Federal Court of Australia

AFD21 v Minister for Home Affairs [2021] FCA 4

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is a Burundi national. On 8 December 2010, he was granted a Class AH Subclass 101 Child (permanent) visa under the Migration Act 1958 (Cth) (hereafter, the “Act”). He was, at that time, 17 years of age.

2    By a decision made on 30 April 2015 under s 501(3A) of the Act, the respondent (hereafter, the “Minister”) cancelled the applicant’s visa. The catalyst for that decision (hereafter, the “Cancellation Decision”) was the applicant’s criminal history. On 6 May 2014, he was convicted of committing an unlawful act with intent to harm and was sentenced to 12 months’ imprisonment. That charge arose from a physical altercation in which he had engaged with a stranger whilst intoxicated. He had, over the course of his few years in Australia, previously been fined on several occasions for disorderly and anti-social behaviour.

3    In response to an invitation extended to him under s 501CA(3) of the Act, the applicant petitioned the Minister to revoke the Cancellation Decision. He accepted (and still accepts) that he did (and does) not pass the “character test” for which s 501(6) of the Act provides; but he maintained, nonetheless, that there were other reasons—the particulars of which are explored in more detail below—why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act.

4    By a decision made on 1 May 2018, the Minister declined to revoke the Cancellation Decision. Written reasons were supplied in support of that decision (hereafter, the “Non-Revocation Decision”).

5    On 10 May 2018, the applicant filed an application under s 476A of the Act for judicial review of—that is to say, for prerogative relief directed at—the Non-Revocation Decision. That application was initially lodged in the court’s Western Australian registry. Not long after it was filed, it was transferred to the Victorian registry and assigned to a docket judge. In July 2018, the application was amended by leave. It was later reallocated to a different docket judge.

6    Upon my appointment to the court, the matter was reallocated to my docket and was listed for hearing in October 2019. That hearing was adjourned by consent and rescheduled. Ahead of that rescheduled hearing, the applicant filed a further amended application, upon which he was, with the Minister’s consent, given leave to rely.

7    By his further amended application, the applicant alleges that the Non-Revocation Decision was the product of jurisdictional error. Three bases are advanced in support of that central contention, namely that, in making his Non-Revocation Decision, the Minister:

(1)    failed to consider that a reason why the Cancellation Decision ought to have been revoked was that the applicant would otherwise be removed to Burundi, where he would be exposed to risks of harm that would give rise to a contravention or contraventions of Australia’s obligations of non-refoulement;

(2)    made an error of the kind identified in Minister for Home Affairs v Omar (2019) 272 FCR 589 (“Omar”; Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ), in that he did not genuinely consider the applicant’s submission that, if returned to Burundi, he was at risk of being harmed or killed; and

(3)    made a finding for which there was no rational or probative evidence, namely that the applicant would, after a “period of adjustment…[be] integrated back into [Burundi] society”.

8    For the reasons that follow, I do not accept that any of the applicant’s contentions is made good. The application will be dismissed with the usual order as to costs.

The legislative scheme

9    Section 501 of the Act identifies circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:

501     Refusal or cancellation of visa on character grounds

…

(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.

…

    Character test

(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))…

…

Substantial criminal record

(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…

10    Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for the revocation of that decision. The provision relevantly provides as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

…

11    As should be clear from the factual summary that appears above, there was no contest that the applicant, on his own behalf (that is to say, without the assistance of specialist legal or migration assistance), made representations of the sort contemplated by s 501CA(4)(a) of the Act (hereafter, the “Revocation Submissions”). Likewise, the applicant accepted (and still accepts) that he did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Minister was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation Decision ought to have been revoked.

Non-refoulement obligations

12    By his Revocation Submissions, the applicant speculated as to what might befall him in the event that he is returned to Burundi. Specifically, he noted that:

(1)    he has no family in Africa;

(2)    there is substantial unrest in Africa (and in Burundi in particular), especially as between its Tutsi and Hutu populations;

(3)    he is a child of mixed Tutsi and Hutu heritage and, on account of those origins, would be at heightened risk of violence;

(4)    he has no knowledge of Burundi, having left as a child;

(5)    he would not have anywhere to go within Burundi; and

(6)    if returned to Burundi, he feared that he would be killed.

13    Country information before the Minister at the time of his Non-Revocation Decision confirmed the presence of general civil and political unrest within Burundi, which in recent years has sounded in violence, including in the form of abduction, torture, arbitrary arrest and extrajudicial execution. Particularly, there was evidence of growing tensions between Burundi’s Tutsi and Hutu populations, and of the risk that “[p]eople of mixed [Tutsi and Hutu] origin may be at particular risk of persecution…”

14    The reasons published in support of the Non-Revocation Decision record the Minister’s consciousness of the contentions that the applicant advanced in favour of the Cancellation Decision’s revocation. In particular, the Minister noted that the applicant had identified the following as reasons why the Cancellation Decision ought to be revoked, namely that he:

(1)    had suffered trauma as a child in Burundi as a result of his mixed Tutsi/Hutu heritage;

(2)    hailed from a “refugee background”, having “escape[d]” from ongoing conflict in Burundi; and

(3)    feared being killed or otherwise harmed if returned to Burundi.

15    The Minister addressed those submissions in the reasons published in support of the Non-Revocation Decision. Under the heading “International non-refoulement obligations”, the Minister observed:

13.     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 Burundi due to the ongoing conflict in that country. [The applicant] also fears harm from Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage.

