Federal Court of Australia

AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105

ORDERS

THE COURT ORDERS THAT:

1.    The application made on 19 March 2021 to strike out the proceeding be dismissed.

2.    The time in which an application for judicial review of the decision of the Administrative Appeals Tribunal made on 26 February 2018 be brought, be extended to 15 February 2021.

3.    The judicial review application be dismissed.

4.    There be no orders as to costs in respect of the interlocutory applications, nor as to the proceeding as a whole.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    There are three matters before the Court, which the parties agreed could be heard and determined together, in the somewhat unusual circumstances to which they give rise.

2    On 4 February 2021, the applicant lodged an application for an extension of time in which to file an application seeking judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal. The Tribunal’s decision was made on 26 February 2018. The Tribunal decided to affirm a decision of a delegate of the first respondent, the Minister, not to revoke the mandatory cancellation of the applicant’s Class AZ Subclass 866 Protection visa.

3    The Minister has applied for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth). The Minister has taken that step because this is the second attempt by the applicant to review the Tribunal’s decision. In May 2018, the applicant filed an application for judicial review, which was heard and determined after an extension of time had been granted by consent: see [2019] FCA 521. The judicial review application was dismissed. An appeal from the Court’s orders was dismissed by the Full Court: see [2020] FCAFC 4. An application for special leave to appeal from the Full Court’s orders was dismissed: see [2020] HCASL 227. I have not included the full citations because the applicant’s name was, for some reason, used in all three decisions. It appears it should not have been, given the applicant held a protection visa, taking into account the terms of s 91X of the Migration Act 1958 (Cth), and the practice of this Court and the Tribunal in such cases. The Tribunal’s decision was published with a pseudonym, as is its usual practice. The applicant was given a new pseudonym when his recent extension of time and proposed judicial review application was filed. The cautious course is to maintain his anonymity as far as practicable.

4    It is common ground that the current grounds of judicial review were not raised at first instance or on appeal in the previous proceedings. The new grounds centre on the way the Tribunal dealt with an International Treaties Obligations Assessment (ITOA) which had been conducted in relation to the applicant, the Tribunal’s alleged misunderstanding of the basis on which the applicant had been granted a protection visa, and finally the Tribunal’s approach to the application of the cessation clause in the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention) to the applicant’s circumstances.

5    The Minister submits that, on a number of bases, no extension of time should be granted; or if it is, summary judgment should be given in the Minister’s favour. Counsel for the applicant submit that the circumstances are sufficiently unusual, and the arguments on judicial review now raised sufficiently strong, that not only should an extension of time be granted, but the Minister’s interlocutory application should be dismissed, and the judicial review application upheld, with orders setting aside the Tribunal’s decision. The Court acknowledges the role played by the three counsel and instructing solicitor who acted pro bono publico for the applicant in these proceedings.

6    For the reasons set out below the Minister’s strike out application will be dismissed and an extension of time will be granted, but the judicial review application will be dismissed.

Background

7    Most of the necessary background to the applicant’s current circumstances is set out in the Full Court’s reasons at [3]-[8]:

The appellant, an Algerian citizen, arrived in Australia in 1997 at the age of 29.

In 1999, the appellant commenced a relationship with an Australian citizen who continued to be the appellant’s partner at least until the time of the Tribunal’s decision. The appellant and his partner have one child, born in 2000. At the time of the Tribunal’s decision in February 2018, this child was 17 years old.

The appellant commenced paid employment in Australia in 1999. In 2001, he suffered a back injury while at work. In 2002, the appellant was granted a disability support pension because he could no longer work as a result of the injury.

Also in around 2002, the appellant commenced using drugs and became addicted to “ice”. Thereafter, over a lengthy period, the appellant was convicted of over 60 offences of varying degrees of seriousness. The primary judge found that the appellant carried out a large number of crimes commencing in 2003 for a period of around 13 years. His Honour noted the appellant’s contention that his crimes were committed for the purpose of funding the appellant’s drug habit.

In February 2016, the appellant’s visa was cancelled. The appellant accepts that the visa was subject to mandatory cancellation under s 501(3A) of the Act because of the combination of the sentences of imprisonment imposed on the appellant and the fact that, at the time the decision was made, the appellant was in prison.

In November 2017, the delegate declined to exercise the power under s 501CA(4)(b)(ii) of the Act to revoke the visa cancellation.

The appellant applied to the Tribunal to review the delegate’s decision. According to the Tribunal, the appellant requested revocation of his visa cancellation “principally on the ground of the harmful breakup of his family”.

8    It is the 2018 Tribunal decision that the applicant again seeks to have reviewed in this Court.

9    The only other factor which should be highlighted is that the visa granted to the applicant was a protection visa; namely a Class AZ Subclass 866 Protection visa granted on 7 June 2001: see Tribunal reasons at [1].

The parties’ arguments in summary

The Minister

10    The Minister advanced five contentions, summarised at [3] of his written submissions. Given the overlap between the matters to be considered for an extension of time, a strike out, and the substantive application, the Minister relied on these five points for all three aspects.

