Federal Court of Australia

LGLH v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be given leave to file an amended originating application in the form served on the first respondent on 28 May 2021.

2.    A writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent dated 10 February 2021.

3.    A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter in accordance with law.

4.    The first respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 February 2021.

2    The applicant was born in 1994 in Khartoum in the Republic of Sudan. He is entitled to citizenship of the Republic of South Sudan and is of Dinka ethnicity. The applicant arrived in Australia in June 2009 as the holder of a Global Special Humanitarian (Subclass 200) visa.

3    On 27 July 2015, the applicant was convicted in the County Court of Victoria for the offence of rape and a sentence of 5 years imprisonment was imposed. On the same day, the applicant was also convicted of the following offences: contravene family violence intervention order with intent to cause harm/fear (sentenced to 2 months' imprisonment, served concurrently); stalking (sentenced to 1 months' imprisonment, served concurrently); fail to answer bail (sentenced to 7 days' imprisonment, served concurrently).

4    On 29 March 2017, the applicant's visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of s 501(6)(a) (substantial criminal record), on the basis of s 501(7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant was notified of the decision to cancel his visa on the same day and was invited to make representations as to why the mandatory cancellation of the visa should be revoked.

5    The applicant made representations to the Minister but, on 15 February 2019, the Assistant Minister decided not to revoke the cancellation under s 501CA(4) of the Act. On 3 March 2020, that decision was quashed by orders of the Federal Court made by consent.

6    The applicant made further representations to the Minister in June 2020 but, on 17 November 2020, a delegate of the Minister decided not to revoke the cancellation under s 501CA(4) of the Act. The applicant was notified of that decision on 18 November 2020.

7    The applicant applied to the Tribunal on 20 November 2020 seeking a review of the decision of the Minister's delegate not to revoke the cancellation under s 500(1)(ba) of the Act. The Tribunal affirmed the delegate's decision on 10 February 2021.

8    On 24 February 2021, the applicant filed an originating application in this Court for review of the Tribunal's decision. At the time the application was filed, the applicant was not legally represented. Subsequently, pro bono counsel agreed to represent the applicant and an amended originating application and written submissions were filed in accordance with the Court's orders on 28 May 2021. At the hearing, the Minister did not oppose the grant of leave for the filing of the amended originating application and I granted that leave. The amended originating application stated the following grounds of review (the numbering reflects the deletion of grounds 1 to 3 in the first originating application):

4.    In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 501CA(4), read with s 499(2A) and Direction 79 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error in its consideration of the expectations of the Australian community by misunderstanding this aspect of the statutory task as involving an assessment of what the ‘properly informed and objective member of the Australian community’ would expect rather than the deemed expectations of the Australian community.

5.     In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 501CA(4), read with s 499(2A) and Direction 79 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error in its consideration of the risk to the Australian community by:

a.    misunderstanding this aspect of the statutory task as directed to the seriousness of the applicant’s past conduct rather than the nature and likelihood of the applicant causing harm in the future; and/or

b.    failing to engage in this aspect of the statutory task, or misunderstanding this aspect of the statutory task as not necessitating weighing of the risk to the Australian community against other factors for and against revocation and applying an evaluative mind to their respective weight.

6.     In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (in particular, s 501CA(4), read with s 499(2A) and Direction 79 issued under s 499(1)) the Administrative Appeals Tribunal fell into jurisdictional error in its consideration of international non-refoulement obligations by:

a.    failing to consider clearly articulated claims of the Applicant to be owed international non-refoulement obligations including, for example, to be owed such obligations by virtue of a real chance that he would suffer harm on return to South Sudan as a result of his race (on account of his Dinka ethnicity); and/or

b.    failing to consider whether returning the Applicant to South Sudan would breach Australia’s international non-refoulement obligations and, if so, the consequences of that breach; and/or

c.    misunderstanding this aspect of the statutory task as permitting less weight to be given to international non-refoulement obligations on the basis that they could be ‘properly considered’ in an application for a protection visa.

9    Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his amended originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law.

10    For the reasons that follow, I find that the Tribunal fell into jurisdictional error in affirming the delegate's refusal to revoke the mandatory cancellation of the applicant's visa under s 501CA(4) of the Act.

Background

11    The following is a summary of the factual background that is relevant to the grounds of review raised by the applicant.

12    The applicant was born in 1991 in Khartoum in the Republic of Sudan. His parents have Dinka ethnicity and are from what was then the southern part of Sudan but which, since partition in 2011, is now part of the Republic of South Sudan.

13    The applicant and his two younger sisters became separated from their parents at a young age when his parents fled the civil war. When his parents left, the applicant and his younger sisters lived with various relatives and had limited contact with his parents until they were reunited in Australia approximately eight years later.

14    The applicant arrived in Australia in June 2009, aged 14, as the holder of a Global Special Humanitarian (Subclass 200) visa and was reunited with his parents, and also with three other younger siblings. Later, a further brother was born. The applicant’s parents subsequently separated a couple of years after the applicant arrived in Australia.

15    The applicant initially resided and attended school in Sydney, but later relocated to Victoria with his family. The applicant left school just prior to completing year twelve, and commenced a bricklaying apprenticeship. Prior to the offending for which his visa was cancelled, which occurred in June 2014, the applicant had no criminal history.

16    On 18 June 2014, at the age of 19, the applicant engaged in the offending the subject of the ultimate cancellation of his visa. The criminal conduct for which the applicant’s visa was cancelled was of a very serious nature. The applicant was convicted of raping a woman in June 2014 following the break-down of his relationship with her in May 2014. At the same court hearing he was also convicted of the offences of contravening a Family Violence Intervention Order with intent to cause harm/fear, stalking, and failing to answer bail granted.

17    The judge of the County Court considered that there were a number of aggravating features in respect of the applicant’s offending. It was, in her Honour’s words, a “serious example of rape occurring in the context of a breakdown of a relationship and your inability to accept that”. Other aggravating features were that the applicant persistently harassed the victim prior to the rape offence; the offence occurred in her home; and the applicant was well aware the victim was scared, having locked herself in her room, and crying and struggling whilst the rape was taking place. His later conduct indicated an inability to understand the seriousness of the offending. There was, in the County Court judge’s words, a significant effect on the victim.

18    The applicant was sentenced to five years’ imprisonment, and has served that sentence. At the end of his sentence, on 24 September 2019, he was transferred to Melbourne Immigration Transit Accommodation, and has since been held in immigration detention.

Legislative Provisions

19    Section 501(3A) of the Act provides that the Minister (or a delegate) 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);

. . .; 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.

20    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subs (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

21    Section 501CA of the Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(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.

22    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then-Minister made a direction titled “Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (having a commencement date of 28 February 2019) (Direction 79). In exercising the power in s 501CA(4) to decide whether to revoke the cancellation of the applicant’s visa, the Tribunal was required to apply Direction 79.

