Federal Court of Australia

PKZM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 845

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari to quash the non-revocation decision of the Second Respondent made on 23 December 2020.

2.    A writ of mandamus requiring the Tribunal to determine the applicant’s application for review according to law.

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

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

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    The applicant seeks judicial review of a decision (non-revocation decision) of the Second Respondent’s (Tribunal) decision made on 23 December 2020 (Reasons), to affirm a decision by a delegate of the First Respondent (Minister) on 9 October 2020 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke an earlier decision (cancellation decision) of a delegate of the Minister under s 501(3A) of the Act to cancel the applicant’s Class XB Subclass 200 Refugee (Permanent) visa on 4 May 2016.

2    The applicant relies on the grounds of review set out in an amended application filed on 22 June 2021 (amended application). The applicant contends that the non-revocation decision is affected by four jurisdictional errors which make up the three grounds of this appeal. The fourth ground of the appeal was abandoned at the outset of the hearing at the agreement of both parties. The three grounds of appeal are as follows:

(a)    first, the Tribunal failed to consider prolonged or indefinite detention as a possible consequence of its decision, due to the applicant’s representations, and/or as a legal consequence of its decision, and/or upon a proper understanding of the Act or its operation;

(b)    second, the Tribunal failed to consider representations with respect to the impact on Australia’s reputation as a consequence of its decision; and

(c)    third, the Tribunal misunderstood the Act or its operation with respect to how non-refoulement claims are assessed under s 501CA(4) as compared to the protection visa process.

3    The applicant, in his amended application, as well as during oral submissions, dealt with the first ground in two parts:

(a)    failure to genuinely consider representations by the applicant with respect to indefinite detention; and

(b)    failure to consider prolonged or indefinite detention as a legal consequence of the decision and/or failure to correctly understand the Act or its operation.

4    I will deal with each of the above sub-grounds separately in my reasoning.

BACKGROUND

5    The applicant was born in 1989 in Khartoum, Sudan. He is the eldest son of 11 children. His parents were both born in South Sudan but migrated to Sudan as children with their families. The applicant’s father disappeared in the Sudanese Civil War in the 1990s. The applicant identifies as South Sudanese, and by virtue of 2011 South Sudanese legislation is a South Sudanese national.

6    Around 2002, the applicant fled from Sudan to Egypt. His four older sisters remained in Sudan (two now live in Sudan, one lives in Egypt, and one passed away in Juba, South Sudan after returning there). The applicant has six younger brothers (three from his own father, and three half-brothers). In 2005, the applicant migrated to Australia with his mother, her then partner, and his brothers. He arrived in Australia as the holder of a Class XB Subclass 200 Refugee (permanent) visa.

7    The applicant has a criminal history as set out in the National Police Certificate. On 22 September 2015, he was sentenced to 15 months’ imprisonment for recklessly causing injury (to which he pleaded guilty). His visa was cancelled by a delegate of the Minister on 4 May 2016, at which time he was serving his period of imprisonment. These facts meant that his visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he failed the character test (s 501(6)(a)) due to having a substantial criminal record (s 501(7)(c)).

8    The applicant was invited under s 501CA(3) of the Act to make representations to the Minister about revocation of the cancellation decision. The applicant made representations on 9 May 2016 and 22 December 2016. On 3 May 2017 the Assistant Minister decided not to revoke the cancellation decision. That decision was quashed (by consent) by the Federal Court on 4 December 2017 and remitted for reconsideration according to law. Further representations were made by the applicant. On 3 July 2018, the Assistant Minister decided not to revoke the cancellation decision. The Full Court set aside this decision on 25 June 2020 and remitted the decision to be made according to law. On 9 October 2020, a delegate of the Minister decided not to revoke the cancellation decision.

9    On 23 December 2020, the Tribunal affirmed the decision under review (9 October 2020 decision). The Tribunal gave reasons for its decision. The Tribunal’s decision records that a hearing was held on 15 and 16 December 2020, both the Minister and the applicant were legally represented, that the applicant, the applicant’s half-brother and his mother gave evidence. The Tribunal admitted into evidence two statements from the applicant, a statement from the applicant’s mother, a statement from the applicant’s half-brother, and course completion certificates. It also had before it documents of the decision history. Finally, the Tribunal had before it the applicant’s Statement of Facts, Issues and Contentions (ASFIC) and Annexure (ASFIC Annexure), the Minister’s Statement of Facts, Issues and Contentions (MSFIC), and closing submissions from the applicant and the Minister. The Tribunal noted “all these documents were considered by the Tribunal”.

10    The Tribunal found that the applicant failed the character test by virtue of ss 501(3A), 501(6)(A) and (7)(c) of the Act. The Tribunal then considered whether there is “another reason” why the mandatory cancellation of the applicant’s visa should be revoked, in accordance with s 501CA(4)(b)(ii) of the Act.

11    The grounds of alleged jurisdictional error are concerned exclusively with the Tribunal’s consideration of the “other” consideration, namely Australia’s international non-refoulement obligations. In this respect, the Tribunal in its Reasons made the following relevant findings:

(a)    The Tribunal found that the primary consideration of protection of the Australian community weighed against revoking the mandatory cancellation of the visa, and ‘relatively heavily so’: Reasons [121].

(b)    The Tribunal found that the primary consideration of the best interests of minor children weighed in favour of revoking the mandatory cancellation of the visa: Reasons [129].

(c)    The Tribunal found that the primary consideration of the expectations of the Australian community weighed heavily against revoking the mandatory cancellation of the visa: Reasons [138].

(d)    The Tribunal found that the other consideration of international non-refoulement obligations weighed, on balance, in favour of the applicant: Reasons [153].

(e)    The Tribunal found that the other consideration of the strength, nature and duration of the applicant’s ties weighed in favour of revoking the mandatory cancellation of the visa: Reasons [159].

(f)    The Tribunal found that the other consideration of the impact on Australian business interests weighed neutrally in the assessment: Reasons [162].

(g)    The Tribunal found that the other consideration of the impact on victims weighed neutrally in the assessment: Reasons [163].

(h)    The Tribunal found that the other consideration of the extent of impediments if removed weighed in favour of revoking the mandatory cancellation of the visa: Reasons [167].

12    The Tribunal then considered the above findings and, at Reasons [168] to [171], explained why it had decided, on balance, not to revoke the cancellation decision.

