Federal Court of Australia

BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 573

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, taxed if not agreed.

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

REASONS FOR JUDGMENT

NICHOLAS J:

Introduction

1    Before me is an application for review of a migration decision made by the second respondent (“the Tribunal”) on 8 December 2020 affirming a decision of a Delegate of the first respondent (“the Minister”) of 15 September 2020 not to revoke a decision to cancel the applicant’s visa made under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

2    A copy of the Tribunal’s Reasons for Decision (“Reasons”) is annexed to an affidavit made by Mr Nikjoo, who was the lawyer who appeared for the applicant before the Tribunal and who acted for him in this proceeding until a Notice of Ceasing to Act was filed approximately one week before the hearing. The applicant was not represented at the hearing of the application but was assisted by an Arabic interpreter.

3    The applicant is a 30 year old citizen of Iraq who arrived in Australia on 23 February 2010 after being granted a Class XB Subclass 200 Refugee visa (“the Visa”) in the previous year. The applicant and his family left Iraq when he was 10 or 11 years old due to religious discrimination and oppression and spent several years thereafter in refugee camps in Syria.

The Tribunal’s Decision

4    The Tribunal’s Reasons set out the details of the applicant’s criminal record in Australia. It was not disputed that the applicant did not pass the character test because of his “substantial criminal record” as defined in s 501(7) of the Act.

5    In 2014 the applicant was sentenced to 16 months’ imprisonment for one count of assault occasioning actual bodily harm in the company of others and three months’ imprisonment for one count of destroy or damage property. These sentences were subsequently varied to a 16 month intensive correction order and a good behaviour bond respectively allowing the applicant to serve his sentence in the community.

6    In 2019 the applicant was convicted of two counts of assault, three counts of stalk/intimidate and one count of destroy or damage property for which he was sentenced to an aggregate 18 month custodial sentence.

7    On 14 February 2019 a Delegate of the Minister cancelled the applicant’s Visa under s 501(3A) of the Act. On 12 March 2019 the applicant requested revocation of the Visa cancellation. On 14 September 2020 a Delegate of the Minister decided not to revoke the cancellation of the Visa.

8    The applicant then applied to the Tribunal for a review of the Delegate’s decision under s 500(1)(ba) of the Act. The Tribunal conducted a hearing on 23 and 25 November 2020 at which the applicant was legally represented.

9    The Tribunal found that the applicant’s criminal offending was “violent and repetitive and occurred in a domestic context on two occasions” and that the “frequency and cumulative effect of the Applicant’s repeated offending increases its severity”: Reasons [96].

10    The Tribunal referenced the relevant legislative provisions contained in ss 501(3A), 501(6)(a) and 501(7)(c) of the Act. The Tribunal noted that the application before it was for the review of the decision made by the Delegate under s 501CA not to revoke the decision to cancel the applicant’s visa.

11    The Tribunal referred to Ministerial Direction 79 (“Direction 79”) which it noted it was required to have regard to by operation of s 499(2A) of the Act. In its Reasons the Tribunal referred to Direction 79 in detail identifying the primary and other considerations to be taken into account.

12    The Tribunal noted that the issues for determination in the review were whether the applicant passes the character test and, if not, whether there is “another reason” why the decision to cancel the Visa should be revoked. The Tribunal noted (correctly) that if the applicant succeeded on either ground it must find that the decision to cancel the Visa should be revoked.

13    In reviewing the applicant’s circumstances the Tribunal noted the following. The applicant was born in Bagdad, Iraq, in October 1990, he is one of four children, and his family are members of the Sabian Mandaean Christian minority. He attended school in Iraq until Year 7 but left with his family when he was 10 or 11 years old due to them experiencing religious discrimination and oppression. The applicant and his family fled to Syria where they remained in refugee camps for seven years. They applied to the United Nations for Refugee visas and were approved to be re-settled in Australia. The applicant arrived in Sydney as a holder of the Visa in February 2010 at which time he was 20 years’ old.

