FEDERAL COURT OF AUSTRALIA

DGP20 v Minister for Home Affairs [2020] FCA 1055

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the purported decision of the Assistant Minister for Home Affairs dated 31 July 2018 to cancel the applicant’s Class BB Subclass 155 Resident Return Five Year visa.

2.    The applicant have liberty to apply within 14 days to seek any further relief.

3.    The respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the applicant’s costs.

5.    In the absence of any agreement:

(a)    within 21 days, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, who is a citizen of Afghanistan, arrived in Australia in 1996. In July 1999, he was sentenced to a term of imprisonment of six months, to be served by way of an intensive correction order, after being convicted of a variety of charges. In March 2002, he was sentenced to six years and six months imprisonment for the offence of intentionally cause serious injury. In 2005, the then Department of Immigration and Multicultural and Indigenous Affairs gave the applicant notice of a decision not to cancel his visa. The applicant was, however, warned that visa refusal or cancellation might be reconsidered if he committed any further offences.

2    On 29 June 2007, the applicant was convicted of the offences of unlawful assault (two charges) and make threat to kill. He was sentenced to a community based order for 12 months. These further offences came to the attention of the then Department of Immigration and Citizenship in 2012, when the applicant made an application for a Class BB Subclass 155 Resident Return Five Year visa.

3    On 17 May 2017, the Department of Immigration and Border Protection gave the applicant notice of an intention to consider cancellation of his visa (a Class BB Subclass 155 Resident Return Five Year visa issued in October 2012) under s 501(2) of the Migration Act 1958 (Cth). The applicant was given an opportunity to make submissions, and subsequently provided submissions and other material, including a number of statutory declarations, to the Department. In these submissions, the applicant expressed concern for his safety and security if returned to Afghanistan. In one of the statutory declarations, it was stated that the applicant’s life would be in danger if he returned to Afghanistan as Afghans “see him as a foreigner”.

4    On 31 July 2018, the Assistant Minister for Home Affairs (the Assistant Minister), exercising the power personally, decided to cancel the applicant’s visa under s 501(2) (the cancellation decision).

5    The applicant has commenced a proceeding in this Court seeking judicial review of the cancellation decision. By his amended originating application for review of a migration decision dated 17 May 2019, the applicant contends that the Assistant Minister misunderstood the Migration Act or its operation in three respects, and thus failed to carry out his statutory task. The three alleged misunderstandings (which it will be convenient to refer to as “grounds”, even though they appear as particulars under a single ground in the amended originating application) are as follows:

(a)    First, the Assistant Minister misunderstood that the applicant’s claims would “necessarily” be considered in the “highly likely” scenario that any protection visa application was considered by a delegate; the applicant contends that that was incorrect because Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75) does not require that the “protection” criteria in ss 36(2)(a) and (aa) be considered before all other criteria for a protection visa (ground 1).

(b)    Secondly, the Assistant Minister incorrectly assumed that the applicant’s claims would be considered in the same way if he applied for a protection visa; the applicant contends that the circumstances in which consideration of non-refoulement occurs are quite different as between the exercise of the discretionary power in s 501(2) and the determination of a visa application under s 65 (ground 2).

(c)    Thirdly, the Minister incorrectly assumed that the existence or otherwise of non-refoulement obligations would be considered in the event that the applicant made an application for a protection visa; the applicant contends that that is not so, as the criteria for a protection visa under s 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations (ground 3).

6    Having regard to the similarity of the grounds advanced in the matter now known as DGI19 v Minister for Home Affairs (proceeding No. VID 1180 of 2018), the hearing originally listed for 4 June 2019 was vacated and the Court ordered that the matter be listed for hearing on a date to be fixed after the decision in that matter. The Court handed down its decision in DGI19 v Minister for Home Affairs [2019] FCA 1867 (DGI19) on 14 November 2019. The present proceeding was then listed for hearing, and the hearing took place on 12 March 2020.

7    While judgment in the present matter was reserved, the Full Court of this Court handed down judgment in Ali v Minister for Home Affairs [2020] FCAFC 109 (Ali). The parties sought the opportunity to file supplementary submissions in relation to the judgment in Ali. Consent orders for the filing of further submissions were made, and each party filed a supplementary submission pursuant to those orders.

