Federal Court of Australia

BCDC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1114

Review of:

BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1424 (14 April 2021)

File number:

QUD 178 of 2021

Judgment of:

RANGIAH J

Date of judgment:

15 September 2021

Catchwords:

MIGRATIONMigration Act 1958 (Cth) – judicial review of the Tribunal’s decision to affirm the decision of the Minister’s delegate not to revoke the cancellation of the applicant’s visa under s 501CA(4) whether the Tribunal failed to give real and genuine consideration to a substantial, clearly articulated claim that the applicant feared harm on the basis of a political opinion imputed to himwhether error material – whether failure to consider a matter required under Ministerial Direction 79 – whether the Tribunal took account of the applicant’s mental health – application allowed on first ground

Legislation:

Migration Act 1958 (Cth) ss 499(2A), 501(3A) and 501CA(4)

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

Cases cited:

Ali v Minister for Home Affairs (2020) 278 FCR 627

GBV18 v Minister for Home Affairs (2020) 274 FCR 202

Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47

MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

94

Date of last submissions:

24 August 2021 (Applicant)

30 August 2021 (First Respondent)

Date of hearing:

16 August 2021

Solicitor for the Applicant:

Mr JK McComber of Sentry Law

Counsel for the First Respondent:

Mr J Byrnes

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

QUD 178 of 2021

BETWEEN:

BCDC

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

RANGIAH J

DATE OF ORDER:

15 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 14 April 2021 is quashed.

2.    The matter is remitted to the second respondent for determination according to law.

3.    The first respondent pay the applicant’s costs of the application for review.

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

REASONS FOR JUDGMENT

Background

[4]

The proceeding before the Tribunal

[16]

The Tribunal’s decision

[24]

The legislation

[43]

The submissions

[45]

Consideration of Grounds 1 and 2: Whether the Tribunal failed to consider a substantial argument

[52]

Whether the argument was made before the Tribunal

[56]

Whether the argument was clearly articulated or clearly raised on the material before the Tribunal

[63]

Whether the Tribunal considered the argument that arose clearly from the material

[67]

Materiality

[75]

Consideration of Ground 3: Whether the Tribunal failed to consider relevant material

[81]

Summary

[91]

RANGIAH J:

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 14 April 2021 pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2    The Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to revoke the cancellation of the applicants visa.

3    The principal ground of review asserts that the Tribunal failed to consider an argument or claim that the applicant would be at risk of persecution by reason of a political opinion imputed to him if he were removed to his country of origin. The ground requires consideration of the basis upon which the applicant was granted his visa, the representations he made to the Minister and the Tribunals reasons for its decision.

Background

4    The applicant is a citizen of the Democratic Republic of Congo (Congo). On 19 November 2009, the applicant and his wife and children were each granted a Refugee (Class XB) (Subclass 200) Visa (Refugee Visa).

5    On 11 December 2019, a delegate of the Minister cancelled the applicants Refugee Visa under 501(3A) of the Act as he did not pass the character test on the basis of having a substantial criminal record and was serving a full-time sentence of imprisonment.

6    On 18 December 2019, 7 November 2020 and 15 December 2020, the applicant made written representations to the Minister seeking revocation of the decision to cancel his visa. On 30 December 2020, the Minister decided not to revoke the cancellation decision.

7    On 29 January 2021, the applicant lodged an application for review of the delegates decision with the Tribunal. On 14 April 2021, the Tribunal made its decision affirming the delegates decision. The Tribunal’s reasons were published on 20 May 2021.

8    Before the Tribunal, the applicant claimed that a reason for revoking the cancellation decision was that Australia would otherwise be in breach of its non-refoulement obligations. That claim was rejected by the Tribunal. The principal ground of the application for review requires consideration of whether the Tribunal misunderstood, and thereby failed to consider, a claim that the applicant would be at risk of harm because soldiers in Congo believed him to support a rebel group.

9    The applicant provided a statement dated 19 March 2021 to the Tribunal in which he sought to explain why he feared persecution in Congo. The statement said, relevantly:

1.     The purpose is to explain that Australia gave me protection as a refugee, and that I fear being killed if I am sent back to Congo.

8.     I left Congo because there were killings. There were many groups of fighters in the conflict. There were the rebels, and also a Rwandan group. My whole family was killed – my mum and dad, brothers and sisters. At that time, I was working as a driver and I was away in another village. When I came back, everyone was killed. I dont like to remember this.

9.     At that time, I ran with my wife and children to a village on the border with Uganda. We walked across the border into Uganda. We rented a small house in Kampala.

10.     I registered with the UN, and the UN found me to be a refugee. I ask that the visa file from my Refugee visa please be considered as it should have these details.

11.     I have no family at all left in Congo. I dont know anyone. There is no one who can help me. It is extremely dangerous. It is not possible for me to survive.

