FEDERAL COURT OF AUSTRALIA

MNLR v Minister of Home Affairs [2020] FCA 948

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended originating application be dismissed.

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

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant is a citizen of Iraq who arrived in Australia in May 2011, aged 17. In May 2015 the applicant was convicted in the District Court of New South Wales (District Court) of committing one count of aggravated sexual assault between 10 and 13 February 2013 and on 23 October 2015 he was sentenced to three years imprisonment with a non-parole period of 18 months.

2    On 9 November 2016 the applicant’s Class XB Subclass 202 Global Special Humanitarian visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act) because the applicant did not pass the character test and at that time was serving a full-time sentence of imprisonment for an offence against a State law (Cancellation Decision).

3    The applicant sought revocation of the Cancellation Decision but on 5 November 2018 was notified that a delegate of the Minister had determined pursuant to s 501CA(4) of the Act not to revoke that decision (Revocation Decision).

4    On 12 November 2018 the applicant sought review of the Revocation Decision by the second respondent (Tribunal). On 25 January 2019 the Tribunal affirmed the Revocation Decision (First Tribunal Decision).

5    The applicant sought review of the First Tribunal Decision in this Court. On 11 April 2019 orders were made by consent remitting the matter to the Tribunal for redetermination.

6    On 6 January 2020 the Tribunal, differently constituted, affirmed the Revocation Decision (Second Tribunal Decision).

7    By way of amended application, filed with leave granted at the hearing, the applicant now applies for review of the Second Tribunal Decision.

The Second Tribunal Decision

8    It was not in issue that the applicant did not pass the character test prescribed in s 501(6)(a) of the Act given that he has been sentenced to a term of full-time imprisonment of 12 months or more. The Tribunal thus identified that the sole issue for its determination was whether, having regard to “Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79), there was “another reason” why the Cancellation Decision should be revoked.

9    The Tribunal noted that the objective of Direction 79 is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. It referred to the guiding principles that the Tribunal is required to apply in determining whether to revoke a visa cancellation as set out at para 6.3 of Direction 79 and, bearing those principles in mind, turned to consider the primary and other considerations set out in Pt C of Direction 79.

10    The Tribunal first considered the protection of the Australia community from criminal or other serious conduct. In doing so, the Tribunal considered the nature and seriousness of the applicant’s conduct and the risk to the Australian community should he commit further offences or engage in other serious conduct.

11    In terms of the nature and seriousness of the applicant’s conduct, the Tribunal found that the crime he committed was “plainly very serious” and that the custodial sentence of three years with a non-parole period of 18 months imposed by the District Court reflected the seriousness of the offending. While the Tribunal took into the account that the applicant has no other convictions, it concluded that the nature and seriousness of the offence weighed heavily in favour of not revoking the Cancellation Decision “because it involved offending of a most serious nature against a woman in the company of another person”.

12    In terms of the risk of harm to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal found that, if that were to occur, the nature of the harm would be very serious. The Tribunal considered the likelihood of the applicant committing further criminal or other serious conduct and, in doing so, had regard to two reports prepared by the applicant’s consultant psychologist, Tim Watson-Munro. In the first of those reports dated 14 January 2019, Mr Watson-Munro referred to discussions with the applicant on 18 December 2018 and said that he was impressed by the applicant’s maturation and evidence that he had reflected on his offending behaviour, expressed remorse for it and developed some insight as well as empathy for the victim. Mr Watson-Munro concluded that the likelihood of the applicant reoffending was low. However, the Tribunal placed little weight on the opinions expressed by Mr Watson-Munro in his first report because, in the Tribunal’s opinion, it was hard to reconcile it with the applicant’s statements of ongoing denial in his statutory declaration dated 12 December 2018 which was before the first Tribunal.

13    In the second report dated 19 July 2019, Mr Watson-Munro referred to his attendances on the applicant on 4 and 18 July 2019 and to the psychometric testing in relation to sexual violence risk which he administered and which indicated a low risk of sexual offending in the future. Mr Watson-Munro said that these results were consistent with his own clinical assessment and that the applicant could be considered at low risk of offending in the future and, if given the opportunity, would make a positive and strong contribution to the Australian community. In oral evidence Mr Watson-Munro expressed an opinion that the applicant’s remorse was genuine but that it had come late.

14    The Tribunal found that, despite the applicant expressing his remorse to Mr Watson-Munro and to the Tribunal in October 2019, it was not satisfied that the applicant had meaningfully addressed underlying issues in relation to his offending, that he had not undergone the necessary rehabilitative programs and that his remorse was expressed very late. Accordingly, the Tribunal did not accept the applicant’s contention that he poses a low risk of further offending and concluded that he poses a low to moderate risk of committing further sexual offences.

15    Considering both factors together, the Tribunal was of the opinion that, given the serious nature of the harm that flows from an aggravated sexual offence of the nature committed by the applicant, even a low or moderate risk of further similar harm is unacceptable. Thus, it concluded that the primary consideration of protection of the Australian community weighed strongly in favour of non-revocation of the Cancellation Decision.

16    The Tribunal then turned to consider the next primary consideration, the best interests of minor children in Australia affected by the decision. The Tribunal noted that it was required to consider each child’s interests individually to the extent that their interests may differ.