168     The Tribunal has weighed all the relevant considerations in the Direction. Two of the three primary considerations weigh against the Applicant, one heavily and one relatively heavily. The other primary consideration, the best interests of minor children affected by the decision, weighs in favour of the Applicant but that weight is not heavy given the age of his two half-brothers on the one hand, and the fact that, in relation to the other minor children identified, [the applicant] does not exercise a parental role and others do.

169    In respect of the other considerations, three considerations weigh in favour of the Applicant: non-refoulement obligations, the strength, nature and duration of his ties to Australia and the extent of impediments if removed. Of the remaining other considerations, they weigh neutrally. The Tribunal is not limited to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) of the Act to revoke the mandatory cancellation of the visa, but the Tribunal has not identified any other factor it should take into account which would affect the outcome of this review in respect of the exercise of the statutory discretion under the Act.

170     There are considerations which the Tribunal has found weigh in favour of the Applicant, including consideration of non-refoulement obligations and the extent of impediments [the applicant] would face if removed from Australia. While they weigh in favour of revoking the mandatory cancellation of [the applicant’s] visa, that cumulative weight is not in the Tribunal’s conclusion determinative.

171     The Applicant has persistently offended, including against a domestic partner, in a manner that was particularly unsatisfactory and which he tried to minimise at the hearing, in the face of a plea of guilt and sentencing remarks of two judicial officers. Although [the applicant] has been in Australia since 2005, he began offending some two years after arriving and his offending has been relatively persistent. The Applicant’s conduct has apparently not been improved by more lenient corrective tools deployed by the Courts, or by the more serious sanctions, and the crimes have risen in seriousness. The Tribunal concludes that the decision not to revoke the mandatory cancellation of [the applicant’s] visa was the correct decision and should be affirmed.

ground 1 – alleged failure to consider prolonged or INdefinite detention as a possible consequence of the tribunal’s decision

13    The applicant submits that the Tribunal failed to genuinely consider representations made by the applicant with respect to indefinite detention.

14    The applicant submits that the prospect of indefinite detention being a legal consequence of a decision not to revoke the original decision was first raised by the applicant’s lawyers by way of representations on 22 December 2016. Representations concerning the prospect of indefinite detention being a legal consequence of a decision not to revoke the original decision were also referred to in the ASFIC at [12(j)] and [35], they were acknowledged and responded to in the MSFIC at [81] and [82], and again in the Minister’s closing written submissions at [58].

15    The applicant submits that the Tribunal, in considering Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79:Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 79), under the heading “International non-refoulement obligations (paragraph 14.1)” found that such obligations were owed, stating: “What is, in the Tribunal’s estimation, relevant is whether PKZM would be exposed to treaty-related harm were he to go outside Juba, at least in the current (albeit improving) national situation”: Reasons [152]. The Tribunal concluded, in the applicant’s submission, that the applicant could be exposed to such harm, and the risk is not fanciful or far-fetched, given the current volatility of the security situation outside Juba: Reasons [152]. The Tribunal found that this consideration weighed, on balance, in favour of the applicant: Reasons [153]. This is then reiterated under the heading “Conclusion” in the Tribunal’s Reasons at [169] and [170].

16    The applicant submits that this is, in effect, a finding that non-refoulement obligations were owed to the applicant. That, in the applicant’s submission, is the plain and ordinary interpretation of the term “treaty-related harm” when considering the context in which it appears in the Reasons.

17    The applicant submits, that despite this finding, there is not a single mention of the applicant’s representations concerning the risk the applicant may face of indefinite detention if non-refoulement obligations are found to be owed. The applicant submits that the Tribunal’s error was material and gives rise to jurisdictional error because there is the possibility that if the Tribunal had truly engaged in an active intellectual process with the representations, it could have come to a different conclusion.

18    The applicant further submits under ground 1 that irrespective of any representations, the Tribunal was required to take into account, and engage with, the legal consequences of the decision being made.

19    The applicant submits that decision-makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the applicant if those matters are put to the decision-maker as a representation. In these circumstances, the decision-maker is obliged to consider them because of the terms of s 501CA(3) of the Act: WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ) at [136].

20    The applicant submits that he is a person who is presently an unlawful non-citizen because he has had his visa cancelled and that decision has not been revoked. The applicant submits that the Tribunal has found that if he is returned to South Sudan he could be exposed to “treaty-related harm” and as such non-refoulement obligations are engaged. In these circumstances, the applicant submits it was relevant for the Tribunal to consider, in light of Direction 79, paragraph 14.1(2) (as applying at the time of the decision) the legal consequence of the Tribunal’s decision, namely that there is the prospect of prolonged or indefinite detention. This is especially so, in the applicant’s submission, given it is highly unlikely on the facts that the applicant could access any other visa, such as a protection visa, noting that as a result of his criminal convictions, he may be considered highly unlikely to meet the requirements set out in s 36(1C) or s 36(2C)(b)(ii) of the Act. The applicant submits, on this basis, the Tribunal, regardless of representations made, was required to consider the legal consequences of its decision, and based on the record of the Tribunal, failed to do so, or alternatively, impermissibly misunderstood the operation of the Act. The misunderstanding as to the operation of the Act, or alternatively, the failure to consider the legal consequences of its decision, was material and constitutes, in the applicant’s submission, a jurisdictional error because there is the possibility that if the Tribunal had not made the error it could have come to a different conclusion.

21    The Minister submits that grounds 1 and 2 of the applicant’s amended application operate on the premise that the Tribunal recorded a finding that Australia owed non-refoulement obligations in respect of the applicant. This is said to arise from [152] of the Tribunal’s Reasons and the reference in that paragraph to exposure to “treaty-related harm” were the applicant to go outside Juba.

