FEDERAL COURT OF AUSTRALIA

CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 6 December 2019 to refuse the applicant’s application for a protection (class XA) visa be set aside.

2.    The respondent determine the applicant’s application for a protection visa (class XA) according to law on or before 23 July 2020.

3.    The costs of the interlocutory application, not already the subject of orders, be paid by the applicant fixed in the sum of $1500.

4.    Subject to previous orders as to costs, the respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

RARES J:

1    On 25 November 2019, in an earlier proceeding brought by the applicant I ordered that the Minister determine her application for a protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth) according to law on or before 6 December 2019: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. There were two proceedings that I determined in those reasons that resulted in that order. The Minister had brought one of those proceedings seeking to challenge a subsequent decision of the Administrative Appeals Tribunal given on 18 September 2019 (the 2019 Tribunal decision) in which it decided that the application for the visa be remitted to the Minister for reconsideration in accordance with s 65 of the Act with a direction that the applicant was not to be refused the visa under s 501(1) of the Act. In those reasons, I gave some of the background to the applicant’s position as at that time.

2    On 6 December 2019, the Minister made the decision to refuse to grant the applicant a protection (class XA) visa pursuant to s 501A(2) of the Act, the validity of which she challenges in this proceeding.

3    The Minister sought to appeal from my previous decision but, on 18 May 2020, the Full Court dismissed the appeal as moot: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87.

Background

4    On 21 September 2015 the applicant applied for a protection visa and has been in immigration detention since then. It is necessary only to refer to a few parts of the applicant’s very lengthy administrative and judicial decision-making encounters for the purposes of these reasons.

5    On 18 December 2017, the Administrative Appeals Tribunal decided that a delegate’s decision, that had rejected the applicant’s claims for a protection visa under s 501, should be set aside and remitted her application for the visa for reconsideration with a direction that she satisfied s 36(2)(aa) of the Act; namely that she had established that she met the complementary protection criterion (the 2017 Tribunal decision).

6    The parties accept that, in his decision of 6 December 2019, the Minister accurately summarised in [149] what the 2017 Tribunal decision had found in respect of s 36(2)(aa), namely:

149. On 18 December 2017, the AAT found that [the applicant] is a person in respect of whom Australia has protection obligations, based on complementary protection grounds. Having heard [the applicant’s] evidence, the Tribunal accepted [the applicant’s] claims that Mr [Ex…] an ex-partner of [the applicant's] in New Zealand, who told her of his significant involvement in the manufacture of illicit drugs, believes she betrayed him to police. The AAT also accepted that [the applicant] remained the target of a vendetta launched by Mr [Ex…], who put out a bounty for her murder, and that, some seven years later, interest in claiming the bounty for her killing still existed in New Zealand. The AAT found, based on newspaper reports (and on website encyclopaedia) about gang activity and police protection in New Zealand, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that she would suffer significant harm and was not satisfied that she could obtain the protection of the authorities, such that there would not be a real risk she would suffer significant harm. Having considered the AAT's findings in this regard, I have accepted those findings. I therefore accept that [the applicant’s] situation enlivens Australia's non refoulement obligations.

(emphasis added)

7    On 17 October 2019, the Minister gave notice to the applicant that he was considering the use of his personal powers under s 501A(2) to set aside the 2019 Tribunal decision and then to refuse to grant the visa under that section on the grounds that he reasonably suspected that she did not pass the character test, she had not satisfied him that she had passed the character test, and he was satisfied that the refusal of the visa was in the national interest.

8    The Minister’s Department provided him with a submission on 5 December 2019 that consisted of about 20 pages of text and over 800 pages of annexures. That submission and documentation included the cover sheet recording the 2017 Tribunal decision but not the text of its reasons. The submission summarised the 2017 Tribunal decision findings in substantively the same terms as in [149] of the Minister’s reasons.