12.     I would be killed if I am sent back to Congo. The groups who killed my family are still there. Those rebels know that I fled from them.

13.     The Nande tribe is still being killed today. The Nande are known to be rich people. There are many groups of rebels in Congo. I fear being killed because I am Nande.

14.     The government in Congo cannot protect people. It is known worldwide today about the situation in Congo. I avoid looking at the news about Congo because it is too hard for me to remember and think about.

(Underlining added.)

10    In his statement, the applicant asked that material held on the Departmental file dealing with his application for a Refugee Visa be considered by the Tribunal in the context of his claim to fear harm if sent back to Congo.

11    The Departmental file was before the Tribunal. It included the application forms for Refugee Visas completed by the applicant on his own behalf and on behalf of his family. In response to the question, Why did you leave that country?, the applicant answered, Refered (sic, refer) to RRF. By that answer, the applicant relied upon a Refugee Resettlement Form prepared by the United Nations High Commissioner for Refugees (UNHCR) dated 2 October 2008. The applicant gave the same answer to questions including What do you believe may happen to youif you were to return to that country?, and Who do you think may harm or mistreat you if you go back to that country?.

12    The UNHCR form was on the Departmental file and was in evidence before the Tribunal. The form described the applicant as the Principal Applicant. Under the heading, Summary of the claim, the form stated as follows:

Summary of the claim

The applicant was living with his family in Goma where he was engaged in fish trade while the applicants wife was managing a pharmacy in Goma, together with her brother: [name omitted]. In the course of his business, the applicant used to travel to Bukavu to sell the fish.

On 11 March 2006, the applicants brother-in-law; [name omitted], went to Kitchanga village to sell medicine but he did not return. Following his brother-in-laws disappearance, the applicant and his wife tried to search for him but failed to find him. Later the applicants wife learnt that [name omitted] was arrested by unidentified soldiers and driven off to an unknown destination. On 13th March 2006, unidentified soldiers stormed into the applicants pharmacy and abducted his wife. During the attack, the applicant was on a business trip in Bukavu. Following the abduction, the applicants wife was taken to military barracks situated in the forest in Ndosho area. Upon reaching the Barracks, she was taken to a small house where she was confined for a night. While in detention, she was falsely accused of supplying drugs to the Mayi Mayi rebel group. She was brutally beaten all over her body with a whip and intensely interrogated on the false accusation levelled against her. In the course of the interrogation, she informed the soldiers that she was selling medicine to anyone who went to her pharmacy to purchase medicine. Despite her response, the soldiers continued to beat her up. Thereafter, two soldiers repeatedly raped her in turns. She was deprived of food, beddings and sanitation facilities. Owing to the physical and sexual assault, the applicants wife became seriously ill and the following day on 14 March 2006, she was taken to Goma hospital for treatment by the soldiers following instructions from a government soldier who was visiting the camp and saw the applicants [wife’s] state of health. The applicant does not know whether the barracks were controlled by the rebels or government soldiers.

While in the hospital, some unidentified soldiers went to the applicants house and found their young children as well as his sister-in-law [name omitted] and brother [name omitted]. During the visit, the soldiers intensely interrogated the applicants children, sister-in-law and brother on the whereabouts of the applicant and his wife. Amid the interrogation, they informed them that the applicant had gone to Bukavu for business while the whereabouts of the applicants wife were unknown to them. Following their response, the soldiers shot the applicants brother [name omitted] and he died on the spot. The soldiers departed following the killing.

On 14 March 2006, the applicant received a phone call informing him of the disappearance of his brother-in-law and the abduction of his wife. On 16 March 2006, the applicant returned home from his trip and upon his arrival, he found a funeral procession taking place and was saddened to learn that his younger brother had been killed by the unidentified soldiers. Consequently, the applicant became afraid of his continued safety and security in DRC and decided to flee. The applicant went to Goma hospital and collected his wife who at the time was not being guarded by any soldier. The applicant, his children, wife and sister-in-law [name omitted] fled to Bunagana where they crossed the border into Uganda. The arrived in Uganda on 17 March 2006 and on 26 June 2006, they were granted refugee status by the Ugandan government.

The testimony of the applicants wife: [name omitted]

The applicants wife mentioned above was interviewed separately and she gave similar narration of her reasons for flight. Her statements tallied with the applicants testimony shown above.

13    The UNHCR form, under the heading Analysis of the refugee claim, stated:

Analysis of the refugee claim

UNHCR has carefully assessed the applicants case and established that the applicant and his wife have a well founded fear of persecution on grounds of imputed political opinion pursuant to Article l (A) 2 of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. As shown above, the applicants family was attacked by unidentified soldiers on false accusation of selling medicine to the Mayi Mayi rebels. Owing to the accusation, the unidentified soldiers abducted the applicants wife and held her in captivity for one night. During [that] time, the applicants wife was brutally beaten and repeatedly raped by the unidentified soldiers. Further, the unidentified soldiers killed the applicants brother when they failed to find the applicant and his wife.

