Federal Court of Australia
BPL20 v Minister for Home Affairs [2020] FCA 1207
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the respondent’s costs.
4. In the absence of any agreement:
(a) within 21 days, the respondent 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 applicant 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 respondent’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.
MOSHINSKY J:
Introduction
1 The applicant, who is a citizen of China, arrived in Australia in 1997 when he was 11 years old. He held a Class BB Subclass 155 Five Year Resident Return visa.
2 In April 2016, the applicant was convicted in the County Court of Victoria of two counts of the offence, dealing in the proceeds of crime worth $100,000 or more, and sentenced to four years imprisonment on each charge, with a total effective head sentence of five years imprisonment, and a non-parole period of three years.
3 On 7 September 2018, the applicant’s visa was cancelled by a delegate of the respondent (the Minister) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). Section 501(3A) provides for the mandatory cancellation of a visa if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of certain provisions of s 501; 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.
4 The applicant requested that the Minister revoke the cancellation decision and made representations in support of that request. On 15 October 2019, the Minister decided not to revoke the cancellation decision. I will refer to the Minister’s decision as the non-revocation decision.
5 By a proceeding commenced in this Court, the applicant seeks judicial review of the non-revocation decision. The applicant relies on three grounds, as set out in his originating application for review of a migration decision:
(a) First, that the Minister erred by merely reciting (at [13] of his statement of reasons) and then failing to consider, in the relevant legal sense, a significant and clearly articulated claim raised by the representations made by or on behalf of the applicant on the question of the expectations of the Australian community, namely his role in the care of his parents, who are Australian citizens, are separated, have only one child and are unwell (ground 1).
(b) Secondly, the Minister erred by failing to acknowledge (at [16] of his statement of reasons) and consider, in the relevant legal sense, a significant and clearly articulated claim raised by the representations made by or on behalf of the applicant relevant to the question of Australia’s international non-refoulement or statutory protection obligations as “another reason” to revoke the cancellation of the applicant’s visa, namely mental harm to the applicant if he is forced to return to China by reason of his separation indefinitely from:
(i) his parents, by reason that they are not Chinese citizens and cannot travel there;
(ii) his wife, by reason that she would return to Hong Kong and would only be allowed to visit him in China for short periods with permission of the Chinese government;
(iii) the graves of his grandparents, who raised him and who are buried in Melbourne; and
(iv) any family members,
in light of the applicant’s ongoing, long-term mental illnesses (ground 2).
(c) Thirdly, the Minister failed to make any finding (at [16]-[22] of his statement of reasons) on:
(i) the question whether the applicant was owed international non-refoulement obligations under the International Covenant on Civil and Political Rights (the ICCPR);
(ii) the question whether the applicant was owed protection obligations under s 36(2) of the Migration Act; or
(iii) the process by which those obligations would in fact be considered in the case of the applicant (ground 3).
At the hearing, the applicant’s counsel indicated that the applicant did not press paragraph (i) within ground 2.
6 For the reasons that follow, in my view none of these grounds is made out. It follows that the application is to be dismissed.
Key legislative provisions
7 Section 501 of the Migration Act relevantly provides:
(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); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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.
8 That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or …
9 Section 501CA provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(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.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Background facts
10 The following outline of the background facts is based on the bundle of documents, titled “Relevant Documents”, prepared for the purposes of the hearing.
11 As noted above, in 1997, the applicant arrived in Australia. He was then 11 years old.
12 In July 2006, the applicant was convicted in the County Court of Victoria of the offence, affray, and was released on a two-year good behaviour bond.
13 In January 2016, the applicant was married.
14 As noted above, in April 2016, the applicant was convicted in the County Court of Victoria of two counts of the offence, dealing in the proceeds of crime worth $100,000 or more, and sentenced to four years imprisonment on each charge, with a total effective head sentence of five years imprisonment, and a non-parole period of three years. The remarks of the sentencing judge indicate that on ten separate occasions the applicant dealt with money totalling approximately $3.4 million by receiving, possessing and disposing of the money. The applicant acted as an intermediary between a criminal enterprise and the couriers of the money by collecting the money and then providing it to the couriers, who then took the money offshore or attempted to take the money offshore. The sentencing judge remarked that the role played by the applicant was critical to the drug trafficking business, adding that the applicant was “a person the criminal enterprise trusted with vast sums of money”.
15 As noted above, on 7 September 2018, a delegate of the Minister made the cancellation decision.
16 On or about 27 September 2018, the applicant’s lawyers, Carina Ford Immigration Lawyers, on the applicant’s behalf, requested that the cancellation decision be revoked. They provided, among other things, a request for revocation form signed by the applicant (dated 22 September 2018). They also provided a personal circumstances form signed by the applicant and dated 22 September 2018. At page 15 of the personal circumstances form, the applicant answered “Yes” to the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” The form then stated: “If yes, please describe your concerns and what you think will happen to you if you return”. The applicant provided the following response:
I will not be treated good as I am seen to have left the Chinese Republic and lived under a western civilization, democratic country (Australia). I would have no place to go in China, as all my family are here, I would become homeless if I am to be deported.
17 In completing the request for revocation form, the applicant provided a number of attachments, which set out his responses to certain questions. One of these attachments was headed “Family Details”. In this attachment, the applicant stated that his parents resided in Australia and were being cared for by his wife in his absence. The applicant stated that “[i]f we were both forced to leave Australia, no one would be able to care for them”. The attachment set out additional details as to the hardship the applicant’s parents would face if the applicant were returned to China.
18 On 30 November 2018, the applicant’s lawyers provided a letter to the Department of Immigration and Border Protection (the Department) containing further submissions as to why the cancellation decision should be revoked (the November 2018 Submission). The submission comprised 17 pages. Accompanying the submission were: a statement by the applicant; letters of support from the applicant’s wife and others; two psychological reports; evidence of the applicant’s parents’ illnesses; evidence relating to the applicant’s time in prison; and evidence of the applicant’s wife’s immigration status.
