they would be kidnapped or shot by the Intelligence Unit and if his warnings were ignored he would inform Colonel M. He came to realise that he was the cause of other people suffering, but he was being monitored and he feared he would be killed if he did not fulfil his duties; and

(e)    accordingly, in early 2005 at the age of 19, he sought transfer to the Politics Unit. In this role he worked closely with the LTTE ‘government’ and investigated allegations of corruption against LTTE government officials. After the representations by his mother he was released from the LTTE in May 2006.

22    On 1 October 2010 the applicant’s migration agent provided a further submission to the RSA addressing concerns as to the operation of Article 1F in relation to the applicant’s claim. The submission reiterated that the applicant had been recruited into the LTTE by threats to kill him or to forcibly recruit his younger brother. It said that the applicant never personally harmed anyone and he was sorry for any harsh interrogation which may have followed the arrest of SLA spies that he had reported on. The submission included a copy of the New Zealand Supreme Court judgment in the Attorney-General (Minister of Immigration) v Tamil X and Anor [2010] NZSC 107 in which the Court rejected a government appeal against a finding that the LTTE involvement of an asylum seeker did not fall within Article 1F of the Convention.

23    On 11 May 2011 the RSA was completed. The delegate found that while the applicant’s fear of persecution, as defined under the Refugees Convention, was well-founded, he was excluded from protection under Article 1F(a) on the basis that there were “serious reasons for considering” that, in his role as an intelligence officer for the LTTE in Area C between 2003 and 2004, the applicant had participated either directly or as an accessory in the abduction, detention, interrogation, execution and disappearance of members of the Tamil civilian population who were suspected of having links to the SLA, which in some cases would have amounted to a war crime or a crime against humanity.

The Independent Merits Review

24    The applicant sought Independent Merits Review (IMR) of the RSA decision and he was interviewed by another delegate of the Minister on 9 August 2011.

25    On 20 January 2012 the delegate affirmed the primary finding of the RSA that, while the applicant had a well-founded fear of persecution in Sri Lanka which may result in his meeting the definition of a refugee under Article 1A of the Refugees Convention, there were serious reasons for considering that he was actively involved in the commission of war crimes or crimes against humanity and was therefore excluded from protection pursuant to Article 1F(a) and therefore does not meet the criterion for a protection visa set out in s 36(2) of the Act.

Judicial Review

26    On 24 February 2012 the applicant sought judicial review of the IMR assessment in the Federal Magistrates Court, doing so on the basis that he had been denied procedural fairness because certain country information reports relied on by the IMR were not put him to comment. On 5 September 2012 that application was dismissed. On 25 September 2012 the applicant appealed to the Federal Court. The appeal was dismissed on 13 February 2013: MZYVM v Minister for Immigration and Citizenship [2013] FCA 79; (2013) 139 ALD 497.

The International Treaties Obligations Assessment

27    An International Treaties Obligations Assessment (ITOA) was subsequently undertaken by a delegate of the Minister, for the purpose of assessing whether Australia had non-refoulement obligations in relation to the applicant. On 16 June 2014 the delegate concluded that:

(a)    the applicant had a well-founded fear of persecution in Sri Lanka for a Refugees Convention reason but was not entitled to protection by Australia as there were serious reasons for considering that he had committed crimes against humanity in Sri Lanka; and

(b)    the applicant faced a real risk of being subject to significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka, which would breach the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, but did not satisfy the complementary protection criteria in s 36(2)(aa) by operation of s 36(2C).

The protection visa application

28    On 2 December 2015 the Minister exercised the power under s 46A(2) of the Act to allow the applicant to make, for the first time, a valid application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). By that point the applicant had been in detention for six years.

29    On 30 March 2016 the applicant lodged an application for a protection visa. The applicant’s representative, Victoria Legal Aid, made four separate written submissions in support of the application, dated 30 March 2016, 23 August 2016, 26 August 2016 and 22 January 2017, and the applicant was interviewed by a delegate of the Minister (the PVA delegate) on 6 December 2016.

30    On 7 March 2017 the PVA delegate completed the Protection Visa Assessment (the PVA decision). The PVA delegate found that the applicant is a refugee as defined in s 5H(1) of the Act because he has a well-founded fear of persecution in Sri Lanka for a Refugees Convention reason, and was also satisfied that the applicant is owed complementary protection as provided for in s 36(2)(aa) of the Act. The PVA delegate was satisfied that there were not serious reasons for considering the applicant had committed a war crime or a crime against humanity because, as a result of duress, the applicant did not possess the necessary mental elements of intent and knowledge in respect of the relevant conduct. In making that finding, the PVA delegate undertook a thorough review of the evidence, took into account the contrary findings of the RSA, IMR and ITOA, and made detailed factual findings.

31    The PVA delegate’s findings include the following:

125.    …I am satisfied the applicant was forcibly recruited, as he claims. His explanation regarding the information he supplied to the UNHCR in [Country A] is plausible, and his claim is entirely consistent with independent information about the practices of the LTTE. While I accept the applicant may have harboured anger about the death of his father, I reject that such a ‘decision’ of a 15 year old child, accompanied by threats of harm against him and his family, could realistically be characterised as voluntary.

…

129.    There are strong reasons for considering the applicant joined the LTTE due to fear of imminent death or of continuing or imminent serious bodily harm against him or his family and in circumstances where he felt he had no choice but to comply with their demands. This amounts to a circumstance of duress.

130.    The applicant described at the SHEV interview on 9 December 2016 the fear he felt after being taken to a training camp in the jungle. He described attempting to escape from the LTTE a short time later and the punishment he received as a result: he was beaten, had his head shaved in front of other recruits and was placed in an underground bunker. He later witnessed other recruits similarly punished. This experience is also consistent with information reported by the [Office of the High Commissioner for Human Rights]…

131.    The conditions in which the applicant was forcibly recruited and held against his will during his initial training were sufficiently violent and threatening to constitute a subjective (if not objective) fear of a continuing threat of serious bodily harm.

132.    After completing his military service in an LTTE jungle battalion under the leadership of Karuna, the applicant, through no choice of his own, was transferred to the intelligence wing in late 2002 where the particular criminal conduct relevant to this assessment occurred. This was around the time of his 17th birthday. The applicant had by then spent two years under the exclusive control of the LTTE and had been denied any contact with his family and friends. I conclude that the applicant’s military service and his transfer to the intelligence wing occurred under a circumstance of duress.

133.    According to his evidence given over several interviews with the Department, the applicant served the LTTE for around a year each in both internal and external intelligence roles while he was 17 and 18 years old. He operated in an undercover intelligence capacity in a government-controlled area in which any slippage of his persona would have exposed him as an LTTE spy and resulted in his serious bodily harm or death at the hands of paramilitaries or government forces. Consistent with country information referenced above, in the event he had abandoned his role, he would almost certainly have been captured by these groups and subjected to serious bodily harm or death. Within the LTTE, any expression of wavering or reticence in relation to his duties would raise fears that he could compromise their mission or suspicion of treason.

134.    The applicant has stated that he was aware that ‘traitors’ or others of concern to the LTTE were dealt with harshly through imprisonment, disappearance or summary execution. The applicant’s account of his circumstances is consistent with numerous reports about military and political developments at the time. …

135.    The applicant claims that as he started to become aware of the consequences of his work, he sought to transfer to the political wing. This was agreed in late 2004, around the time of the applicant’s 19th birthday.

136.    It is my view that these circumstances constitute duress. The applicant had no option but to carry out his duties as directed: failure to do so would have likely resulted in the serious bodily harm or death of the applicant or of his mother or brother, who, like the applicant, had no option to relocate or to seek out protection from any other source. There is no available evidence that suggests the government of Sri Lanka offered sanctuary or protection to people such as the applicant and his family, fleeing harm from the LTTE and a range of paramilitary groups operating in [Area C]. On the contrary, there is extensive evidence that escaped LTTE operatives were either imprisoned as terrorists or killed in summary executions, generally after being tortured to extract information. The final stages of the conflict in 2009 offer a compelling record of the lack of internal flight options available to Tamils generally, and to LTTE operatives in particular.

32    The PVA delegate summarised the factors considered in relation to duress, as follows:

139.    I have also considered the requirement at Article 31(1)(d) of the Rome Statute that, for duress to be established, ‘the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.’ In assessing this, I take into account a range of mitigating factors discussed throughout this assessment:

•    the applicant’s forcible recruitment into the LTTE,

•    the fact that the applicant was just 15 when he was separated from his family and placed into a jungle camp and subject to training and indoctrination as an LTTE operative,

•    the fact that the applicant attempted to escape from the LTTE training camp and was severely punished,

•    the fact that the applicant witnessed and was aware of other conscripts seeking to escape from the LTTE training camp who were similarly severely punished,

•    the fact that the applicant did not voluntarily seek to transfer to the Intelligence division,

•    the fact that the applicant was just 17 at the time of his transfer to the Intelligence division, and so below the age of criminal responsibility according to Article 26 of the Rome Statute,

•    the fact that the conduct which gives rise to exclusion considerations occurred for a period not exceeding one year once the applicant had reached the age of 18,

•    the fact that the applicant actively sought and eventually did obtain a transfer from the Intelligence Division as he became more aware of its operations and the consequences of his work there,

•    that the applicant described his time in the LTTE, including while in the intelligence division as being in fear of serious harm from the LTTE, the SLA or pro-government militia if he deserted.

•    that the applicant (and his family) had no option to escape and relocate to another part of Sri Lanka, and that no state protection was available to them.

33    On 14 March 2017, the Department informed Victoria Legal Aid that the applicant had been found to be a refugee and that he was not excluded from refugee status under Article 1F of the Refugees Convention.

34    For reasons which are not clear on the materials the applicant was not provided with a copy of the PVA decision at that time.

The Notice of Intention to Consider Refusal

35    On 17 May 2017, only two months after the PVA delegate found that the applicant was entitled to protection under the Act, the Department sent the applicant a “Notice of intention to consider refusal of your visa application under s 501(1) of the Migration Act 1958” (the NOICR). The notice informed the applicant that consideration was to be given as to whether to refuse his visa application on the basis that the nature and extent of his involvement in the activities of the LTTE was such that he may not meet the ‘character test’ by virtue of s 501(6)(ba)(iii) of the Act.

36    Section 501(6)(ba)(iii) provides:

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

…

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

…

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct;

…

37    The NOICR did not state whether the Minister personally or a delegate would be the decision-maker, and said:

If the decision-maker is a delegate of the Minister, they must follow Ministerial Direction 65 - Visa Refusal and Cancellation under s 501. Direction 65 is enclosed for your information. If the Minister makes a decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account.

Read Direction 65 carefully. As you are a visa applicant you should address each paragraph in Part B that is relevant to your circumstances. Annex A of Direction 65 includes information for decision-makers on how to apply the character test provisions.

38    On 18 May 2017 Victoria Legal Aid requested, and was subsequently provided, a copy of the PVA decision.

39    On 20 June 2017 Victoria Legal Aid made submissions in response to the NOICR which in broad summary contended that the applicant passed the character test, was a person of good character, posed no risk to the Australian community and should be granted a visa. The submissions expressly relied upon the earlier submissions provided to the Department in relation to the applicant’s visa application.

40    The attachments to the submissions included numerous character references attesting to the applicant’s good character, including from:

(a)    Mr Garry Simpson, the Centre Manager at the Melbourne Immigration Transit Accommodation (MITA) detention centre between November 2014 and August 2015;

(b)    Mr Chris Papas, a Serco officer at MITA who had known the applicant since his arrival there in 2012;

(c)    Ms Shona Amos, a Serco officer at MITA between 2012 and 2015;

(d)    Ms Kristal Hrysicos, an ESL teacher who had visited the applicant approximately weekly at MITA since early 2013;

(e)    Mr Patrick Walsh, who had visited the applicant at MITA and became his friend;

(f)    Ms Dori Ellington, a chef who had organised a cooking class at MITA that the applicant had participated in and subsequently became his friend;

(g)    Sister Elizabeth Young, who first met with the applicant when she was a pastoral worker at the Curtin Detention Centre in 2012 and became a regular weekly visitor for the nine months in which he lived in Port Augusta Immigration Residential Housing in that year. She stayed in contact with the applicant when he moved to MITA and when she moved to Melbourne in 2017, she recommenced visiting him;

(h)    Dr Eva Saar, a pharmacist working in the Victorian Department of Justice & Regulation, who had visited the applicant approximately weekly since May 2015;

(i)    Ms Denise Becker, a bio-statistician with the Murdoch Children’s Research Institute at the Royal Children’s Hospital, who first met the applicant at MITA in early 2013 and who has written multiple letters in support of the applicant’s release from immigration detention;

(j)    Ms Caroline McLennan, who had visited the applicant at MITA since 2012;

(k)    Ms Stephanie Flynn, who had visited the applicant at MITA since 2013;

(l)    Ms Eliza Leverett, a high school teacher who had visited the applicant at MITA since 2014;

(m)    Mr Yusuke Akai, who had been the applicant’s guitar teacher;

(n)    Dr Mark Chu, a senior forensic toxicologist, who had visited the applicant at MITA since 2016 after meeting him in 2015;

(o)    Mr Brad Coath, who had visited the applicant at MITA since 2012 and who organised a group of men, including the applicant, from MITA to cook lunches at churches around Melbourne in 2014 and 2015;

(p)    Father Peter Carrucan of the Catholic Archdiocese of Melbourne, who first met the applicant as a volunteer Pastoral Care worker in 2009, and had regularly visited the applicant at MITA;

(q)    Ms Donna Lynch, a Youth residential care worker with Berry Street Victoria, who met the applicant in 2014 and who had visited him regularly since then; and

(r)    Dr Colleen Jackson, a catholic nun who had known the applicant since 2011.

41    The comments made about the applicant in these letters of support describe the applicant in glowing terms. Despite the applicant’s limited capacity to be involved in the community he was variously described as being a close friend and, in one case, “a very important part of my family” in the letters. One of the letters described the applicant as “one of the most gentle and engaging people I have ever met” and another said that the applicant was “one of the most sincere and respectful students I have ever had in my teaching career that spans over 15 years”. Mr Simpson, the former Centre Manager at MITA said “I welcome [the applicant] into Australian society as [a] refugee and can truly identify and justify the benefits he can make to our country and our culture.” Ms Amos, a former Serco Officer, said “I am continually moved by his gentle nature, his generous heart, his hard work ethic, his sense of compassion, his commitment to seeing the best in people and his desire to make a positive and heart-felt difference in the lives of those around him.”

42    The applicant’s submissions of 20 June 2017 concluded as follows:

It can be safely concluded that [the applicant] passes the character test. He is manifestly of good character. There is no evidence he is of any risk whatsoever to the Australian community. None of these contentions encounter any serious counterargument. He has endured an extraordinarily long period of immigration detention. I respectfully request that the resolution of his visa application be expedited consistent with fair consideration of the question regarding his character, and that while the final steps in the processing of his application are completed, that he be granted a bridging visa.

43    On 29 August 2017 the Department informed Victoria Legal Aid that due to a pending court appearance by the applicant scheduled for 14 September 2017, the Department would await the outcome of that court matter before progressing consideration of the applicant’s case. The pending court appearance concerned an application for a provisional apprehended domestic violence order, in relation to telephone communications between the applicant and a woman with whom he had previously been detained.

44    On 20 October 2017 Victoria Legal Aid sent an email to the Department stating that, while the applicant strenuously denied the allegations, in order not to further delay consideration of his visa application, he had consented without admissions to the provisional order sought and that he had not been found guilty of an offence. The court matter having been resolved, Victoria Legal Aid requested that the applicant’s visa application be expeditiously finalised. On 24 October 2017 Victoria Legal Aid informed the Department that it did not wish to add anything further beyond what was contained in the email of 20 October 2017.

45    It is worth noting that in later submissions dated 15 April 2019 the applicant said that he had been friends with the woman while in detention but they had never had a romantic relationship. He said that was a disappointment to the complainant and her conduct became obsessive. When she learned that he was in a relationship with another woman, she lodged the complaint. The applicant’s girlfriend provided a statement essentially reiterating those matters and detailing her harassment by the complainant by telephone and social media. The submissions noted that the applicant consented to the provisional apprehended domestic violence order without admissions, it was not a criminal sentence, he had not breached the provisional order which expired in August 2018, and he was not charged with any offence in connection with the allegations. The Minister ultimately accepted the applicant’s submissions in this regard.