22    The Minister submits that the applicant’s submission takes the finding at [152] of the Tribunal’s Reasons out of context. The Minister submits that the proper interpretation of the Tribunal’s Reasons is for the opposite effect. The Minister submits that the Tribunal should be understood as recording a finding that the applicant would likely be returned to the capital of South Sudan (Juba) in circumstances that would create challenges for the applicant but which would not involve a breach of any non-refoulement obligation owed by Australia in respect of him. This follows, in the Minister’s submission, from:

(a)    the Tribunal’s identification of the various bases upon which the applicant, in the ASFIC, was said to be owed non-refoulement obligations: Reasons [141];

(b)    the Tribunal noting problems with these claims; either the applicant had not nominated them himself, despite being afforded a number of opportunities to do so and/or the evidentiary basis for the claim was tenuous or non-existent: Reasons [142]-[143];

(c)    the Tribunal’s identification of country information which was to the effect that persons of Dinka ethnicity (such as the applicant), faced a low risk of being targeted in Juba on the basis of their ethnicity because the Dinka dominated government had ‘almost unencumbered control over Juba’: Reasons [146];

(d)    the Tribunal – again by reference to country information – distinguishing between the improving situation in the capital Juba and the more volatile conditions in other parts of the country, especially the remote parts: Reasons [148];

(e)    the Tribunal acknowledging that the applicant’s lack of a network and language difficulties might create significant difficulties (in Juba) but that such difficulties did not rise to the level that complementary protection considerations might be relevant in terms of there being ‘another reason’ to revoke the mandatory cancellation of the visa: Reasons [152];

(f)    where the applicant’s and the Minister’s submissions to the Tribunal operated on the likely premise that the applicant would be returned to Juba and where the applicant identified no practical impediments for his removal to South Sudan generally and Juba specifically;

(g)    the Tribunal recorded a finding that the applicant was a citizen of the Republic of South Sudan: Reasons [25];

(h)    the Tribunal rejected each claimed basis for relevant harm identified by, or on behalf of, the applicant; and

(i)    the Tribunal identified Juba as a place to which the applicant could be returned without infringement of any cognisable non-refoulement obligation: Reasons [148] and [152].

23    The Minister submits that against the background of these findings, the Tribunal at Reasons [152] should not be understood as finding that non-refoulement obligations are owed by Australia in respect of the applicant. Rather, the Tribunal’s Reasons acknowledge that, in the event that the applicant was to leave the relative safety of Juba, he would face a heightened, albeit conditional risk, which risk was apportioned some weight by the Tribunal as ‘another reason’ to revoke the cancellation decision. This acknowledgement which operated in the applicant’s favour was not, however, directly assimilated into a finding that non-refoulement obligations were owed to the applicant.

24    In relation to the applicant’s further ground 1 which concerns an alleged failure by the Tribunal to consider prolonged or indefinite detention as a possible legal consequence of the Tribunal’s decision, the proper inference, in the Minister’s submission, to be drawn is that the Tribunal considered but rejected the representation as irrelevant.

25    The Minister submits that the Tribunal was plainly aware that the question of indefinite detention was a live issue in the remitted proceeding: Reasons [4]. However, in circumstances where non-refoulement obligations were not found to be owed in respect of the applicant and each representation made on the applicant’s behalf was tied inextricably to the contrary proposition, the Tribunal should be understood, implicitly, as rejecting the representation on the basis that it had no material relevance, reflecting the fact that the particular matter, though considered, was not a matter “activating the Tribunal when it exercised the discretion” whether to revoke the cancellation decision: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [61] (Tracey and Mortimer JJ). See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 (CTB19) at [15], citing Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [46].

Consideration of Ground 1

26    I am satisfied that the Tribunal fell into jurisdictional error in failing to genuinely consider representations made by the applicant with respect to the issue of indefinite detention. A decision-maker has a duty to consider representations made in support of a revocation request under s 501CA(4) of the Act. Representations of indefinite detention were made by the applicant, and the Tribunal made a finding that non-refoulement considerations weigh in favour of the applicant. This is apparent in the context of the paragraphs of the Reasons leading up to the findings and conclusions stated in [153] of the Tribunal’s Reasons.

27    First, it is clear from the evidence that the issue of indefinite detention was brought before the Tribunal, both as a submission and within the material that was brought before it.

28    In the Statement of Reasons for Delegate Decision under s 501CA of the Act not to revoke a mandatory cancellation visa decision under s 501(3A) (Delegate’s Statement of Reasons) dated 9 October 2020, the delegate of the Minister stated at [11], [96] and [126] as follows:

11.     I consider that the revocation request of any supporting submissions made by or on behalf of [PKZM] can reasonably be summarised as follows:

…he risks being indefinitely detained if his cancellation is not revoked

…

96.     I acknowledge that if [PKZM] did not apply for a Protection visa or did so and it was refused on character grounds, and he could not be removed from Australia (which is yet to be established), he would be likely to remain in immigration detention indefinitely [emphasis added]. I further acknowledge that this would be a very burdensome experience and likely to be harmful to his mental health.

…

126.    In reaching my decision I conclude that [PKZM] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the best interests of the children as a primary consideration, and other countervailing considerations as described above, including his claims that may give rise to non-refoulement obligations if further substantiated and fully assessed, and that he may face the prospect of indefinite detention if he cannot be removed from Australia. [Emphasis added]

29    On 22 December 2016, the applicant, through his solicitors (Victorian Legal Aid), caused a letter to be sent to the Department of Immigration and Border Protection. This letter is identified at attachment F in the index of evidence considered in the Delegate’s Statement of Reasons, and draws reference to indefinite detention at pages 5 and 8:

[PKZM’s] offending is not serious enough to warrant visa cancellation, particularly because he is a refugee and owed protection obligations, and due to the current situation in Sudan the consequence of cancellation would be indefinite detention.

…

[PKZM] faces a real risk of indefinite detention if his visa remains cancelled if he cannot return to Sudan.

30    These same representations of indefinite detention were made by the applicant in the ASFIC, where it states at [12(j)] and [45] that:

The applicant is at present a stateless person who is owed non-refoulent [sic] obligations. He risks being indefinitely detained if his cancellation is not revoked. [Emphasis added].

…

The applicant is a person who engages Australia’s non-refoulment [sic] obligations. If he were to be returned to South Sudan, Australia would act in breach of its international obligations not to return persons to place [sic] where they may be harmed. If he were to be unsuccessful two possible consequences remain. He is either returned to South Sudan, stemming from section 197C of the Migration Act, or an effective life sentence of being indefinitely detained. [Emphasis added].

31    These representations made by the applicant, although rejected, were acknowledged by the Minister in the MSFIC at paragraphs [81] and [82], where it is states:

In his written contentions at [45] the applicant submits that should the non-revocation decision be affirmed, the applicant will either be returned to South Sudan, or will face “an effective life sentence of being indefinitely detained”…

…

Furthermore, even if it were found that the applicant is owed non-refoulement obligations, that is irrelevant for the purposes of removal under section 198 … Therefore indefinite detention will not be a legal consequence of Tribunals [sic] decision, if it were to find that the applicant is owed non-refoulement obligations.

