Federal Court of Australia

Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to quash the decision made by the Respondent on 9 November 2020.

2.    A writ of mandamus be issued directing the Respondent to reconsider the Applicant’s revocation request according to law.

3.    The Respondent pay the Applicant’s costs of this proceeding.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(c) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision made personally by the Minister under s 501CA(4) of the Act on 9 November 2020 not to revoke the cancellation of the applicant’s visa.

2    The applicant is a national of Cuba born on 28 December 1981. He arrived in Australia as a minor with his mother on 23 January 1997. He has resided in Australia since that time. His mother arrived in Australia as the holder of a Class BC Subclass 100 Spouse visa and the applicant holds the same visa. His mother has since become an Australian citizen.

3    The applicant has a lengthy criminal history dating back to 2000 and which culminated in convictions on 29 October 2014 in South Australia for the offences of threatening to kill or endanger life and engaging in sexual intercourse with a person without consent, for which he received a single sentence of 6 years’ imprisonment. These two offences were committed against a 16 year old girl.

4    On 16 December 2019, a delegate of the Minister cancelled the applicant's visa as required by s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of this decision and was invited to make representations about the revocation of the decision to cancel his visa. The applicant made representations in response to that invitation including, relevantly, by a submission of MSM Legal, acting on behalf of the applicant, dated 13 January 2020.

5    On 9 November 2020, the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant's visa. On 11 November 2020, the applicant was notified of that decision.

6    On 1 December 2020, the applicant filed an originating application in this Court seeking review of the decision of the Minister. Section 476A(1)(c) of the Act gives the Court jurisdiction to review the decision of the Minister, and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his originating application is a writ of certiorari quashing the decision of the Minister and a writ of mandamus remitting the matter to the Minister for determination according to law. The originating application stated three grounds of review. The applicant did not press the second ground at the hearing.

7    At the hearing of the application, the Minister read an affidavit of Arran Niall Gerrard affirmed 26 March 2021. Mr Gerrard is a Senior Lawyer with the Australian Government Solicitor, solicitors for the Minister. Mr Gerrard’s affidavit exhibited two documents that had been referenced in the applicant’s submission to the Minister dated 13 January 2020. The documents are relevant to the applicant’s first ground of review.

8    For the reasons that follow, I uphold the first ground of review but dismiss the third ground. I consider that, by reason of the first ground of review, the Minister’s decision is affected by jurisdictional error. The decision should be quashed and the matter remitted to the Minister for reconsideration.

Legislative Provisions

9    Section 501(3A) of the Act provides that the Minister (or a delegate) must cancel a visa that has been granted to a person if:

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

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

. . .; and

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

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

11    Section 501CA of the Act relevantly provides that:

(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.

…

 (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.

The Applicant’s Representations

12    As noted earlier, on 16 December 2019, a delegate of the Minister cancelled the applicant's visa as required by s 501(3A) of the Act. The applicant was notified of this decision by letter that day and was invited to make representations about the revocation of the decision to cancel his visa.

13    The applicant made a number of representations in response to that invitation. Relevantly, on 13 January 2020, MSM Legal, acting on behalf of the applicant, made written representations to the Minister. Four representations are relevant to the grounds of review.

14    The first representation concerned Australia’s non-refoulement obligations. In essence, the representation was to the effect that the Minister was legally obligated to consider Mr Perera’s claims of significant harm in deciding whether to revoke the cancellation of the visa and could not defer consideration on the basis that Mr Perera was entitled to apply for a protection visa.

15    The second representation concerned the prospect of Mr Perera suffering indefinite detention in Australia. The representation stated that Direction 79 issued by the Minister indicated that, in circumstances where Australia would breach an international legal obligation by returning a person to their country, and would fail to comply with its domestic legal duty imposed by s 198 of the Act by failing to remove the person as soon as it is reasonably practicable to do so, the government’s policy is that it would in fact comply with the international obligation and fail to comply with the domestic legal duty, and that the Commonwealth would in fact continue to detain the person indefinitely in immigration detention. The representation was that the Minister must have regard to the fact that, due to the policy reflected in Direction 79, the real practical consequence of a decision not to revoke the visa cancellation decision is that Mr Perera will face indefinite detention.

16    I note that the written representations referred, in alternating sequence, to Ministerial Direction 79 (which concerns visa cancellation under s 501 and revocation of a mandatory cancellation under s 501CA) and Ministerial Direction 75 (which concerns the refusal of a protection visa under ss 36(1C) and (2C)(b)). I infer from the content of the representations that the applicant intended to refer to Ministerial Direction 79 on each occasion.

17    The third representation concerned the likelihood that Cuba would not permit Mr Perera to relocate to Cuba and was expressed as follows:

Claim – denial of re-entry, de facto statelessness and indefinite detention.

