Federal Court of Australia

STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140

ORDERS

THE COURT ORDERS THAT:

1.    The decision and orders of the Administrative Appeals Tribunal on 20 May 2020 be quashed.

2.    The matter be remitted to the Administrative Appeals Tribunal to be determined according to law.

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

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    This is an application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (‘Tribunal’) to affirm a decision of the delegate of the first respondent (‘Minister’) not to revoke a mandatory cancellation of the applicant’s subclass 200 permanent refugee visa.

2    The applicant was born in Ethiopia. He and his mother fled Ethiopia when he was an infant, and arrived in Australia on 4 November 2009 when the applicant was 12 years old. The applicant arrived as a holder of a subclass 200 refugee visa by reason of being in the same family unit as his mother, the primary visa applicant.

3    In August 2018, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘Act’) due to criminal offending. That cancellation was revoked in January 2019.

4    On 18 July 2019, while the applicant was serving a term of imprisonment for further criminal offending, the applicant’s visa was mandatorily cancelled a second time pursuant to s 501(3A) of the Act. It is that second cancellation that is relevant to the present application.

5    In response to an invitation from the Minister’s delegate, the applicant made representations pursuant to s 501CA(3) of the Act as to why the cancellation of his visa should be revoked. On 28 February 2020, the Minister’s delegate decided not to revoke the visa cancellation.

6    The applicant then sought review of the delegate’s decision in the Tribunal. The applicant accepted that he did not pass the character test for the purposes of s 501CA(4)(b)(i) of the Act but made representations that there was “another reason why the original decision should be revoked” within the meaning of s 501CA(4)(b)(ii).

7    On 20 May 2020 the Tribunal affirmed the delegate’s decision and subsequently published its reasons: STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2504.

8    In his amended originating application, the applicant contends that the decision of the Tribunal was affected by jurisdictional error for failing to give proper consideration to two matters that it was bound to consider in the circumstances of the applicant’s case, being:

(1)    the prospect that the applicant would be subjected to indefinite or prolonged detention if the visa cancellation was not revoked (‘Issue 1’); and

(2)    the fact that the applicant’s family had been found to be subject to persecution in Ethiopia, as a matter that was relevant to the assessment of international non-refoulement obligations and the extent of impediments to the applicant if he were removed to Ethiopia (‘Issue 2’).

9    On 23 August 2021, the applicant’s legal representative filed an affidavit annexing the transcript of the second day of the hearing before the Tribunal which was accepted in evidence before me.

ISSUE 1: FAILURE TO CONSIDER THE PROSPECT OF INDEFINITE OR PROLONGED DETENTION

10    The applicant contends that the Tribunal failed to consider the prospect of indefinite or prolonged detention and thereby fell into jurisdictional error as proper consideration of this issue could have led to a different outcome.

11    The applicant says that the obligation to consider the prospect of indefinite or prolonged detention arose in two ways. First, because indefinite detention as a consequence of non-revocation was expressly raised by the applicant’s representations to the Tribunal. Second, because the consequence of indefinite or prolonged detention was apparent from the facts of the case and the material before the Tribunal such that the Tribunal would have been required to give the issue consideration even if the issue had not been raised in the applicant’s representations.

12    For the purpose of considering both of these claims, it is helpful to say something about the relevant principles that govern the Tribunal’s statutory task under s 501CA(4) of the Act.

13    In considering whether the cancellation decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act which, at the time of the Tribunal’s decision, relevantly included Direction no. 79 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’).