8    For the reasons that follow, I consider that ground 3 is made out. It is therefore unnecessary to consider the other grounds. However, I make some observations about those grounds.

Key legislative provisions

9    Section 501(2) of the Migration Act provides:

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

10    The expression “character test” is defined in s 501(6). Relevantly, s 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record, as defined by s 501(7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

Background facts

11    In addition to the facts referred to above, the background facts are as follows. These are based on the material in the bundle of documents (labelled “Relevant Documents”) prepared for the purposes of the hearing.

12    The applicant first arrived in Australia in 1996, aged 42 years.

13    On 27 July 1999, the applicant was convicted in the Magistrates’ Court of Victoria of the following offences: recklessly cause injury (two charges); assault with weapon; make threat to kill (two charges); and unlawful assault. He was sentenced to six months imprisonment, to be served by way of an intensive correction order.

14    On 26 March 2002, the applicant was convicted in the Supreme Court of Victoria of the offence of intentionally cause serious injury and sentenced to six years and six months imprisonment. The sentencing remarks of the sentencing judge are included in the materials before the Court. As described in the sentencing remarks, the applicant assaulted his wife with a meat cleaver in the kitchen of the family home. The applicant used the meat cleaver to strike his wife on the left side of her temple and on the back of her head. The judge described it as “a continuing and savage attack on a defenceless, unarmed woman whilst she was retreating”. The applicant’s wife was taken to hospital, where she was treated in order to stem the blood loss and close the wounds. A doctor gave evidence at the trial that if the bleeding had been allowed to occur for very much longer, the applicant’s wife would have died. The sentencing judge discussed various mitigating and aggravating factors. A non-parole period of four-and-a-half years was set.

15    In 2005, the then Department of Immigration and Multicultural and Indigenous Affairs gave consideration to cancellation of the applicant’s visa pursuant to s 501 of the Migration Act. Ultimately, it was decided not to cancel the applicant’s visa. By a letter dated 4 October 2005, the Department gave the applicant notice of the decision not to cancel his visa. The letter included a prominent warning that the applicant “must control his violent outbursts or he will find his visa will be cancelled”. The letter included a statement that “visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds”. It was further stated: “Disregard of this warning will weigh heavily against you if your case is reconsidered.” The applicant signed an acknowledgment of receipt of this notice on 10 October 2005.

16    On 29 June 2007, the applicant was convicted in the Magistrates’ Court of Victoria of the offences unlawful assault (two charges) and make threat to kill. He was sentenced to a community based order for 12 months. The material before the Court does not provide any detail regarding the circumstances of these offences.

17    It appears that the 2007 convictions did not come to the Department’s attention until 2012, when the applicant made an application for a Class BB Subclass 155 Resident Return Five Year visa.

18    On 19 October 2012, the applicant was granted a Class BB Subclass 155 Resident Return Five Year visa.

19    There is no suggestion that the applicant committed any further offences between 2007 and 2017.

20    On 17 May 2017, the Department of Immigration and Border Protection sent the applicant a notice of intention to consider cancellation of his visa under s 501(2) of the Migration Act. The applicant was given an opportunity to make submissions, and subsequently provided submissions and a number of statutory declarations to the Department.

21    For present purposes, the following aspects of the applicant’s submissions and other material provided to the Department are relevant. In a Personal Circumstances Form, the applicant responded “Yes” to a question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” The applicant then stated:

I am concerned about my safety and security. Law and order is bad there. I will not have any financial help there.

22    In response to the further question “Are there any other problems you would face if you have to return to your country of citizenship?”, the applicant stated:

If I return to my home country, I will suffer because there is no security and safety of my life. I see life threat there.

23    In a statutory declaration dated 18 April 2018, the applicant stated, in relation to his home country, “I am also concerned about my safety and security there”.

24    One of the documents submitted by the applicant was a statutory declaration from a friend of the applicant, dated 4 June 2017. The statutory declaration stated that if the applicant returned to Afghanistan “his life will be in danger as [A]fghans already see him as a foreigner”, and “[h]e will be suffering consequences, getting bullied or maybe even killed”.