14.     I have noted country information submitted by [the applicant] in relation to the ongoing conflict in Burundi.

15.     I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

16.     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. Furthermore, I am aware that my 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, I have given a direction 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. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.

17.     I have also considered [the applicant]’s claims of harm upon return to Burundi outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant]’s claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from the ongoing conflict and harm from Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage were he to return to Burundi.

16    Presently, the applicant submits that the passage above betrays two misunderstandings on the Minister’s part as to the function that he was obliged to discharge under s 501CA(4) of the Act. By his written submissions to the court, the applicant contended as follows (errors original):

First misunderstanding

14.     The Minister’s first understanding was that the applicant’s claims would “necessarily” be considered in the event that the applicant was to make an application for a protection visa.

15.     The position with respect to first misunderstanding is clear, because:

  15.1.     the reasoning in DGI19 on this point is undistinguishable; and

15.2.     DGI19 applies the decision of the Full Court in Ibrahim, which is binding on this Court.

16.     Further to the indistinguishability of the reasoning (and therefore the error) in the two cases, the Court in DGI19 rejected the attempts to distinguish Ibrahim in the following terms:

Secondly, the Minister submits that: the factual circumstances of this matter are distinct from those in Ibrahim; in that case, international relocation principles could have potentially had a bearing on the existence of non-refoulement obligations owed at international law to the appellant; those principles would not, however, affect an assessment of the appellant’s ability to satisfy the protection obligation criteria in s 36(2) of the Migration Act; on that basis the Full Court held that conflation of Australia’s non-refoulement obligations at international law with the protection obligation criteria in s 36(2) was material to the outcome of the Assistant Minister’s decision: Ibrahim at [115]. Here, on the other hand, the Minister submits, no issue of internal relocation would or could properly arise on the basis of the applicant’s representations; any purported conflation by the Minister (which is denied) was not material and did not give rise to jurisdictional error: see Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [28]-[31]; Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [45]-[46]. In my view, these matters do not provide a basis for distinguishing Ibrahim. First, as stated at [80] above, the misunderstanding as to the operation of the Migration Act was material and constitutes a jurisdictional error because there is the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion. Secondly, it is not incumbent on an applicant proleptically to deal with the possibility of relocation. Thus, there was and is potential for the application of the principle in this case. Thirdly, Parliament’s decision not to reflect the “internal relocation principle” in the visa criterion in s 36(2)(a) is not the only respect in which there is a substantial divergence between the content of Australia’s non-refoulement obligations and the protection visa criteria. Another example is Parliament’s decision to require an applicant to satisfy the decision-maker that a person has a specific “intention” to cause him or her certain kinds of harm in order to satisfy the visa criterion in s 36(2)(aa): see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [4]-[5].

17.     Accordingly, the Court should accept that the Minister’s decision is affected by jurisdictional error on the basis of the same misunderstanding.

Second misunderstanding

18.     The Minister’s second misunderstanding was that the applicant’s claims would be considered in the same way if he applied for a protection visa, where the circumstances in which consideration of non-refoulement occurs are quite different as between the exercise of the discretionary revocation power in section 501CA of the Act and the determination of a visa application under section 65 of the Act.

19.     In DGI19, this Court accepted that the same reasoning reflected a material misunderstanding by the Minister of the Act or its operation, including as informed by BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16) and Omar (first instance) and other decisions.

20.     There is no good reason –informed by principles of comity – to depart from that analysis. There is no decision of this Court that criticises DGI19. And DGI19 reflected consideration of the significant Full Court decisions in BCR16, DOB18, and Omar (FFC). (On this point, the Full Court’s decisions in Ibrahim and GBV18 do not add anything of significance.) Indeed, the Court has recently engaged in similar analysis in Hernandez v Minister for Home Affairs [2020] FCA 415 at [61]-[66].

21.     Perhaps, one point of factual distinction between DGI19 and the present case is that in the present case the applicant – who unlike the applicant in DGI19 was not legally represented – did not refer in terms to “non-refoulement obligations”. However, that is not a relevant or material point of distinction. And it was rejected in similar circumstances in Hernandez.

22.     That is because, notwithstanding the manner in which the applicant’s representations were advanced, they were clearly sufficient to raise the possibility that international non-refoulement obligations were owed and that this was a reason for revoking the cancellation decision. And, indeed, the Minister himself expressly recognised that the applicant’s representations raised such issues.

23.     Having recognised that non-refoulement issues arose, the Minister then misunderstood the Act or its operation. As in DGI19, that misunderstanding was material, because there is a realistic possibility that, if the Minister had not misunderstood the Act or its operation in that respect, he may have made a different decision (i.e., because he might have decided to consider whether non-refoulement obligations were owed, and may then have decided to revoke the cancellation decision).

17    By his having misunderstood the statutory scheme in the ways alleged, the applicant charges the Minister with having overlooked or failed to consider a reason that was advanced in support of the revocation of the Cancellation Decision. If the Minister did act in that way—that is to say, if he did fail to consider what the applicant advanced as a reason or reasons for which the Cancellation Decision should be revoked—the Non-Revocation Decision will not have been one that the Minister was authorised by the Act to make, and prerogative relief would, subject to questions of materiality, be appropriate: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 (“CTB19 ”), [15] (McKerracher, Kerr and Wigney JJ) and the authorities to which their Honours there refer. That point of principle was not in dispute.