23    Section 1 of Direction 79 is titled “Preliminary”. It includes para 6 titled “Preamble” which is divided into paras 6.1 titled “Objectives”, 6.2 titled “General Guidance” and 6.3 titled “Principles”. Relevantly for present purposes, paras 6.2(1) and (3) give the following general guidance to decision-makers:

6.2     General Guidance

(1)    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2)    …

(3)    The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

24    The principles referred to in paras 6.2(1) and (3) are stated in para 6.3 as follows:

6.3     Principles

(1)     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)     The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)     A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)     In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)     Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)     Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)     The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

25    Section 2 of Direction 79 is titled “Exercising the discretion”. It includes para 7 titled “How to exercise the discretion”. Relevantly, para 7(1)(b) stipulates that, informed by the principles in para 6.3, a decision-maker must take into account the considerations in Part C (of the Direction), in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. Section 2 also includes para 8 titled “Taking the relevant considerations into account”. Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen's visa, are articulated in Part C). Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations.

26    Part C of Direction 79 comprises para 13 titled “Primary considerations – revocation requests” and para 14 titled “Other considerations – revocation requests”.

27    Paragraph 13(2) commences with the following direction:

In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

 b)     The best interests of minor children in Australia;

 c)     Expectations of the Australian community.

28    Paragraph 13.1 deals with primary consideration (a), protection of the Australian community:

13.1     Protection of the Australian Community

(1)     When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2)     Decision-makers should also give consideration to:

a)     The nature and seriousness of the non-citizen’s conduct to date; and

b)     The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the conduct

(1)     …

13.1.2     The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)     In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)     The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)     The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

29    Paragraph 13.2 deals with primary consideration (b), the best interests of minor children in Australia affected by the decision. It is unnecessary to refer to that part of the Direction.

30    Paragraph 13.3 deals with primary consideration (c), expectations of the Australian community:

13.3     Expectations of the Australian community

(1)     The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

31    Paragraph 14(1) commences with the following direction:

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

a)     International non-refoulement obligations;

b)     Strength, nature and duration of ties;

c)     Impact on Australian business interests;

d)     Impact on victims;

e)     Extent of impediments if removed.

32    Relevantly, para 14.1 deals with consideration (a), international non-refoulement obligations:

14.1     International non-refoulement obligations

(1)     A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)     The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)     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.

(5)     If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

(6)     In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. 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.

Decision of the Tribunal

33    The Tribunal, in its decision record (Reasons), summarised the applicant’s criminal offending in Australia as follows (at [19]):

… in mid-2015 LGLH was convicted by the County Court of Victoria of the offence of Rape, for which he received a sentence of 5 years’ imprisonment. At same Court hearing he was also convicted of the offences of Contravene Family Violence Intervention Order with Intent to Cause Harm/Fear, for which he received 2 months’ imprisonment (to be served concurrently with the head sentence); the offence of Stalking (Following Person), for which he received 1 month imprisonment, to be served concurrently; and the offence of Fail to Answer Bail Granted, for which he received 7 days’ imprisonment.

34    The Tribunal found that the first primary consideration set out in para 13.1 of Direction 79, the protection of the Australian community, weighed strongly against the applicant (Reasons [143]). In considering the factors listed in 13.1.1 relating to the nature and seriousness of the conduct, the Tribunal noted in particular that:

(a)    the principal offence of which the applicant was convicted was a violent, sexual crime (Reasons [124]), and further took into account the Country Court judge’s remarks regarding the number of aggravating features in respect of the applicant’s offending (Reasons [128], summarised above);

(b)    the sentence imposed for the Rape conviction was five years – a significant custodial sentence (Reasons [130]); and

(c)    the applicant was a first time offender, had not offended frequently, and that while the offending was very serious, there had not been a cumulative effect of repeated offending (Reasons [131]).

35    As part of this first primary consideration, the Tribunal was further required to take into account the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (as set out in para 13.1.2). In this respect, the Tribunal observed that there were certain inconsistencies between what the applicant said at the Tribunal hearing and what a psychologist appointed by the County Court to provide a pre-sentence report (Dr McGrail) recorded in her report in 2015, especially about his previous sexual history prior to committing the main offence of which he was convicted (Reasons at [136]-[137]).

36    In making an assessment of the risk of the applicant re-offending, the Tribunal also considered the evidence of consulting psychiatrist Dr Turnbull (whose report and supplementary report were before the Tribunal) that an important factor in the circumstances of the offending was that the victim was not a stranger, and this was not an opportunistic crime; there were clearly emotions at play, as well as a desire for sexual gratification (Reasons [138]). The Tribunal gave significant weight to Dr Turnbull’s conclusions about the applicant’s risk of recidivism, principally because they were more contemporary (Reasons 139]). The Tribunal quoted page 7 of Dr Turnbull’s expert report (Reasons [140]), which referred to the earlier risk assessment (conducted by Dr McGrail):

A significant time has passed between then and now, and the main things in favour of a lower risk assessment are a lack of problems with drugs or alcohol, no other offending, a seeming benefit from formal sex offender management programs, generally prosocial attitudes in terms of himself and members of the public and his future, and ongoing family of supports.

In my assessment today [i.e. 15 December 2020], it is difficult to find any strong factors, other than the challenges of day-to-day living, in an environment that he has been out of for a few years, that lend themselves towards a risk of reoffending.

He also seems to be blessed by a plethora of peoples who are prepared to back him.

In my opinion, there is no precise way to calculate this man’s risk of offending again.

What I can say, is that he is free of any intellectual impairment, he does not suffer an obvious major psychiatric illness, and the statements he provided today are consistent with someone who has reflected on and matured in terms of his attitudes towards women.

My best estimate is that he is a low risk of reoffending.

37    The Tribunal concluded (at [141]) that after careful consideration of the medical reports and the oral evidence of Dr Turnbull, it adopted Dr Turnbull’s conclusion that the applicant had a low risk of re-offending. The Tribunal preferred this more contemporary assessment to that of Dr McGrail, conducted some five years ago. Concluding with respect to 13.1.2, the Tribunal found (at [141]-[143]):

141.     … While the group of offences were serious, and the main one perhaps the second most serious crime any person can commit, they were contained in a short period of a few weeks. There had been no prior offending or conduct that would pose a question about character, up to that point.

142.     However, there is no doubt that the main offence for which LGLH was convicted, and which he admitted, was very serious. This was not a circumstance where there was any question of whether or not a person had consented to sexual intercourse; plainly the victim had not. The victim, while she knew the perpetrator, was frightened, crying and trying to evade him. That he persisted, uncaring about her feelings or indeed well-being, places the nature of the offence in a particularly bad light. As the Judge said, and as outlined above, there were several aggravating circumstances in the commission of the offence. Even accepting there is a low risk of re-offending, the extent of harm if LGLH did re-offend in this manner, or a similar manner, would be profound. His conduct towards a young woman for whom he previously had romantic feelings was disgraceful and showed a distressing attitude that was completely callous to her wishes and her entitlement to end their romantic relationship. The nature of the harm, to which the Tribunal must have regard under the Direction, is such that even a low risk of re-offending is not a risk that the Tribunal finds can be tolerated.

143.     The Tribunal finds that this primary consideration weighs against the Applicant, and strongly so.

38    In respect of the second primary consideration in Direction 79, the best interests of minor children in Australia affected by the decision, the Tribunal determined (at [161]) that mainly because of the evidence relating to the applicant’s relationship with his four youngest siblings, this primary consideration weighed in favour of revoking the mandatory cancellation of his visa, but the weight was tempered by the fact that others perform a parental role in their lives.

39    In relation to the third primary consideration, the expectations of the Australian community, the Tribunal reasoned as follows:

162.    The first part of this part of the Direction states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

163.    An earlier and now superseded version of the Direction (Direction No. 65) contained virtually identical wording to paragraph 13.3 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority of the Court found that this part of the Direction expresses a ‘norm’.