14    The applicant’s criminal history in Australia is summarised in a table included in the Tribunal’s reasons. The Tribunal’s reasons include a detailed discussion of the applicant’s 2014 and 2019 convictions detailing the offences for which the applicant was convicted, the sentences imposed and the sentencing remarks of the respective Magistrate and Acting District Court Judge.

15    The Tribunal noted that the applicant agreed in his oral evidence that he had committed a violent offence in 2014. With regard to the 2019 convictions, the applicant also agreed that he kicked the victim repeatedly while he was on the ground and later went to the victim’s home and used a knife to stab through fly screens and made threats to the occupants who included a woman and two children. Although he denied he committed a violent offence against the woman and the children, he agreed that the incident was related to a domestic dispute.

16    The Tribunal also noted in some detail evidence which it appears to have accepted in relation to the applicant’s mental health and psychological assessments and treatment he had received. The most recent psychological assessment confirmed, consistent with prior diagnoses, that the applicant continued to meet the criteria for post-traumatic stress disorder. The psychologist recommended that the applicant consider continuous treatment for his symptoms.

17    The Tribunal’s reasons also include a discussion of the applicant’s evidence as to his remorsefulness for his offending and for the harm he caused, his behaviour in prison, the risk of him re-offending and his plans for the future. The Tribunal also noted that the applicant’s mother, father, sister and two brothers live in Australia and resided at the family home in Sydney. His extended family in Australia includes 20 aunts and uncles, 35 cousins and three grandparents.

18    The Tribunal also noted that the applicant is a member of the Sabian Mandaean Community and Religious Association. It referred to written submissions made on his behalf that claimed if he were to return to Iraq he would be without family support, unable to support himself, unable to obtain any reliable treatment for his mental illness and exposed to the risk of imminent harm and death. The applicant also claimed to have a fear of persecution due to his religious beliefs.

19    Evidence was given to the Tribunal by the applicant’s father, mother, sister and a Minister of the Mandaean Church who had known the applicant for three years.

20    Having discussed the evidence the Tribunal then addressed the two questions it had previously identified as relevant. The first was whether the applicant passed the character test. The Tribunal was satisfied that the applicant did not pass the character test because he had a substantial criminal record as defined in s 501(7)(c) of the Act. It was also satisfied, for the purposes of s 501(3A)(b) of the Act, that the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of New South Wales. In those circumstances, the question for the Tribunal was whether there was “another reason” why the decision to cancel the applicant’s visa should be revoked: see s 501CA(4)(b)(ii).

21    The Tribunal then turned to consider the primary considerations identified in Direction 79. In relation to the protection of the Australian community, the Tribunal found that the applicant’s criminal offending had been repetitive and violent, and that his victims included a woman and children. It found that the seriousness of the applicant’s criminal offending weighed against the exercise of the discretion to revoke the decision to cancel the Visa.

22    With regard to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal found that the likelihood of the applicant engaging in further criminal or serious conduct was low to moderate, but that this level of risk was unacceptable given the nature of the harm he may cause to his victims if he were to re-offend.

23    The Tribunal then turned to consider the best interests of minor children in Australia affected by the decision. It noted that the applicant did not have any children of his own and there was no evidence before the Tribunal that any minor children would be affected by his removal from Australia.

24    The Tribunal then considered the expectations of the Australian community. When assessing this consideration it had regard to the consequences of the non-revocation of the relevant decision on the applicant’s family, some of whom were Australian permanent residents or citizens. The Tribunal also had regard to the applicant’s contribution to the Australian community during his period of residency, his work history and his plans to establish his own business. It noted that the applicant had contributed to the Australian economy and paid taxes. Given the nature of the applicant’s criminal offending, however, the Tribunal found that the expectations of the Australian community weighed against revocation of the decision to cancel the applicant’s visa.

25    The Tribunal then turned to the other considerations that it was required to take into account. The Tribunal set out in its Reasons para 14.1 of Direction 79 concerning Australia’s international non-refoulement obligations. Paragraph 14.1 states:

14.1 International non-refoulement obligations

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

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

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

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

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

26    The Tribunal referred to a number of Full Court decisions including Ali v Minister for Home Affairs (2020) 380 ALR 393 in which, as the Tribunal correctly noted, the Full Court found that it was not open to the Assistant Minister to defer consideration of whether non-refoulement obligations are owed until an application for a protection visa is lodged and that the failure to take into account representations as to the existence of a non-refoulement obligation may amount to a jurisdictional error.