18    As is apparent, the applicant placed heavy reliance upon the conclusions of Moshinsky J in DGI19 v Minister for Home Affairs [2019] FCA 1867 (“DGI19”). In response, the Minister urged that I not follow DGI19, either because it is distinguishable from the present case or because it is plainly wrong. Insofar as it was said to be distinguishable, the Minister contended as follows (errors original):

6.     Unlike in DGI19, the applicant did not in this case advance non-refoulement obligations as another reason that the visa cancellation should be revoked: see by way of comparison the nature of the submissions advanced by DGI19’s lawyers on his behalf at [24] and [26] of DGI19. Similarly, this Court’s judgment at first instance in Omar should not be assumed to have decisive influence in the present case. That is because, as Mortimer J reasoned, it was the nature of the representations made in that case coupled with the manner in which the Assistant Minister went about his statutory task that resulted in the finding of error: see Omar at [10], [34], [35], [46] and [50].

7.     The applicant’s submission (at [21]-[22] of the applicant’s further submissions) that it is of no material significance that, contrary to cases such as DGI19, the applicant in this case did not refer in terms in his representations to ‘non-refoulement obligations’ should be rejected. It is contrary to the Full Court’s judgment in Sowa v Minister for Home Affairs [2019] FCAFC 111, [43]. The point is not merely that the applicant did not use the expression ‘non-refoulement obligations’ in his representations to the Minister. The point is that a proper analysis of the representations advanced by the applicant reveals no explicit or implicit reference to Australia’s obligations not to return the applicant to his home country under international law. To the contrary, the applicant made short representations that he feared being killed or harmed if returned to Burundi because of his mixed heritage (see for instance CB 93 and CB 98). It was in respect of those representations that the Minister had a duty to consider whether he was satisfied there was another reason why the cancellation decision should be revoked: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198, [47].

8.     It should be recalled that there is a critical distinction between claims to fear harm and the characterisation of those claims as giving rise to non-refoulment obligations at international law: DOB18, [185] (Robertson J). The Minister’s duty was to consider the representations as advanced, and not representations other than those that were advanced.

9.     The Minister did not presuppose that the applicant had raised non-refoulement obligations as another reason why the visa cancellation should be revoked. The Minister considered it unnecessary to determine whether such obligations were owed. The fact of the matter is that non-refoulement obligations were not raised, such that the form of misunderstanding that attended the impugned decisions in Omar (FCA) and DGI19 do not arise here.

10.     The Minister advances the same submission in respect of the applicability of the Full Court’s reasoning in Ibrahim v Minister for Home Affairs [2019] FCAFC 891 at [100]-[116], upon which Moshinsky J in DGI19 placed significant weight. In Ibrahim, which concerned a review of a decision made under s.501BA, the Court held that the Assistant Minister had misunderstood, when reasoning that Australia’s non-refoulement obligations in respect of him would be addressed in the context of an application for a protection visa, that the content of the former differs in material respects from the criteria for the grant of a protection visa contained in s.36 of the Act. Such error does not arise in the present case as the applicant did not advance any non-refoulement obligations that were owed to him. In any event, the applicant has not established how the differences in criteria for the grant of a protection visa contained in s.36 of the Act and Australia’s international obligations would have been material in this case

19    Additionally, the Minister contended that DGI19 could not easily be reconciled with the observations of the full court in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (“DOB18”). In that case, Robertson J (with whom Logan J agreed in the result, Rares J dissenting), made the following observations (at 682 [193]) in respect of a statutory function similar to that for which s 501CA(4) provides:

While I accept the appellant’s submission that the role that non-refoulement obligations might play in a protection visa application is very different to the role they might play in a s 501BA determination, I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minister accepted that the appellant would face hardship if returned to Bangladesh – the factual basis said to engage non-refoulement obligations – and took that hardship into account.

20    The Minister’s contentions condense into the following key takeaways, namely that:

(1)    the applicant did not contend, as a reason that warranted the revocation of the Cancellation Decision, that his return to Burundi would offend against Australia’s obligations of non-refoulement;

(2)    even if there were some failure on his (the Minister’s) part to appreciate that Australia’s obligations of non-refoulement differ from the criteria that condition the grant of protection visas, the applicant has failed to establish how or if any such differences might have been material in the present case; and

(3)    the risks of harm that would befall the applicant if he were returned to Burundi—and that were the foundations upon which those non-refoulement obligations are said to have been engaged—were, in any event, considered, much as they were in DOB18.

21    It is convenient to address those points in reverse order.

Point 3: the representations were considered

22    The third of the above three contentions is the subject of separate attack by the applicant. For reasons to which I shall come in due course, that attack fails. I accept, as the Minister urges, that the various (and very serious) forms of harm to which the applicant claimed that he would be subjected were he to be returned to Burundi cannot be said to have gone relevantly unconsidered.

23    However, a different (but related) question arises presently: should the Minister have separately considered whether or not Australia’s obligations of non-refoulement were engaged in respect of the applicant, rather than defer that question for later consideration in the context of a potential protection visa application? It is to that question that the second of the three points is directed.

Point 2: non-refoulement and materiality

24    The Minister contends that, even if there was some error in the way that he approached the question of Australia’s obligations of non-refoulement, it is not apparent—which is to say that the applicant cannot establish—that any such error was material to his ultimate conclusion.