32    The above representations are referenced by the Minister in the Minister’s closing written submissions dated 18 December 2020, at [58]:

The respondent relies on [81]-[82] of his Statement of Facts and Contentions in relation to the applicant not being immediately returned to South Sudan should the decision under review be affirmed, and indefinite detention not being a consequence of a decision to affirm the applicant’s visa cancellation while finding that international non-refoulement obligations are owed.

33    As can be seen from the material outlined above, the Tribunal was plainly aware of the representations of indefinite detention put forward by the applicant.

34    Second, despite these representations of indefinite detention being made by the applicant and put before the Tribunal, the Tribunal has failed to properly consider these representations.

35    The only reference to “indefinite detention” in the Tribunal’s Reasons occurs at [4], in which the Tribunal refers to the Full Court decision of “25 June 2020” (being the decision in DQM18 v Minister for Home Affairs [2020] FCAFC 110 (DQM18) as will be discussed further below) and notes that:

The majority of the Full Court held that the Assistant Minister had failed to give meaningful consideration to representation made by the Applicant that it was not safe for him to return to South Sudan and in relation to indefinite detention.

36    Apart from this, there is a total absence of any reference to indefinite detention in the Tribunal’s Reasons.

Law on representations

37    Section 501CA(4) of the Act requires a decision-maker to consider any representations which are made in support of a revocation request:

(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.

38    The Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar) found that it is implicit under the Act that a decision-maker, in exercising their functions under s 501CA(4), is under a duty to consider representations made in support of a revocation request, and that proper discharge of that obligation requires the decision-maker “to engage in an active intellectual process with reference to those representations”: Omar at [36(d)].

39    In Omar at [41], the Full Court went on to find that, with respect to a failure to consider a substantial or clearly articulated claim which could constitute “another reason” under s 501CA(4)(b)(ii) of the Act, could give rise to a jurisdictional error:

The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error.

40    The finding outlined above in Omar at [41] concerned an appeal from this Court. However, the Full Court in XFCS v Minister for Home Affairs [2020] FCAFC 140 (XFCS) at [22] per Moshinsky, SC Derrington and Colvin JJ found that this obligation to consider representations made by the applicant also extends to the Tribunal.

41    In terms of what the Tribunal must consider, the Full Court has held that it can extend to matters not put in submissions, but which are substantial issues that clearly emerge based on the material before the Tribunal: Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55 at [66] - [70] per Bromwich and Wheelahan JJ

42    Similarly, in Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [87], the Full Court found that in addressing a clearly articulated argument advanced by the person making representations, a decision-maker under s 501CA(4) of the Act is required to give active intellectual consideration to those representations, and that the person making the representations and submissions should not be left to guess what role material considerations have played in the decision: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 at [49] per Lindgren, Rares and Foster JJ. This is particularly important where the consequences of these considerations have serious human consequences, such as deportation and exclusion from Australia: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] per Allsop CJ, with Markovic and Steward JJ agreeing.

43    In WKMZ, the majority of the Full Court at [136] per Kenny and Mortimer JJ, found that when representations concerning indefinite detention as a legal consequence are put in the context of a s 501CA(4) application for revocation of cancellation decision under s 501(3A), “the decision maker is obliged to consider them because of the terms of s 501CA(3)”. The majority noted that this is an obligation arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision (which will be discussed further below).

44    Applying the above principles to the Tribunal’s task, it is clear that no consideration was given to the representations that were made. The Tribunal did not in any way grapple with the issue of indefinite detention or analyse the issue. The Minister submits that the Tribunal was alive to the issue of indefinite detention, but did not need to consider the issue as non-refoulement was, implicitly in the Reasons of the Tribunal, found not to be owed. This is plainly incorrect, as will be outlined below.

Non-refoulement found to be owed

45    Non-refoulement obligations were clearly found to be owed to the applicant by the Tribunal in its Reasons at [152] and [153], and a natural consequence of such a finding would require the Tribunal to turn its mind to the risk of indefinite detention to the applicant.

46    Non-refoulement was a key issue in DQM18. It is relevant to add that DQM18 was also a decision that dealt with the same applicant in this matter. The Full Court in DQM18 quashed the decision of the Assistant Minister of 3 July 2018 not to revoke the original cancellation decision of the applicant, and made an order remitting the matter back to the Tribunal to be made according to law. The sixth ground submitted by the applicant in DQM18 dealt with substantially the same error relating to the Tribunal not considering the applicant’s representations in relation to indefinite detention, which is the subject of ground 1 of this application. In DQM18 at [168], their Honours Bromberg and Mortimer JJ determined that there had been a jurisdictional error due to the fact that the Assistant Minister did not properly consider representations of indefinite detention.

47    It is plain from the heading “International non-refoulement obligations (paragraph 14.1)” that the Tribunal turned its mind to these international obligations at Reasons [139] - [153].

48    Paragraph 14.1 of Direction 79 requires a decision-maker in deciding whether to revoke a cancellation of a visa to consider the issue of non-refoulement, in light of Australia’s international treaty obligations. Paragraph 14.1 of Direction 79 states:

14. Other considerations - revocation requests

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.

49    The Tribunal, in weighing each of the above considerations in paragraph 14.1 of Direction 79 found that such obligations were owed, stating at Reasons [152] and [153], that:

What is, in the Tribunal’s estimation, relevant is whether PKZM would be exposed to treaty-related harm were he to go outside Juba, at least in the current (albeit improving) national situation. The Tribunal concludes that the applicant could be exposed to such harm, and the risk is not fanciful or far-fetched, given the current volatility of the security situation outside Juba.

…

The Tribunal finds that this consideration weighs, on balance, in favour of the Applicant.

50    The Reasons at [169] also state that non-refoulement obligations should be owed to the applicant:

…three considerations weigh in favour of the Applicant: non-refoulement obligations

51    This position is reiterated by the Tribunal at Reasons [170]:

There are considerations which the Tribunal has found weigh in favour of the Applicant, including consideration of non-refoulement obligations …

52    It is clear from the Tribunal’s Reasons that non-refoulement obligations were found to be owed to the applicant, and further, the reference to “treaty-related harm” should be understood as a reference to Australia’s treaty-related obligations under the Refugees Convention, International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which fall within the definition of “non-refoulement” at s 5 of the Act.

53    Despite the Tribunal’s finding that the applicant is owed non-refoulement obligations in that the risk of harm if he is returned to South Sudan is “real and not remote or fanciful”: Reasons [140], there is no mention of the applicant’s representations concerning the risk that he may face of indefinite detention if non-refoulement obligations are found to be owed.