The Assistant Minister’s decision and reasons

25    As noted above, on 31 July 2018, the Assistant Minister made the cancellation decision. The Assistant Minister stated in the decision that he reasonably suspected that the applicant did not pass the character test and that the applicant had not satisfied him that he passed the character test. The Assistant Minister stated that he had decided to exercise his discretion under s 501(2) to cancel the applicant’s visa. The Assistant Minister signed a statement of reasons on the same day (the statement of reasons).

26    In the statement of reasons, the Assistant Minister dealt initially with the character test. On the basis of the applicant’s sentence in 2002, being for a term of imprisonment of 12 months or more, the Assistant Minister: (a) reasonably suspected that the applicant did not pass the character test; and (b) was not satisfied that the applicant did pass the character test: see s 501(6)(a) and (7)(c). Thus the discretion to cancel the applicant’s visa was enlivened.

27    In the balance of the statement of reasons, the Assistant Minister considered the exercise of the discretion to cancel the visa. This part of the reasons is arranged under the following headings:

    Protecting the Australian Community;

    Criminal Conduct;

    Risk to the Australian Community;

    Best interests of minor children;

    Expectations of the Australian community;

    International non-refoulement obligations;

    Ties to Australia;

    Extent of impediments if removed.

28    In the part of the statement of reasons dealing with international non-refoulement obligations, the Assistant Minister stated:

International non-refoulement obligations

40.    [The applicant] has made claims that may give rise to international non-refoulement obligations. I note [the applicant] states that he will face harm if returned to Afghanistan due to that country’s lack of law and order, and his fears for his safety and security. [Name omitted] states that [the applicant’s] life would be in danger as [the applicant] would be regarded as a foreigner by the Afghan people. As a result, [the applicant] will be bullied and possibly killed.

41.    I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, the Minister has given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

42.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

43.    In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

44.    I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the applicant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

45.    I have also considered [the applicant’s] claims of harm upon return to Afghanistan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising due to his concerns regarding Afghanistan’s law and order, the lack of family and financial support, and that his life, safety and security will be compromised if he were to return to Afghanistan.

(Emphasis added.)

29    The section headed “Extent of impediments if removed” included the following:

57.    I have considered [the applicant’s] concerns in returning to Afghanistan, stating that law and order is ‘bad’ in Afghanistan and this would put his life at risk and compromise his safety and security. However, I note that these concerns were not sufficient to prevent [the applicant] returning to Afghanistan on 25 October 2012 and 19 September 2013. I accept his concerns should be read in light of the prospect of a permanent return which may make [the applicant’s] experience of law and order issues more difficult to manage.

30    The statement of reasons also contains a section headed “Conclusion”, which was as follows:

CONCLUSION

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

63.    I reasonably suspect that [the applicant] does not pass the character test and he has not satisfied me that he passes the character test.

64.    In considering whether or not to cancel [the applicant’s] visa, I gave primary consideration to the best interests of [the applicant’s] granddaughter, [name omitted], and found that her best interests would be served by not cancelling the visa.

65.    [The applicant] has committed serious crimes including that of intentionally cause serious injury, which was of a very violent nature. [The applicant] and non-citizens who commit such offence should not generally expect to be permitted to remain in Australia.

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

67.    I found the above consideration outweighed the countervailing considerations in [the applicant’s] case, including the best interests of the child treated as a primary consideration, international non-refoulement obligations, his claims that he will suffer hardship if returned to Afghanistan and impact on family and friends.

68.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa.

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

70.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Class BB Subclass 155 Resident Return Five Year visa under s501(2) of the Act.

(Emphasis added.)

The application for judicial review

31    The applicant’s amended originating application for review has been summarised in the introduction to these reasons. In oral submissions, counsel for the applicant focussed primarily on ground 3, and referred briefly to ground 2. In relation to ground 1, counsel for the applicant relied on his written submissions. In light of this, it will be convenient to address the grounds in reverse order – that is, ground 3, then ground 2, then ground 1.

