Federal Court of Australia
EXT20 v Minister for Home Affairs [2021] FCA 629
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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 27 October 2020 not to revoke the cancellation of the applicant’s visa.
2 The applicant was born in, and is a national of, the Democratic Republic of the Congo (DRC). He arrived in Australia on 14 September 2010, aged 23, as the holder of a Class BC Subclass 100 Partner visa. His wife is an Australian citizen and they have seven children.
3 On 18 September 2018, the applicant was convicted in the District Court of Queensland of two counts of rape of a young girl and was sentenced to five years and six months’ imprisonment on each count, to be served concurrently. The applicant appealed the convictions but, on 29 October 2019, the Supreme Court of Queensland dismissed the appeal.
4 On 18 January 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.
5 On 27 October 2020, the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. On 9 November 2020, the applicant was notified of the decision.
6 On 30 November 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 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.
7 On 15 February 2021, prior to the hearing, the applicant filed an amended originating application, amending his grounds of review. The Minister did not oppose a grant of leave to make the amendments and I therefore gave leave for those amendments to be made. During the hearing on 12 March 2021, the applicant sought leave to amend further his originating application to make clear that ground 3 was put on alternative bases being legal unreasonableness and a failure to afford procedural fairness. Again, the Minister did not oppose a grant of leave and I therefore gave leave. The further amended originating application containing that amendment was filed shortly after the hearing on 18 March 2021. The grounds of review are as follows:
1. The respondent failed to afford procedural fairness to the applicant, in that he failed to resolve a substantial and clearly articulated claim that the applicant is a refugee.
2. [Not pressed]
3. The respondent acted unreasonably in failing to seek out further information from the applicant and failed to afford procedural fairness in not notifying the applicant of the issues set out at paragraphs 70, 72, 74, 76, 80 and 81 of the statement of reasons for the decision.
4. The respondent failed to consider the applicant’s claims to fear harm upon any return to the Democratic Republic of Congo, independent of the context of any legal obligation of non-refoulement.
8 For the reasons that follow, I find that the Minister did not err in the course of refusing to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Act.
Legislative provisions
9 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if, relevantly:
(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.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
12 By s 501CA(7), a decision not to revoke the cancellation of a visa, made under subs (4), is not reviewable in the Administrative Appeals Tribunal (Tribunal) under Part 5 or Part 7 of the Act. While such a decision made by a delegate of the Minister is reviewable in the Tribunal under s 500(1)(ba) of the Act, a decision made personally by the Minister (as in this case) is not reviewable.
13 Regulation 2.52 of the Migration Regulations 1994 governs the period and manner in which a representation under s 501CA(3)(b) is to be made. The regulation stipulates that a representation must be made within 28 days after the relevant person has been given notice of the cancellation of the person’s visa. The regulation also stipulates that documents accompanying the representation must be an original document or a certified true copy.
The applicant’s representations to the Minister
14 As noted above, on 18 January 2019, a delegate of the Minister cancelled the applicant’s visa as required by s 501(3A) of the Act by reason of the applicant being sentenced to a term of imprisonment of five and a half years. 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. The representations that are relevant to the grounds of review are set out below.
15 On 31 January 2019, the applicant submitted a form titled “Request for revocation of a mandatory visa cancellation under s 501(3A)”. In a section of the form titled “Reasons for revocation”, the applicant stated, amongst other things, that (errors in original):
I flee my country since when I was 15 years old, and been a refugee du to my race discrimination, I cannot go back to D. R. Congo because I could suffer significant harm or persecution ongoing civil war.
…
Nb Please see attachment.
16 Accompanying the form was a hand-written letter dated 31 January 2019 containing representations made by the applicant in relation to the revocation of the cancellation of his visa. It was a very lengthy document. In so far as the letter is relevant to the grounds of review, the letter stated as follows (errors in original, personal names have been anonymised with initials):
Dear Sir/Madam
Re Notice of Cancellation Under s 501(3A)
I am writing my response to the Notice of Cancellation of my visa dated 18 January 2019…
I would like you to revoke the decision to cancel my visa.
Please take the following information into consideration when you make your decision.
BACKGROUND
I was born in the Democratic Republic of Congo (DRC) on 1 January 1987.
I was the 4th kid out of 6 children in my family. My Father was a Congolese from a tribe called Fuliru and my Mother was from a tribe called BANYAMULENGE wich makes me be born as an half cast Congolese. In result of the civil war in DR Congo, the Banyamulenge tribe is a minority tribe in DR Congo by wich is discriminated by the rest of the tribes and are not accepted to be as Congolese citizen in the country. Therefore they were tortue, decapitated, persecuted and killed in Congo because of their race. They always be considered and seen as Tutsi from Rwanda and that they should go back to Rwanda while Rwanda does not reckognise them as Rwandese.
Back 1995-1996, Banyamulenge were chased and killed in Congo, we were living in a terrible insecurity at all the time. From time to time soldier and the population will come and menace us. We were harassed and discriminated because of my race. Both side Banyamulenge and Congolese discriminate us claiming that we do not belong to them.
My mother was raped and killed accused of helping her brothers by giving them a map to come and fight in Congo. My father was a Chief Coutumier in Makobola, who also been killed by Mai-Mai rebel accused of helping his brothers in law, wich all was false accusations and allegations.
Our house was burned while the dead body was in there. I never had a chance to burry my parent, the trauma that I have experienced there while being a child was so intense.
I manage to escape from DR Congo to Malawi as a refugee where I lived in Dzaleka Refugee Camp since 2002. I was only 15 years old when I escape, and I couldn’t see or know where my brother and sisters were. Until now, I never heard or know if they still alive or dead. I was fear to revel my identity as an half cast because of my safety toward Hutu Rwandese and Congolese Community in the refugee camp as we were all mixt.
I had a girlfriend called Nelly but nothing was serious between us. She left with her family and never say goodbye nor I never knew where they went. I met YD at Katudza school in Dzaleka Refugee Camp, we were both studying there. We fell in love in 2004 and had our first born son on 23 March 2005, named DdK. YD was living with her Aunty and her 3 cousins named N, D and C. I would do some manual work to help her support our kid.
We made promiss between me and my wife that we would mary each other and take care of our kids.
They came over to Australia in 2006 while she was pregnant of my second child. DhK was born on 17 June 2007 in Australia. It was very tough and hard for YD at the time where she use to live alone looking after our 2 kids. She would normally call me every second day to speak to me and for me to talk to the kid as they always wanna talk to me but it was very expensive, plus she would support me financially regulary.