54    The Tribunal stated at Reasons [169], that it had not identified any other factor that it should take into account which would affect the outcome of this review in respect of the exercise of the statutory discretion under the Act. This is plainly wrong, given that a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant.

55    While the Minister posited that the Tribunal in its Reasons at [4], was “plainly aware” that indefinite detention was a live issue but, due to, in the Minister’s view, non-refoulement not being made out in respect of the applicant, that the representation did not need to be properly considered. I reject this proposition. Non-refoulement was clearly considered and found to be owed by the Tribunal. In doing so, proper consideration of the issue of indefinite detention should have taken place, but it did not.

56    The Minister also put forward that the Tribunal should be understood, implicitly, as rejecting the representation on the basis that it had no material relevance, reflecting the fact that the particular matter, though considered, was not a matter ‘activating the Tribunal when it exercised the discretion’ whether to revoke the cancellation decision: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [61] per Tracey and Mortimer JJ and CTB19 at [15], citing Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [46] (Buadromo).

57    What is clear, in the case of Buadromo, (which was cross-referenced in CTB19 at [15(9)]) when put in contrast with this matter before me, is that in Buadromo the representations which were made by the applicant, were indeed addressed by the Assistant Minister and their consequences were grappled with.

58    The Full Court in Buadromo considered that, not only did the Assistant Minister (referred to in this case as the Parliamentary Secretary), who was the decision-maker in that case, note the representations which were advanced, but the Assistant Minister engaged with their consequences (in whether the applicant had skills to find work and whether his children would suffer a lack of financial support), at [56] and [58]:

In his reasons, the Parliamentary Secretary recorded as one of the reasons advanced by Mr Buadromo in favour of revoking the original decision to cancel, the following:

It will be “impossible” for him to find work in Fiji to provide for the family.

(Parliamentary Secretary’s reasons at [12].)

…

The Parliamentary Secretary addressed whether Mr Buadromo was likely to find employment in Fiji or sufficient employment in order to provide for his family. He found that Mr Buadromo has some work skills which may help him in gaining employment in Fiji (at [41]). He found that it was in the best interests of Mr Buadromo’s children that he revoke the decision to cancel Mr Buadromo’s visa and that one of the reasons for this conclusion was that if in Australia, Mr Buadromo could continue to provide financial support for his children and that they would suffer a lack of financial support (at [21]) and financial hardship (at [22] and [34]) if the cancellation was not revoked.

59    On that basis, the Full Court found that was enough to fulfil the requirement with respect to considering the representations put forward in Buadromo at [59]:

We do not think the Parliamentary Secretary was required to make a precise finding about Mr Buadromo’s prospects of obtaining employment in Fiji. He addressed the issue finding that Mr Buadromo had work skills which may help him gain employment in Fiji and expressly found that his children would suffer hardship were Mr Buadromo to be in Fiji rather than Australia.

60    Unlike in Buadromo, the Tribunal here plainly failed in its task to properly consider the relevant representation nor has it grappled with the facts. The Tribunal’s error was material and gives rise to jurisdictional error because there is the possibility that if the Tribunal had truly engaged in an active intellectual process with the representations, it could have come to a different conclusion: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31] per Kiefel CJ, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

61    I am also satisfied that the Tribunal made a jurisdictional error in failing to properly understand the legal consequence of a finding of non-refoulement in the case of the applicant. The operation of the Act is such that detention of a prolonged or indefinite nature would be a legal consequence of a decision not to revoke a cancellation decision of the Minister under s 501CA(4) in circumstances where non-refoulement obligations were found to exist in the case of the applicant.

62    The Tribunal was required to correctly understand the Act or its operation: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12; [2019] FCAFC 89 per White, Perry and Charlesworth JJ at [52] – [56] (Ibrahim); Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [33] per Gageler and Keane JJ, and Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 at [189] and [196] per Gummow and Hayne JJ, Gleeson CJ agreeing at [1]. With respect to the operation of the Act in the case of the applicant, the Tribunal was required to understand that the legal consequence of a finding not to revoke a visa cancellation decision under s 501CA(4), in circumstances where the applicant was also found by the Tribunal to be owed non-refoulement obligations, would consequently place the applicant in indefinite detention. This is by virtue of the applicant not being able to be returned to South Sudan, being unable to return to Australia and therefore remaining in immigration detention for an undefined time.

63    In WKMZ, the majority at [132], defined “indefinite detention” as “detention without a chronologically fixed endpoint”.

64    The majority of the Court in WKMZ found that indefinite detention was a legal consequence because it was a consequence arising from the legal effect of the provisions of the Act, such as removal from Australia, including in circumstances contemplated under s 197C per Kenny and Mortimer JJ in WKMZ at [120] citing Al Kateb v Godwin [2004] HCA 37; 219 CLR 562.

65    On that definition, the majority found at [123], that:

If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label “indefinite” is attached to it

66    The majority in WKMZ found that “indefinite detention” was a legal consequence because the result of a decision to not revoke a visa cancellation decision under s 501CA(4) was prolonged or indefinite detention, and this consideration was relevant, regardless of the visa under consideration, at [136]:

A decision maker in any revocation decision under Part C of Direction 79 should consider this [indefinite detention] as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38]-[41], followed in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [30].

67    The Tribunal found that the applicant, if he is returned to South Sudan, could be exposed to “treaty-related harm” and as such non-refoulement obligations are engaged. Applying the reasoning of the majority in WKMZ, it becomes relevant for the Tribunal to consider, in light of Direction 79, paragraph 14.1(2), the legal consequence of the Tribunal’s decision, namely that there is the prospect of prolonged or indefinite detention and that the Tribunal failed to do so, or alternatively, impermissibly misunderstood the operation of the Act. The misunderstanding as to the operation of the Act, or alternatively, the failure to consider the legal consequences of its decision, was material and constitutes a jurisdictional error because there is the possibility that if the Tribunal had not made the error it could have come to a different conclusion.

68    For the reasons given above, I am satisfied that ground 1 has been made out.

ground 2 – alleged failure to consider impact on australia’s reputation

69    The applicant submits that whilst the Tribunal accepted that non-refoulement obligations were owed, it did not appear to give genuine consideration to representations made that if non-refoulement obligations were owed, and the visa cancellation decision was not revoked, then the applicant would be refouled and that would have adverse consequences for Australia as distinct to the consequences of harm to the applicant.