Presently, it is highly probable that the applicant and his wife would be subjected to the same persecution as before by the unidentified soldiers because of the false accusations leveled (sic) against them by the unidentified soldiers. It is noted that various rebel groups and government forces continue to be active in eastern DRC [and] are subjecting civilians to serious human rights abuses with impunity.

14    There was also in evidence before the Tribunal, a Departmental record dated 19 November 2009 which states that:

Based on UNHCR referral, interview report and PIC processing, I am satisfied that 8 applicants meet the requirements for the grant of a subclass 200 visa.

15    The Departmental file before the Tribunal included records entitled Migration Record Case Dump. The applicant is described by the notation PA, which appears to mean Principal Applicant or Primary Applicant. That suggests that the visa application was assessed by reference to the applicants claims to fear harm in Congo and that the applicant’s wife and children were regarded as seeking visas as members of the applicants family. That is consistent with the applications for Refugee Visas which named the applicant as the main applicant, and the applicants wife and children amongst, all other people included in this application.

The proceeding before the Tribunal

16    The applicant was self-represented before the Tribunal. He has very limited English and required the assistance of an interpreter.

17    At the commencement of the hearing, the Tribunal member informed the parties that she proposed to ask the applicant to verify the statements the applicant had made and then invite the Ministers representative to start her cross-examination.

18    The Tribunal member referred to the applicants statement dated 19 March 2021 and asked the applicant, Is that statement accurate?. The applicant said Yes. The member asked, Is there anything you would like to change in that statement?, to which the applicant answered No.

19    The Ministers representative then conducted her cross-examination. At one point, during cross-examination, the applicant was asked, Why are you scared to go back to the Congo?. He answered, Yes, but they are there. The applicant was referring to a rebel group in Congo.

20    Later, the member asked the applicant, Is there any other reason you fear you will be harmed or killed if you go back to Congo?. The applicant gave an answer referring to his fear of being harmed, but did not explain the basis of that fear.

21    The applicant did not expressly refer in his oral evidence to any fear of harm at the hands of the soldiers who had been looking for him when he fled from Congo.

22    In her closing address to the Tribunal, the Ministers representative said:

In your statement to the Tribunal, your written statement, you refer to fearing harm from the people who harmed your wife. But you didnt say this when speaking to the Tribunal, giving evidence to the Tribunal. The Minister says the Tribunal should not find you at risk of harm from these people because you havent been to Goma for 15 years, and you dont seem to have any ties to her old pharmacy or her family anymore…you dont have any ties or anything to do with (indistinct) pharmacy or her family anymore.

It is unclear why the Minister’s representative was addressing the applicant directly in her address, but the style adopted may have had something to do with the fact that the address was being interpreted. There then appears to have been difficulties with interpretation. It is unclear from the transcript how much of what the Minister’s representative said was in fact interpreted.

23    Later, the Tribunal member invited the applicant to say anything else that he wanted to say. The applicant did not add anything of any relevance.

The Tribunals decision

24    In its reasons for the decision, the Tribunal observed that the applicants Refugee Visa had been cancelled under s 501(3A) of the Act, that the applicant had made representations to the Minister requesting revocation of the cancellation decision, and that the issue before the Tribunal was whether there was a basis to revoke the cancellation decision.

25    The Tribunal observed that the applicant had been sentenced to a term of two years imprisonment on 4 March 2019. Accordingly, the Tribunal found that the applicant did not pass the character test.

26    The Tribunal then proceeded to consider whether there was another reason why the cancellation of the visa should be revoked. The Tribunal noted that it was required, under s 499(2A) of the Act, to comply with Direction No 79—Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction).

27    Under the heading Background and Offending, the Tribunal referred to the circumstances in which the applicant and his family came to leave Congo. The Tribunal noted that the applicants wife had worked in a pharmacy and, in 2006, she had been abducted by soldiers and accused of selling medicine to a rebel group. She did not know if the soldiers were with the government, or with another rebel group. She was tortured and raped repeatedly, but was later taken to a hospital.

28    The Tribunal noted that soldiers went to the applicants home looking for the applicant and his wife. One of the applicants brothers was there and they shot and killed him. The applicant found out what had happened to his brother and wife, and he retrieved his wife from the hospital and they and their children escaped to Uganda. The Tribunal apparently accepted the circumstances it recited to be accurate.

29    The family settled in Toowoomba in Queensland after arriving in Australia in 2010. The applicant found work and he and his wife were active in their church, but by 2012 the applicant had developed a substantial problem with alcohol. The applicant and his wife are now estranged.

30    The Tribunal set out in detail the applicants history of domestic violence. The applicants criminal history includes convictions for breaches of domestic violence orders, assaulting or obstructing police and driving under the influence of alcohol. These incidents were associated with intoxication.