In 2009, my wife came back to Malawi with my 2 kids, DdK and DhK. This was one of my happiest day and moment ever, they stayed over 2 months in Malawi where we formally married. When they flew back, she came back while she was pregnant with our twins. HyK and HeK were born on 09/07/2010 in Australia.
On her departure, people actually found out that I was an half cast from Banyamulenge tribe. I fear for my life, especially the way we were mixt nationality in the Refugee Camp. Hutu consider Banyamulenge as Tsutsi and they don’t like each other since Genocide arosed in Rwanda.
I flew in South Africa with my young brother who joined me in Dzaleka Refugee Camp. I was accepted in South Africa as a Refugee.
My wife and my son become Australian citizen in 2010 but all rest of my kids are Australian citizen by birth. But none of them never been to D. R. Congo.
While being a Refugee in South Africa, my wife applied a spouse visa for me. I came to Australia and arrive on 23-10-2010 and left my young brother in South Africa.
…
I told my younger brother to go back to Congo from South Africa when I heard a news that I have a little girl called Stephanie in Congo from Nelly who never told me that she was pregnant when they lef in Malawi. She couldn’t take care of her because she got married to another man. I tried to sponsor them to come to Australia but my Application was unsuccessful. When the community found out about their background, Alice the lady who was helping take care of them, was attacked, raped and beaten to death. He partner was kidnapped and never been found or seen since then. The kids were assaulted and harrassed too. They manage to escape the other night up to Uganda in Refugee Camp in Uganda.
…
RISK OF SIGNIFICANT HARM IF REMOVED FROM AUSTRALIA
I strongly believe if I got sent back to my country of origine DR Congo, I will be a subject of discrimination, tortue, persecution or significant harm due to my race.
My Father was a Congolese from FULIRU Tribe and my mother was a Congolese from Banyamulenge Tribe, wich makes me be an HALF CAST (mixe race). Banyamulenge is a minority tribe in DR Congo and they are not accepted as Congolese Congolese treat them as Rwandise and Rwanda does not recognise them as Rwandese.
My mother was killed in Congo by the Congolese because of her race, and my father was killed because of protecting her. I was harassed and assaulted in Congo due to of my race. After arriving to Australia, I convince my young brother to go back in Congo from South Africa., when I found out that I have a daughter called Stephanie from Nelly, and she abandoned her because she married to another man. Nelly never told me if she was pregnant when she leaved me in Dzaleka Refugee Camp. Alice was a woman who was helping to take care of them. I tried to sponsor them but the Application was unsuccessful. When the community knew about their back ground of my young brother and my daughter, they were attacked at one night, Alice was raped and beaten to death, the kid were harassed and assault too. His partener was kidnaped and never found or seen since then. They manage to escape from the country and run to Uganda to see Asulum. They are now living as refugee in Nakivale Refugee Camp in Uganda. Base on the trauma and experience that I passed through, consider the evidence I am sure that if I go back to my country of origin I would be discriminated, tortured and be persecuted.
…
EXTENT OF IMPEDIMENT IF REMOVED FROM AUSTRALIA
I flee my country when I was only 15 years old and I never been there since 2002…
17 On 18 April 2019, Jimmy Bin, President of the Congolese Community Association of Queensland wrote a letter in support of the applicant, stating:
…DR Congo is very unsafe community; sending him back to Congo will be without doubt putting his life on line to face persecution, torture or death considering the ongoing ethnic and civil war in the country.
18 On 20 April 2019, the applicant’s former partner and mother of one of the applicant’s children (NKK), wrote a letter in support, stating:
…
I strongly believe [applicant] will be a victim of torture and persecution if forcibly removed from Australia and been sending back to DR Congo. I personally do not know any kind of DR Congo Government support that I am aware of, apart from his life being in danger.
19 On 2 October 2019, Ngongo Pascal, the leader of African Connect Group at Shiloh Church Goodna, Queensland wrote a letter in support of the applicant, stating:
…his removal from Australia would cause a significant impact on his wife and children including the community. This move will also put his life in danger because he is likely to be subject of persecution and to suffer significant harm in D.R. Congo.
…
…Considering the insecurity that D.R. Congo pose, if proceeded with this decision, it will automatically put [applicant’s] life in danger of being persecuted, tortured or decapitate as well as taking forever a father away from his children.
20 On 28 January 2020, the applicant’s wife (YD) wrote a letter in support of the applicant stating:
Republic Democratic of Congo is a very unsafe Country; I would never try to attempt traveling there with my children knowing that they may get tortured and been killed there. I came in Australia as a refugee and would never wish or want anyone to go through what I saw over there as I know how it feels, looks and smell like.
[The applicant] is a refugee from DR Congo, a survivor of torture, decapitation and trauma due to the ongoing conflict of civil and tribal war; forcing him to go back in Republic Democratic of Congo he will face torture and persecution.
There is no doubt that forcibly taking him back there he will be persecuted, tortured and be killed as well as, I do not know any kind of the DR Congo government help or support that I am aware of available there.
21 On 22 April 2020, the Department wrote to the applicant inviting him to comment on further information received by the Department which might be taken into account in making the decision whether to revoke the cancellation of the visa. The Department did not, however, seek any information concerning the applicant’s claims to fear harm if returned to the DRC.
22 On 3 May 2020, the applicant wrote a further letter to the Department stating (in so far as it is relevant to the grounds of review):
…
I was born in the Republic Democratic of Congo (D.R. Congo) where I run away because of the discrimination and torture I faced there and the fear of being decapitated.
I am a half castle from the Banyamulenge Ethnic. Banyamulenge ethnic is discriminated by the rest of the country and they are not recognised and accepted as Congolese there.
My mother was raped and tortured by a group of military before been killed with my father who was also been beaten to death.
I was severely beaten and tortured that night and experiencing the death of my parent. I will always carry and live with this trauma in my entire life.
I manage to escape and flee from the country due to the insecurity and fear of further being tortured. I was only 13 years at the time when I flee from DR Congo to the refugee camp to look for my safety. I have never go back in DR Congo since when I flee from there due to the ongoing ethnic and civil war, insecurity and fear of further being tortured or being persecuted.
…
I flee from the DR Congo due of being discriminated and the fear of further being tortured and being persecuted. I cannot go back in DR. Congo because I will be tortured and killed. DR Congo is a very unsafe country due to it ongoing ethnic and civil war. I can never go back over there otherwise I will be facing torture and death.
