FEDERAL COURT OF AUSTRALIA

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 12 November 2019 affirming the decision of the first respondent not to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa is quashed.

2.    The first respondent, whether by his officers, servants, agents or delegates be restrained from acting on the basis that the decision of the second respondent made on 12 November 2019 was a valid decision.

3.    The second respondent, differently constituted is to determine the applicant’s application for review under s 500 of the Migration Act 1958 (Cth) in accordance with the law.

4.    The first respondent is to pay the applicant’s costs of the originating application.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal made in the exercise of its powers of review under s 500(1)(ba) of the Migration Act 1958 (Cth).

2    The applicant is a national of Afghanistan. He is a Shi’a Muslim of Hazara ethnicity. He migrated to Australia in 2011 as the holder of a Special Humanitarian Program (subclass 202) visa. He was then 21 years old. The applicant was granted a Class BB subclass 155 Five Year Resident Return visa when his previous visa expired.

3    Since arriving in Australia the applicant has committed a number of serious offences of violence against his wife and his sister, most recently in January 2014. He was convicted of those offences in April 2017 and sentenced to a term of imprisonment of five years. As a consequence of that conviction and sentence, the applicant is a person who cannot pass the character test prescribed in s 501(6)(a) and s 501(7)(c) of the Act.

4    On 17 May 2018, a delegate of the then named Minister for Home Affairs cancelled the applicant’s visa on character grounds under s 501(3A) of the Act (cancellation decision). Another delegate of the Minister refused to revoke the cancellation decision in the exercise of the power conferred by s 501CA(4) of the Act (non-revocation decision).

5    For the purposes of its review, the Administrative Appeals Tribunal was constituted by a Deputy President and a Senior Member. The Deputy President was of the opinion that the non-revocation decision should be affirmed. The Senior Member was of the opinion that the decision should be set aside. The disagreement was resolved according to the opinion of the Deputy President in accordance with s 42(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). A reference in these reasons to the Tribunal’s decision is to be understood as the decision to affirm the delegate’s decision based upon the reasoning of the Deputy President.

6    This Court’s jurisdiction to review the Tribunal’s decision is conferred by s 476A(1)(b) of the Act. To succeed on the application it is necessary for the applicant to show that the decision is affected by jurisdictional error: Act, s 474; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

7    The grounds of review are those numbered 1, 2, 3 and 5 in the further amended originating application filed on 19 May 2020.

8    For the reasons that follow the first ground should be upheld. Relief will be granted on that basis.

THE ACT

9    As has been mentioned, the cancellation decision was made in the exercise of the power conferred by s 501(3A) of the Act. It relevantly provides:

501(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); …

and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10    As can be seen, cancellation of the applicant’s visa was mandated by reason of the Minister lawfully forming the state of satisfaction in s 501(3A)(a)(i) and because of the objective circumstances referred to in s 501(3A)(b). It is common ground that each criterion was fulfilled in the applicant’s case.

11    Section 501CA(3) and (4) relevantly provides:

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

12    As Robertson J said in Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 at [54], the “satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law”. See also Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33] (Gageler and Keane JJ) and the authorities referred to therein.

13    The effect of the cancellation of the applicant’s visa under s 501(3A) was to render him an unlawful non-citizen as that term is defined in s 14 of the Act. As such, he was a person who was liable to be detained under s 189. Section 198(2B) of the Act provides that an officer must remove an unlawful non-citizen from Australia as soon as reasonably practicable if a delegate of the Minister has cancelled a visa of the non-citizen under s 501(3A) and if, after considering the person’s representations, the Minister has decided not to revoke the delegate’s decision. Section 197C of the Act provides:

197C Australia’s non refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

14    Relevantly, the phrase “non-refoulement obligations” is defined non-exhaustively in s 5 of the Act to include “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 as amended by the Protocol relating to the Status of Refugees opened for signature on 31 January 1967, which includes, at Article 33:

1.    No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.    The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

15    Section 45 of the Act provides that a non-citizen who wants a visa must apply for a visa of a particular class. There is a class of permanent visa known as a protection visa: s 35A(2). The criteria for a protection visa include those prescribed in s 36 of the Act. It relevantly provides:

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

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

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

…

16    For the purpose of s 36(2)(a), the phrase “protection obligations” is not defined. The word “refugee” is defined in a way that does not wholly coincide with the meaning of that word in the international instruments to which Australia is a party. As the Full Court held in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [100] – [113] (White, Perry and Charlesworth JJ) satisfaction by a visa applicant of the factual criteria in s 36(2) of the Act would not in all cases complete an enquiry as to whether the visa applicant was a person in respect of whom Australia owed non-refoulement obligations under international law. As in Ibrahim itself, the facts asserted by a person in support of an application for a protection visa may give rise to non-refoulement obligations under international law, and yet the same facts may not fulfil the criteria for a protection visa under s 36(2) of the Act. In addition, fulfilment of one or other of the alternate criterion under s 36(2) of the Act does not have the consequence that the person will be granted a protection visa. Whether the visa can be granted turns on s 65 of the Act. It provides:

65 Decision to grant or refuse to grant visa

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

(a)    if satisfied that:

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

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

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

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

is to grant the visa; or

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

17    Should the applicant make a valid application for a protection visa and fulfil one of the alternate criteria in s 36(2) of the Act, the Minister must nonetheless refuse the visa if any one of the cumulative conditions in s 65(1)(a) was absent. They include, but are not limited to, the condition that the grant of the visa is “not prevented by” s 501 of the Act: s 65(1)(a)(iii). There are other circumstances in which an application for a protection visa must be refused under s 65(1)(b) that are unrelated to the criteria in s 36(2)(a). Importantly for the outcome of this review, the circumstance that Australia owes non-refoulement obligations to the applicant would be irrelevant in the mandatory exercise of the power to refuse the visa if any one of the pre-conditions in s 65(1)(a) of the Act was absent. Expressed another way, on an application for a protection visa, the Minister’s satisfaction that the visa applicant is a person in respect of whom Australia owes “protection obligations” for the purposes of s 36(2) will not necessarily have the legal consequence that Australia’s non-refoulement obligations (as defined) will be complied with in respect of the applicant. If there be any doubt about that, one need only look to s 197C of the Act.

THE PROCEEDINGS BEFORE TRIBUNAL

18    Section 500(1)(ba) of the Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. The powers of the Tribunal on such a review include those conferred under s 43 of the AAT Act:

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

19    As Kiefel J (as her Honour then was) said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (at [140]), the object of the Tribunal’s review is to determine what is the “correct and preferable decision”: see Drake v Minister for Immigration and Ethic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J), 77 – 88 (Smithers J). Her Honour said (at [142]) that the Tribunal is to “address the same question as the original decision-maker was required to address”. In the present statutory context, the question to be addressed was that arising under s 501CA(4)(b), namely whether there was “another reason” why the cancellation decision should be revoked. In determining that question, the Tribunal was not confined to the representations previously made by the applicant in response to the delegate’s invitation under s 501CA(3) of the Act, but was required to make the correct or preferable decision on all of the material then before it. The material included evidence adduced and submissions made in the course of a hearing that the Tribunal was obliged to conduct in accordance with the AAT Act.

20    When exercising the power conferred by s 501CA(4), the Minister’s delegate and the Tribunal on review were bound to comply with directions issued by the Minister under s 499 of the Act. At the time of the cancellation decision, the direction in force under s 499 of the Act was that titled “Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). On 20 December 2018, Direction 65 was revoked and replaced by a new Ministerial Direction (Direction 79). Paragraph 10 of Direction 79 required decision-makers to take into account, where relevant, “International non-refoulement obligations”. Paragraph 10.1 stated:

10.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    The existence of a non-refoulement obligation does not preclude cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa should be cancelled.

(5)    If, however, the visa being considered for cancellation is a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them- sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should continue to hold a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa were cancelled, they would face the prospect of indefinite immigration detention.

21    By letter dated 13 June 2018, the applicant, by his solicitors, made representations in accordance with s 501CA(3) as to why the cancellation decision should be revoked. The representations addressed each of the considerations referred to in Direction 65 as then in force. Under the heading “International non-refoulement obligations” the representations asserted that if returned to Afghanistan, the applicant would be persecuted on the grounds of his ethnicity and religion. That part of the representations concluded:

In the event that the information submitted in this response is insufficient for a finding that international non-refoulement obligations dictate that [the applicant] cannot be returned to Afghanistan, then the Department is reminded of the necessity to conduct an International Treaties Obligation Assessment, so this can be appropriately considered prior to a decision being made.

22    That submission was in evidence before the Tribunal. The Tribunal also had before it a statement of facts, issues and contentions upon which the applicant relied. It addressed the question of international non-refoulement obligations by reference to Direction 79 (as then in force) in these more detailed terms:

International non-refoulement obligations

48.    The delegate considered it unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] as they were satisfied, he would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

49.    We acknowledge that [the applicant] has the right to apply for a Protection visa.

50.    We also note that issue of non-refoulement obligations in cancellation matters is currently the subject of significant attention by the Federal Court. I am aware that the matter of Omar v Minister for Home Affairs [2019] FCA 279 is currently on appeal to the Full Court before Chief justice Allsop and Justices Bromberg, Robertson, Griffiths, and Perry. The appeal was heard on 2 September 2019 and the listing suggests that the Court is seeking to provide a clear and determinative ruling on what the decision maker must consider in relation to non-refoulement obligations in light of the recent decisions of Ali v Minister for Immigration and Border Protection [2018] FCA 650, BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 and Ibrahim v Minister for Home Affairs [2018] FCA 1592 and Greene v Assistant Minister for Home Affairs [2018] FCA 919.

51.    It is unclear whether a decision in Omar will be released prior to the expiry of the 84 days in this matter. We therefore contend that the existing decision in Omar and the decision of the Full Court in Ibrahim must be followed and the Tribunal must recognise that the assessment of what is to be considered under Australia’s international non-refoulement obligations is different to what is assessed under a Protection visa application.

52.    We also contend that the strength of recent Tribunal decisions regarding the protection claims of Shia Hazara applicants with no family support in Afghanistan are such that there is effectively no chance that [the applicant] cannot be found to be owed protection under both Australia’s non-refoulement obligations and under Australia’s protection visa framework. See, for example:

a.    1801329 (Refugee) [2018] AATA 996 (4 April 2018)

b.    1710341 (Refugee) [2018] AATA 1288 (26 March 2018)

c.    1716870 (Refugee) [2018] AATA 233 (9 January 2018)

d.    1821283 (Refugee) [2019] AATA 1102 (21 May 2019)

53.    We contend that there is no material distinguishing feature between these cases and [the applicant] circumstances such that it can reasonably be argued that a different decision would be reached in [the applicant’s] case.