The cause of action claimed by the applicant, namely, judicial review of the Tribunal decision, has merged into judgment in a prior proceeding, and, as such, is res judicata;

The applicant raises issues that were not, but which, if he wished to rely upon them, should have been litigated in earlier proceedings, such that he is estopped from raising these matters in a subsequent proceeding (Anshun estoppel);

The bringing of this proceeding is an abuse of process;

The single ground of review identified in the draft originating application is not reasonably arguable;

The applicant’s explanation for the delay is not acceptable and other discretionary factors do not favour the grant of an extension of time.

11    The Minister emphasised that the applicant had been represented by counsel on the previous judicial review, and had advanced five grounds of review. The trial judge then identified two further issues not raised by the applicant, and invited further submissions on those matters. In that sense, the Minister submitted there had been a fulsome challenge to the Tribunal’s decision. The applicant was also represented by counsel in the Full Court appeal. He also applied for special leave to appeal to the High Court, which was refused on the papers.

12    The Minister submits that because the nature of the former proceedings was that of a judicial review, the “cause of action” for the purposes of the application of the principles of res judicata, is judicial review. If that is correct, then the cause of action has merged into the judgment and no longer has an independent existence: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 597.

13    If it is not appropriate to characterise the cause of action as judicial review, but rather to characterise different grounds of judicial review as different causes of action (and counsel for the Minister accepted there are some authorities which may suggest that is the case), then the Minister submits the applicant is estopped, by an application of the principles in Anshun from raising the new grounds of judicial review, because it was unreasonable not to have raised them in the previous proceedings, and there are no special circumstances which should persuade the Court to permit him to do so.

14    Third, even if neither res judicata nor Anshun apply, the Minister submits the Court can nevertheless find the current application for judicial review to be an abuse of process, because the applicant is re-litigating challenges to the same Tribunal decision which has been the subject of first instance judicial review, appeal and a special leave application, and there are public policy considerations which should cause the Court not to permit such an approach. On this submission, the Minister referred the Court to Garrett v Make Wine Pty Ltd [2014] FCA 1258; 323 ALR 652 at [151].

15    Fourth, there should be no extension of time granted because there has been a long delay, and in this situation (unlike the position often faced by the Minister) there is real prejudice to the Minister in defending the same Tribunal decision again, and this has force even beyond the policy considerations behind Anshun and abuse of process principles. Properly, counsel for the Minister accepted that the strength of the arguments about extension of time turned to a considerable extent on the Court’s view of the underlying merits of the new judicial review grounds.

16    As to those merits, the Minister contends the question whether the applicant’s circumstances at the time of the Tribunal hearing engaged Australia’s international non-refoulement obligations was ventilated in the hearing before the Tribunal. There had been an ITOA conducted which concluded that the applicant’s circumstances did not engage those obligations. The Tribunal was entitled to rely on that ITOA, but its reasons indicate it made its own decision whether those obligations were engaged, based on the evidence before it. The Minister submitted that the Full Court’s decision in AYX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 99 stood against the applicant’s contentions about a flaw in the approach taken in the ITOA, and the alleged consequent flaw in the Tribunal’s assessment of whether Australia’s international non-refoulement obligations were engaged in respect of the applicant’s circumstances. The Tribunal’s reasons indicate it did not misunderstand the applicant’s ongoing protection claims, and engaged with them as they emerged during the Tribunal’s review and on the material before it.

The applicant

17    Responding to the five aspects of the Minister’s submissions, the applicant submitted there was no res judicata, relying on the decision of Sackville J in BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; 67 ALD 60 at [34]-[37]. He also submitted the Minister had recognised and adopted a position in a proceeding in this Court in a manner consistent with the reasoning in BC: see DOB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1748. The applicant relied on the reasoning of Stewart J in DOB18 concerning special circumstances for the purposes of Anshun, and submitted that the proposed grounds raise important questions of law relating to the application and interpretation of the Refugee Convention, and relating to whether Australia’s existing international obligations to the applicant (by reason of the grant of a protection visa) were considered. The role of cessation was submitted to be especially important, the applicant submitting in writing:

It is a grave matter for a state to strip a person of refugee status, with no consideration of cessation and on an erroneous understanding of the basis on which they had been found to be a refugee.

18    On special circumstances the applicant also submitted that his liberty is at stake and there is a real risk he may be returned to Algeria in breach of the Refugee Convention. On any view, his removal from Australia will separate a family. Finally, he has been in a:

position of considerable vulnerability with limited access to legal services. He has had sporadic legal counsel during his lengthy battles, often appearing unrepresented, and as was the case in DOB18 the Applicant finds himself in circumstances where there is nothing approaching equality of arms against the Respondent.

19    The same features of his circumstances should persuade the Court to grant an extension of time, and to dismiss the Minister’s submissions about abuse of process.

20    At the hearing, the Court granted the applicant leave to file short supplementary submissions in relation to the Minister’s reliance on AYX16. In short, the applicant submitted the Full Court’s decision was distinguishable.