14    Part C of the Direction sets out ‘primary’ and ‘other’ considerations that the Tribunal must consider where relevant to the individual case. The prospect of indefinite or prolonged detention is not specified as a ‘primary’ or ‘other’ consideration in Part C of the Direction, although cl 14.1 (which goes to the ‘other’ consideration of international non-refoulement obligations) does relevantly provide as follows:

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

15    Even though the prospect of indefinite or prolonged detention is not specifically addressed as a separate consideration in the Direction, the Tribunal is obliged to consider any significant and clearly expressed relevant representations made in support of a request for revocation: Minister for Home Affairs v Omar (2019) 272 FCR 589 (‘Omar’) at [37]. This will include representations as to the prospect of indefinite or prolonged detention: WKMZ v Minister for Immigration [2021] FCAFC 55 (‘WKMZ’) at [136]. The failure to consider a substantial or significant and clearly articulated claim raised in the representations made, the acceptance of which could constitute “another reason” for revoking the visa cancellation under s 501CA(4)(b)(ii), may constitute a failure to carry out the Tribunal’s statutory task under s 501CA(4) of the Act and give rise to jurisdictional error: Omar at [41]. The question of whether consideration has been given to a former visa holder’s representations must be judged in the context of the material placed before the decision-maker: DQM18 v Minister for Home Affairs (2020) 278 FCR 529 (‘DQM18’) at [36].

16    The Tribunal will also be obliged to consider the prospect of indefinite or prolonged detention where such detention is a legal consequence of a cancellation decision. In WKMZ, Kenny and Mortimer JJ observed:

[123]    If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label “indefinite” is attached to it, as Wigney J also recognised in MNLR at [93]-[94]. The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law.

[…]

[136]    As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”. A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement…

17    These principles are not in dispute, although there is some disagreement between the parties as to the circumstances in which an obligation of the nature outlined in WKMZ will arise which I will return to later in my reasons.

18    The first matter to deal with is whether the issue of prolonged or indefinite detention was raised before the Tribunal. The applicant contends that the issue of the applicant being detained was raised squarely in the statement of facts, issues and contentions that was before the Tribunal. The applicant relies on the following references in that statement:

(a)    at [41(g)] of the statement the applicant submitted that one of the matters to be balanced against his criminal offending in the exercise of the Tribunal’s discretion was:

…the consequence of either returning the applicant to a country in which he faces the prospect of serious harm, or alternatively, indefinite detention.

(b)    at [64] the applicant made the following submission in relation to the weight to be ascribed to Australia’s non-refoulement obligations:

On the basis of the contentions and information contained herein, we submit that the applicant is a person who engages Australia’s non-refoulement obligations. If he were to be returned to Ethiopia, Australia would act in breach of its international obligations not to return persons to places where they may be harmed. If he were to be unsuccessful in this review the two possible consequences remain; he is either removed from Australia: s 197C of the Migration Act 1958 (Cth), (see DMH16 v Minister for Immigration [2017] FCA 448), or an effective life sentence of being indefinitely detained. The impact of indefinite immigration detention on the applicant given his personal vulnerabilities, would be harsh.

(c)    at [144] there was a brief reference to indefinite detention in the context of the applicant’s mother’s statement to the Tribunal in which she stated:

…if he were to be deported, or be indefinitely detained, it would have a big impact on my mental health. I am worried this would then also affect my ability to look after my other children and be a good mother to them.

19    In response, the Minister submits that it is necessary to consider the context in which the applicant referred to the prospect of indefinite detention. The Minister points out that the applicant raised the issue in respect of whether the Minister would exercise his personal and non-compellable power to grant a visa to the applicant under s 195A of the Act, but the Tribunal impliedly rejected these representations as it found (at [273]) that the applicant could apply for a protection visa in the future. The Minister says it is significant that the applicant did not make any representation in relation to his entitlement to a protection visa, such as that he would be subjected to prolonged detention until such time as that visa was granted or indefinite detention if it were refused. Nor did the applicant submit that there was a reasonable likelihood that his application for a protection visa would be refused and would remain in indefinite detention.