The Minister’s statement of reasons
23 As noted above, on 27 October 2020 the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. The decision was accompanied by a statement of reasons. In that statement, the Minister concluded that he was not satisfied that the applicant passes the character test as defined by s 501. That conclusion is not challenged in this proceeding. It followed that, pursuant to s 501CA(4), the Minister was only empowered to revoke the cancellation of the visa if he was satisfied that there is another reason why the cancellation should be revoked. The statement of reasons contains the Minister’s consideration of that question.
24 The statement of reasons records that the Minister considered the applicant’s representations and the documents he submitted in support of his representations regarding why the original decision should be revoked. Relevant to the grounds of review are the Minister’s consideration of the impediments that the applicant would face if removed from Australia to his home country, the DRC, and whether removal would place Australia in breach of its international non-refoulement obligations.
25 Under the heading “Extent of impediments if removed”, the statement of reasons records the following matters:
64. I have also had regard to the impediments that [the applicant] will face if removed from Australia to his home country of The Democratic Republic of the Congo (DRC) in establishing himself and maintaining basic living standards.
65. [The applicant] is 33 years old. He has indicated that he suffers from anxiety and depression.
66. [The applicant] fled DRC aged approximately 15 and does not know much about the country. He states that he has no contact with anyone in DRC and does not know what he would do there, he does not have a place to live or work and he would not know his way around. [The applicant] submits that social security and a health system do not exist in the DRC. [The applicant] submits that being deported would impact on his anxiety and depression and there is no health system in place to treat it in DRC.
67. I accept that the lack of personal support in DRC and a lack of social welfare and other government support would make it very difficult for [the applicant] to be able to establish himself and settle there. I also find that if [the applicant] did not have access to the necessary health and medical care that he requires in DRC, in particular for his mental health, that his health may deteriorate thereby exacerbating his hardship in DRC.
26 Under the heading “International non-refoulement obligations”, the statement of reasons records the following matters:
68. As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if returned to The Democratic Republic of the Congo in the nature of discrimination, torture, persecution or other significant harm due to ethnic discrimination.
69. [The applicant] submits that his father belonged to the Fuliru tribe and his mother belonged to the Banyamulenge tribe and he was therefore considered to be half-caste. [The applicant] submits that the Banyamulenge is a minority tribe which experiences discrimination and is not accepted as Congolese. They are seen as being Tutsis from Rwanda but are not recognised as Rwandan by that country either. The applicant] submits that he formerly lived in DRC in ‘terrible insecurity’ at all times due to his ethnicity and his family faced persecution by both the Banyamulenge and the Congolese, who both claimed they did not belong to them.
70. I note that [the applicant] has not provided specific detail in relation to where in the DRC he and his family lived, and dates and places of events, or names and ages of any of his siblings who may also have faced risk of persecution, and by whom. [The applicant] has not described the detail as to the ‘persecution’ his family faced, and it is not clear as to whether this persecution risk due to ethnicity relates to his account below of his description of the death of his parents at the hands of rebels.
71. [The applicant] submits that his mother was falsely accused of helping her brothers fight in the DRC and was raped and killed and his father was also killed by Mai Mai (rebels). Their house was burned with the bodies of his parents inside. [The applicant] states that his trauma was ‘so intense’. [The applicant] escaped to a refugee camp in Malawi in 2002 and lost communication with his siblings, aside from one brother, so he does not know if they are alive.
72. [The applicant] has not provided details as to where his parents’ house was located in the DRC at that time, or the dates the deaths occurred, or where he and his siblings were at that time, nor any detail of the Mai Mai rebels or country information of any past and on-going threat they would pose to him. It is not clear as to how long after the stated events it was when [the applicant] left the DRC and no details of his plight from there, are submitted.
73. [The applicant] submits that he fled DRC aged 15 as a refugee due to race discrimination. [The applicant] believes that if he is returned to DRC he will be subject to discrimination, torture, persecution or significant harm due to his ethnicity. Based on the trauma and experience he has passed through, he is sure that if he goes back he would be discriminated against, tortured and persecuted in the ongoing civil war.
74. As stated above, it is not clear as to the source of his fears, whether it be rebels or government or other forces, and whether, given the passage of time any such source remains to be a threat to him in the DRC.
75. [The applicant] submits that after arriving in Australia he became aware that he had fathered a child in the refugee camp before meeting his wife. He asked his younger brother to move from South Africa back to Congo to look after his daughter Stephanie. [The applicant] submits that ‘when the community found out about the background of his brother and daughter, Alice the lady who was helping take care of them was attacked, raped and beaten to death’ and her partner was kidnapped and never found. His brother and Stephanie were harassed and assaulted too, but managed to escape to a refugee camp in Uganda. [The applicant] submits this as evidence that he would also face persecution should he return to DRC.
76. I further note that [the applicant] does not describe the source of the fear or who he believes was responsible for the death of the lady who provided assistance or the kidnapping of her partner. Although he indicates it occurred ‘when the community found out’, it is not clear as to whether it was also members of the community or government or rebels who perpetrated such attack or kidnapping, and whether this is linked to his claims of fear stated above.
77. Ms [YD] also submits that [the applicant] is a refugee from DRC, a survivor of torture and trauma and that forcing him to go back would no doubt mean facing torture and persecution due to the ongoing conflict of civil and tribal war. Ms [YD] states that she is not aware of any kind of government help or support available in the DRC that [the applicant] could access.
78. Ms [NKK] also submits that she strongly believes that [the applicant’s] life will be in danger and he will be a victim of torture and persecution if he is sent back to DRC.
79. Mr Bin submits that DRC is a very unsafe country and sending [the applicant] there would without doubt put his life on the line to face persecution, torture or death, considering the ongoing ethnic and civil war in the country. Mr Pascal is of similar views.
80. In relation to the claims made by [the applicant]’s family and friends, I further note that no detail or supporting information or country information in support, is provided in relation to the submissions.
81. [The applicant] has not provided any supporting evidence of his claims nor credible country information to demonstrate the source of his past stated events and the source of the stated fears that he faces and the nature and reasons for those specific fears. Nor has any information been provided in relation to the ethnic and civil war as raised above.
82. Accordingly, in relation to [the applicant’s] claims that he fears being harmed in the nature of discrimination, torture, persecution or other significant harm due to ethnic discrimination, I am unable to make a finding, given the lack of specific detail in relation to the claims or the source of the fears stated, as well as not having any supporting evidence such as credible country or other information or evidence in support of the claimed past fear of harm or harm that was said to have eventuated.