21    As to the merits of his arguments, the applicant contended that the Tribunal erred in adopting the findings of the ITOA, which was an assessment created for a different purpose – namely for an assessment of obligations through the prism of how they are expressed in the provisions of the Migration Act. He submitted the Tribunal adopted those findings “wholesale”. He submitted the correct question was whether the cessation clauses in Art 1C of the Refugee Convention applied, so that the applicant was no longer owed the non-refoulement obligations he had previously been found to have been owed (by the grant of the protection visa). Either the ITOA author impermissibly found the cessation clauses were not satisfied and so should have concluded the applicant was still a refugee; or the ITOA author impermissibly concluded that Art 1C was not engaged. The Tribunal simply adopted the findings of the ITOA, so any error in the ITOA thus infected the Tribunal’s reasoning as well. Since the applicant had advanced Australia’s existing non-refoulement obligations to him as “another reason” the visa cancellation should be revoked, the Tribunal was required to consider whether the circumstances in connection with which he has been recognised as a refugee have ceased to exist, and it did not do so.

22    Further, the applicant contended he continued to maintain at the review hearing that he feared persecution in Algeria because of a combination of his failure to honour military service obligations and his status as a failed asylum seeker; the former conduct leading (he contended) to the risk he would be imputed with an anti-government political opinion on return. Wrongly the Tribunal focussed on the applicant’s claims to having witnessed a massacre as the reason he was originally granted a protection visa. When seen in context, the applicant contends he did not withdraw or modify any of his protection claims before the Tribunal. His counsel submitted that before the Tribunal the applicant:

was unrepresented, unsophisticated, mentally ill, and with a history of drug addiction and incarceration. He was clearly not an expert in Algeria or the operation of its government.

23    Thus, the applicant submitted the Tribunal did not complete its statutory task. Its errors were material to the outcome of its review, and were therefore properly to be characterised as jurisdictional.

Resolution

An extension of time should be granted

24    I expressed my views about the correct approach to an application for an extension of time in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585, and have repeated them since: see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [13]-[16]; AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178 at [14]-[16]; CVE16 v Minister for Home Affairs [2019] FCA 175 at [2] (ex tempore); AWU16 v Minister for Immigration and Border Protection [2019] FCA 1241 at [2]. I adhere to that approach. See also, in general terms, C Pty Ltd v Sommer [2021] FCAFC 87 at [37].

25    Of course, the circumstances in the present proceeding are somewhat different, given the previous challenges to the Tribunal’s decision. Nevertheless, the application having been made, and fully argued, I do not consider the correct basis on which to deal with the application is to refuse an extension of time.

26    Much is at stake for the applicant, and the Minister properly did not suggest otherwise. The Full Court’s decision was given on 7 February 2020, and the applicant then waited until 5 November 2020 for his special leave application to be disposed of. I accept he had the benefit of pro bono counsel before the primary judge and the Full Court, and this is a factor which weighs against the grant of any extension of time being in the interests of the administration of justice. I also accept that, generally, the re-litigation of challenges to an administrative decision can be seen as contrary to the interests of the administration of justice. However that factor will usually be addressed by an application of Anshun principles. For the reasons set out below, I find there are special circumstances which render it not unreasonable for the applicant to have failed to raise these particular arguments before now.

27    The proposed grounds of review have sufficient merit at an impressionistic level to warrant the grant of an extension of time in which to bring a second judicial review proceeding.

28    I accept the situation is not precisely the same as DOB18. In that case, there was a Full Court decision (Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12) handed down while the applicant had a special leave application pending before the High Court, but he nevertheless sought to bring a second judicial review application. Stewart J made orders permitting the application to be filed, and it was in that context his Honour considered the Anshun principles and found special circumstances existed. The Minister ultimately consented to orders setting aside the Minister’s decision, on the basis of Ibrahim and another Full Court decision. Here, there is no intervening Full Court decision which explains the second judicial review application. However, at base the situation is similar; there are new arguments on judicial review, which are at least arguable.

29    In all judicial review applications, the ultimate question is whether the exercise of public power (here, of a kind that affects fundamental rights) miscarried in law in a material way so that it is liable to be set aside. As I have indicated before (ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [30]; CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [14]) it is seldom in the interests of the administration of justice that the unlawful exercise of a public power adversely affecting the fundamental rights of an individual, including their liberty, be permitted to remain effective. In what I accept is a somewhat difficult exercise of discretion in this case, I am prepared to extend time.

There is no res judicata preventing this application

30    I accept the submissions on behalf of the applicant that there is no res judicata operating against the applicant in the present situation. I respectfully agree with the observations of Sackville J in BC at [30]:

It is not necessarily a simple matter to apply the “substance” test, particularly where the applicant’s cause of action does not rest on facts that must be established by evidence, but on the grounds available for judicial review of a decision of an administrative tribunal or decision-maker. A factor to bear in mind in comparing the causes of action in different proceedings is that care is needed not to take a view that is “too expansive”: Macquarie Bank v National Mutual at 560. While Clarke JA made that observation in the context of examining the factual similarities between the two sets of proceedings, I think it equally applies to successive applications for judicial review of an administrative decision. It is to be remembered that res judicata, or cause of action estoppel, bars a litigant from pursuing a claim without the court retaining a discretion to ameliorate the application of the doctrine in unusual circumstances.