164.    The Court decided that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or evaluations that a decision-maker may derive by some other process.

40    The Tribunal quoted Charlesworth J’s reasons in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR) at [68]-[74] and Stewart J’s reasons at [100]-[102], and continued:

168.    On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.

169.     Mr Murphy submitted that the nature of the main offence of which LGLH was convicted should not ‘foreclose’ the question in regard to revocation of the mandatory cancellation. The Tribunal agrees with that submission. Neither the Act nor the Direction stipulate offences which automatically act to cancel a person’s visa. However, Section 1 of the Direction sets out the Principles at paragraph 6.3, which relevantly include, at 6.3(3):

A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.

170.     The Tribunal’s considered view is that the main offence of which LGLH has been convicted, being a violent sexual offence against a woman, falls squarely within the scope contemplated by this Principle. I believe that a properly informed and objective member of the Australian community would not expect LGLH to continue to hold a visa to remain in Australia.

171.     The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively strongly so.

41    In deciding whether to revoke the mandatory cancellation of the applicant’s visa, the Tribunal also took into account the following relevant considerations in accordance with para 14(1) of Direction 79:

(a)    international non-refoulement obligations;

(b)    strength, nature and duration of ties; and

(c)    extent of impediments if removed.

42    Relevantly, in considering the existence of international non-refoulement obligations in accordance with para 14.1 of Direction 79, the Tribunal concluded as follows (emphasis in original):

173.    Counsel for the Applicant asserted that LGLH is a person with respect of whom Australia owes non-refoulement obligations but did not in its written submissions expand upon that contention, particularised to the Applicant himself. LGLH’s legal representatives attached an annexure to their written submissions which, while addressed the circumstances of persons being returned to South Sudan, did not once mention the Applicant by name. It concerns the Tribunal that this annexure has the quality of being a ‘boilerplate’, rather than presenting arguments tailored specifically to the personal circumstances of LGLH himself. In any event, the Tribunal will consider the submissions contained in this document.

174.    It was contended that LGLH has a well-founded fear of persecution upon return to South Sudan ‘due to the political opinion that will be imputed to him on account of his Dinka ethnicity’. The Tribunal notes, first, that the current Government of South Sudan is Dinka-led, and Juba as the capital has a significant Dinka population. The submissions state that LGLH is ‘at risk of death or directed violence if returned to South Sudan’. During the hearing, the concentration of the Applicant when asked about his feelings about being sent to South Sudan was about not knowing anyone there and having what the Tribunal considers are legitimate concerns about future employment and financially supporting himself. It is noted that the Applicant’s mother was in South Sudan at the time of the hearing (which prevented her giving oral evidence) and had voluntarily gone there to visit her mother in Wau and was staying, apparently, with her sister in Juba, making arrangements to return to Australia. Comments were made by other witnesses that they were aware she was keen to leave, but it seemed to me this was a combination of the uncertainty of the pandemic as well as unsettling aspects of the local situation. It was not contended by anyone that she was in fear of harm.

175.    The second contention made in the annexure is that LGLH is at risk of serious and significant harm as a returnee from a Western country and ‘as a person therefore perceived to be wealthy’. It went on to contend: “He would be easily identifiable as returnee from a Western country by his inability to fluently speak the local languages, and his ability to speak English.” For reasons which are expanded upon later in these reasons and consistent with the oral evidence of LGLH himself, he speaks English (the official language of South Sudan), some Sudanese Arabic, and Dinka, and is relatively fluent, if not completely so, in the last of these.

176.    The annexure refers to Department of Foreign Affairs and Trade travel advice in relation to South Sudan and to a curfew imposed by the South Sudanese authorities in order to enforce coronavirus social distancing, and submits that there are ‘reports of violent threats against UN personnel on social media and an increase in anti-foreigner sentiment’ due, it is said, to the COVID-19 pandemic. The Tribunal considers that this is a special factor that may potentially increase the potential of harm to LGLH, as someone newly arrived from abroad.

177.    The annexure discusses the situation regarding mental health services in South Sudan. The most contemporary evidence in relation to LGLH is that given by Dr Turnbull at page 6 of his report (Exhibit A10):

He is not a sufferer of nightmares or flashbacks, and clear post-traumatic features were not present. He maintains reasonable physical health and exercise, and I did not elicit features of a Major Depressive Disorder. Intellectually, his use of vocabulary in sentence structure was consistent with someone who was at least average intelligence. I have not formally neuropsychologically tested him, but I doubt he has any clear intellectual deficiencies.

There is some worry about his current state, there is a bit of a sense of futility, and he is concerned about deportation. Despite those concerns and worries, he has maintained some plans for his future and has not entirely abandoned hope.

178.     And at page 7:

What I can say, is that he is free of any intellectual impairment, he does not suffer an obvious major psychiatric illness…

179.     And at page 9:

I think he is coping in detention as well as he could expect. He is having some mental health hiccoughs along the way, but if anything, he has been largely resilient, and he is trying to maintain his health without psychotropics, and is finding goals.

180.     Dr Turnbull did conclude that, should LGLH stay in prolonged detention, “there is a not insignificant risk of a more obvious psychiatric deterioration”. Dr Turnbull in his oral evidence at the hearing said his opinion was that LGLH does not have a major mental illness and does not need psychological or psychiatric treatment.

181.    While the Tribunal concludes that some of the contents of the annexure are generic, there are some characteristics of LGLH, having spent the majority of his school years in Australia and, while being able to speak, to some extent, three of the locally used languages, could mark him out as a newcomer, noting especially that the Applicant has never lived in Juba or anywhere in what is now South Sudan.

182.     The DFAT Country Information Report (CIR) on South Sudan of October 2016, at paragraph 2.31, remarks:

While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and more broadly).

183.     LGLH is of Dinka ethnicity. The CIR also states, at paragraph 3.7:

Overall, DFAT assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba. [Emphasis added].

184.    The UN Special Rapporteur on South Sudan has recently reported sporadic conflicts across the country and in the more remote parts, and a rise in deaths of citizens caught up in those conflicts, across the different ethnic communities, including the dominant Dinka community.

185.     During the hearing Mr Cunynghame reiterated the Respondent’s written submissions which note that LGLH can apply for a protection visa, which has not yet done. He still has such an opportunity and, by consistent submissions on government policy that the Respondent has made in successive similar matters before the Tribunal, while such an application is properly considered, LGLH would not be removed from Australia. The consideration of such an application would allow expansion of any claims that LGLH might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered. The Tribunal notes that the Minister issued a different direction under section 499, Direction No. 75, on 6 September 2017 and that Direction No. 75 provides that a decision-maker must first assess an applicant’s refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.

186.    Although the Applicant’s mother has travelled to South Sudan and been there for several months apparently without incident, LGLH is a young male and if he is returned would be seeking out work and accommodation on a permanent basis. I am satisfied that this might raise the risk of LGLH being specifically targeted as a newcomer, by persons who might want to do him harm, and it is a risk that I find is not fanciful or remote,

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

43    In respect of the applicant’s strength, nature and duration of ties to Australia, the Tribunal concluded that the applicant had strong family links with his parents, stepfather, six siblings, nephew and at least one cousin in Sydney. The Tribunal noted that all of those people named regularly visited him when he was in custody, and the evidence was that his father and cousin frequently travelled from Sydney to Victoria to see him in prison. The Tribunal indicated that it had no doubt that the applicant is a member of a relatively strong family unit. Each of the witnesses who gave evidence expressed concern at LGLH being deported, and the effect it would have on them. Overall, the Tribunal found that this consideration weighed in favour of revoking the mandatory cancellation of the visa, and relatively strongly (Reasons, [193]-[195]).