Ground 3

32    By this ground, the applicant contends that the Assistant Minister incorrectly assumed that the existence or otherwise of non-refoulement obligations would be considered in the event that the applicant made an application for a protection visa. The applicant contends that that is not so, as the criteria for a protection visa under s 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations.

33    This ground relies on the judgment of the Full Court of this Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) in relation to ground 3 in that case (considered at [87]-[119]). Ibrahim concerned an exercise of the power conferred on the Minister by s 501BA(2) of the Migration Act to set aside certain types of decisions and to cancel a visa if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) or the operation of s 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. The Full Court in Ibrahim held that the Assistant Minister had conflated Australia’s non-refoulement obligations under the Convention Relating to the Status of the Refugees done at Geneva on 28 July 1951 (Refugees Convention) with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa: see [106]-[112]. The Full Court held that the error was material and accordingly that it was jurisdictional: see [115]-[116].

34    I considered a ground to the same effect in DGI19 at [69]-[85]. DGI19 concerned the power in s 501CA(4) of the Migration Act to revoke a mandatory cancellation of a visa under s 501(3A). I stated that, although Ibrahim concerned an exercise of power under s 501BA rather than s 501CA(4), the reasoning of the Full Court was, in my view, equally applicable to s 501CA(4): see DGI19 at [78]. I concluded that the Minister had conflated Australia’s non-refoulement obligations under international treaties (not just the Refugees Convention) with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa: see [78]. I concluded that the Minister’s misunderstanding was material and constituted a jurisdictional error: see [80], [84].

35    Although Ibrahim concerned an exercise of power under s 501BA(2) rather than s 501(2), I do not consider there to be any relevant distinction for the purposes of this ground between s 501BA(2) and s 501(2). Likewise, I do not consider there to be any relevant distinction between s 501CA(4) and s 501(2) for the purposes of this ground. It was necessary for the Assistant Minister to have a correct understanding of the Migration Act when exercising the power in s 501(2) to cancel the applicant’s visa. This principle applies, not only to the formation of a state of satisfaction, but also to the exercise of a statutory discretion: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [196] per Gummow and Hayne JJ (with whom Gleeson CJ agreed); Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [57], [68] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. See also Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11], [16] per Jagot J. There does not appear to be any dispute between the parties on this point. In his additional submission dated 23 March 2020, the Minister stated that he “does not contend that if he misunderstands the Act or its operation in a way that materially bears on the exercise of the Minister’s discretion under s501(2), that would not amount to jurisdictional error”.

36    The reasoning of the Assistant Minister in the present case (see [28] above) is very similar to the reasoning of the Assistant Minister in Ibrahim (see Ibrahim at [66]-[67]) and substantially the same as the reasoning of the Minister in DGI19 (see DGI19 at [30]).

37    In my view, in the present case, the Assistant Minister conflated Australia’s non-refoulement obligations under international treaties (not just the Refugees Convention) with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa. The five matters to which I referred in DGI19 at [78] are equally applicable in the present case (in this case, the particular paragraphs of importance are [41] and [45] of the Assistant’s Minister’s statement of reasons, set out at [28] above). Thus, for substantially the same reasons as set out in DGI19 (particularly at [78]-[79]), I consider that the Assistant Minister in the present case proceeded on the basis of the misunderstanding alleged by the applicant. The Assistant Minister’s belief involved a misapprehension as to the effect of the Migration Act.

38    For the applicant’s ground to succeed, it is necessary for him to establish that the misunderstanding was material. The applicable principles relating to materiality are set out in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [28]-[31] per Kiefel CJ, Gageler and Keane JJ; and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46] per Bell, Gageler and Keane JJ.