9    The Minister’s reasons for refusing to grant the visa cover about 25 pages and refer to all of the attachments to the Departmental submission, that included a very lengthy submission by the applicant as well as documents relating to her previous criminal and immigration history.

The legislative context

10    Relevantly, the Act provides:

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

…

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

…

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

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

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

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

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

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

…

54 (1)  The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

             (2)  For the purposes of subsection (1), information is in an application if the information is:

                     (a)  set out in the application; or

                     (b)  in a document attached to the application when it is made; or

                     (c)  given under section 55.

55 Further information may be given

  (1)  Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

501A Refusal or cancellation of visa–setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

    (1)    This section applies if:

…

                      (b)  the Administrative Appeals Tribunal;

                     makes a decision (the original decision):

                     (c)  not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to       

                      the person; or

…

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister–natural justice applies

             (2)  The Minister may set aside the original decision and:

                     (a)  refuse to grant a visa to the person; or

…

if:

                     (c)  the Minister reasonably suspects that the person does not pass the character test (as 

                     defined by section 501); and

                     (d)  the person does not satisfy the Minister that the person passes the character test; and

                     (e)  the Minister is satisfied that the refusal or cancellation is in the national interest.

            (non-heading emphasis added)

11    In addition s 5 defines “non-refoulement obligations”, as including, but not being limited to, non-refoulement obligations that may arise because Australia is a party to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, the Protocol relating to the Status of Refugees done at New York on 31 January 1967, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984 and “any obligations accorded by customary international law that are of a similar kind to those mentioned” in those treaties.

The Minister’s reasons

12    The Minister found that, first, he reasonably suspected that the applicant did not pass the character test and, secondly, she had not satisfied him that she did pass the character test on the basis that her past and present criminal and general conduct satisfied him that she was not of good character within the meaning of s 501(6)(c) of the Act. There is no challenge to those findings and it is not necessary for me to deal with them further, save to say that [10]-[75] of the Minister’s reasons reviewed the applicant’s past conduct in detail.

13    Substantively, the Minister refused the visa because he concluded, in the exercise of his discretion, under s 501A(2), that it was in the national interest to refuse to grant it. He said in [79] that matters of national interest included, among others, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, any disposition imposed by a court in respect of it, the risk of the person reoffending and the harm that could flow if that risk eventuated. However, the Minister made no mention there of Australia’s non-refoulement obligations generally, in relation to the person concerned or in his consideration of what was relevant to the national interest.

14    The Minister concluded, that, first, the applicant’s serious conduct in Australia, including prior to and during her detention, was serious, and secondly, after considering a considerable deal of material, there was a risk that the applicant would reoffend or engage in other serious conduct and that, should she do so in respect of conduct involving drugs, violence, driving offending, dishonesty or risk to children, and that that conduct would pose a risk of physical and psychological harm to members of the Australian community (at [80]-[112]). There is no challenge to those findings.

15    Under the heading “Other national interest considerations” the Minister stated:

113. I have also considered the national interest in relation to the grant of a Protection visa to [the applicant], whilst being mindful of Australia's relations with New Zealand (being a close ally of Australia), of which [the applicant] is a national.

114. I have considered the potential use of Protection visas by criminals in New Zealand to avoid outstanding charges and I consider the potential harm to Australia's relations with New Zealand would be significant if a Protection visa were granted to [the applicant].

115. In particular, I consider that there is no reason why individuals charged for criminal offences in New Zealand, including [the applicant], should not be dealt with via the New Zealand justice system, noting that that system is comparable to Australia's.

116. I consider that Australia and New Zealand have a close and enduring relationship which is reliant on the goodwill of both countries. I have considered the potential impact of protection visa claims by New Zealand citizens who have been charged with committing crimes in New Zealand and then seek to live in Australia to try and avoid prosecution in New Zealand. This cohort of persons fleeing from the New Zealand justice system and making claims of protection on the basis of inadequate state protection by New Zealand has the potential to damage the special relationship that New Zealand and Australia have.