44    In relation to the extent of any impediments that the applicant might face if removed from Australia to South Sudan, the Tribunal concluded that because the Tribunal had not been apprised of any particular economic support that would be available to LGLH in South Sudan and because of his unfamiliarity with the locale, this consideration weighed slightly in favour of revoking the mandatory cancellation of the applicant’s visa (at [207]).

45    The Tribunal reached the following conclusions in relation to the application:

209.    In this matter two of the three primary considerations, those relating to the protection of the community and the expectations of the community, weigh heavily against the Applicant, because of the nature and circumstances of the crimes he committed. The other primary consideration in relation to the best interests of relevant minor children affected by the decision goes in his favour, but the weight of that is diluted because he does not perform a parental role in relation to any of the children concerned. In the other considerations, the Tribunal has found that those relating to international non-refoulement considerations weighs in favour of revoking the mandatory cancellation of the visa, as does the consideration relating to the strength, nature and duration of ties. The consideration relation to the extent of impediments if removed weighs in his favour, but lightly. The two other considerations at paragraph 14(1)(c) and (d) are not relevant.

210.    After carefully considering this matter, the Tribunal finds that the weight of the two primary considerations against revoking the mandatory cancellation of the visa is determinative. LGLH committed a particularly serious crime against a woman, in aggravating circumstances. In so doing he triggered the cancellation of his visa and the Tribunal finds that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened in this case.

Ground 4

Applicant’s submissions

46    By ground 4, the applicant contends that the Tribunal fell into jurisdictional error by proceeding upon an incorrect understanding of primary consideration (c), the expectations of the Australian community. The applicant submitted that the Tribunal was required to take into account the expectations of the Australian community in the manner prescribed by para 13.3 of Direction 79. The “first expectation” is that non-citizens will obey the law and a failure to obey the law will be held against them (referring to FYBR at [69]–[70] per Charlesworth J and at [95] per Stewart J). The “second expectation” is that the Tribunal will assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of the appropriateness of cancelling a visa (or not revoking its cancellation) (FYBR at [71] per Charlesworth J and at [97] per Stewart J).

47    The applicant submitted that of the Tribunal’s consideration of the expectations of the Australian community at [162]–[171] of its Reasons, the majority of those paragraphs simply recite authority, and the only consideration particular to the applicant’s case appeared at [170]-[171] of the Reasons. The applicant submitted that instead of taking into account the “deemed”, “stipulated” or “imputed” expectations of the Australian community (or the “government’s views about the expectations”) at [170]-[171] of its Reasons, the Tribunal constructed a hypothetical “properly informed and objective member of the Australian community” and took into account that community member’s expectation (at [170]). The applicant argued that the reference to an “objective” member of the Australian community betrays the Tribunal’s misunderstanding of this aspect of the statutory task.

48    The applicant submitted that the Act (and Direction 79) deems expectations of the Australian community precisely so that the Tribunal does not have to engage in an impossible tort-style inquiry, as the Tribunal did in this case, asking what it “believe[s]” to be the expectations of “the hypothetical person on a hypothetical Bondi tram or Clapham omnibus” (quoting Nomikos Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 36 per Deane J; see also FYBR at [88] per Stewart J). The applicant submitted that by proceeding upon this incorrect understanding of s 13.3 of Direction 79, the Tribunal thereby fell into jurisdictional error because of “an incorrect understanding of the nature and extent of the statutory provisions conferring the relevant decision-making power” (quoting Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 (Suleiman) at [31] per Colvin J).

49    The applicant further submitted that this error was material because it “went to the very heart of the manner in which [the Direction] … was interpreted and applied … [and] deprived the Applicant of the possibility of a proper construction … [which] may have led to a different outcome” (quoting FYBR at [24] per Flick J, dissenting). The applicant argued that while the first expectation will always weigh against an applicant, the weight to be afforded to it may differ markedly from case to case (referring to FYBR at [70], [75]-[76] per Charlesworth J). In the present case, there was a realistic possibility that the Tribunal would have weighed this expectation against the applicant, but not so heavily, if it had not erred. In particular, the “degree of tolerance” to be afforded to the applicant fell to be informed by the long time he had been in the community and the fact that his was a humanitarian rather than a limited stay visa (quoting FYBR at [77] per Charlesworth J). The applicant accepted that, given the seriousness of the crimes he committed, the possibility of obtaining a different outcome may not be great, but the applicant submitted that that is a matter to be determined by the Tribunal and not the Court (quoting FYBR at [24] per Flick J, dissenting).

Minister’s submissions

50    The Minister submitted that, when the Tribunal’s reasons were read as a whole, it was plain that there was no error. The Tribunal had stated the correct principles from the majority’s reasons in FYBR, and it would be most surprising if, having set out the correct legal test, the Tribunal then immediately applied a different, incorrect test. The Minister submitted that it was clear from the Tribunal’s reasons that it did exactly what the majority in FYBR required.

51    The Minister submitted that the Tribunal accepted that even a serious offence does not “foreclose” the question of community expectations, but set out and relied on the general policy in para 6.3(3) of Direction 79: that a person who has committed a violent or sexual offence, particularly against women, should generally expect to forfeit the privilege of staying in Australia. The Tribunal decided that the applicant’s offence fell squarely within this principle (Reasons, [169]-[170]). Accordingly, the Tribunal’s decision on this consideration was based on the government’s policy, as set out in Direction 79. That is exactly the process contemplated by FYBR and did not involve any attempt by the Tribunal to identify for itself community expectations as a matter of fact. The Minister submitted that the impugned statement in the Tribunal’s reasons at [170] was the Tribunal’s way of conveying that its assessment of what para 13.3(3) required was not merely its “own view as to the preferable outcome in the ultimate exercise of discretion” (which the Tribunal appreciated was not relevant, as reflected in its Reasons at [165]).

Consideration

52    I accept the Minister’s submissions for the reasons that follow.

53    Although paragraph [170] of the Reasons is poorly expressed, I accept that the Tribunal understood the correct principles with regard to the content of this primary consideration, and applied those principles. At [164] of the Reasons, the Tribunal correctly observed that:

[i]t is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or evaluations that a decision maker may derive by some other process.

54    The Tribunal went on to step out in detail the relevant legal authorities regarding the content of the deemed expectation of the Australian community, extracting [68]-[74] of the reasons of Charlesworth J and [100]-[101] of the reasons of Stewart J in FYBR.