46.     We contend that Mr Perera is effectively stateless and will be denied re-entry to Cuba.

47.     Mr Perera was born in Cuba to Cuban parents and so is a Cuban national. However, under Cuban law, if a national remains outside of Cuba for more than 24 months, Cuba will effectively strip that person of their citizenship and not allow re-entry since that person would be considered an émigré and a traitor.1

48.     Whilst Mr Perera may have the ability to reapply for residence rights in Cuba through making an application at the consulate in Australia.2 In doing so, the length of his absence and the reasons for his return will be scrutinised.3 Given that it will be immediately clear that the reason for any application is a result of his attempted involuntary return as a result of a serious conviction, it is likely his application will be denied.

49.     As set out above, the effect of Mr Perera’s de facto statelessness under direction 79 is that he will indefinitely detained. Indefinite detention will almost certainly be an interstate facility and so will result in the indefinite physical separation from Mr Perera’s fiancé, mother and step-father who are all Australian citizenships [sic]. As set out in the attached statutory declarations, this will cause serious harm and significant hardship to all parties.

18    Footnote 1 to paragraph 47 referenced a document titled “Canada: Immigration and Refugee Board of Canada, Cuba: Treatment by authorities of failed asylum seekers that have returned to Cuba, including the treatment of family members that remained in Cuba, 19 February 2013” and stated that the document was available at the following hyperlink: https://www.refworld.org/docid/5152b0a82.html. I will refer to that document as the “Canadian document”.

19    Footnotes 2 and 3 to paragraph 48 referenced a document titled “Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Cuba: Travel Regulations and Civil and Political Rights, COI Compilation, August 2017” and stated that the document was available at the following hyperlink: https://www.refworld.org/docid/59a689634.html. I will refer to that document as the “ACCORD document”.

20    Each of the foregoing documents were adduced in evidence by the Minister as annexures to Mr Gerrard’s affidavit.

21    The fourth representation concerned the likelihood that Cuba would imprison Mr Perera on various bases and was expressed as follows:

Claim – Unlawful deprivation of liberty for ‘pre-criminality’

50.     We contend that if Mr Perara is to be removed he will be detained in breach of international law based on laws surrounding ‘pre-criminality’.

51.     Given Mr Perera’s return to Cuba can only occur if he is to apply for re-entry, which will require disclosure of his conviction history due to the involuntary nature of his removal, the Cuban authorities will be aware of the nature of his convictions and that he has been deemed by Australia to pose an unacceptable risk to the community.

52.     As set out in the 2018 US State department report on Human Rights in Cuba, Cuban law allows for the imprisonment of those deemed to be risked [sic] to the community:

52.1.     The law allows a maximum four-year preventive detention of individuals not charged with an actual crime, with a subjective determination of “pre-criminal dangerousness,” defined as the “special proclivity of a person to commit crimes, demonstrated by conduct in manifest contradiction of socialist norms.” Mostly used as a tool to control “antisocial” behaviors, such as substance abuse or prostitution, authorities also used such detention to silence peaceful political opponents. Multiple domestic human rights organizations published lists of persons they considered political prisoners; individuals appearing on these lists remained imprisoned under the “pre-criminal dangerousness” provision of the law.4

53.     A paper by the Amnesty International highlights the growing fear of people returning to their own country (Cuba) as they believed they would be at a risk of detention.5

Claim – prison conditions

54.     Once detained, Mr Perera will face serious harm in the form of torture, beatings, and inhumane conditions: Institute for War and Peace Reporting, Tough Times in Cuba's Prisons, 20 October 2015, available at: https://www.refworld.org/docid/562896264.html [accessed 13 January 2020]

22    It is unnecessary to refer to the documents reference at footnote 4 to paragraph 52 and footnote 5 to paragraph 53.

The Minister’s Decision

23    On 9 November 2020, the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant's visa. Two sections of the Minister’s reasons for decision are relevant to the grounds of review.

24    The first section concerned the applicant’s claims that he would not be permitted to re-enter Cuba and that cancellation of his visa would effectively render him stateless. The Minister’s consideration of that issue was expressed as follows:

Statelessness claims

Claims of denial of entry, de facto statelessness and indefinite detention

44.     As part of the representations made by, or on behalf of Mr PERERA seeking revocation of the original decision, it is claimed that:

•    Mr PERERA fears he will be denied citizenship and re-entry into Cuba based on citizenship laws that take into account foreign convictions, significant periods of absence from Cuba and lack of current ties in Cuba. It is submitted that non-revocation would therefore render him stateless and subject to indefinite detention, and he would be physically separated from his fiancée and family, who are all Australian citizens.

•    In support of the above submission, Mr PERERA's representative cites Canada: Immigration and Refugee Board of Canada, Cuba: Treatment by authorities of failed asylum seekers that have returned to Cuba, including the treatment of family members that remained in Cuba, 19 February 2013 and states that under Cuban law if a national remains outside Cuba for more than 24 months, Cuba will effectively strip that person of their citizenship and not allow re-entry since that person would be considered an emigre or a traitor.