46    The next procedural occurrence disclosed in the Court Book did not occur until 18 January 2019, approximately 3 years after the applicant had lodged his visa application, 15 months after he was issued with the NOICR, and some 451 days after the last submissions by the applicant in late October 2017. On 18 January 2019 the Department wrote to Victoria Legal Aid stating that “new information” had been identified which the decision-maker may take into account. The so-called “new information” was the ITOA assessment dated 16 June 2014 which had been known to the parties since that date and had been the subject of extensive submissions. That appears to have further delayed consideration of the applicant’s visa application.

47    The applicant relies upon the unexplained delay of 451 days between 24 October 2017 and 18 January 2019, during which time it was not apparent that any action was taken in relation to the applicant’s visa application, as demonstrating a failure by the Minister or his delegate to make a decision in relation to the applicant’s visa application within a reasonable time.

48    On 28 February 2019, Ministerial Direction No. 65 (Direction 65) was replaced by the new Ministerial Direction No. 79 (Direction 79), which was only different in ways which are not material for the purposes of this application. On 1 March 2019 the Department wrote to Victoria Legal Aid stating that Direction 79 would be used in place of Direction 65. The letter substantially reproduced the paragraphs of the NOICR but with reference to Direction 79 rather than Direction 65. The letter invited further submission from the applicant, in response to which the applicant’s representatives lodged the 15 April 2019 submissions referred to above.

49    By that time the applicant had been detained for more than nine years and the submissions again urged prompt consideration of his visa application.

The Minister’s decision

50    On 24 July 2019, the Minister, acting personally, decided to refuse to grant the applicant a protection visa, doing so on the basis that the applicant did not pass the character test under s 501(1) of the Act.

51    The Minister said (at [97]-[98]) that he reasonably suspected that the applicant “joined the LTTE in 2000 at the age of 15 years of his own free will and performed his duties voluntarily during his service in the LTTE.” He said (at [96]):

On balance, and contrary to the PVA findings, I have not accepted [the applicant’s] claims that his activities with the LTTE were not voluntary.

On the basis of the applicant’s activities as an intelligence officer with the LTTE the Minister concluded (at [98]) that he reasonably suspected that the applicant “knowingly and voluntarily contributed to war crimes and/or crimes against humanity, and thus actively participated in, or ha[d] at least been concerned are implicated in such conduct”, and thus had been “involved in” such conduct. The Minister’s factual findings in this respect directly contradicted the findings of the PVA delegate. On that basis the Minister found that the applicant had failed to satisfy the Minister that he passed the character test by virtue of s 501(6)(ba)(ii) of the Act.

52    The Minister then turned to consider whether to exercise the discretion under s 501(1) of the Act to refuse to grant the applicant a protection visa, doing so under the various headings in Direction 79.

53    Under the heading “Protection of the Australian community” the Minister addressed two considerations: the nature and seriousness of conduct; and the risk to the Australian community.

54    Under the subheading “Nature and seriousness of conduct” the Minister said that war crimes and crimes against humanity are viewed seriously by the Australian community, and in that regard the Minister considered the applicant’s conduct to be serious in nature (at [104]-[105]).

55    Under the subheading “Risk to the Australian community” the Minister concluded that:

(a)    given that the applicant left the LTTE three years before its defeat, the likelihood of the applicant participating in conduct of a similar nature was low (at [109]);

(b)    the applicant is not a security risk (at [110]); and

(c)    the applicant has not been recorded as having any major adverse behavioural incidents during more than nine years in immigration detention, and many people including Departmental and detention centre staff had written letters of support speaking favourably in relation to his character and demeanour (at [112]).

Taking into account those factors, the Minister concluded (at [113]) that the applicant would not present a risk to the Australian community.

56    Under the heading “Expectations of the Australian community” the Minister said the following (at [115]-[119]):

115.    I have considered that Australia has a low tolerance of any serious conduct by visa applicants.

116.    I have noted that [the applicant] has no recorded criminal history or reported major behavioural incidents in immigration detention. Further, I have considered the submission provided by [the applicant’s] legal representative that contends [the applicant] is of good character, on the basis of ‘voluminous reporting materials provided by members of the Australian community, including departmental and security staff who have interacted with [the applicant] over many years while he has been detained’. The legal representative submits that ‘this evidence reflects the expectations of the Australian community’.

117.    However, as noted earlier, I reasonably suspect that [the applicant] has been involved in conduct constituting crimes against humanity and/or war crimes. I have considered that the broader Australian community would expect that non-citizens who are reasonably suspected of having been involved in conduct constituting these types of crimes should not be granted a protection visa including a SHEV.

118.    In particular, I considered that there should be no expectation that people who have been involved with an organisation such as the LTTE, which has reportedly committed serious violations of human rights including widespread unlawful killings of civilians, should be allowed to remain in Australia on a protection visa. I considered this to be the case despite [the applicant] not presenting a risk to individuals in the Australian community.

119.    I have placed significant weight on the expectations of the Australian community in this regard.

(Emphasis added.)

57    Under the heading “Other considerations” the Minister addressed the following matters:

(a)    International non-refoulement obligations;

(b)    Impact on victims;

(c)    Impact on Australian business interests;

(d)    Health concerns; and

(e)    Other submissions.

58    Under the subheading “International non-refoulement obligations” the Minister accepted that the applicant had been assessed in the RSA in 2011, the IMR in 2012, the ITOA in 2014 and the PVA in 2017 as having a genuine fear of serious harm and a real chance of persecution if returned to Sri Lanka on the basis of his being a former intelligence operative of the LTTE (at [121]). The Minister accepted the PVA delegate’s finding that the applicant is a person in respect of whom Australia has international non-refoulement obligations, and that removing him to Sri Lanka would breach these obligations. The Minister also accepted that there is currently no known prospect of removing the applicant to any other country (at [123]).

59    The Minister said he was aware that the statutory consequence of a decision to refuse the applicant a visa was that, as an unlawful non-citizen, he would become liable to removal from Australia under s 198 as soon as reasonably practicable, and in the meantime detention under s 189. He also said he was aware that s 197C of the Act provides that, for the purposes of s 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen (at [124]).

60    The Minister said that he was mindful of the fact that he had a “personal non-compellable power” under s 195A of the Act to grant the applicant a visa if he considered it to be in the public interest to do so, but that if he did not consider exercising that power or did not exercise it in the applicant’s favour, the applicant will be liable to removal in accordance with s 198, including to Sri Lanka having regard to s 197C (at [126]).

61    The Minister found that these considerations weighed in favour of not refusing the applicant a visa (at [127]).

62    Under the subheadings “Impact on victims” and “Impact on Australian business interests” the Minister stated that there was no information which indicates that refusing the applicant a visa would have any impact on victims or on Australian business interests (at [128]-[129]).

63    Under the subheading “Health concerns” the Minister said (at [130]-[133]) that he had considered information that the applicant has a history of suffering torture and trauma and a documented history of mental health issues for which he had been treated since his arrival in Australia in 2009. The Minister noted submissions that the applicant had attempted self-harm in 2011 and 2012, and that he twice required inpatient hospital treatment at a mental health facility, for six weeks in July 2015 and for three weeks in December 2016. The Minister also noted that:

…the Commonwealth Ombudsman, in light of the impact of prolonged detention on [the applicant’s] health, has repeatedly recommended [the applicant] be granted a bridging visa, released into community detention and that the consideration of his visa be expedited.

The Minister accepted that refusing to grant the applicant a visa would result in his continuing detention which would have a detrimental impact on his mental health, which weighed in favour of not refusing the applicant a visa.

64    The Minister concluded (at [136]) that:

In considering whether to exercise my discretion to refuse [the applicant’s] visa, I have given significant weight to the expectations of the Australian community in light of the nature and seriousness of the conduct that I reasonably suspect [the applicant] to have been involved in during his service in the LTTE. I considered that the Australian community would expect that non-citizens who are reasonably suspected of having been involved in conduct constituting crimes against humanity and/or war crimes should not be granted a protection visa including a SHEV, even if the non-citizen will not present a risk to the Australian community. I have found that this consideration in favour of refusal outweighs the countervailing considerations in [the applicant’s] case.

(Emphasis added.)

On that basis the Minister exercised the discretion to refuse to grant the applicant a protection visa.

The application to this Court

65    On 20 August 2019 the applicant filed an application for judicial review of the Minister’s decision. By an amended originating application dated 21 November 2019 the applicant seeks the following relief:

1.    A writ of certiorari, directed to the First Respondent, quashing the decision of the First Respondent to refuse to grant the Applicant a safe haven enterprise (SHEV) visa (protection visa) made on 24 July 2019.

2.    A writ of mandamus, directed to the [First] Respondent, compelling the [First] Respondent (whether personally or by his delegate), pursuant to s 65 of the Migration Act, to:

(a)    grant the Applicant the protection visa for which the Applicant applied in his application dated 30 March 2016; or

(b)    in the alternative, determine forthwith the Applicant’s application for a protection visa dated 30 March 2016 on the basis that s 501 of the Migration Act does not prevent the grant of the visa; or

(c)    in the further alternative, determine forthwith the Applicant’s application for a protection visa dated 30 March 2016 according to law.

3.    A declaration that the First Respondent has failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the Applicant the protection visa under s 65 of the Migration Act as soon as reasonably practicable.

4.    A declaration that the [First] Respondent has failed (whether personally or by his delegate) to make a decision whether to exercise a discretion under s 501 of the Migration Act to refuse to grant the Applicant a protection visa as soon as reasonably practicable.

5.    A declaration that the Applicant’s continuing detention is not authorised by Part 2 Division 7 of the Migration Act, because the duration of the detention has already exceeded that which is reasonably necessary to consider and determine the Applicant’s application for a protection visa according to law.

6.    A writ of habeas corpus directed to the [First] Respondent, or alternatively an order requiring that the [First] Respondent procure the release of the Applicant from detention forthwith.

66    The application also seeks the following interlocutory relief:

1.    An interlocutory order releasing the Applicant from immigration [detention] pending determination of the application.

  2.    In the alternative, interlocutory injunctions:

(a)    requiring the First Respondent, whether personally or by [his] agents, officers or employees, to procure the release of the Applicant from detention forthwith; and/or

(b)    restraining the First Respondent and the Second Respondent, whether personally or by their agents, officers or employees, from detaining or re-detaining the Applicant in immigration detention until the final determination of this action.

3.    An interlocutory injunction restraining the First Respondent or his agents from removing the Applicant from Australia.

67    I now turn to consider the six grounds of the application.

Ground 1 – Denial of procedural fairness

68    Ground one of the application alleges as follows:

The decision of the First Respondent to refuse to grant the Applicant a protection visa under s 501(1) of the Migration Act was made in denial of procedural fairness to the Applicant and, consequently, was affected by jurisdictional error and invalid, in that:

a.    the Department of Home Affairs led the Applicant to believe that the First Respondent would make his decision in accordance with the principles contained in Direction 79;

b.    the First Respondent did not exercise the discretion in the applicant’s case for the purpose identified in Direction 79 as the purpose for which the discretion was to be exercised, namely the protection of the Australian community from harm;

c.    the First Respondent took into account a finding that the Australian community had an expectation “that non-citizens who are reasonably suspected of having been involved in conduct constituting crimes against humanity and/or war crimes should not be granted a protection visa including a SHEV, even if the non-citizen will not present a risk to the Australian community”, and in so doing the Minister treated “community expectations” as a subjective concept, different from the concept of community expectations identified in Direction 79;

d.    the Applicant was not put on notice of, and was given no opportunity to make submissions in relation to:

i.    the First Respondent’s exercise of the discretion in s 501(1) for purposes unrelated to the protection of the Australian community from harm;

ii.    the First Respondent’s finding that the Australian community would have an expectation that the Applicant would not be granted a protection visa on the basis that he is (merely) reasonably suspected of having been involved in crimes against humanity and/or war crimes; and

iii.    the First Respondent’s reliance upon a concept of the expectations of the Australia community that differed from the concept used in Direction 79.

69    Under this ground the applicant contends that the Minister failed to accord him procedural fairness in two ways:

(a)    first, that the Department represented that the Minister’s decision-making would proceed on the basis that the delegate’s findings in the PVA decision were conclusive of the question as to whether the applicant acted under duress, and that the relevant remaining issue was the difference between the threshold applicable to the criterion in s 5H compared with s 501(6)(ba) of the Act (the PVA findings representation); and

(b)    second, the Minister failed to give consideration to the matters identified by Direction 79 in circumstances where the applicant was led to believe that the Minister would have regard to the matters identified in that Direction (the Direction 79 representation).

The PVA findings representation

The applicant’s submissions

70    The applicant submits that the Department’s letter of 1 March 2019 conveyed the representation that if, as was ultimately the case, the Minister personally made the decision under s 501(1) as to whether to refuse the applicant’s application for a protection visa, the matters to be taken into account would be the matters referred to in Ministerial Direction 79, as well as any additional matters advanced as relevant by the applicant. He argues that his written submissions dated 20 June 2017 addressed the matters identified in Direction 65 and his written submissions dated 15 April 2019 addressed the matters identified in Direction 79, noting that the differences between the two Directions are not material for the purposes of this case.

71    On the applicant’s argument, if the Minister was proposing to consider matters that were not apparent from Direction 79, then natural justice required that those matters be drawn to the applicant’s attention and he be invited to comment on them, citing Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40]-[42] (Tracey J); and FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606 at [56] (Moshinsky J). He further argues that, the PVA delegate having made the positive finding that because the applicant acted under duress when he was involved with the LTTE there were not serious reasons for considering that he had committed a war crime or a crime against humanity, he was reasonably entitled to expect that the Minister’s decision-making would proceed on that basis, unless he was informed otherwise. At no point did the Department or the Minister inform him that the Minister might make factual findings directly contradicting the findings made in the PVA decision.

72    This asserted lack of procedural fairness was compounded by the Department’s response to a direct enquiry by the applicant’s representative regarding the scope of the decision-maker’s consideration. On 17 May 2017 the Department provided the NOICR to the applicant’s representative, which said that the Department held information suggesting that the applicant may not pass the character test pursuant to s 501(6)(ba) of the Act. It informed the applicant that the Department held information suggesting that the decision-maker may “reasonably suspect” that the applicant had been involved in a war crime or a crime against humanity.

73    On 2 June 2017 Mr Guy Coffey, the solicitor at Victoria Legal Aid with the conduct of the application, sent an email to the Department in which he referred to the PVA decision and made the following enquiry:

…I would like however to raise a question having now looked at the PV assessment and the advice in the notice that the element of the character test [to be] considered is s 501(6)(ba). The PV assessment found that my client acted under duress in relation to alleged actions that might form the basis to consider character under this subsection. As you are aware duress is an absolute defence and that aspect of his alleged conduct has therefore been conclusively dealt with. My question therefore is why he has been referred for character consideration in light of the PV assessment finding and in view of the fact that no other matters going to character are being raised?

(Emphasis added.)

74    A Departmental officer responded by email on 6 June 2017 as follows:

Although the Protection Visa Assessment found that [the applicant] is not a person excluded from being a refugee under Section 5H(2)(a) of the Migration Act 1958 (the Act), this provision is based on there being ‘serious reasons for considering’ that the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by regulations. Section 501(6)(ba) of the Act requires that the Minister ‘reasonably suspects’ that the person has been involved in conduct constituting the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise of serious international concern; whether or not the person, or another person has been convicted of an offence constituted by the conduct. As such, the threshold for consideration under Section 501(6)(ba) of the Act is different to that already assessed under Section 5H(2)(a).

(Emphasis added.)

75    The applicant submits that the Department’s response did not disabuse Mr Coffey of the notion, expressly stated in his email of 2 June 2017, that the issue of duress had been “conclusively dealt with” in the PVA decision. He contends that the only reasonable meaning of the Department’s response was that the decision-maker’s consideration would proceed on the basis that:

(a)    the PVA delegate had already decided that because the applicant acted under duress there were not “serious reasons for considering” that the applicant had committed a war crime or a crime against humanity under s 5H(2)(a) of the Act; but

(b)    that it remained open to the decision-maker to find that the applicant nevertheless failed the character test because the threshold of “reasonably suspects” under s 501(6)(ba) was different from the threshold of “serious reasons for considering” under s 5H(2)(a).