55    I accept the applicant’s argument that correctly stating the law is only a starting point, and a correct statement of the law cannot immunise subsequent reasoning from a complaint of error. The final sentence of [170] of the Reasons (I believe that a properly informed and objective member of the Australian community would not expect [the applicant] to continue to hold a visa to remain in Australia) is, on its face, inconsistent with the principles that come before it. The nature of the deemed expectations articulated in the Direction mean that it is not necessary to identify an objective member of the Australian community and their characteristics. However, I consider that in light of the extensive consideration of the relevant principles that precede it, this comment can fairly be read as adopting the “deemed” community expectation that a non-citizen who has committed a violent or sexual crime, particularly against a woman, should generally expect to be denied a visa (as per the principle at 6.3(3) of Direction 79, extracted at [169] of the Reasons). Indeed the preceding sentence at [170] observes that the applicant’s offence “falls squarely within the scope contemplated by this Principle”.

56    I do not accept that the Tribunal’s subsequent reasoning is expressed in terms that are contradictory to the statements of law that appear earlier. With the content of the “deemed expectation” in mind, it was open to the Tribunal to reach the conclusion that it did. As Mortimer J observed in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]:

In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

57    For the same reason, if (contrary to my finding) the Tribunal has made an error in considering the expectations of the Australian community, I am not convinced that such an error rises to the requisite level of materiality in that there was a realistic possibility that the Tribunal would have reached a different conclusion had the error not been made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] per Bell, Gageler and Keane JJ.

58    For those reasons, I do not accept that the Tribunal fell into jurisdictional error by proceeding upon an incorrect understanding of the primary consideration of the expectations of the Australian community. I therefore reject ground 4.

Ground 5

59    By ground 5, the applicant contends that the Tribunal fell into jurisdictional error in two respects in considering the risk to the Australian community should the applicant commit further offences or engage in other serious conduct as prescribed by para 13.1.2 of Direction 79:

(a)    by misunderstanding this aspect of the statutory task as directed to the seriousness of the applicant's past conduct rather than the nature and likelihood of the applicant causing harm in the future; and/or

(b)    failing to engage in this aspect of the statutory task, or misunderstanding this aspect of the statutory task as not necessitating weighing of the risk to the Australian community against other factors for and against revocation and applying an evaluative mind to their respective weight.

Ground 5(a)

Applicant’s submissions

60    The applicant submitted that the Tribunal’s reasoning discloses a misunderstanding of para 13.1.2 of Direction 79. The Tribunal was concerned almost entirely with the seriousness of the applicant’s past conduct, whereas para 13.1.2 required the Tribunal to look at the nature and likelihood of the applicant causing harm in the future. While the applicant acknowledged that the nature of past harm that has been caused by someone can inform a prediction of the future harm that might be caused by a person, the applicant argued that the peroration of the Tribunal’s consideration of the risk to the Australian community was concerned with characterising, and denouncing, the seriousness of the applicant’s past criminal conduct, independently of considerations of potential for future harm. Counsel for the applicant pointed to the Tribunal’s use of words like “very serious”, “particularly bad light”, “aggravating circumstances”, “disgraceful”, “distressing attitude” and “completely callous” (Reasons, [142]). The applicant argued that these descriptions, being descriptions of the applicant’s state of mind and assessments of the seriousness of the offending, go towards the applicant’s moral culpability and the seriousness of the offence, rather than a clear-eyed consideration of the future risk of harm. In the applicant’s submission, that the Tribunal was concerned almost entirely with the seriousness of the applicant’s past conduct is confirmed by its use of the language of what can be “tolerated” (Reasons, [142]), which is picked up from sections of Direction 79 concerned with offence seriousness, not risk (namely, paras 6.3(5) and 6.3(6)).

61    The applicant argued that Direction 79 recognises, by distinguishing the considerations at paras 13.1.1 and 13.1.2, that the seriousness of criminal conduct is assessed by reference to much more than the harm that it caused (or may have caused), and that that has long been acknowledged by criminal courts, legal theorists, and moral philosophers (referring to A P Simester and Andrew Von Hirsch, ‘Remote Harms and Non-constitutive Crimes’ (2009) 28(1) Criminal Justice Ethics 89). The applicant argued that the Tribunal’s analysis under the heading of para 13.1.2 involved consideration of matters that were properly extraneous to para 13.1.2.

62    The applicant further submitted that this over-inclusive consideration of risk (which imported considerations of offence seriousness) resulted in a “double counting” of matters against the applicant that had already been assessed adversely to him in the consideration of para 13.1.1. The Tribunal thus proceeded upon an incorrect understanding of para 13.1.2, thereby falling into jurisdictional error because of “an incorrect understanding of the nature and extent of the statutory provisions conferring the relevant decision-making power” (citing Suleiman at [31] per Colvin J). The applicant argued that this error was material because it entailed a double counting of matters against the applicant, which can be said to have deprived him of a realistic possibility of a different outcome.

Minister’s submissions

63    The Minister submitted that the applicant’s argument in respect of ground 5(a) overlooks how the seriousness of past conduct is inextricably linked to any assessment of the nature of harm (as part of an assessment of risk). The Minister acknowledged that Direction 79 articulates separately the seriousness of conduct and the risk of harm to the community. In assessing the first primary consideration of protection of the community (para 13.1), decision-makers should give consideration to (a) the nature and seriousness of the non-citizen’s conduct; and (b) the risk to the Australian community should the person commit further offences or engage in other serious conduct (para 13.1(2)). Each of these matters is separately elaborated in paras 13.1.1 (nature and seriousness of conduct) and 13.1.2 (risk to the community from further offences). However, the Minister submitted that the seriousness of past conduct and the risk of harm caused by further offences are interconnected, both as a matter of practice and in the wording of Direction 79.

Consideration

64    I do not accept the applicant’s submission that the Tribunal’s reasons show that it misunderstood the consideration in para 13.1.2 of Direction 79. Paragraph 13(2)(a) requires decision-makers to have regard to the protection of the Australian community from criminal or other serious conduct as a primary consideration. In that regard, para 13.1(2) requires decision-makers to have regard to two factors:

(a)    the nature and seriousness of the non-citizen’s conduct to date; and

(b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

65    The consideration referred to in para (b) is expanded upon in para 13.1.2(1) which states that decision-makers must have regard to, cumulatively, (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct. I accept the Minister’s submission that, in considering the nature of potential future harm, the decision-maker would rationally consider the risk that the person would engage in criminal conduct that was similar to the applicant’s past offending (see Muggeridge v Minister for Immigration (2017) 255 FCR 81 (Muggeridge) at [36] per Charlesworth J, with Flick and Perry JJ agreeing). I note for completeness, however, that in Muggeridge, the Court ultimately found (at [55]-[56]) that while the Minister was entitled to consider the risk that Mr Muggeridge would engage in criminal conduct of the same type as his previous offending, there was no logical basis to reach a conclusion that Mr Muggeridge would re-offend in the same manner on the evidence that was before the Tribunal. The mere fact that an applicant has offended in the past does not support a conclusion that the applicant is likely to re-offend in the same manner in the future. The assessment of the risk of re-offending must be carried out on the basis of all relevant facts and circumstances.

66    At [135]-[141] of its Reasons, the Tribunal considered the likelihood of the applicant engaging in further criminal or other serious conduct, concluding that the risk was low. At [142] of its Reasons, the Tribunal considered the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, concluding that, if the applicant re-offended in a similar manner, the extent of harm would be profound. Having regard to both factors, the Tribunal concluded (at [143]) that the consideration weighed strongly against the applicant. In my view, the Tribunal’s reasoning and conclusions did not involve any misunderstanding or misapplication of para 13.1.2. I therefore reject ground 5(a).