27    The Tribunal found that it was open to the applicant to make an application for a protection visa. However, it also said that it was required to consider whether Australia owes non-refoulement obligations to the applicant.

28    The Tribunal summarised the applicant’s representation to the effect that he would be the subject of serious harm if he were returned to Iraq. The applicant claimed that he was at risk of serious harm if returned to Iraq because he was a member of the Sabian Mandaean minority, that the risk of harm he would face if he were returned to Iraq was very high, and that non-revocation of the decision to cancel the Visa “would lead to either refoulement or the prospect of indefinite immigration detention”.

29    Having outlined those claims, the Tribunal then referred to relevant country information. The country information included travel advice and a country information report published by the Department of Foreign Affairs and Trade. The report discussed the discrimination of Sabian Mandaeans in Iraq and the risk of violence they face.

30    The Tribunal found that the applicant was owed non-refoulement obligations by Australia. In particular, it was satisfied that there was a real chance of the applicant being persecuted or a real risk of him suffering serious harm due to his religious beliefs as a member of the Sabian Mandaean faith if he was returned to Iraq.

31    The Tribunal then referred to ss 198 and 197C of the Act as they stood prior to the amendments made by the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) which received royal assent on 24 May 2021. Section 198 relevantly provided that an officer must remove as soon as is reasonably practicable an unlawful non-citizen if a Delegate of the Minister has cancelled a visa of the non-citizen holder under s 501(3A) and the Minister has decided not to revoke the Delegate’s decision. Section 198(5) relevantly provided that an officer must not remove an unlawful citizen if the non-citizen has made a valid application for a protection visa and either the grant of the visa has not been refused or the application has not been finally determined. Section 197C of the Act relevantly provided that for the purposes of s 198, it is irrelevant whether Australia owed non-refoulement obligations to an unlawful non-citizen.

32    The Tribunal referred to the decision of Snaden J in DFTD v Minister for Home Affairs [2020] FCA 859 at [40]-[42]. The Tribunal later said at [136]-[143]:

136.    In this case, as was the relevant situation in DFTD, the Applicant can apply for a protection visa in circumstances in which the cancellation of the visa is not revoked by the Tribunal. Sections 48A and 501E of the Act do not prevent the Applicant from lodging an application for a protection visa.

137.    As it remains open for the Applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation do not necessarily include his removal from Australia or indefinite detention: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105, [70].

138.    The Applicant’s circumstances are distinguishable from those in XBYC and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4426 (‘XBYC’), on which the Applicant relies. In XBYC, the applicant applied to the Tribunal for review of a decision not to revoke the mandatory cancellation of the applicant's protection visa. As his protection visa had been cancelled, he was ineligible to apply for a protection visa, unlike the Applicant in this matter.

139.    Accordingly, for the reasons stated above, the Tribunal finds that the legal consequences of the Applicant engaging Australia’s non-refoulement obligations are not necessarily his removal from Australia in breach of those obligations, or indefinite detention.

140.    Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.

141.    The Respondent contends that if, as it has, the Tribunal finds that the Applicant is owed non-refoulement obligations, this consideration is outweighed by the seriousness of his offending and the expectations of the Australian community. As the Full Federal Court observed in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at [70], the Tribunal:

    may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[‘s] compliance with those obligations such that there is no 'other reason'.

142.    The Tribunal has in previous decisions concluded that the Primary considerations in the Direction outweigh findings that non-refoulement obligations are owed to an applicant. These findings have been upheld by the Federal Court on judicial review, even in light of Ali.

143.    For the reasons stated above, the Tribunal finds that this Other consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision, however it is not outweighed by the two relevant Primary considerations.