17    The Tribunal observed that the applicant has no children of his own but that there are four children under the age of 18 whose interests could be affected by his removal from Australia or his ongoing detention: his partner’s two children aged seven and four years old; and his two nephews who, at the time of the hearing, were less than one year old.

18    The Tribunal first considered the two children of the applicant’s partner. It noted the following facts about the applicant’s relationship with those children: first, that the applicant’s relationship with his partner commenced sometime after December 2016 through Facebook while he was detained at Christmas Island; secondly, since that time the applicant has moved to Villawood Detention Centre and the applicant’s partner visits him once or twice per week; and thirdly, that her children visited him six to eight times in 2019.

19    The Tribunal took into account the nature and duration of the applicant’s relationship with the partner’s children, observing that those children had only known the applicant for a relatively short period and only whilst in detention and there was no certainty that the children’s mother would have an enduring relationship with the applicant. Despite that, the Tribunal accepted, on the current evidence, that the relationship appeared strong but had been limited in time and, because of the applicant’s incarceration, had not been tested by any time together in the community such that it had some uncertainty associated with it. The Tribunal gave less weight to the applicant’s relationship with his partner’s children because it is non-parental, there was no existing relationship with the children before the offending and there was limited meaningful contact with those children given that they had not had any time in the community with him.

20    The Tribunal concluded that the interests of each of the partner’s children weighed slightly in favour of revoking the Cancellation Decision but that the weight to be attached to that factor was minimal.

21    The Tribunal then considered the applicant’s relationship with his two nephews. It found that they were too young to have formed any relationship with the applicant but that they would no doubt benefit from an uncle to assist with parenting as they grow up. As a result the Tribunal found that revocation of the Cancellation Decision was in the best interests of the applicant’s nephews but, in light of their age, gave minimal weight to that factor.

22    The Tribunal observed that the Minister conceded that, to the extent the children would be impacted by the applicant’s removal, it would be in their best interests for the Cancellation Decision to be revoked. However it said that those interests should be given very limited weight in light of the facts it had found. The Tribunal concluded that the interests of each of the children weighed slightly in favour of revoking the Cancellation Decision but that it attached very little weight to this consideration.

23    Next, the Tribunal considered the third and final primary consideration, the expectations of the Australian community. The Tribunal noted that this consideration was inextricably linked to the primary consideration concerning protection of the Australian community. The Tribunal also noted that in exercising its discretion it was informed by the principle at para 6.3(1) of Direction 79, namely that “[b]eing able to come to 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”.

24    The Tribunal made two observations: first, the community expects non-citizens to “obey Australian laws while in Australia”, which was an expectation that had not been met in the past by the applicant who had breached the trust that the Australian community placed in him; and secondly, Australia has a low tolerance of any criminal conduct by a person such as the applicant who had been participating in and contributing to the Australian community for only a short time before offending.

25    The Tribunal concluded, taking into account the serious nature of the applicant’s offending and the risk of reoffending, that the expectations of the Australian community weighed strongly in favour of non-revocation of the Cancellation Decision.

26    The Tribunal then considered the non-exhaustive list of other considerations set out in Direction 79.

27    In doing so, it first considered international non-refoulement obligations. The Tribunal noted that the “question before [it] in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the [cancellation decision] should be revoked” and that it was required properly to consider the claims being made and the factual material relied upon by the applicant. The applicant contended that he would face harm if he returned to Iraq and that the Tribunal was required to consider Australia’s international non-refoulement obligations.

28    The Tribunal recorded that the applicant accepted that he has the right to apply for a protection visa and then (at [63] of its reasons) set out its task as follows:

Whilst I am satisfied that I do not fall into jurisdictional error by deferring the consideration on non-refoulement obligations until the determination of any application tor a protection visa, the recent decision in Minister for Home Affairs v Omar means that I must give consideration to such claims raised by the applicant. The appropriate course is for the Tribunal to consider whether the existence of non-refoulement obligations is ‘another reason’ for revoking the cancellation decision. In any event, I am not released from “considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations”.

(Footnote omitted.)

29    At [64] of its reasons the Tribunal continued:

In making an assessment as to the existence of non-refoulement obligations, I bear in mind the following:

(a)    there is no legal impediment to the applicant applying for a Protection visa in the future, and Ministerial Direction 75 provides that when considering a Protection visa application, a delegate must first assess a person’s refugee and protection claim before considering any ineligibility grounds;

(b)    I am not required to carry out the same level of analysis as would be expected in the assessment of a Protection visa application;

(c)    it is open to me to give greater weight to the primary considerations in Direction 79 than to this ‘other consideration’.

30    At [66]-[67] of its reasons the Tribunal summarised the applicant’s evidence and referred to relevant country information which supported his claims:

66.    The applicant gave evidence that Sabean Mandaeans are persecuted in Iraq as infidels and because they are considered to be religiously unclean. He has clear memories of being bullied at school because he is Mandaean. He also remembers growing up in a dangerous suburb of Baghdad where houses were bombed and neighbours were killed. He remembers fleeing to Syria with his parents and siblings where they lived for about five years before coming to Australia in May 2011. The applicant fears that he will be killed because of his faith and Mandeaen culture if he is returned to Iraq.