•    Whilst Mr PERERA may be able to re-apply for residence rights in Cuba through the consulate in Australia, his length of absence and reasons for return to Cuba will be scrutinised. Given his involuntary return to Cuba would be due to a serious criminal conviction, it is submitted that it is likely that his application would be denied.

•    In a statutory declaration dated 13 January 2020, Mr PERERA's mother states that Mr PERERA would likely be refused entry to Cuba and cites an online source.

•    In her statutory declaration, Mr PERERA's mother states that she was refused entry to Cuba when she returned 10 years after arriving in Australia and after acquiring Australian citizenship. She states she had to obtain a Cuban passport in Mexico and apply for special permission to enter Cuba.

45.     Notwithstanding the above claims, I note that the information cited in support of the representations refers to asylum seekers and refugees, and that Mr PERERA arrived in Australia as the holder of a Class BC Subclass 100 Spouse visa, not as a refugee or asylum seeker.

46.     Further, in relation to Mr PERERA's mother's stated difficulty re-entering Cuba after she acquired Australian citizenship, whilst I acknowledge that Cuba does not accept dual citizenship, I also note that Mr PERERA is not an Australian citizen and there is no evidence before me to indicate that he has lost his Cuban citizenship or that he would not be permitted re-entry to Cuba.

47.     On the basis of the stated claims and lack of supporting information specific to Mr PERERA's circumstances, I do not find that Mr PERERA is stateless and cannot return to Cuba.

25    The second section concerned the applicant’s claims that he would suffer significant harm if returned to Cuba and was expressed as follows:

International non-refoulement obligations

48.     As part of his representations seeking revocation of the original decision to cancel his visa, Mr PERERA's and his representative's submissions include that he will face harm if returned to Cuba. In a submission dated 13 January 2020, Mr PERERA's representative makes the following submissions:

Claim - risk of detention by persons returning to Cuba

49.     Mr PERERA's representative submits that a paper by Amnesty International highlights the growing fear of people returning to their own country (Cuba) as they believed they would be at risk of detention. If detained Mr PERERA will be subject to horrific conditions and treatment that amounts to serious harm.

50.    I note that in relation to this claim that the information provided is general in nature and there is no information specific to Mr PERERA to enable me to determine whether he faces a real risk of the harm claimed in the nature of being detained upon return and being subject to serious harm as a result of the treatment and conditions of detention. I am therefore unable to make a finding on whether Mr PERERA would face the claimed harm. I therefore find that non-refoulement obligations are not engaged by this claim.

Claim - Unlawful deprivation of liberty for 'pre-criminality'

51.     Mr PERERA's representative further submits the following:

•    In the unlikely event that Mr PERERA is permitted re-entry to Cuba, he faces the real prospect of unlawful deprivation of his liberty for several years based on 'pre-criminality' laws. If he is removed, he will be detained in breach of international law based on laws surrounding 'pre-criminality'.

•    Further, that the Cuban authorities will be aware of Mr PERERA's convictions and that Australia assessed him to be a risk to the community, and the 2018 US State Department report on Human Rights in Cuba indicates that Cuban law allows for the imprisonment of persons deemed to be a risk to the community.

•    Mr PERERA's representative further cites the 2018 US State Department report and submits:

'As set out in the 2018 US State department report on Human Rights in Cuba, Cuban law allows for the imprisonment of those deemed to be risked to the community:

52.1. The law allows a maximum four-year preventive detention of individuals not charged with an actual crime, with a subjective determination of "pre-criminal dangerousness," defined as the "special proclivity of a person to commit crimes, demonstrated by conduct in manifest contradiction of socialist norms." Mostly used as a tool to control "antisocial" behaviors, such as substance abuse or prostitution, authorities also used such detention to silence peaceful political opponents. Multiple domestic human rights organizations published lists of persons they considered political prisoners; individuals appearing on these lists remained imprisoned under the "pre-criminal dangerousness" provision of the law.'

52.     Mr PERERA's mother cites a website and states that a person with her son's convictions could be charged with ‘“Pre-criminal Dangerousness" defined as a proclivity to commit crimes when an actual crime need to have occurred’ which attracts a punishment of at least four years in prison.

53.     Mr PERERA's representative further submits:

'36.1 An applicant's claims will not 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 s501CA of the Migration Act and the determination of a visa application under s65 of the Act: BCR16 v Minster for Immigration and Border Protection (2017) 248 FCR 456; Omar v Minister for Home Affairs [2019] FCA 729

36.2 It is incorrect to assume that the existents (sic) or otherwise of non-refoulement obligations would be considered in the event that the applicant made an application for a protection visa. That is not so, as the criteria for a protection visa under s36(2) substantially differ from, and do not reflect, Australia's non-refoulement obligations: Ibrahim v Minister for Home Affairs [2019] FCAFC 89

36.3 The Minister must give genuine consideration to matters raised by the applicant as potential consequences of not revoking the cancellation decision: Minister for Home Affairs v Omar [2019] FCAFC188

36.4 The delegate therefore must consider the claims raised by Mr Perera, and the issue of Australia's non-refoulement obligations must not be deferred'.