31    As Sackville J also recognised in BC at [36], it will not necessarily be the case that every “ground” of judicial review is properly characterised as a distinct “cause of action”. A qualitative assessment must be made: is the new ground really the same legal error, perhaps characterised differently? Or is it, using Sackville J’s description “distinct”? In any given case it may be straightforward to see that what is said to have caused the exercise of public power to miscarry, or to invalidate its exercise, is distinct. Each case will depend on its circumstances. However, I also respectfully agree with the observations of Sackville J in BC at [36]:

But in characterising the respective claims to set aside or quash the RRT’s decision, the court should lean towards regarding each as founding a separate legal claim for relief and therefore as constituting a separate cause of action. Otherwise there is a risk that litigants will be too readily shut out from pursuing a legitimate claim without the court being able to consider the particular circumstances of the case and, if appropriate, to exercise a discretion in favour of the applicant. In the present case, the claims made in each proceedings are sufficiently distinct to warrant the conclusion that they are founded on separate causes of action.

32    Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; 63 ALD 670 can be distinguished because in that case an applicant sought to pursue the very same grounds of judicial review that had been dismissed by consent by previous orders of the Court.

33    Here, the grounds of review now advanced are quite distinct from the previous grounds. Previously the applicant had relied upon grounds which involved an interpretation of some of the “primary considerations” in Direction 65, and what they required the Tribunal to do in relation to aspects of the applicant’s past conduct:

(a)    failure to consider the unpremeditated and accidental or careless aspects of two of the applicant’s previous offences;

(b)    not taking into account the fact that the applicant had committed no offences whilst in gaol; and

(c)    failure to have regard to the fact that the applicant’s not working was a matter of inability.

34    There was also a challenge to the Tribunal’s approach to the applicant’s medical conditions and his work prospects, in terms how these factors might affect his ability to live and work in Algeria.

35    Finally, there were several alleged errors in the way the Tribunal approached its consideration of the relationship between the applicant and his daughter, and the effect his removal would have on this.

36    It can be seen that the errors now alleged are properly described as quite “distinct” from all of these grounds.

37    There is no res judicata which operates to preclude the applicant from bringing a further judicial review in relation to the Tribunal’s decision, on the grounds now proposed.

The applicant is not estopped from raising the new grounds of judicial review

38    In BC at [26], Sackville J said:

The authorities emphasise that the Anshun principle, since it shuts out a litigant from pursuing a cause of action, should be applied only after a “scrupulous examination of all the circumstances”: Bryant v Commonwealth Bank at FCR 296; ALR 138, citing Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590; Ling v Commonwealth (1996) 68 FCR 180 at 182; 139 ALR 159 at 160, per Wilcox J; Gibbs v Kinna at 29, per Kenny JA. Moreover, the Anshun principle is subject to the “special circumstances” exception. In Bryant v Commonwealth Bank, the Full Court seemed to accept (at FCR 296, 298–9; ALR 138, 140–1) that the exception:

. . . comprehend[s] situations where, for broad discretionary considerations related to notions of justice, [the principle] should not be applied with full rigour.

See also Stuart v Sanderson at [32]–[36], per Madgwick J; Port of Melbourne Authority v Anshun Pty Ltd (No 2) [1981] VR 81 at 89, per curiam.

39    Stewart J expressed a similar view in DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575 at [27]:

Invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances, and then only in the clearest of cases. To do otherwise would be to hamper free access to the courts without careful consideration of the consequences: Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2008] FCA 1027 at [5] per Marshall J citing Ling v Commonwealth (1996) 68 FCR 180 at 182 per Wilcox J and Gibbs v Kinna [1998] VSCA 52; (1999) 2 VR 19 at [33] per Kenny JA (with whom Phillips JA agreed).

40    I respectfully agree with the approach taken by both of their Honours. Whether or not permitting the applicant to raise these new grounds may result in “conflicting judgments” in a sense raises the same difficulties about characterisation of grounds of judicial review as does the res judicata situation. It is true that if the applicant succeeds, there will be conflicting relief in relation to the Tribunal’s decision. But the reasons for that relief would not be conflicting, at least not at the level of analysis at which judicial review invariably occurs – that is, the precise way in which an exercise of public power is said to have miscarried so as to have a material effect on the outcome of the exercise of that power.

41    In circumstances such as those facing the applicant, there is good reason for caution before accepting the applicant is estopped. The applicant’s position in Australia, where he has lived for the last 24 years, is perilous. He has a partner and a family here, from whom he will almost certainly be permanently separated if he is compelled to leave Australia. As the material before the Tribunal demonstrated, as well as the material referred to in the ITOA, the situation in Algeria is such that it is unlikely a parent and her (now) young adult daughter would volunteer to move their lives there from Australia. The applicant was initially assessed as a person to whom Australia owed protection obligations. While it is the case that it is his criminal conduct which has put him in his current predicament, and that conduct has been assessed as serious, neither the visa cancellation decision nor the question whether it should be revoked have any aspect of punitive purpose about them. It would be quite wrong to conceive of the decision-making process in that way. The Australian legal system has punished the applicant for his crimes, and he has undergone that punishment. The applicant would no doubt have watched others with whom he was incarcerated, and who may have been incarcerated for even more serious offending and for much longer periods, complete their sentences and walk free, able to resume a life in Australia, with the only difference being their citizenship.