31    The applicants conduct culminated with an incident on 17 February 2018 when he went to his estranged wifes house and told one of their daughters that he intended to kill his wife and showed the daughter a knife he was carrying in his car boot. He was convicted of an offence of entering a dwelling with intent and threatening domestic violence and was sentenced to imprisonment for two years.

32    The Tribunal noted that in his evidence, the applicant denied the offending of which he was convicted and said that he had only pleaded guilty because he believed he would get a shorter sentence.

33    On 1 November 2019, the applicant was convicted of contravening a domestic violence order and sentenced to imprisonment for six months. He was also sentenced to two terms of one months imprisonment for breaching probation orders. The Tribunal noted that the applicant also denied committing these offences.

34    The Tribunal observed at [80] that:

The applicants evidence was difficult. He often gave long winded answers that were not responsive to the questions asked.

35    The Tribunal found, in relation to the applicants offending:

89.     I must make findings that are consistent with the convictions and findings of fact on sentence with respect to offending that gives rise to the decision-making power. With respect to the other offending, I would need strong reasons to depart from the convictions and factual findings on sentence, and I do not consider there are any. I am satisfied that the Applicant committed the acts of domestic violence and verbal abuse that gave rise to convictions. Further, the contemporaneous police records of the allegations that did not result in charges seem reliable: the allegations are not inherently implausible, and they are consistent with the Applicants pattern of abusing and harassing his wife. I accept that the conduct alleged did occur.

(Citation omitted.)

36    The Tribunal then turned to the matters required to be considered under the Direction. In respect of protection of the Australian community, the Tribunal found that the applicants offending as a whole demonstrated a serious lack of respect for the law and law enforcement, that further similar offending could result in physical and psychological harm to his wife and others, and that there was at least a moderate risk that the applicant would commit further similar offences. The Tribunal considered that the protection of the Australian community weighed heavily against revocation of the cancellation decision.

37    The Tribunal considered the best interests of minor children in Australia. The Tribunal concluded that the best interests of the applicants four minor children weighed to a limited extent in favour of revocation.

38    The Tribunal considered the expectations of the Australian community. The Tribunal found that the Australian community would expect that the applicant should not hold a visa and that this consideration weighed moderately in favour of non-revocation.

39    The Tribunal turned to Other considerations. Most significantly for the purposes of this case, the Tribunal considered, international non-refoulement obligations. The Tribunal stated:

140.     However, I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. In other words, I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to Congo in their own right, and that assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration. Some claims of harm or hardship might be more relevant to the extent of impediments the Applicant would face if removed to Congo. The Applicant has made some claims that warrant consideration. In accordance with paragraph 14.1(1) of the Direction, I will assess those claims against the tests enunciated in the Act...

143.     The Applicant was granted a Refugee visa in 2009, on the basis of a well-founded fear of persecution due to imputed political opinion, being that of his wife who had been accused of selling medicine to rebels.

144.     The fact that a person has been found to be owed protection in the past does not mean they will always have that status…

145.     The Applicant would not be returning to Congo with his wife and he is now estranged from her. He does not claim that he would be harmed in Congo because of his previous link to her and I am not satisfied that there is a real chance or real risk that he would be.

150.     I am not satisfied that there is a real chance that the Applicant will be harmed in Congo because of his tribe, his family or for any other reason that is personal to him or that he would face a risk of harm that is not one that is faced by the general population. I am not satisfied that the Applicant engages Australias non-refoulement obligations for any reason put forward by him or that arises on the evidence…

(Citations omitted.)

40    The Tribunal then considered the strength, duration and nature of the applicant’s ties to the Australian community and found this factor weighed moderately in favour of revocation. It also found that the extent of the impediments that the applicant may face if removed from Australia weighed moderately in favour of revocation.

41    The Tribunal concluded:

175.     Application of the Direction therefore favours the non-revocation of the cancellation of the Applicants visa.

176.     Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicants visa.

42    Although the Tribunal appeared at [176] to consider that it was bound by the Direction to reach a particular conclusion, the applicant has not taken any point about that approach.

The legislation

43    Section 501(3A) of the Act provides:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

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

44    Section 501CA(4) of the Act provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

The submissions

45    The applicant’s amended originating application contains the following grounds of review:

1.     The Tribunal’s decision dated 14 April 2021 is affected by jurisdictional error as it failed to consider a clearly articulated ground advanced by the Applicant, specifically that the Applicant was owed protection in consequence of political opinions imputed to him.

2.     In the alternative to Ground 1, the Tribunal’s finding that [the] Applicant was not owed non-refoulement obligations was vitiated by illogicality or irrationality. Specifically, the Tribunal’s misapprehension of the basis of the Applicant’s refugee claims (i.e., that his wife’s political opinion was imputed to him, rather than a political opinion being imputed to both the Applicant and his wife) was illogical and irrational.