54.     In relation to the claim that on return to Cuba Mr PERERA faces the risk of being subjected to a Cuban law which allows for the imprisonment of those deemed to be a risk to the community, I accept that there is some risk of Mr PERERA being identified as a returning Cuban citizen with a criminal record. However, on the information before me I am not able to assess the likelihood of Mr PERERA being identified for such treatment under the law, or should he be subject to the stated law, what the outcome of any such risk assessment by the Cuban authorities would be.

55.     Also, I consider that there is not enough information for me to make a finding as to whether Mr PERERA faces the same risk as do other people in Cuba, or whether he would be specifically targeted, such that non-refoulement obligations are owed to him.

56.     I therefore find that there is insufficient information for me to determine whether non-refoulement obligations are engaged by this claim.

57.     While there is currently insufficient information for me to determine whether any non-refoulement obligation is owed to Mr PERERA on the ground claimed of the risk of him being deemed a community risk in Cuba and imprisoned, I note that he is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided for by the Act to enable Australia to meet its international non-refoulement obligations. In making such an application, Mr PERERA will be able to substantiate his claims in relation to any such obligations, and the duty to remove him under s198 of the Act will not apply while his visa application is being determined.

58.     In saying the above, I am mindful that consideration of whether Mr PERERA satisfies a Protection visa criterion under s36(2), should he apply for such a visa at a later time, cannot be regarded as a substitute for consideration of his non-refoulement claims in the present context. In this regard, I accept that case law indicates that the issue to be determined under s501CA(4) (that is, whether there is 'another reason' why a cancellation decision should be revoked) is less categorical than the issue of whether a person satisfies a relevant criterion under s36(2), and that the material or representations advanced in support of a claim in the context of s501CA are not required to meet predetermined benchmarks. Furthermore, I am mindful that Australia's international non-refoulement obligations may not be fully encompassed by the visa criteria in s36(2). Nevertheless, Mr PERERA's claims, once substantiated, will be conclusively assessed in the context of any application for a Protection visa to the extent that those claims are relevant to the criteria for visa grant.

59.     Should Mr PERERA choose to apply for a Protection visa, I expect that his application will be processed according to the Department's normal practice. Relevantly, 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 provisions that could result in the Protection visa being refused, 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 other relevant matters.

60.     I have also considered and taken into account the possibility that it may be the case that a Minister at that time personally considers Mr PERERA'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 Mr PERERA. 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.

61.     I nevertheless acknowledge the slight possibility that Mr PERERA's claims regarding non-refoulement obligations may not be considered, even if he applies for a Protection visa.

62.     Further, I am aware that even if the process set out in Direction 75 is followed, that does not mean Mr PERERA will be granted a Protection visa as long as he is found to enliven a non-refoulement obligation that is reflected in the Protection visa criteria. I am cognisant of the possibility that, even if found to enliven such an obligation, Mr PERERA may be refused a Protection visa because he is excluded under other relevant provisions such as those relating to character. In the event that his Protection visa application is refused, the duty to remove him as soon as reasonably practicable will arise notwithstanding any non-refoulement obligation.

26    The applicant also placed reliance on paragraph 113 of the Minister’s reasons which was expressed as follows:

113.     I concluded that Mr PERERA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community and the expectations of the community, outweighed any other considerations as described above. These include his lengthy residence and ties, familial to Australia, and the hardship Mr PERERA, his family and social networks will endure in the event the original decision is not revoked, and the impediments he will face on a return to Cuba, also the risk of harm he may face on a return to Cuba considered under international non-refoulement obligations.

The First Ground of Review

27    The applicant’s first ground of review was expressed as follows:

1.    The Minister erred in law by:

a. failing to address the merits of the Applicant’s case; or

b. making a legally unreasonable or irrational decision;

by ignoring relevant material, or making a finding based on no evidence.

Particulars

1.1     The Applicant submitted he would be effectively stateless and denied re-entry into Cuba. The Applicant’s submission included and referred to a document published by the Canadian Immigration and Refugee Board of Canada titled Cuba: Treatment by authorities of failed asylum seekers that have returned to Cuba, including treatment of family members that remained in Cuba (2014 – 2016) (the Canadian document).

1.2     The Canadian document described Cuban policy towards citizens who had left the country and stated that the policy since 14 January 2013 allows Cubans to stay outside of Cuba for “up to two years” without losing their rights as a citizen.

1.3     The Applicant left Cuba in 1996 and has not returned to Cuba since that date.

1.4     The Minister noted the title of the Canadian document only related to asylum seekers and therefore did not apply to the Applicant.

1.5     The Minister found that there “is no evidence before” him to indicate that the Applicant has lost his Cuban citizenship or that he would not be permitted re-entry to Cuba, despite the content of the Canadian document.