67.    The applicant was not cross examined with respect to these claims and I have no reason to doubt them. The respondent does not challenge the evidence given with respect to the rape and murder of the sister. The general claims are supported by the most recent DFAT Country Information Report on Iraq dated 9 October 2018 (DFAT report) which refers to Sabean Mandaeans being kidnapped for ransom with a high risk of being killed for refusing to pay. The DFAT Report concludes that Sabean Mandaeans face a low risk of official discrimination and a moderate risk of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority.

(Footnote omitted.)

31    Having regard to those matters, the Tribunal accepted that there is a real risk of harm if the applicant returns to Iraq and that he is owed non-refoulement obligations.

32    Next, the Tribunal considered the legal consequences of a decision not to revoke the Cancellation Decision given its finding that the applicant is owed non-refoulement obligations. The Tribunal observed that the applicant will be liable to be removed from Australia as soon as it is reasonably practicable to do so but that it was also relevant that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A of the Act and that the applicant would not be liable to be removed in the event he applied for, and was granted, a protection visa. The Tribunal then said (at [70] of its reasons):

The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable his detention would not be indefinite.

(Footnote omitted.)

33    The Tribunal found that because the applicant would be returned to Iraq, subject to any successful protection visa application, there is a very real risk that he will suffer harm if the Cancellation Decision is not revoked. The Tribunal thus concluded that this factor weighed heavily in favour of revoking the Cancellation Decision but noted that the applicant has the opportunity of applying for a protection visa at which time his claims in relation to non-refoulement obligations would be fully explored.

34    The Tribunal then considered three further of the other considerations in Direction 79: the strength, nature and duration of the applicant’s ties to Australia; the impact of a decision not to revoke the Cancellation Decision on victims; and the extent of the impediments that the applicant may face if removed from Australia.

35    As to the first of these factors, having regard to the relevant facts, the Tribunal concluded that the strength, nature and duration of the applicant’s ties to Australia weighed in favour of revocation of the Cancellation Decision.

36    The Tribunal found the second factor, impact on victims, had a neutral effect and did not weigh in favour of, or against, revocation of the Cancellation Decision. This was because there was no direct evidence before the Tribunal about the impact that non-revocation would have on the victim of the applicant’s conduct.

37    As to the third factor, the extent of impediments that the applicant may face if removed from Australia to Iraq, the Tribunal found that the applicant would face “very real and substantial impediments” should that occur. Accordingly, the Tribunal concluded that this consideration weighed strongly in favour of revocation of the Cancellation Decision.

38    The Tribunal then came to weigh up the various considerations. In doing so, it noted that the primary considerations were overwhelmingly in favour of not revoking the Cancellation Decision but that there were other considerations which favoured revocation. The Tribunal considered that this was a case in which the principle enunciated in para 6.3(4) of Direction 79 applied and found that the risk of future harm from the applicant was unacceptable because of the serious nature of the crime he committed. The Tribunal continued (at [90]-[91] of its reasons) as follows:

90.    I note that primary considerations should generally be given greater weight than the other considerations. I consider that the primary considerations of the protection and the expectations of the Australian community outweigh the countervailing considerations.

91.    The applicant will be at risk of being killed if returned to Iraq but the Australian community will face an unacceptable risk of further harm if the applicant remains in Australia. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is law-abiding and will not cause or threaten harm to individuals or the Australian community – by committing the aggravated sexual assault the applicant has not been law-abiding. The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such serious crimes in Australia. The applicant, as a non-citizen who has committed a serious crime against a woman, should generally expect to forfeit the privilege of staying in Australia. Australia has a low tolerance with respect to the criminal offending of the applicant who has been participating in, and contributing to, the Australian community only for a short period of time.

(Footnotes omitted.)

39    It followed that the Tribunal was not satisfied that there was “another reason” why the Cancellation Decision should be revoked.

The amended application

40    In his amended originating application the applicant raises the following three grounds:

1.    The second respondent failed to take into account an integer or aspect of the applicant’s case, in that it failed to engage in an active intellectual process with the applicant’s case, and that failure went to jurisdiction.

1.1    An aspect of the applicant’s case was the hardship which the applicant would face if he remained in detention indefinitely.

1.2    The second respondent accepted that the applicant was owed protection obligations by Australia, and was at risk of being killed if he returned to Iraq, noted he could apply for a protection visa, noted that the Minister had power to grant a bridging visa in those circumstances, and noted that otherwise, the Act required that he be removed to Iraq as soon as practicable.

1.3    The second respondent failed to confront the fact that as a matter of practical reality and fact, the first respondent would not grant a bridging visa, and the second respondent's choice was to accept refoulement, or experience a lengthy period of further detention while his protection visa application was determined, with no certainty that the application would be granted, because the harm may not meet the Convention requirements, or he may be refused again on character grounds.

2.    The second respondent’s exercise of it’s [sic] discretion was legally unreasonable, given the second respondent accepted that the applicant was owed protection obligations and accepted that he was at real risk of being killed or otherwise seriously harmed if returned to Iraq, and that error went to jurisdiction.

3.    The Tribunal failed to comply with Direction No 79, misconstrued the Direction, and/or asked the wrong question with respect to the Direction when considering the best interests of the children.

3.1    The Tribunal found that the best interests of four young children would be affected by a failure to revoke the cancellation of the Applicant’s visa.

3.2    The Direction required the Tribunal to treat the best interests of the children as a primary consideration.

3.2    The Tribunal expressly gave the best interests of the children “little weight”, and “minimal consideration”.

Legislative framework

41    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because, relevantly, the person has a substantial criminal record as he or she has been sentenced to a term of imprisonment for 12 months or more; and the person is serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory.