19 The November 2018 Submission set out the applicant’s background history at pages 3 to 4. It was stated that: the applicant met his wife in 2011 and they married in January 2016; the couple had been together for seven years; and the applicant’s wife continued to reside with the applicant’s parents and had taken over as their primary caregivers.
20 The next section of the November 2018 Submission was headed “Family in Australia”. It was stated that, prior to his incarceration, the applicant cared for his parents (who were divorced but continued to reside together). It was stated at [23]-[29] that: the applicant’s wife held a Subclass 820 (Partner) visa, granted on the basis of her married relationship with the applicant; the applicant’s wife’s application for a Subclass 801 (Permanent) visa was pending before the Department of Home Affairs and, as such, would be refused if the applicant’s Subclass 155 visa remained cancelled; if the applicant’s wife’s visa application were refused, she would be forced to return to her home country of Hong Kong; if the applicant were forced to return to China, “the couple will be forced to live apart and apply for permit visas to spend time in the same country”. It was also stated that the applicant’s wife would need to apply for a travel permit to visit China and could not reside in China permanently with the applicant. Reference was made to information provided by the Immigration Department of Hong Kong. This section of the submission concluded:
30. As such, [the applicant] and [the applicant’s wife] would need to apply for various visas to live in their respective countries, hindering their marriage significantly and given [the applicant’s] conviction may not be granted such a visa to Hong Kong.
21 In a section of the November 2018 Submission dealing with protection of the Australian community from criminal and other serious conduct, the submission addressed the applicant’s mental health at [51]-[56]. This section included the following submissions:
54. If returned to China, we submit that [the applicant] would be hindered from accessing the required medical resources. We refer to an article issued by China Briefing in January 2018 which states the following regarding the demographic of those suffering from mental health issues in China:
“Furthermore, in 2012, the renowned medical journal The Lancet reported that approximately 173 million Chinese were estimated to have diagnosable mental illnesses or psychiatric disorders. Of these, only 15 million sought treatment.” [emphasis added]
55. Furthermore, the stigma associated with mental health remains:
“Major challenges in China’s mental health care industry include the social stigma of mental health and the government’s passiveness in developing the industry”.
56. Other hinderances include the number of professionals when compared to ‘demand’. Most importantly, such services are not covered by private health insurance and are, therefore extremely costly:
“In addition, analysts predict that China’s mental healthcare industry will continue to grow at a slow pace in the future because of the high costs of counselling services and treatment not being covered by health insurance. Some mental healthcare providers are working with private insurers to create special insurance that covers the cost of psychological counselling.”
(Emphasis in original; footnotes omitted.)
22 The November 2018 Submission included a section on expectations of the Australian community. In this section, the following submissions were made about the risk of double jeopardy if the applicant were returned to China:
65. We note that [the applicant] may be subject to the rules of ‘double jeopardy’ and tried in China for the same crime upon his return. We refer to Article 7 of the Criminal Law of the People’s Republic of China states:
“Article 7
This law is applicable to PRC citizens who commit the crimes specified in this law outside the territory of the PRC; but those who commit the crimes, provided that this law stipulates a minimum sentence of less than a three-year fixed-term imprisonment for such crimes, may not be dealt with.”
66. In addition to Article 7, [the applicant] may also be affected by Article 10 which states:
“Article 10
Any person who commits a crime outside PRC territory and according to this law bear criminal responsibility may still be dealt with according to this law even if he has been tied in a foreign country; however a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.”
67. Despite the fact that [the applicant] has already received a punishment in Australia, Article 10 merely states that he may be exempted from punishment or given a mitigated punishment if returned to China and as such, it is not guaranteed that [the applicant] would not be exempt from further punishment or given mitigated punishment.
68. It is submitted that middle of the road, reasonable members of the Australian community who were fully aware of [the applicant’s] circumstances would not expect that his visa would be cancelled and he be permanently removed from Australia. The community would expect the Department to follow a humane approach in this instance. They would expect that an only child would want to care for his Australian citizen parents and that his wife should not also suffer consequences as a result of his cancellation.
69. Given all of his circumstances, we submit that a reasonable informed member of the community would be prepared to give [the applicant] another chance to remain in Australia.
(Emphasis in original.)
23 Under the heading “Other Considerations”, the November 2018 Submission addressed the strength, nature and duration of the applicant’s ties to Australia. This section referred to the applicant’s parents relying on him for love and support, and referred to the applicant’s parents’ illnesses.
24 The last section of the November 2018 Submission was headed “Non-refoulement” and stated:
84. As discussed at paragraphs 63 to 67 [the applicant] is at risk of serious harm if the double jeopardy rules of China are invoked against him on his return to China. This engages Australia’s non-refoulement obligations under the ICCPR.
This claim is specifically put on the basis of the treaty. The claim is also put on an additional basis, being that [the applicant] is a person who meets the criterion in s 36(2)(aa) of the Act.
85. We submit that the Department must determine this claim. Direction No 75 does not affect this argument – it suffers from the same vice as identified in BCR16 v Minister for Immigration (2017) 248 FCR 456, albeit at a different level, in that the legal possibility remains that the Minister personally will decide any future protection visa application and thereby determine that application without considering the protection criteria. Further, the fact that [the applicant] puts his case on the basis of the treaty, as well as the statutory protection criteria, means that any future protection visa application could not respond to the treaty-based protection claim (cf, the statutory based claim).
86. Further still, a protection visa is a different visa to the Resident Return Visa in issue, and connotes exceptionally serious limitations by comparison. This includes the eligibility criteria for Australian citizenship.
87. Accepting that [the applicant] is a person in respect of whom Australia owes protection obligations, under treaty and under the Act, an adverse result in this review gives rise to a series of “legal possibilities” as the available legal consequences of this decision. These possibilities are:
• [The applicant] will languish in administrative detention, until such time as it is reasonably practical to remove him to China if at all as there is no formal arrangement between China and Australia to return people. The consequence therefore is indefinite administrative detention (a deprivation of liberty and denial of dignity that no Australian citizen would countenance for even but a moment), or even the realist prospect that [the applicant] will die in administrative detention.