117. Australia and New Zealand are long term allies. Migration, trade and defence ties have helped shape a close and co-operative relationship. Freedom of travel is facilitated through the Trans-Tasman Arrangements of 1973, which allow Australians and New Zealanders to visit, live and work in either country without the need to apply for authority to enter the other country before travelling. In my view it is in the national interest that such a relationship is preserved and not tarnished by individuals seeking to exploit existing entitlements, to avoid any obligations owing to the criminal justice system.

118. I find that the national interest considerations in this case should also take into account the potential exploitation of the Trans-Tasman Arrangements by persons such as [the applicant], who fled New Zealand to Australia on a false passport whilst on bail facing pending charges. I consider that such conduct could significantly undermine Australia's bi-lateral relations with New Zealand.

Conclusion - National Interest

119. In sum, having regard to the above, including her criminal history, her other serious conduct, and the risk to the Australian community, as well as the importance of preserving a positive and enduring bi-lateral relationship with New Zealand, I conclude that it is in the national interest to refuse to grant [the applicant] a Protection (Class XA) visa.

16    The next section of the Minister’s reasons was headed “Discretion”. In it, he said that he had considered whether to exercise his discretion to refuse the applicant a protection visa taking into account factors that he considered weighed both against and in favour of refusing it. He stated that he was mindful that Australia had a sovereign right to determine whether non-citizens who have character concerns should be allowed to remain in Australia. He found that it was in the best interests of the applicant’s young Australian citizen son (the younger son) not to refuse to grant her a visa so as to enable the boy to have the opportunities to spend time with and be parented by her, of having a relationship with his elder brother, who had been born in New Zealand and was now an adult, and to be part of a family unit with the applicant and her current husband, subject to any orders by the Children's Court of New South Wales permitting her to have such contact with the younger son. The younger son’s father was a man other than her husband but who, in the recent past, had supported her efforts to stay in Australia and to have a relationship with the younger son.

17    The Minister found that the Australian community’s expectations about non-citizens with significant criminal history, generally, as opposed to any specific non-citizen, were that a person with an extensive criminal history, both in Australia and overseas, especially those who had engaged in a range of other conduct which demonstrated disregard for immigration laws, should not be granted a visa.

18    The Minister then dealt in [148]-[158] of his reasons with international non-refoulement obligations. He recorded that the applicant was a national of New Zealand and had made claims that she feared for her life and safety as part of her response to the notice of intention to consider refusal of 17 October 2019, and that the 2017 Tribunal decision had considered those claims as set out in [149] of his reasons: (see [6] above).

19    Next, the Minister said that he understood that if he were to set aside the 2019 Tribunal decision and then refuse to grant the applicant a protection visa, she would be prevented by s 501E of the Act from making any other application for a visa other than a protection or bridging visa, and that she could only apply for the latter if he permitted her to do so using his non-compellable powers under s 48B. He acknowledged that the statutory consequence of a decision to set aside the 2019 Tribunal decision and to refuse to grant the protection visa was that, as an unlawful non-citizen, the applicant would be liable to removal from Australia as soon as reasonably practicable pursuant to s 198 of the Act and that, in the meantime, she would have to remain in detention by force of s 189. He also said that he was aware that s 197C of the Act provided that it was irrelevant, for the purposes of s 198, whether Australia had non-refoulement obligations in respect of a person who was an unlawful non-citizen, such as the applicant would be. He also noted that he was mindful that if he refused to grant the visa, he also had a non-compellable power under s 195A to grant her a visa if he thought that it was in the public interest to do so, but that if he did not do so, she would be liable to removal on the same basis as above. He said:

153. I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the applicant’s] criminal and other serious conduct in the making of my decision whether to set aside the original decision and refuse to grant [the applicant’s] Protection (Class XA) visa.