42    Section 501CA of the Act applies if the Minister makes a decision (referred to as the original decision) under s 501(3A) to cancel a visa that has been granted to a person. It requires the Minister to provide the person with a written notice setting out the original decision and particulars of the “relevant information” and to invite the person to make representations about revocation of the original decision: s 501CA(3) of the Act. The term “relevant information” is defined in s 501CA(2) to mean:

(2)    For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

43    Section 501CA(4) confers a power to revoke the original decision. It provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

Consideration

Ground 1

44    Ground 1 challenges an aspect of the Tribunal’s findings in relation to non-refoulement obligations. By that ground the appellant contends that the Tribunal failed to consider an integer of his claim in that it failed to consider the consequences for the applicant of non-revocation of the Cancellation Decision, namely that he would be faced with indefinite detention.

Applicant’s submissions

45    The applicant submits that the Tribunal was obliged to engage in an active intellectual process with the claims he articulated, including considering the implications of any findings of fact, and was obliged to confront squarely the consequences of its decision. The applicant contends that, as a matter of practical reality and fact, if the Tribunal declined to revoke the Cancellation Decision the Minister’s non-compellable power to grant a bridging visa would, on the balance of probabilities (and almost certainly), not be exercised so as to allow him to apply for a bridging visa. Thus, the applicant says, as a matter of practical reality and fact, his choice is to accept refoulement or experience a lengthy period of further detention while his protection visa is determined. The applicant submits that the Tribunal was required to confront this reality and that its conclusion that his detention “would not be indeterminate” was insufficient, when weighing up the consequences of non-revocation.

46    In oral submissions the applicant further explained that there are two possible meanings of the word “indefinite”. The first was said to be as “used by State Rail” which counsel for the applicant explained as follows: “if State Rail says a train has been indefinitely delayed, what they mean by that is the train is not coming at all”. In other words, the applicant submits that one meaning of the word “indefinite” is that the event will not come to pass. The second meaning of “indefinite” proffered by the applicant is that the event “will come to an end”.

47    The applicant submits that in [70] of its reasons the Tribunal used the word “indefinite” according to its second meaning which, in his case, means that his detention will come to an end either because: “he is placed in peril and removed”; the Minister determines to release him from detention; or an application for a protection visa is determined in his favour. The applicant submits that another meaning of “indefinite” is that the event will not occur or the time at which it will occur is indeterminate such that the time at which the applicant’s detention will end is unknown.

48    While the applicant accepts that the Tribunal was not expected to speculate about what might happen next, he contends that he will remain in detention for a significant and indeterminate period, that any application for a protection visa will take some time and not be determined immediately and the reality is that it will be a significant period of time before he is either removed or granted a visa. In those circumstances the appellant submits that there is an elision or a failure on the part of the Tribunal to grapple with a fundamental aspect of his case, namely his ongoing detention.

Legal principles

49    In support of his contention that the Tribunal was obliged to engage in an active intellectual process with his articulated claims, including considering the implications of any findings of fact, the applicant relies on a decision of a Full Court of this Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 (Omar Appeal), in particular at [34].

50    In Omar Appeal, the Full Court identified five issues which arose on the appeal: the first of those issues was whether the primary judge erred in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) of the Act by deferring consideration of any non-refoulement obligations to a future protection visa application by the respondent, Mr Omar; and the fifth issue was whether (as contended by Mr Omar) the primary judge erred in not holding that the Assistant Minister had made a jurisdictional error by failing to consider the matters raised by Mr Omar in his representations made under s 501CA(3) of the Act as being a reason for revoking the visa cancellation decision, irrespective of whether those matters engaged any of Australia’s non-refoulement obligations. It was agreed that if the fifth issue was determined in Mr Omar’s favour the remaining issues would not arise for determination. The Full Court addressed and upheld the fifth issue, thus dismissing the appeal.

51    At [34] the Full Court set out a summary of the legal principles relevant to its determination of the fifth issue including:

(a)    It is significant that the Assistant Minister is required by s 501G of the Act to give the person who is affected by his non-revocation decision a written notice that sets out the decision, specifies the provision under which the decision was made and sets out the reasons for the decision (see s 501G(1)(e)). The Assistant Minister’s obligation to set out the reasons for his decision is an important accountability mechanism, all the more so in circumstances where his decision is not reviewable under either Pt 5 or 7 of the Act (see 501CA(7)).

(b)    The statement of reasons has to be read fairly and not with an eye keenly attuned to the detection of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259).

(c)    Consistently with s 25D of the Acts Interpretation Act 1901 (Cth), the obligation to set out the reasons for the decision requires the Assistant Minister also to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. This serves further to enhance the Assistant Minister’s accountability for his statutory decision-making.

(d)    If there is no reference in the statement of reasons to a particular matter which was clearly raised by the respondent in his representations, an inference might be drawn that the matter has not been considered by the Assistant Minister to be material (see, for example, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ with reference to the similarly worded provision in s 430 of the Act).

(e)    The representations made on behalf of the respondent in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described …

    …

(g)    The representations play a central role in the relevant statutory regime. The Minister’s statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. Of course, this does not mean that every matter raised in representations is itself a mandatory relevant consideration. As Colvin J said in Viane at [69]:

All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.