54.    Pursuant to ss 189, 196, 197C and 198 of the Act, [the applicant] is still able to be removed to Afghanistan irrespective of whether non-refoulement obligations are owed. However, Direction 79 makes it clear that Australia’s policy is not to refoul where there is a fear of serious harm. There is therefore a real prospect that [the applicant] will face indefinite detention and we contend this must be weighed strongly against cancellation in these circumstances.

55.    As set out in the statements of [the applicant] and his sisters, [the applicant] fears indefinite detention. One of the primary concerns is that this detention will almost certainly be in an interstate facility where he will be unable to be visited by his family. This will cause irreparable harm to both [the applicant] and his family, and there are genuine fears that his parents will not cope.

23    In written submissions to the Tribunal, the Minister said that “the question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked”. However, the Minister said, “the Tribunal is required to do no more than to properly consider the claims being made and the factual material being relied upon by the applicant”. The Minister’s submissions went on:

48.    The weight of recent Federal Court authority suggests that it may be open to the Tribunal to address the applicant’s claims to engage Australia’s non-refoulement obligations by finding that it is unnecessary for it to determine whether the applicant is owed non-refoulement obligations in circumstances where he is able to make a Protection visa application.

49.    However, this approach was not followed in the recent decision of Omar v Minister for Home Affairs [2019] FCA 279. While the Minister formally submits that Omar is wrongly decided (and notes that the decision is subject to an appeal by the Minister), the prudent course would be for the Tribunal to consider whether the existence of non-refoulement obligations is ‘another reason’ for revoking the cancellation decision.

50.    In making this assessment, the Tribunal should bear in mind the following:

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

50.2.    the Tribunal is not required to carry out the same level of analysis as would be expected in the assessment of a Protection visa application. Nor would it be able to within the constraints of its statutory task.

50.3.    it is open to the Tribunal to give greater weight to the primary considerations in Direction 79 than to this ‘other consideration’.

51.    Overall, the Tribunal needs to weigh the applicant’s safety concerns should he return to Afghanistan against the evidence about the seriousness of the applicant’s offending and the risk to the Australia community set out above.

(footnotes omitted)

24    The proposition that it was sufficient for the Tribunal to consider the applicant’s underlying factual claims of harm was said to find support in the decision of Robertson J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 and the decision of Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [22] – [35]. DOB18 concerned the exercise of a different power, being that conferred by s 501BA of the Act. Ali v Minister for Immigration and Border Protection [2018] FCA 650 concerned the personal exercise by the Minister of the power conferred by s 501CA(4) (being the same power under consideration in the present case). The effect of the Minister’s submissions to the Tribunal was that the question of whether the applicant was a person to whom Australia owed non-refoulement obligations would be considered in the course of determining any protection visa application the applicant may make, such that it was unnecessary for the Tribunal to make any conclusive findings on the question.

25    The Tribunal gave written reasons for the non-revocation decision. The salient parts of the reasons will be summarised in the course of determining the grounds of review.

GROUND 1

26    The first ground of review alleges that the Tribunal’s decision was affected by jurisdictional error in that:

a.    The Tribunal was required to give genuine consideration to, and to intellectually engage with, the ‘reasons’ for revocation advanced by the Applicant and which arose from on the facts.

b.    The Applicant relied upon each of (a) the persecution and harm he would suffer if returned to Afghanistan, and (b) the desirability of Australia complying with its international obligations, and each of those issues arose on the facts.

c.    The Tribunal found that Australia was bound by an international legal obligation not to refoule the Applicant to Afghanistan.

d.    The Tribunal (at [101]-[103] and [127]-[128]) identified the risk of harm to the Applicant as a matter weighing in favour of revocation, but treated the subject of ‘international non-refoulement obligations’ as synonymous with that risk of harm to the Applicant, and erred in failing to consider, as a separate and distinct consideration weighing in favour of revocation, the risk that Australia would find itself in breach of its international non-refoulement legal obligation.

27    The Minister does not dispute that the applicant is a person in respect of whom Australia owed non-refoulement obligations under international law.

28    Four questions now arise.

29    The first is whether the Tribunal ought to have understood the applicant’s representations to assert that a consequence of not revoking the cancellation decision would be that he must be returned to his home country in circumstances that would give rise to a breach by Australia of its non-refoulement obligations under international law.

30    The second question is whether the Tribunal treated the subject of Australia’s non-refoulement obligations as synonymous with the applicant’s fulfilment of the criterion for a protection visa. That is a question of fact turning upon the interpretation of the Tribunal’s reasons.

31    The third question is whether by treating the concepts as synonymous the Tribunal failed to give genuine consideration to, and intellectually engage with, a reason advanced by the applicant for revoking the cancellation decision.