25    However substantial the conceptual overlap, Australia’s obligations of non-refoulement do not perfectly align with the criteria upon which s 36(2) of the Act conditions the granting of protection visas: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 35 [100]-[103] (White, Perry and Charlesworth JJ); Ali v Minister for Home Affairs (2020) 380 ALR 393 (“Ali”), 403-404 [28] (Collier, Reeves and Derrington JJ). More importantly (at least for present purposes), the prospect that a former visa-holder might be removed from Australia in contravention of non-refoulement obligations might well qualify, in and of itself—that is to say, in addition to whatever might be the constituent circumstances that are said to engage those obligations—as “another reason” that warrants the revocation of a visa cancellation decision.

26    As much were the recent conclusions of the full court in Ali. In that case, as in this one, the appellant nominated various circumstances that he said would befall him were he to be removed from Australia. He surmised that they were sufficient to engage Australia’s obligations of non-refoulement. As occurred in this case, the minister declined to make any assessment on that front on the basis that, if non-refoulement obligations were engaged, they could (and would) be addressed in the context of an application for a protection visa. The court concluded (at 426 [101]):

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.

27    In the present case, the first of the “two misunderstandings” that the applicant alleges can be put to one side. Even assuming that the Minister should be understood to have wrongly conflated Australia’s obligations of non-refoulement with the criteria that condition the grant of protection visas, it cannot be said that that error was material to the Non-Revocation Decision (in the sense contemplated by authorities such as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 133 [25], 134-135 [30] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”), 445 [45] (Bell, Gageler and Keane JJ)). On the contrary, the applicant’s contention strikes as very much hypothetical. There was nothing in the submissions that he advanced in support of the revocation of the Cancellation Decision that suggested that his predicament, though apt to engage Australia’s obligations of non-refoulement, might nonetheless not have been sufficient to satisfy the criteria upon which any subsequent protection visa application would turn (such that the Minister might have been drawn to a different conclusion had they been considered in the earlier context). It was, of course, for the applicant to establish that any such error (assuming that there was one) was material to the outcome that he hopes to impugn: SZMTA, 445 [46] (Bell, Gageler and Keane JJ), [93] (Nettle and Gordon JJ).

28    The same, however, cannot be said of the second of the two misunderstandings. Assuming that the Minister was obliged to consider the engagement of Australia’s obligations of non-refoulement, that obligation was not discharged. For the reasons identified in Ali (above, [26]), the Minister would, in that circumstance, be taken to have erred by failing to consider (or by, in effect, deferring any consideration of) that question. That error (if there was one) would have been material, in the sense that, had he turned his mind to the issue and concluded that those obligations were engaged, the Minister might conceivably have been drawn to a different conclusion as to whether or not there was “another reason” that warranted revocation of the Cancellation Decision.

29    All that remains, then, is to determine whether the Minister was obliged to consider the issue. If he was, then his failure to do so will impugn of the Non-Revocation Decision as a product of jurisdictional error. If he wasn’t, then no such error will be shown.

Point 1: were non-refoulement obligations raised as “another reason”?

30    The Minister submits that he was not obliged to consider whether the applicant’s removal from Australia would offend Australia’s obligations of non-refoulement. That, he says, reflects the fact that the applicant never made that submission to him. He submits that any failure, on his part, to consider whether or not the applicant’s removal to Burundi would be effected in contravention of Australia’s obligations of non-refoulement—including any such failure that arose in consequence of his misunderstanding the interplay between those obligations and the criteria that condition the granting of protection visas—was not a failure that was sufficient to constitute the jurisdictional error that is now alleged (specifically, that he failed to consider a representation that the applicant advanced).

31    It is the case that the applicant’s Revocation Submissions did not, in terms, contend that his return to Burundi in consequence of the Cancellation Decision would offend against Australia’s obligations of non-refoulement. At issue is whether what was submitted was sufficient to have raised that issue implicitly.

32    The circumstances here bear at least some similarity to those with which Charlesworth J dealt in Hernandez v Minister for Home Affairs [2020] FCA 415. In that case, a self-represented applicant, responding to an invitation extended under s 501CA(3)(b) of the Act, made a number of representations about the harm that he feared would befall him if he were removed from Australia. Her Honour made the following observations about those representations (at [53]-[55]):

…an issue arises as to whether the representations made by Mr Hernandez in response to the invitation given under s 501CA(3) of the Act ought to have been understood by the Minister to have included not only a claim to fulfil the criterion in s 36 of the Act, but a discrete claim to the effect that Australia owed an obligation under international law not to return him to El Salvador.

In my view, the submissions ought to have been so understood, notwithstanding that they contained no express reference to Australia’s international law obligations and no express reference to their source. The submissions clearly asserted facts that, if accepted, they would have the consequence that Mr Hernandez was to be regarded as a refugee in accordance with international agreements to which Australia is a party. The representation ought reasonably to have been understood to include an assertion by Mr Hernandez that he was a person to whom non-refoulement obligations were owed.

I am fortified in that conclusion by the circumstance that the Minister was not in fact under any misapprehension that the existence of non-refoulement obligations was indeed an issue that Mr Hernandez had raised. Paragraphs [18] and [19] of the Minister’s reasons relate to that discrete issue, whereas [20] (the subject of the third ground of review) relates to the different question of the claimed risk of harm “outside the non-refoulement context”. By those passages, the Minister correctly recognised the distinction to which Robertson J referred in DOB18. He correctly understood Mr Hernandez to assert that non-refoulement obligations were advanced as a reason why the cancellation decision should be revoked.