• If the Department determines that return to China is reasonably practicable, that return must occur as a matter of legal duty (the government of Australia cannot simply decline to comply with Australian law in order to avoid breach of international obligations). That exposes [the applicant] to the real possibility of suffering serious and significant harm, including the realistic prospect of imminent death.
25 As noted above, one of the documents accompanying the November 2018 Submission was a statement by the applicant. This statement comprised 17 handwritten pages. It included the following at page 16:
As I am in Prison, my wife is the only carer for my parents. My wife is on a partner visa sponsor by me, if I am deported, my wife will be send back as well, leaving my parents behind all alone with no carer. My wife will be send back to Hong Kong, not to Mainland China which I will be deported to, Hong Kong has a one country two system policy, and I will need a visa to visit her in Hong Kong, she will also need a visa to visit me in Mainland China, which makes it difficult for us to live together. Both of us cannot live together in peace, as we can only see each other for short periods of time due to our different locations and needing visa’s to travel to each other’s location. This issue will affect our relationship and marriage significantly, and may cost us in the long run. I could potentially lose my marriage because of my deportation.
This matter was also raised in the applicant’s wife’s statement.
26 There was subsequent correspondence between the applicant’s lawyers and the Department. In a letter dated 5 April 2019 from the applicant’s lawyers to the Department, they referred to Australia’s non-refoulement obligations. At page 2 of that letter, the applicant’s lawyers stated at [7]:
We again raise concerns regarding [the applicant’s] access to mental health facilities in China and the cost of accessing such resources if returned to China and submit that such evidence should be given weight by the delegate in their assessment of Australia’s non-refoulement obligations.
The Minister’s decision and statement of reasons
27 As noted above, on 15 October 2019 the Minister made the non-revocation decision. The Minister signed a statement of reasons on the same day.
28 In the statement of reasons, the Minister noted that the applicant, through his legal representatives, had made representations seeking revocation of the cancellation decision in accordance with an invitation that had been issued to make such representations. Accordingly, the requirement in s 501CA(4)(a) was satisfied.
29 The Minister next considered, in the statement of reasons at [4]-[9], whether the applicant met the character test. The Minister concluded that he was not satisfied that the applicant passed the character test (as defined in s 501). Accordingly, s 501CA(4)(b)(i) was not met. No issue is raised in the present proceeding concerning this aspect of the Minister’s statement of reasons.
30 The Minister then addressed whether the Minister was satisfied that there was “another reason” why the cancellation decision should be revoked, this being the alternative basis for revocation set out in s 501CA(4)(b)(ii). The Minister stated at [11] that, in undertaking this task, “I assessed all of the information set out the attachments. In particular, I considered [the applicant’s] representations and the documents he has submitted in support of his representations regarding why the [cancellation] decision should be revoked”.
31 At [12] of the statement of reasons, the Minister summarised the reasons for revocation of the cancellation decision that had been put forward by the applicant. These included (relevantly for present purposes):
- His parents, who are elderly and Australian citizens, reside in Australia and depend on his support because of their health issues.
- His wife, who resides in Australia, is on a temporary spouse visa on the basis of her marriage to [the applicant]. Her pending permanent visa application could be refused if his visa remains cancelled.
- He is at risk of serious harm if returned to China as he could be made subject to China’s double jeopardy rules and tried for the same crime upon his return.
…
- He suffers from depression and anxiety and fears his mental health would deteriorate if he were removed from Australia and has had suicidal thoughts at times at the prospect of deportation.
32 The balance of this section of the Minister’s statement of reasons was structured under the following headings:
Expectations of the Australian community;
International non-refoulement obligations;
Strength, nature and duration of ties;
Impact on victims;
Extent of impediments if removed; and
Protecting the Australian community.
33 In the section headed “Expectations of the Australian community”, the Minister stated:
13. I have noted [the applicant’s] lawyer submission that ‘middle of the road, reasonable members of the Australian Community who were fully aware of [the applicant’s] circumstances would not expect that his visa would be cancelled and he be permanently removed from Australia. The community would expect the Department to follow a humane approach in this instance. They would expect that an only child would want to care for his Australian citizen parents and that his wife should not also suffer consequences as a result of his cancellation.’
14. I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the original decision to cancel the visa of such a person. [The applicant] has breached this trust as he has been convicted of two counts of Dealing in the proceeds of crime, worth $100,000 or more in Australia.
15. Given the serious nature of these offences, I conclude that the Australian community would expect that [the applicant] should not hold a visa.
34 The section on “International non-refoulement obligations” was as follows:
16. As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if returned to China because he could be made subject to China’s double jeopardy rules and tried for the same crime upon his return. His lawyer submits that this risk of serious harm against [the applicant] engages Australia’s non-refoulement obligations under the ICCPR.
17. In so far as [the applicant’s] claims may be characterised as giving rise to non-refoulement obligations, I note that [the applicant] is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Any claim by [the applicant] that he could be made subject to China’s double jeopardy rules and tried for the same crime upon his return could be fully considered through the making of a Protection visa application.
18. Further, 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, a Ministerial direction has been given under s499 of the Act (Direction 75) which, among other things, requires 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 referring the application for consideration under s501 of the Act.
19. I have also considered and taken into account the possibility that it may be the case that a 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 a 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.
20. Moreover, I am mindful that Australia’s international non-refoulement obligations, which may potentially be engaged in the case of [the applicant], may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2). I am also mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s501CA, is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion.
21. Moreover, I am mindful that Australia’s international non-refoulement obligations, which may potentially be engaged in the case of [the applicant], may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2). I am also mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s501CA, is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion.
22. Further, I am cognisant of the possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria.
(Duplication of [20] in [21] in the original.)
35 In the section headed “Strength, nature and duration of ties”, the Minister referred to the applicant’s submissions concerning his role (and that of his wife) in caring for the applicant’s parents. The Minister’s statement of reasons included:
27. I note that [the applicant’s] parents are divorced but still reside at the same address …, along with his wife. [The applicant] resided with his parents and wife at that address before he was incarcerated. It is submitted by [the applicant’s] lawyer that his wife and parents rely on him for love and support and that prior to his incarceration he was the main wage earner for his family and that since his incarceration his wife has struggled financially to meet their expenses and care for his parents. [The applicant] believes his parents would suffer if he was removed from Australia as they would have no one to physically assist them. I note [the applicant’s] intention to resume residing with his parents and wife were he released into the Australian community and to resume supporting them.