3.     The Tribunal’s decision dated 14 April 2021 is affected by jurisdictional error as it failed to have regard to relevant material when determining whether another reason for revocation existed, namely:

a.     the report of Dr Alexander Van Hattem dated 14 February 2021 diagnosing the Applicant with depressive disorder; and

b.     the GP Mental Health Care Plan prepared by Dr David Simpson on 13 October 2014 diagnosing the Applicant with PTSD.

(Particulars omitted.)

46    The first and second grounds are related, and can be considered together. The applicant submits that the Tribunal failed to consider an argument or claim made by the applicant that he would be harmed if returned to Congo for reason of a political belief imputed to him. He contends that this claim was clearly articulated, or at least clearly emerged from the material, before the Tribunal.

47    The applicant submits that, even though the Tribunal considered generally the issue of whether the applicant faced a risk of harm if removed to Congo, it misunderstood, and therefore did not consider, his claim to fear that he would be persecuted as a person believed to support the Mayi Mayi rebel group. The Tribunal is said to have misunderstood the applicant’s claim as being based only upon his association with his wife, such that he would not be at risk of persecution if he returned to Congo without her. The applicant submits that there was no active intellectual engagement by the Tribunal with his claim that he feared persecution on the basis of a political opinion imputed to him. The applicant also submits that the Tribunals fundamental mischaracterisation of his claim was illogical and irrational.

48    The applicant further submits that the Tribunal failed to consider relevant material, namely a progress note of Dr Van Hattem and a GP Mental Health Care Plan prepared by Dr Simpson. The applicant submits that each doctor had diagnosed him with a psychological disorder. The applicant submits that the failure to consider these documents was a failure to comply with paragraph 14.5(1) of the Direction, which requires the Tribunal to take into account the non-citizens health. The applicant submits that the Tribunal’s failure to consider his psychological disorder was a failure to consider a mandatory consideration.

49    The Minister submits that the Tribunal did not fail to consider the applicants non-refoulement claims, and that these were expressly considered by the Tribunal at [143], [145] and [150]. The Minister submits that the Tribunals reasons do not demonstrate any misunderstanding of the applicants claims to fear harm, and that the applicant’s argument seeks to construe the Tribunal’s reasons too minutely and with an eye attuned to the perception of error. The Minister argues that the Tribunals approach was reasonably open to it, and was not illogical or irrational.

50    The Minister submits that the Tribunals failure to refer to the documents prepared by Dr Van Hattem and Dr Simpson does not amount to error, let alone jurisdictional error. The Minister submits that the material referred to was not of such importance and primacy of place that the Tribunal ought to be treated as having failed to consider the material by not referring to it. The Minister submits that the report of Dr Van Hattem is only a note of one consultation and its contents do not clearly indicate a formal diagnosis of a psychiatric condition; and that the note prepared by Dr Simpson was some six years old, and provided no explanation for the diagnosis.

51    The Minister observes that there was no reference to the reports of Dr Van Hattem and Dr Simpson in the representations or submissions made by the applicant to the Tribunal. Further, the Minister submits that the applicant has not shown how overlooking that material could realistically have resulted in the Tribunal making a different decision.

Consideration of Grounds 1 and 2: Whether the Tribunal failed to consider a substantial argument

52    A number of recent judgments of the Full Court have considered the obligation of the Minister under s 501CA(4) of the Act to consider representations that have been made. It suffices to refer to the following passage from Ali v Minister for Home Affairs (2020) 278 FCR 627 at [78], summarising the principles set out in GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [30]-[32] as follows:

(a)     Where in representations made in response to an invitation under s 501CA(3)(b) a ground is raised going to establishing another reason for revoking the cancellation decision, the Minister must take it into account when ascertaining whether he has reached the state of satisfaction required by s 501CA(4)(b)(ii);

(b)     There is a difference between the erstwhile visa holder raising the risk of suffering harm on the one hand and, on the other, that their circumstances give rise to Australia’s non-refoulement obligations under s 36(2) or otherwise;

(c)     Whilst the Minister has decisional freedom as to whether a claim amounts to another reason to revoke the cancellation decision, he must consider whether a clearly expressed and significant claim that the person will suffer harm if returned to their country of origin constitutes another reason;

(d)     The Minister will only consider a clearly expressed ground in the representations if he engages in an active intellectual process with reference to the representations;

(e)     Given the importance of representations raising the possibility of harm if the person whose visa is cancelled is returned to a receiving country, depending upon the nature and content of the representations, the decision-maker may be required to make specific findings of fact with respect to the representation to demonstrate the important obligation has been carried out;

(f)     The failure to give real and genuine consideration to a substantial or significant and clearly articulated claim raised in representations may constitute a failure to perform the statutory function in s 501CA(4)(b)(ii) and lead to a jurisdictional error; and

(g)     Where the decision-maker fulfils the statutory task the Court cannot review the state of satisfaction so formed merely because it disagrees with the assessment that the refoulement is outweighed by other countervailing considerations.