(emphasis added)

20    The Minister noted that the applicant had submitted that she had fears for her life if she remained in detention until removed, that the 2019 Tribunal decision had found that she had been attacked in detention on several occasions and was terrified to remain in detention as a result. He noted that the 2019 Tribunal decision had also found that she was at risk in detention of injury as a result of the very circumstances which had led to the finding that she was owed non-refoulement obligations and that her allegations of being assaulted while in detention on two occasions were supported by a detention client incident report. He also accepted that the applicant’s mental health was deteriorating in detention and that her physical and mental health were likely to deteriorate further in the event of ongoing detention.

21    In the next section of his reasons, headed “The strength, nature and duration of ties to Australia”, the Minister found (at [169]) that the effect of “visa cancellation” (scil: refusal) on the applicant’s immediate family in Australia would be that those persons would experience hardship; in particular, her husband and minor child would suffer emotional hardship; her friends would be disappointed by her removal and she had made a limited positive contribution to the community through her lawful employment for a short period of time.

22    In the final section of his reasons (at [173]-[180]), headed “Conclusion”, the Minister found that he reasonably suspected that the applicant did not pass the character test by virtue of s 501(6)(c) and she had not satisfied him that she did pass the character test. He also was satisfied that the refusal of the visa was in the national interest. He said that he had given primary consideration to the best interests of the younger son and found that his best interests would be served by not refusing the visa. He considered the risk posed to the Australian community by the applicant’s continued presence in Australia and found that the Australian community would be exposed to harm should she engage in further criminal or other serious conduct and that he could not rule out the possibility of further offending or serious conduct occurring. He said that the Australian community should not tolerate any further risk of harm.

23    He found that the national interest considerations included the importance of preserving a positive and enduring bilateral relationship with New Zealand. He found that the Australian community expected non-citizens with an extensive criminal history, especially those who have continued to engage in criminal and other serious conduct within Australia, should not be granted a visa, and concluded:

179. On the other hand, in addition to finding that the best interests of the affected child would be best served by not refusing the visa, I have also considered the non-refoulement obligations enlivened in this case. I have also considered the length of time [the applicant] has lived in the Australian community and the impact of a refusal decision on her family members particularly the hardship to her spouse.

180. I find that the considerations favouring not setting aside the original decision and refusing to grant [the applicant’s] visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the original decision and refuse to grant [the applicant’s] application for a Protection (Class XA) visa under s 501A(2) of the Act.

(emphasis added)

The issues

24    As pressed at the hearing, the applicant relied on two grounds of review. The first ground was that the Minister had failed to engage with the legal consequences of his decision to refuse to grant the visa in circumstances where, first, he had accepted that Australia owed non-refoulement obligations in respect of her; secondly, he could not rule out the possibility of further offending or other serious conduct by her and the Australian community should not tolerate any further risk of harm; thirdly, the national interested outweighed all competing considerations to which he had regard; and fourthly, the consequence of his decision was that she had to be refouled to New Zealand in accordance with s 198 of the Act in breach of Australia’s international non-refoulement obligations.

25    The second ground was that the Minister had taken into account one or more extraneous considerations in exercising his power under s 501(2) of the Act; namely, the importance of preserving a positive and enduring bilateral relationship with New Zealand as a close ally of Australia and or the potential exploitation of Trans-Tasman arrangements by individuals who seek to exploit entitlements so as to avoid any obligations owing to the criminal justice system.

26    The gravamen of the applicant’s complaints focused on the absence from the Minister’s reasoning of any discussion, beyond his recitation of the findings in the 2017 Tribunal decision, of the consequences of refouling the applicant to New Zealand to be dealt with by its criminal justice system in circumstances where it had found, and the Minister said in his reasons that he accepted, that, first, she remained the target of a vendetta launched by her former partner who had put out a bounty for her murder and that interest in claiming the bounty for her killing still existed in New Zealand, and, secondly, in accordance with s 36(2)(aa) of the Act, there were substantial grounds for believing that a necessary and foreseeable consequence of her being refouled to New Zealand was the real risk that she would suffer significant harm, within the meaning of s 36(2A), and that she could not obtain the protection of the New Zealand authorities so that there would not be a real risk that she would suffer significant harm.