Applicant’s submissions

28    The applicant’s submissions were consistent with the particulars stated above. The applicant submitted that he had referred to the Canadian document in support of his claim that he would not be permitted to re-enter Cuba because of the length of time that he had lived in Australia. The Minister disregarded the Canadian document on the basis that it related to returning refugees and asylum seekers and Mr Perera was not a refugee or asylum seeker. On that basis, the Minister concluded that there was no evidence before him to indicate that the applicant had lost his Cuban citizenship or that he would not be permitted re-entry into Cuba. However, an examination of the document shows that, while it does deal with the question of failed asylum seekers who return to Cuba, it purported to set out generally the law in relation to Cuban nationals who remain outside the country for periods of time. The document indicates that, until a recent change in Cuban migration law, it was an offence for a Cuban national to remain outside Cuba for more than 11 months, and persons who did so effectively lost their citizenship and they did not get their citizenship back if they returned involuntarily. Following the change in the law, the treatment of returning Cuban citizens depends on how long the person has been outside Cuba. If the Cuban citizen returned within 2 years and was allowed to be outside Cuba, they would not face any difficulties on returning (unless Cuban authorities learn that they were a failed asylum seeker). If the Cuban citizen returned after 2 years, they would be considered an “émigré and a traitor” and Cuba would not allow them to return.

29    The applicant argued that the Minister’s duty when making a decision under s 501CA(4) of the Act is to consider any significant and clearly expressed representations that have been advanced. The Minister is obliged to “engage in an active intellectual process with significant and clearly expressed representations” which are made in support of a revocation request: Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at [37]. The obligation to consider a representation extends to significant matters which are those which may “with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation”: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane) at [68]. Not to deal with a claim raised by the evidence or representations which, if resolved in one way, would be dispositive of the application can constitute a failure of procedural fairness or a failure to conduct a review: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58].

30    The applicant submitted that the Minister, in failing to refer to, or take into account, the contents of the Canadian document in relation to loss of citizenship by Cuban citizens who had spent long periods of time outside Cuba, has failed to discharge his obligation to consider a representation which related to a significant matter.

31    In oral submissions, the applicant also submitted that the Minister had failed to take into account the ACCORD document, which provided evidence in support of the applicant’s claim. That failure compounded the Minister’s failure to consider properly the applicant’s claim.

The Minister’s submissions

32    The Minister submitted that it is apparent from his statement of reasons for decision that he did not ignore the applicant’s claims and submissions concerning the likelihood of denial of re-entry to Cuba, de facto statelessness and indefinite detention based on the Canadian document, The Minister accurately recorded the applicant’s claims at paragraphs 44 to 46 of the statement of reasons. The Minister also made reference to the applicant’s submissions concerning Cuban law at paragraph 47 and to the Canadian document, and also referred to the applicant’s submission in which the ACCORD document was referenced.

33    The Minister submitted that paragraphs 45 and 46 of his statement of reasons must be read in light of the brevity of the Canadian document and that the information in it dates to 14 February 2013, and also having regard to the information in the much more substantial and more recent ACCORD document. The Minister submitted that:

The fact that a Cuban citizen has been outside the country for more than 24 months does not necessarily mean that Cuba “will effectively strip that person of their citizenship and not allow re-entry”. As the ACCORD article makes clear, a person who has been granted residence abroad is legally permitted to remain abroad indefinitely…

34    The Minister argued that the ACCORD document, under the heading “1.4 Authorisation to reside abroad for longer than 24 months”, referred to two options to legally prolong a person’s stay abroad: one being the extension of the 2 year period and the other being an application for residence abroad as provided by Article 40 of Decree No. 26, 1978, republished 18 December 2015. Residence abroad can be granted to the holder of an ordinary passport “if they need to reside outside the country indefinitely to maintain a marital union, formalised or not, with foreign citizens or for other exceptional family and humanitarian situations”. Residence abroad can also be granted to parents and minor children of those who possess this category to travel.

35    The Minister argued that, in the present case, the applicant and his mother left Cuba and arrived in Australia as the holders of Class BC Subclass 100 Spouse visas, and his mother therefore left Cuba to maintain a marital union with a foreign citizen. Accordingly, it is a reasonable inference that the applicant’s mother would have been granted residence abroad to enable the applicant’s mother to live in Australia with her Australian spouse, and the applicant would also have been granted residence abroad as a minor. The Minister further submitted that this is confirmed by the applicant subsequently being granted a Cuban passport on 9 August 2010. The applicant had then been absent from Cuba for approximately 13 ½ years and, if the previous Cuban migration law (preventing re-entry after 11 months’ absence from Cuba) had applied to him, he would not have been granted a passport.

36    On that basis, the Minister submitted that there was no error in concluding (at paragraph 46 of the statement of reasons) that there was no evidence before the Minister to indicate that the applicant had lost his Cuban citizenship or that he would not be permitted re-entry to Cuba because he had been outside Cuba for more than 24 months.