39    In Ibrahim, the Full Court was satisfied that the Assistant Minister’s error was material “given the potential for the internal relocation principle to be applied in the appellant’s circumstances”: see [115]. The context for this conclusion was as follows. Earlier in the Full Court’s judgment, at [66], the Full Court set out an extract from the Assistant Minister’s reasons that referred to the appellant’s representative’s submissions. These included a submission that the appellant’s family was from northern Nigeria and that Christians in northern Nigeria had been targeted by the fundamentalist group Boko Haram. The Full Court discussed, at [95], a difference between the protection criteria under the Migration Act and the criteria under the Refugees Convention as regards the internal relocation principle. The Full Court stated that s 5J(1)(c) “has the effect of removing the internal relocation principle from consideration in an application for protection under s 36(2)(a)”. The Full Court also noted, at [96], the appellant’s submission that the internal relocation principle was potentially relevant “because of the claim that the appellant has a well-founded fear of persecution in the north of Nigeria”. In the context of these matters, the Full Court concluded, at [115], that the Assistant Minister’s error was material.

40    In DGI19, I concluded that the Minister’s error was material because there was the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion: at [80]. Further, at [84], I considered a submission by the Minister that the factual circumstances of DGI19 were distinct from those in Ibrahim because in Ibrahim internal relocation principles could have potentially had a bearing on the existence of non-refoulement obligations in respect of the appellant, whereas (the Minister submitted) on the facts of DGI19 no issue of internal relocation would or could properly arise on the basis of the applicant’s representations. I expressed the view that these matters did not provide a basis for distinguishing Ibrahim and gave three reasons. First, as stated in [80], I considered that the misunderstanding as to the operation of the Migration Act was material because there was the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion. Secondly, I considered that it was not incumbent on an applicant proleptically to deal with the possibility of relocation. Thus, there was the potential for the application of the principle in DGI19. Thirdly, I stated that Parliament’s decision not to reflect the “internal relocation principle” in the visa criterion in s 36(2)(a) was not the only respect in which there was a substantial divergence between the content of Australia’s non-refoulement obligations and the protection visa criteria. Another example was Parliament’s decision to require an applicant to satisfy the decision-maker that a person has a specific “intention” to cause him or her certain kinds of harm in order to satisfy the visa criterion in s 36(2)(aa), referring to SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [4]-[5].

41    In oral submissions, counsel for the applicant submitted that there is a realistic possibility that, if the Assistant Minister had not had the misunderstanding, he might have made a different decision. Counsel submitted that: (a) but for the misunderstanding, the Assistant Minister might have decided to assess whether or not non-refoulement obligations were owed; (b) if the Assistant Minister decided to assess whether such obligations were owed, he might have decided that they were owed in respect of the applicant (including by reference to further enquiries); and (c) if the Assistant Minister assessed that non-refoulement obligations were owed, he might have decided not to cancel the applicant’s visa. Counsel relied on Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [97]-[100] and DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411 at [39], [63]-[64]. In the applicant’s supplementary submissions dated 10 July 2020, he relies on the judgment of the Full Court in Ali at [104], [111] and [118], where the Full Court concluded that the errors in that case were material.

42    The Minister submits that, in light of the substance of the representations that were made (which did not rely on Australia’s non-refoulement obligations), even if (contrary to the Minister’s submissions) the Assistant Minister proceeded on a misunderstanding of the kind found in Ibrahim, it was not a material error, in the sense that there was not a realistic possibility that the Minister’s decision could have been different had consideration to been given to non-refoulement obligations. The Minister submits that the internal relocation principle, which was relevant in Ibrahim, was not relevant; nor is it shown that any further misunderstanding was relevant.

43    In my view, the Assistant Minister’s error was material because there is a realistic possibility that if the Assistant Minister had not made the error he would have considered the submissions relating to non-refoulement obligations and, in that event, he may have come to a different conclusion. It is true that there are factual differences between the present case and DGI19. In particular, in DGI19, the applicant (including through his representatives) made detailed submissions that referred in terms to Australia’s non-refoulement obligations. In contrast, in the present case, the applicant did not refer in terms to Australia’s non-refoulement obligations and the relevant submissions (and supporting material) were relatively brief. However, it is relevant to take into account that the applicant in the present case did not have legal representation at the time he made his submissions. Further, the Assistant Minister in the present case expressly recognised (in the statement of reasons at [40]) that the applicant’s claims “may give rise to international non-refoulement obligations”. It is also true that the applicant’s submissions to the Assistant Minister did not identify a particular relevant difference between international non-refoulement obligations and the criteria for a protection visa (such as the internal relocation principle). However, for the reasons I gave in DGI19 at [84] (cf. Ali at [116]) and those given in Ali at [117], I consider that the error was nevertheless material. In the circumstances, there is a realistic possibility that, if the Assistant Minister had not made the error, he would have considered whether non-refoulement obligations were owed in respect of the applicant. Had he done so, he may have come to a different conclusion.