83. Although there is currently insufficient information for me to determine whether [the applicant] faces a risk of harm upon return to the DRC, I take into account 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, [the applicant] 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.
84. In saying the above, I am mindful that consideration of whether [the applicant] 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, [the applicant’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.
85. Should [the applicant] 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.
86. I have also considered and taken into account the possibility that it may be the case that a Minister at that time personally considers [the applicant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that a Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.
87. Further, I am aware that even if the process set out in Direction 75 is followed, that does not mean [the applicant] will be granted a Protection visa as long as he is found to enliven a non-refoulement obligation. I am cognisant of the possibility that, even if found to enliven such an obligation, [the applicant] may be refused a Protection visa either because the non-refoulement obligation enlivened in [the applicant’s] case is not reflected in the Protection visa criteria, or 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.
27 It is clear that, in making his decision, the Minister gave no weight to the applicant’s claims to fear harm if returned to the DRC. That is confirmed by the concluding section of the statement of reasons. The only reference to the applicant’s claims to fear harm was the following sentence:
141. … I have also considered his claims that he will face harm including persecution if he returns to DRC, but as set out above, I am unable to make any finding in this regard without further substantiation of those claims.
The Applicant’s Submissions
28 As each of the applicant’s grounds of review relate to the same subject matter (the applicant’s claims to fear harm if returned to the DRC), it is convenient to record the applicant’s submissions on each ground seriatim. By way of overview, the applicant submitted that the Minister started to, but did not complete, the task of considering the applicant’s protection claims.
29 In relation to ground 1, the applicant submitted that the Minister failed to make findings in relation to the applicant’s protection claims in breach of the obligation to conduct a review, as explained in Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at [39]-[40]. The applicant was unrepresented and English was his second language. Despite that, the applicant articulated a claim for protection which was based on the risk of torture and persecution in the DRC arising from the applicant’s ethnicity. The applicant’s claim gave details of his date and place of birth; the ethnicity of his parents and, thereby, his own ethnicity; the basis of the fear given tensions between different ethnic groups in the DRC; the death of his parents; and his escape to a refugee camp in Malawi, amongst other details. The applicant submitted that, if the claims made by the applicant required the Minister, perhaps through his Department, to do some additional work such as to find country information about the DRC, then that task was inherent in the obligation to “consider” this issue. In failing to take the issue to its conclusion, in this case, the Minister has failed to complete the task of considering the applicant’s claim.
30 In relation to ground 3, the applicant submitted that the Department was engaged with the applicant from 18 January 2019, when the applicant’s visa was cancelled, until 27 October 2020, when the Minister decided not to revoke the cancellation, a period of some 22 months. Despite the applicant raising his claims to fear harm if returned to the DRC in his initial representations on 31 January 2019 and in subsequent representations throughout that period, the Department never sought any elaboration or substantiation of the claims and did not put to the applicant that findings may not be able to be made on the claims without elaboration or substantiation. This is despite the fact that the Department sought responses from the applicant on other matters relevant to the decision whether to revoke the cancellation of the visa. The applicant submitted that, in the circumstances, it was unreasonable, or procedurally unfair, for the Minister to proceed to decision without inviting the applicant to supply him with the details that were thought to be missing from his claims.
31 In relation to ground 4, the applicant submitted that the applicant’s claims to fear harm if returned to the DRC engaged the consideration of “Extent of impediments if removed”, which was addressed by the Minister in his statement of reasons. However, the Minister failed to assess the applicant’s claims insofar as they advanced a fear of being harmed upon return, whether or not that engaged any non-refoulement obligation.
The Minister’s submissions
32 In relation to ground 1, the Minister submitted that, while the Minister was obliged to give active intellectual consideration to the applicant’s representations as a whole, that obligation does not prevent the Minister from deciding that the material in the representations is not sufficient to make a finding one way or the other. In Omar, the Full Court expressly recognised that the need for the decision-maker to make a specific finding depends on the “nature and content of the representations” (at [39]), which would include the cogency of any supporting material. The Minister submitted that other cases indicate that the Minister is entitled not to make any findings on a representation if the representation lacks sufficient substance, referring to EVK18 v Minister for Home Affairs (2020) 274 FCR 598 at [26] and Walker v Minister for Home Affairs [2020] FCA 909 at [39]-[40]. The Minister acknowledged that it is necessary to consider the facts of each case and that, in some cases, a briefly expressed claim has been found sufficient to require consideration, even in the absence of supporting information, referring to DQM18 v Minister for Home Affairs (2020) 278 FCR 529 at [36], [92] (Bromberg and Mortimer JJ). The Minister submitted that in all cases the relevant question is whether the Minister has given active intellectual consideration to the representations that have been provided; as the Full Court stated in Omar, the Minister’s statutory duty is to consider “whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations” (at [34](g)).
33 The Minister further submitted that the statutory context may affect the extent to which a decision-maker is expected to reach findings on a person’s representations; for example, the Tribunal conducts a hearing with the applicant for revocation, and therefore may be expected to engage in greater detail with the applicant’s claims to fear harm, because there is a mechanism to test those claims (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 (CTB19)). Similarly, the Minister noted in his decision (at [83]) that the protection visa process would allow the full presentation and testing of the applicant’s claims, unlike his non-revocation decision under s 501CA.
34 The Minister submitted that, in the present case, there were two distinct problems with the representations made by the applicant. First and most importantly, the representations lacked any detail about his and his family’s circumstances, such as: where in the DRC he and his family lived, and what persecution he faced (at [70]); where his parents’ house was and when the attack by the Mai-Mai rebels was said to have taken place (at [72]); who perpetrated the attack and kidnapping on his younger brother and young child and for what reason, and whether those persons had any connection to the government or rebels (at [76]); and the claims by the applicant’s family and friends that the applicant would face harm on his return (at [80]). Second, the applicant had not provided any supporting evidence or information of his claims, nor credible country information to support his representations about past events (at [80]-[81]). Without information about the applicant’s personal circumstances, or potentially supporting information about those circumstances, the Minister could not reach a finding on the applicant’s claims.
35 In relation to ground 3, the Minister submitted that, in the context of a decision under s 501CA(4), there is not any legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations that were made (referring to Minister for Immigration v Maioha (2018) 267 FCR 643 (Maioha) at [48] (Rares and Robertson JJ) and Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [96]-[97], [100]). The Minister submitted that, in the present case, the lack of details in the applicant’s claims were pervasive. This was not simply clarifying a particular representation, or obtaining country information on a discrete point. Instead, there would need to be a wide-ranging interview with the applicant to test each aspect of his claims. This is not a case where there was an obvious inquiry about a critical fact, the existence of which is easily ascertained (as per Ashraf v Minister for Immigration (2018) 261 FCR 97 at [56]).