37    Finally, the Minister submitted that, even if the Minister had erred in the manner asserted, the error was not material (and therefore not jurisdictional): Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [38], [44] and [45] per Bell Gageler and Keane JJ. In light of the information contained in the ACCORD document, the entry of the applicant and his mother into Australia on 23 January 1997 on Class BC Subclass 100 Spouse visas, and the grant of a Cuban passport to the applicant in 2010, the Court should conclude that the absence of such an error could not realistically have resulted in the Minister making a different decision.

Consideration

38    There was no dispute as to the applicable legal principles. In making a decision under s 501CA(4) whether to revoke the mandatory cancellation of a visa, the Minister is required to consider representations that may afford “another reason” to revoke the cancellation. In Omar (at [34(i)]), the Full Court approved the following statements of Colvin J in Viane:

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.

39    After referring to Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, the Full Court in Omar observed (at [36(d)] and [41]):

For the reasons given above, 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. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

and

The 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 (see Viane at [28]-[30] per Rangiah J and at [67] per Colvin J and Ezegbe at [37] per Perram J).

40    In my view, the Minister’s statement of reasons reveals clearly that the Minister failed to consider, in the relevant legal sense, a substantial claim raised in representations made on behalf of the applicant, that Cuba would be likely to deny re-entry to the applicant which would render the applicant effectively stateless.

41    At paragraph 44, the Minister accurately records the applicant’s representations. However, at paragraph 45, the Minister dismisses the relevance of the Canadian document on the basis that it only related to refugees and asylum seekers. I infer that the Minister formed that conclusion from the title to the document, without considering the content of the document (even though the document was only one page in length). The content of the document refers to Cuban migration law generally, not merely the law relating to returning refugees or asylum seekers. The Minister therefore failed to engage intellectually with the evidence advanced by the applicant in support of his representation. At paragraph 46, the Minister concluded that “there is no evidence before me to indicate that [the applicant] has lost his Cuban citizenship or that [the applicant] would not be permitted re-entry to Cuba”. That conclusion appears to have been reached on the mistaken view that the Canadian document only related to refugees and asylum seekers and in ignorance of the ACCORD document. I infer from the absence of any reference in the statement of reasons to the ACCORD document that the Minister did not have regard to it.

42    The ACCORD document is dated August 2017 and was authored by the Austrian Red Cross and the Austrian Centre for Country of Origin & Asylum Research and Documentation. The document states that that Centre is co-funded by the Asylum, Migration and Integration Fund, UNHCR and the Ministry of the Interior, Austria. It is a substantial document of about 200 pages, although only the first 50 pages were adduced in evidence.

43    Section 1.3 of the ACCORD document is titled “Consequences following the return to Cuba of emigrated citizens or citizens having left by irregular means”. It is a detailed discussion of Cuban law as it affects Cuban citizens who have lived outside Cuba for more than 2 years, including extracts of text books addressing that topic. The document indicates the following:

(a)    Cuban citizens who remain outside Cuba for more than 2 years do not lose their citizenship, but they face restrictions on their right to re-enter Cuba. Their rights to re-enter Cuba depend on their status as “emigrated” or “resident abroad”.

(b)    Cubans are considered “emigrated” when they have stayed outside the country for more than 2 years without authorisation. Property belonging to persons who have received the status of “emigrated” is expropriated by the Cuban state. A Cuban citizen can seek approval to stay abroad for a period exceeding the permitted 2 years at a Cuban consular office in the overseas country and either apply for an extension of the 2 year period (due to "urgent reasons") or to be recognised as a "resident abroad”. A citizen who is considered “emigrated” may apply to change their status to “resident abroad”.

(c)    Article 47 of Decree No. 26 (Cuba) stipulates that:

(i)    emigrated Cuban nationals are allowed visits to Cuba of up to 90 days;

(ii)    Cuban nationals who are residents abroad are allowed visits to Cuba of up to 180 days; and

(iii)    in both cases, the immigration authority may extend the term when appropriate.

(d)    Cuban citizens with a valid passport, but who are considered “emigrants”, must apply to have their passport “authorised” in order to be granted a visa to enter and remain in Cuba for 90 days.

(e)    Article 48 of Decree No. 26 (Cuba) stipulates that “emigrated” Cuban nationals who wish to take up residence in Cuba have to submit an application at a diplomatic or consular representation abroad or at the relevant department of the Ministry of Interior during their visit to Cuba. The procedure for a Cuban emigrant to re-apply for residence in Cuba is laid out in Resolution No. 44 of the Ministry of Interior from October 2012, effective as of January 2013, stipulating that a Cuban émigré applying in Cuban Consulates abroad or at the Ministry of the Interior must submit a request and a valid passport. Furthermore, they have to indicate a reference person in Cuba who is committed to guarantee accommodation and financial support. The applicant must provide information about the route used for migration and the reasons for requesting residence in Cuba.

44    It follows that the ACCORD document provides strong support for the applicant’s representations concerning the likelihood of being denied re-entry to Cuba.