(h)    In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the Minister has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” (see BCR16 at [70]-[73] per Bromberg and Mortimer JJ).

(i)    While it may have been open to the Assistant Minister here ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not “another reason” for revoking the visa cancellation, the Assistant Minister was nevertheless obliged to give meaningful consideration to the representations on this issue. Again, as Colvin J stated in Viane at [67]-[68] in the context of the Minister’s statutory task under s 501CA(4):

67.    In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.

68.    Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

52    The Full Court went on to examine what is meant by the obligation of a decision-maker to “consider” a matter in a judicial review context. In doing so, it referred to the decisions in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 and Tickner v Chapman (1995) 57 FCR 451. At [36(d)] the Full Court observed that:

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

53    At [37] the Full Court said:

The Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):

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.

(Original emphasis.)

54    As I have already observed, in Omar Appeal the Full Court did not address the first issue it identified which challenged the primary judge’s finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) of the Act by deferring consideration of any non-refoulement obligations to a future protection visa application to be made by Mr Omar: see Omar v Minister for Home Affairs [2019] FCA 279 (Omar). Insofar as that issue was concerned, relevantly, in Omar the applicant, Mr Omar (who was the respondent in Omar Appeal), whose visa had been mandatorily cancelled under s 501(3A) of the Act, made representations to the Minister seeking revocation of that decision including in relation to his fear of harm on return to his home country. However, the Assistant Minister did not consider it necessary to determine whether non-refoulement obligations were owed to Mr Omar because that issue would be determined in the course of considering any future protection visa application to be made by him.

55    At [44]-[46] of Omar, in addressing the question of whether the Assistant Minister failed to fulfil his statutory task by deferring the consideration of whether non-refoulement obligations were owed in the context of considering if there was “another reason” why Mr Omar’s visa cancellation should be revoked, Mortimer J said:

44    I accept the applicant’s contentions. While it might be said that the existence of Direction 75 has affected the practical operation of the legislative scheme by directing decision-makers faced with a protection visa application to assess the refugee and complementary protection criteria in ss 36(2)(a) and 36(2)(aa) before other criteria (such as those pertaining to an applicant’s character), that does not address the aspects of the Assistant Minister’s approach to the s 501CA(4) discretion which remain erroneous, and which were identified by the Court in BCR16.

45    Fundamentally, that is the failure to appreciate the very different role the consideration of non-refoulement obligations can have in the exercise of a discretionary power, such as that contained in s 501CA(4). In that context, if Australia’s non-refoulement obligations are engaged, the Assistant Minister may be faced with a choice between factors favouring revocation (including but likely not limited to the engagement of non-refoulement obligations) and the prospect of a person being indefinitely detained if their visa remains cancelled. That is a very different assessment process. It concerns whether a person who is currently part of the Australian community should remain in the community, or, potentially, should be detained indefinitely. It is not concerned with whether a person can satisfy one criterion necessary for the grant of a different visa. The latter perspective is quite different. That is the point being made by the majority in BCR16, especially, for example, at passages such as [48]-[49].

46    I am satisfied, on the basis of his reasons, that the Assistant Minister did not appreciate the very different task conferred on him by s 501CA(4), and that the task of considering whether there was “another reason” to revoke the visa cancellation required consideration of all other “reasons” put forward in the representations made by the applicant’s representatives (or at least, all those seriously and substantively advanced). The Assistant Minister was not authorised to simply carve out aspects of the representations made and particular “reasons” advanced, and decline to deal with them. That was not a lawful performance of his statutory task: see BCR16 at [63] and [94]. …

Disposition

56    Here, in contrast to the position in Omar and Omar Appeal, the applicant does not assert that the Tribunal failed to fulfil its statutory task by not addressing whether he was owed non-refoulement obligations. Rather, in this case the Tribunal, after referring to the decision in Omar, said that it must give consideration to claims in relation to non-refoulement obligations and noted that the appropriate course was for it to consider whether the existence of such obligations is “another reason” for revoking the Cancellation Decision (see [28] above). It then proceeded to address that issue.

57    Nor does the applicant assert that the Tribunal failed to consider his claims to fear harm on his return to Iraq outside of the framework of Australia’s non-refoulement obligations or that the Tribunal failed to consider a substantial or significant representation which he made in relation to his ongoing detention as a consequence of a refusal to revoke the Cancellation Decision.

58    As to the former, the Tribunal noted (at [63] of its reasons) that it was “not released from ‘considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations’”. The Tribunal undertook that task and no criticism is made that it failed to give meaningful consideration to the applicant’s representations in that regard.

59    As to the latter, counsel for the applicant conceded that the issue about which the applicant complains was “not expressly dealt with in the oral submissions”. In his written claims, the applicant made the following submission at [115] of his statement of facts, issues and contentions (SFIC) filed with the Tribunal, in the context of submissions about Australia’s international non-refoulement obligations:

Alternatively, the possibility that a failure to revoke the cancellation would lead to indefinite detention is also a factor which weighs heavily in favour of revocation.

60    For completeness I note that before the Tribunal the Minister provided closing submissions in response to the applicant’s SFIC which included under the heading “Indefinite detention”:

43.    The height of the applicant’s claim with respect to the issue of indefinite detention appears to be, and necessarily must be in circumstances where there has been no application and determination of a protection visa, that there is a future possibility of indefinite detention if revocation is refused.