33    Accordingly, while the Tribunal found that the existence of non-refoulement obligations owed to the applicant weighed in favour of revocation, this did not outweigh consideration of the protection of the Australian community and the interests of the Australian community, both of which the Tribunal found weighed against revocation. The Tribunal therefore affirmed the Delegate’s decision to refuse to revoke the cancellation of the applicant’s Visa.

The application

34    The Originating Application in this proceeding was prepared by the lawyer who was then acting for the applicant and who (as previously discussed) withdrew from the proceeding the week prior to the hearing. No written submissions were filed on behalf of the applicant. Nor did the applicant advance any oral arguments (save for remarks directed to the merits of his situation) in support of his application for review.

35    The grounds of review as they appear in the Originating Application are as follows:

1.    The Second Respondent (Tribunal) failed to give proper, genuine and realistic consideration to the international non-refoulement obligations owed to the Applicant.

a.    The Tribunal found at paragraph 130 of its decision that international non-refoulement obligations were owed by Australia to the Applicant;

b.    The Tribunal found at paragraph 137 of its decision that the immediate consequences of non-revocation did not necessarily include non-refoulment because the Applicant could apply for a protection visa;

c.    The Tribunal was required to give proper, genuine and realistic consideration, in the sense of active intellectual engagement with, the Applicant’s case, including on its own findings the presence of non-refoulement obligations: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ;

d.    The decision of the Tribunal had the prima facie or possible effect that the Applicant would be removed from Australia and that the Applicant would, on character grounds, be refused a protection visa: compare FRH18 v Minister for Home Affairs [2018] FCA 1769 at [49]-[50], [52]-[53] per Rares J; Minister for Immigration v BFW20 [2020] FCAFC 121 per Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ.

e.    Such reasoning is borne out by the fact that the Tribunal in the present case gave some, but it is submitted insufficient, consideration to international non-refoulement obligations. The presence of such obligations would have no relevance whatsoever if it were determinative that those obligations could be considered in the context of an application for, and possibly lead to the grant of, a protection visa;

f.    The Tribunal was, therefore, required, for the purpose of active intellectual engagement with Australia’s international non-refoulement obligations to have regard to the circumstance that, in the event of the Applicant’s removal from Australia, Australia would be in breach of those obligations and that breach would damage Australia’s international reputation: CWY20 v Minister for Immigration [2020] FCA 1855 at [134]-[139];

g.    Doing so could realistically have altered the weight which the Tribunal accorded international non-refoulement obligations at paragraph 163 of its decision.

36    It seems to me that there are two substantive grounds raised by the applicant.

37    The first ground is that the Tribunal failed to give proper, genuine and realistic consideration to the non-refoulement obligations which it found to be owed to the applicant and that, for this purpose, it was not sufficient for the Tribunal to merely find that “… the immediate consequence of non-revocation did not necessarily include a non-refoulement because the applicant could apply for a protection visa” without acknowledging that the decision not to revoke the cancellation had the “prima facie or possibly effect” that the applicant would be refused a protection visa and removed from Australia (paras 1a, b, c, d, e and g). The second ground is that the Tribunal failed to give consideration to the potential damage to Australia’s international reputation in the event that the applicant was deported in breach of Australia’s non-refoulement obligations (paras 1f and g).

38    There are two further points to make before considering the applicant’s grounds of review. The first is that the applicant’s grounds do not suggest that the Tribunal’s finding that it was open to the applicant to apply for a protection visa was affected by error. The second is that the applicant’s grounds of review do not suggest that the Tribunal’s decision not to revoke the decision to cancel his Visa was legally unreasonable: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

Consideration

39    In Minister for Home Affairs v Omar (2019) 272 FCR 589 the Full Court said at [36]-[37]:

[36]    …

(d)    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).

[37]    … The following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] (with whom Markovic and Steward JJ agreed):

    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are 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. 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. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

40    It will be recalled that in summarising the applicant’s claims, the Tribunal noted that the applicant claimed that non-revocation of the decision to cancel the Visa would lead to either refoulement or the prospect of indefinite detention. The Tribunal addressed this claim in [137] of its Reasons where it found that it remains open to the applicant to apply for a protection visa and that, therefore, “… the immediate legal and factual consequences of non-revocation do not necessarily include his removal from Australia or indefinite detention”. In support of this finding the Tribunal cited the Full Court’s decision in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at [70].