42    The only mechanism the applicant can avail himself of, subject to this Court’s leave, is to attempt to secure a further merits review of the decision not to revoke the visa cancellation. That is his only possible path to regaining his freedom in Australia. For any other positive outcome, he is entirely dependent on, first, consideration and then, favourable exercise of personal Ministerial discretions under the Act.

43    The applicant is not a young man, and he is afflicted by a number of medical and psychiatric conditions. He did not have the benefit of any legal representation before the Tribunal, but it might be hoped that would not be the case on any remitter.

44    Recognising the applicant’s circumstances as sufficiently special to justify, as Sackville J said, Anshun not being applied with its full rigour, does no more than allow the applicant a further opportunity to persuade a Court that the Tribunal’s exercise of public power miscarried. The Court was required to hear the extension of time application and the Minister’s strike out application, and the full hearing took perhaps an hour or two more than these matters alone would have taken. The additional expenditure in resources by all concerned was modest: compare, for example, the operation of Anshun in a situation where parties may be put to the cost and delays of another full trial, on witness evidence. Given the Tribunal’s review concerned a matter of such significance for him, and the arguments sought to be put have merit, in my opinion there are special circumstances which justify a finding that the applicant is not estopped from raising the current grounds of review.

The proceeding is not otherwise an abuse of process

45    Although I accept there may be circumstances where an independent contention that a proceeding is an abuse of process might be accepted, in my opinion this is not one of them. The factors which have persuaded the Court to grant an extension of time, and to find special circumstances justifying the non-application of the Anshun principle, mean that it would not be appropriate to then find the proceeding to be an abuse of process. In any event, the proceeding has been brought relatively quickly after the denial of special leave in November last year; it has been conducted efficiently and reasonably, and as I have found, in reality occupied very little extra time from what would have been necessary to deal with the Minister’s applications in any event. This argument fails.

46    In my respectful opinion, the more appropriate course in the interests of the administration of justice is to grant an extension of time, dismiss the Minister’s strike out application and deal with the applicant’s contentions on their merits. This brings finality to both parties.

47    Accordingly, the Minister has not succeeded on any of the grounds he relied upon to strike out the proceeding. However, I accept the Minister is correct to contend that the Tribunal’s decision is not affected by the jurisdictional errors alleged.

The Tribunal decision is not affected by jurisdictional error

The ITOA

48    There was nothing erroneous in the Tribunal having regard to the ITOA. Indeed, if it had been favourable to the applicant, it would no doubt have been submitted the Tribunal was required to give it significant weight.

49    An ITOA is an assessment on behalf of the Commonwealth executive about whether or not Australia’s various international non-refoulement obligations are engaged in relation to a particular person, and that person’s circumstances. It might be used for a variety of purposes in relation to powers and functions of the executive, whether in relation to a person being given permission to remain in Australia, or in relation to attempts to remove a person from Australia. See, for example, Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [56]-[57].

50    The Tribunal, also performing an executive function, albeit one which is to be performed independently from the Commonwealth executive itself, was entitled to give due consideration to the analysis in the ITOA, and to its conclusion. However the Tribunal’s task was to review for itself, afresh, whether there was “another reason” why the applicant’s visa cancellation should be revoked, and thus in substance, whether there was another reason why he should be permitted to remain in Australia. That task was committed to the Tribunal, for determination on all of the evidence and other material before it, including the oral evidence of the applicant given on the review. Where, as here, a review applicant had raised as “another reason” the proposition that Australia’s international non-refoulement obligations were engaged by their circumstances, the Tribunal itself needed to determine first, whether those obligations were engaged and second, if they were, what effect it considered that factor should have on its overall conclusion whether there was “another reason” to revoke the visa cancellation. The Tribunal could not abdicate that task to the ITOA reviewer.

51    However, on balance I do not consider in this review the Tribunal did abdicate this task. In the two key passages of its reasons which were impugned, the Tribunal found (at [130]-[131]):

The Applicant initially gave evidence that he feared for his safety should he be returned to Algeria. He said that he had a fear of harm and persecution by the soldiers whom he witnessed committing serious crimes or otherwise because of a general fear and distrust of the Algerian police. The Applicant ultimately resiled from that position by accepting that he did not truly have a fear for his safety upon return to Algeria but was requesting revocation of the cancellation of his visa principally on the ground of the impact it would have on his wife and daughter.

I find that the Australia does not have non-refoulement obligations in respect of the Applicant because of the conclusions of the Non-refoulement Assessment and the evidence of the Applicant. Accordingly, that consideration is of no weight.

52    These passages are critical to a number of the submissions made on behalf of the applicant and I return to them below. In these passages the Tribunal referred to the evidence before it, having earlier in its reasons considered this evidence in some detail, as well as other statements by the applicant to it (see [126]). Read fairly, the Tribunal’s reasons demonstrate that it did consider the matter of the engagement of Australia’s international non-refoulement obligations for itself. It is correct that it did so without great detail, which explains for example the shorthand summary at [124] of the contents of the ITOA. It is also true that the Tribunal’s reasons disclose it placed heavy reliance on the contents of the ITOA and its outcome. There was no detailed criticism of the ITOA before the Tribunal, nor any impugning of its currency, understandably so as the applicant was not legally represented. In the absence of any challenge to its contents, it is difficult to see why it would not be open to the Tribunal to place considerable weight on it, as it appears to have done. Other Tribunal members may have approached the matter differently, but to acknowledge that does not suggest any legal error in the approach taken by the Tribunal in the circumstances of this particular review.