20    The Minister also says that the Tribunal dealt with the issue of indefinite detention in the context in which it was raised in the applicant’s mother’s evidence. At [204], the Tribunal referred to the statement of the applicant’s mother that deportation or indefinite detention of the applicant would impact on her mental health. The Tribunal then accepted (at [205]) that the applicant’s mother would suffer emotional hardship if he was deported and did not make any further reference to the evidence about indefinite detention.

21    The essence of the Minister’s submissions seems to be that while he accepts there were references to the prospect of indefinite detention in the material before the Tribunal, the issue was not raised by the applicant in a way that required the Tribunal to give the matter any further consideration than what it in fact did. The Minister also emphasises that the applicant could still apply for a protection visa and so says that indefinite detention was not a legal consequence of the Tribunal’s decision.

22    I will deal with the question of whether indefinite detention was a legal consequence of the Tribunal’s decision or at least a foreseeable consequence that the Tribunal needed to consider below. For now, focusing on the applicant’s representations in the statement of facts, issues and contentions before the Tribunal, I consider that the issue of the applicant’s prolonged or indefinite detention was squarely raised. Even though it was not expressed as a stand-alone consideration and was instead referred to in the context of other considerations (such as the exercise of the Minister’s power under s 195A and Australia’s non-refoulement obligations), the matter was significant and the representations going to that matter in the applicant’s statement were clearly articulated.

23    Other than the Tribunal’s passing reference at [204] to the applicant’s mother’s statement, there is no consideration anywhere else in the Tribunal’s decision record of the prospect of indefinite detention being a consequence of non-revocation, nor any consideration of the associated hardship on the applicant as being “another reason” for revoking the cancellation of his visa. For reasons that I will explain in more detail below, I do not accept that the fact that the applicant could still apply for a protection visa was sufficient to resolve the issue of indefinite detention as a possible legal consequence of non-revocation. In this regard, the Minister’s reliance on the Tribunal’s finding at [273] that the applicant could still apply for a visa and the fact that the applicant did not make any representations as to the legal or factual consequence of an application for a protection visa is misplaced.

24    As the clear and significant representations of the applicant regarding the prospect of prolonged or indefinite detention were not considered, the Tribunal failed to conduct the statutory task required by s 501CA. Proper consideration of the prospect of prolonged or indefinite detention was capable of leading to a different result, particularly in circumstances where the Tribunal had already found (at [304]) that the second ‘primary’ consideration and three ‘other’ considerations weighed in favour of revocation. The Tribunal thereby fell into jurisdictional error.

25    Even if the prospect of prolonged or indefinite detention was not raised in the applicant’s representations, I would reach the same conclusion on the basis that this prospect was a necessary and foreseeable consequence of the Tribunal’s decision, and should have been considered.

26    As the applicant submits, the Tribunal was required to consider the indefinite or prolonged detention of the applicant as a consequence of its finding that, in the absence of the applicant voluntarily agreeing to be removed to Ethiopia, it would not be reasonably practicable to remove him and he would remain indefinitely in immigration detention as a consequence of s 196 of the Act.

27    As long as the applicant’s visa remains cancelled, s 189 of the Act requires that he be detained. Section 196 of the Act requires that that detention continue until the applicant is removed from Australia or is granted a visa: see Commonwealth v AJL20 [2021] HCA 21 at [49]-[51] (Kiefel CJ, Gageler, Keane and Steward JJ).

28    The Tribunal had before it country information that indicated that Ethiopia does not accept persons who are returned involuntarily. The Department of Foreign Affairs and Trade Country Information Report – Ethiopia (28 September 2017) (‘DFAT Report’) was referred to by the Tribunal in its reasons. Relevantly, the entirety of [5.20] of the DFAT Report was extracted as follows:

[270]    Further, I am not satisfied that the Applicant lacks knowledge of his ethnicity and heritage or that Ethiopian citizens who return from living overseas are at risk of harm merely by virtue of being returnees. The DFAT country report states that:

“DFAT understands that there are very few successful involuntary returns to Ethiopia of failed asylum seekers from western countries. Authorities typically welcome voluntary returnees to Ethiopia who are not outspoken opponents of the government. The government has on occasion publicised voluntary returns, in recognition of the Ethiopian diaspora’s contribution to the economy through remittances. There have been some reports of authorities monitoring voluntary returnees for a period following their return…DFAT assesses that people who returned to Ethiopia and who are perceived as being political activists opposed to the government are likely to face a high risk of being monitored, harassed, arrested and detained, particularly if they continue to engage in political activities upon their return. DFAT also assesses that people who openly criticise the Ethiopian government while they are outside Ethiopia face a high risk that the Ethiopian authorities will be aware of these activities and take action against these people upon their return.”

29    The Tribunal then went on to say:

[271]    The Applicant has not engaged in political activism against the Ethiopian government or openly criticised the Ethiopian government. I am not satisfied that there is a real risk of harm to the Applicant, should he be returned to Ethiopia, on the basis that he is a returnee from a Western Country and/or because he does not know his heritage or ethnicity (because I am satisfied that he does).

[272]    I note that, Ethiopia appears to be adverse to accepting involuntary returnees. Accordingly, if the Applicant does return it is most likely to be on a voluntary basis.

30    The Minister points out that the Tribunal’s observation at [272] is made with reference to the DFAT Report which does not provide any further context for the statement. I accept that the statement lacks context, and does not disclose any further information about the practical difficulties that may arise if the applicant were to be returned voluntarily. However, the important point is that the Tribunal is accepting the prospect of the applicant not returning to Ethiopia if the cancellation was not revoked. This is evident by the use of “if” in the Tribunal’s reasons.

31    The Tribunal then went on to conclude (at [273]) it was not satisfied there was a real chance that the applicant would suffer significant harm, and did not consider that Australia would be in breach of its international non-refoulement obligations if the applicant were to be returned to Ethiopia. The Tribunal also noted (at [273]) that the applicant could apply for a protection visa.

32    The Minister contends that having regard to the Tribunal’s findings at [273], and in particular that the Tribunal was not satisfied that Australia owes the applicant international non-refoulement obligations, it does not follow that the Tribunal’s observation at [272] means that the factual and legal consequence of non-revocation would be the prospect of prolonged or indefinite detention. The Minister submits that the obligation to consider the issue of indefinite detention would only arise in circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned to Ethiopia, whereas in WKMZ the appellant was owed non-refoulement obligations and the Tribunal had found there was a “low risk” Australia would breach those obligations: see [12].

33    The Minister points out that this Court has previously held that where it remains open for the applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation do not necessarily include an applicant’s removal from Australia or indefinite detention: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 (‘AZAFQ’) at [70] (Allsop CJ, Robertson and Griffiths JJ). However, the facts in that case were different to the present in that the Full Court accepted there was a rational basis for the conclusion that the appellant could be returned to South Sudan: see [45].

34    I have also had regard to the more recent Full Court decision of DQM18 where the majority of the Full Court (Bromberg and Mortimer JJ) had regard to AZAFQ and held as follows:

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

[108]     Applying the Full Court’s statement to the appellant is, however, dependent on the appellant applying for a protection visa. He may or may not do so: he (and those advising him) may, with some cause, consider his prospects of being granted such a visa are infinitesimal given the Assistant Minister’s decision and his criminal record. That is, to use the High Court’s phrases cited above in a different context, a “logical deduction grounded in the seeming improbability” of the appellant, having had his visa cancelled twice on the principal basis that the protection of the Australian community requires that he not be permitted to remain, being granted a different visa so he can remain in the Australian community. Absent such an improbability, that would leave either removal to Sudan or South Sudan, or indefinite detention.