70    The applicant submits that the Tribunal did not address, in any meaningful way, the relevant representations made by the applicant about the impact refouling the applicant would have on Australia’s international reputation. The applicant submits that this error of the Tribunal was material and gives rise to jurisdictional error because there is the possibility that if the Tribunal had truly engaged in an active intellectual process with the representations, it may have come to a different conclusion.

71    The Minister submits, in relation to ground 2, that the Tribunal should be understood, implicitly, as rejecting the representation that Australia’s reputation or interest might be adversely affected by the decision which resulted in the deportation of the applicant. The premise for this representation (that Australia owed non-refoulement obligations in respect of the applicant) was absent. Any failure to consider the representation (which was not admitted by the Minister) was not, for the same reason, material.

Consideration of Ground 2

72    I am satisfied that the Tribunal failed to consider representations made by the applicant that there would be a negative impact on Australia’s international reputation in the event that non-refoulement was found and the applicant was refouled.

73    First, the applicant made representations to the Tribunal and the Minister that Australia’s international reputation could be harmed if non-refoulement obligations are found to be owed and the applicant is refouled, and further, these representations were not acknowledged by the Tribunal in its Reasons, giving rise to a jurisdictional error.

74    The applicant submits in the ASFIC at [38(c)-(d)] under the heading “Australia’s non-refoulement obligations” that:

c. Should the Applicant be unsuccessful in this review he is liable to being returned to South Sudan immediately, in breach of Australia's non-refoulement obligations.

d. A breach of those obligations:

i. Adversely impacts the applicant and his personal safety; and

ii. Brings Australia into disrepute and compromises its global standing and therefore is contrary to the national interest; [emphasis added]

75    The Minister in the MSFIC at [72.1], rejected these representations, but acknowledged that they were made:

The applicant at [38a] of his contentions asserts that “it is clear from the facts of the case that the applicant is a person with respect of whom Australia owes non-refoulement obligations”. The applicant then builds on this foundational assertion by contending at [36c] that should the applicant be unsuccessful in this review, then he is liable to being returned to South Sudan immediately “in breach of Australia’s non-refoulement obligations”, which (at [38dii]) would both adversely impact the applicant and his personal safety, and bring Australia into disrepute and compromise its global standing, which would be against the national interest. Bothe [sic] these factors (the applicant’s safety and Australia’s international standing) should be weighed by the Tribunal in relation to international non-refoulement obligations, and ultimately in deciding whether there is ‘another reason’ why the visa cancellation decision should be revoked. [Emphasis added]

76    The applicant further submits in the ASFIC at [43], that:

For clarity, the Applicant makes express representations that a breach of non-refoulement obligations would be contrary to the dictates of good government, unequivocal Australian government policy, and Australia's national interest, and would adversely impact upon Australia’s international standing.

77    Annexed to the ASFIC at Annexure A is a document entitled “Submissions and country information in relation to Australia's non-refoulement obligations and impediments to the Applicant upon return to South Sudan”. Page 2 of this annexure states:

…the existence of non-refoulement obligations under s 501CA(4) for the purposes of this review are as follows:

1. The impact on the applicant resulting from him being returned to South Sudan in breach of international obligations.

2. The impact on Australia and its international standing resulting from such breach. [Emphasis added]

78    The Minister identified that that the proper test was that, if the Tribunal found that international non-refoulement obligations were owed to the applicant, consideration must be given to the impact that would occur to Australia’s international reputation if the applicant is removed from Australia and deported to South Sudan, at MSFIC [80]:

However, should the Tribunal find that international non-refoulement obligations are owed to the applicant, then this factor should be given significant weight in favour of revocation of the visa cancellation decision, and the Tribunal should also consider what weight to give to the impact on Australia’s international reputation of removing the applicant to South Sudan in circumstances where he is viewed as being owed international non-refoulement obligations.

79    In the Minister’s closing written submissions, the Minister at [57] identified that the Tribunal should consider the impact on Australia’s international reputation in removing the applicant to South Sudan in circumstances where the applicant has been found to be owed these non-refoulement obligations:

However, should the Tribunal find that international non-refoulement obligations are owed to the applicant, then the Tribunal should also consider the impact on Australia’s international reputation of removing the applicant to South Sudan in circumstances where he has been assessed as being owed international non-refoulement obligations, and significant weight should be given to this consideration in favour of revocation.

80    It is plain from the above passages from the ASFIC, that the applicant made representations to the Tribunal that Australia’s international reputation could be harmed if non-refoulement obligations were found to be owed and the applicant was refouled. It is clear that these representations were acknowledged by the Minister in the MSFIC and in the Minister’s closing written submissions, however the Tribunal failed to give any acknowledgment to the representations that had been made in its Reasons.

Law on representations with respect to Australia’s reputation

81    As outlined above, the Tribunal accepted that non-refoulement obligations were owed, but it failed to give genuine consideration to representations made that if non-refoulement obligations were owed, and the non-revocation decision was not revoked, then the applicant would be refouled and that this would have adverse consequences for Australia’s international reputation.

82    In Ali v Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 (Ali), the first ground of review (which was made out) concerned a failure by the Tribunal to properly consider representations that a cancellation decision would expose the person to harm and would also result in Australia breaching its international non-refoulement obligations. The Full Court considered that one of the consequences for not complying with Australia’s treaty obligations is that it “impacts upon Australia’s reputation and standing in the global community” Ali at [91] per Collier, Reeves and Derrington JJ.

83    In Ali at [103], the Full Court held that a failure to consider the grounds that were articulated by the appellant with respect to Australia’s reputational interests constituted a jurisdictional error:

The necessary consequence is that the Assistant Minister did not consider the clearly articulated ground advanced by the appellant. He did not consider whether Australia owed non-refoulement obligations to the appellant, whether they arose under s 36(2) of the Act, the Convention or otherwise. He did not consider whether in returning the appellant to Ethiopia those obligations would be breached, and he did not consider the consequences for Australia of that breach. In light of the recent authorities, in particular the decision of the Full Court in GBV18 (FC) and Charlesworth J in Hernandez, those omissions constituted a failure by the Assistant Minister to comply with the requirements of s 501CA(4) for the purposes of ascertaining whether he formed the required state of satisfaction. He was not entitled to “carve off” a consideration of them for possible examination at a later stage and his attempt to do so constituted a reviewable error.