53    In relation to the Minister’s submissions about AYX16, as the applicant correctly identified in his written submissions, AYX16 was a decision on review of the ITOA itself, and whether procedural fairness had been afforded in the ITOA process (a ground confirmed to be available by the High Court in SZSSJ). The applicant here raises different contentions. Given the conclusion I have come to on the way the Tribunal used and relied on the ITOA, I do not consider it necessary to consider AYX16 any further.

54    I turn now to the other two contentions made on behalf of the applicant. First, the contention about Art 1C of the Refugee Convention and the operation of the cessation clause, and second, the contention that the Tribunal had wrongly found (at [130], extracted above) that the applicant had abandoned his claims to fear harm in Algeria if he were returned there.

The contention the Tribunal wrongly found the applicant had abandoned a claim

55    On the second contention, I do not accept the applicant’s submissions that there was any legal error in the approach taken by the Tribunal, stemming from either a misunderstanding of the basis on which the applicant was initially granted a protection visa, or from a misunderstanding, or mischaracterisation, of what occurred during the review hearing. Nor do I accept that the Tribunal’s approach led to any denial of procedural fairness to the applicant in the conduct of the review.

56    It was contended on behalf of the applicant that he had been granted protection on the basis of a well-founded fear of persecution by reason of an imputed political opinion. The imputation had been found to arise from his failure to honour military service obligations and being a failed asylum seeker. It was submitted the applicant maintained these claims before the Tribunal and did not “abandon” them; yet the Tribunal failed to deal with these matters in the context of its decision on revocation of the visa cancellation. It was submitted the Tribunal also wrongly identified the applicant’s witnessing of a massacre in Algeria as the basis on which he was granted protection. Therefore, it was contended:

The Tribunal’s approach to understanding the Applicant’s claims were marred with misunderstandings and confusion which ultimately denied the Applicant procedural fairness.

57    It is correct that, relying on the ITOA and on the applicant’s oral evidence, the Tribunal referred to the applicant witnessing a massacre, his fear that Algerian authorities will persecute him because he “revealed his knowledge of extrajudicial killings by the government authorities” and that the applicant was granted a protection visa “on the basis of his account of this incident”: see [121]-[122] of the Tribunal’s reasons. At [127], the Tribunal referred to a statement in the applicant’s revocation request where he also referred to this incident and his fears arising from it. At [128]-[129], the Tribunal noted other statements by the applicant which focussed on other reasons why he could not return to Algeria, and not on any safety or persecution-related reasons.

58    The Tribunal then made the findings at [130]-[131], which I have extracted above and upon which this aspect of the contentions on behalf of the applicant is based. As the Minister submits, the language used by the Tribunal was not “abandon”, but rather that the applicant “ultimately resiled from” a position that he feared for his safety on return to Algeria.

59    Both parties took the Court to the transcript of the review hearing. In his evidence to the Tribunal, the applicant described how he evaded the last part of his military service, because he had witnessed a massacre and was afraid to go back into the army. He described to the Tribunal what he had witnessed. He was asked about some differences in his account to the Tribunal and earlier accounts, but the Tribunal ultimately did not consider the differences material (see [122]). The applicant was asked, and agreed, that what he had seen at the massacre was a principal basis for his protection visa claim. He then gave the following evidence. It is a long extract, but necessary to set out:

[MR BROWN (the representative of the Minister):] Right and when you came to Australia and made your protection visa application?---Yes.

One of the reasons that you gave for why you were applying for protection, was that you were afraid if you were required to go back to Algeria, then those men that had been involved in those murders, would cause you harm?—M’mm.

MEMBER: Can you just say yes or no, just so that we can - - -?---Yes. Yes, sorry.

MR BROWN: Yes.

MEMBER: Thank you?---Yes.

MR BROWN: So, why do you say- why did you say then, why do you say now - that if you return to Algeria, you will be caused harm by reason of what you saw back in the 1990’s?---I said to the immigration at that time, if I go back, I’ll get hung by these men, which these men is the government.

Yes?---Plus, I rejected to go back to the Army, I told them.

I understand that. I will come to that in a minute, but focusing on these men?---Yes.

Who told you not to tell anybody about what had happened, why do you say, if you go back to Algeria, you will be harmed by those men?---I don’t say by these men, I say by the government.

Okay. All right, fair enough. So, why do you say you would be harmed by government?---Because I reject to go back to the Army.

Right. So, it is not your argument - correct me if I’m wrong - it is not your argument that you are afraid of going back to Algeria because of what you saw in the 1990’s?---No.

It is your argument that you are afraid to go back to Algeria, because the government will take measures against you, because you didn’t complete your final three months?---Maybe.

Is that your argument?---Yes, not just that. My argument, I have family here.

Yes, I understand that, but in terms of being afraid?---Yes.