33    The Minister invites me not to follow her Honour’s ruling, which he suggests is contrary to full court authority by which I am bound, sitting as a single judge at first instance. By his written submissions—which I reproduce again for ease of reference—the Minister contended as follows:

7.    The applicant’s submission…that it is of no material significance that, contrary to cases such as DGI19, the applicant in this case did not refer in terms in his representations to ‘non-refoulement obligations’ should be rejected. It is contrary to the Full Court’s judgment in Sowa v Minister for Home Affairs [2019] FCAFC 111, [43]. The point is not merely that the applicant did not use the expression ‘non-refoulement obligations’ in his representations to the Minister. The point is that a proper analysis of the representations advanced by the applicant reveals no explicit or implicit reference to Australia’s obligations not to return the applicant to his home country under international law. To the contrary, the applicant made short representations that he feared being killed or harmed if returned to Burundi because of his mixed heritage (see for instance CB 93 and CB 98). It was in respect of those representations that the Minister had a duty to consider whether he was satisfied there was another reason why the cancellation decision should be revoked: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198, [47].

8.     It should be recalled that there is a critical distinction between claims to fear harm and the characterisation of those claims as giving rise to non-refoulment [sic] obligations at international law: DOB18, [185] (Robertson J). The Minister’s duty was to consider the representations as advanced, and not representations other than those that were advanced.

9.     The Minister did not presuppose that the applicant had raised non-refoulement obligations as another reason why the visa cancellation should be revoked. The Minister considered it unnecessary to determine whether such obligations were owed. The fact of the matter is that non-refoulement obligations were not raised, such that the form of misunderstanding that attended the impugned decisions in Omar (FCA) and DGI19 do not arise here.

34    I accept those submissions. The Minister was not required to consider, as a reason in favour of revocation, a circumstance that the applicant in fact did not put: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523, 547-548 [79]-[80]. The authorities are clear that a claim need not find direct expression in order to qualify as one that must be considered: see, for example, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 (“NABE”), 17-20 [55]-[61] (Black CJ, French and Selway JJ). What is required, though, is that such a claim arises clearly on the material that is advanced. A claim that depends for its exposure upon “constructive or creative activity” on the part of a decision maker is not one of which consideration is mandatory: NABE, 19 [58] (Black CJ, French and Selway JJ).

35    It is not always easy to draw the line that divides unarticulated claims that clearly, squarely or plainly emerge on the materials before a decision maker (on the one hand) from those that (on the other) do not: MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588, [14] (Finkelstein J). Nonetheless, the authorities provide the following guidance, namely that:

(1)    the court should not lightly characterise an unarticulated claim as one that was clearly (or squarely or plainly) raised on the face of material that was placed before a decision maker: NABE, 22 [68] (Black CJ, French and Selway JJ); AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (“AYY17 ”), 509-510 [18] (Collier, McKerracher and Banks-Smith JJ); AWT15 v Minister for Immigration and Border Protection [2017] FCA 512, [67] (Barker J);

(2)    the fact that an unarticulated claim might be thought to arise on the material before a decision-maker is not enough: NABE, 22 [68] (Black CJ, French and Selway JJ); and

(3)    while there is no precise standard for determining whether an unarticulated claim has been “squarely raised” by, or “clearly emerges” from, the materials placed before a decision-maker, “…a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77, 84 [21] (Flick J); AYY17, 509-510 [18] (Collier, McKerracher and Banks-Smith JJ).

Although many of those principles derive from other statutory contexts, they are applicable in the visa cancellation realm as well: Hong v Minister for Immigration (2019) 269 FCR 47, 59-60 [48], 66 [69] (Bromwich and Wheelahan JJ, Logan J dissenting but not on that point of principle).

36    In Sowa v Minister for Home Affairs (2019) 369 ALR 389 (Jagot, Bromwich and Thawley JJ), the court considered circumstances involving, as here, an applicant who sought to have the cancellation of his visa revoked on bases that included that he would be harmed if removed from Australia, but that did not, in terms, invoke Australia’s obligations of non-refoulement. The court held that an assistant minister’s failure to consider non-refoulement in that context did not amount to a failure to take account of a mandatory consideration.

37    Although the question must always resolve upon consideration of the facts peculiar to each individual case, I consider that the circumstances here are not materially different to those by which the full court was confronted in Sowa. I am, in any event, drawn to the same conclusion: namely, that the Minister’s failure in this case to address the question of non-refoulement was not reflective of jurisdictional error. The engagement of those obligations was not something that the applicant raised as a reason for which he contended that the revocation of the Cancellation Decision was warranted, nor was it a matter that arose with the requisite clarity upon the material with which the Minister was furnished. The Minister was not obliged to consider it. It is of no moment that his failure to do so was the product of any statutory misunderstanding.

38    It follows that the applicant’s first ground of challenge to the Non-Revocation Decision fails.

Failure to consider representations as to harm

39    By his further amended originating application, the applicant contends that:

The Minister failed to give genuine consideration to significant representations and evidence advanced by the applicant as to a claimed “reason” why the cancellation decision should be revoked, including to the effect that the applicant may be killed in Burundi if he were to be returned there, and made an error of the kind identified in Minister for Home Affairs v Omar [2019] FCAFC 188.