76    The applicant argues that there was nothing in the Department’s response to inform him that it was open to the decision-maker to make findings in relation to duress which directly contradicted the factual findings in the PVA decision, and he was not on notice in that regard. He further argues that the Department was on notice that the applicant’s submissions were made on the basis that he regarded the PVA delegate’s factual findings as conclusive for the purposes of the visa refusal decision, and the Department perpetuated that misunderstanding by suggesting that the reason why visa refusal under s 501(6)(ba) of the Act was under consideration was because of the different thresholds that applied under that provision compared to s 5H.

77    The understanding of the applicant’s representative regarding the matters to be addressed was reflected in the submissions advanced, which took the factual findings on duress by the PVA delegate as settled, and instead addressed whether the applicant passes the character test by reference to the Department’s proposition that different thresholds applied under the different provisions of the Act.

78    The applicant contends that he was thereby denied procedural fairness.

The Minister’s submissions

79    The Minister submits that the NOICR was broad in scope and stated that in deciding whether the decision-maker reasonably suspects that the applicant has been involved in a war crime or a crime against humanity and thus fails the character test, the decision-maker “will consider the nature and extent of your involvement in the activities of the Liberation Tigers of Tamil Eelam”. He contends that the NOICR invited the applicant to address the full gamut of his involvement with the LTTE, and thus there was no denial of procedural fairness.

80    He further argues that the alleged representation – that the Minister would not depart from the PVA delegate’s factual findings – was not made with the requisite clarity for the Court to find that it was made, citing in that regard Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 (Crown) at [35].

Consideration

81    In my view the applicant was denied procedural fairness.

82    In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 590-591 the Full Court (Northrop, Miles and French JJ) said:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

(Emphasis added.)

83    The Full Court further explained (at [591]-[592]) that:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

(Emphasis added.)

84    One of the central issues in the Minister’s decision was whether the applicant acted under duress when he was involved in the LTTE. It can be accepted, as the Minister contends, that the NOICR was broad in scope, but it did not put the applicant on notice that duress would be central, and there were good reasons for the applicant to understand that it would not be central. The NOICR said only that the decision-maker would consider “the nature and extent of his involvement” in the LTTE. That duress would be central was not apparent from the terms of Direction 79 or the relevant provisions of the Act.

85    The requirement to put the applicant on notice that duress was a central issue was heightened because the PVA delegate had made detailed factual findings, following a thorough review of the evidence and despite earlier contrary findings, just three months before the NOICR. The PVA decision found that the applicant had acted under duress and therefore that there were not serious reasons for considering that he had committed a war crime or a crime against humanity. Having regard to the PVA decision the applicant was entitled to expect that the Minister’s decision would proceed on that basis, unless he was informed otherwise.

86    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) the High Court considered the obligations of a tribunal reviewing a delegate’s decision. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ explained as follows (at [35]):

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.

Thus, where a delegate makes a finding in favour of the applicant, it is likely to constitute a denial of procedural fairness if a reviewing tribunal departs from that finding without informing the applicant that it might consider doing so: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [10] (Tracey, Mortimer and Charlesworth JJ).

87    In the present case the Minister was not undertaking a review of the PVA delegate’s decision, and so the decision in SZBEL is not on all fours. But it supports my view that, in circumstances where only a few months before the NOICR was issued the PVA delegate had found that the applicant had been acting under duress, the applicant was entitled to expect that if the decision-maker was considering departing from that finding, he would be given notice.

88    The failure to accord the applicant procedural fairness was compounded by the Department’s response to Mr Coffey’s email of 2 June 2017. Mr Coffey’s enquiry was a pointed and nuanced attempt to understand precisely what would be in issue before the decision-maker. He asserted that the PVA decision “conclusively” dealt with the issue of duress and enquired why in that circumstance the applicant’s visa application had been referred for decision as to whether the applicant passes the character test. The Department’s response was also pointed and nuanced, and contained no information which put the applicant on notice that the decision-maker’s consideration might include making factual findings in direct contradiction to those made by the PVA delegate. Instead the response indicated that the decision-maker’s consideration in relation to duress would be based in the asserted difference between the relative “thresholds” in the meaning of “reasonably suspects” in s 501(6)(ba) and “serious reasons for considering” under s 5H(2)(a) of the Act.

89    That Victoria Legal Aid had such an understanding is clear from the applicant’s submissions dated 20 June 2017. Those submissions focused on the thresholds of “reasonably suspects” and “serious reasons for considering” rather than arguing what factual findings were appropriate in relation to duress.

90    There is no force in the Minister’s submission that the Court should not be satisfied that the Department represented that the Minister would not depart from the PVA delegate’s factual findings. The decision in Crown relevantly concerned whether a statement the appellant made to tenants in the course of negotiations for a commercial lease, to the effect that the tenants would be “looked after at renewal time”, was sufficiently certain to found an action in promissory estoppel. The plurality held that the statement was insufficiently clear to be capable of conveying to a reasonable person that the tenants would be offered a further lease.

91    Crown is of little assistance in deciding whether in the present context the applicant was accorded procedural fairness. It provides no answer to the applicant’s contention that, by combination of the NOICR, the 1 March 2019 letter, the PVA decision, and the Department’s 6 June 2017 response to Mr Coffey’s enquiry, the applicant was not informed that a critical issue for determination by the decision-maker was whether the applicant had in fact acted under duress when he was involved with the LTTE.

92    I consider the Minister failed to accord the applicant procedural fairness.

Materiality

93    The Minister’s alternative submission was that the applicant failed to demonstrate that any failure of procedural fairness was material in the sense that it deprived him of a realistic possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] and [30] (Kiefel CJ, Gageler and Keane JJ). He contends that any such error did not give rise to any practical injustice and was therefore not material, essentially because the applicant’s representatives said everything that they wanted to say about the voluntariness of the applicant’s conduct.

94    The Minister contends that the applicant’s submissions dated 20 June 2017, made in response to the NOICR, expressly relied on his earlier submissions dated 30 March 2016, 23 and 26 August 2016 and 22 January 2017 regarding the possibility that the applicant might be excluded from protection under Article 1F of the Refugees Convention. The Minister submits that in doing so the applicant expressly reasserted the various submissions made about duress, pointing to pages 642-643 and 657-658 of the Court Book.

95    The Minister also argues that the applicant’s representative accepted or endorsed the thrust of the PVA delegate’s findings by stating in the 20 June 2017 submissions that “we accept in broad terms the reasoning with regard to the finding that my client acted under duress”, and by describing the PVA delegate’s duress finding as “sound”. He contends that in doing so the applicant also picked up and reasserted the PVA delegate’s findings as submissions in relation to the NOICR.

96    On the Minister’s submissions, the applicant’s representative had a sufficient opportunity to “unpack and interrogate” the PVA delegate’s findings on duress, noting that the 20 June 2017 submissions argued that the PVA decision gave insufficient weight to the subjective element of the defence of duress. He argues that there was nothing further that Victoria Legal Aid could have submitted that could realistically have made a difference to the outcome.

97    I do not accept the Minister’s contentions. It is correct that some of the applicant’s submissions made prior to his receipt of the NOICR addressed the question of duress, and that the applicant’s submissions of 20 June 2017 in response to the NOICR expressly relied upon those earlier submissions. But the decision-making process in the applicant’s application for a protection visa has been exceedingly long. Different decisions were made by different delegates across the years, which decisions reflected different evidence, submissions and views, and there is a very large volume of relevant material. The RSA was completed in 2011, the IMR in 2012, the ITOA in 2014 and the PVA in 2017.

98    Counsel for the applicant contends, and I accept, that had the applicant been put on notice that the Minister’s deliberations in relation to whether to refuse him a visa would include considering whether it was appropriate to reach findings in direct contradiction to the detailed factual findings on duress made by the PVA delegate. The submissions advanced would have reviewed and revisited the factual findings on duress in the RSA, IMR, ITOA and PVA decisions and argued why the PVA delegate’s findings should be preferred over the earlier findings.

99    Contrary to the Minister’s argument, the applicant’s submissions in response to the NOICR did not advance any contentions as to why the PVA delegate’s findings were to be preferred to those of the earlier delegates. That was because: (a) the pre-NOICR submissions pre-dated the PVA decision and thus could not argue why the factual findings and reasoning in that decision should be preferred to that in the RSA, IMR and ITOA; and (b) the post-NOICR submissions did not focus on the issue of duress because the applicant did not understand that to be in contest, except in relation to the appropriate threshold.

100    I am satisfied that as a result of the failure to accord him procedural fairness the applicant lost the opportunity to present that argument, and he was therefore deprived of a realistic possibility of a different outcome. The Minister’s denial of procedural fairness is therefore jurisdictional.

The Direction 79 representation

101    Direction 79 provides a framework within which decision-makers are required to approach the task of deciding whether to exercise the discretion to refuse a non-citizen’s visa. However, where, as in the present case, the Minister makes the decision personally, it is not binding upon that exercise of discretion.

The applicant’s submissions

102    The applicant accepts that the Minister was not bound as a matter of law to comply with Direction 79 but relies on the fact that the NOICR informed the applicant that if the decision-maker was the Minister, as proved to be the case, Direction 79 “provides a broad indication of the types of issues that he or she may take into account.” He contends that he was led to believe that the Minister’s decision would be made in a manner broadly consistent with Direction 79, and procedural fairness required that if the Minister proposed to depart from the terms of Direction 79, he was required to inform the applicant of that fact and give him an opportunity to make submissions in relation to the proposed departure. The applicant submits that the Minister departed from the principles in Direction 79 without notification of his intention to do so.

103    The applicant relies on Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 (Misiura) (Madgwick J), cited with approval in WASB v Minister for Immigration and Citizenship [2013] FCA 1016; (2013) 217 FCR 292 at [48] (Barker J). Justice Madgwick said in Misiura at [14]:

…there is nothing in the Act to suggest that the Minister is bound to follow that direction when personally making a decision under s 501 of the Act. Nevertheless, it would seem just and fair that the Minister should in general do so and that, if the Minister should choose not to follow the same criteria he had directed others to observe, he would indicate his intention, in advance, to depart from the direction. In other words, considerations of “procedural fairness” or “natural justice” may apply.

104    The applicant contends that the Minister departed from Direction 79 in two respects:

(a)    the Minister’s exercise of the discretion conferred by s 501(1) was not consistent with the purpose for which Direction 79 indicates that discretion is to be exercised (the first contention); and

(b)    the Minister had regard to and ultimately gave decisive weight to the “Expectations of the Australian community” in a manner not identified in, and inconsistent with, Direction 79 (the second contention).

105    In relation to the first contention, the applicant notes that cl 6.2(1) of Direction 79, under the heading “General Guidance”, sets out the relevant objectives of the exercise of the discretionary power to refuse or cancel a visa. It relevantly states:

The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

…

Unless the applicant was informed otherwise (which he was not), he argues that he was entitled to proceed on the understanding that the Minister would exercise the discretion under s 501 in pursuit of such objectives.

106    The applicant also relies on cl 6.3 of Direction 79, under the heading “Principles”, which states:

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

107    On the applicant’s argument:

(a)    the “expectation” of the Australian community referred to in subcl (2) relates to persons who have actually committed crimes in Australia or elsewhere. He notes that the principles do not refer to any expectation of the Australian community in relation to persons whom the Minister suspects have committed serious crimes but who have not been found to have done so. That is, the Direction does not require decision-makers to take into account any expectation based on suspicion. He argues that such a reading is reinforced by the repeated references to the “commission” of past conduct (in subcll (2), (3), (4), (5) and (6)), none of which refer to conduct that is suspected but not committed;

(b)    in subcl (4), consistently with the “General Guidance” in paragraph 6.2, the commission of past conduct is expressly linked to the “risk of similar conduct in the future”; and

(c)    Australia’s tolerance of “criminal or other serious conduct” in subcll (5) and (6) is expressly linked to conduct committed, not conduct which is merely suspected.

108    Part B of Direction 79 relates to the appropriate considerations in deciding whether to refuse a non-citizen’s visa, and that cl 11 in that Part sets out the following three “Primary considerations”:

1.    Protection of the Australian community from criminal or other serious conduct;

2.    The best interests of minor children in Australia;

3.    Expectations of the Australian community.

Only the first and third of these considerations are relevant to the present case.

109    In relation to the first primary consideration, the applicant notes that the Minister’s reasons made it plain that the Minister did not exercise the discretion to refuse to grant the applicant a protection visa for the purpose of protecting the Australian community from harm. The Minister expressly found (at [113]) that the applicant does not pose a risk of harm to the Australian community.

110    The applicant argues that the Minister’s decision was principally if not entirely based in his consideration of the third primary consideration: the “Expectations of the Australian community”. The Minister concluded (at [117]-[118]) that the Australian community “would expect” that non-citizens who are reasonably suspected of having been involved in war crimes and/or crimes against humanity should not be granted a visa, even in circumstances such as the applicant’s where he does not present a risk to the Australian community.

111    The applicant also relies on cl 11.3 in Part B of Direction 79 which describes the expectations of the Australian community in the following terms:

Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

(Emphasis added.)

112    In FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601 (FYBR) at [98] Stewart J, in the majority together with Charlesworth J, said the following in relation to cl 11.3 of Direction 65, which is in identical terms in that clause in Direction 79:

The third sentence of cl 11.3(1) is merely an adjunct to the second, and is consistent with the principle in cl 6.3(4). It means that in any particular case the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. This is to say no more than that in the case of a particularly egregious offence, or a particularly severe character assessment, that alone will be sufficient basis to refuse the visa. It is the one end of the spectrum. But that does not detract from the community’s expectation that there must be an assessment as to “appropriateness” that is required by the second sentence.

113    The applicant submits that in light of cll 6.2 and 6.3 of Part B, there is no reason to read the third sentence of cl 11.3 as suggesting that visa refusal would be appropriate in a case where the “character concerns” of the visa applicant present no risk to the Australian community. In light of the objects of the Direction and the focus upon risk to the community, the relevant “nature” of the “character concerns” that would be “such that the Australian community would expect that the person should not be granted a visa” must be that by their nature they demonstrate an unacceptable risk to the Australian community, including because of the seriousness of the offences.

114    The applicant’s argument regarding the second contention is that the supposed “expectation” of the Australian community which the Minister took into account as the principal basis for refusing to grant the applicant a visa is not identified by Direction 79. Rather, the Minister just used his own personal view of what the Australian community would expect in relation to a class of case he narrowly defined as “non-citizen’s reasonably suspected of having been involved in crimes against humanity and/or war crimes”. The applicant submits that there is therefore is no basis in the evidence for the Minister to make a finding as to what the actual expectation of the Australian community was, whether in the class of case as defined by the Minister, or in all the circumstances of the applicant’s case

Consideration

115    I am not satisfied that the Minister fell into jurisdictional error by departing from the terms of Direction 79 in a way that was procedurally unfair to the applicant.

116    First, the applicant’s argument relies on a finding that the NOICR conveyed the asserted representation. The NOICR stated, in terms, that the Minister was not bound by Direction 79 but it provided a “broad indication of the types of issues that the Minister is likely to take into account”. The applicant was competently represented and it is likely his representative understood that the Minister would have regard to the expectations of the Australian community. It may be that the applicant’s representative did not understand the weight or importance the Minister might afford to that consideration, or to the other considerations in Direction 79, but weight was always a matter for the Minister: Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 (Maxwell) at [39] (Perry J).

117    Second, I do not consider that the Minister’s consideration proceeded in a way that can properly be characterised as a departure from Direction 79. The Department’s submission to the Minister informed him that the factors in Direction 79 are provided to assist in the exercise of his discretion, although he was not bound by the Direction, and also addressed the applicant’s case by reference to the factors set out in Part B of the Direction. The Minister addressed each of the factors in Part B (at [100]-[136]), namely “Protection of the Australian Community”, “Nature and seriousness of conduct”, “Risk to the Australian community”, “Best interests of minor children in Australia”, “Expectations of the Australian community”, “International non-refoulement obligations”, “Impact on victims” and “Impact on Australian business interests”. On a fair reading, the Minister had regard to those factors.

118    While the Minister’s decision to refuse the visa is principally, perhaps entirely, based in his consideration of the expectations of the Australian community, that is because the Minister treated the expectations of the Australian community as the decisive consideration. That does not show that he departed from the principles in Direction 79. Rather, it shows that the Minister put greater weight on the expectations of the Australian community than the applicant contends was appropriate. Weight was a matter for the Minister.