44    The applicant’s third ground is therefore made out.

45    In light of my conclusion in relation to ground 3, it is unnecessary to consider the remaining grounds. However, I make the following observations about those grounds.

Ground 2

46    By ground 2, the applicant contends that the Assistant Minister incorrectly assumed that the applicant’s claims would be considered in the same way if he applied for a protection visa. The applicant contends that the circumstances in which consideration of non-refoulement occurs are quite different as between the exercise of the discretionary power in s 501(2) and the determination of a visa application under s 65.

47    In the applicant’s written submissions, he relies on the reasoning in DGI19 (in relation to ground 2 in that case), which in turn relied on parts of the reasoning in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16) and Omar v Minister for Home Affairs [2019] FCA 279 (Omar (first instance)). In the applicant’s supplementary submissions dated 10 July 2020, he relies on the judgment of the Full Court in Ali. It should be noted that, unlike the present case, which concerns s 501(2), BCR16, Omar (first instance), DGI19 and Ali all concerned s 501CA(4) of the Migration Act.

48    The applicant submits that that there is no good reason – informed by principles of comity – to depart from the analysis in DGI19.

49    Further, in his supplementary submissions dated 10 July 2020, the applicant relies on the holding in Ali that the Assistant Minister in that case “proceeded upon an erroneous assumption of the law as to the manner in which the issue of Australia’s non-refoulement obligations would be considered in the different statutory processes”, namely under s 36(2) and s 501CA(4) (at [111]); see also at [108]-[110]. The applicant submits that the fact that the decision in the present case is made under s 501(2) rather than s 501CA(4) is irrelevant in this respect. In particular, the applicant submits, the decision under s 501(2) also “invokes a ‘more diffuse and less categorical’ exercise than considering whether an applicant satisfies the criteria (each and every one) for a protection visa under sections 47 and 65”.

50    In circumstances where it is not necessary to decide the point, I prefer not to express a view on whether the reasoning in the above cases concerning s 501CA(4) is equally applicable to a case concerning s 501(2). Sections 501CA(4) and 501(2) are expressed in different terms and it is by no means clear that the relevant parts of the reasoning in the above cases are applicable in relation to s 501(2). I note that the reasons in those cases turned, at least to some extent, on the particular structure and terms of s 501CA(4): see, eg, BCR16 at [48]-[49]; Ali at [39]-[49], [110].

Ground 1

51    By this ground, the applicant contends that the Assistant Minister misunderstood that the applicant’s claims would “necessarily” be considered in the “highly likely” scenario that any protection visa application was considered by a delegate. The applicant contends that the applicant’s claims would not necessarily be considered because Direction 75 does not require that the “protection” criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa.

52    I considered, and rejected, a ground to the same effect in DGI19 at [39]-[44]. The applicant’s counsel in the present case, while pressing this ground, accepted that it was likely that I would follow my reasoning in DGI19. If it were necessary to decide the point, I would reject ground 1 for the reasons set out in DGI19 at [39]-[44].

Conclusion

53    It follows from the above that the application is to be allowed. As sought in the amended originating application, a writ of certiorari should issue quashing the purported decision of the Assistant Minister dated 31 July 2018 to cancel the applicant’s Class BB Subclass 155 Resident Return Five Year visa. The amended originating application also seeks an injunction restraining the Minister or his agents from relying on the purported decision, and such further or other orders as the Court thinks fit. However, no submissions were made in relation to any further relief. It is unclear whether any further relief may be needed in the circumstances of this case. Accordingly, I will reserve to the applicant liberty to apply within 14 days if he wishes to seek any further relief.

54    In relation to costs, there is no apparent reason why costs should not follow the event. Accordingly, I will order that the Minister pay the applicant’s costs, to be fixed by way of a lump sum.

Associate:

Dated:    24 July 2020