84    This point was also recognised by Charlesworth J in Hernandez v Minister for Home Affairs [2020] FCA 415 where her Honour identified that a factor relevant in any assessment of weighing up non-refoulement as “another reason” under s 501CA(4) is that “at the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law”, at [63]:

Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.

85    The Minister submits that the Tribunal should be understood, implicitly, as rejecting the representation that Australia’s reputational interests might be adversely affected by such a decision because non-refoulement has not been made out. I reject this submission.

86    As set out in the ground above, the Tribunal considered non-refoulement obligations, and found that they were engaged. However, the Tribunal did not, at any point, address in any way, the clearly made relevant representations by the applicant about the impact that refouling the applicant would have on Australia’s international reputation.

87    The Tribunal’s error was material and gives rise to jurisdictional error because there is the possibility that if the Tribunal had truly engaged in an active intellectual process with the representations, it may have come to a different conclusion.

88    The effect of the above is that ground 2, being the failure to consider the impact on Australia’s reputation, is made out.

ground 3 – alleged impermissible misundertand of the act and its operation

89    The applicant submits that the Tribunal in purporting to deal with Australia’s international non-refoulement obligations misunderstood the Act or its operation. The applicant refers to [151] of the Tribunal’s Reasons headed “non-refoulement obligations”, which states:

The Respondent noted that PKZM has had opportunities to apply for a protection visa, which he has not taken up. He still has such an opportunity and, by consistent submissions on government policy, that the Respondent has made in successive similar matters before the Tribunal, while such an application is properly considered [sic]. The proper consideration of such an application would allow expansion of any claims that PKZM might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered.

90    The applicant submits that the above paragraph at [151] of the Tribunal’s Reasons appears to be a conflation between the expansive process available in considering “another reason” under s 501CA(4) and the more limited and narrow process that occurs under s 36 of the Act with respect to a protection visa application. The applicant submits that the Tribunal can be said to have misunderstood that “non-refoulement” of the kind covered by “Australia’s treaty obligations” would be considered under a s 36 process, and that this would allow, in fact, for “expansion” of such claims by the applicant.

91    The applicant submits that there are fundamental differences between Australia’s non-refoulement treaty obligations, and the protection obligations relevant to a protection visa process. The applicant submits that the Tribunal, by conflating the two processes, has misunderstood the Act and its operation and has thereby made a jurisdictional error. The applicant submits that the Tribunal, in misunderstanding the Act when considering non-refoulement obligations meant that the Tribunal accorded a certain weight to its non-refoulement findings, premised on a legally erroneous basis that such matters would be “properly considered” at a possible future point under a protection visa application. This, the applicant submits, misunderstands the operation of the protection visa application process which calls for an assessment of whether the visa criteria are, or are not, met: FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 (FAK19) at [58] and [59].

92    The Minister submits that ground 3 of the amended application involves the contention that the Tribunal conflated the “expansive process available in considering another reason under s 501CA(4) and the more limited and narrow process that occurs under s 36 of the Act with respect to a protection visa application”: Reasons [29]. This is said to follow from [151] of the Tribunal’s Reasons and, in particular, the Tribunal’s acknowledgement that “the proper consideration for such an application [a future application for a protection visa] would allow expansion of any claims that [the applicant] might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered”.

93    The Minister submits that this contention involves a further misconstruction of the Tribunal’s Reasons. The Tribunal considered the applicant’s claims that (if accepted) were potentially capable of giving rise to non-refoulement obligations but was not satisfied that they had been substantiated. In the Minister’s submission, the reference to “expansion” at [151] of the Tribunal’s Reasons should be understood as an acknowledgement that should the applicant avail himself of the future opportunity to make an application for a protection visa, he would have a further opportunity to enlarge and improve upon the factual basis of such claims.

94    The Minister submits that the Tribunal did not use “analogous wording” to the Tribunal whose decision was impugned in FAK19 and neither did it avoid the question of whether breach by Australia of its international law obligation was a reason to revoke the cancellation decision in the discretionary exercise of the power conferred by s 501CA(4), including because it assumed that a breach by Australia of such obligations might be avoided by the decision-maker on a future protection visa application.

95    The Minister submits that the Tribunal grappled with the question of non-refoulement obligations but found that, because of the conditions in Juba, these obligations were not owed to the applicant. The Minister submits that the fact that the Tribunal did not discount the possibility that, on a separate occasion, the applicant might achieve a different result, does not evince a misunderstanding by the Tribunal as to the operation of the Act. In the Minister’s submission, the reference to “Australia’s treaty obligations” should be understood as a reference to Australia’s interpretation of those obligations within the context of the Act and within the parameters of a decision made under s 65 of the Act.

Consideration of Ground 3

96    I am satisfied that the Tribunal fell into jurisdictional error in failing to properly understand the Act or the Act’s operation with respect to the process that is available to the Tribunal under s 501CA(4) when considering Australia’s non-refoulement obligations in accordance with paragraph 14.1 of Direction 79. The Tribunal, in its Reasons, has impermissibly conflated the process that occurs under s 36 of the Act, with respect to a protection visa application, with the process that should have occurred under s 501CA(4) of the Act. In doing so, the Tribunal in its reasoning did not accord proper weight to Australia’s non-refoulement obligations, as it incorrectly took the view that this consideration would be addressed in the context of an application for a protection visa at a later stage.

97    First, the Tribunal in its Reasons at [151] has clearly taken the view that non-refoulement would only be properly considered in the event that the applicant applies for a protection visa under s 36 of the Act, and that this would allow in fact for “expansion” of such claims by the applicant at this future point in time. This, however, amounts to an impermissible misunderstanding of the Act and its operation. This is because s 36(2) of the Act has a narrower operation (being Australia’s protection obligations relevant to a protection visa process) than would otherwise be afforded to the applicant. This should have been taken into account by the Tribunal when considering non-refoulement obligations under paragraph 14.1 of Direction 79 as “another reason” why the non-revocation decision should be revoked under s 501CA(4)(ii).

98    Second, in light of the above, the Tribunal failed to give proper weight to the consideration of non-refoulement under paragraph 14.1 of Direction 79, when deciding whether to revoke a mandatory cancellation of a visa. Because the Tribunal took the view that non-refoulement would only need to be properly considered at a later point in time, the Tribunal has applied this consideration under a false premise which had the effect of the Tribunal not according proper weight to it.

99    As was found in Ibrahim at [103]-[110], there are fundamental differences between Australia’s non-refoulement treaty obligations, and the protection obligations relevant to a protection visa process under s 36 of the Act.