28. [The applicant] states that because his parents are Australian citizens they would only be able to stay in China for short periods of time. He adds that they would not be able to afford to come and see him very often as they are pensioners and I have taken these limitations into account in my decision making.
29. I note [the applicant’s] mother, [name omitted], is aged 61 and suffers from a major depressive disorder, insomnia and is suicidal. I note further her attempted suicide in 2015 upon learning of [the applicant’s] criminal trial. I have considered that after her divorce, [the applicant’s mother] had come to depend on [the applicant] as her only son for emotional, financial and social support and that she has no other family members or relatives in Australia and a very limited social support network. I note that [the applicant] was [the mother’s] main carer before being incarcerated and is now being cared for by [the applicant’s] wife, [name omitted]. However if [the applicant] were removed from Australia, [the applicant’s wife] may lose her right to remain in Australia as her temporary visa was granted to her on the basis of her marriage to [the applicant]. This would potentially leave no one to care for [the applicant’s mother] and I have taken this into consideration.
36 This section of the statement of reasons also referred to the applicant’s representations that he and his wife would be forced to live apart if the applicant were returned to China:
32. [The applicant] is married to [name omitted]. He states they met in Australia in 2011, [the applicant’s wife] moved in with [the applicant] and his parents in 2014 and they married on 20 January 2016. I note [the applicant’s wife] is a citizen of Hong Kong and the holder of a Subclass 820 (Partner) visa granted on the basis of her marriage to [the applicant]. [The wife’s] application for a Subclass 801 (Permanent) visa is pending and could be refused if [the applicant’s] visa remains cancelled and he is removed from Australia. If this is the case, [the applicant’s wife] would need to explore other visa options to allow her stay in Australia, or return to Hong Kong. Her departure would also deprive [the applicant’s] parents of the care and assistance [the applicant’s wife] currently provides to them. Also, due to their respective countries of citizenship, the couple would be forced to live apart and apply for permit visas to spend time in the same country. It is argued by [the applicant’s] lawyer that he may find it hard to be granted a visa to travel to Hong Kong because of his criminal convictions in Australia. This arrangement could hinder their marriage and as such [the applicant] and [the applicant’s wife] are afraid of losing their marriage.
33. [The applicant] states his relationship with [his wife] is very strong, that she visited him twice a week while he was in prison, they are best friends and soul mates and I have regard to this. While they don’t have children, they do have a five dogs and a cat together and look forward to having children.
34. I have noted the prison visitor records submitted by [the applicant] which indicate he was regularly visited by his wife and parents while in prison. I also note other prison records also indicate that he kept regular contact with family and his support network while in prison.
37 In the section headed “Extent of impediments if removed”, the Minister referred to the applicant’s submissions concerning his mental illness. These submissions were referred to at [43]-[46] of the statement of reasons.
38 In the section on “Protecting the Australian Community”, the Minister considered the applicant’s criminal history, concluding (at [56]) that it must be regarded as serious in nature. The Minister considered the risk to the Australian community, finding (at [66]) that there remained a risk of him re-offending, albeit a low risk.
39 The concluding section in the Minister’s statement of reasons included:
74. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the considerations as described above. These include his lengthy residence and ties, international non refoulement obligations, employment, volunteer/charity and familial ties to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.
40 The Minister concluded that he was not satisfied that there was another reason why the cancellation decision should be revoked. Accordingly, he concluded that the power to revoke was not enlivened.
The application for judicial review
41 The applicant has applied to this Court for judicial review of the non-revocation decision. The applicant relies on three grounds, which have been set out at [5] above.
42 In respect of all three grounds the applicant relies, in particular, on the judgment of the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569 (Omar) and the judgment of the Full Court in GBV18 v Minister for Home Affairs [2020] FCAFC 17 (GBV18).
43 Following the hearing of the present proceeding, the applicant’s lawyers sent an email to the Court, drawing the Court’s attention to the judgment of Kerr J in Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 (Ahmed), handed down on 29 April 2020. The email also contained some brief submissions about the implications of the decision. The email included a paragraph setting out the Minister’s position on the further submissions, namely that the Minister objected to the receipt of the applicant’s submissions on the basis that they constituted further argument on ground 3; the Minister submitted that this was not appropriate in circumstances where judgment was reserved, citing a series of cases, including Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 at 258 per Mason J; Eastman v Director Public Prosecutions (ACT) (2003) 214 CLR 318 at [29]-[30] per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [192] per McHugh ACJ, Gummow, Callinan and Heydon JJ; SZSJA v Minister for Immigration and Border Protection (2013) 308 ALR 266 at [66]-[67] per Allsop CJ, Robertson and Mortimer JJ and Roach v The Queen (2019) 344 FLR 429 at [191]-[192] per Bathurst CJ, Bell P and Johnson J. The email also included the applicant’s response, namely that the cases cited by the Minister related to submissions that could have been raised at the hearing, which was not the situation here as Ahmed was handed down after the hearing. With respect to the applicant’s lawyers, I do not consider their position to be correct. In my view, consistently with the cases cited by the Minister, even if the further submissions concern a case handed down after the hearing, leave is required to make the further submissions. As leave was not sought or obtained, I have not had regard to the applicant’s submissions on Ahmed. I have, however, had regard to the judgment in Ahmed.
Applicable principles
44 As noted above, the applicant relies on Omar and GBV18 in relation to each of the grounds of review. In Omar, the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) dismissed the Minister’s appeal on the basis of upholding the respondent’s notice of contention, by which the respondent contended that the Assistant Minister had made a jurisdictional error by failing to consider the matters (including factual matters) raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations. The Full Court set out the relevant principles at [34]. While the whole of that paragraph is relevant, I note in particular the following parts of [34] (given their significance for present purposes):
(g) The representations play a central role in the relevant statutory regime. The Minister’s statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane [v Minister for Immigration and Border Protection (2018) 263 FCR 531] at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. Of course, this does not mean that every matter raised in representations is itself a mandatory relevant consideration. As Colvin J said in Viane at [69]:
All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.