32    The fourth question is whether any such error was material and so properly characterised as jurisdictional.

33    Each of these questions is to be answered in the affirmative.

34    After judgment on this application was reserved, the Full Court delivered judgment on appeal from the decision of Steward J in Ali v Minister for Home Affairs [2019] FCA 1900 (Ali at first instance), which also concerned the exercise of the power conferred by s 501CA(4): see Ali v Minister for Home Affairs [2020] FCAFC 109 (Collier, Reeves and Derrington JJ).

35    On that appeal it was argued that the Minister committed jurisdictional error by concluding that the issue of Australia’s non-refoulement obligations would be treated in the same way for the purposes of s 501CA(4) as it would be on an application for a protection visa under s 65, such that it was permissible to defer consideration of those obligations until any subsequent consideration of the protection visa application. In rejecting that ground, the primary judge had cited and applied the decision of Robertson J in DOB18.

36    On appeal it was also argued that the Minister had committed jurisdictional error by “failing to consider Australia’s non-refoulement obligations and additionally or alternatively, wrongly assuming that they would be considered on an application for a protection visa”.

37    The Full Court said that although s 501CA(4) did not expressly pre-condition the Minister’s power with a requirement that the Minister consider the representations made by a former visa holder under s 501CA(3) of the Act, such a requirement arose by necessary implication (at [44]). That proposition finds support in a body of authority to which the Full Court referred (at [45] – [49]): GBV18 v Minister for Home Affairs [2020] FCAFC 17; Hernandez v Minister for Home Affairs [2020] FCA 415; DQM18 v Minister for Home Affairs [2020] FCAFC 110. See also Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [36(d)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

38    It would follow, the Full Court said, that a failure to “consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind” pre-conditioning the exercise of the power (at [45]). See also Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [72] (Colvin J).

39    The Full Court considered in detail the same labyrinth of authority referred to in submissions before me: at [50] – [85]. See BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; Omar v Minister for Home Affairs [2019] FCA 279; DOB18; Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389; DGI19 v Minister for Home Affairs [2019] FCA 1867; GBV18; Hernandez; Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557.

40    The Full Court said (at [86]):

As the above authorities show, matters of this nature can be factually idiosyncratic such that it is essential to ascertain the nature and scope of the grounds advanced to the Minister in the representations made in response to the invitation given under s 501CA(3)(b).

41    The Full Court said that the prospect of Australia acting in breach of its non-refoulement obligations under several international treaties had undoubtedly been raised by Mr Ali as “another reason” to revoke the cancellation of his visa. The Court continued:

90    Recently, in BHL19(FC), Wigney J (albeit in dissent in the result) identified the source of Australia’s non-refoulement obligations as follows at [224]:

Second, the Minister also accepted that because Australia owed the appellant protection obligations on account of his well-founded fear of persecution, Australia would breach its international non-refoulement obligations if the appellant was returned to Syria. Though the Minister did not explain exactly what those international non-refoulement obligations were, they are principally derived from a number of international conventions to which Australia is a party: the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia on 13 August 1980. One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly.

91    His Honour’s comment in the last sentence emphasised that the consequence of non-compliance with Australia’s treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia’s reputation and standing in the global community. This point was also recognised by Charlesworth J in Hernandez (at [63]):

Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing ‘another reason’ why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.

92    It was also very properly acknowledged by Mr Hill for the Assistant Minister that Australia’s international obligations of non-refoulement extend to a wider range of persons than those who are eligible for a protection visa by reason of s 36(2)(a) and (aa). That concession was consistent with the authorities which have been referred to above.

42    The Full Court extracted (at [93]) a passage from the Minister’s reasons in which the Minister concluded that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant because he was able to make a valid application for a protection visa “in which case the existence or otherwise of non-refoulement obligations would be more fully considered in the course of processing the application”.

43    The Full Court then turned to consider whether the Minister had failed to give real and genuine consideration and intellectual attention to the representations Mr Ali had made about Australia’s non-refoulement obligations. The Full Court rejected the Minister’s contention that the duty to consider the representations would be discharged if consideration were given to the factual claims giving rise to Mr Ali’s claimed fear of harm. The Full Court declined to adopt the reasoning of Robertson J in DOB18, on the basis that his Honour’s decision was “peculiar to the statutory framework,” it being a case concerning the power conferred by s 501BA of the Act, and not the power conferred by s 501CA(4). In addition, the Full Court said, the applicant in DOB18 had not in fact raised the issue of Australia’s non-compliance with its international treaty obligations as a discrete matter for the Minister’s consideration (at [97] and [99]).

44    The Full Court went on to summarise and reject a submission advanced on behalf of the Minister in defence of the decision in Ali at first instance. It is convenient to extract that part of the Full Court’s reasons for judgment in full:

100    The Minister also submitted that the consequence of not making the revocation decision is not necessarily the appellant’s return to Ethiopia as there exists the opportunity for the appellant to make an application for a protection visa and for that reason there was no need to consider the issue under s 501CA(4). It was submitted that what the Assistant Minister was effectively saying in his reasons was that, ‘My decision will not lead to a breach of international obligations. I predict that because there’s a right to apply for a protection visa where these issues will be revisited.’ This, it was said was ‘not to ignore, but is to substantively respond to the claimed breach of international law.’