53    In Ali, the Full Court observed at [45]:

It would follow that a failure by the Assistant Minister to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind.

54    In Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47, Bromwich and Wheelahan JJ confirmed that the Minister’s obligation extends to considering a ground clearly arising from the material, holding at [66]:

Therefore, a failure by the parties’ legal practitioners to raise issues of fact or law that are central to the Tribunal’s exercise of jurisdiction may not preclude the consideration on appeal or on judicial review of an error, at least on a central issue, that was induced by the parties’ submissions. And the Tribunal may be obliged to consider substantial issues raised by the material before it, even if the issue is not the subject of submissions by the parties...

(Citations omitted.)

55    The applicant’s first ground of review asserts that the Tribunal failed to consider a clearly articulated argument or claim that he had advanced. This ground requires consideration of four issues, namely:

(1)    Whether the argument or claim that the applicant alleges was made before the Tribunal was in fact made.

(2)    Whether that argument was a substantial argument that was clearly articulated before the Tribunal, or clearly arose from the material before the Tribunal.

(3)    Whether the argument was considered by the Tribunal.

(4)    Whether any failure by the Tribunal to consider the argument was a material error.

Whether the argument was made before the Tribunal

56    The applicant’s statement dated 19 March 2021, which was provided to the Tribunal, asserted that the applicant would be killed if he were returned to Congo. In that way, the applicant was asserting that the necessity to comply with Australia’s non-refoulement obligations amounted to “another reason” to revoke the decision to cancel his Refugee Visa. The applicant submits that one of the claims he made about why he feared persecution in Congo was that he had been imputed with the political opinion that he supported the Mayi Mayi rebel group.

57    The express purpose of the applicant’s statement was to explain why he feared being killed if sent back to Congo. The statement indicated that the Departmental file concerning his application for a Refugee Visa would have the details of the circumstances upon which he was determined by the UNHCR to be a refugee. The applicant’s obvious intention was that the Tribunal should have regard to the Refugee Resettlement Form prepared by the UNHCR dated 2 October 2008 in order to understand why the applicant feared being killed in Congo. The Refugee Resettlement Form was on the Departmental file in evidence before the Tribunal.

58    The UNHCR form summarised the applicant’s claims to fear persecution. While the applicant was away from his village, the applicant’s wife had been detained by soldiers, falsely accused of supplying drugs to the Mayi Mayi rebel group, and beaten and raped. The applicant’s wife was taken to hospital. The applicant does not know whether the soldiers were government soldiers or from another rebel group. Another group of soldiers later went to the applicant’s house and interrogated his family about the whereabouts of the applicant and his wife. Apparently dissatisfied with the answers provided, the soldiers killed the applicant’s brother. After the applicant was informed about these events, he collected his wife from hospital and the family fled to Uganda.

59    The applicant was granted a Refugee Visa. The Departmental file does not record the reasons for the grant of the visa, save that the decision was, “[b]ased on UNHCR referral, interview report and PIC processing”. It can be inferred that the Minister’s delegate was satisfied of the applicant’s claims and the UNHCR’s assessment contained in the Refugee Resettlement Form, and was accordingly satisfied that the criteria for a Refugee Visa were met. One of the criteria was that the applicant be, “subject to persecution in the applicant’s home country”.

60    The applicant claimed that the soldiers who killed his brother were enquiring about the whereabouts of the applicant, as well as his wife. It must be inferred that by seeking both the applicant and his wife, the soldiers thought that both supported the Mayi Mayi rebel group. The applicant’s application for a Refugee Visa was based directly upon the applicant’s own claim to fear persecution, not his wife’s claim to fear persecution – his wife’s application was based upon being the applicant’s spouse (despite her fear of persecution in her own right).

61    Accordingly, the applicant’s application asserted that he feared harm if returned to Congo on the basis of a political opinion attributed to him personally. His application was not based upon a fear of persecution as the spouse of his wife. While it would have been possible for the applicant to apply on such a basis, that was not how the application was made.

62    When the applicant asked the Tribunal to consider the material concerning his application for a Refugee Visa to explain why he feared being killed if sent back to Congo, he was asserting a fear of harm on the same basis as that asserted in his visa application. In my opinion, the applicant advanced an argument before the Tribunal that, if returned to Congo, he feared persecution on the basis of a political opinion imputed to him.

Whether the argument was clearly articulated or clearly raised on the material before the Tribunal

63    At the hearing, the Tribunal admitted the applicant’s statement dated 19 March 2021 into evidence. By doing so, the Tribunal acknowledged that the applicant was relying upon such claims as were described in the statement.