The Minister’s submissions

27    The Minister argued that his reasons sufficiently complied with his obligations to set out the reasons for his decision under s 501G(1)(e) of the Act, as expanded by s 25D of the Acts Interpretation Act 1901(Cth), to include his findings on material questions of fact and to refer to the evidence or other material upon which those findings were based, when, in the paragraphs of his reasons following [149], he referred to his having considered or had regard to Australia’s non-refoulement obligations or their existence, albeit, without any further elaboration of their impact on the circumstances of the applicant.

28    Senior Counsel for the Minister argued that it was not necessary for the Minister to deal with the particular circumstances, that the Minister had accepted applied to the applicant in respect of the 2017 Tribunal’s decision’s findings, when discussing the other national interest considerations. The Minster submitted that the discussion of those matters in [113] - [119] of the reasons made clear that he was dealing with the applicant’s position simply as a member of a cohort of persons from New Zealand who fitted the general description with which he was dealing. Senior Counsel argued that, at that point of his reasons, the Minister was not making, and did not need to make, any findings about the applicant’s personal circumstances, and in particular, about the non-refoulement obligations that Australia owed in respect of her. He argued that his reasons demonstrated that he understood that those obligations existed and what they were. He contended that he had given them appropriate consideration when exercising his discretion, under s 501A(2), to refuse to grant the visa.

29    Senior Counsel argued that although brief, the Minister’s reasons disclosed a reasoning process that was sufficient to demonstrate that he had had proper regard to the nature and basis of the non-refoulement obligations that he accepted existed and which he had set out in [149], because he had referred to those obligations expressly as such in [153] and [179]. He argued that those statements were sufficient to demonstrate that he had had regard to the non-refoulement obligations in accordance with law.

30    The Minister submitted that it was very important to understand that in [115] of his reasons, he had not dealt, at that stage with the particular circumstances of the applicant but was expressly dealing with the consideration of a cohort of which she was, on the objective material, clearly a member. He argued that the references to the applicant in [113]-[119] of his reasons did not exclude him later taking into account the non-refoulement obligations in the way he had done so later at the point that he contended was appropriate, namely when considering the exercise of his discretion. He submitted that his reasons set out, in a rational and logical process, the various considerations to which he had had regard before coming to his overall conclusion and that in doing so he gave proper consideration to the non-refoulement obligations owed in respect of the applicant.

31    He contended that the authorities did not hold, for the purposes of determining whether he was satisfied that it was in the national interest that the visa should be refused, cancelled or granted under s 501A(2), that it was a mandatory relevant consideration that he have regard to the content of any non-refoulement obligations that Australia owed in respect of a visa applicant or visa-holder or the circumstances in why they arose. He argued that, because the discretion to refuse or cancel a visa under s 501A(2) depended upon the personal consideration of a Minister of State as to what was in the national interest, it was open to him to reason as he had. He submitted that, while others may think it desirable to refer, or may have included a reference, to Australia’s non-refoulement obligations in that context, as opposed to when dealing with the overall exercise of his ultimate discretion, it was not necessary to do so. He argued that there was no jurisdictional error if he failed to consider the non-refoulement obligations at the time in his reasons when he dealt with his consideration of the national interest. He contended that each of the reasons in [113]-[119] was rational and appropriate to support his conclusion that it was not in the national interest to grant the visa. He contended that he did not have any duty, when assessing what was in the national interest, to consider the particular circumstances of a visa applicant, including the present one.

Consideration

32    In EGH19 V Minister for Home Affairs [2020] FCA 692 at [64]-[66], Griffiths J said (and I agree):

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

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

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

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

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

(emphasis added)

33    As the Minister correctly pointed out, the circumstances of that case are distinguishable because, there, the Minister’s reasons made no reference to the findings of the Tribunal that Australian owed EGH19 complementary protection obligations nor discuss those obligations at all except by the use of the words “non-refoulement obligations”. In contrast here, as the Minister argued, he had set out in [149] of his reasons an accurate summary of the 2017 Tribunal decision’s findings about how those obligations arose in respect of the applicant.