[109]    We do not accept that the Assistant Minister was entitled to ignore the realities of the appellant’s circumstances in the way he did. In the absence of any ITOA, in the absence of any decision about the appellant’s nationality and which of Sudan or South Sudan would accept him, the prospect of indefinite detention was real. The Assistant Minister addressed the appellant’s legal entitlement to apply for the protection visa and addressed the contents of Direction 75, which the Assistant Minister found was likely to require a delegate to consider any non-refoulement obligations owed to the appellant. However, this did not grapple with the realities of the appellant’s situation. The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant’s indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur. If the situation in whichever of Sudan or South Sudan the appellant could be returned to was such that Australia’s international obligations might preclude removal, albeit that the appellant has no visa, then the reality for him would be indefinite detention. The Assistant Minister was required to confront this and deal with it in his reasons.    

35    I accept the applicant’s submission that DQM18 would prevail over AZAFQ to the extent of any inconsistency. The Minister submits that DQM18 is distinguishable from the present case as the majority found (at [109]) that the appellant’s indefinite detention representation was rationally based on an assumption that he was unlikely to be granted a protection visa, and there was a real prospect of indefinite detention. Yet having regard to [272] of the Tribunal’s reasons, it is clear that the Tribunal did accept there was a prospect that the applicant could not be returned to Ethiopia. In respect of the possibility of applying for a protection visa, it is relevant to note the following statement of Kenny and Mortimer JJ in WKMZ in relation to the prospect of applying for a protection visa after a visa cancellation decision has been made and not revoked (at [124]):

It has been accepted that s 197C also does not preclude the executive ensuring that sufficient time is given to an individual who is the subject of an unfavourable non-revocation decision, and who is entitled to make a protection visa application, to do so. However, as Rares J’s reasons in FRH18 made clear, it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community, and in situations such as AQM18 and FRH18, where it has been determined to be against the “national interest”. Nevertheless, the scheme permits a visa application in some circumstances, and it has been accepted that the duties in s 198, read with s 197C, should be read as accommodating time for such an application, fruitless as it might appear to be.

36    I accept that the possibility of applying for a protection visa is a matter that will be relevant to considering the prospect of prolonged or indefinite detention. However, I do not accept the existence of such a possibility to be so determinative that the prospect of prolonged or indefinite detention is no longer a legal or factual consequence of a non-revocation decision.

37    I should note that the Minister also relies on the decision of BFMW v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 573 (‘BFMW’). In BFMW, Nicholas J considered an application for review of the Tribunal’s decision in circumstances where the Tribunal had noted the possibility of the applicant applying for a protection visa and found that the immediate legal and factual consequences of non-revocation did not necessarily include his removal from Australia or indefinite detention: see [32], [37]. The relevant ground of review was that the Tribunal failed to give proper, genuine and realistic consideration to the non-refoulement obligations which it found to be owed to the applicant: see [37]. That is, the complaint went to the Tribunal’s approach to considering Australia’s non-refoulement obligations as it is required to do under the Direction, rather than whether it was separately obliged to consider indefinite detention as “another reason why the original decision should be revoked” within the meaning of s 501CA(4)(b)(ii). Justice Nicholas had regard to both AZAFQ and DQM18 (at [40]-[41]), then found that the Tribunal did not fail to consider any non-refoulement obligations where it accepted that the applicant was owed such obligations but reasoned that the possibility that the applicant might be indefinitely detained until he could be returned to Iraq was outweighed by other considerations: at [56], [59]. I consider this case to be distinguished from the present case.

38    In circumstances where after reviewing the country information the Tribunal accepted the prospect that the applicant could not be returned to Ethiopia, notwithstanding that the applicant could apply for a protection visa in the future, I consider it to have been necessary for the Tribunal to consider the indefinite or prolonged detention of the applicant as a foreseeable consequence of the decision not to revoke the cancellation of his visa. As the applicant submitted, the Tribunal was on notice that the consequence of the applicant’s visa remaining cancelled if he could not be returned to Ethiopia was that he would face indefinite detention, as that fact was expressly noted in cl 14.1 of the Direction.