44.    The speculative nature of this claim is highlighted by the existence of possible alternatives to indefinite detention, such as the grant of a visa under s. 195A Migration Act and resettlement in a third country.

45.    Consistent with the respondent’s position with respect to non-refoulement obligations and risk of harm, and in circumstances where the outcome of any protection visa application by the applicant is not yet known, the respondent submits that this is a purely speculative claim which does not weigh in the applicant’s favour.

61    The applicant says that notwithstanding that the claim that his detention could continue for an indefinite, in the sense of indeterminate, period was not expressly raised, it squarely arises and should have been considered.

62    In my opinion, even if I accept that to be so, for the following reasons there was no error in the Tribunal’s approach.

63    First, as noted above, in light of the applicant’s representations the Tribunal considered whether he was owed non-refoulement obligations and whether that was “another reason” why the Cancellation Decision should be revoked. In doing so, it did not simply note that representations had been made but engaged with those representations by making findings of fact as necessary and actively engaging with the representations and submissions made on behalf of the applicant about the harm he would suffer if returned to his home country. No criticism is made about the Tribunal’s consideration of those representations. In that context the Tribunal considered the effect on the applicant of a decision not to revoke the Cancellation Decision, finding that it would lead to his continued detention.

64    Secondly, the Tribunal’s reasons at [70] must be read in context. It forms part of the Tribunal’s consideration of whether the applicant was owed non-refoulement obligations. In that context, as set out above, the Tribunal accepted that there was a real risk of harm to the applicant if he returned to Iraq and that he was owed non-refoulement obligations. It then proceeded to set out the legal consequences of a decision not to revoke the Cancellation Decision given that it had found that the applicant is a person to whom non-refoulement obligations are owed. In doing so, the Tribunal addressed the applicant’s contention in his SFIC about the possibility of indefinite detention and the Minister’s submissions in response (set out at [59]-[60] above). The Tribunal said (at [69]-[70] of its reasons):

69.    … Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur. However, it is relevant also that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A of the Act. Further, the applicant would not be liable to be removed in the event he applied for, and was granted, a protection visa.

70.    The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable his detention would not be indefinite.

(Footnotes omitted.)

65    The Tribunal did not consider that the applicant’s detention would be “indefinite”, whether that term be used in the sense that his detention would be for an indeterminate or lengthy period or in the sense that it would come to an end on the happening of a future event. It found that the applicant’s detention would come to an end in one of the three ways specified at [69] of its reasons. True it is that the Tribunal did not opine on the length of the applicant’s detention while awaiting the outcome of any protection visa application to be made by him. But that it did not do so does not mean that the Tribunal failed to give meaningful consideration to the applicant’s representations. The applicant made no express or even implied representation about the effect of a lengthy period of detention on him. His representation about that issue, set out at [59] above, did no more than emphasise the factual consequence of a decision not to revoke the Cancellation Decision. In those circumstances, the Tribunal made factual findings about the ways in which the applicant’s detention might ultimately come to an end.

66    Thirdly, as the applicant conceded, the Tribunal was not, as part of its decision-making process, required to speculate on what might happen next and, in particular, on the course or outcome of any application for a protection visa, including the time it may take.

67    In FBW18 v Minister for Home Affairs [2019] FCA 1878, the applicant sought judicial review of a decision of the Minister made under s 501CA(4) of the Act not to revoke a decision under s 501(3A) of the Act to cancel his visa. One of the grounds raised by the applicant was whether the Minister fell into jurisdictional error by the manner in which the Minister treated Australia’s international non-refoulement obligations when considering whether, for the purposes of s 501CA(4)(b)(ii) of the Act, there was “another reason” why the original decision should be revoked. In that case, as part of his representations seeking revocation of the original decision to cancel his visa, the applicant raised his fear of harm should he be returned to his home country.

68    At [70]-[73] Yates J noted that the Minister considered this claim in two ways. The first was with respect to the concept of non-refoulement and Australia’s international protection obligations. In that regard his Honour noted that the Minister considered it unnecessary to determine whether the applicant was owed non-refoulement obligations because the applicant was able to apply for a protection visa and the Minister considered that, if such an application was made, it would be highly likely that it would be determined by one of his delegates. If so, the delegate would be obliged to follow Direction 75 issued under s 499 of the Act. The Minister was satisfied that, in these circumstances, the question of whether Australia owed the applicant non-refoulement obligations would be considered in the course of processing any such application. His Honour also noted that the Minister recognised that he might personally consider such an application, in which event he would not be bound by Direction 75 and might not necessarily determine whether Australia owed non-refoulement obligations to the applicant but that the Minister recognised that such an eventuality would only arise if the Minister chose to depart from the usual practice in processing protection visa applications.

69    His Honour noted that the second way in which the Minister considered the applicant’s claim was “outside the framework of Australia’s international protection obligations”, accepting in that regard that, if returned to his home country, the applicant would “face hardship arising from war and instability”.