34    The nature of the visa which an applicant seeks, the subject of the Minister’s consideration for the exercise of his discretionary power under s 501A(2), is necessarily a mandatory relevant consideration, by force of s 54(1). That is because the Minister must have regard to what the visa is, the grant or refusal of which he is considering, and all the information that the applicant provides in the application for the visa or gives subsequently (see ss 54 and 55). That means that, in a case like the present, the Minister must, as a fundamental element in his decision-making, take into account or have regard to the criteria that he finds an applicant for a protection visa has satisfied under, relevantly, s 36(2)(aa) of the Act in order for it to be granted: Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J with whom Gibbs J agreed at 324; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112] per Rares J, approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] per Jacobson, Lander and Foster JJ, and in Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 at [29] per Rares, Burley and O’Bryan JJ.

35    The Minister’s task under s 501A(2) is, relevantly, the same as Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ discussed in the context of s 501(3) in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 30 [57]. They said:

the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself” [R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158].

(emphasis added)

36     In Hands v Minister for Immigration and Border Protection (2019) 267 FCR 628 at 630 [3], Allsop CJ, with whom Markovic and Steward JJ agreed at 642 [54] and [55], said:

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 [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.

(emphasis added)

37    Moreover, as I said in Telstra 176 FCR at 182 [107]:

Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side:  East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and CrennanJJ.  As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR at 256 [102]):

“It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them.”

    (emphasis added)

Ground 1 - Consideration

38    In my opinion, the Minister’s reasons did not engage in an active intellectual process that accords with law in respect of the non-refoulement obligations that he said he accepted were owed to the applicant: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 at [76] per Allsop CJ, Kenny and Snaden JJ.

39    The Minister considered in [113]-[119] some of the specific personal circumstances of the applicant expressly and found that she was part of, what he characterised as, a cohort. He found, in [115], that there was no reason why an individual in the applicant’s position, namely, the subject of unresolved criminal charges in New Zealand, should not be dealt with by the New Zealand justice system, on the basis that that system was comparable to its counterpart in Australia. He also asserted in [114], [116] and [117] that she was part of a cohort of persons who had fled from the New Zealand justice system, “making claims for protection on the basis of inadequate state protection by New Zealand that has the potential to damage the special relationship that New Zealand and Australia have”.

40    Those findings were in the teeth of what he said later in his reasons (at [149]) that he accepted the 2017 Tribunal decision’s findings that the applicant not only had made claims, but that, in accordance with s 36(2)(aa), he was satisfied, based on those claims, that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australian to New Zealand, there is a real risk that she will suffer significant harm. It follows that this was not simply a case that the applicant was part of a cohort of persons who had made mere claims about the matters or for the purposes that the Minister identified. Rather, the Minister accepted that the applicant was a person whose claims were well-founded and explained why she came to Australia to seek protection. But, in dealing with the matters in [113]-[119] of his reasons, the Minister wrongly characterised the applicant as falling within a cohort to which, on his findings at [149] she did not belong. That characterisation was wrong if the Minister properly had regard to his finding at [149] that he was satisfied that he had substantial grounds for believing that the applicant’s claims, were she refouled to New Zealand, gave rise to a real risk that she might be killed or suffer other significant personal injury, including cruel or inhumane treatment or punishment. And, those accepted claims necessarily included why she fled to, and wished to remain in, Australia so as to avoid, not prosecution in, or the criminal justice system of, New Zealand, but the real risk to her life and limb from her presence in that country and in that system. On those findings, she was not part of a cohort evading justice in New Zealand, but was an individual seeking to avoid the real risk, for which she had a well-founded fear, that someone there would seek to earn the bounty on her life by killing or seriously harming her.