40    The specific representations around which that challenge coalesces have already been recorded (above, [12]).

41    There is no doubt that the Minister was obliged to consider the submissions that the applicant put in support of revocation (including that, if he were returned to Burundi, he was at risk of being killed on account of his mixed Tutsi/Hutu origins): Omar, [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110 (“DQM18”), [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (“Buadromo”), 332 [42] (Besanko, Barker and Bromwich JJ). At issue is what such “consideration” actually required in this case: did it require something other than engagement by the Minister in an active intellectual process directed at the representations by which he was confronted (see, for example: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 (“CAR15”), 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 332 [42]-[43] (Besanko, Barker and Bromwich JJ)); did it, for example, require that he form and state a view or conclusion or “finding” addressing the point that was advanced?

42    In Omar, the full court observed at [39] (emphasis added):

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] FCA 216; 164 ALD 139 at [32]-[36] per Perram J).

43    Later, their Honours explained that the representations in issue in that case—namely, that the appellant was at risk of substantial harm if returned to his native Somalia —“…were of such central significance that the Assistant Minister had to engage with them properly and make findings of fact one way or the other” (emphasis added): Omar, 608 [43(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

44    In Buadromo—which, like Omar, was another case concerning the application of s 501CA(4) of the Act—the full court identified (at 332 [46]) some circumstances in which findings regarding contentions advanced by an applicant might not be required:

A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.

(emphasis added)

45    Although Omar leaves open the possibility that a decision-maker will, in some circumstances, be obliged to make specific findings as to whether or not (or as to the likelihood that) an applicant will be subjected to a species of harm to which he or she fears being subjected upon removal from Australia, it remains the case that “…the duty to consider a representation does not necessarily require the making of a finding of fact…”: CTB19, [15] (McKerracher, Kerr and Wigney JJ), citing Buadromo, 332 [46] and Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 653-654 [41] (Rares and Robertson JJ, with whom Flick J agreed in the result).

46    In Guclukol v Minister for Home Affairs [2020] FCA 61 (Snaden J)—a revocation case not unlike the present—the applicant complained about a decision-maker’s failure to make a finding as to his submission that, if removed to his native Turkey, he would “struggle to subsist”. I made the following observations (at [28]):

The difficulty that often, if not always, arises in cases such as the present (and that arose in Omar and Buadromo) is that determination of the consequences or circumstances that an applicant will face if removed from Australia—that is, the consequences or circumstances by reason of which it is said that there is “another reason” under s 501CA(4) of the Act why the decision to cancel his or her visa should be revoked—typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn’t easily permit of definitive findings. The present case is a good example. It is, of course, the case that the applicant’s fate if returned to Turkey is not (and cannot be) precisely known. He might, as he submitted to the Minister, “struggle to subsist”. He might not.

Those observations were not disturbed on appeal and have since been the subject of apparent approval: CTB19, [15] (McKerracher, Kerr and Wigney JJ).

47    Similar observations arise presently. The applicant’s contention that he was at risk of subjection to generalised violence or death if returned to Burundi was, by nature and inescapably, speculative. However well-informed, speculation of that nature will always be imperfect (in the sense that history may or may not vindicate it). That being so, it was open to the Minister to address what was put to him in the manner that the full court in Buadromo contemplated: in other words, by reasoning that, even assuming that the applicant would, upon return to Burundi, be at risk of subjection to those circumstances, that (either alone or in light of other considerations, including his record of criminal violence) was not sufficient to constitute “another reason” why the Cancellation Decision should be revoked. In DQM18 (at [159]), I noted that reasoning of that kind:

…would discharge the Assistant Minister’s obligation to confront what the appellant advanced, to subject those contentions to a process of active intellectual contemplation, to grapple with the realities of the appellant’s predicament, to take responsibility for what he was doing, and otherwise to consider (in the sense contemplated by any other formulation of that concept) what it was that the appellant had submitted. Those obligations would all be discharged notwithstanding the absence of a finding, one way or the other, as to whether or not the appellant’s removal [from Australia] would subject him to relevant risk.

48    The different conceptual formulations recited in that passage reflect the different ways (or some of the different ways) in which this court has, in recent years, described the Minister’s obligation to consider that which an applicant for revocation submits. Although it has been expressed in different ways, the essence of the obligation is not presently in doubt.

49    In his written submissions, the applicant referred to the recent decisions of this court in Omar and GBV18 v Minister for Home Affairs (2020) 274 FCR 202 (“GBV18”) and complained as follows:

25.     Both of those judgments emphasised, in the context of section 501CA, the observations of Allsop CJ Hands at [3], that “where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people”. “Genuine consideration of the human consequences demands honest confrontation of what is being done to people.” Further, “[d]epending 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 the relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.” “This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved”.

26.     The Minister’s purported consideration “outside of the concept of non-refoulement and the international obligations framework” ([17]) was, however, formulaic and mechanical.

27.     The Minister purported to accepted [sic] that the applicant “would face hardship arising from the ongoing conflict and harm from Tutsi and/or Hutu elements on the basis of his mixed Tutsi/Hutu heritage were he to return to Burundi”.