Ground 2 – Taking into account an irrelevant consideration and/or acting for an improper purpose

119    Ground two of the application alleges as follows:

Decision under s 501(1) invalid: taking into account an irrelevant consideration and/or acting for an improper purpose

The decision of the First Respondent to refuse to grant the Applicant a protection visa under s 501 (1) of the Migration Act was affected by jurisdictional error and invalid because:

a.    on its proper construction (including for constitutional reasons), s 501(1) does not authorise the Minister to:

i.    refuse to grant a visa to a person in order to impose punishment for their engagement or suspected engagement in past conduct, or take into account a need for a person to be punished for their engagement or suspected engagement in past conduct;

ii.    refuse to grant a visa to a person as a response to their engagement or suspected engagement in past conduct otherwise than for a legitimate non-punitive purpose, or take into account the desirability of a consequence being imposed or passed conduct divorced from a legitimate non-punitive purpose;

iii.    refuse to grant a visa to a person in order to give effect to a perceived community expectation, or take into account a perceived community expectation, that the visa should be refused where the suggested expectation is or could only be founded upon the need or desirability of:

(1)    a person being punished for their engagement or suspected engagement in past conduct; and/or

(2)    a response to the person’s engagement or suspected engagement in past conduct divorced from a legitimate non-punitive purpose; and

b.    in refusing the protection visa by reason of an expectation of the Australian community that the Applicant should not be granted a visa due to a suspicion that he had engaged in certain conduct in the past, in circumstances where the First Respondent found that the Applicant did not pose any risk to the Australian community and identified no other factors weighing in favour of the refusal of the visa, the First Respondent had regard to an irrelevant consideration and/or acted for an improper purpose; and

c.    insofar as the First Respondent treated “community expectations” as nothing more than his own view as to the proper disposition of a visa application by a person belonging to a category identified by him, he erred in artificially and without appreciation enhancing, and giving decisive weight to, his arbitrary and unexplained conviction as to the outcome of the exercise of discretion.

The applicant’s submissions

120    The applicant notes the decision of the majority in FYBR, in which their Honours accepted that there is no homogenous “community expectation” with regard to the applicable norms for the visa refusal on character grounds: at [66] per Charlesworth J, and at [87] per Stewart J. Justice Charlesworth J held (at [68]) that the reference to “community expectations” in Direction 65 (which is relevantly the same as Direction 79) “does not concern what the Australian community expects in fact…but rather concerns what the government has deemed the community’s expectations to be.” Her Honour said (at [74]) that the decision-maker must identify what the government’s view is about community expectations in the particular case and have due regard to that view.

121    To similar effect, Stewart J said (at [89]-[91]):

It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.

However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case….

The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.

Recently, the High Court refused special leave to appeal from the decision in FYBR.

122    The applicant submits that the expectations of the Australian community was the only matter explicitly identified by the Minister as weighing in favour of refusal to grant the applicant a visa and it was given decisive weight in Minister’s decision. The Minister considered that the expectations of the Australian community outweighed the following factors which the Minister expressly accepted as weighing against the refusal of the visa:

(a)    the fact that the applicant “is not a security risk” (at [110]) and “will not present a risk to the Australian community” (at [113]);

(b)    the fact that visa refusal would cause the statutory consequence of removal to Sri Lanka in breach of international non-refoulement obligations (at [124]); and

(c)    the fact visa refusal would have a “detrimental impact” on the mental health of a man who had already spent more than nine years in detention, who had attempted self-harm twice, who had been hospitalised twice in mental health facilities, and whose release had been the subject of numerous recommendations by the Commonwealth Ombudsman (at [133]).

123    On the applicant’s argument, if by “community expectations” the Minister meant nothing more than his own view that in certain classes of case the grant of a visa should be refused, then the Minister’s reference to “community expectations” was just a device by which he gave determinative weight to his own view that the desirable outcome of the exercise of discretion was refusal of a visa. In that way the Minister’s choice to identify a “community expectation” in the particular terms that he chose and to give that expectation decisive weight thus became a self-fulfilling prophecy.

124    The applicant does not contend that the outcome of the Minister’s exercise of discretion was not open, but that the Minister’s consideration of the discretion was not permissible; it being entirely circular and resulting in the Minister giving decisive weight to a matter that either has no substance or the substance of which was not revealed, articulated or actually considered. He submits that the Minister asserted a contrived community expectation which would necessarily result in an unfavourable outcome in the applicant’s visa application.

125    If, on the other hand, the Minister is understood as referring to an actual expectation, subjectively held by the Australian community, the applicant contends it was unreasonable to take that consideration into account as a matter weighing in favour of visa refusal in circumstances where:

(a)    there was no evidence available to the Minister of any actual subjective intention held by the community or any part thereof; and

(b)    the class of cases or category which the Minister chose to consider was framed by him in terms that would be apt to provoke a view adverse to the applicant, and which would exclude from assessment consideration of matters weighing in favour of granting a visa to the applicant.

126    The applicant submits that if the Minister was referring to an actual community expectation, it was critical for the Minister to appreciate that any community expectation about whether persons reasonably expected of being involved in the commission of war crimes or crimes against humanity would naturally take into account:

(a)    the desirability of excluding from Australia a person who is suspected of such conduct as punishment for that potential involvement; and

(b)    that ordinarily a person who is so suspected will tend (all other things being equal) to be a person of bad character and who therefore poses a risk to the Australian community.

127    The applicant argues that:

(a)    the discretion in s 501(1) to refuse a visa cannot lawfully be exercised for a purpose of imposing punishment on the visa applicant and to the extent that it did so, the Minister’s discretion was exercised for an improper purpose; and

(b)    to approach community expectations without having regard to the actual facts which present themselves in the applicant’s case, including as to his character, and the risk posed to the community by him, was in error.

Consideration

128    I am not persuaded that the Minister fell into error in the manner alleged.

129    First, the applicant alleges under particular (b) that the Minister refused to grant the applicant a visa in order to punish him for his engagement or suspected engagement in war crimes or crimes against humanity, which was a punitive purpose. It would, of course, be impermissible for the Minister to do so: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292 (Djalic) at [66], [73]-[74] (Tamberlin, Sackville and Stone JJ); Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [37] (Flick, Griffiths and Perry JJ).

130    On the applicant’s argument, in the circumstances of the case it should be inferred that the Minister refused the visa in order to punish the applicant. Indeed, the applicant went as far as to argue that the “community expectation” relied upon by the Minister could only be premised upon a need or desire to punish him. Having regard to the following matters I am not persuaded that it is appropriate to draw the inference the applicant seeks:

(a)    the Minister’s reasons expressly stated that punishment was not a factor in the decision (at [135]). The Court must make its own qualitative assessment of the Minister’s reasons to decide whether an inference should be drawn but I should not set the Minister’s statement at nought: DHW17 v Minister for Home Affairs [2019] FCA 985 at [24] (Mortimer J); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares, Flick and Robertson JJ).

(b)    on a fair reading of the Minister’s reasons, there is little or nothing to show that the Minister was punishing or seeking to punish the applicant. The Minister reasoned (at [117]-[119]) that the Australian community would not expect a protection visa to be granted to a person reasonably suspected to have been involved in the commission of a crime against humanity or a war crime. That was an exercise of the Minister’s discretionary judgment as to what the community expects, and explains the Minister’s reasoning in a way that does not depend upon “punishment” in any sense; and

(c)    while I have no difficulty accepting that the visa refusal is likely to cause serious hardship for the applicant, that does not mean it constitutes “punishment”. Not every hardship or detriment constitutes “punishment” and mandatory detention for the purposes of the Act is not “punishment” because of the legal characteristics of the persons upon whom it is imposed and the purpose for which it is imposed: Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 (Re Woolley) at [17] (Gleeson CJ). As the Full Court affirmed in Djalic (at [74]), to take account of the Minister’s assessment of community expectations is not to impose punishment for a criminal offence.

131    Second, the applicant’s contention that the Minister erred because his decision reflected “nothing more than his own view” about “community expectations” is contrary to the authorities. As the authorities provide, the community expectations to which the Minister referred must be understood as the Minister’s conception of what are “community expectations”. In some cases that may become a self-fulfilling prophecy as to the result of the visa application, but that is how Direction 79 can and often does operate. As the Full Court said in Djalic at [74]:

To take account of community expectations is to give effect to the Minister’s conception of the public interest. Sometimes this consideration may work in favour of the non-citizen….Often, however, the Minister’s assessment of community expectations will work against the non-citizen. This will be so, for example, where the Minister gives effect to his or her assessment of ‘community expectations’ in determining that the non-citizen has engaged in behaviour that is unacceptable to the Australian community.

(Emphasis added.)

132    Contrary to the thrust of the applicant’s contentions, the expectations of the Australian community reflect the government’s position rather than a finding for which evidence is needed. An assessment of what those expectations might be is fundamentally a political notion. The Minister, as a member of the Executive, responsible to Parliament, is charged with the assessment of this question and it is not a question for decision only upon evidence placed before him. The Minister may consider the views of others but, ultimately, the Minister’s views as to “community expectations” are reflective of a political judgment by him or her: M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 (M238) at [59] (Gyles, Conti and Allsop JJ); Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [64]-[69] (Robertson J); FYBR at [66]-[68] (Charlesworth J), and at [91] (Stewart J). The Minister is entitled to direct other decision-makers as to how the expectations of the Australian community are to be perceived through Ministerial directions such as Direction 79, and so it follows that he must be able to give effect to his conception of community expectations.

133    Third, under particular (b) the applicant contends that the Minister took into account an irrelevant consideration or acted for an improper purpose in deciding (at [117]-[118]) that the broader Australian community would expect that non-citizens who are reasonably suspected of having been involved in war crimes or crimes against humanity should not be granted a protection visa, in circumstances where the Minister found that the applicant did not pose any risk to the Australian community.

134    In Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 at [9], Basten JA described the terms relevant and irrelevant considerations as follows:

The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.

(Emphasis added.)

135    Having regard to the subject matter, scope and purpose of the discretion to refuse a visa conferred under s 501 of the Act I do not accept that consideration of “community expectations”, divorced from considerations of community safety or risk of harm, is irrelevant or reveals an improper purpose. It is not difficult to think of persons, for example an elderly suspected Nazi war criminal, who the Australian community might expect to be refused a visa, regardless of whether that person posed a risk of harm to the Australian community.

136    It is also worth noting that for the applicant to establish that the Minister acted for an improper purpose – by punishing or seeking to punish him under cover of taking account of community expectations – it was necessary for the applicant to prove that the Minister was “not exercising [his] powers for the purposes for which they were granted but for what is in law an ulterior purpose” and that the purpose was substantial in the sense that the decision would not have been made if not for the improper purpose: Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 at 106; and Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279 at [54] (Robertson J). The applicant failed to establish an ulterior purpose, let alone a substantial ulterior purpose.

137    Fourth, some of the applicants submissions are, at base, a complaint about the Minister giving determinative weight to the expectations of the Australian community. I accept that community expectations was the only matter explicitly identified by the Minister as weighing in favour of refusal to grant the applicant a visa, and that it was given decisive weight in the Minister’s decision. The Minister was not bound by Direction 79 but he broadly followed those considerations. It was a matter for the Minister to determine the weight or importance to be afforded the different considerations: Maxwell at [39]; Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (Oluwafemi) at [43] (Thawley J).

138    This ground is not made out.

Ground 3 – Unreasonableness and/or irrationality

139    Ground three of the application alleges as follows:

Decision under s 501 (1) invalid: unreasonableness and/or irrationality

The decision of the First Respondent to refuse to grant the Applicant a protection visa under s 501 (1) of the Migration Act was manifestly unreasonable and/or irrational and/or illogical, and thus affected by jurisdictional error and invalid, because:

a.    there was no reasonable basis upon which the First Respondent could consider that the Australian community would expect that the Applicant should not be granted a protection visa;

b.    the First Respondent’s finding as to what he considered to be the expectations of the Australian community failed to take into account:

i.    the expectations of the Australian community with respect to Australia’s compliance with its international non-refoulement obligations (including expectations arising from repeated assurances by the Minister and his predecessors that Australia will not return a person to his or her country of origin if to do so would be inconsistent with its international non-refoulement obligations); and/or

ii.    the fact that any general expectation of the Australian community of the kind relied upon by the Minister:

(1)    would not and could not have been based upon a consideration of all the circumstances relevant to the Applicant;

(2)    must inevitably take into account the fact that, as a class, persons who are reasonably suspected of having committed war crimes or crimes against humanity will ordinarily pose a risk to the Australian community; and/or

(3)    may reflect, in whole or part, a desire on the part of the Australian community to punish a person for their suspected past conduct; and/or

c.    the exercise of discretion by the First Respondent gave disproportionate weight to what the First Respondent considered to be the expectations of the Australian community and insufficient weight to factors weighing against visa refusal, including that:

  i.    the Applicant did not pose any risk to the Australian community;

ii.    the effect of refusing to grant the protection visa would be to engage a legal duty to return the Applicant to Sri Lanka in circumstances amounting to refoulement in breach of Australia’s international obligations; and

iii.    the Applicant had been detained in immigration detention in Australia for almost ten years and the probable effect of refusal and refoulement was that he would be detained for a further period in Australia before being further detained and subjected to further human rights abuses upon his return to Sri Lanka; and/or

d.    the First Respondent’s finding that the Applicant was voluntarily and willingly involved in war crimes or crimes against humanity is inconsistent with the First Respondent’s own acceptance that the applicant is a person to whom Australia owes international non-refoulement obligations, in circumstances where:

i.    the First Respondent’s decision whether to refuse the protection visa on character grounds followed his own delegate’s finding that the Applicant was a refugee;

ii.    the finding that he was a refugee was made on the basis that his involvement with war crimes or crimes against humanity was vitiated by duress: the delegate found that there were “strong reasons for considering” that the applicant joined the LTTE due to fear of imminent death or of continuing or imminent serious bodily harm, against him or his family and in circumstances where he had no choice but to comply with their demands;

iii.    the delegate had been in a position to test the credibility of the applicant whereas the Minister was not; and/or

e.    upon the facts the result is unreasonable and plainly unjust.

The applicant’s submissions

140    The applicant contends that the Minister’s reasons regarding the expectations of the Australian community (at [115]-[119]) reveal that the Minister’s decision was manifestly unreasonable, irrational and illogical. He argues that the expectation attributed by the Minister to the broader Australian community is described at a high level of generality and by reference to the status of the applicant as a person who is “reasonably suspected” of something. The applicant submits the Minister then treated that expectation as applying universally and indiscriminately to every member of an entire class of persons which the Minister defined in the most damning possible terms. The Minister described the class in two related ways:

(a)    non-citizens who are reasonably suspected of having been involved in conduct constituting crimes against humanity and/or war crimes (at [117]); and

(b)    people have been involved with an organisation such as the LTTE, which has reportedly committed serious violations of human rights including widespread unlawful killings of civilians (at [118]).

141    On the applicant’s argument, the Minister erred by assessing community expectations by reference to the applicant merely as a member of that class, without reference to any of the salient facts which any reasonable member of the Australian community would take into account in assessing whether they expected that a person should be allowed to remain in Australia on a protection visa. The applicant submits that the Minister’s assumptions about the expectations of the Australian community leave the hypothetical members of the Australian community in the dark about the fact that:

(a)    each of the four delegates of the Minister who have considered the applicant’s case found that he faces a risk of serious harm if returned to Sri Lanka;

(b)    the Minister accepted that the applicant is a person who holds a well-founded fear of persecution if returned to Sri Lanka, and a person in respect of whom Australia owes international non-refoulement obligations, such that returning the applicant to Sri Lanka would place Australia in breach of its international obligations;

(c)    although the Minister reasonably suspected that the applicant was involved in war crimes or crimes against humanity, the PVA delegate found that there were not serious grounds for considering that the applicant acted other than under duress; and

(d)    the applicant is a person who poses no risk to the Australian community.

142    The applicant contends that the Minister’s decision was therefore unreasonable and irrational because the identification of a class of persons without including consideration of these crucial facts meant that any expectation of the community which the Minister found to exist was an expectation which could not be said to apply to the applicant as an individual.

Consideration

143    As Allsop CJ observed in relation to an assertion of illogicality, irrationality and unreasonableness in administrative decision-making in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11]:

[T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.

144    In the present case the Minister said that he considered the broader Australian community would expect that non-citizens who are reasonably suspected of having been involved in war crimes or crimes against humanity should not be granted a protection visa, and he gave that consideration determinative weight. In essence, the applicant contends that, having regard to the other features of the applicant’s case, the Australian community would take a more tolerant approach to whether he should be granted a protection visa. That however, does not show the decision lacks a rational foundation or an evident or intelligible justification, or was plainly unjust, arbitrary, capricious, or lacking common-sense, such that it is a decision which no rational or logical decision-maker could arrive at on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). It merely disagrees with the merits of the decision.