41    Yet, despite, indeed ignoring, his findings in [149] of his reasons, the Minister said in dealing with the national interest consideration, without any explanation, that there was “no reason” why the applicant should not be dealt with via the New Zealand criminal justice system. He treated her in [115]-[117] as part of a cohort who made such claims that had no substance and ignored his own findings expressly about the applicant that gave rise to Australia’s non-refoulement obligations in respect of her. Those obligations arose because the Minister personally had substantial grounds for believing that there was a real risk that New Zealand could not offer her State protection to alleviate her fears. In spite of his own state of mind about those substantial grounds for the existence of that risk, the Minister, without explaining why, found that it was in the national interest that the relationship between the two countries should not be, “tarnished by individuals seeking to exploit existing entitlements to avoid any obligations owing to the criminal justice system”.

42    At no point during the course of the Minister’s reasoning on the national interest considerations did he refer to the substantial grounds, that he had accepted, for believing that, as a necessary and foreseeable consequence of her being removed to New Zealand, there was a real risk that the applicant would suffer significant harm within the meaning of ss 36(2)(aa) and (2A). That is despite having said at [79] that he would have regard to the nature and circumstances of the applicant’s criminal conduct. The Minister specifically referred to some of the applicant’s personal circumstances in [118]-[119], namely her criminal history and other serious conduct. However, that history also included the 2017 Tribunal decision findings that he accepted. Those findings had explained her reasons for fleeing to Australia, as well as, at least, some of what he considered was her other serious conduct including her using, among other things, a false passport to come here.

43    The Minister had to engage in an active intellectual process in deciding whether, first, it was in the national interest to refuse to grant the applicant’s visa and, secondly, to exercise his discretion to do so, having regard to his acceptance of the 2017 Tribunal decision’s findings that Australia owed complementary protection obligations to the applicant. Those obligations arose because he, the Minister, had substantial grounds for believing that, if she were returned to New Zealand, there would be a real risk that her life and limb would be under threat, including specifically if she were to be dealt with in the New Zealand criminal justice system.

44    Yet the Minister never grappled with whether and why he intended that she should face those real risks when she was refouled in his reasons beyond stating that “there is no reason why” persons, including specifically the applicant, who were facing charges in New Zealand should not be dealt with in its criminal justice system (at [115]) and, without any elaboration about how in his reasons, stated that he had “had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor” (at [153]) and “also considered the non-refoulement obligations enlivened in this case” (at [179]) (emphases added).

45    Reading the Minister’s reasons as a whole without an eye finely attuned to error, in my opinion, his two bare references to having had regard to or considered Australia’s non-refoulement obligations in respect of the applicant, were no more than statements that he had looked at, but discarded, those obligations. His reasons about how he had considered the particular non-refoulement obligations personal to the applicant’s circumstances cannot be discerned from his ipse dixit that he had “considered” them. Those reasons did not amount to an active or other intellectual engagement with the consequences of a decision to refuse the visa in light of Australia’s international law obligations in respect of the applicant under treaties it had ratified: East Australian Pipeline 233 CLR at 244 [52], 256 [102]. The Minister engaged no further than setting out the summary of the those findings (at [149]) that, he said, he had accepted from the 2017 Tribunal decision, namely that he had substantial grounds for believing that the applicant was at real risk of being killed or seriously injured were she to be returned to New Zealand. But there was no discussion of these findings subsequently in his reasons, and far less in his earlier consideration of the national interest, specifically in respect of the applicant, whom he characterised only as part of a cohort of persons “seeking to exploit existing entitlements to avid obligations owing to the criminal justice system”.

46    The Minister did not act in accordance with the principles in Graham 263 CLR at 30 [57] when explaining his reasons for determining to refuse the protection visa by stating only that his only reason was that he had had regard to or “considered the non-refoulement obligations enlivened in this case”. Those obligations included the real risk that the applicant might be killed or seriously injured, were she to be refouled, yet the Minister did not mention those dire consequences at any point in his reasoning process to explain his refusal other than to recite the 2017 Tribunal decision’s findings that he said he accepted.