64    The applicant was self-represented before the Tribunal. His oral evidence was quite garbled. It is apparent that the Tribunal found the applicant’s oral evidence to be unhelpful, noting that his evidence was difficult, long winded and not responsive to the questions. The applicant was given the opportunity to explain why he feared harm if returned to Congo, but his oral evidence did not reflect the claim that he continued to fear harm on the grounds articulated in his application for a Refugee Visa. Nevertheless, the applicant never resiled from the claims made in his statement.

65    The Tribunal evidently understood the applicant to be articulating a claim that he feared harm if he returned to Congo on the same basis described in his application for a Refugee Visa. That may be seen from [143][145] of the reasons, where the Tribunal noted that the applicant had been granted a Refugee Visa in 2009, observed that the fact a person has been found to be owed protection in the past does not mean they will always have that status, and then found that there was no real chance that the applicant would be harmed on any basis he had claimed.

66    The applicant raised through his statement, and did not resile from, a claim that he feared harm if returned to Congo by reason of the political belief attributed to him that he supported a rebel group. While it is true that the applicant did not clearly articulate anything of any substance at the hearing, that claim was one which arose clearly from the material before the Tribunal.

Whether the Tribunal considered the argument that arose clearly from the material

67    The relevant claim raised upon the applicant’s material was that he was at risk of harm because of a political opinion attributed to him. The applicant’s material indicated that his wife had initially been attributed with that political opinion, and the same opinion had then been attributed to him because of their relationship.

68    The Tribunal found, relevantly:

143.     The Applicant was granted a Refugee visa in 2009, on the basis of a well-founded fear of persecution due to imputed political opinion, being that of his wife who had been accused of selling medicine to rebels.

145.     The Applicant would not be returning to Congo with his wife and he is now estranged from her. He does not claim that he would be harmed in Congo because of his previous link to her and I am not satisfied that there is a real chance or real risk that he would be.

(Citation omitted.)

69    The applicant contends that the Tribunal’s reasoning in [143] demonstrates a misunderstanding of the basis upon which the applicant was granted a Refugee Visa and that the Tribunal thereby failed to understand one of the bases upon which the applicant was claiming to fear persecution if refouled to Congo. The applicant submits that the Tribunal understood the applicant to have been granted the Refugee Visa on the basis of a political opinion imputed only to his wife, whereas he was in fact granted the visa on the basis of a political opinion imputed to him.

70    Paragraph [143] does not of itself necessarily demonstrate that misunderstanding, since it may be read consistently with the way the applicant had put his claim for a Refugee Visa, namely that the political opinion had initially been imputed to his wife and then had been imputed to him because of his association with his wife. However, a fault in the Tribunal’s reasoning emerges in [145], where the Tribunal stated that the applicant was now estranged from his wife and did not claim that he would be harmed in Congo because of his previous link to her. The Tribunal missed the point. The applicants argument was that he, in addition to his wife, had been imputed with an opinion that he supported the Mayi Mayi rebel group. The family had fled Congo, not merely because soldiers wanted to harm the applicant’s wife, but also because they wanted to harm the applicant. The applicant’s claim for a Refugee Visa was not that he feared harm as the spouse of his wife, but that he feared harm in his own right. The applicant’s claim was that the soldiers wished to harm him because they believed that the applicant himself supported the rebel group, not merely that he was married to someone who supported that group (albeit that it was their married relationship that resulted in that opinion being imputed to him).

71    On the applicant’s argument, whether or not the applicant’s wife was estranged from him and would return with him to Congo would make no difference to whether soldiers in Congo would want to harm the applicant. Therefore, whether or not the applicant claimed to fear harm “because of his previous link with his wife was irrelevant.

72    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, the Full Court held at [63] that, where a decision-maker, “makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error”.

73    In my opinion, the Tribunal misunderstood the argument that the applicant was advancing. The Tribunal apparently misunderstood the applicant’s claim as meaning that he would only be at risk of harm in Congo if he returned there with his wife. The Tribunal failed to understand that the applicant claimed to fear harm if returned to Congo on the basis of a political opinion (that he supported the Mayi Mayi rebel group) imputed to him.

74    The Tribunal’s misunderstanding led to a failure to consider whether the applicant had a well-founded fear that he would be persecuted for that reason. The Tribunal failed to apply an active intellectual process to, or consider, the claim that had in fact been made.

Materiality

75    It is necessary to consider whether the error was material to the Tribunal’s decision: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [2]. In my opinion, it was material.

76    The Tribunal at [147] rejected other claims made by the applicantthat he would be killed because he was a member of the Nande tribe and because his father was a wealthy farm owner. At [150], the Tribunal was, not satisfied that the applicant engages Australia’s non-refoulement obligations for any reason put forward by him or that arises on the evidence. However, that general conclusion was apparently influenced by the Tribunal’s failure to consider the applicant’s claim to fear harm because of a political opinion imputed to him.