…
(i) While it may have been open to the Assistant Minister here ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not “another reason” for revoking the visa cancellation, the Assistant Minister was nevertheless obliged to give meaningful consideration to the representations on this issue. Again, as Colvin J stated in Viane at [67]-[68] in the context of the Minister’s statutory task under s 501CA(4):
67. In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.
68. Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.
(Bold emphasis in original; italicised emphasis added.)
45 The Full Court also referred, at [35], to the discussion in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) of the obligation of a decision-maker to “consider” a matter in a judicial review context. The Full Court in Omar, at [36], summarised the key points to emerge from Carrascalao that are also relevant to the decision-making function under s 501CA(4). At [36(d)], the Full Court stated that, even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, “it is necessarily implicit in the statutory regime that there is such an obligation”, and that the discharge of that obligation “requires the Minister to engage in an active intellectual process with reference to those representations”.
46 The Full Court in Omar also stated at [39]:
Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139; [2019] FCA 216 (Ezegbe) at [32]-[36] per Perram J).
(Emphasis added.)
47 At [41], the Full Court stated that “[t]he failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute ‘another reason’ for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error”. The Full Court dismissed the Minister’s appeal on the basis of the respondent’s notice of contention: see Omar at [42]-[46].
48 These principles were applied by the Full Court (Flick, Griffiths and Moshinsky JJ) in GBV18 at [30]-[32]. The Full Court upheld ground 3 in the notice of appeal, by which the appellant contended that the Administrative Appeals Tribunal had made a jurisdictional error by failing to consider various matters (including evidence) raised by the appellant in his representations made under s 501CA(3) as providing a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations: see GBV18 at [2(b)]. The Full Court’s reasons for upholding ground 3 in the circumstances of that case were set out at [33]-[45].
49 The application of those principles depends on the facts and circumstances of the particular case. In AXT19 v Minister for Home Affairs [2020] FCAFC 32 (AXT19), the Full Court (Flick, Griffiths and Moshinsky JJ) stated at [56]:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.
50 The principles stated in Omar were applied by Kerr J in Ahmed. Ground 2 in that case relied on the reasoning of the Full Court in Omar: see Ahmed at [49]. At [69], Kerr J noted that the Minister accepted, in his Honour’s view correctly, that Omar was binding authority for the proposition that – whatever might be the position with respect to the Minister’s entitlement to have deferred consideration of those of the applicant’s claims as he considered related to Australia’s non-refoulement obligations – he had a legal duty, independently of such claims, to give meaningful consideration to each clearly expressed significant representation the applicant advanced with respect to the risk of harm he would suffer if forced to return to Somalia. At [77], Kerr J adopted the reasoning of Charlesworth J in Hernandez v Minister for Home Affairs [2020] FCA 415 (Hernandez) at [25]-[26] that the mere fact that a representation is concisely stated and not supported by country information does not necessarily preclude a finding that it was clearly articulated and significant. On the facts of the case, Kerr J concluded at [117] that: the Minister failed to consider three significant and clear representations advanced on behalf of the applicant; each representation was with respect to a risk posed to the applicant were he required to return to Somalia; and the risks were of the most serious kind.
51 Subsequently, in Ali v Minister for Home Affairs [2020] FCAFC 109 (Ali), the Full Court of this Court (Collier, Reeves and Derrington JJ) set aside a decision of a Minister, purportedly made pursuant to s 501CA(4), not to revoke the cancellation of a visa in circumstances where the Minister did not consider representations made the appellant that if he were returned to Ethiopia, Australia would be in breach of its international non-refoulement obligations. The Full Court considered the structure of s 501CA(4) and held, at [45], that “a failure by the Assistant Minister 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”. The Full Court discussed GBV18, Hernandez and Ahmed (see [78]-[85]). In Ali, the appellant’s representations included a contention that, if returned to Ethiopia, the appellant would face serious harm amounting to persecution on the basis of his Oromo ethnicity, and that therefore returning the appellant to Ethiopia would be in breach of Australia’s non-refoulement obligations (see [87]-[88]). The Minister considered it unnecessary to determine whether non-refoulement obligations were owed (see [93]). The Full Court held that the Minister failed to give real and genuine consideration and intellectual attention to the appellant’s representations as to Australia’s non-refoulement obligations (see [95], [99], [103]-[106]).
Consideration
Ground 1
52 The applicant contends that the Minister erred by merely reciting (at [13] of the statement of reasons) and then failing to consider, in the relevant legal sense, a significant and clearly articulated claim (in the applicant’s representations) on the question of the expectations of the Australian community, namely the applicant’s role in the care of his parents, who are Australian citizens, are separated, are unwell and have only one child.
53 The applicant relies, in particular, on [68] of the November 2018 Submission, which has been set out above. The applicant submits that the Minister’s statement of reasons deals only briefly with the expectations of the Australian community (see [13]-[15] of the statement of reasons, set out above). The applicant submits that: nowhere in the Minister’s analysis of the expectations of the Australian community is there any engagement with the submission concerning the applicant’s role as his parent’s primary carer; although the reasons prepared for the Minister state that a contrary submission was made (on the question of the expectations of the Australian community), that submission was not weighed against the Minister’s template reasons concerning the expectations of the Australian community.
54 The applicant submits that the Full Court in Omar concluded that error would arise if a Minister’s reasons merely “noted”, and did not intellectually engage with, a substantial submission: see Omar at [24], [36(f)], [43(a)] and [43(d)].
55 The applicant submits that: the relevant paragraphs of the statement of reasons (i.e. [14] and [15]) were not drafted specifically for the decision concerning the applicant; the same wording has been used for over 18 months by the Minister regardless of the nature of the offences: see, e.g., Freeman v Minister for Home Affairs [2019] FCA 408 at [29] and Ali v Minister for Home Affairs [2018] FCA 1693 at [18].