145    This ground must be refused.

Ground 4 – Failure to consider and weigh the harm faced by the applicant if returned to Sri Lanka

146    Ground four of the application alleges as follows:

Failure to consider and weigh the harm faced by the Applicant if returned to Sri Lanka

The First Respondent’s decision to refuse the visa under s 501(1) of the Migration Act was affected by jurisdictional error and invalid because the First Respondent failed to give meaningful consideration to representations as to the harm the applicant would face on return to Sri Lanka, rather than the issue of whether return to Sri Lanka would breach Australia’s international non-refoulement obligations.

147    The totality of the Minister’s reasoning in relation to Australia’s international non-refoulement obligations was as follows (at [120]-[127]):

International non-refoulement obligations

120.     I have considered submissions made by or on behalf of [the applicant] that he will face harm if returned to Sri Lanka on the basis of him being a Tamil, his past involvement with the LTTE and the resulting threat posed by the current government, including the SLA, and paramilitary groups.

121.     I accept that [the applicant] has been assessed in the 2011 RSA as having a genuine fear of harm and facing a real chance of persecution on the basis of him being a former intelligence operative of the LTTE, and that similar findings have been made in the 2012 IMR, the 2014 ITOA and the 2017 PVA.

122.     I have considered submissions made by [the applicant’s] legal representative on 30 March 2016, in support of [the applicant’s] SHEV application, stating that [the applicant] remains in need of protection, and that it is probable that Sri Lankan authorities would detain him and he would be subject to human rights abuses. I have also considered submissions that the risk of harm to [the applicant] has further increased due to two privacy breaches in respect of [the applicant], one by the Department and one by the Attorney-General’s Department.

123.     I have accepted the conclusion drawn in the 2017 PVA that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations, with country of reference being Sri Lanka. This means that his removal to Sri Lanka would breach these obligations. I also accept that there is currently no known prospect of removing him to any other country.

124.     I am aware that the statutory consequence of a decision to refuse to grant [the applicant] a visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.

125.     I have noted that the obligation to remove [the applicant] would not apply if, following my refusal to grant him a SHEV, he is granted another visa. However, I am aware that, as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the applicant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 488, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the applicant] as a result of my refusal decision under section 501(1). This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation.

126.     I am mindful that even if I refuse to grant [the applicant] a SHEV, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the applicant’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Sri Lanka, having regard to section 197C.

127.     I have found that the above considerations weigh in favour of non-refusal of [the applicant’s] SHEV application.

The Minister’s submissions

148    The Minister argues, and I accept, that the Department’s submission to him specifically adverted to the likely harm to the applicant if returned to Sri Lanka. He submits that there is no reason to doubt that he read and considered that submission. He contends that his reasons demonstrate that he was alive to the applicant’s “history of torture and trauma” (at [130]), to the harm the applicant “will face” if returned to Sri Lanka (at [121]), and to the applicant’s submissions about such harm (at [122]).

149    On the Minister’s argument, his recognition that the applicant’s return to Sri Lanka would breach Australia’s non-refoulement obligations necessarily meant that he recognised that the applicant would suffer harm in Sri Lanka. Thus, the Minister contends there is no foundation in the evidence for this ground of the application.

150    In this regard the Minister notes that Part B of Direction 79 does not set out an express primary or secondary consideration in relation to the harm that an affected person would face if returned to his or her country of origin, and he says that should be understood on the basis that consideration of non-refoulement necessarily encompasses consideration of the potential harm that the person will face if returned. The Minister submits that the applicant attempts to artificially separate the Minister’s consideration of the harm the applicant would face on return to Sri Lanka from the issue of whether return to Sri Lanka would breach Australia’s non-refoulement obligations. He says that his acceptance that to return the applicant to Sri Lanka would breach Australia’s non-refoulement obligations (at [123]) necessarily meant that he recognised and accepted that the applicant would face harm if returned there.

151    He also submits that the present case is different to and readily distinguishable from the line of authority in cases such as Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 (Robertson J), BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2016) 248 FCR 456 (Bromberg, Davies and Mortimer JJ); and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 (Omar) (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). He argues that those decisions arose in the context of visa revocation decisions, in which the decision-maker deferred consideration of the harm the affected person might face if returned to the country of citizenship until a later determination as to whether to grant the person a protection visa. In the present case, the applicant’s visa application was before the Minister and so the decision did not involve any deferment.

Consideration

152    I do not accept the Minister’s submissions. In my view he failed to consider the applicant’s claim that he faced a real risk of suffering arrest, detention, torture, sexual violence and death if returned to Sri Lanka by failing to engage in an active intellectual process in relation to that claim.

153    Two related but distinct considerations weighed against refusal of the applicant’s application for a protection visa:

(a)    that his removal to Sri Lanka would place Australia in breach of its international non-refoulement obligations; and

(b)    that if returned to Sri Lanka, the applicant would face serious harm because he faced a real risk that he would be arrested, detained, abused, tortured and perhaps killed by the Sri Lankan government or paramilitary organisations.

The first concerned the potential breach by Australia of its international obligations, and the second concerned the risk to the applicant’s safety as a matter of fact.

154    The Minister is correct in contending that the line of authority culminating in the Full Court decision in Omar arises in the context of visa revocation decisions in which the decision-maker deferred consideration of the risk of harm the affected person faced if returned to the country of citizenship. But that submission misses the point.

155    The principles expressed in Omar, and earlier decisions such as Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao), regarding the obligation on the Minister to “consider” or engage in an active intellectual process in relation to the applicant’s representations as to the harm he would face if returned to Sri Lanka are not confined to visa revocation decisions, nor to circumstances where there is an explicit statutory duty to “consider” the application, such as under s 501CA(4) of the Act: see Omar at [36(a)]-[36(d)]; BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at [18] (Jackson J).

156    Where a decision-maker is required by statute to consider an application or claim there is an implicit statutory duty on the decision-maker to consider the merits of the application. That requires the decision-maker to engage in an active intellectual process directed at that application including by giving meaningful consideration to any substantial, clearly articulated argument advanced by the applicant: Carrascalao at [45]; Omar at [36(d)].

157    Whether the decision-maker has genuinely considered the evidence and contentions before it is to be discerned from the reasons provided. As Allsop CJ and Katzmann J observed in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16]:

[T]he written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D; s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [37], [69], [89] and [133].

The decision-maker is not required to refer in their reasons to every piece of evidence and every contention (Carrascalao at [45]) but, where significant matters are not referred to, it may be appropriate to infer that the decision-maker did not consider it or take it into account. The degree of consideration which is necessary is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37] (Reeves, O’Callaghan and Thawley JJ).

158    The reasons of the decision-maker should not however be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ).

159    In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Allsop CJ (with whom Markovic and Steward JJ agreed) explained the importance of the Minister or his delegate giving meaningful consideration to the risk of harm a person may face upon removal, and the error of failing to do so. His Honour said at [3]:

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.

160    In short, the Minister must take responsibility for what he or she is doing: Omar at [38]. Each case necessarily turns on its own facts and circumstances, but as the Court in Omar explained (at [39]):

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

161    In the present case the applicant’s submissions asserted that as a former LTTE fighter and intelligence officer, if returned to Sri Lanka he faced a real risk of harassment, arrest and detention by police, military and/or paramilitary groups, that torture and sexual violence was a critical concern, and that he faced a risk of abduction by paramilitary organisations linked to government security forces and that he would be killed. The applicant relied on the findings of the ITOA which relevantly found that the applicant’s claims that he will be harmed by the Sri Lankan authorities or paramilitary groups to be credible and cited a Human Rights Watch report from January 2014 which stated that “[t]orture and other ill-treatment of persons in custody by the security forces has been a widespread problem both during and since the armed conflict”.

162    On a fair reading of the Minister’s reasons I consider it appropriate to infer that he did not give meaningful consideration to the applicant’s claims as to such risks of harm, which failure can be seen in the following ways:

(a)    the Minister’s consideration of the risk of harm the applicant was likely to face if returned to Sri Lanka, as far as it went, was under the heading “International non-refoulement obligations”. That is not determinative but it indicates that the Minister was concerned with the first of the two related but distinct considerations referred to above;

(b)    at [120] the Minister said that he had considered submissions made on behalf of the applicant that he will face harm if returned to Sri Lanka, but the Minister made no finding one way or another as to whether the applicant would in fact face a risk of serious harm, and if so the types or kind of serious harm he might face;

(c)    at [121] the Minister accepted that the applicant had been assessed in the 2011 RSA, and similarly in the 2012 IMR, the 2014 ITOA and the 2017 PVA, as having a genuine fear of harm and facing a real chance of persecution if returned to Sri Lanka because he was a former LTTE intelligence operative. Again though, the Minister made no finding that the applicant would in fact face a risk of serious harm or about the nature of the harm he might face. It is insufficient for the Minister merely to say that he accepted that others had made that assessment when he was not bound by them;

(d)    at [122] the Minister said that he had considered submissions made on behalf of the applicant stating that he remained in need of protection and “that it is probable that Sri Lankan authorities would detain him and he would be subject to human rights abuses.” The Minister also said that he had considered submissions that the risk of harm the applicant faced was increased due to two privacy breaches in respect of the applicant by the Department and by the Attorney-General’s Department. The Minister’s reference to his consideration of submissions that the applicant would be subject to “human rights abuses” is as far as he went in expressly setting out the risks of harm that the applicant claimed he would face. Again, the Minister made no finding one way or the other as to whether the applicant in fact faced a risk of serious harm, and if so the nature of the harm. Stating that he considered those submissions without making any finding is insufficient to show that he gave meaningful consideration to the risk of serious harm or death the applicant would face;

(e)    at [123] the Minister accepted the conclusion in the PVA decision that the applicant is a person in respect of whom Australia has international non-refoulement obligations. While such acceptance may be seen as recognition by the Minister that the applicant would face a risk of harm if returned to Sri Lanka, the Minister did not grapple with the applicant’s claims, which were supported by other materials, that because he had been an LTTE intelligence operative he would face a real risk of arrest and detention, torture, sexual violence and death at the hands of police, military and/or paramilitary groups if returned to Sri Lanka. The Minister made no explicit factual finding as to whether the applicant faced such risks and to engage in an active intellectual process in relation to those claims, it was necessary for him to make findings one way or the other, otherwise he could not assess the truth or the gravity of the risks of harm the applicant claimed to face; and

(f)    then, in the balance of the Minister’s reasons at [124]-[126], his discussion was all directed to Australia’s compliance with its international non-refoulement obligations and the statutory interplay between various provisions of the Act, rather than to any risk of serious harm that he faced.

163    Nor did the Minister give genuine consideration elsewhere in his reasons to the applicant’s clearly articulated claims that he faced a real risk of detention, torture, sexual violence and/or death if returned to Sri Lanka. I do not accept the Minister’s submission that his reasons (at [130]) demonstrate that he was alive to the applicant’s “history of torture and trauma”, and gave consideration to the risks of harm that he “will face”. In that paragraph of his reasons the Minister said that he had “considered information that [the applicant] has revealed a history of torture and trauma, and has a documented history of mental health issues for which he has been receiving treatment since his arrival in Australia on 10 December 2009.” That does not show active intellectual engagement by the Minister with the applicant’s claims when:

(a)    that part of the Minister’s reasons was directed to the impact of the applicant’s continuing detention in Australia, not the impact of his being returned to Sri Lanka and the risk of detention, torture, sexual violence and/or death;

(b)    the Minister’s asserted consideration was directed to the “history” of torture and trauma; rather than the risk of the applicant being tortured in the future; and

(c)    the Minister made no explicit finding as to whether the applicant would in fact face a risk of torture if returned.

164    For these reasons it is appropriate to allow ground four of the application.

Ground 5 – Failure to take into account/properly consider the applicants submissions relating to involuntariness/duress

165    Ground five of the application alleges as follows:

Failure to take into account/properly consider submissions relating to involuntariness/duress

The First Respondent’s decision to refuse the visa under s 501(1) of the Migration Act was affected by jurisdictional error and invalid because the First Respondent failed properly to consider and intellectually engage with the submissions advanced by the applicant in respect of the findings of involuntariness/duress.

The Minister’s reasons

166    The Minister set out his reasoning for the conclusion (at [97]) that he “reasonably suspected” that the applicant joined the LTTE in 2000 at the age of 15 of his own free will, and that the applicant performed his duties voluntarily during his service in the LTTE (at [65]-[96]). The Minister:

(a)    noted that the PVA decision found that the applicant was aware of the possible consequences of the reports he was preparing during his service as an intelligence officer and was thus “complicit in the criminal conduct of the LTTE intelligence division”, but accepted that the applicant’s actions were “necessary and reasonable to avoid the harm he feared” (at [65]);

(b)    noted that the PVA decision found that the applicant was forcibly recruited to the LTTE at the age of 15 (at [66]). The Minister also said that was consistent with independent country information regarding the LTTE’s recruitment of children and the Office of the High Commissioner for Human Rights report which indicates that thousands of children were recruited during the conflict and were subject to beatings or threats of violence, and other children “volunteered” to join the LTTE to avoid their siblings being taken by force (at [67]);

(c)    considered the applicant’s submissions that the LTTE motivated him to join by using his father’s death and appealing to his loyalty, and by threatening his family; and that he did not join the LTTE out of support for its objectives or methods and, had he joined a month earlier (prior to turning 15), he would have been the victim of a war crime (at [68]); and

(d)    had regard to the PVA findings that:

(i)    the applicant was punished when he attempted to escape four months into his LTTE service, and that the PVA found that when working in the Intelligence Unit the applicant worked undercover in a government-controlled area and had a fear of serious harm or death if he were exposed or abandoned his role (at [69]); and

(ii)    the circumstances of the applicant’s ongoing service with the LTTE constituted duress because “he had no option but to carry out his duties as directed: failure to do so would have likely resulted in the serious bodily harm or death of the applicant or of his mother or brother.” While the PVA delegate found the applicant was not facing an imminent threat during his entire service, the threat “did not abate…to the degree that he could be said to be acting on his own free will” (at [70]).

167    The Minister said (at [71]) that the PVA decision concerned whether the applicant was excluded from the definition of “refugee” under s 5H(2) of the Act on the basis that there were “serious reasons for considering” that he had committed a war crime or crime against humanity. The PVA delegate noted, based on the case law, that deciding whether there were serious reasons for so considering required “strong evidence”. The Minister considered however (at [72]-[73]) that “reasonable suspicion” under s 501(6)(ba)(iii) of the Act represented a lower threshold than “serious reasons for considering”, and did not require strong evidence of involvement in conduct constituting the relevant crimes. The Minister also noted (at [74]) that the inquiry under s 501(6)(ba)(iii) is whether a person has been “involved” in conduct constituting a relevant crime, not about whether a person has “committed” a relevant crime such that the person would be individually responsible under the Rome Statute. In the Minister’s view, a person who has knowingly and voluntarily contributed to conduct constituting a war crime or a crime against humanity has been “involved” in such conduct for the purposes of the section.

168    Thus, the Minister considered (at [75]) that even if the information available in relation to a person is not sufficient to provide “serious reasons for considering” that he or she has committed a war crime or crime against humanity, and therefore could not be held individually responsible (as the PVA delegate had found in relation to the applicant), the information may nevertheless be sufficient for the Minister to “reasonably suspect” that the person has contributed knowingly and voluntarily (i.e. without duress), to conduct constituting such a crime and hence has been “involved” in such conduct.

169    The Minister then noted (at [76]-[77]) that the RSA accepted that the applicant’s movements were monitored by LTTE spies who would report on him if he did not fill the responsibilities of his role and he feared that he would be killed if he ceased performing his assigned duties. Notwithstanding that, the RSA found that the applicant did not act under duress during his service with the LTTE because the applicant had failed to demonstrate that he was genuinely fearful of leaving the LTTE or that he had been threatened by the LTTE leadership not to leave. The RSA considered his fear concerned the risk of discovery rather than fear of repercussions from the LTTE if he were to leave.