28.     But this was clearly inadequate. What hardship or harm? The applicant had, for example, claimed to be at risk of being killed. That is certainly not capable of being characterised as “hardship”. Nor is it readily capable of being described as “harm”; in any event, in context, it does not appear that the Minister meant being killed (cf. [30]). But nowhere does the Minister meaningfully engage with this claim. The case is comparable to other cases where the Court has found jurisdictional error on this basis.13 For example, in EKC19 v Minister for Home Affairs [2019] FCA 1823 at [24] (emphasis added), Davies J held:

Although the Minister stated that he took into account the situation in South Sudan in forming the conclusion that the applicant will face hardship if returned there, merely taking into account of the fact of civil war did not engage with representations made on behalf of the applicant, which were before the Minister, namely that country information indicated that there was targeted violence against the Nuer ethnic community of which the applicant is a member, including killings, abductions, unlawful detentions, deprivation of liberty, rape and sexual violence. The Minister did not engage, in any meaningful way, with the nature and gravity of the possibility that the applicant would be killed because of his ethnic group and the reasons simply do not disclose a genuine consideration of all of the claimed consequences of the decision (including death). The “obligation of real consideration” required the Minister to give proper and adequate consideration to all the claims made by the applicant and the failure to do so constituted jurisdictional error as there is plainly a realistic possibility that the Minister’s decision could have been different if he had given proper and meaningful consideration to all the applicant’s claims …

50    I do not accept that the Minister’s reasons in this case were “clearly inadequate” or otherwise betray his having not “meaningfully engage[d]” with the applicant’s claims. Whether the Minister here failed to consider a representation that was advanced in support of the revocation of the Cancellation Decision is a question of fact, which, in the usual course, is to be established as a matter of inference. An inference that the Minister failed to consider what the applicant submitted—including that he faced the prospect of death upon return to Burundi—is less open to be drawn in circumstances where the Minister’s reasons are thorough and disclose at least some consciousness of what was put. Likewise, the court should be slower to infer an absence of consideration of a contention that lacks specificity or detail than it might otherwise be in the case of one advanced with greater particularity: Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385, 405 [62] (Thawley J).

51    The Minister’s reasons for the Non-Revocation Decision, insofar as they address the issue presently in focus, are, on any view, pitched at a level of generality. It is also not in doubt that his reasons assume more than a passing resemblance to other cases (and, in that sense, might fairly be described as “formulaic”). No doubt it is for those reasons that the applicant has sought to attach an adjective—“meaningful”—to his criticisms of the Minister’s consideration of his contentions. Nonetheless, the facts here do not warrant the drawing of an inference that the Minister overlooked or otherwise failed to consider (or meaningfully consider or engage with, etc) the submissions that the applicant advanced.

52    A finding that a minister “…has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); see also CAR15, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ), GBV18, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19, [15] (McKerracher, Kerr and Wigney JJ). In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) that an:

…inference that the [decision maker—in that case, a tribunal] has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

53    The facts before me do not warrant the drawing of an inference that the Minister failed to consider (or to meaningfully consider or engage with, or to give “real consideration” or “genuine consideration” to, or otherwise to take account of, in any of the other ways that the authorities describe) the contentions that the applicant advanced as to what might happen to him if he is removed from Australia. It is far more likely that the Minister simply did not accept that the risks to which the applicant adverted (and of which the Minister was, on any view, conscious) gave rise to “another reason” for the purposes of s 501CA(4)(b)(ii) of the Act: in other words, that he addressed the applicant’s contentions in the manner that the full court described in Buadromo (above, [44]). That being the case, it is not appropriate to—and I do not—infer any want, on the Minister’s part, of relevant consideration of the point.

The “integration” finding

54    As has already been noted (above, [12]), the applicant sought to make much of the difficulties that would befall him if he were returned to Burundi. In the reasons published in support of the Non-Revocation Decision, the Minister made the following observations:

28.     In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that [the applicant] will face if removed from Australia to his home country of Burundi in establishing himself and maintaining basic living standards.

29.     [The applicant] is a young man of 24 years who does not suffer from any diagnosed medical or psychological conditions, although he has a history of alcohol and cannabis abuse.

30.     I note [the applicant] has advised that he has no known family members or support in Burundi. I accept that he will face financial and practical hardship in establishing himself and maintaining basic living standards, and will undergo a period of adjustment, at least initially, until he is integrated back into its society.

31.     I acknowledge that [the applicant] is likely to experience practical and emotional hardship if he is removed from Australia and thereby separated from his mother sister and step-father.

32.     I find that [the applicant] will have similar levels of access to any available medical or economic support services that are generally available to other Burundi citizens in a similar position as [the applicant], although I recognise that these may be of a lower standard than those available to him in Australia.

55    The applicant complains that the conclusion recorded in [30] of those reasons—that the applicant would “…undergo a period of adjustment, at least initially, until he is integrated back into [Burundi] society”—was one for which there was no evidential basis. By his written submissions to the court, he complained that (emphasis original):

…there was absolutely no evidence to support a finding that the applicant would ever be “integrated back into” Burundi society, at least insofar as that conveys the notion that the applicant would establish his basic economic and social needs. How, one might ask, did the Minister expect that to occur? With the applicant having no family or social support in Burundi. With him possessing no meaningful skills to sell on the market. When he suffers from alcoholism, as well as from his traumatic experiences. When, as he had claimed but the Minister failed to consider except in a mechanical or formulaic way, he faced discrimination and risk of serious harm or death by reason of his mixed racial identity? The conclusion that the applicant would “integrate back” into Burundi society had no foundation in evidence and, as in Hands, exhibits jurisdictional error.