36 In relation to ground 4, the Minister accepted that there can be cases where a decision-maker wrongly excludes from consideration claims to fear harm that do not rise to the level that engages non-refoulement obligations, as discussed by Robertson J in Goundar v Minister for Immigration [2016] FCA 1203; 160 ALD 123 (Goundar) at [47], [53]. The Minister submitted, however, that in the present case the applicant’s claims to fear harm were not rejected; rather, the Minister found that he was unable to make a finding on the claims. That conclusion extended to all aspects of the applicant’s claims, whether those claims are characterised as engaging non-refoulement obligations or not. It was not necessary for the Minister separately to make the same finding under the heading “Extent of Impediments”. The Minister submitted that where a representation engages more than one consideration, the Minister is not required to assess that representation repetitiously under every consideration, referring to Bale v Minister for Immigration [2020] FCA 646 at [26] (Perram J).
Consideration of grounds of review
37 By its grounds of review, the applicant makes three core complaints about the Minister’s decision:
(a) the first complaint, reflected in ground 1, is that the Minister failed to resolve a substantial and clearly articulated claim that the applicant faces a real risk of harm if returned to the DRC;
(b) the second complaint, reflected in ground 4, is related to the first complaint – it is that the Minister failed to consider the applicant’s claims to fear harm upon any return to the DRC outside of the non-refoulement context and particularly to consider the claims in the context of the impediments to the applicant upon return to the DRC; and
(c) the third complaint, reflected in ground 3, is that the Minister erred by failing to notify the applicant of the issues set out at paragraphs 70, 72, 74, 76, 80 and 81 of the reasons for decision and giving the applicant an opportunity to respond to those issues.
38 In recent years, there has been a large number of cases that have considered whether, and in what manner, the Minister is legally obligated to consider representations made under s 501CA(3)(b) that the relevant person fears harm if returned to their country of nationality. A common thread in such cases is Ministerial reasoning to the effect that the relevant person is able to apply for a protection visa, that a protection visa application is the key mechanism provided for by the Act to enable Australia to meet its international non-refoulement obligations, and for those reasons it is not necessary for the Minister, in exercising power under s 501CA(4), to make findings about the relevant person’s claims to fear harm if returned to their country of origin. Such reasoning is often expressed in pro forma language, as observed by the Full Court in Guclukol v Minister for Home Affairs [2020] FCAFC 148 at [27].
39 The applicable principles relevant to that question (and which are the subject of the first two complaints in this proceeding) were recently summarised by the Full Court in CTB19 at [15] as follows:
The applicable principles to the first two grounds of appeal were discussed by Full Courts in several recent judgments: Omar per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ (at [34(e)]-[34(i)], [35]-[36] and [39]); GBV18 v Minister for Home Affairs [2020] FCAFC 17 per Flick, Griffiths and Moshinsky JJ (at [31]-[32]); AXT19 v Minister for Home Affairs [2020] FCAFC 32 per Flick, Griffiths and Moshinsky JJ (at [47] and [56]-[57]); EVK18 v Minister for Home Affairs [2020] FCAFC 49 per Flick, Griffiths and Moshinsky JJ (at [10]-[15]); DQM18 v Minister for Home Affairs [2020] FCAFC 110 per Bromberg and Mortimer JJ (at [23]-[34]) and Snaden J (at [153]-[158]); see also BCR16 per Bromberg and Mortimer JJ (at [63]). They may be summarised as follows:
(1) The task of a decision-maker under s 501CA(4) is to determine whether there is “another reason” to revoke a cancellation decision;
(2) In discharging the duty under s 501CA(4), a decision-maker is required to have regard to a former visa holder’s representations made in response to an invitation under s 501CA(3) as a whole. That is to say, viewed as a whole, the representations comprise a mandatory relevant consideration, but not every statement in the representations can be so described;
(3) Where a former visa holder makes a representation as to the harm that he or she may face if returned to their country of origin, the decision-maker needs to give consideration to it;
(4) There is a distinction between considering harm, or the risk of harm and hardship, on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed: See DOB18 v Minister for Home Affairs (2019) 269 FCR 636 per Robertson J (at [185]);
(5) The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which it is expressed;
(6) The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations;
(7) The representations need to be “significant and clearly expressed” (GBV18 at [32(d)]) or “clearly articulated and substantial or significant”: Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and EVK18 (at [14]). Put another way in AXT19 (at [56]) and applied by Bromberg and Mortimer JJ in DQM18 (at [27]):
[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim.
(See also DQM18 per Snaden J (at [158]-[160])).
As Snaden J observed in Guclukol v Minister for Home Affairs [2020] FCA 61 (at [28]):
[t]he difficulty that often, if not always, arises in cases such as the present … is that determination of the consequences or circumstances that an applicant will face if removed from Australia … typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn’t easily permit of definitive findings. …
(8) Whether consideration has been given to a former visa holder’s representations must be judged in the context of the material placed before the decision-maker by, or on behalf of, the former visa holder: DQM18 per Bromberg and Mortimer JJ (at [36]);
(9) “Depending on the nature and content of the representations”, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate: Omar (at [39]). However, the duty to consider a representation does not necessarily require the making of a finding of fact: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 per Besanko, Barker and Bromwich JJ (at [46]) and Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 (at [41]) per Rares and Robertson JJ;
(10) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made by a court: GBV18 (at [32(g)], referring to Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [48])); and
(11) Ultimately, each case turns on its own particular facts and circumstances.
The first complaint
40 As noted above, the first complaint is that the Minister failed to resolve a substantial and clearly articulated claim that the applicant faces a real risk of harm if returned to the DRC. There was no dispute between the parties as to the applicable legal principles. The Minister is under an implicit obligation to consider representations made in support of a revocation request under s 501CA(3), which requires the Minister to engage in an active intellectual process with reference to those representations: Omar at [34]-[36]. In the earlier case of BCR16 v Minister for Immigration (2017) 248 FCR 456, the majority (Bromberg and Mortimer JJ) concluded that the Assistant Minister erred in failing to consider the applicant’s claims to fear harm if returned to Lebanon on the basis that it was unnecessary to do so in circumstances where the applicant could separately apply for a protection visa (at [69], [72]). In Omar, the Full Court concluded that the Assistant Minister erred in failing to make findings about the representations made, stating (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).