170    The Minister noted (at [78]) that the RSA was affirmed by the IMR decision which concluded that the defence of duress under the Rome Statute did not apply. Specifically, the independent reviewer noted that:

…whilst I accept he may have been subject to punishment if he didn’t carry out his duties and that he may have been monitored it wasn’t until well into his involvement with the LTTE that he considered that he may be killed if he didn’t “fulfil his duties”. It was at that time in about early 2005 when he was having a realisation of the degree of suffering he was causing that he sought to change from [intelligence] activity to the Political Wing. His activities whereby he has harmed people…were well before that time.”

171    In making a finding as to whether the applicant acted under duress the Minister took into account the applicant’s credibility (at [79]), and dealt with:

(a)    the applicant’s failure to initially disclose his LTTE membership (at [80]-[86]). The Minister concluded (at [89]) that the applicant’s “repeated and deliberate failure” to disclose his LTTE membership over a period of more than five months, coupled with his subsequent attempt to downplay his activities with the LTTE demonstrated that his credibility is questionable; and

(b)    inconsistent statements by the applicant regarding the circumstances of his recruitment into the LTTE (at [90]-[97]). The Minister concluded (at [96]) that he did not accept the applicant’s claim that his activities with the LTTE were not voluntary. The Minister found (at [97]) that he reasonably suspected that the applicant joined the LTTE at the age of 15 years of his own free will and performed his duties voluntarily.

172    Thus, the Minister reached the following finding (at [98]):

In conclusion, I reasonably suspect that [the applicant] knowingly and voluntarily contributed to conduct constituting war crimes and/or crimes against humanity, and thus has actively participated in, or has at least been concerned or implicated in such conduct. On that basis, I reasonably suspect that [the applicant] has been ‘involved’ in such conduct for the purposes of section 501(6)(ba)(iii).

The Minister’s submissions

173    The Minister denies that he failed to engage in an active intellectual process in relation to the applicant’s submissions regarding involuntariness and duress.

174    The Minister notes that he referred to the PVA decision on numerous occasions in his reasons, and submits that it is plain that he considered the PVA delegate’s findings. The Minister argues that he was able to reach the decision that he did because he was required to apply a different legal test and standard, and there is no reason to conclude that he failed to take into account the PVA delegate’s reasons.

175    The Minister also rejects the suggestion that he failed to consider the applicant’s submissions about the IMR findings, particularly the submissions dated 22 January 2017 and 23 August 2016. The Minister says there are no grounds to infer that he failed to consider those submissions when: (a) they were referred to in the Department’s submissions; (b) he referred to having “considered submissions” (at [68]) and he went on to deal with what was said in the 23 August 2016 submissions; and (c) he referred to the 22 January 2017 submissions (at [58]). He argues that a conclusion that he did not engage in an active intellectual process should “not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: see Oluwafemi at [40].

176    The Minister also submits that his reasons, read fairly and as a whole, provide an intelligible justification for both his acceptance of the finding in the PVA decision that the applicant is a refugee, and his rejection of the PVA delegate’s finding that the applicant acted under duress. The Minister did so on the basis that he was required to apply a different standard to the PVA delegate and taking account of that differential feature he reached a different conclusion.

Consideration

177    I do not accept the Minister’s submissions. The Minister was under any implicit statutory duty to consider the merits of the applicant’s visa application which included an obligation to give meaningful consideration to any clearly articulated and significant representations advanced by the applicant. In my view the Minister failed to consider the applicant’s submissions on the central question as to whether the applicant acted under duress or involuntarily during his service with the LTTE.

178    The relevant part of the applicant’s submissions dated 23 August 2016 said as follows:

1. Method of recruitment and whether the applicant joined the LTTE under duress.

The IMA did not accept that [the applicant] was forcibly recruited to the LTTE because he told the UNHCR in [Country A] that he joined ‘of his own free will because when he was young his father was burnt and killed by the Sinhalese’ at [56]. This account suggests that [the applicant] was motivated by revenge to join the LTTE. Instead the picture he has provided is that the death of his father at the hands of a Buddhist monk was a point which the LTTE used to motivate him to join the LTTE. A psychiatric report has noted that ‘[h]is childhood was affected by his father’s death and subsequent deprivation’. According to [the applicant], alongside appealing to his loyalty to his father the LTTE recruiters told him that if he didn’t join, someone else in the family would be taken, presumably his younger brother. He said he was approached by two adult LTTE members when playing with other children. He was too frightened to discuss the matter with his mother because she may have resisted the recruitment with adverse consequences for her and the brother. This process possibly falls short of duress but if it does it is certainly closer to it than to a choice based on ‘his own free will’.

His early attempts to escape the LTTE, the consequence of which was that he had his head shaved and was publically beaten, also belie the notion that his recruitment was entirely voluntary.

The way [the applicant] entered the LTTE is not determinative of whether the criteria for Article 1F is made out. However, as suggested by the IRBC’s approach, it is a relevant consideration. He did not enter the LTTE because he supported its objectives and methods. Nor did he enter the organisation in order to harm others; if there were motivations they appear to have involved protection of his family and possibly a desire to protect others from the fate which took the life of this father. It was a decision of a 15 year old acting under pressure from adults in positions of great power. In being recruited at that age, it is submitted that [the applicant] was a victim rather than a perpetrator. The physical and psychological harm of forcing children into military roles is well documented. Under international law it is a war crime to recruit children under 15 years of age into the military. When recruited [the applicant’s] recollection is that he turned 15 under a month previously. Therefore had the recruitment occurred a month earlier, he would have been the victim of a war crime.

(Citations omitted.)

179    It is also worth setting out the relevant sections of the applicant’s submissions dated 22 January 2017 in full, as follows:

Duress

I have commented on the voluntariness of [the applicant’s] participation in acts relevant to offences alleged. I wish to again direct attention to what I regard as flaws in the reasoning of the IMR decision. The Reviewer found at [80] that “it wasn’t until well into his involvement with the LTTE that he considered that he may be killed if he didn’t ‘fulfil his duties’ “. It seems the Reviewer has inferred this from what is said at [26] regarding [the applicant’s] desire to leave the intelligence wing. However there is no reason to believe that he did not hold this view throughout his involvement with the LTTE. There is no basis to assume that the desire to be transferred coincided with the commencement of a fear he would be harmed if he attempted to leave. His fear was instilled very early in his involvement with the LTTE after he was brutally treated when he attempted to escape the organization soon after he was recruited.

It is sufficient for duress to be raised if there is a threat of ‘continuing or imminent serious bodily harm’ against that person (Rome statute, Art 31 xx). It is submitted that he held such a fear of being at least seriously harmed if he tried to escape again. It should be noted that in considering whether duress is present, the personal characteristics of the [the applicant] should be considered. In establishing duress it has been held that in understanding the nature of the threat that apparently compels the defendant to perform the impugned acts, relevant personal characteristics of the individual should be considered (Parker (a Pseudonym) v The Queen [2016] VSCA 101 (10 May 2016)): in this instance these are his youth; the effects of punishment soon after recruitment; the psychological effects of being repeatedly pressed into combat while a minor; and the influence on independence of decision making when he was answerable to a powerful and much older commander.

Consideration should be also given to the circumstances of [the applicant’s] release from the LTTE. Even after his release was approved by the leader of the organization, Prabhakaran, he was still punished [27]; it is not the lack of severity of the punishment which is striking, but that in such circumstances he was punished at all, which demonstrates the attitude taken by the local command toward those who wish to leave despite approval by the supreme leader.

I note with regard to establishing the threshold for duress the Canadian Federal Court of Appeal (Sivakumar, (Can. FCA, 1993) 441) held that “[p]eople cannot be required, in order to avoid a charge of complicity by reason of association with the principal actors, to encounter grave risk to life or personal security in order to extricate themselves from a situation or organisation. But neither can they act as amoral robots”

The mental element of the offence

Contrary to the Reviewer’s findings, there must be real doubt as to whether in accordance with Article 7(1)(a) [the applicant] knew at the relevant time that he killed one or more people as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. First, the mens rea and actus reus must co-exist; it is not correct, for the Reviewer to point to his increased seniority when in the political wing from about late 2004 or early 2005 and suggest that the knowledge he then held makes it probable he had the requisite knowledge when undertaking activities in the intelligence wing (cf [65], [74]). Nor is it logical or correct to infer from [the applicant’s] later regrets about his role that this somehow meant he had full knowledge of the consequences of his actions at the relevant times. The Reviewer however made such an assumption when he stated that “[h]e has, by his later contrition and realization of the harm he was causing, evidenced that he was aware of his conduct and the gravity of it”[76].

Relevant to [the applicant’s] knowledge at the relevant time are his youth, mental state and role. He was recruited to the intelligence wing when 17 years old during 2003. In November 2003 he turned 18 years old. In late 2004 or early 2005, around the time therefore that he turned 19 years old he was transferred to the political wing. His role in the political wing has not been found to have involved any alleged offences relevant to Article 1F.

It is submitted that it is entirely plausible for a youth narrowly focused on what he is commanded to do, and indoctrinated with a belief that he was assisting the Tamil community, to not fully comprehend that his actions were associated with the possibility of people he identified being harmed or killed. He has consistently said that he didn’t know what the fate was of the people he identified; but that he knew that commanders sometimes ordered for the killing of people identified by members of intelligence.

The courts of various jurisdictions have not taken a consistent approach to ‘joint enterprise’ or extended liability forms of crimes against humanity where a contribution is made to the crime because an act contributed to a common purpose (Prosecutor v Callixte Mbarushimana, ICC‐01/10 (ICC, 16 December 2011, discussed in Hathaway J and Foster M (2014), The Law of Refugee Status pp 581‐584); for instance whether recklessness or indifference regarding the group or principal actors’ crimes is sufficient or actual knowledge is required. Consequently some legal scholars are of the view that the “ “extended” form of joint criminal enterprise liability goes beyond what is presently appropriate under the “serious reasons for considering” standard for finding an individual to be criminally liable” (as discussed in Hathaway J and Foster M (2014), The Law of Refugee Status p 584). In view of the jurisprudential uncertainty in the area of extended liability in international criminal law, it is contended that a decision maker should where there is doubt about the extent of contribution, err on the side of not imposing exclusion.

However whether or not [the applicant] knew that there was a possibility of harm coming to people he investigated, there must be considerable doubt as to whether he knew that what he was participating in was part of “a widespread or systematic attack directed against any civilian population”. The country information the Reviewer adduces in the years that are relevant, that is 2003 and 2004, indicates that the LTTE was involved in killing members of the Sri Lankan Army, paramilitary groups and informers assisting these groups. It was reported that in 2003 the LTTE killed more than 36 members of anti-LTTE Tamil political groups and alleged informants and that in 2004 the LTTE killed more than 81 members of anti‐LTTE Tamil political groups, LTTE cadres loyal to Karuna, alleged Tamil informants for the security forces in the north, the east in Colombo and civilians and also 43 members of the Karuna group [p15-­‐16]. It is not clear how many of these deaths can be attributed to the intelligence wing. Even if they were all attributed to the intelligence wing, it is arguable as to whether this activity amounted to a “widespread or systematic attack” on the civilian population. It would appear to amount to a targeted attack on persons involved in some way with army or paramilitary groups, some of whom may not have been members of the army or paramilitary groups, but had civilian roles. If indeed what the LTTE were perpetrating during this period was a widespread or systematic attack on the civilian population, [the applicant] has made it clear that at the time his commanders characterized the intelligence activities as largely self defensive and designed to protect the Tamil community from violence perpetrated by military and paramilitary groups. At that time, it is submitted, he did not have the maturity, knowledge or perspective to challenge that view.

Therefore with regard to what [the applicant’s] knowledge was of the nature and consequences of his activities in 2003 and 2004, it seems reasonable to conclude that put at its highest he saw himself as part of the prosecution of LTTE’s fight with SLA and paramilitary groups and that this involved both military and intelligence approaches. He knew that both the military and intelligence units killed members of these groups including civilians who had been recruited to assist them. He did not, it is argued, see his intelligence role as directed at people beyond those who the LTTE saw as perpetrating offences against Tamils or assisting the Sri Lankan army’s war against the LTTE.

I note that in considering whether [the applicant] possessed the requisite knowledge there is uncertainty as to whether Article 7(1)(a) requires an understanding that a widespread or systematic attack was occurring or whether the attack as understood must be both widespread and systematic. Legal scholars have argued that the jurisprudential uncertainty should lead exclusion to require the more conservative conjunctive interpretation of the phrase (Hathaway J and Foster M (2014), The Law of Refugee Status, p 578)

In summary, it is submitted that [the applicant] believed at the relevant time that his activities were designed to prevent attacks on the Tamil civilian population by the SLA and paramilitary groups and to further the military interests of the LTTE (cf [40]). There is no evidence suggesting that he believed otherwise. He did not believe he was involved in a broad attack on the civilian population. However he came to the realization within a year of reaching his majority that the methods used by the LTTE intelligence wing caused people to suffer and that people were being killed. He did not know if anyone he had dealings with was killed, but in his mind there was such a possibility. He decided he needed to be transferred out of his intelligence role and he achieved this around the time he turned 19 years old.

180    I accept the Minister’s reasons made reference to the applicant’s submissions dated 23 August 2016 and that he recounted some parts of those submissions (at [68]). However, the applicant’s submissions dated 22 January 2017 raised complex issues in relation to duress and involuntariness, and in particular the reasoning processes which the RSA and IMR used to arrive at their respective conclusions that the applicant did not act under duress and that the defence of duress under the Rome Statute did not apply to him. The Minister said (at 58]) that he considered those submissions, and I should not lightly disregard that statement. But the reasons indicate that his consideration concerned the applicant’s knowledge of the nature and possible consequences of his actions and not that the Minister considered the 22 January 2017 submissions in relation to duress or involuntariness.

181    I accept that it was not necessary for the Minister’s reasons to refer to every piece of evidence or contention made by the applicant, but the issues of duress and involuntariness were of central importance in the application, and there is little to show that the Minister gave meaningful consideration to the 22 January 2017 submissions. Further, while the Minister noted the findings of the PVA delegate in relation to duress or involuntariness (at [65]-[71]), he failed to meaningfully engage with those findings. The Minister dismissed the PVA findings on the basis of the different thresholds applicable under s 5H(2) compared to s 501(6)(ba) of the Act (at [71]-[75]). However, other than stating that “reasonable suspicion” represents a lower standard of proof than “serious reasons for considering”, the Minister did not describe or explain how those different thresholds applied to the facts of the case as he found them, or how those facts could support a finding of duress for the purposes of s 5H(2) but not s 501(6).

182    The Minister also stated a preference for the RSA and IMR findings regarding duress (at [76]-[78]) but did not explain why those findings were to be preferred. For example, the Minister’s apparent approval (at [78]) of the IMR finding as to when the applicant began to believe that he may be killed by the LTTE if he did not fulfil his duties was squarely dealt with in the 22 January 2017 submissions. The Minister did not engage with the applicant’s representations on that important point. The Minister merely said that that “on balance” he did not accept the findings in the PVA decision in relation to duress, but failed to explain the basis for his conclusion.

183    The failure to consider the applicant’s submissions on duress can also be seen in an inconsistent finding by the Minister, which went unexplained in his reasons. The Minister accepted the PVA delegate’s finding that the applicant was a refugee under the Refugees Convention and a person in respect of whom Australia has international non-refoulement obligations (at [123]), but did not accept the PVA delegate’s finding that the applicant’s activities with the LTTE were undertaken under duress (at [96]). Those two findings by the Minister are inconsistent. His acceptance of the PVA delegate’s finding with respect to non-refoulement obligations cannot be divorced from the PVA delegate’s finding that the applicant acted under duress. If the applicant’s intelligence activities with the LTTE were not undertaken under duress, on the facts as found, the PVA delegate was bound to find that the applicant was excluded from protection by Article 1F(a) of the Refugees Convention (now reflected in s 5H(2)(a) of the Act).

184    On a fair reading and considered as a whole the Minister’s reasons in relation to duress and involuntariness do not show an active intellectual engagement with the applicant’s submissions on a clearly articulated and central issue in his visa application. The applicant should not be left to wonder whether his submissions were taken account of by the Minister or to guess what role his submissions played in the decision: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [49] (Lindgren, Rares and Foster JJ); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[89] (Middleton, Moshinsky and Anderson JJ). This is particularly important given the serious consequences for the applicant: Hands at [3].

185    It is appropriate to allow ground five of the application

Ground 6 – Lawfulness of CONTINUING detention

186    Ground six of the application alleges as follows:

Lawfulness of continuing detention

The Respondent has failed to grant or refuse a protection visa to the Applicant under s 65 of the Migration Act as soon as reasonably practicable, and his continuing detention for that purpose would be unlawful.