70    At [77] Yates J addressed the applicant’s submissions in relation to this ground to the effect that it was unlikely that a future protection visa application by him would not be decided on character grounds, with the consequence that it was unlikely that the Minister or his delegate would consider whether Australia owed non-refoulement obligations to him. In doing so his Honour said, quoting Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650:

Direction 75 was made by the Minister to address the very concern raised by the majority in BCR16 (that non-refoulement considerations might not be considered ahead of character considerations in any subsequent application for a protection visa). Thus, the first matter to note when considering the applicant’s submissions on this aspect of his case is that there is no dispute that his case is distinguishable from BCR16. The same point of distinction was recognised by Flick J in Ali. It is convenient to quote in full his Honour’s analysis in this regard:

…

30    To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non-refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75.

31    To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether:

•    that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or

•    the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia.

The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia’s international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

32    The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia’s international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.

33    But these are all decision to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

…

(Emphasis added.)

71    In the circumstances of this case, and in light of the representations made, the Tribunal was not required to consider the consequences or effect on the applicant of the period for which he would remain detained or the length of his detention, beyond the consideration which it gave to that issue. The course to be followed should the Cancellation Decision not be revoked and the length of time that course might take were not matters about which the Tribunal was required to speculate.

72    For those reasons ground 1 is not made out.

Ground 2

73    Ground 2 also concerns the Tribunal’s consideration of non-refoulement obligations owed to the applicant. By that ground the applicant contends that the Tribunal’s decision and exercise of its discretion was unreasonable given that the Tribunal accepted that the applicant was owed protection obligations and accepted that he was at risk of being killed or otherwise seriously harmed, if he returned to Iraq but nonetheless refused to revoke the Cancellation Decision.

Applicant’s submissions

74    The applicant submits that the Tribunal’s discretion had to be exercised reasonably and that Direction 79 had to be applied flexibly and reasonably and according to its terms. He submits that when this case is stripped to its essentials, the Tribunal’s exercise of its discretion not to revoke the Cancellation Decision is based upon a single, albeit serious, offence for which a three year sentence was imposed with an 18 month non-parole period, with a finding that the risk of a further offence is “low to moderate”. The applicant says that there were no other offences, before or after, in or out of prison or detention and that all other considerations found by the Tribunal to be relevant were in the applicant’s favour. The applicant notes that, most starkly, the Tribunal’s finding was that he would face the risk of death or ongoing detention.

75    The applicant submits that, “[f]or all the verbiage”, when the Tribunal comes to the “weighing” process, its reasoning can be reduced to a single sentence, namely “[t]his is a case where the risk of future harm from the applicant is unacceptable because of the serious nature of the crime committed”. The applicant says that the stark conclusion which follows is that he will “be at risk of being killed if returned to Iraq but the Australian community will face an unacceptable risk of further harm if [he] remains in Australia”. The applicant contends that this is a case where either the Tribunal has misconstrued the nature of the statutory power, by elevating one aspect of Direction 79 above all other aspects, or where the Tribunal has reached a conclusion that is plainly unjust, having regard to the subjective features which had to be balanced against community expectations and tolerance of risk.

Disposition

76    The applicant’s complaint is that the Tribunal’s exercise of its discretion in undertaking its balancing exercise, after considering the particular circumstances relating to the applicant, and coming to its ultimate conclusion, in particular at [91]-[92] of its reasons, was legally unreasonable.

77    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) at [4]-[8] Allsop CJ said:

4    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision- making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).

5    These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v Commonwealth (1945) 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v Commonwealth (1997) 190 CLR 1 at 36; Abebe v Commonwealth (1999) 197 CLR 510 at [116]; Shrimpton at 620; Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449 at 466; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is “legal and regular, not arbitrary, vague and fanciful”: Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Buck v Bavone (1976) 135 CLR 110 at 118-119, (though not referred to in Li, Starke J in Boucaut Bay Company Ltd (in liq) v Commonwealth (1927) 40 CLR 98 at 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Company (Sales) Pty Ltd (1972) 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King (1936) 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated law-making power — if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92].

6    Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcome-focused” conclusion without any specific jurisdictional error being identified: Singh at [44].

7    It is in relation to the second context, the “outcome-focused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above.

8    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreason- able). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

78    At [11]-[12] his Honour additionally said:

11    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the 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. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

12    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

79    In this case the Tribunal found that there was a low to moderate risk of the applicant committing further sexual offences but that there were also other considerations which favoured revocation of the Cancellation Decision, namely that Australia owes the applicant non-refoulement obligations, that he has strong ties to Australia and “that he will face the most severe impediments including risk of death if forced back to Iraq”. Additionally, the Tribunal noted that the primary consideration concerning the best interests of minor children weighed in favour of revocation but assigned minimal weight to that consideration.

80    The Tribunal had regard to the principles set out in Direction 79 and, in particular, considered that para 6.3(4) was applicable, namely that:

(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.

81    The Tribunal observed that primary considerations should generally be given greater weight than the other considerations, referring to para 8(4) of Direction 79, and was of the opinion that the primary considerations of the protection and the expectations of the Australian community outweighed the countervailing considerations.

82    In that context, the Tribunal then set out a list of its relevant facts and findings and the impact of some of the guiding principles in Direction 79 at [91] of its reasons (see [38] above) and reached its conclusion, based on the application of the guiding principles in para 6.3 of Direction 79, that it was not satisfied that there was “another reason” why the Cancellation Decision should be revoked.