41    When commenting specifically on what the Full Court said in AZAFQ at [70], Mortimer and Bromberg JJ in DQM18 v Minister for Home Affairs [2020] FCAFC 110 said at [107]:

It may be the case that legal and factual consequences in the situation of a particular individual will “not necessarily” involve removal or indefinite detention, because of the prospect of a successful visa application. It is important, with respect to the Full Court, to qualify the statement made by noting that it is only a successful visa application which is capable of avoiding removal or indefinite detention. The fact of a visa application itself is no more than a temporary delay to removal or in some limited circumstances a temporary reprieve from indefinite detention. The fact of a visa application may otherwise form part of a period of indefinite detention if a person is not released into the community on a bridging visa while the visa application is processed. For persons in the circumstances of the appellant (who has been found to present an unacceptable risk to the Australian community), it is likely he would be detained during any consideration of a visa application.

42    In that case their Honours later observed that the Assistant Minister who decided not to revoke a decision to cancel the appellant’s visa under s 501CA(4) was not “… entitled to ignore the realities of the appellant’s circumstances in the way he did”. Their Honours went on to say that the Assistant Minister was required to confront and deal in his reasons with the appellant’s contention that indefinite detention was the reality which confronted him in the event that he was denied a protection visa (which their Honours saw as the most likely outcome should the applicant apply for a protection visa). In MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 (“MNLR”) Wigney J considered the reasoning of Bromberg and Mortimer JJ in DQM18 which he described as compelling. His Honour said at [72]-[73]:

[72]    Despite the distinguishing features in DQM18, the reasoning of Bromberg and Mortimer JJ provides significant support for the appellant’s contention that the Tribunal erred in the way it considered his representation concerning the possibility of indefinite detention. In considering the legal consequences of a decision not to revoke the cancellation of the appellant’s visa, the Tribunal simply adverted to the fact that the appellant could apply for a protection visa and that the Minister could grant a visa under s 195A of the Act. The Tribunal did not, however, “grapple with the realities of the appellant’s situation”: cf DQM18 at [109]. Had it done so, it would most likely have concluded that the prospects of the appellant being granted either a protection visa or a visa under s 195A of the Act was “infinitesimal”, essentially for reasons that mirror those referred to by Bromberg and Mortimer JJ in DQM18. In short, having urged upon the Tribunal that the cancellation of the appellant’s visa on character grounds should not be revoked, including because he presented an unacceptable risk to the Australian community, it is hardly likely that the Minister would do a complete about-face and grant the appellant another visa, be it a protection visa or a visa under s 195A of the Act.

[73]    The Minister’s submission that the Tribunal was not required to consider and assess whether there was any prospect of the appellant being granted a protection visa, or a visa under s 195A of the Act, because that would amount to speculation about the future course of decision-making, was supported, to an extent, by the reasoning of Flick J in Ali. It should nonetheless be rejected. The reasoning of Bromberg and Mortimer JJ in DQM18 is, with respect, compelling and is to be preferred. The assessment of whether there was any realistic prospect of the appellant being granted such a visa in the future does not involve speculation. Rather, it involves a deduction or inference having regard to the undisputed or ineluctable circumstances; the reality of the position that the appellant was in. In contrast, the Minister’s submission in this case that a different decision-maker may take a different approach to any future protection visa application made by the appellant appeared to involve mere speculation or conjecture. It was not based on any undisputed or ineluctable facts.