Particulars

a.    The duty of the Respondent to grant or refuse a valid visa application under s 65 of the Migration Act is, by implication, to be performed as soon as reasonably practicable.

b.    The Applicant made a valid application for the protection visa on 30 March 2016.

c.    On 7 March 2017, the Respondent’s delegate found that the Applicant satisfies the criterion prescribed in s 36(2)(a) of the Migration Act and that the grant of the visa is not prevented by s 36 of the Migration Act.

d.    On 17 May 2017, a notice of intention to consider refusal under s 501 of the Migration Act was issued.

e.    The period that elapsed between 30 March 2016 and 24 July 2019 is longer than reasonably necessary to consider and determine the application for the protection visa according to law.

f.    Further and in the alternative, the period that elapsed between 7 March 2017 (or alternatively 17 May 2017) and 24 July 2019 is longer than reasonably necessary to consider and determine the exercise of the First Respondent’s power under s 501(1) of the Migration Act according to law.

g.    The power and duty to detain an unlawful non-citizen in ss 189 and/or 196 of the Migration Act is subject to an implied limitation (including for constitutional reasons) that detention pending the consideration and determination of a valid visa application is not to continue beyond the period reasonably necessary for the purpose of considering and determining the application according to law.

The legislative framework

187    The key statutory provisions in relation to this ground are ss 65, 189, 196 and 198(6) of the Act.

188    Section 65 states that the Minister is to grant a visa if satisfied of certain matters. Relevantly to the present case, the Minister must be satisfied that the grant of the visa is not prevented by s 501 (which provides a discretionary power to refuse a visa on character grounds). It 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

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

189    Section 189 provides:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

The obligation to detain is expressed in imperative terms. Once a relevant Commonwealth officer has the requisite knowledge or suspicion he or she “must detain the person”.

190    Section 196 requires that an unlawful non-citizen detained under the Act “must” be kept in immigration detention unless one of four events occur. Except by reference to those terminating events the obligation to detain is unqualified, and the duration of detention is not, in terms, limited in time. It relevantly provides:

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

…

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

…

(6)    This section has effect despite any other law.

191    Section 198 appears in a separate division of the Act which deals with the removal of detainees. Subsection (6) is relevant in the present case. It imposes a duty on an officer, meaning the Minister, to remove an unlawful non-citizen from Australia “as soon reasonably practicable” after the occurrence of the events referred to in the section. It provides:

198    Removal from Australia of unlawful non-citizens

…

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

  (a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

  (c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

   (ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

192    Upon the Minister’s decision under s 501(1) to refuse to grant the applicant a protection visa, the applicant satisfied subss (a), (b), (c) and (d) of s 198(6) which triggered the obligation to remove the applicant from Australia as soon reasonably practicable.

Consideration

193    The applicant has never held a visa and he is and always has been an “unlawful non-citizen” for the purposes of the Act. It is common ground that prima facie:

(a)    s 189 of the Act required that the applicant be detained in immigration detention; and

(b)    s 196(1) of the Act required that his detention continue until the occurrence of one of the four terminating events: removal from Australia under s 198 or s 199; an officer beginning the process under s 198AD(3) for removal to a regional processing country; deportation under s 200; or the grant of a visa.

194    The applicant relies on Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 (Plaintiff S4) at [30]-[35] (French, Hayne, Crennan, Kiefel and Keane JJ), and Plaintiff M76/2013 v Minister for Immigration and Border Protection [2013] HCA 53; (2013) 251 CLR 322 (Plaintiff M76) at [28(v)], [30] (French CJ) and [139] (Crennan, Bell and Gageler JJ). He argues that these cases are authority for the proposition that the requirement in s 198(6) to remove the applicant from Australia “as soon as reasonably practicable” effectively imposes an outer limit on the duration of detention.

195    On the applicant’s argument, if one of the terminating events identified in s 196(1) does not occur, removal under s 198(6) nevertheless has to occur “as soon reasonably practicable” because the detention provided for in ss 189 and 196 is premised upon the assumption that duties imposed by other provisions of the Act will be complied with. Thus, that decision-making under the Act will be undertaken and completed as soon as reasonably practicable, and removal under s 198 will be pursued and completed as soon as reasonably practicable. The applicant contends that the decision of the Minister or his delegate in relation to the applicant’s visa application under s 65, including whether to refuse to grant the visa under s 501, was required to be undertaken and completed within the time period reasonably necessary to decide that application. He argues that did not occur and therefore his continuing detention became and remains unlawful.

196    The passages of Plaintiff S4 upon which the applicant relies are concerned with s 198(2) rather than s 198(6), but the two provisions are relevantly the same in requiring the removal of an unlawful non-citizen as soon as reasonably practicable. The High Court said (at [34]-[35]):

It follows that the Executive’s consideration (while the plaintiff was in immigration detention) of whether he might seek and be granted a protection visa had to be undertaken within that framework. As already observed, the authority to detain the plaintiff is an incident of the power of the Executive to remove the plaintiff or to permit him to enter and remain in Australia, and the plaintiff’s detention is limited to what is reasonably capable of being seen as necessary to effect those purposes. The purpose for his detention had to be carried into effect as soon as reasonably practicable. That is, consideration of whether a protection visa may be sought by or granted to the plaintiff had to be undertaken and completed as soon as reasonably practicable. Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive. The Act is not to be construed as permitting detention of that kind.

…The powers to consider whether to permit the application for, and the grant of, a visa had themselves to be pursued as soon as reasonably practicable. Unless those powers were to be exercised in a way that culminated in the plaintiff’s successfully applying for the grant of a visa, his detention had to be brought to an end by his removal from Australia as soon as reasonably practicable. That is, the decision to exercise the power under s 46A, any necessary inquiry, and the decision itself, must all be made as soon as reasonably practicable. Otherwise, the plaintiff’s detention would be unlawful.

(Emphasis added and citations omitted.)

197    In Plaintiff M76 French CJ said (at [28(v)]) that:

Section 198(2) of the Act… accommodates “the taking of steps for the purpose of informing the Minister of matters relevant to the possible exercise of power under either s 46A or s 195A.” Assuming that such inquiries were undertaken reasonably promptly, detention while they were undertaken would be lawful.

(Emphasis added.)

The applicant argues, by implication, that if the relevant administrative steps are not undertaken reasonable promptly, any detention would become unlawful as it would entail a departure from the statutory purpose of the detention.

198    Chief Justice French then went on to more clearly state the proposition upon which the applicant relies (at [30]):

Absent her claim on Australia for protection under the Refugees Convention and the process of assessment that followed it, the plaintiff’s continuing detention would only have been lawful while steps were being taken to arrange for her removal as soon as reasonably practicable from Australia to Sri Lanka. The process of assessment provided a distinct legal underpinning for her detention pending its completion and the ministerial decision. The legal proceedings which the plaintiff has instigated in this Court to test that process for legal error must, like the process itself, be accommodated by the provisions of s 198(2). In short, subject to reasonable promptness on the part of the Minister and his officers in responding to the declaration of this Court, the plaintiff’s continuing detention is authorised.

(Emphasis added.)

199    The plurality of Crennan, Bell and Gageler JJ said (at [139]):

The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in administrative processes directed to the limited purposes identified. The temporal limits and the limited purposes are connected such that the power to detain is not unconstrained….The common law does not recognise any executive warrant authorising arbitrary detention. A non-citizen can therefore invoke the original jurisdiction of the Court under s 75(iii) and (v) of the Constitution in respect of any detention if and when that detention becomes unlawful. What begins as lawful custody under a valid statutory provision can cease to be so.

(Emphasis added in bold. Citations omitted.)

200    On the applicant’s argument, the plurality explicitly referred to the lawful authority to detain being linked to the temporal limits identified by reference to the time necessarily or reasonably taken to pursue the administrative processes directed to the relevant statutory purpose, and recognised that exceeding what is reasonable and necessary may render the detention unlawful. The applicant argues that a lack of reasonable promptness in decision-making may result not just in an order for mandamus to require a decision to be made promptly, but in a decision that continuing detention is no longer authorised or lawful.

201    The applicant contends that the time taken to decide his protection visa application, including to decide whether to refuse to grant him a visa under s 501, significantly exceeded the time reasonably necessary to make that decision, that his detention past the point which it ceased to be reasonable became unlawful.

202    The applicant further contends that once the Minister made the 24 July 2019 decision under s 501(1) to refuse to grant him the visa, that application had been “finally determined” within the meaning of s 198(6): see the definition of “finally determined” in s 5(9). That triggered the duty under s 198(6) to remove the applicant from Australia as soon as reasonably practicable, and the Minister has not taken any step to remove him and has no intention of doing so. He argues that there is no reason (once the breach of international obligations is disregarded as required by s 197C of the Act) to suppose that it is not reasonably practicable to arrange for his removal to Sri Lanka, and in any case such removal is not presently being actively pursued. In all the circumstances, particularly having regard to the fact that the failure to remove the applicant is entirely consistent with Australia’s international obligations and with the government’s stated policy position, the applicant contends that a factual finding should be made that officers of the Commonwealth have not acted to remove him as soon as reasonably practicable, and that his continuing detention is therefore unlawful.

203    Having said that, the applicant is concerned to explain that he does not wish to be returned to Sri Lanka and he does not contend that the Commonwealth or its officers should return him to Sri Lanka in breach of Australia’s international non-refoulement obligations. But on his argument, the fact remains that his continuing detention is not lawful and cannot be continued beyond the point where removal was reasonably practicable, which point has passed.

204    In respect of this ground, the applicant seeks:

(a)    a declaration that the Minister has failed to make a decision (whether personally or by his delegate) whether to make a decision to grant or refuse to grant the applicant a protection visa under s 65 of the Act as soon as reasonably practicable;

(b)    a declaration that the Minister has failed to make a decision (whether personally or by his delegate) whether to exercise a discretion under s 501 of the Act as soon as reasonably practicable;

(c)    a declaration that his continuing detention is not authorised by Part 2 Division 7 of the Act because the duration of the detention has already exceeded that which was reasonably necessary to consider and determine his application for a protection visa according to law;

(d)    a writ of habeas corpus directed to the Minister, or alternatively an order requiring the Minister to procure his release from detention forthwith; and

(e)    an interlocutory order for his release from detention pending determination of the application.

Whether the applicant’s visa application was determined within a reasonable time

205    In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (BMF16) at [20]-[27] Bromberg J usefully set out the authorities in relation to whether there has been unreasonable delay in the performance of a statutory duty. His Honour said (at [20]):

As Murphy J observed in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 (at 578), where a statutory obligation to perform a public duty exists, without a time limit “any duty would be illusory”. For that reason, where a time limit is not specified, a “reasonable time” will be implied. The same approach was taken by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573–574. These authorities have been relied upon in support of the proposition that in the absence of specified time limits decisions required by statute are to be made within a reasonable time: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102] (Gageler J); Repatriation Commission v Morris (1997) 79 FCR 455 at 461 (Beaumont J); NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [12] (Beaumont J); and see generally Pearce and Geddes, Statutory Interpretation in Australia (8th ed, Lexis Nexis Butterworths, 2014) at 300 [6.51].

206    In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) at [121] Gummow J said in relation to the word “reasonably” in the command for a duty be performed “as soon as reasonably practicable” in s 198 of the Act that “[t]he qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.” In Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 at [116] Middleton and Wigney JJ (with whom Pagone J agreed in this respect) adopted that passage. Whether there was any unreasonable delay in determining the applicant’s visa application is a question of fact. What is a reasonable time will depend upon all the facts (Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 at 574 (Dixon J)) and whether a delay is unreasonable will depend on all of the circumstances: Thornton v Repatriation Commission [1981] FCA 71; (1981) 35 ALR 485 at 489–490 (Fisher J).

207    The applicant relies upon the fact that he applied for the protection visa in March 2016 and that the Minister’s decision to refuse to grant him the visa was not made until more than three years later, in July 2019. In particular, the applicant points to the period after the PVA decision in March 2017 when, having regard to that decision, the Minister or his delegate should have been sufficiently acquainted with the circumstances of the applicant’s case to make a decision within a reasonable time thereafter.

208    I accept the applicant’s contention that the evidence shows an extraordinary delay of some 451 days (14 months and 25 days) between 24 October 2017 (when Victoria Legal Aid said the applicant had no further submissions to make) and 18 January 2019 (when the Department wrote to Victoria Legal Aid stating that “new information” had been identified which the decision-maker may take into account). The so-called “new information” was the ITOA assessment dated 16 June 2014 which had been in the possession of the parties since that time and had already been the subject of extensive submissions. It was not new, it did not justify the preceding delay, and the Minister put forward nothing to explain the delay that occurred other than to say the applicant’s case is complex. I accept that the applicant’s case is complex but that does not justify the extraordinary delay that occurred.

209    I find that the Minister, whether personally or by his delegate, failed to make a decision on the applicant’s visa application under s 65, and as to whether to exercise the discretion under s 501 to refuse to grant the applicant of the visa, as soon as reasonably practicable or within the time which it was reasonably necessary to do so.

210    Although, for the reasons I explain below, I have not concluded that the applicant’s continuing detention is unlawful, I consider it appropriate to make declarations in regard to such serious and unacceptable delay. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA) the Court has a wide discretion to make declarations of right whether or not any consequential relief is or could be claimed: Australian Competition and Consumer Commission v Knight [2007] FCA 1011; (2007) ATPR 42-165 at [65] (Mansfield J). In Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 to 438 the High Court held that three threshold requirements should be satisfied before a declaration will ordinarily be made: (a) there must be a real and not theoretical question; (b) the applicant must have a real interest in seeking such a declaration; and (c) there must be a proper contradictor. Each of those requirements is satisfied in the present case.

211    The declarations are appropriate because there is a public interest in timely administrative decision-making, they have utility (BMF16 at [239]), and they record the Court’s disapproval of the serious delay in the present case: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 105; (1993) 41 FCR 89 at 100 (Sheppard J); Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309 at [36] (Sackville J); Australian Competition and Consumer Commission v Eurong Beach Resort Ltd and Ors [2005] FCA 1134 at [5]-[6] (Kiefel J, as her Honour then was).

Whether the applicants continuing detention is unlawful

212    As I have said, the applicant’s position is tragic and an outcome that sees him remaining in detention indefinitely may have seriously adverse consequences in terms of his mental health, and his life. But the authorities are in my view clear that the applicant’s continuing detention was and remains lawful.

213    In ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372 (ASP15) (Robertson, Griffiths and Bromwich JJ) the appellants were unlawful non-citizens detained in immigration detention under s 189 of the Act. The appellants’ case was that the Minister’s delegate failed to determine their visa applications “as soon as reasonably practicable”, which period they claimed was the then applicable statutory 90-day time limit for determination of a visa application. The appellants were ultimately granted visas but well past the statutory time limit. In reliance upon the reasoning in Plaintiff S4 and Plaintiff M76 they argued that the delay in making the visa decisions meant they were detained beyond the point which their detention was authorised by the Act. They asserted that their detention was unlawful and constituted the tort of false imprisonment, and they sought damages from the Commonwealth and the Minister. The Full Court dismissed their application.

214    Their Honours said (at [30]-[31]):

In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, the majority at 581 [33]-[35] and 638-640 [225]-[233] specifically rejected the contention that where detention was for the purpose of removal, in order to be constitutionally valid s 196(1) was to be construed as implicitly subject to a requirement that the purpose of removal be capable of fulfilment within a reasonably practicable time. That conclusion is binding on this Court.

The majority in Al-Kateb further held that detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if removal was required by s 198, but not effected. That is, detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if each of the criteria in s 198 was satisfied and removal was reasonably practicable. If a person continued to be detained after this, it would inevitably follow that the detention was for some purpose other than removal as authorised and required by s 198(2).

(Emphasis in original.)

215    The Full Court said (at [32]-[33]) that Plaintiff M76 was not a case in which resolving any residual differences between Al-Kateb and the remarks of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (Lim) arose, because the Al-Kateb point had not been reached in Plaintiff M76. That is, the point had not been reached where there was an impasse in which removal could not be affected and nothing more could be done administratively, but a future resolution of the impasse could not be excluded as a possibility. Thus their Honours said:

Al-Kateb therefore remains good law, and allows for the possibility of prolonged detention due to such an impasse, indicating that duration of detention alone, and the lack of any immediate prospect of it ending, is not enough to make that detention unlawful. That is of significance in a case such as the present appeals in which the complaint is not that nothing more could have been done, but rather that it was not done quickly enough.