ISSUE 2: FAILURE TO CONSIDER THE CONSEQUENCES OF THE FAMILY’S RECOGNISED REFUGEE STATUS

39    The applicant next contends that the Tribunal failed to consider the fact that the applicant’s family had been found to be subject to persecution in Ethiopia as a matter that was relevant to the assessment of ‘other’ considerations specified in the Direction, being international non-refoulement obligations and the extent of impediments to the applicant if he were removed to Ethiopia. The applicant says that this misunderstanding on the part of the Tribunal caused it to fail to address the real question, resulting in a constructive failure to exercise its jurisdiction: see Minister for Immigration v Yusuf (2001) 206 CLR 323 at [41] (Gaudron J). The applicant also says that the Tribunal’s consideration of the applicant’s mother’s evidence regarding the reasons that the family had fled Ethiopia may well have been weighed differently had the Tribunal properly understood the scope and consequences of the recognition of the family’s refugee status.

40    As I have already noted, the applicant arrived in Australia as the holder of a subclass 200 permanent refugee visa which he continued to hold until it was cancelled pursuant to s 501(3A) of the Act. The principal criterion for a subclass 200 visa at the time it was granted to the applicant and his mother was that the primary visa applicant be subject to persecution in his or her home country and be living in a country other than the visa applicant’s home country. The primary visa applicant was the applicant’s mother. The applicant was granted the visa as a secondary visa applicant on the ground that he was a member of the same family unit as his mother. It follows that at the time the applicant’s visa was granted, the Minister had formed a view that the applicant’s mother was subject to persecution in Ethiopia.

41    The applicant submits that the previously recognised persecution ought to have been a substantial factor in the analysis of whether Australia continued to owe non-refoulement obligations to the applicant at the time of the Tribunal’s decision. The applicant refers to art 1(C)(5) of the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967 (‘Refugee Convention’), in support of the contention that once a person has been recognised as a refugee, the obligation of non-refoulement attaching to that status continues until “the circumstances in connexion with which he has been recognized as a refugee have ceased to exist”.

42    The applicant the contends that the previously recognised persecution of the applicant’s family ought to have been the starting point for an inquiry as to whether the circumstances giving rise to that recognition had ceased to exist. That is to say, the Tribunal ought to have started with a presumption that non-refoulement obligations continued to be owed to the applicant and his family. The applicant says this point was squarely made in the applicant’s statement of facts, issues and contentions and that the Tribunal’s response to the submission (at [216]) demonstrated a fundamental misunderstanding of the basis for refugee status.

43    However, the difficulty with the applicant’s submissions is that it was only ever the applicant’s mother who was assessed as a refugee. At [216], the Tribunal stated:

It was contended in the Applicant’s SFIC prepared by the Applicant’s solicitor that because the Applicant was granted his visa as a result of his family being subject to persecution in Ethiopia, Australia continues to owe non-refoulement obligations to him. This contention was not pressed in the hearing by the Applicant’s Counsel.

The Applicant’s visa was not granted on the basis that is family were subject to persecution: it was granted on the basis that he was, at the time, a dependent of his mother who was assessed to be a refugee. Whether the Applicant is presently owed non-refoulement obligations, or is at risk of harm or hardship, depends on the facts at the time the claim is made. The Applicant’s visa was not granted on the basis that his family were subject to persecution: it was granted on the basis that he was, at the time, a dependent of his mother who was assessed to be a refugee.

44    I agree with the Tribunal’s reasons at [216] save for one matter, being the observation that the applicant’s counsel did not press the contention that the applicant’s family was subject to persecution. This claim was made in the applicant’s statement of facts issues and contentions (at [60]-[63]) and, having regard to the transcript of the hearing, I am satisfied that the applicant’s counsel relied on the entirety of that document before the Tribunal. It is true that the claim was not emphasised or further elaborated upon at the hearing but it was not abandoned.