45    As noted earlier, the Minister submitted that his conclusions with respect to this aspect of the applicant’s claims were not affected by error because (i) section 1.4 of the ACCORD document indicates that there are two options for a Cuban citizen to legally prolong their stay abroad; and (ii) it is a reasonable inference that the applicant’s mother would have been granted residence abroad to enable the applicant’s mother to live in Australia with her Australian spouse, and the applicant would also have been granted residence abroad as a minor; and (iii) this is confirmed by the fact that the applicant was granted a Cuban passport on 9 August 2010, some 13 ½ years after leaving Cuba.

46    There are two difficulties with the Minister’s submissions. First, the Minister’s statement of reasons contains no reference to the ACCORD document or the above reasoning. It is clear that the above reasoning formed no part of the Minister’s consideration of the applicant’s representations. Rather, the Minister mistakenly believed that the Canadian document only related to refugees and asylum seekers, overlooked the ACCORD document, and wrongly concluded that there was no evidence to support the applicant’s representations. Second, and in any event, the Minister’s submissions do not properly engage with the full implications of Cuban law as discussed in the ACCORD document. The fact that the applicant successfully obtained a Cuban passport in 2010 is largely irrelevant, because the effect of the Cuban law is to restrict re-entry to Cuba by citizens (including passport holders). A Cuban citizen must apply at the Cuban Consular office to be approved as a “resident abroad”, and there was no evidence that that had occurred. Even if the applicant and her mother were approved as “residents abroad”, rights of re-entry were still restricted. To return to live in Cuba, the applicant is required to apply for residence and identify a person in Cuba who will guarantee accommodation and financial support. None of those matters was considered by the Minister.

47    In those circumstances, I find that the Minister failed to consider, in the relevant legal sense, a substantial claim raised in representations made on behalf of the applicant, that Cuba would be likely to deny re-entry to the applicant which would render the applicant effectively stateless. In those circumstances, the consequence of refusing to revoke the visa cancellation might result in the applicant being in indefinite detention. The representation raised a significant issue the acceptance of which could constitute “another reason” for revoking the visa cancellation. It also follows that I do not accept the Minister’s submission that any such error by the Minister was not material (and therefore not jurisdictional). For the reasons explained, the Minister’s submission on the question of materiality were based on an incomplete understanding of what was conveyed by the ACCORD document about Cuban migration law. In my view, the failure by the Minister to consider, in the relevant legal sense, the applicant’s representations concerning his potential inability to re-enter Cuba deprived the applicant of the possibility of a successful outcome on his application. The Minister’s failure to consider the representations therefore constituted jurisdictional error.

The third ground of review

48    The applicant’s third ground of review was expressed as follows:

3.    The Minister failed to give proper, genuine and realistic consideration to:

  a.     Australia’s non-refoulement obligations owed to the Applicant; and

b.     the real possibility that, as a consequence of cancelling his visa, the Applicant would be held in detention indefinitely.

Applicant’s submissions

49    In his submissions, the applicant made the concession that the Minister indicated in the statement of reasons that he was not satisfied, on the material before him, that the applicant would face the risk of significant harm if returned to Cuba. As discussed below, the Minister did not state that expressly; rather, the Minister stated that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm. Nevertheless, in the present case the concession was correct by implication. The applicant did not challenge that implicit finding by the Minister. The applicant submitted, though, that at paragraph 113 of the statement of reasons the Minister weighed, and thereby gave credence to, the risk of harm the applicant may face on a return to Cuba. On that basis, the applicant submitted that the Minister recognised the possibility that the applicant may be a person in respect of whom Australia owes international non-refoulement obligations.

50    The applicant submitted that Direction 79 (issued under s 499 of the Act) expressly requires a decision-maker to ensure that Australia will not remove a non-citizen to a country in respect of which non-refoulement obligation exists. In that respect, the applicant referred to paragraph 14.1(6) of Direction 79 where it states:

Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations…if the person’s visa remains cancelled, they would face the prospect of indefinite immigration detention.

51    The applicant contended that he had advanced a representation to the Minister that the practical consequence would be that, if the cancellation of his visa is not revoked, and if he is unsuccessful in his application for a protection visa, then, unless he applied to a Court to compel his removal under s198 of the Act, his detention would be indefinite.

52    The applicant acknowledged that, in the Minister’s statement of reasons, the Minister concluded that (if a protection visa were to be refused) non-refoulement obligations would not prevent the applicant being removed from Australia. The applicant argued that the Minister failed to consider how long it would take for the applicant to be removed (and thereby endure detention) and also failed to consider whether removal in breach of Australia’s non-refoulement obligations was in the national interest.

The Minister’s submissions

53    The Minister submitted that he gave proper consideration to the applicant’s claims that the applicant faced the risk of significant harm on removal to Cuba and that it was open for the Minister to conclude, on the information before him, that he was not able to assess the likelihood of the applicant experiencing significant harm (being detention under Cuban law).