83    It cannot be said that the Tribunal misconstrued the nature of the statutory power it was required to exercise by elevating one aspect of Direction 79, to which it was required to have regard, above all others. The Tribunal considered each of the circumstances specific to the applicant and then undertook a careful weighing up exercise having regard to those factors. It was entitled, in the context of the exercise of the power under s 501CA(4) of the Act, to reach the conclusion that the unacceptable risk of harm if the applicant remained in Australia was repeated outweighed other, albeit strong, countervailing considerations that favoured revocation of the Cancellation Decision.

84    The Tribunal’s decision is not one that could be classified as lacking rational foundation or an evident or intelligible justification, or as being plainly unjust, arbitrary, capricious or lacking common sense. While reasonable minds might differ in relation to the difficult decision which the Tribunal faced, it was open to the Tribunal to weigh up the competing considerations and reach the conclusion that the risk of harm to the Australian community outweighed the danger and hardship that the applicant will face as a result of non-revocation of the Cancellation Decision.

85    While the decision may be characterised as difficult, given the undisputed evidence, the Tribunal’s finding about the danger the applicant will face on return to Iraq and its finding about the applicant’s family connections in Australia, it is nonetheless defensible as a rational exercise of the Tribunal’s power in light of the nature of the applicant’s offending and the risk of his reoffending: see Stretton at [22]-[23] (Allsop CJ); [72] (Griffiths J) and [102] (Wigney J).

86    For those reasons ground 2 is not made out.

Ground 3

87    Ground 3 concerns the application of Direction 79 insofar as the Tribunal was required to consider the best interests of any minor children affected by the decision.

Applicant’s submissions

88    The applicant notes that the Tribunal accepted that the four children, two of whom were the children of his partner and two of whom were his nephews, were children whose interests “could be affected” by his removal and accepted that it was both in the partner’s children’s and the nephews’ best interests to revoke the Cancellation Decision but allocated the weight to be given to that factor in each case as “minimal”. The applicant also points out that the Tribunal concluded that it would be in the best interests of all four children for the Cancellation Decision to be revoked but that that factor should be given “very little weight” and attached “very little weight” to it, a matter which was confirmed when the Tribunal undertook the weighing up exercise in reaching its ultimate conclusion about whether there was “another reason” to revoke the Cancellation Decision.

89    The applicant submits that Direction 79 requires that, in the ordinary course, the best interests of any children affected by the decision not to revoke the cancellation are to be treated as a primary consideration and specifically directs a decision-maker to determine what is in the best interests of each child. The applicant observes that this requirement has evolved from the decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and its recognition of Australia having signed the Convention on the Rights of the Child and, in particular, picks up the promise in Art 3(1) that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

90    The applicant submits that having determined that the best interests of the children favoured the revocation of the Cancellation Decision, it was not open to the Tribunal to give this factor “minimal” consideration. He contends that to do so was inconsistent with Direction 79 which gives elevated status to the interests of children. The applicant submits that the Tribunal misconstrued Direction 79, asked the wrong question with respect to it or failed to comply with it, with that non-compliance going to jurisdiction.

Disposition

91    In short, the applicant’s submission is that once there was a finding that revocation of the original decision was in the best interests of the minor children, it was not open to the Tribunal to qualify that finding by giving little or close to no weight to it. The applicant says that to do so is a failure to take into account a matter which Direction 79 considers should be given elevated or primary weight.

92    This ground cannot succeed.

93    In considering and coming to a view about the best interests of the minor children affected by the decision, Direction 79 requires the decision-maker to have regard to the factors set out in para 13.2(4). Those factors, in turn, concern matters such as the quality of the relationship between the non-citizen and the minor children, the likely effect of separation from the non-citizen on the minor children and any known views of the minor children. In considering those factors the decision-maker, in this case the Tribunal, must come to a view about whether revocation is in the best interests of the minor children and, in doing so, may, as happened here, reach a conclusion about the degree to which the decision will affect the interests of those children.

94    In this case the Tribunal found that the best interests of each of the two groups of the minor children weighed slightly in favour of revocation. It said it would attach “minimal weight” to that consideration. It is the assignation of that minimal weight to the finding about which the applicant complains.

95    The Tribunal did not fail to take the interests of the minor children into account. On the contrary, in accordance with the requirements of Direction 79, the Tribunal made a determination as to whether revocation of the cancellation decision was in the best interests of the four minor children. It carefully considered the facts relevant to the two different classes of children, namely the applicant’s partner’s children and his two nephews. The applicant does not complain that the Tribunal failed to consider their interests. Rather his complaint is that, having done so, the Tribunal failed to have regard to the primacy of that consideration in the overall balancing exercise, given the assignation of “minimal weight” to it.

96    That the best interests of minor children are specified as a primary consideration in Direction 79 does not mean that the Tribunal is required to give that consideration, or any of the other primary considerations, greater weight nor must they always be given significant weight. It was entitled to give the interests of the minor children, as a primary consideration, the weight that it considered it should, having regard to the representations made and the material before it. Direction 79 does not require it to do otherwise. In that regard, para 8 of Direction 79 relevantly provides that:

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. …

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

97    As a Full Court of this Court (Rares, Cowdroy and Buchanan JJ) said in Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101 at [20]:

… A direction that something be regarded as a primary consideration does not convey the necessity that it be significant in the particular circumstances of an individual case.

Conclusion

98    For those reasons the applicant has failed to make out any of his grounds of review.

99    The applicant’s amended application should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    8 July 2020