And I am sorry to labour this, but it’s actually quite important?---Yes.

In terms of your being afraid as to going back - suffering serious harm if you go back to Algeria?---Yes.

You are saying that’s because the government will hold you accountable for not having completed that three months military service that was left, in the two years that you were originally required to do?---I don’t think they’re going to do that now.

Okay. Why not?---Because I’m old.

Because, you’re old?---Yes.

All right. So, they may not - again, I am trying to understand what your position is - you are saying, “Well look, they’re not going to require me to go and do military service, because I’m 50”?---Yes.

Yes?---Yes.

So what are you saying about the harm you fear from the government were you to go back to Algeria tomorrow?---I don’t trust my government.

Beg your pardon?---I don’t trust my government.

You don’t trust your government. And can you expand upon that a bit. How does not trusting your government mean that you fear harm from them?---Well, maybe I get there and they say, “Come here. You be witness against us.”

Okay. And why would they say that?---Because I’ve been witness against them.

And how would they know that?---Of course they know, it’s a government.

This was - this is an event that took place more than 20 years ago?---Yes.

I think you will be more aware than I am of the amount of change that has gone on - - -?---Yes.

- - - over the last 20 years in Algeria. So why do you say that you fear harm from the government if you were to return to Algeria?---I told you, it’s because I’ve been a witness against government. I’ve been - I refuse to go back to the - I run from Algeria.

Sorry, I - - -?---I never - sorry. I never went back since I come to Australia.

Yes. I understand that?---I never want to go back to Algeria. I’ve lost my parents, I never get to see them.

Yes. All right. So you’re afraid that because you witnessed the massacre, because you didn’t complete your final three months of military service - - -

SENIOR MEMBER: I don’t think that’s - I think what - what I understand you’ve said, the three months’ military service, is that relevant or not relevant?---That’s not relevant now.

Okay. So - sorry.

MR BROWN: All right. Okay. No, I’m just trying to repeat what he said, that’s all. So because you witnessed the massacre, you fear that if you return to Algeria they will - the authorities will take some action against you?---Yes.

Okay.

SENIOR MEMBER: And who do you think is going to take that action? The people who - - -?---The army.

But is it the people who you witnessed committing those crimes, or other people in the army?---The people - I don’t know who they are. I don’t know who they are. I mean they’re not army, the police, I don’t know who they are. They was just in dark and balaclavas and I know the government comes, but I don’t know who they are.

MR BROWN: All right. So is there anything else, NVDC, that you would like to tell the tribunal about why you are afraid - so nothing to do with your family and so forth at the moment, but why you are afraid as to what might happen to you, were you to return to Algeria. Is there anything else?---No.

60    It might be said the applicant’s evidence was somewhat contradictory, in terms of whether he still held fears for his safety on return to Algeria, and why. However the Minister’s lawyer in the Tribunal very fairly returned to the topic towards the end of his questions to the applicant, when he asked him about the conclusions expressed in the ITOA. It is not necessary to set out the whole extract, but suffice to say that the Minister’s lawyer fairly described what the ITOA was and what its conclusions were. He invited the applicant to tell the Tribunal whether the applicant agreed, or not, with the conclusion of the ITOA. This was the applicant’s response, and the Minister’s lawyer’s observation afterwards:

Okay. Sorry, it was a very long question?---I think I agree what you say. I think I agree what you say. Because I think there is change in Algeria now. But my problem is not Algeria.

I understand that, and I think that’s clear from what has been said in the course of the last four or five hours. Senior Member, that’s probably all I’ve got unless you’d like to direct me down some other road.

61    Having considered the transcript of the review hearing, in my opinion there was ample basis for that observation by the Minister’s lawyer, which was substantially reflected in the Tribunal’s findings. In the review hearing, the applicant’s emphasis in his evidence had very much been on the effects on his family if he had to leave Australia, as well as on himself because of his physical and mental health issues, and his age.

62    In that context, while it might have been something of an overreach in language for the Tribunal to describe, at [130], the applicant as resiling (implicitly, entirely) from any claims about fears for his safety in Algeria, it was nevertheless open to the Tribunal to see those issues as very much secondary in the applicant’s own perspective to the issues about his family, and his own health. In this context, and given the express questioning of the applicant about the ITOA, I see no error in the Tribunal placing some weight on the opinions expressed in the ITOA as part of reaching its own conclusions.

63    The applicant’s submissions have not persuaded me there was any legal error in the Tribunal’s findings about the position taken by the applicant during its review about his fears concerning return to Algeria. It was open to the Tribunal to make the findings it did, especially given it had the chance of seeing and listening to the applicant over an extended hearing, with full and fair questioning from the Minister’s lawyer.

64    As to the submissions that the Tribunal mischaracterised, or misunderstood, the basis on which the applicant had been granted a protection visa, I reject that submission. It is clear from the applicant’s own evidence to the Tribunal that he saw a connection between his witnessing of the massacre and his desire to avoid any further military service, because of what might be imputed to him through having been a witness to such an atrocity.