56 In my view, the applicant has not established that the Minister failed to consider, in the sense of a failure meaningfully to engage with, the applicant’s representations concerning his role as his parents’ carer. In particular, the following aspects of the statement of reasons are relevant:
(a) In identifying the reasons for revocation put forward by the applicant, the Minister identified, as one such reason, that “[the applicant’s] parents, who are elderly and Australian citizens, reside in Australia and depend on his support because of their health issues” (statement of reasons, [12]).
(b) In the section of the statement of reasons dealing with the expectations of the Australian community, the Minister quoted the applicant’s submission concerning the expectations of the Australian community given the applicant’s role as his parents’ carer (statement of reasons [13]).
(c) In the section of the statement of reasons dealing with the strength, nature and duration of the applicant’s ties to Australia, the Minister referred in some detail to the applicant’s submissions concerning his role as his parents’ carer: see [27]-[29] of the statement of reasons, set out above. The Minister stated at [29] that he had “considered” that after her divorce, the applicant’s mother “had come to depend on [the applicant] as her only son for emotional, financial and social support and that she has no other family members or relatives in Australia and a very limited social support network”. I take this to amount to a finding by the Minister. In the balance of this paragraph of the statement of reasons, the Minister noted that the applicant was his mother’s main carer before being incarcerated and that she was now being cared for by the applicant’s wife. The Minister continued: “However if [the applicant] were removed from Australia, [the applicant’s wife] may lose her right to remain in Australia as her temporary visa was granted to her on the basis of her marriage to [the applicant]. This would potentially leave no one to care for [the applicant’s mother] and I have taken this into consideration.” I take these statements to amount to findings by the Minister. The Minister was not merely noting a submission; he was noting a factual matter, which implies acceptance of that matter. Further, the statement that “I have taken this into consideration” indicates that the Minister accepted the factual proposition, namely that removal of the applicant from Australia would potentially leave no one to care for the applicant’s mother.
(d) The Minister discussed the effect of non-revocation on the applicant’s parents at [30]-[31] of the statement of reasons.
(e) In the Minister’s conclusion, he concluded at [74] that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the considerations described earlier in the statement of reasons, including “the hardship [the applicant], his family and social networks will endure in the event the [cancellation] decision is not revoked”.
57 It is true that the Minister’s consideration of the applicant’s representations concerning his role as his parents’ carer was located under the heading “Strength, nature and duration of ties”, rather than “Expectations of the Australian community”. However, I do not consider that it was incumbent on the Minister to consider the representations in connection with the factor, “Expectations of the Australian community” simply because they were put forward on that basis; it was open to the Minister to consider the representations in connection with the factor, “Strength, nature and duration of ties”. Further, to the extent that the applicant’s representations regarding his role as his parents’ carer were related to the expectations of the Australian community, it was open to the Minister to reject those representations and instead rely on the matters referred to in [14] of the statement of reasons.
58 In my view, having regard to the matters set out above, the Minister did meaningfully engage with the applicant’s representations relied on in ground 1. For these reasons, ground 1 is not made out.
Ground 2
59 The applicant contends that the Minister erred by failing to acknowledge (at [16] of the statement of reasons) and consider, in the relevant legal sense, a significant and clearly articulated claim raised by the representations made by or on behalf of the applicant relevant to the question of Australia’s international non-refoulement obligations or statutory protection obligations as “another reason” to revoke the cancellation decision, namely mental harm to the applicant if he were forced to return to China, especially in light of the applicant’s ongoing, long-term mental illness.
60 The applicant submits (at [12] and [23] of his amended written submissions) that he made specific, clear, stand-alone non-refoulement claims, namely:
(a) by reason of social stigma and governmental discrimination, he would be among the 92% of Chinese people with diagnosable mental illness or psychiatric disorders who could not obtain treatment; and
(b) by reason of Chinese government policy, he would be separated from his only family member in China, being his wife.
61 The applicant submits that those submissions were neither acknowledged nor considered by the Minister as a basis for concluding that a reason to revoke the cancellation decision was Australia’s non-refoulement obligations. The applicant submits that, at [16] of his statement of reasons, the Minister merely recited the submission that the applicant was at risk of relevant harm because he could be tried for the same crime upon his return; however, the applicant’s protection claims were broader than that and the Minister did not engage with those additional, stand-alone integers of a non-refoulement claim.
62 The applicant submits (at [24] of his amended written submissions) that he put detailed material before the Minister to explain the link between the decision to maintain the cancellation of his visa and his future risk of mental harm caused by separation from his wife by Chinese authorities.
63 The applicant submits that the fact that the applicant made such claims must be viewed against the substantial and repeated representations made about his mental state more generally.
64 The applicant submits that: while the Minister acknowledged these matters under the rubric of “Strength, nature and duration of ties”, he failed to consider whether and how they were relevant to the question of whether Australia owed the applicant non-refoulement obligations; being forced by circumstances to live apart from a spouse is well established as a possible basis upon which a claim to protection under the criteria in s 36(2)(a) of the Migration Act can be made out (see Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145 at [63]-[65], [77]); similarly s 36(2)(aa) expressly refers to “mental harm” being a basis for finding a complementary protection claim to be made out (see the definition of “cruel or inhuman treatment or punishment” in s 5, as discussed in CKX16 v Minister for Immigration & Anor (No 2) [2020] FCCA 2894 in relation to ground 1); the Minister overlooked the applicant’s evidence and submission that returning him to China would cause him severe psychological harm because of the social stigma and lack of medical treatment as well as because of his separation from his wife.
65 In my view, the Minister did consider, in the sense of meaningfully engage with, the applicant’s representations concerning his mental health and the potential consequence of non-revocation that the applicant would be separated from his wife.