101    That submission involves a not insignificant degree of sophistry and an attempted reconstruction of the Assistant Minister’s actual reasons. It should be rejected. In this case the appellant’s partner visa had been cancelled and he had advanced, as a ground for the purposes of s 501CA(4)(b)(ii), the potential breach of Australia’s non-refoulement obligations if the cancellation were not revoked. If the Assistant Minister formed a state of mind that this ground amounted to ‘another reason’ within that section, the power to revoke the cancellation of the partner visa would be enlivened. No question of the granting of a protection visa arose. Although the ground advanced in support of revocation contains some hypothetical elements to it, including what is likely to happen if the revocation decision is not made, it cannot be ignored. Nor can it be sidestepped by raising another hypothetical proposition that a protection visa application might be made and that the non-refoulement obligations and the consequences of non-compliance with them might be dealt with then. This issue is most acute in this case where the factual findings made by the Assistant Minister were, effectively, that the appellant would be persecuted and face serious physical harm and, perhaps, death if returned to Ethiopia. That conclusion heightened the likelihood that non-refoulement obligations would be owed in respect of him and therefore removed some of the conjecture around that issue. That is not to say that the Minister could not properly take into consideration a ground which involved a hypothetical scenario by assessing the likelihood of its occurrence. However, that was not done in this case and, in any event, a real and genuine consideration would require some degree of analysis of the probability of the occurrence of future events.

45    The Full Court concluded that the Minister’s omissions constituted a failure to comply with the requirements of s 501CA(4), namely the requirement that the Minister form the state of satisfaction required by s 501CA(4)(b) lawfully. The lawful exercise of the power required that the Minister consider and engage with the submissions. The Minister was “not entitled to ‘carve off’ a consideration of them for possible examination at a later stage and his attempt to do so constituted a reviewable error” (at [103]).

46    Following the delivery of judgment on appeal in Ali, counsel for the Minister reverted to arguments based on the reasoning in DOB18 and Ali at first instance. Counsel advanced the following supplementary submission:

17.    The Minister accepts that this alternative argument is contrary to the reasoning on ground 1 in Ali (FC): see [7] above. However, the Minister submits that the Full Court’s reasons for distinguishing DOB18 (FC) are, with respect, wrongly decided.

17.1.    Ali (FC) states that the issue of Australia’s non-refoulement obligations was not raised in DOB18 (FC) (Ali (FC) at [71]), and therefore (it was said) DOB18 (FC) did not answer whether the Assistant Minister was required to consider non-refoulement obligations (Ali (FC) at [99]).

17.2.    However, it is plain from the reasons set out by Robertson J in DOB18 (FC) at [106] (see especially paras 75-78 of those reasons) that the appellant had raised non-refoulement obligations, albeit in earlier stage of the decision-making process. Robertson J (with Logan J agreeing) held that it would have been an error for the Minister not to consider those claims: DOB18 (FC) at [184]. However, there was no jurisdictional error because the Minister had considered the underlying claims to fear harm: DOB18 (FC) at [193].

47    It is unclear what the Court (constituted as it is of a single judge) is invited to do with this submission. The Full Court in Ali distinguished DOB18. Whether it was wrong to do so is not for me to decide. I am bound to apply the principles of construction stated by the Full Court, subject to identifying anything in the statutory context that might justify a different course.

48    It is to be recalled that Ali was a judgment given on appeal from orders dismissing an application for judicial review of a decision that had been made personally by the Minister under s 501CA(4). The Tribunal has no power to review such a decision.

49    The decision presently under judicial review is a decision of the Tribunal made in the exercise of its powers of merits review under s 500 of the Act. As has been observed, in determining whether to affirm the delegate’s decision not to revoke the cancellation decision under s 501CA(4), the same limitations on that power applied. I am satisfied that the reasoning in Ali applies to the present statutory context.

50    Apart from the obligation to consider representations made in response to the invitation given under s 501CA(3)(b), to my mind there are other lines of reasoning by which it might be said that the Tribunal was obliged to have regard to Australia’s refoulement obligations under international law as a discrete consideration in the present case.

51    The Tribunal was required to engage with the representations that had been made to the delegate in 2018 and with the written and oral submissions that were advanced by the applicant in his statement of facts, issues and contentions. It might be said that the statement of facts, issues and contentions constituted further representations to the decision-maker for the purposes of s 501CA(3) of the Act and that they fell to be interpreted together with the submissions made in June 2018 as a single submission. However, in my view it is more correct to say that the Tribunal had an obligation to consider the statement of facts, issues and contentions and the oral submissions advanced by the applicant because the conduct of a hearing (at which the applicant was entitled to adduce evidence and make submissions) was an essential pre-condition to the exercise of the Tribunal’s power to affirm the Minister’s decision under s 43 of the AAT Act.

52    In addition, it seems to me that the obligation to consider Australia’s international non-refoulement obligations arose because of the combined effect of s 499 and Direction 79. Together, they imposed an obligation that the Tribunal consider Australia’s international law obligations “where relevant”. The relevance of those obligations in the present case could not have been doubted. These alternative sources of the obligation to consider the issue of Australia’s obligations under international law were not the subject of submissions before me and I express no concluded view about them. It is sufficient to say that the basis for identifying an obligation in the Tribunal to consider the issue in the present case appears to be even stronger than that identified in the statutory context of Ali, and that the principles stated in Ali resolve the questions of law arising on the first ground of appeal.