47    Thus, the Minister did not squarely address that the actual consequence of his decision would be that there was a real risk that the applicant would be killed or seriously harmed after being refouled. In effect, the Minister was making a decision to refuse to grant the visa under s 501A(2) that carried the real risk of a dire “necessary and foreseeable” consequence that a human being, with soundly based claims for Australia’s protection, could be killed without any explanation as to why that result was in the national interest or how he had reached such an outcome. His only references to that consequence was the mouthing of two statements that he had “considered” or “had regard to” “non-refoulement obligations” and his unqualified statement that there was “no reason” why persons in the cohort he had identified, as including the applicant, should not be refouled to face the New Zealand justice system.

48    The Minister had spilt considerable ink in [14]-[75] covering over 8 pages when going through all of the various traffic offences, other offending and conduct in which the applicant had engaged for which she had received only one sentence of imprisonment of 28 days. But, he never discussed why, given that he had substantial grounds for believing that there was a real risk that she would be killed or seriously harmed, if he refused to grant her the visa, nonetheless, he made the decision to subject her to that real risk. All the Minister’s reasons did was to mouth, without any active intellectual consideration, that he had “considered the non-refoulement obligations enlivened in this case”: East Australian Pipeline 233 CLR at 244 [52], 256 [102].

49    In my opinion, the Minister’s reasons revealed that he was not engaging in a real exercise of his discretion under s 501A(2) or acting according to the rules of reason and justice, according to law, not humour, and within the limits within which an honest man competent to discharge the duties of his office ought to confine himself: Graham 263 CLR at 30 [57]. The Minister did not engage in an active intellectual process or undertake a transparent and accountable reasoning process that would justify refouling a person in the applicant’s position to face the real risk of being killed or seriously injured. That was a material jurisdictional error. For these reasons, I uphold ground 1 of the application.

Ground 2 - Consideration

50    The Minister’s consideration of the national interest criterion was also flawed by his treating the applicant as part of a cohort into the description of which he later found that she had not fitted. That is because he found that she was not simply a person merely making a claim (at [114], [116] and [117]) but that he had substantial grounds to believe her claims could be true (at [149]). It follows that, in the national interest section of his reasons at [113]-[119], the Minister was dealing with a situation that he knew did not apply to the applicant, but to the differently constituted cohort. In that section of his reasons, he did not give consideration to her circumstances as he found them to be in [149], since he said, as I explained above, at [115] that there was “no reason” why the applicant should not be dealt with by the New Zealand justice system, even though he accepted (at [149]) that he was “not satisfied that she could obtain the protection of the authorities such that there would not be a real risk she would suffer significant harm” were she to be refouled.

51    Nor did the Minister consider the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant, because there were substantial grounds for believing that there was a real risk of her being killed or seriously harmed if refouled to New Zealand.

52    I am of opinion that because of the Minister’s acceptance of the 2017 Tribunal decision’s findings about how the non-refoulement obligations owed in respect of the applicant arose, it was a mandatory relevant consideration, that he consider, in determining the national interest, first, the circumstances and consequences for the applicant of her refoulement, and secondly, the consequences for the national interest in refouling a person in breach of Australia’s international non-refoulement obligations. He did not do so but dealt with her on a false basis. Those failures led to the decision being affected by material jurisdictional error.

53    Accordingly, I uphold ground 2.

Conclusion

54    For these reasons, I am of opinion that, the Minister has not complied with the order in the nature of a writ of mandamus that I made on 25 November 2019 in the previous proceeding that he determine the applicant’s application for the visa pursuant to s 65, according to law. I will order that he now do so within the same 14 day time period as I set previously. The Minister must pay the applicant’s costs.

Associate:

Dated:    14 July 2020