77    It is certainly possible that the Tribunal may have made the same decision even if it had considered the applicant’s claim, given the effluxion of time since the applicant had fled from Congo. However, I am satisfied that if the Tribunal had considered the claim, there is a realistic chance that the decision could have been different.

78    It may be observed that para 14.1(4) of the Direction provides that:

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

79    The Tribunal noted at [151] that the applicant is entitled to make an application for a Protection Visa. Despite that, the Tribunal proceeded to consider Australia’s non-refoulement obligations towards the applicant. Having taken that course, it is open to conclude that the Tribunal’s reasoning upon that issue and the decision involves jurisdictional error: cf MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215 at [27].

80    The Tribunal’s error was a jurisdictional error. Ground 1 of the applicant’s amended originating application must succeed. It is unnecessary to more specifically consider Ground 2.

Consideration of Ground 3: Whether the Tribunal failed to consider relevant material

81    The third ground of the amended originating application alleges that the Tribunal failed to consider relevant material, namely a progress note of Dr Van Hattem and a GP Mental Health Care Plan prepared by Dr Simpson.

82    Paragraph 14.5(1) of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face, if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, taking into account, relevantly, the non-citizen’s health. The applicant submits that each doctor had diagnosed him with a psychological disorder. The applicant submits that the Tribunal’s failure to consider his psychological disorder was a failure to consider a matter required under the Direction.

83    Initially, the applicant seemed to put the argument as a failure to consider a mandatory relevant consideration. However, the argument was developed as a failure to consider a matter required to be considered under paragraph 14.5 of the Direction.

84    The Tribunal dealt with paragraph 14.5 of the Direction at [164]-[171] of its reasons. The Tribunal considered the applicant’s health at [165], where it found:

The Applicant is a 50 year old man who is able bodied and does not claim to have any medical conditions. He does not have any diagnosed mental health or psychological conditions.

85    The applicant submits that it can be inferred from the Tribunal’s reasons that it failed to consider the documents produced by Dr Van Hattem and Dr Simpson when considering the extent of the impediments the applicant would face if returned to Congo. Those documents had been subpoenaed from the Magistrate’s Court by the Minister and admitted into evidence.

86    Dr Van Hattem is a psychiatrist, whose progress note of 14 February 2021 refers to, “Depressive symptoms, ? adjustment disorder ? major depressive episode…”. In a box headed “Diagnosis”, the notes also say “Depressive disorder”. However, the notes are equivocal as to whether Dr Van Hattem was making an actual diagnosis or a provisional diagnosis. The notes do not provide any indication of whether any condition diagnosed would be likely to form an impediment that the applicant may face if removed to Congo.

87    Dr Simpson’s GP Mental Health Care Plan was dated 13 October 2014. It is a brief document which states that the “Problem” is “Anxiety”, and the “Diagnosis” is “PTSD”. There seems to have been a single consultation and there is no indication of any plan for treatment. There is nothing to indicate that Dr Simpson’s diagnosis, made some six years earlier, was applicable at the time of the Tribunal’s decision.

88    In my opinion, when the Tribunal stated at [165] that the applicant, does not have any diagnosed mental health or psychological conditions”, it must be understood as referring to the position at the time it made its decision. It is true that there was no diagnosed mental health or psychological condition at that time.

89    I do not consider it has been demonstrated that the Tribunal overlooked the documents prepared by Dr Van Hattem and Dr Simpson. Nor has it been demonstrated that the Tribunal failed to consider any matter required under paragraph 14.5 of the Direction.

90    The applicant has not established the third ground set out in the amended originating application.

Summary

91    In summary, the applicant should succeed upon the first ground of the amended originating application, namely that the Tribunal’s decision is affected by jurisdictional error as it failed to consider an argument arising clearly upon the material to the effect that the applicant feared persecution in Congo in consequence of a political opinion imputed to him.

92    I intend no criticism of the Tribunal. The misunderstanding of just one of the many aspects of the applicant’s case is understandable. It should be recognised that the Tribunal’s task was a difficult and onerous one. The applicant represented himself and gave his evidence through an interpreter. The applicant’s evidence was garbled and he seemed quite incapable of properly articulating his case. The Tribunal was left to sift through the material in order to apply the Direction and the relevant legislative provisions. There were more than a thousand pages of material to consider. The task of the Court in understanding the applicant’s claim to fear harm in Congo has been made much easier with the assistance of a lawyer representing the applicant. The Tribunal did not have that assistance. The reasons were otherwise well-reasoned, thorough and comprehensive.

93    The Tribunal’s decision will be quashed. The Tribunal will be required to make the decision required under s 501CA(4) of the Act according to law.

94    The Minister will be required to pay the applicant’s costs of the application for review.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.

Associate:    

Dated:    15 September 2021