53    Turning now to questions of fact, I am satisfied that the applicant in this case did articulate the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision, in addition to, and as distinct from, his underlying claimed fear of harm. The applicant and the Minister were both represented in the proceedings before the Tribunal. As can be seen from the extracts at [22] and [23] above, the content of the Tribunal’s obligation to consider and decide questions concerning Australia’s international obligations was the subject of some contest in the submissions before it. The applicant’s representations went beyond a claim to fear harm or to fulfil the criteria for a protection visa. He expressly submitted that a consequence of the non-revocation decision would be his removal to Afghanistan in breach of those obligations. By his lawyers, the applicant complained that the Minister’s delegate had not engaged with that question. He specifically drew the Tribunal’s attention to the authorities (as they then stood) concerning the nature and extent of the Tribunals’ obligation to genuinely engage with the question, to decide it and to weigh its conclusions about it in the final balance.

54    On this appeal, the Minister did not contend that the applicant’s submissions to the Tribunal concerning the prospect of indefinite detention could be a proper basis for concluding that the applicant had made no submission to the effect that Australia would be in breach of its international law obligations if he were to be removed in accordance with s 198 of the Act.

55    It remains to consider whether the Tribunal failed to consider “as a separate and distinct consideration weighing in favour of revocation, the risk that Australia would find itself in breach of its international non-refoulement legal obligation” as alleged at [1(d)] of the amended originating application and whether any such error was material. It is necessary to set out the relevant portions of the Tribunal’s reasons in full:

83.    The concerns raised that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm. In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant, including the impact of harm which does not engage Australia’s non-refoulement obligations.

International non-refoulement obligations

84.    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

85.    The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked. I am required to properly consider the claims being made and the factual material being relied upon by the applicant.

86.    The applicant contends that he would face harm if returned to Afghanistan and that the Tribunal needs to consider Australia’s international non-refoulement obligations.

…

89.    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 for 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. I note and adopt the respondent’s submission that 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”.

…

91.    The applicant has made a number of claims in expressing fear of harm if returned to Afghanistan.

92.    First, the applicant and his family migrated to Australian through the Humanitarian Program. To be eligible for that program, the primary applicant (ie the applicant’s father) had to demonstrate that he was subject to substantial discrimination, amounting to gross violation of human rights in his home country and is living in a country other than his home country. These claims were accepted and the applicant submits that they extend to him.

93.    Second, the applicant expressed a fear of persecution upon return to Afghanistan on the basis that he is a Shi’a Muslim of Hazara ethnicity.

94.    Third, the applicant also expressed fear of harm as a returnee. The applicant claims that the fact he has been living in a western country places a target on his back. He says he will not fit into the Afghan society and that people would be able to see this. He says that because he did not grow up in Afghanistan he has a different accent which would identify him. He has a specific fear of being harmed by those who harmed his father.

95.    In evidence, the applicant said he fears the Taliban if returned to Afghanistan because his father was stabbed, assaulted and persecuted when he had returned there. He said he fears persecution on the basis that it is not a safe place, he has no connections or family/friends there, he does not know where he can go to live, he has never resided in Afghanistan, and he would be easily identified due to his accent.

96.    The applicant was not cross examined with respect to these claims and I have no reason to doubt them. The general claims are supported by the most recent DFAT Country Information Report on Afghanistan dated 27 June 2019 (DFAT report).

…

100.    I accept that the applicant is owed non-refoulement obligations and that there is a real risk of harm if the applicant returns to Afghanistan.

101.    I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa, bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur: s 198 of the Act. 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.

…

103.    Given that the legal consequence is that the applicant would be returned to Afghanistan, subject to any successful Protection visa application, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation but I note that the applicant has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and poverty in the event that he were to return to Afghanistan.

…

127.    The most significant, in terms of weight, of the other considerations are the international non-refoulement obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan. The applicant has no links with Afghanistan because he has never lived there and has no remaining family there. As a Shi’a of Hazara ethnicity, he will face persecution and his life may well be endangered. I note that the applicant is a single man aged 23 years old and with no children. I also note that the outcome of being returned to Afghanistan is not certain, nor is it an immediate consequence of non-revocation, because the applicant still has the opportunity of applying for a Protection visa. I should not speculate as to what might or might not occur in future decision-making.

(footnotes omitted)

56    When read in isolation, some of the above passages tend to indicate that the Tribunal appreciated that there was a conceptual difference between the factual claims giving rise to the applicant’s fear of harm and the international law obligations that may be breached in the event that the factual claims were accepted but the applicant nonetheless returned to Afghanistan. However, when read as a whole, and having particular regard to [103], the Tribunal’s reasoning compels the conclusion that it failed to properly distinguish between the two concepts in the way it was required to do in the circumstances of the present case. The consequence of that error is that the Tribunal failed to grapple with and decide the question of whether breach by Australia of its international law obligation was a reason to revoke the cancellation decision in the discretionary exercise of the power conferred by s 501CA(4). The Tribunal avoided the question because it assumed (erroneously) that a breach by Australia of its international law obligations might be avoided by the decision-maker on a future protection visa application, such that the applicant would be in no worse position than he otherwise would be if the Tribunal decided for itself the existence of the obligation and the consequences for Australia of its breach. That is what the Tribunal should be understood to mean when it said that Australia’s non-refoulement obligations would be “more fully explored” in the event that the applicant applied for a protection visa. It is also what it should be understood to mean when it said that removal of the applicant to Afghanistan in breach of Australia’s international law obligations would not be an “immediate” consequence of its decision.