41 The Full Court concluded that the Assistant Minister had failed to carry out the statutory task because the Minister failed to make a finding “one way or the other” whether he accepted the applicant’s representations concerning the risks of harm to the applicant if he had to return to Somalia (at [43]). The Full Court observed (at [44]):
We are left with the abiding impression that part, possibly a large part, of the reason why the Assistant Minister failed to engage fully and meaningfully with the respondent’s representations on this topic was because of the Assistant Minister’s belief that they could be deferred and dealt with at a later stage of the decision-making process, whether in the context of a protection visa application or the Minister’s consideration of the exercise of his various non-compellable powers under the Act. But to proceed in that fashion is to fail to recognise and give effect to the distinction identified by Robertson J in DOB18 at [185] (with whom Logan J agreed) (see [34(f)] above).
42 As the authorities emphasise, each case must be considered on its own facts. In the present case, the Minister concluded (at [82]) that he was unable to make a finding in relation to the applicant’s claims that he fears being harmed if returned to the DRC because of the lack of specific detail in relation to the claims or the source of the fears stated, as well as not having any supporting evidence such as credible country or other information or evidence in support of the claimed past fear of harm or harm that was said to have eventuated. As I observed recently in Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403 at [55]-[56], a conclusion by the Minister that he is “unable to make a finding about” the applicant’s claim to fear harm is an unfortunate choice of words. As discussed in Omar, the statutory task requires the Minister to consider representations made by the applicant and that obligation necessitates the making of findings. 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 permissible for the Minister to avoid making a finding using phraseology such as “unable to make a finding”. It is therefore necessary to consider what the Minister meant when he said that he was “unable to make a finding”, and whether the Minister’s reasons indicate that he performed the statutory task by giving due consideration to the applicant’s representations.
43 As a starting point, it must be recognised that the Minister’s conclusion in this case, that he was “unable to make a finding” about the applicant’s claims, differs from the Assistant Minister’s conclusion in Omar that it was “unnecessary to determine” whether non-refoulement obligations were owed to the applicant in that case. However, the Minister’s conclusion in this case is similar to the conclusion of the Tribunal in CTB19, in respect of which the Full Court found that:
(a) (at [30]) the availability of a protection visa application led the Tribunal to conclude that it was not required to make a specific determination about the claim to fear harm if removed to Iraq; and
(b) (at [31]) the Tribunal failed to consider what findings it could have made in the circumstances.
44 As recognised by the Full Court in CTB19, it may be that a decision-maker cannot make a definitive finding on claims made by reason of inadequacy of information and evidence provided, but the decision-maker is nevertheless required to give the claims due consideration (at [36]).
45 In the present matter, it is significant that the Minister gave the applicant’s claims of fearing harm if returned to the DRC no weight in the decision-making process. While the Minister summarised the claims, the Minister concluded that he was unable to make a finding about them and does not anywhere in the reasons give the claims weight in the decision. There is more than a suggestion, in the statement of reasons, that the Minister gave the applicant’s claims no weight because the Minister considered that such claims could be considered in the context of an application for a protection visa, and would be more properly considered in that context. After concluding that he was unable to make a finding about the claims given the lack of specific detail contained in the representations (at [82]), the Minister turned immediately to the topic of protection visas (at [83]). The Minister’s discussion of the protection visa process continued for five paragraphs ([83] to [87]). It is necessary to ask rhetorically, what role does that discussion have in a decision under s 501CA(4)? Put more directly, why have those paragraphs been included in the Minister’s statement of reasons?
46 As the authorities have explained, the existence of the protection visa process does not excuse the Minister from considering claims to fear harm in the context of a decision under s 501CA(4). Indeed, the principles that emerge from the authorities is that the existence of the protection visa process is irrelevant to the statutory task that the Minister is required to undertake under s 501CA(4). The Minister is required to consider the representations that are made in order to reach a view whether the Minister is satisfied that there is another reason why the cancellation decision should be revoked. The Minister is not permitted to refrain from making findings on the representations made by the applicant because there is another statutory process under which the representations can be considered.
47 As observed by the Full Court in Guclokol (at [27]), the pro forma reasons prepared by the Department for the Minister on this issue have been slightly altered from time to time to “accommodate” decisions of the Court. Such an alteration is reflected in [84] of the Minister’s statement of reasons which expressly acknowledge that the protection visa process is not a substitute for considering non-refoulement claims in making a decision under s 501CA(4). Despite the inclusion of that acknowledgment, the formulation of the Minister’s reasons carries a suggestion that the Minister may not have felt obligated to give due consideration to the applicant’s claims in this case because of the availability of the protection visa process. The reasoning proceeds in the following manner:
(a) (At [82]) The Minister expresses the view that he is unable to make a finding about the applicant’s claims to fear harm.
(b) (At [83]) Although there is currently insufficient information for the Minister to determine whether the applicant faces a risk of harm upon return to the DRC, the Minister takes into account that he is able to make an application for a protection visa, which is “the key mechanism provided for by the Act to enable Australia to meet its international non-refoulement obligations”.
(c) (At [84]) The Minister is mindful that consideration of whether the applicant satisfies a protection visa criterion cannot be regarded as a substitute for consideration of his non-refoulement claims in the present context. Nevertheless, the applicant’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.
(d) (At [85]) The Minister expects that any application for a protection visa will be processed according to the Department's normal practice, which 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.
(e) (At [86]) The Minister has taken into account the possibility that any application for a protection visa will be assessed by the Minister personally, and the Minister would not necessarily determine whether non-refoulement obligations are owed to the applicant.
(f) (At [87]) The Minister has taken into account the possibility that, even if the applicant enlivens a non-refoulement obligation, he may not be granted a protection visa.