Ground 5(b)

Applicant’s submissions

67    The applicant submitted that the Tribunal fell into jurisdictional error in considering the risk to the Australian community by failing to weigh the factors for and against revocation “carefully against each other and applying an evaluative mind to their respective weight” (citing Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478 (Kura) at [88] per Kerr J). The applicant placed reliance on two aspects of the Tribunal’s reasons:

(a)    at [142], the Tribunal concluded that the nature of the harm that would be caused by the applicant re-offending in the same manner was such that “even a low risk of re-offending is not a risk that the Tribunal finds can be tolerated”; and

(b)    at [210], the Tribunal concluded that the weight of the two primary considerations against revoking the mandatory cancellation of the visa, the protection of the community and the expectations of the community, was determinative (with the Tribunal expressly acknowledging that the two primary considerations related to the same matter in this case, that the applicant had committed a serious sexual crime against a woman in aggravating circumstances).

68    The applicant argued that these conclusions short-circuited the statutory task. The applicant argued that, by using the word “determinative” at [210], the Tribunal made clear that the risk of harm from re-offending had predetermined the outcome of the decision. The applicant argued that whatever weighing process occurred at [208]-[210] had been predetermined by the earlier conclusion of the Tribunal at [142]. The applicant submitted that these conclusory paragraphs are open to the same criticism made by this Court in Kura. The applicant argued that this case is distinguishable from others, such as Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 (Murad), where the Tribunal’s reasons were able to be saved by a charitable reading (at [47]–[48] per Griffiths and Perry JJ).

Minister’s submissions

69    The Minister submitted that the Tribunal’s reasons show that it weighed the risk of re-offending against other factors. The Minister submitted that the applicant’s argument overlooks that the protection of the Australian community consideration required the Tribunal to balance the seriousness of possible harm against the likelihood of it occurring. Under para 6.3(4) of Direction 79, past criminal offending, and the harm that may be caused if it were repeated, may be so serious “that any risk of similar conduct in the future is unacceptable”. The statement at [142] of the Reasons that even a low risk of the relevant harm could not be tolerated was to the same effect – that, so far as protection of the Australian community is concerned, the risk of harm, although low, was unacceptable.

70    The Minister further argued that, crucially, the conclusion at [142] was not the end of the analysis under Direction 79. Paragraph 6.3(4) goes on to state that, if the risk of similar conduct in the future is unacceptable, even other strong countervailing considerations “may be insufficient” to justify not cancelling the visa. That is, the balancing of the primary and other considerations must still be undertaken. The Tribunal was aware of this, having cited para 6.3 at [24] of its Reasons. Similarly, the conclusion at [143] of the Reasons was only that the protection of the Australian community consideration weighed “strongly” against the Applicant. That left open the final balancing of the different considerations, which the Tribunal did at [208]-[210]. The Tribunal found (at [210]) that the weight of the two primary considerations (protection of the Australian community and community expectations) were determinative. The Minister submitted that there is no reason to doubt the genuineness of this balancing exercise – it was not predetermined by the earlier conclusion at [142]. The Minister submitted that this case is therefore similar to Murad, where a statement by the Assistant Minister that a risk of reoffending was “unacceptable” (in the course of discussing risk of reoffending) did not mean that the Minister had treated this matter as a paramount consideration which overwhelmed all other considerations, including in that case best interests of minor children.

Consideration

71    I accept the Minister’s submissions with respect to ground 5(b). It is important to bear in mind the observations by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 (cited in Murad at [36]):

… a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker … “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision …

(Citations omitted.)

72    In Murad, the Court was in effect asked to infer that a finding by the Minister of an “unacceptable risk of reoffending” was a primary consideration in the Minister’s decision-making and the paramount consideration which overwhelmed all other considerations, including the best interests of Mr Murad’s children (see Murad at [42]). Griffiths and Perry JJ considered that this required the Minister’s statement of reasons to be read in a way that was inconsistent with the above principle from Wu Shan Liang (at [42], [46]).

73    In accordance with Murad (at [44]-[46]), regard must be had to the structure of the reasons for the decision-maker’s decision, and the language used by the decision-maker to sign-post his or her reasoning and conclusions. While the Tribunal comes to a preliminary finding in respect of the risk to the Australian community (the risk cannot be tolerated), I am not satisfied that this finding predetermined the outcome of the statutory task. It is clear from the balance of reasons that the Tribunal weighed the other considerations, consistently with Direction 79. It is generally not for the Court to determine the appropriate weight to be given to each of the relevant considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 per Mason J. The Tribunal turned its mind to each of the primary and other relevant considerations, and in its conclusion at [208]-[210] of the Reasons offered a final assessment of how those considerations weighed against each other (in the manner required by Kura at [88]).

74    Accordingly, I do not accept that the Tribunal fell into jurisdictional error in failing to weigh the factors for and against revocation against each other and I therefore reject ground 5(b).

Ground 6

75    By ground 6, the applicant contends that, in purporting to consider Australia’s non-refoulement obligations at [172]-[187] of its Reasons, the Tribunal fell into jurisdictional error in three respects:

(a)    by failing to consider clearly articulated claims of the applicant to be owed international non-refoulement obligations including, for example, to be owed such obligations by virtue of a real chance that he would suffer harm on return to South Sudan as a result of his race (on account of his Dinka ethnicity); and/or

(b)    by failing to consider whether returning the applicant to South Sudan would breach Australia’s international non-refoulement obligations and, if so, the consequences of that breach; and/or

(c)    by misunderstanding this aspect of the statutory task as permitting less weight to be given to international non-refoulement obligations on the basis that they could be “properly considered” in an application for a protection visa.

Ground 6(a)

Applicant’s submissions

76    The applicant submitted that of the nine bases on which the applicant claimed to be owed international non-refoulement obligations, the Tribunal only identified two of these claims, dealing with the first at [174], and the second at [175] of the Reasons. The applicant submitted that the Tribunal failed to deal with the other claims.

77    The applicant gave the following examples of claims that it submitted the Tribunal had failed to consider:

(a)    First, the Tribunal failed to consider the applicant’s claim that there was “a real chance that the Applicant … would suffer harm on return to South Sudan” as a result of “his race on account of his Dinka ethnicity”. The applicant argued that this was a matter about which the applicant had put forward evidence, but the Tribunal’s reasons demonstrated no active intellectual engagement with the claim.

(b)    Second, the Tribunal failed to consider the claim that the applicant would be at risk of forced recruitment. In support of this claim, the applicant included a quotation from a report of the Refugee Board of Canada, which references a number of other independent agencies including UNICEF, Human Rights Watch and the US Department of State, and summarises the various different reports on the issue of forced recruitment. This evidence, the applicant submitted, was not even identified, let alone engaged with, in the Tribunal’s reasons.

78    The applicant submitted that the failure of the Tribunal to consider these and the applicant’s other clearly articulated claims to be owed non-refoulement obligations was a jurisdictional error (referring to Ali v Minister for Home Affairs (2020) 278 FCR 627 (Ali) at [45]; DQM18 v Minister for Home Affairs (2020) 278 FCR 529 (DQM18) at [25]-[36] per Bromberg and Mortimer JJ; and FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 (FAK19 v Minister) at [51] (Charlesworth J)). The applicant submitted that the failure was material because, had those claims been considered, the decision might realistically have been different. For example, if the Tribunal had considered the evidence put forward by the applicant in respect of his Dinka ethnicity it might realistically have come to the view that returning the applicant to South Sudan would place Australia in breach of its non-refoulement obligations.