45    However, the Tribunal goes on to observe that the applicant’s visa was granted on the basis that he was a dependant of his mother who was assessed to be a refugee. This is the fundamental point. The applicant himself had not been assessed as a refugee and so there is no reason why the Tribunal ought to have proceeded from the premise that non-refoulement obligations presumptively continued. Rather, the appropriate starting point for the Tribunal was to look at the evidence of the facts that existed at the time of its decision so as to determine whether the applicant’s claims give rise to international non-refoulement obligations, which it in fact did. The Tribunal did not err in concluding that the question of whether the applicant was owed non-refoulement obligations or was at risk of harm or hardship “depends on the facts at the time the claim is made”: at [216].

46    Once it is accepted that the Tribunal was not required to apply any presumption the applicant’s arguments in relation to this issue fall away. There is no suggestion that the Tribunal failed to consider the factual matters underpinning the applicant’s mother’s refugee status or the applicant’s family history in Ethiopia. Contrary to the applicant’s submissions, I do not accept that the Tribunal found the applicant’s mother did not have a well-founded fear of persecution. Rather, at [216], the Tribunal was making the point that it was only the applicant’s mother who had been assessed to have a well-founded fear of persecution as it was only the applicant’s mother who had been assessed as a refugee.

47    At [217]-[274], the Tribunal considered the applicant’s claims that he would be at risk of harm if he were to be returned to Ethiopia. The Tribunal observed (at [217]):

… while many pages of the Applicant’s SFIC, that was prepared by the Applicant’s solicitor, were devoted to non-refoulement claims and a large volume of material was tendered, the claims were ill-defined and much of the material that was put forward as supporting the claims did not appear to related to the Applicant’s specific circumstances.

Nonetheless, the Tribunal sought to distil the reasons put forward as supporting non-refoulement claims in the supporting documentation and assessed them. Among those claims were “his family’s history of being imputed with support for the OLF”: [217]. The Tribunal later found (at [249]) that there was a real possibility that having a familial connection to a person suspected of supporting an opposition group including the OLF could attract harassment, arrest or detention by the Ethiopian authorities. The Tribunal then considered whether the applicant could be imputed with supporting the OLF by reference to the evidence of his family history in Ethiopia, including the applicant’s mother’s statement about her experience in Ethiopia and her views as to whether the applicant would be at risk of harm on return: at [251]-[269].

48    The Tribunal concluded that it was not satisfied on the evidence that there is a real chance that the applicant would suffer harm owing to any Refugee Convention related ground, or that there was a real risk that the applicant will suffer significant harm within the meaning of s 36(2A) of the Act. The Tribunal was not satisfied that Australia would be in breach of its international non-refoulement obligations if the applicant were to be returned to Ethiopia: see [273]. However, as the Tribunal was satisfied that there is a real possibility that the applicant could be imprisoned in harsh and unsafe conditions for drug possession and that he could consequently suffer harm or hardship, this ‘other’ consideration therefore weighed in favour of revocation and attracted moderate weight: at [274]).

49    It should be observed that the obligation to consider non-refoulement obligations does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed: see, eg, Ali v Minister [2018] FCA 650 at [28], [34]; Greene v Assistant Minister [2018] FCA 919. Rather, the Tribunal is required to give meaningful consideration to the applicant’s representations on the claimed risk if returned to Ethiopia: Omar at [34]. Nonetheless, the Tribunal did so in this instance and found (at [273]) that non-refoulement obligations were not owed to the applicant.

50    The asserted error in relation to this issue is not made out.

Disposition

51    As the decision of the Tribunal was affected by jurisdictional error for the reasons set out above, I will make the following orders:

(1)    the decision and orders of the Tribunal be quashed;

(2)    the matter be remitted to the Tribunal to be determined according to law; and

(3)    the Minister pay the applicant’s costs of this application.

Associate:

Dated:    22 September 2021