56    The reference to “Hands” is a reference to Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (“Hands”, Allsop CJ, Markovic and Steward JJ). That case involved a citizen of New Zealand who had lived in Australia since the age of three, most recently (at the time that that matter was decided) with an absorbed person visa. In his mid-30s, he committed a range of offences (including property- and violence-related offences) and was sentenced to 12 months’ imprisonment, as a result of which his visa was cancelled. He was invited to identify reasons why that cancellation should be revoked and, in accepting that invitation, advanced the following (amongst other things), namely that:

(1)    he had lived in Australia since he was a child;

(2)    his family would be devastated if he were removed to New Zealand;

(3)    he had been subjected to a violent upbringing; and

(4)    he had been accepted by a local Aboriginal community, and had indigenous children and grandchildren, for whom his removal from Australia would cause great distress.

57    In considering those submissions (and, ultimately, declining to revoke the cancellation of Mr Hands’s visa), the relevant minister made the following observations:

While I accept that Mr HANDS may experience some emotional and psychological hardship if removed from Australia and separated from his family, specifically his de facto partner, New Zealand is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. As a citizen of New Zealand, Mr HANDS will have access to these services equal to that of other citizens of that country, which would help to facilitate his integration back into its society. Whilst I acknowledge Mr HANDS may experience short term hardship, I find that over time he would be capable of settling [i]n New Zealand without undue difficulty.

58    Allsop CJ (with whom Markovic J agreed, Steward J agreeing in the result) observed (at 640 [44]) that that conclusion:

…is all to be viewed as a finding that Mr Hands will only suffer short-term hardship and will thereafter settle in without difficulty. This is reinforced by the first sentence of [35] of the reasons. I do not consider that there was any rational or probative evidence to support such a conclusion that his emotional and psychological hardship would be short term. All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands.

59    In consequence of those observations, the decision of the assistant minister in that case not to revoke the cancellation of Mr Hands’s visa was set aside as legally unreasonable.

60    On any view, the conclusion of the Minister in the present case was materially different from that with which the court was concerned in Hands. The Minister did not here suggest that any hardship to which the applicant would be subjected if returned to Burundi would be short-lived, nor was there any suggestion that his “integrat[ion] back into [Burundi] society” would be quick or easy. The Minister’s observations rise no higher than to acknowledge that that process of integration would take at least some time and involve a period of at least some adjustment; but that it would ultimately occur.

61    With respect, the Minister’s observations are unhelpfully vague. It is not clear what was intended by the reference to the applicant being “integrated back into [Burundi] society”. Most likely, it was intended as an analogue of the term that featured in Hands (“settling in”): a convenient, short-hand expression of confidence that, over time (and notwithstanding the acknowledged hardships that he would endure), the applicant would learn to live and function as a Burundi citizen. Whether he would do so by making friends, getting a job, finding a partner, building a house, raising a family, working for a charity, joining a sporting club or doing any other of the infinite number of things that such a life might entail was left unexplored (and, of course, was impossible to define).

62    To observe as much, though, is not to taint the Minister’s observations with the same spectre of unreasonableness as that which the Chief Justice discerned in Hands. Read fairly, the Minister cannot here be understood to have been saying anything other than that the difficulties that the applicant would experience upon his return to Burundi would, over time, dissipate to a point that would enable him to live and function (or otherwise subsist) there. There was no conclusion of the sort that animated the Chief Justice’s conclusions in Hands (namely, that the hardships that would arise from the applicant’s removal from Australia would be “short term”).

63    The Minister’s conclusion is materially similar to that which confronted the court in Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 (Rares, Flick and Robertson JJ). There, the relevant minister had concluded that the hardship that removal from Australia would visit upon Ms Maioha would “…not be insurmountable”. The court observed (at 655 [50]) that it:

…was for the respondent to satisfy the Minister that her prospective hardship was another reason why the original decision should be revoked. The Minister was not legally required to analyse the representation in order to negate it, the Minister not having been satisfied by what the respondent asserted. It was not necessary for the Minister’s conclusion that the hardship that the respondent may suffer “will not be insurmountable” to be supported by probative material outside what the respondent had put by way of representation.

The court made similar observations in Buadromo, 335 [58]-[60] (Besanko, Barker and Bromwich JJ).

64    By his written submissions, the Minister advanced the following contentions:

…it was open to the Minister in considering the applicant’s representations about the impediments he would face if returned to Burundi to proceed on the basis that the applicant would, eventually, re-integrate back into society. It was unnecessary for there to be evidence that the applicant would re-integrate. The applicant lived in Burundi for nearly his entire childhood. He has language and cultural ties to the country. The Minister took into account the facts that would make re-integrating into Burundi difficult for the applicant. However, there was no evidence before the Minister that the applicant could not re-establish himself if he returned there. It was for the applicant to satisfy the Minister there was another reason why the cancellation decision should be revoked.

65    I accept those submissions. The Minister’s conclusion about the applicant “integrat[ing] back into [Burundi] society” cannot be impugned as legally unreasonable, in the sense contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell, Gageler JJ)) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (Gummow A-CJ, Heydon J, Crennan J, Kiefel J, Bell J)). The third of the three bases upon which the applicant sought to challenge the Non-Revocation Decision should fail.

Conclusion

66    The Non-Revocation Decision was not the product of any of the species of jurisdictional error that the applicant attributes to it. The application should (and will) be dismissed with the usual order as to costs.

Associate:

Dated:    22 January 2021