43    It is apparent from this passage that Wigney J preferred the reasoning of Bromberg and Mortimer JJ in DQM18 to that of Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650. In that case Flick J referred to the possibility that the applicant, who failed to persuade the Assistant Minister to revoke a cancellation decision pursuant to s 501CA(4), may at some point in the future apply for a protection visa. Having referred to the difficulties that would confront the Minister in deciding whether such an application should be refused pursuant to ss 501(1) or 501(3) of the Act on character grounds or that the applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia, his Honour said at [33]:

But these are all decision to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

44    As is apparent from Wigney J’s reasons in MNLR, Flick J’s reasoning has been applied in a number of other cases. In particular, there have been a number of decisions in which the Court concluded that the decision-maker was not required to assess the prospects of an applicant being granted a protection visa were he or she to subsequently apply for one: see for example, KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069 at [22]-[23].

45    Ultimately, Wigney J was persuaded that the Tribunal failed to give proper consideration to the question of whether the appellant would be indefinitely detained were he not granted a protection visa. His Honour reasoned that the Tribunal did not “grapple with the realities of the appellant’s situation” and the unlikelihood that the appellant would ever be granted a protection visa. However, his Honour went on to find that the Tribunal’s failure to give proper consideration to that matter could not realistically have resulted in a different decision and, on that basis, did not constitute a jurisdictional error. This was because the Tribunal had concluded that the appellant would be returned to Iraq if he was not granted such a visa.

46    In the present case, the applicant is, as the Minister accepts, entitled to apply for a protection visa. The question raised in this proceeding is whether the Tribunal gave proper, genuine and realistic consideration to the appellant’s representations that non-revocation of the decision to cancel the Visa would lead to either refoulement or the prospect of indefinite detention because any application made by him for a protection visa would be refused on character grounds. This in turn raises the question whether it was sufficient for the Tribunal in the particular circumstances of this case merely to find that non-revocation of the decision to cancel the visa would not necessarily lead to his removal from Australia or indefinite detention and whether this aspect of the Tribunal’s reasoning required more than a determination of whether either of the postulated outcomes would “necessarily” eventuate.

47    It is useful at this point to refer to the submissions that were made to the Tribunal in relation to non-refoulement obligations. In a document submitted by the applicant’s then lawyers to the Tribunal dated 22 October 2020 reference was made to relevant parts of para 14.1 of Direction 79 with emphasis placed upon the statement appearing in the final sentence of cl 14.1(6). What the applicant was contending in this document is that he faced the real possibility of indefinite detention in the event that he was refused a protection visa. The submission went on to refer to s 197C of the Act and the possibility that were he not to be granted a protection visa, the applicant would either be returned to Iraq in breach of Australian’s non-refoulement obligations or, alternatively, be the subject of indefinite detention.

48    The Minister filed his own submissions in relation to the legal consequences of any decision not to revoke the cancellation of the applicant’s visa. The Minister said at [72]-[74] of his submission:

72.    Given that it remains open for the Applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation does not necessarily include removal from Australia or indefinite detention. In particular, the consequences of the Applicant engaging Australia’s non-refoulement obligations are not necessarily his removal from Australia in breach of those obligations, or indefinite detention.

73.    In any event, if the Tribunal finds that Australia’s non-refoulement obligations are engaged, the consideration is not determinative of the question the Tribunal needs to resolve for the purposes of the present proceedings. The Respondent notes that a Tribunal:

    may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[‘s] compliance with those obligations such that there is no ‘other reason’. [See Ali v Minister for Home Affairs (2020) 380 ALR 393 at [110] per Collier, Reeves and Derrington JJ.]

74.    The Respondent contends that such a finding is appropriate in the present circumstances. The Tribunal (differently constituted) has, on other occasions, reached the conclusion that the primary considerations in the Direction outweigh findings that non-refoulement obligations are owed. Such findings have not been found to be errors on judicial review, even in light of Ali.

(some footnotes omitted)

49    It appears the Tribunal requested that the Minister file supplementary submissions regarding the application of s 197C of the Act. Having set out ss 197C and 198 and a number of authorities applying those provisions, the Minister’s supplementary submission relevantly stated:

10.    Given that it remains open for the Applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation does not necessarily include removal from Australia or indefinite detention. In particular, the consequences of the Applicant engaging Australia’s non-refoulement obligations are not necessarily his removal from Australia in breach of those obligations, or indefinite detention. If the cancellation of the Applicant's visa is not revoked, subject to any application being made by the Applicant for a protection visa, the Applicant will be liable for removal from Australia as soon as reasonably practicable, in accordance with section 198 of the Migration Act. He will be detained until that removal can be effected.