66 Although the applicant submits (at [24] of his amended written submissions) that he “put detailed material before the Minister to explain the link between the decision to maintain the cancellation of his visa and his future risk of mental harm caused by separation from his wife by Chinese authorities”, the parts of the applicant’s representations relied on in the applicant’s written and oral submissions did not make this link clearly, if at all. In the November 2018 Submission, the potential consequence of non-revocation that the applicant would be separated from his wife was dealt with at [23]-[30] under the heading “Family in Australia”. These paragraphs, which have been summarised above, did not link this issue with the applicant’s mental health. The section of the November 2018 Submission dealing specifically with the applicant’s mental health was at [51]-[56], part of which has been set out above. This described that the applicant began suffering from depression in 2006 and that his mental health deteriorated in both 2008 (after the death of his grandfather) and 2014 (after he was charged). It was submitted that the applicant would be hindered from accessing the required medical resources if returned to China. It was also submitted that mental health services are not covered by private health insurance and are extremely costly. No reference was made in this section of the November 2018 Submission to the potential consequence of non-revocation that the applicant would be separated from his wife. The applicant’s handwritten statement referred, in a passage set out at [25] above, to the potential consequence of non-revocation that he would be separated from his wife. This passage did not link this potential consequence with the applicant’s mental health.
67 Further, although the applicant submits (in his amended written submissions at [12] and [23]) that he made “specific, clear, standalone non-refoulement claims” relating to social stigma and governmental discrimination relating to mental health and the potential consequence (of non-revocation) that he would be separated from his wife, it should be noted that the November 2018 Submission did not present these matters as non-refoulement claims. In the November 2018 Submission, non-refoulement claims were dealt with at [84]-[87] (set out above). Those paragraphs relied on the risk of double-jeopardy; they did not refer to the applicant’s mental health or to the potential consequence that the applicant would be separated from his wife. The applicant’s lawyers’ letter dated 5 April 2019 did refer, at [7], to the mental health issues as a non-refoulement claim; thus, to this extent the mental health issues were expressed as a non-refoulement claim. However, the potential consequence that the applicant would be separated from his wife does not appear to have been presented as a non-refoulement claim. This is not to say that a non-refoulement claim cannot arise from representations or material, regardless of the way it is labelled or expressed; it is merely to note the manner in which the representations were presented in the present case.
68 The Minister’s statement of reasons evidences substantial engagement with the applicant’s representations concerning his mental health and the effect that returning the applicant to China would be likely to have on his mental health. In particular:
(a) In the statement of reasons at [12], the Minister identified, as one of the reasons for revocation put forward by the applicant, that “[h]e suffers from depression and anxiety and fears his mental health would deteriorate if he were removed from Australia and has had suicidal thoughts at times at the prospect of deportation”.
(b) In the section of the statement of reasons headed “Extent of impediments if removed”, the applicant’s mental health and the effect of returning the applicant to China was considered at [43]-[46].
69 Further, the Minister’s statement of reasons indicates substantial engagement with the applicant’s representations concerning the potential consequence (of non-revocation) that he would be separated from his wife. In particular:
(a) In the statement of reasons at [12], the Minister identified, as one of the reasons for revocation put forward by the applicant, that “[h]is wife, who resides in Australia, is on a temporary spouse visa on the basis of her marriage to [the applicant]. Her pending permanent visa application could be refused if his visa remains cancelled”.
(b) The claim relating to the potential consequence that the applicant would be separated from his wife was considered at [32]-[34] of the statement of reasons, which have been set out above. These paragraphs accurately summarise the representations that had been made. It is evident that the Minister properly understood, and considered, the representations that had been made.
70 It is true that the Minister did not consider the applicant’s representations regarding his mental health and the potential consequence that he would be separated from his wife as non-refoulement claims. However, given the way the mental health claim and the claim based on separation from his wife were put in the applicant’s representations (that is, with no or little connection with Australia’s non-refoulement obligations), it was not incumbent on the Minister to consider these claims as non-refoulement claims in order to have considered (in the sense of having meaningfully engaged with) these claims. It is necessary to have regard to the manner in which the representations were made. As discussed above, these claims were presented in a way that had no or only limited connection with Australia’s non-refoulement obligations.
71 I observe that the applicant’s contentions in relation to this ground are, in a sense, the obverse of the contention that was upheld by the Full Court in Omar. As noted above, the Full Court in Omar held that the Assistant Minister had made a jurisdictional error by failing to consider the matters raised by the respondent in his representations, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations. In contrast, in the present case, the Minister did consider the relevant representations irrespective of whether the matters raised by the applicant in the representations engaged any of Australia’s non-refoulement obligations; the complaint is that the Minister failed to consider these matters as non-refoulement claims. For the reasons given above, I do not consider the Minister’s treatment of those representations to give rise to a jurisdictional error.
72 For these reasons, ground 2 is not made out.
Ground 3
73 The applicant contends that the Minister failed to make any finding (at [16]-[22] of the statement of reasons) on: the question whether the applicant was owed non-refoulement obligations under the ICCPR; the question whether the applicant was owed protection obligations under s 36(2); or the process by which those obligations would in fact be considered in the case of the applicant.
74 The applicant submits that: he made representations to the Minister that the harm he was at risk of being exposed to resulted from him being “subject to the rules of ‘double jeopardy’ [in that he may be] tried in China for the same crime upon his return”; the specific Chinese ‘offences’ were then quoted, followed by a submission that those offences left him at risk of “further punishment” on return; the applicant represented that this engaged Australia’s non-refoulement obligations under the ICCPR and s 36(2)(aa) of the Migration Act.
75 The applicant submits that: under the heading “International non-refoulement obligations”, the Minister’s standard form reasons purported to engage with this claim; in truth, the Minister’s reasons expose another chapter in the executive and judicial dialogue about how the Minister deals with this issue under s 501CA; the Minister’s reasons here try to avoid making any determination of the protection claims of the applicant and do so through recitation of a checklist of matters raised in judgments of this Court; having noted all the procedural permutations and hurdles, the Minister then left the issue of the applicant’s specific non-refoulement claims hanging; the Minister did not make any finding as to the strength or otherwise of the applicant’s protection claims; nor, importantly, did the Minister weigh the protection claims, or even the process by which those claims would be dealt with, in the balance of determining whether there was “another reason” to revoke the cancellation of the applicant’s visa.