48 Two features of the above reasons suggest that the Minister did not fully appreciate the legal duty to consider the representations made by the applicant. First, while the Minister expressly acknowledged that a protection visa application was not a substitute for considering claims under s 501CA(4), the acknowledgment was qualified, in the same paragraph, by a statement that the applicant’s claims, once substantiated, will be conclusively assessed in the context of any application for a protection visa. The qualification reduces the force of the initial acknowledgment. Second, the considerations taken into account by the Minister at [85] to [87] of the statement of reasons only have relevance if the Minister is weighing up whether to consider the applicant’s claims or effectively defer consideration until a protection visa application is made. The considerations have no relevance if the Minister has considered the claims but is not satisfied that the claims have any basis. To illustrate the latter point in a different way, let it be assumed that the Minister’s statement that he was “unable to make a finding about” the applicant’s claim should be understood as a statement that the Minister was not satisfied, on the material before him, that the applicant faced a risk of harm if returned to the DRC. If that was the finding that was intended to be conveyed, the Minister’s reasoning with respect to the protection visa process is wholly irrelevant. It could not be relevant whether any such application is processed by the Department or by the Minister personally, or whether non-refoulement obligations would or would not be considered in such a process. Such ruminations by the Minister, and the taking into account of those matters, could only be relevant if the Minister had chosen to defer consideration of the applicant’s claims to a future protection visa process.
49 Despite having considerable unease about the discussion of the protection visa process in the statement of reasons, ultimately I consider that the Minister’s statement that he was “unable to make a finding about” the applicant’s claims to fear harm must be understood as a statement that the Minister was not satisfied, on the material before him, that the applicant faced a risk of harm if returned to the DRC. The reasons given by the Minister for reaching that conclusion are not legally unreasonable and were open to the Minister. The Minister’s reasons for reaching that conclusion sufficiently indicate that the Minister gave proper consideration to the applicant’s claims. The Minister’s summary of those claims, at [68]-[75], is a fair summary. The Minister’s discussion of the claims shows that the Minister brought his mind to bear on the claims. The Minister did not reject the applicant’s description of traumatic events and circumstances that occurred in the DRC, particularly the death of the applicant’s parents on a date between 1995 and 2002 and the death of a woman who cared for the applicant’s daughter on a date after 2010. However, the Minister concluded that he was not able to make a finding about (and, I infer, was not satisfied about) “the source of [the applicant’s] fears, whether it be rebels or government or other forces, and whether, given the passage of time any such source remains to be a threat to [the applicant] in the DRC” (at [74]; see also [76]). The Minister concluded that the applicant’s claims lacked detail in numerous material respects, including:
(a) where in the DRC he and his family lived (at [70]);
(b) the dates and places of events, including the location of his parents’ house when they died and the date that they died (at [70] and [72]);
(c) the details of the persecution claimed to have been suffered and the cause of the persecution, the persons or organisations responsible for the persecution and his parents’ death (at [70], [72] and [73]);
(d) when the applicant left the DRC for Malawi (at [72]); and
(e) who was responsible for the death of the woman who cared for his daughter (at [76]).
50 The Minister noted that the applicant had not provided any supporting evidence of his claims nor credible country information to demonstrate the source of his fears, including in relation to ethnic and civil war (at [80] and [81]).
51 It may be accepted, as the applicant submitted, that the atrocities that occurred in Rwanda between the Hutus and the Tutsis in 1994 are notorious events such that it was unnecessary for the applicant to provide country information about the fact of those events occurring. To a lesser extent, the flow-on effects of those events into the DRC (then called Zaire), where many Hutu refugees fled, are also notorious. However, those notorious events are not sufficient to fill in the gaps in the applicant’s claims.
52 It follows that this is not a case in which the Minister declined to consider a claim to fear harm because the claim could be considered in the context of an application for a protection visa (such as in BCR16). Nor in my view is it a case in which the Minister failed to make findings “one way or the other” in respect of the claim (such as in Omar). It is a case in which the Minister was not satisfied about the key elements of the applicant’s claim. Having regard to the representations made by the applicant and the Minister’s statement of reasons, I consider that the Minister gave due consideration to the applicant’s claims in exercise of the Minister’s statutory power. The conclusion that the Minister was unable to make findings about the claims, in the sense of not being satisfied on the material before him that the applicant faced a risk of harm if returned to the DRC, was a conclusion that was legally open to the Minister to reach. I therefore reject ground 1.
The second complaint
53 The second complaint is related to the first complaint and it is convenient to consider it next. The second complaint, reflected in ground 4, is that the Minister failed to consider the applicant’s claims to fear harm upon any return to the DRC outside of the non-refoulement context and particularly to consider the claims in the context of the impediments to the applicant upon return to the DRC.
54 Again, there was no dispute between the parties as to the applicable legal principles relevant to ground 4. In circumstances where an applicant makes representations about the risk of harm if a visa cancellation is not revoked and the applicant faces return to another country, jurisdictional error may arise if the Minister’s consideration of the representation is confined to the question whether Australia’s non-refoulement obligations are engaged, and there is a failure to consider the risk of harm outside that context: Goundar at [47], [54]; BCR16 at [70]-[71]. In the present case, the Minister did not expressly consider the applicant’s representations about the risk of harm if returned to the DRC beyond the non-refoulement context. Nevertheless, I accept the Minister’s submissions that no such error can arise in circumstances where the Minister found that he was unable to make a finding on the applicant’s claims, which I consider to be a finding that the Minister was not satisfied on the material before him that the applicant faced a risk of harm if returned to the DRC. Having made that finding, albeit in a section of the reasons that addressed Australia’s non-refoulement obligations, the same finding extends to all aspects of the applicant’s claims. On the basis of that finding, the claim could not afford another reason for the revocation of the visa cancellation. For that reason, I reject ground 4.
The third complaint
55 The third complaint differs in nature to the complaints reflected in grounds 1 and 4. The third complaint is that the Minister erred by failing to notify the applicant of the issues set out at paragraphs 70, 72, 74, 76, 80 and 81 of the reasons for decision and giving the applicant an opportunity to respond to those issues. The ground is based on the principles of legal unreasonableness and procedural fairness.
56 As submitted by the applicant, the Department was engaged with the applicant in relation to the decision under review for a period of about 22 months: from 18 January 2019, when the applicant’s visa was cancelled, until 27 October 2020, when the Minister decided not to revoke the cancellation. It must be accepted that, during that period, the applicant was given an opportunity to put information and submissions to the decision-maker. In the initial representations on 31 January 2019 and in subsequent representations throughout that period, the applicant raised his claims to fear harm if returned to the DRC. During the 22-month period, the Department sought a response from the applicant about adverse information that had been received by the Department, but not about the applicant’s claim to fear harm. There was no lack of time or opportunity for the Department to seek elaboration or substantiation of the applicant’s claim to fear harm. The Department did not do so and did not inform the applicant that findings may not be able to be made on his claims without elaboration or substantiation. The question raised by the ground of review is, in effect, whether the failure to do so was legally unreasonable (in that there was a legally unreasonable failure to exercise a discretionary power), or was a breach of the requirements of procedural fairness, or there was a constructive failure to exercise jurisdiction.