50    A further supplementary submission was filed on behalf of the applicant. It reiterated that the applicant may be refused a protection visa on character grounds, and that if he was, then he faced the prospect of either his enforced return to Iraq in breach of Australia’s non-refoulement obligations or, alternatively, indefinite detention.

51    The Tribunal did not attempt to evaluate the likelihood of the applicant being returned to Iraq or, alternatively, being subjected to indefinite detention, beyond stating that, since he could apply for a protection visa, neither of those two outcomes would necessarily follow in the event that the cancellation decision was not revoked. In particular, the Tribunal did not attempt to evaluate the likelihood of the applicant being granted a protection visa.

52    The Tribunal did, however, find that the applicant was owed non-refoulement obligations. It found that while this consideration and a number of others weighed in favour of revocation of the decision to cancel the visa, the protection and expectations of the Australian community, weighed heavily against revocation. In the result, the Tribunal was not satisfied that there was another reason why the cancellation decision should be revoked.

53    It is clear that the Tribunal came to this conclusion despite the fact that it found the applicant is owed non-refoulement obligations and that there exists the possibility that he would be either forcibly returned to Iraq or subjected to indefinite detention should he not be granted a protection visa. That is, the Tribunal found, having weighed up the relevant considerations, that the cancellation decision should not be revoked even though that outcome may lead to the applicant being forcibly returned to Iraq in breach of Australia’s non-refoulement obligations.

54    As the Full Court observed in Ali v Minister for Home Affairs (2020) 380 ALR 393 (Collier, Reeves and Derrington JJ) at [110]:

… [O]n the current view as to the manner in which s 501CA(4) operates, the Minister may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia [sic] compliance with those obligations such that there is no “other reason”.

55    See also AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 at [20]-[25] per Besanko and Thawley JJ in which case the Minister was found to have understood that the consequence of his decision to refuse the appellant a protection visa was that the appellant would be removed from Australia in breach of Australia’s non-refoulement obligations.

56    In my opinion the Tribunal did not fail to give proper, genuine or realistic consideration to any non-refoulement obligations owed by Australia to the applicant. The matters that the Tribunal were required to consider included whether the applicant was owed non-refoulement obligations and what weight an affirmative answer to that question should be given in deciding whether there was “another reason” why the decision to cancel the Visa should be revoked. The Tribunal gave active and meaningful consideration to those matters. It accepted the applicant’s claim that he was owed such obligations, but reasoned that the possibility that the obligations might be breached, or that the applicant might be indefinitely detained until he could be returned to Iraq, were considerations weighing in favour of revocation but they were outweighed by other considerations.

57    The fact that the Tribunal did not attempt to assess the likelihood that an application for a protection visa by the applicant would be granted does not reveal any failure by the Tribunal to give proper consideration to the applicant’s claim that he would suffer serious harm if forcibly returned to Iraq or that he would be indefinitely detained if he was not. It accepted that these were possibilities but that they were not sufficient when considered with other relevant matters to weigh in favour of revocation of the decision to cancel his Visa. I therefore reject the first of the grounds relied upon by the applicant.

58    The second ground relied upon by the applicant must also be rejected. There was no submission put to the Tribunal by the applicant that it should have regard to Australia’s reputation or the possibility that Australia’s reputation may be damaged if the applicant were forcibly returned to Iraq. The reputation effects on Australia’s international standing in the event that it were to act against the applicant in breach of its non-refoulement obligations is not a matter that Direction 79 requires the Tribunal to consider nor was it a matter that the applicant raised in his submissions to the Tribunal: see MNLR at [163]-[170] per S C Derrington J with whom Perram J agreed at [1].

Disposition

59    In the result, the Originating Application must be dismissed. The applicant must pay the first respondent’s costs of the proceeding.

60    Orders accordingly.

Associate:

Dated:    2 June 2021