76 The applicant submits that the Minister’s reasons in this regard are inconsistent with his statutory obligations, as discussed in Omar at [39] and Carrascalao at [128]. The applicant submits that his representations were merely “noted” in the reasons prepared for – not by – the Minister. The applicant submits that the Minister made “no finding one way or the other as to whether he accepted [the] submission” (Omar at [43(a)]) that the applicant would be subject to the clearly identified harm.
77 The applicant also submits that, by not identifying which process the applicant would be subject to (or rather, which process the Minister made his decision assuming the applicant would be subject to), the Minister failed to identify and deal with the impact that the process would have on the continued deprivation of liberty of the applicant in Australia.
78 The applicant’s representations regarding double jeopardy and Australia’s international non-refoulement obligations were referred to in [12] and [16] of the Minister’s statement of reasons, indicating that the Minister was cognisant of the representations. The issue raised by this ground is whether, in order to satisfy the obligation to consider the applicant’s representations, it was incumbent on the Minister to make findings as to relevant matters, e.g. whether there was a real risk of double jeopardy in the applicant’s case, and whether Australia owed non-refoulement obligations in respect of the applicant (or whether the complementary protection criterion in s 36(2)(aa) applied).
79 In my view, having regard to the nature and content of the relevant representations, it was not incumbent on the Minister to make findings as to matters such as whether there was a real risk of double jeopardy in the applicant’s case, or as to whether Australia owed non-refoulement obligations in respect of the applicant.
80 The representations regarding the risk of double jeopardy and international non-refoulement obligations were made in the November 2018 Submission at [84]-[87], which referred back to the earlier submissions at [63]-[67]. The earlier submissions regarding double jeopardy were cast in general and tentative terms. In particular:
(a) It was submitted, at [65], that the applicant “may” be subject to the rules of double jeopardy and tried in China for the same crime upon his return.
(b) It was also submitted, at [66], that the applicant “may” be affected by Art 10 of the Criminal Law of the People’s Republic of China. That article, which was set out in the submission, included the following statement: “however a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment”.
(c) Given the terms of that provision, it is understandable that the next sentence of the November 2018 Submission was couched in tentative terms. It was submitted that, despite the fact that the applicant had already received a punishment in Australia, Art 10 merely stated that he “may” be exempted or given a mitigated punishment. It was also submitted that “it is not guaranteed that [the applicant] would not be exempt from further punishment or given mitigated punishment” (emphasis added).
81 Contrary to the applicant’s submissions in this proceeding, the November 2018 Submission did not identify specific offences with which the applicant might be charged if returned to China; it merely referred to Arts 7 and 10, which were general provisions. Further, the November 2018 Submission did not address the particular risk to the applicant of being charged and punished again for the same crime, or what harm he might suffer if punished again. Nor was any supporting material provided, such as country information.
82 In light of the general and tentative way the relevant representations were expressed, it is difficult to see how, on the basis of those representations, the Minister could have made any findings on the matter. It was for the applicant to make representations as to why the cancellation of his visa should be revoked. He had the opportunity to put forward detailed arguments and also supporting material. The representations that were put forward on double jeopardy and non-refoulement obligations did not go very far at all in providing a basis to conclude that there was a real risk of double jeopardy and that Australia’s international non-refoulement obligations were engaged (or that the complementary protection criterion in s 36(2)(aa) applied). In these circumstances, I do not consider that it was incumbent upon the Minister to make findings in order to satisfy the obligation to consider the representations. As noted in Omar at [34(g)], the “significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed”. Here, as discussed above, the relevant representations were expressed in general and tentative terms, without addressing the particular risk to the applicant.
83 It is important to note that the sentence in Omar at [39] upon which the applicant relies is qualified. The sentence reads: “Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law” (emphasis added). Thus the requirement to make findings depends on the nature and content of the representations.
84 In the Minister’s statement of reasons at [74] (set out above) he referred to “international non-refoulement obligations” as one of the considerations that was outweighed by protection of the Australian community. The applicant submits that this discloses error because the Minister had not made any findings about international non-refoulement obligations. While, at first blush, there may appear be a tension in the statement of reasons, it may be that the reference to “international non-refoulement obligations” in [74] reflects the Minister’s implicit, if not explicit, acceptance that the matters raised by the applicant may give rise to international non-refoulement obligations (see, in particular, [20] of the statement of reasons). Thus, I am not satisfied that the reference to “international non-refoulement obligations” in [74] discloses error.
85 It is true that the Minister’s statement of reasons contains an unfortunate error, in that there is a complete duplication of one paragraph: [21] of the statement of reasons is a duplicate of [20]. While this error is unfortunate, it is insufficient, in my view, to establish (separately or together with other matters) that the Minister failed to consider the applicant’s representations.
86 Insofar as the applicant submits that the Minister failed to make any finding about the process by which non-refoulement obligations and the complementary protection criteria would be considered in the case of the applicant, the Minister did refer to the fact that the applicant was able to make a valid application for a protection visa, and noted that this is the key mechanism provided by the Migration Act for considering claims by a non-citizen that they would suffer harm if returned to their home country: see the statement of reasons at [17]. The Minister also made a number of observations about the nature of that process at [18]-[22] of the statement of reasons. Thus, in my view, the Minister did sufficiently consider this matter.
87 I note for completeness that in the November 2018 Submission at [87] it was submitted that returning the applicant to China would expose him to “the real possibility of suffering serious and significant harm, including the realistic prospect of imminent death”. However, the basis for that submission was not explained. It was not linked to the double jeopardy claim. Accordingly, I do not consider that it assists the applicant’s case in relation to ground 3.
88 I also note for completeness that, no doubt due to the differences in the statement of reasons, the applicant does not contend that the Minister made the misunderstandings that were the subject of consideration in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (in relation to ground 3 in that case) or Omar v Minister for Home Affairs [2019] FCA 279. In the present case, the Minister stated at [20] of his statement of reasons that he was mindful that Australia’s international non-refoulement obligations “may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2)”. The Minister also stated in that paragraph that he was mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s 501CA, “is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion”.
89 For these reasons, ground 3 is not made out.
Conclusion
90 It follows from the above that the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will order that the applicant pay the Minister’s costs, to be fixed by way of a lump sum.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. |