57 As a general principle, in the context of a decision under s 501CA(4), the Minister is not under a “legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations that were made”: Maioha at [48] (Rares and Robertson JJ), cited with approval in Navoto at [96] and [100]; see also Kioa v West (1985) 159 CLR 550 (Kioa v West) at 587 (Mason J). Those statements reflect the well-established principle that the procedural fairness does not usually require the decision-maker to expose their mental processes or provisional views to comment before making the decision in question: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [29]-[32] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Minister for Immigration v SZGUR (2011) 241 CLR 594 (SZGUR) at [9] (French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed).
58 Conversely, it is well established that, if the decision-maker intends to take into account material information obtained from a source other than the person affected by the decision, the person affected should be given an opportunity to deal with that information: Kioa v Westat 587 (Mason J), 628 (Brennan J); Alphaone at 590-591. Further, in SZBEL, the High Court concluded that the Refugee Review Tribunal (reviewing a decision of the Minister’s delegate refusing a protection visa) denied the applicant procedural fairness in failing to notify the applicant that the Tribunal might reach its decision by reference to an issue other than those considered dispositive by the Minister’s delegate. In doing so, the High Court referred with approval to the following statement of the Full Federal Court in Alphaone (at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
59 In the present case, the Minister did not take into account adverse material from a source other than the applicant. Nor was this a case in which the Minister’s decision was being reviewed and the reviewing tribunal failed to inform the applicant of the relevant issues. Rather, the applicant’s complaint is that the Minister did not put to the applicant that, in respect of an issue that might be determinative (the applicant’s claim to fear harm on return to the DRC), that the information and submissions provided by the applicant required elaboration and substantiation if they were to be accepted.
60 In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) considered whether and in what circumstances a failure by the Refugee Review Tribunal to make inquiries about information provided to it by an applicant for review might constitute jurisdictional error, whether as a legally unreasonable failure to exercise a discretionary power, or a failure to afford procedural fairness, or as a constructive failure to exercise jurisdiction. The plurality affirmed the principle that the Tribunal is not under a general duty to undertake its own inquiries in addition to information provided to it by the applicant (at [1]). In the course of its reasons, the plurality observed that (at [25], citations omitted):
… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
61 The contention raised by the applicant by ground 3 is not supported by existing authority, although it is not easily rejected. At its centre is the proposition that, in the circumstances of this case, the procedure followed by the Minister in making a personal decision under s 501CA(4), which was not reviewable by the Tribunal, was unfair. The asserted procedural unfairness arose from the circumstances that:
(a) the applicant made claims as to his experiences in his country of birth, the DRC, which supported a claim that he feared harm if returned to that country;
(b) the backdrop to the applicant’s claims, being the notorious atrocities that occurred in Rwanda between the Hutus and the Tutsis in 1994 and the flow-on effects of those events into the DRC (then called Zaire), where many Hutu refugees fled, whilst not substantiating the applicant’s claims, provide context that lends some seriousness to the applicant’s claims;
(c) the Minister, through the Department, communicated with the applicant to seek submissions on adverse material;
(d) the period during which the Minister made his decision allowed ample time for the Department or the Minister to notify the applicant that a reason for rejecting the applicant’s claims to fear harm might be the lack of detail and documentary support for the claims; and
(e) the Minister did not reject the applicant’s claims, but concluded that the applicant had provided insufficient detail and substantiation to enable the Minister to make a finding about the claims.
62 There is no doubt that the Minister was required to accord procedural fairness to the applicant in connection with the making of a decision under s 501CA(4). The relevant question is “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). As observed by Brennan J in Kioa v West (at 614):
To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require.
63 In that regard, the requirements of procedural fairness are not rigid. In Kioa v West, Mason J stated (at 585):
…the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…
64 A number of features of the legal framework within which a decision under s 501CA(4) is made can be noted.
65 First, a decision not to revoke the cancellation of a visa under s 501(3A) may have devastating consequences for the previous visa holder, resulting in their removal from Australia: c.f. Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] per Allsop CJ.
66 Second, and as noted earlier, a decision made personally by the Minister under s 501CA(4) (as in this case) is not reviewable by the Tribunal. Accordingly, the only opportunity that the applicant for revocation has to be heard is within the decision-making process conducted by the Minister under s 501CA (c.f. Twist v Randwick Municipal Council (1976) 136 CLR 106).
67 Third, s 501CA(3)(a) requires the Minister to give to the revocation applicant “relevant information” (being information that the Minister considers would be the reason or a part of the reason for making the original cancellation decision) and to invite the revocation applicant to make representations about revocation.
68 Fourth, s 501CA(3)(b) requires the Minister to invite the person to make representations about revocation of the original decision within the period and in the manner stipulated by the regulations. The regulations provide for a relatively short period in which such representations are to be made, being 28 days.
69 Fifth, the Minister has an implicit power to seek elaboration or clarification of issues from the revocation applicant, a power that the Minister exercised in the present case (through the Department).
70 Sixth, s 501G requires the Minister to give the revocation applicant a statement of the reasons for the decision.
71 Within that statutory framework, can it be concluded that procedural fairness requires the Minister to seek elaboration and substantiation of the applicant’s representations if the Minister is minded to reject the claims because of the lack of elaboration and substantiation? I have not been referred to any decision that goes that far in the context of a statutory power such as s 501CA(4). As stated by French CJ and Kiefel J in SZGUR (at [9]), the Tribunal reviewing a migration decision may, “in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal”. However, their Honours did not state that the failure to do so would involve a failure to afford procedural fairness.
72 In light of the authorities referred to above, I am constrained to conclude that the failure by the Minister to seek elaboration and substantiation of the applicant’s claims to fear harm, in circumstances where the Minister ultimately rejected the claims because of a lack of elaboration and substantiation, was not legally unreasonable, a breach of the requirements of procedural fairness or a constructive failure to exercise jurisdiction. Applying Maioha and Navoto, the Minister was not under a legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations that were made. The requirements of procedural fairness were discharged by the statutory procedure by which the applicant was invited to make representations and did so. In my view, this is not a case in which the Minister failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, such that the Minister constructively failed to exercise jurisdiction. For those reasons, I reject ground 3.
Conclusion
73 In conclusion, while the Minister’s statement of reasons gives rise to some misgivings about the due performance of the statutory task, in my view each of the grounds of review must be rejected. It follows that I dismiss the application for review with costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. |