(Emphasis added.)

216    The Full Court went on to observe (at [33]) that the passages from Plaintiff S4 that were relied upon to build upon Lim and “to develop a case of unlawful detention by the asserted undue effluxion of time in making a visa decision, require close and careful consideration as to text and as to context.” Their Honours noted that Al-Kateb was not discussed in Plaintiff S4, nor was any doubt cast on its correctness. Nor was Al-Kateb substantially addressed by counsel for the appellants in ASP15 (and the same is true in the present case).

217    The Full Court distinguished the facts in Plaintiff S4 from those in ASP15 (at [34]-[39]), noting that in Plaintiff S4 the appellant was an unauthorised maritime arrival in immigration detention and prevented by s 46A(1) of the Act from making a valid protection visa application. Their Honours explained that the appellant therefore met each of the criteria in s 198(2) and the obligation to remove him had been triggered. Because the removal obligation had been enlivened it applied to all pending steps, including the obligation to consider whether or not to lift the bar under s 46A(2). It was in that context that the High Court made the observations that it did about the duration of the detention being bounded by the requirement in s 198(2) to remove the appellant “as soon as reasonably practicable”.

218    The Full Court contrasted the facts in Plaintiff S4 to those in ASP15, noting that in the latter case the power under s 46A had been exercised and the appellants had been able to make and had made valid protection visa applications. Their Honours said therefore (at [39]):

The obligation under s 198(2) was never triggered. It follows that there was no occasion for the terms of s 198(2) to have any effect on s 196(1), let alone dominant effect. The reasoning in Plaintiff S4 does not assist in this case, and does not overcome the reasoning of the majority in Al-Kateb.

219    The Full Court concluded (at [40]):

It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). None of the authorities relied upon by the appellants compels a different conclusion. Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.

(Emphasis added.)

220    Their Honours also said (at [42]):

Such reasoning as submitted by the appellants also inverts principle. The regime for immigration detention is valid for the purposes of making a visa decision precisely because it imposes an obligation on the Minister to make that decision within whatever time limit applies; detention only remains valid so long as such a purpose under the Migration Act continues to exist. In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.

(Emphasis added.)

221    The applicant notes that ASP15 distinguished Plaintiff S4 and submits that the Full Court should not be understood as doubting the propositions advanced based on Plaintiff S4 and Plaintiff M76. I do not accept that submission. It is correct that the facts in the two cases can be distinguished, but the position in the present case is more akin to ASP15 than Plaintiff S4. In ASP15 and in the present case the detainees had made valid protection visa applications, and thus the obligation to remove them as soon as practicable was never triggered (at least up to the visa refusal decision on 24 July 2019 in the present case).

222    More fundamentally, the majority in Al-Kateb rejected a construction of ss 189, 196 and 198 which depends upon “taking the temporal element of the legislative command in s 198 (to remove as soon as reasonably practicable) and converting that into a different temporal limitation on the operation of s 196 and, by inference, on the operation of s 189”: at [237] per Hayne J, with whom McHugh and Heydon JJ agreed at [33]-[34] and [303] respectively, and at [290]-[298] per Callinan J.

223    Further, the Full Court in ASP15 unequivocally held (at [40]) that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1), which it held was consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). The Full Court in ASP15 also held (at [42]) that where the process to make a visa decision has gone on for longer than reasonably practicable, such detention nonetheless remains validly authorised and required by s 196(1) of the Act. That is, the Full Court explicitly rejected the argument the applicant mounts in the present case and I am bound to follow ASP15.

224    Considered dicta in the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 (Al Masri) (Black CJ, Sundberg and Weinberg JJ) points the same way. The majority in Al-Kateb overturned the ratio in Al Masri but the High Court was not called on to deal with another part of the decision where the Full Court rejected the trial judge’s reasoning that the power to detain under s 196 was limited in operation to such time as the Minister was taking all reasonable steps to remove a detainee from Australia as soon as reasonably practicable, which limitation emerged from reading s 196(1) as subject to the duty imposed upon the Minister by s 198(1), to remove a detainee as soon as reasonably practicable. The Full Court rejected that limitation (at [134]) and said:

Although the two provisions are part of the same scheme, we would not read them together in this way. If the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty.

The applicant did not address this finding.

225    Finally, the applicant’s argument is contrary to a number of decisions of single judges of this Court. They are however of limited assistance as they predate the Full Court decision in Al Masri, and predate the decisions of Al-Kateb, Plaintiff M76, Plaintiff S4, and ASP15. It suffices to go to two of them: WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (WAIS) at [47], [49] and [56] (French J) and NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 (NAES) at [6] and [11] (Beaumont J).

226    In WAIS, the applicant was an unlawful non-citizen held in immigration detention. He made a valid application for a protection visa and was refused, and his efforts at administrative and judicial review of that decision were unsuccessful. He then sought removal from Australia to a place where he would be safe. He was not removed and, having regard to the time that had expired and the lack of any reasonable likelihood that he would be able to be removed in the foreseeable future, he argued that the power to detain him was exhausted and his continuing detention was unlawful. Justice French, as his Honour then was, said (at [49]):

Section 198 appears in a separate division dealing with the removal of detainees. It sets out the circumstances in which the obligation to remove persons from Australia arises. That removal necessarily terminates the continuing detention under s 196. That the removal must take place “as soon as reasonably practicable” after a written request or final refusal of a visa (ss 198(1) and (6)) does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal. There are no words in the section which condition it upon the expiry of a time which is “reasonably practicable” to effect the removal after the satisfaction of one of the conditions in s 198. The uncertainty of determining when the detention would cease to be lawful if it were to be based upon the expiry of a period of time qualified by the term “reasonably practicable”[sic].

(Emphasis added.)

To similar effect his Honour said (at [56]) that the language of s 196 is “intractable” and that detention under that provision is ended only by one of the specified terminating events. His Honour considered the appropriate remedy for a failure to discharge the duty under s 198 was a writ of mandamus rather than a finding that detention was unlawful because of excessive time in detention.

227    In NAES the applicant was an unlawful non-citizen in a similar position to the applicant in WAIS. Beaumont J (at [6]) agreed with the reasoning in WAIS and said (at [11]):

Even if inexcusable delay on the part of the Department had been demonstrated (a question upon which I need not, and do not, express an opinion), the only appropriate remedy, in my view, would have been an application for mandamus compelling “the officer” upon whom is placed the statutory duty prescribed by s 198 to remove the applicant “as soon as [is] reasonably practicable” in the circumstances of the applicant’s case. 

228    In the present case, until the Minister’s decision on 24 July 2019, the purpose of the applicant’s detention (at least after March 2016 when he lodged the visa application) was to determine his visa application. I have found there was unreasonable delay by the Minister or his delegate in deciding that application, but the authorities indicate that notwithstanding such delay the applicant’s detention under ss 189 and 196 remained lawful. The appropriate remedy to address such delay would have been an order for mandamus to compel determination of the visa application.

229    The applicant also contends that since the Minister’s visa refusal decision of 24 July 2019, the evidence does not show that any steps have been taken to arrange for his removal to Sri Lanka, the Minister has no intention of removing him to Sri Lanka because to do so would breach Australia’s non-refoulement obligations, and he has not been removed from Australia as soon as reasonably practicable. He contends that his continuing detention is therefore unlawful.

230    In this regard the applicant relies on the Minister’s response to a Notice to Admit, in which the Minister admitted that:

(a)    Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to a country in respect of which a non-refoulement obligation exists; and

(b)    neither the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, nor the Minister for Home Affairs is currently considering exercising the discretion to intervene under section 195A of the Act to grant the applicant a visa, releasing him from detention.

The applicant also relies on a Community Protection Assessment Tool prepared by the Department on 26 February 2019 which records that the applicant “was indicatively found to be a refugee on 07/03/2017, thus is not available for removal from Australia.”

231    I do not accept the applicant’s contention. First, as at 24 July 2019 there was nothing to suggest that the time for the applicant’s removal had arrived because it was reasonably practicable to do so. Until that date he was held in detention because he is an unlawful non–citizen whose visa application was being considered. Once the visa refusal decision was made the applicant sought judicial review of the Minister’s decision within the applicable time limit. It would have been inappropriate for the Minister to remove the applicant from Australia while that application was on foot. Indeed, counsel for the applicant conceded that had the Minister sought to remove the applicant from Australia pending determination of the judicial review application, the applicant would have sought an injunction against his removal, and he accepted that such an application was likely to be successful. I do not accept that it was reasonably practicable for the Minister to remove the applicant from Australia at any point between 24 July 2019 and the delivery of judgment in this proceeding.

232    Upon judgment in this proceeding and orders to quash the Minister’s decision and to re-determine the applicant’s visa application in accordance with law, unfortunately for the applicant, the clock starts running again. It is however appropriate to ensure that there is no unnecessary delay in the re-determination of the applicant’s visa application and upon hearing submissions from the parties as to a reasonable timeframe I will order that the re-determination occur by a fixed date.

Relief

233    For the reasons I have explained, it is appropriate to make declarations as follows:

(1)    The Minister failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the applicant a protection visa under s 65 of the Act as soon as reasonably practicable.

(2)    The Minister failed (whether personally or by his delegate) to make a decision whether to exercise the discretion under s 501 of the Act to refuse to grant the applicant a protection visa as soon as reasonably practicable.

234    It is also appropriate to make the following orders:

(1)    A writ of certiorari issue to quash the decision of the Minister made on 24 July 2019 to refuse to grant the applicant a protection visa.

(2)    A writ of mandamus issue to require the Minister (whether personally or by his delegate) to determine the applicant’s application for a protection visa under s 65 of the Act as soon as reasonably practicable, and within a period to be fixed following further submissions.

(3)    The First Respondent pay the applicant’s costs of the application.

235    I refuse the application for a writ of mandamus to compel the Minister (whether personally or by his delegate) pursuant to s 65 of the Act to grant the applicant the protection visa for which he applied on 30 March 2016. I can see no proper basis for such an order, and counsel for the applicant could not point to any case where such an order had ever been made.

236    I also refuse the application, in the alternative, for a writ of mandamus to compel the Minister (whether personally or by his delegate) to determine the applicant’s application for a protection visa on the basis that s 501 of the Act does not prevent the grant of the visa. In support of this relief the applicant submits that:

(a)    section 501 only prevents the grant of a visa to the applicant pursuant to s 65 of the Act if a valid decision to refuse the grant of the visa on character grounds has been made;

(b)    it may be assumed that a delegate exercising the duty under s 65 is entitled to wait while a further decision-making process is conducted in order to determine whether the visa should be refused under s 501;

(c)    while there is no duty to consider s 501 of the Act in any particular case, if it is to be considered then such consideration must be engaged in and completed as soon as reasonably practicable;

(d)    the duty under s 65 must be undertaken and completed as soon as reasonably practicable. Thus, if no decision to refuse to grant a visa under s 501 is made as soon as reasonably practicable, the decision-maker under s 65 cannot reasonably be satisfied that s 501 prevents the grant of the visa and the duty imposed by s 65 will require the decision-maker to grant the visa;

(e)    so much time has elapsed since the PVA decision in March 2017 was made that it is plain that the Minister or his delegate have taken longer than is reasonably practicable to make a decision under s 501(1). The time that has elapsed includes an extraordinary delay of some 451 days (14 months and 25 days) between 24 October 2017 and 18 January 2019 for which there was no explanation;

(f)    in circumstances where no valid decision under s 501 has been made, and where the time has elapsed since the PVA decision significantly exceeds any period that could be regarded as reasonably necessary for a decision to be made, the delegate is obliged to comply with the duty to make a decision under s 65(1) as soon as reasonably practicable, and the only conclusion lawfully open is that s 501 does not prevent a grant of the visa; and

(g)    the time within which the delegate’s duty is lawfully to be performed having expired, compliance with the duty forthwith is compellable by mandamus.

237    I am not persuaded that it is appropriate to make such an order. This aspect of the application is based in a contention of unreasonable delay by the Minister or his delegate. While I accept that up to 24 July 2019 the Minister or his delegate failed to decide the applicant’s visa application as soon as it was reasonably practicable to do so, the Minister or his delegate has not as yet had any opportunity to re-determine the applicant’s visa application. Unreasonable delay cannot sensibly be asserted with regards to such re-determination. The earlier delay is relevant to the appropriate time to allow the Minister and his delegates in the re-determination process, but it does not automatically mean that any time taken for the re-determination decision is automatically longer than reasonably practicable.

238    It is unnecessary to decide, but even if unreasonable delay could be established at some point in the future, it is not clear to me that the relief sought would be appropriate. The Minister accepts that the power under s 501 must be exercised as soon as reasonably practicable but that does not mean that the Court has power to deny the Minister his statutory discretion under s 501, or if it has such power that it would be appropriate to so exercise. The applicant’s argument assumes that the consequence of any unreasonable delay is a loss of the Minister’s power to exercise his discretion to refuse or grant a visa. Whether that is so is a question of statutory interpretation which is presently unnecessary to decide, but the authorities indicate that a writ of mandamus is the usual remedy when unreasonable delay in the performance of the statutory duty can be established.

239    Finally, the applicant sought an interlocutory order that he be released from immigration detention pending the decision at that hearing. I decline to order such relief because, in my view, there is no power to do so. Section 189 requires the mandatory detention of a person who has the status of an unlawful non-citizen or is reasonably suspected of being an unlawful non-citizen, and s 196 requires that such detention only comes to an end upon the occurrence of one of four specified terminating events, none of which has occurred in the applicant’s case. Further, s 196(3) of the Act states in unequivocal terms:

To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph 1(a), (aa) or (b)) unless the non-citizen has been granted a visa.

This view is consistent with authority: see for example, Al-Kateb at [35] (McHugh J); Re Woolley at [193] (Kirby J); and Durani v Minister for Immigration and Border Protection [2013] FCA 1264; (2013) 223 FCR 391 at [38] (McKerracher J).

Post-hearing consolidation

240    Upon notifying the parties that judgment would be delivered on 29 May 2020 the Minister sought to be heard on the form of the orders, and the proceeding was listed for a telephone case management hearing at 4:30 pm on 28 May 2020. At the hearing I informed the parties of the orders and declarations that I proposed to make. Counsel for the Minister sought to make, but did not develop, a submission that pursuant to s 476A of the Act the Court did not have jurisdiction to make the proposed declaration as to the Minister’s failure to make a decision under s 65 of the Act as soon as reasonably practicable, or to order that the Minister make a decision to grant or refuse to grant the applicant a visa under s 65 as soon as reasonably practicable.

241    As counsel for the Minister properly conceded, that was not a contention the Minister advanced in the hearing. The Minister did not submit in the hearing that the Court could not make a declaration as to any unreasonable delay in determining the applicant’s visa application under s 65, or to order a writ of mandamus to require the Minister to determine the Applicant’s application for a protection visa under s 65 as soon as reasonably practicable. Indeed, the Minister’s belated contention ran directly counter to the Minister’s submissions in the hearing - that mandamus was the appropriate remedy where there is unreasonable delay in the determination of a visa application.

242    Counsel for the applicant was taken by surprise by the Minister’s change of position. While counsel rejected the contention that the Court did not have jurisdiction he was not in a position to provide a detailed response. Allowing the Minister to alter his position in the way counsel proposed would require the delivery of judgment to be postponed to allow sufficient time for the Minister to put on properly developed submissions, for the applicant to put on submissions in response, and for the Court to consider the issue. In my view, permitting the Minister to alter course at that late stage would be inconsistent with the overarching purpose in s 37M of the FCA, and unfair to the applicant who is in detention and awaiting judgment.

243    The applicant does not concede that there is any want of jurisdiction or power. However, in a welcome display of cooperation, the parties agreed that the jurisdiction of this Court to make orders and declarations in respect of an exercise of power under s 65 will be put beyond doubt if: (a) the applicant files an application in the Federal Circuit Court which mirrors the amended application in the present case; (b) the Federal Circuit Court makes an order pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) transferring that application to the Federal Court; and (c) this Court orders that the two proceedings be consolidated. The parties consented to those steps being taken.

244    Those steps were urgently taken and I made orders to consolidate the two proceedings. I am satisfied that the Court has jurisdiction to make the attached declaration in relation to the Minister’s failure to exercise power under s 65 and to make the attached order in respect of the Minister’s future exercise of power under s 65.

Associate:

Dated:    29 May 2020