54    The Minister further submitted that he gave proper consideration to the applicant’s claims concerning the possibility of indefinite detention. However, the possibility of indefinite immigration detention as a result of the operation of Direction 79 could only arise if there is a finding that non-refoulement obligations are owed by Australia to the unlawful non-citizen in respect of Cuba. No such finding was made by the Minister.

Consideration

55    In respect of the applicant’s claims that he was at risk of significant harm if removed to Cuba, the Minister concluded that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm (at paragraphs 50, 54, 55, 56 and 57). That is an unfortunate choice of words. As observed by the Full Court in Omar (at [34]), s 501G of the Act requires the Minister to give the applicant a written notice that sets out the decision and the reasons for the decision) and s 25D of the Acts Interpretation Act 1901 (Cth) requires the Minister to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. As the Minister is required to make a decision under s 501C, and must do so having considered the representations made by the applicant, it follows that the Minister must make findings or reach a conclusion with respect to any material matter raised by the representations. The Full Court observed (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 (Ezegbe) at [32]-[36] per Perram J).

56    In that context, the Minister’s statement that he was “unable to make a finding about” a matter might be understood as a failure to perform the statutory task. The Minister is required to make a finding. If the Minister is satisfied on the material presented that a relevant claim is made out to a required level of certainty, the Minister must make a positive finding to that effect. If the Minister is not so satisfied, the Minister must make a negative finding. It is not open to the Minister to avoid making a finding using phraseology such as “unable to make a finding”.

57    Nevertheless, reading the statement of reasons fairly, I am prepared to accept that the Minister’s statements to the effect that he was “unable to make a finding about” or was “unable to assess the likelihood of” the applicant facing the claimed harm should be understood as a statement that the Minister was not satisfied, on the material before him, that the applicant faced a real risk of the claimed harm if removed to Cuba. As such, the Minister made a finding about the risk of harm as required by the statutory task. While the Minister noted that the applicant could pursue his claims further by making an application for a protection visa (at paragraphs 58 to 62), that aspect of the Minister’s statement of reasons cannot be read as a finding that such claims were likely to be sustained. Similarly, while the Minister referred to the “risk of harm [the applicant] may face on a return to Cuba considered under international non-refoulement obligations” in summarising the Minister’s conclusions (at paragraph 113), that language is not a finding that Australia’s non-refoulement obligations are engaged, or are likely to be engaged, in respect of the applicant. In context, that language refers to the possible risk of harm which, on the material before the Minister, did not rise to the level of risk that would engage Australia’s non-refoulement obligations. Accordingly, on the findings made by the Minister, non-refoulement obligations did not arise.

58    It follows that, on the Minister’s findings, the prospect of the applicant being indefinitely detained by reason of the policy reflected in Direction 79 in respect of Australia’s non-refoulement obligations did not arise. On that basis, I reject ground 3.

59    It follows that it is unnecessary to consider the authorities that have looked at the interrelationship between the policy stated in Direction 79 in respect of Australia’s non-refoulement obligations and the legal effect of ss 197C and 198 of the Act. Those authorities were comprehensively reviewed in the recent decision of the Full Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (which was delivered after the conclusion of argument in this case). It is also unnecessary to consider the implications of the Minister’s statement (at paragraph 62 of the statement of reasons) that:

In the event that [the applicant’s] Protection visa application is refused, the duty to remove him as soon as reasonably practicable will arise notwithstanding any non-refoulement obligation.

60    In the present matter, it was unnecessary for the Minister to address that statement and whether it meant that, in the future, the executive would no longer abide by the policy (reflected in Direction 79) that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations. The Minister’s statement is somewhat difficult to reconcile with the submissions advanced by the Minister in WKMZ (and other authorities referred to in WKMZ) which were premised on the executive continuing to adhere to a policy of not returning a person to their country of origin if to do so would be inconsistent with Australia’s international non-refoulement obligations (see WKMZ at [23]-[26] per Kenny and Mortimer JJ). Depending upon the policy adopted by the executive with respect to compliance with Australia’s international non-refoulement obligations, the indefinite (uncertain in duration) detention of a non-citizen remains a possibility notwithstanding ss 197C and 198 of the Act. As Kenny and Mortimer JJ explained in WKMZ (at [136]):

No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy concerning non-refoulement that reflects Australia’s international obligations, indeed it would be remarkable if that were to be suggested. As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”. A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38]-[41], followed in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [30].

61    In the present case, however, it was unnecessary for the Minister to weigh the prospect of the applicant being indefinitely detained by reason of Australia’s non-refoulement obligations because the Minister was not satisfied that such obligations were engaged in respect of the applicant.

Relief

62    In conclusion, I uphold ground 1 of the applicant’s originating application but dismiss ground 3. I will issue a writ of certiorari quashing the decision of the Minister and a writ of mandamus requiring the Minister to re-determine the matter in accordance with law. I will also order costs in favour of the applicant.

Associate:

Dated:    22 April 2021