Minister’s submissions

79    The Minister submitted that the Tribunal did give active intellectual consideration to the representations made by the applicant. The Minister submitted, however, that the Tribunal was not required to make a finding on every representation made and every piece of evidence. The need to make a specific finding depends on the nature and content of the representation: Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at [39](e), [42] and Guclukol v Minister for Home Affairs (2020) 279 FCR 611 at [41], [69]-[70]. Further, a representation may be subsumed in a finding of greater generality: Minister for Immigration v Buadromo (2018) 267 FCR 320 (Buadromo) at [46], [49], [60]; Minister for Immigration v Maioha (2018) 267 FCR 643 at [41] per Rares and Robertson JJ; Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [53], [56]. It is necessary to read the Tribunal’s reasons fairly and as a whole.

80    The Minister did not dispute the applicant’s contention that the nine representations regarding non-refoulement obligations were made. Counsel for the Minister clarified that he was not suggesting that any of the representations were not suitably “substantial or significant” (citing Omar at [39]; EVK18 v Minister for Home Affairs (2020) 274 FCR 598 at [14]) such that they need not be considered. Rather, the Minister’s submission was that the Tribunal had engaged in the required active intellectual process in considering the applicant’s representations, and had, as a matter of substance, assessed those representations.

Consideration

81    The question that arises in respect of ground 6(a) is whether the Tribunal properly performed its statutory task in deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa. The state of satisfaction required by s 501CA(4)(b)(ii) cannot be lawfully formed without “meaningful consideration” of the representations that have been invited: DQM18 at [23] per Bromberg and Mortimer JJ citing Omar at [34(e)-(i)], [37]. The Full Court in Omar (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) gave helpful guidance (at [36]-[37]) on what is meant by the obligation of a decision-maker to “consider” a matter in the context of judicial review, which guidance was summarised by the Full Court in GBV18 v Minister for Home Affairs (2020) 274 FCR 202 (GBV18) at [32] (Flick, Griffiths and Moshinsky JJ) as follows (emphasis in original):

(a)    Even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

(b)     Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.

(c)     The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(d)     The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(e)     Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law”.

(f)     The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)     A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to reemphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

(h)     Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

82    The above principles, as applied to claims concerning Australia’s non-refoulement obligations, were re-affirmed by the Full Court in Minister for Immigration v FAK19 [2021] FCAFC 153 (Minister v FAK19), which was an appeal against the decisions of the Federal Court in FAK19 v Minister and CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380. The Full Court’s decision in Minister v FAK19 was handed down on 23 August 2021, after the hearing of this application. The Full Court upheld the correctness of the principles stated in Ali, and a number of other decisions of the Court which state similar principles including BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, and GBV18. Relevantly, the Full Court stated (at [76]-[80] per Kerr and Mortimer JJ, Allsop CJ agreeing):

76    As the Full Court explained in Ali, there is ample authority for the proposition that although s 501CA(4) does not impose an express obligation on a decision maker to “consider” representations made for the purpose of identifying “another reason” why the visa cancellation should be revoked, the context and purpose of the provision, together with the text which imposes a duty to invite such representations, indicate that there is a statutory obligation on the Minister to engage, in an active intellectual sense with the representations: see Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [35]-[37], and the authorities there cited.

77     To describe the task, as Colvin J did in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [67], as being that in “order to properly discharge that obligation, the Minister must not overlook the representations” is functionally equivalent to characterising the representations as a whole as a mandatory relevant consideration, even if one characterises it (as Colvin J does at [72]) as a “breach of the statutory requirement to consider the representations”. There is a point at which these questions of characterisation become somewhat academic, because they are simply different ways of articulating what the statute requires for a valid exercise of power.

78     There is no substantive (as opposed to semantic) difficulty in the conclusion that properly construed, the statutory scheme requires the representations as a whole to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. We respectfully agree with the observations of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56]. They were endorsed in Omar at [34(e)] and this proposition is now beyond doubt. To say as much is not to elevate to the character of mandatory relevant consideration every factual assertion made in the representations, which is a proposition also made clear in Omar at [34(e) and (h)]. This in turn leads to the proposition that:

The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.

See Omar at [34(g)].

79     Whether or not this is precisely the characterisation set out in Ali at [44] is not a matter which should lead, in our respectful opinion, to any conclusion that the overall approach in Ali is wrong. It is true the passage at [44] (and that at [45]) tend to employ the language of considerations in relation to individual representations made by a person whose visa has been cancelled. However, this language should not obscure the fact that the Full Court was, in substance, seeking to adhere to what had by the time of its decision become a considerable line of authority in this Court about the jurisdictional constraints on the Minister’s statutory task under s 501CA(4) in considering representations made about “another reason” to revoke a visa cancellation. So much is plain from what is incorporated into [46] of the Full Court’s reasons in Ali, as well as the Full Court’s reference to DGI19 v Minister for Home Affairs [2019] FCA 1867 and BCR16.

80     Ali is correctly decided, and the Minister’s challenge to it should be rejected.

83    In this case, the applicant was represented by Counsel before the Tribunal, and Counsel prepared the Statement of Facts, Issues and Contentions filed on behalf of the applicant in the Tribunal. The Statement contained a detailed section in relation to Australia’s non-refoulement obligations and expressly advanced the contention that the applicant is a person who engages Australia’s non-refoulement obligations. The claims that were said to engage non-refoulement obligations were set out in Annexure A to the Statement.

84    Annexure A referred to Australia’s non-refoulement obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as modified by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention), the International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, (entered into force 26 June 1987) (CAT). The Annexure relied specifically on Art 33 of the Refugee Convention by which Australia is prohibited from expelling, or refouling, a refugee to a place in which he or she faces persecution, noting that “refugee” is defined in Article 1A7 as a person who has a “well-founded fear of persecution in their home country for reason of their race, religion, nationality, political opinion or membership of a particular social group”.

85    Annexure A summarised the applicant’s claims to fear harm as follows:

In summary, the Applicant fears harm on account of the ongoing violence against the Dinka people in South Sudan as well as on account of his profile as a Christian, returnee from the West and a young male who has suffered trauma in the past.

In our submission, non-refoulement obligations are owed to the Applicant under the Convention for the following essential and significant reasons, either cumulatively or separately:

•    his imputed political opinion on account of his perceived opposition to armed groups due to his Dinka ethnicity; and/or

•    his race on account of his Dinka ethnicity; and/or

•    his membership of the particular social groups:

•    young men at risk of forcible recruitment by armed groups; and/or

•    persons perceived to be wealthy in South Sudan; and/or

•    persons perceived to be foreign; and/or

•    returnees from Australia; and/or

•    persons who have experienced trauma and are suffering mental ill-health.

Moreover, Article 3 of the CAT expressly prohibits refoulement to a place where there are substantial grounds for believing a person would be subjected to torture. A non-refoulement obligation has also been read into Articles 6 and 7 of the Covenant which respectively provide protection from the arbitrary deprivation of life and from torture, and cruel, inhuman or degrading treatment or punishment. Relevantly, Australia’s obligations under the CAT and the Covenant do not depend on a particular reason or basis for the mistreatment or discrimination.