57    The Tribunal’s reasoning was wrong-footed for at least four related reasons.

58    First, whilst it is true that the factual claims of feared harm could be more fully explored on a protection visa application, as has been explained earlier in these reasons, there is no reason for a decision-maker under s 65 to “fully explore” the question of whether or not Australia owes non-refoulement obligations (as that term is defined in the Act) to the visa applicant. The visa application process does not call for a full exploration of Australia’s international obligations under international law. Rather, it calls for a binary assessment of whether the visa criteria are or are not met.

59    Second, even if the question were to be “fully explored” by another decision-maker on a protection visa application, the nature of the power conferred by s 65 of the Act is such that the existence of non-refoulement obligations (as defined) could make no difference to the outcome. On a protection visa application, the applicant would either fulfil every one of the visa criteria (not being limited to the criteria in s 36(2)) or he would not. If not, then the mandated consequence would be a decision under s 65(1)(b) to refuse to grant the protection visa irrespective of whether the applicant is a person in respect of whom Australia owes international law obligations. In that mandated event, the removal of the applicant to Afghanistan would also be mandated, irrespective of the existence of the obligation: Act, s 197C. All of that is to be contrasted with the evaluative exercise to be performed under s 501CA(4), being a statutory context in which the prospect of Australia being in breach of its obligations under international law may be considered as a factor weighing in favour of the exercise of the power in the applicant’s favour.

60    Third, to the extent that the Tribunal appreciated that the removal of the applicant to Afghanistan might occur in breach of Australia’s obligations under international law, the Tribunal’s focus was on the consequence of that breach for the applicant. No consideration is given to the consequences of the breach for Australia as a discrete reason for revoking the cancellation decision, further evidencing some confusion between the concepts on the Tribunal’s part.

61    Fourth, it was not to the point that removal of the applicant to Afghanistan would not be an “immediate consequence” of the decision under s 501CA(4) merely because the applicant could apply for a protection visa. The consequences of the breach (both for the applicant and for Australia) are the same, whether they arise immediately or following after another course of decision-making. Given the Tribunal’s factual findings both as to the risk and nature of harm feared by the applicant and the seriousness of his criminal offending, the deferral of the question of international law obligations could not be justified by shirking any “speculation” as to how any protection visa application might play out. That is because (as explained above) the protection visa application must be refused if s 501 of the Act would prevent the grant: Act, s 65(1)(a)(iii), s 65(1)(b). It is difficult to comprehend how s 501 of the Act would not prevent the grant of a protection visa, given that any such visa must be cancelled in the mandatory exercise of the power under s 501(3A).

62    The Minister did not submit on this application that the factor (if raised for consideration) was irrelevant, nor was it submitted that proper consideration of it by the Tribunal could not possibly have affected the outcome of the exercise of the power in question, namely that conferred by s 501CA(4). The errors are material and so properly characterised as jurisdictional: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] (Kiefel CJ, Gageler and Keane JJ).

63    The application for judicial review will be allowed on this basis.

GROUND 2

64    The second ground of review was premised on an alternative interpretation of the Tribunal’s reasons to that asserted in the first ground. It proceeds from an assumption that the Tribunal did consider the prospect of Australia breaching its international law obligations as a factor weighing in favour of revocation, but afforded that consideration less weight than it otherwise would have done because of its erroneous assumption that the existence of the obligation would be “more fully explored” in the course of deciding the anticipated protection visa application. It is submitted that it was irrational for the Tribunal to afford less weight to the consideration because its reasons for doing so reflected an erroneous understanding of the operation of the Act. More directly (and preferably) it was submitted that by affording less weight to the consideration the Tribunal proceeded on an incorrect understanding of the law.

65    I have concluded that the interpretation of the Tribunal’s reasons asserted in the first ground of review is to be preferred to that underpinning the second. Accordingly, the second ground of review will not be upheld.

66    However, if I am wrong in my interpretation of the Tribunal’s reasons, I would accept that the reasons may be interpreted in the manner for which the applicant contends. If that be the correct interpretation I would accept the legal argument advanced on the second ground of review by reference to the same principles I have stated in relation to the first ground.

GROUND 3

67    The third ground of review is as follows:

3.    In the alternative to ground 2, the decision of the Tribunal was affected by jurisdictional error in that:

a.    The Tribunal was required to apply Direction 79 pursuant to s 499(2A) of the Act.

b.    Direction 79 expressly required the Tribunal to proceed on the basis that:

i.    ‘Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists’; and

ii.    ‘Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations’; and

iii.    In the case of a person in respect of whom Australia owes international non-refoulement obligations, if that person’s visa remains cancelled, the person ‘would face the prospect of indefinite immigration detention’.

ba.    The Tribunal was required to treat Direction 79 as directing it to proceed on the basis that the policy of the executive government was that Australia ‘will not return’ a person to their country of origin if to do so would be inconsistent with Australia’s international non-refoulement obligations, and was bound to have regard to that policy when determining whether ‘another reason’ existed to revoke the applicant’s visa.