100    In Ibrahim at [102] and [103], their Honours White, Perry and Charlesworth JJ point out that “non-refoulement obligations” as defined under s 5 of the Act are not confined to the Refugees Convention, but encompass broader international obligations undertaken by Australia with respect to other international treaties and conventions:

non-refoulement obligations includes, but is not limited to:

(a) non-refoulement obligations that may arise because Australia is a party to:

(i) the Refugees Convention; or

(ii) the Covenant; or

(iii) the Convention Against Torture; and

(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

…

The definition confirms that the term “non-refoulement obligations” encompasses obligations undertaken by Australia pursuant to certain international treaties (and not just the Refugees Convention). It is not confined to the protection obligations to which s 36(2) refers.

101    As their Honours found in Ibrahim at [103] above, s 36(2) of the Act has a narrower focus than Australia’s non-refoulement obligations under its definition in s 5 of the Act. The Act, under s 36(2) is relevant only to protection visas and is confined, in scope, to individuals applying for a protection visa, rather than individuals who fall within the broader category of international treaty obligations which are found under s 5 of the Act.

102    The applicant submits that in FAK19 (which is currently on appeal to the Full Court), very similar wording to the Tribunal’s Reasons at [151] was considered. In FAK19 at [55], Charlesworth J considered the wording which appeared below at paragraph [103] in the Tribunal’s decision with respect to the applicant in that case:

… This factor [international non-refoulement obligations] weighs heavily in favour of revoking the cancellation, but I note that the applicant has the opportunity of applying for a protection visa, at which time claims as to non-refoulement obligations will be more fully explored.

103    At [58] and [59], Charlesworth J finds that the reasoning of the Tribunal was incorrect and amounted to a jurisdictional error. This was because the Tribunal deferred its consideration of non-refoulement under s 501CA(4) on the basis that under a possible latter made protection visa application “claims as to non-refoulement obligations will be more fully explored”:

58.    First, whilst it is true that the factual claims of feared harm could be more fully explored on a protection visa application, as has been explained earlier in these reasons, there is no reason for a decision-maker under s 65 to “fully explore” the question of whether or not Australia owes non-refoulement obligations (as that term is defined in the Act) to the visa applicant. The visa application process does not call for a full exploration of Australia’s international obligations under international law. Rather, it calls for a binary assessment of whether the visa criteria are or are not met.

59.    Second, even if the question were to be “fully explored” by another decision-maker on a protection visa application, the nature of the power conferred by s 65 of the Act is such that the existence of non-refoulement obligations (as defined) could make no difference to the outcome. On a protection visa application, the applicant would either fulfil every one of the visa criteria (not being limited to the criteria in s 36(2)) or he would not. If not, then the mandated consequence would be a decision under s 65(1)(b) to refuse to grant the protection visa irrespective of whether the applicant is a person in respect of whom Australia owes international law obligations. In that mandated event, the removal of the applicant to Afghanistan would also be mandated, irrespective of the existence of the obligation: Act, s 197C. All of that is to be contrasted with the evaluative exercise to be performed under s 501CA(4), being a statutory context in which the prospect of Australia being in breach of its obligations under international law may be considered as a factor weighing in favour of the exercise of the power in the applicant’s favour.

104    As identified by Charlesworth J, “the [protection visa] visa application process does not call for a full exploration of Australia’s international obligations under international law. Rather, it calls for a “binary assessment of whether the visa criteria are or are not met”. This is in contrast to the non-refoulement obligations which must be fully considered under s 501CA(4).

105    Her Honour found that there was a jurisdictional error because it afforded that ground less weight as the Tribunal made a decision that was premised on the legally erroneous basis that issues pertaining to non-refoulement would only need to be properly considered at a possible future point under a protection visa application.

106    Ground 2 in FAK19, which was advanced, but not determined, was that, if there was not a deferral of non-refoulement considerations, and the Court interpreted the Tribunal’s decision to have grappled in some way with non-refoulement, then there is still jurisdictional error, because it afforded that ground less weight under the legal error that non-refoulement could be properly considered in a later protection visa application. As her Honour stated in FAK19 at [64] and [65]:

The second ground of review was premised on an alternative interpretation of the Tribunal’s reasons to that asserted in the first ground. It proceeds from an assumption that the Tribunal did consider the prospect of Australia breaching its international law obligations as a factor weighing in favour of revocation, but afforded that consideration less weight than it otherwise would have done because of its erroneous assumption that the existence of the obligation would be “more fully explored” in the course of deciding the anticipated protection visa application. It is submitted that it was irrational for the Tribunal to afford less weight to the consideration because its reasons for doing so reflected an erroneous understanding of the operation of the Act. More directly (and preferably) it was submitted that by affording less weight to the consideration the Tribunal proceeded on an incorrect understanding of the law.

I have concluded that the interpretation of the Tribunal’s reasons asserted in the first ground of review is to be preferred to that underpinning the second. Accordingly, the second ground of review will not be upheld.

107    I agree with the applicant’s submission that the wording which Charlesworth J considered above in FAK19, is substantially similar to the wording of the Tribunal in its Reasons at [151]. I also respectfully agree with the reasoning of her Honour in that case, that jurisdictional error, with respect to ground 2, which was not determined, would be made out. I am also of the view that jurisdictional error has been made out here.

108    Applying the reasoning of the Court in Ibrahim and FAK19 to the present case, it is clear that the Tribunal impermissibly misunderstood the Act by conflating the expansive process available in considering “another reason” under s 501CA(4) and the more limited and narrow process that occurs under s 36 of the Act with respect to a protection visa application.

109    The Tribunal’s decision in Reasons at [151] offends the requirement to have a correct understanding of the Act or its operation. By taking the view that Australia’s non-refoulement obligations would only be properly considered at a later point in time, and under a s 36 protection visa application, the Tribunal afforded less weight to this consideration.

110    The Tribunal’s failure to correctly understand the Act and its operation is material and constitutes a jurisdictional error. This is because there is the possibility that if the Tribunal had not made the error, it could have dealt with the representations relating to non-refoulement obligations and given this issue proper weighting and therefore could have come to a different conclusion.

111    The effect of the above is that ground 3, being the failure to understand the Act or its operation, is made out.

Disposition

112    The application will be allowed, the Tribunal’s decision quashed, the Tribunal should be ordered to be make the decision according to law and the First Respondent should pay the applicant’s costs of this proceeding.

Associate:

Dated:    27 July 2021