65    There is no evidence before the Court about the original protection visa decision. There are a range of secondary accounts of the basis for it, including what was in the ITOA under the heading “Protection claims/information to be assessed on this ITOA”. Further, in the submissions filed on behalf of the applicant on the first judicial review, it is stated:

He sought protection and was recognized as a refugee in Australia, on the basis of his claim to have witnessed the murders of a number of people by the authorities of Algeria.

66    In light of what was recorded in the ITOA, the judicial review submission, and the applicant’s own evidence to the Tribunal, I do not consider there was any misunderstanding or mischaracterisation by the Tribunal of the basis for the original protection visa decision. Nor was this of any central relevance to its task on review, as I explain below.

The Art 1C contention

67    Art 1C of the Refugee Convention provides:

This Convention shall cease to apply to any person falling under the terms of section A if:

(1)    He has voluntarily re-availed himself of the protection of the country of his nationality; or

(2)    Having lost his nationality, he has voluntarily reacquired it; or

(3)    He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4)    He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5)    He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

    Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6)    Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

    Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

68    In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53; 231 CLR 1, the majority of the High Court cautioned against an approach to Art 1C which sought to incorporate its terms into Australian law, or sought to give effect to its terms in a way which was inconsistent with Australian law. The majority focussed in particular on the operation of the Migration Act, and its mechanisms for the grant and cancellation of visas. The majority held that where a person’s visa ceased, a person must make a fresh application for a new visa and will then have to satisfy the criteria for that visa, including any protection criteria: see [38]-[39]. The majority held at [39]:

The Act does not pose the question which the majority of the Full Court posed as a relevant question, whether, at the time of an application for a permanent protection visa, there have occurred in the applicant’s country changes of a substantial, effective and durable kind.

69    The majority also held at [39] that to impose, in substance, some kind of onus on the Minister to establish in a review before the Tribunal the occurrence of substantial, effective and durable change in the conditions in an individual’s country of nationality would fail to give effect to a “rule of Australian law” that proceedings in the Tribunal are not adversarial.

70    Although the present situation concerns a review of a decision not to revoke a visa cancellation, I accept the Minister’s submission that the position outlined in QAAH should be applied. Before the Tribunal, the applicant was without a visa: not because his visa expired (as for the respondent in QAAH) but because it had been cancelled. While what he sought was not a “new” visa, and in that sense the ratio of the High Court in QAAH might not apply, the same underlying point as that made by the majority in QAAH can be made. The Tribunal was required to apply the terms of the Act to its review task, which concerned the manner in which it was to consider whether to affirm or set aside the decision not to revoke the cancellation of the applicant’s visa. While the applicant could, and did, raise both “reasons” concerning his safety in Algeria, and Australia’s non-refoulement obligations, those issues were not to be approached from the perspective that the Minister had to establish, or even that the Tribunal had to be satisfied, that there had been changes of circumstances in Algeria that were both fundamental and durable so as to engage Art 1C. The majority in QAAH also found that the work Art 1C has to do is generally as a provision to be invoked by a State party, against a refugee: see [44]-[46]. While the High Court’s approach in QAAH has been the subject of some criticism (see for example Hathaway J and Foster M, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014) at 477-490) it represents the law to be applied by this Court.

71    There was no legal error in the approach taken by the Tribunal to the other reasons for revocation raised by the applicant which related to protection claims against Algeria, such as they were.

72    One further matter should be mentioned. The author of the ITOA stated (at p 14 of the ITOA):

I am not satisfied the cessation clauses in Article 1C of the Refugees Convention apply to the claimant.

73    There was some discussion at hearing about how this should be understood. The applicant sought to use this finding as evidence of the failure of the Tribunal to deal with Art 1C, since (he contended) this statement demonstrated the author of the ITOA had also failed to apply Art 1C to the applicant’s circumstances, or had misunderstood it. In my opinion, this statement should be understood in the context of the finding in the ITOA which immediately precedes it; namely that the applicant did not have a well-founded fear of persecution in Algeria for a Convention reason. That adverse finding meant that the cessation clause could not apply, as it only applies to persons who have been recognised as having a well-founded fear of persecution.

74    Accordingly, there was no error in the approach taken by the author of the ITOA in relation to Art 1C, and no error in the reliance by the Tribunal on the ITOA.

Conclusion

75    Although I have been persuaded it is appropriate for an extension of time to be granted and for the Minister’s strike out application to be dismissed, the applicant has not succeeded in his judicial review submissions.

76    Therefore, there should be orders dismissing the application for judicial review.

77    Both parties have had a measure of success. I accept there was a basis for the Minister to take the course he did in relation to this application. It would not be appropriate for there to be any adverse costs consequences flowing from the Minister’s decision to take that course, even though I have dismissed the strike out application.

78    Conversely, although I recognise the applicant’s counsel have acted without fee I do not consider it is appropriate for there to be a costs order in the applicant’s favour in relation to the strike out and the extension of time applications. Nor however do I consider it would be just for the applicant to be ordered to pay the Minister’s costs of the judicial review application itself, if such costs could in reality be separated from the costs of the interlocutory applications by the Minister (which I doubt).

79    The appropriate order in all the circumstances is that there be no orders as to the costs of the interlocutory applications, or the proceeding as a whole.

Associate:

Dated:    13 September 2021