bb.    Even though the Tribunal accepted that Australia owed non-refoulement obligations in respect of the applicant, the Tribunal instead proceeded on the basis — inconsistent with Direction 79 — that whether or not Australia would comply with its international obligations was to be determined on a case-by-case basis, as a result of the combined effect of the Tribunal’s decision and the result of any future visa application, and without having regard to the fact that, if the applicant were found not to meet the criteria for a protection visa, the Tribunal’s decision would result in Australia’s being in breach of its international obligations and failing to comply with the stated policy.

c.    In the alternative to (ba)-(bb) above, the Minister, by Direction 79, has indicated that, in circumstances where Australia would breach an international legal obligation by returning a person to their country, and would fail to comply with its domestic legal duty imposed by s 198 of the Migration Act by failing to remove the person as soon as it is reasonably practicable to do so, the government’s policy is that it would in fact comply with the international obligation and fail to comply with the domestic legal duty, and that the Commonwealth would in fact continue to detain the person indefinitely in immigration detention.

d.    The only way the person could be released from detention in such circumstances would be if the person sought a writ of mandamus requiring the Commonwealth through its officers to comply with the duty in s 198 of the Migration Act.

e.    In those circumstances, according to Direction 79, the practical consequence of the decision was that the applicant would be held in immigration detention and, unless he was granted a visa or applied to a court compel his own removal under s 198 of the Migration Act, that detention would in fact be indefinite.

f.    The Tribunal was required to have regard to the fact that, due to the policy reflected in Direction 79, the real practical consequence of a decision not to revoke the visa cancellation decision was that the applicant faced indefinite detention.

g.    The Tribunal expressly found (at [102]) that, given the obligation to remove the applicant from Australia as soon as reasonably practicable, his detention would not be indefinite, but Direction 79 (by which the Tribunal was bound) made it clear that the Tribunal was to proceed on the basis that officers of the Commonwealth would not comply with that legal duty and would instead detain the applicant indefinitely.

68    An affidavit of Mr Mitchell Travis Simmons affirmed on 1 June 2020 was read in support of this ground. Whilst pressing this ground, Counsel for the applicant conceded that the arguments underpinning it are not in accordance with the judgment of Kerr J in BDQ19 v Minister for Home Affairs (2019) 167 ALD 38 and that it would be necessary to demonstrate that the decision was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Counsel (properly) acknowledged that the decision could not be so characterised. Accordingly, this ground must be rejected.

GROUND 5

69    This ground concerns a signed statement of the applicant dated 11 October 2019, admitted in evidence before the Tribunal. The ground alleges (correctly) that the statement contained “significant detail regarding the Applicant’s guilt and remorse, what he had learnt about his relationship with the victim, the impact on his family, what he planned to do if he is released, and his fears regarding indefinite detention and refoulement”.

70    It is alleged that the Tribunal failed to consider or intellectually engage with the evidentiary material contained in the statement and that this omission caused it to draw adverse inferences against the applicant, particularly in respect of his future prospects of rehabilitation. It is submitted that the Tribunal, without reference to the statement, drew adverse inferences from the applicant’s oral evidence to support a finding that he had demonstrated “a complete lack of insight as to the seriousness of his offending” and a “lack of appreciation of the consequences for his victims”. It is further submitted that the Tribunal failed to have regard to the statement before concluding that the applicant’s failure to provide particular information to a psychologist some months earlier in March 2019 was indicative of a lack of candour and a lack of understanding of the seriousness of his crime (at [56]). The Tribunal’s failure to have regard to the applicant’s statement constituted a material error because the applicant’s criminal offending was not at such a level where the seriousness of the offending, in and of itself, would prevail over other factors weighing in favour of revocation of the cancellation decision, so it was submitted.

71    This ground proceeds from the assumption that the absence of any reference to the written statement in the Tribunal’s reasons compels the inference that the statement was simply overlooked. I am not satisfied that inference should be drawn. To explain that conclusion, it is sufficient to identify three features of the case.

72    First, critical aspects of the statement are paraphrased by the Tribunal at [48] – [50] of its reasons. Those passages are to be understood as introducing the topic of the applicant’s prospects of rehabilitation, as they had been advanced by the applicant himself.

73    Second, the oral evidence that was said to be of concern to the Tribunal was expressly identified by the Tribunal as having been given “in cross-examination”. That part of the reasons reflects the undisputed fact that the statement had been tendered in the proceedings and the circumstance that the applicant had been tested in cross-examination about its contents. The case is not one involving an evaluation of conflicting evidence from different sources. Nor is it a case where there is some doubt as to whether the statement was brought to the attention of the decision-maker at all. Rather, the Tribunal should be understood to have asked itself whether the applicant’s written statements concerning his prospects of rehabilitation ought to be accepted. Implicitly, the Tribunal should be understood to have placed more weight on the evidence given by the applicant under cross-examination to that given in his pre-prepared written statement, as it was entitled to do.

74    Third the Tribunal concluded at [60] that in light of the applicant’s oral evidence (among other things):

… I am not able accept the applicant’s statements of remorse or his promises that he will not re-offend. I am also unable to accept that he is appropriately rehabilitated. …

75    By that statement and the paragraphs preceding it, the Tribunal may be fairly understood to have taken into account the assertions in the written statement, to have grappled with them and to have rejected them.

76    The fifth ground of review is not established.

Associate:

Dated:    7 August 2020