It is submitted that country information indicates that there is a real chance that the Applicant, on the basis of his particular profile, would suffer harm on return to South Sudan.

86    I accept the applicant’s submission that the above summary advances nine identifiable bases on which the applicant claimed to be owed international non-refoulement obligations, although there is a degree of overlap between certain of the claims. The applicant acknowledged that the enumeration of those claims was not mirrored in the subsequent organisation of the material in Annexure A. Nonetheless the claims are clearly identified in the summary, and relevant country information in support of each can be found in the pages of Annexure A that follow.

87    The subsequent material in Annexure A was organised under the following headings and, in respect of those headings, included the following claims in relation to the applicant:

i)     Targeting of civilians based on ethnicity and imputed political affiliations

    … the Applicant has a well-founded fear of persecution upon return to South Sudan due to the political opinion that will be imputed to him on account of his Dinka ethnicity. On this basis, we submit that the Applicant is at risk of death or directed violence if returned to South Sudan.

    …

    Given the above country information, we submit that the Applicant risks facing death, violence, torture and/or arbitrary detention based on his imputed political opinion on account of his Dinka ethnicity if removed to South Sudan.

ii)     Targeting of returnees and persons perceived as wealthy and/or foreign

    We further submit that the Applicant is at risk of serious and significant harm as a returnee from a Western country and as a person therefore perceived to be wealthy. We submit that as a direct consequence of his removal from Australia, he would be at greater risk of crime-related violence and attacks. He would be easily identifiable as a returnee from a Western country by his inability to fluently speak the local languages, and his ability to speak English. Further, relying on the country information above, the South Sudanese government would not provide him adequate protection.

    …

    We submit that the Applicant will be considered by many South Sudanese as a foreigner, due to leaving Sudan as a child, because he has never been to South Sudan and has lived much of his life in Australia. He can understand Dinka but mixes it with English and does not believe he speaks it fluently. The perception of the Applicant as a foreigner will place him at further risk of significant harm.

iii)     Forced recruitment of men in South Sudan

    Groups, including militia aligned with the Dinka-majority government forces frequently target men for the purposes of forced conscription. …

    …

    We submit that the Applicant, as a young and physically able Dinka male, is at significant risk of forced recruitment to militia groups.

iv)     Ongoing instability and insecurity in South Sudan

    The UNHCR updated their position on returnees to South Sudan in April 2019. The updated position paper concludes with a reaffirmation of the previous position: that states should suspend forcible returns of nationals or habitual residents of South Sudan to the country. It notes that safety and dignity cannot be assured, for the reasons extracted below…

    …

    We submit that returning the Applicant to a country where he faces the prospect of persecution and significant harm would be inconsistent with Australian’s non-refoulement obligations.

v)     Threats to people of Dinka Ethnicity

    While the most recent DFAT report indicates that Dinkas face a low risk of being targeted on the basis of their ethnicity in Juba, where the Applicant would likely be returned to as it is the capital city, we strongly submit that the Applicant is more vulnerable to being targeted as a Dinka given that he has no contacts or links in Juba and may be unaware of the local situation and precautions that Dinka inhabitants of Juba would take. Further and in any event, a low risk of harm is still consistent with a real risk of harm for the purposes of non-refoulment. The Courts have repeatedly emphasized that a risk that is said to be “low” or “unlikely” is still consistent with a real chance/real risk. Following this, it would be applying the wrong test for a decision-maker relying on a finding that the risk would be unlikely or low to find that there would not be a real chance/risk of the requisite harm. In this regard it is further submitted that it would amount to an error of law to reply (sic, rely) on country information that states the relevant risk to a person in the Applicant’s circumstances is “low[er]” and “unlikely” (which is not uncommon terminology used in reports prepared by DFAT).

vi)     Inadequate mental health treatment and associated stigma in South Sudan

    We submit that aside from the disruption to support networks due to conflict referred to above, the Applicant would have almost no social support available in South Sudan by virtue of his lack of close family or other social networks in South Sudan.

88    The above claims were supported by lengthy extracts from relevant and recent country information in respect of South Sudan from many sources including the Australian Government Department of Foreign Affairs and Trade (DFAT), the US Department of State, the Immigration and Refugee Board of Canada, the United Nations High Commissioner for Refugees, the United Nations Human Rights Council, Amnesty International and Médecins Sans Frontières.

89    In its Reasons, the Tribunal twice criticised the material submitted on behalf of the applicant in Annexure A as “boilerplate” and “generic”. At [173], the Tribunal stated:

LGLH’s legal representatives attached an annexure to their written submissions which, while addressed the circumstances of persons being returned to South Sudan, did not once mention the Applicant by name. It concerns the Tribunal that this annexure has the quality of being a ‘boilerplate’, rather than presenting arguments tailored specifically to the personal circumstances of LGLH himself. In any event, the Tribunal will consider the submissions contained in this document.

And at [181] stated:

While the Tribunal concludes that some of the contents of the annexure are generic, there are some characteristics of LGLH, having spent the majority of his school years in Australia and, while being able to speak, to some extent, three of the locally used languages, could mark him out as a newcomer, noting especially that the Applicant has never lived in Juba or anywhere in what is now South Sudan , the Tribunal referred to the contents of Annexure A as “generic”, finding that “[w]hile the Tribunal concludes that some of the contents of the annexure are generic … some characteristics of LGLH … could mark him out as a newcomer…”.

90    It is not clear what was meant by those criticisms, which appear misdirected and unfair. The circumstances which engage Australia’s non-refoulement obligations will typically be conditions in the receiving country that are widespread and “generic” – a risk of harm that arises because of the applicant’s race, religion, nationality, political opinion or membership of a particular social group will be shared by others who have the same characteristics. The fear will typically not arise by reason of individual circumstances of the applicant but by reason of the applicant having a particular ethnicity, religion, nationality or political opinion. The Tribunal’s criticism that Annexure A “did not once mention the Applicant by name” must be regarded as perverse. As the extracts above show, the Annexure referred to the applicant on numerous occasions. It is wholly irrelevant that the Annexure chose to refer to the applicant using the impersonal title “Applicant” rather than the applicant’s personal name. As to the criticism that the Annexure had the quality of being boilerplate, I infer that the Tribunal considered that the information reproduced in the Annexure had been reproduced in other applications before the Tribunal. However, that is hardly surprising (in that other persons of South Sudanese nationality are likely to have come before the Tribunal) and is not a legitimate basis for criticism. If the material is relevant and correct, the decision-maker is not entitled to afford it less weight, or treat it dismissively, on the basis that it appears to have been used before in other applications. Such an approach to the material would be irrational.

91    At [174], the Tribunal addressed the applicant’s first claim – to fear persecution due to the political opinion that will be imputed to him on account of his Dinka ethnicity. In respect of that claim, the Tribunal made two observations. The first was that “the current Government of South Sudan is Dinka led, and Juba as the capital has a significant Dinka population”. That observation did not engage fully with the claim that the applicant would face harm on account of imputed political opinion. The second observation was that the applicant’s mother was in South Sudan at the time of the hearing, had voluntarily gone there to visit her mother and it was not contended by anyone that she was in fear of harm. It is difficult to discern what weight the Tribunal placed on that anecdotal fact (subsequently, at [186], the Tribunal appears to indicate that it did not place significant weight on the fact). Nevertheless, the fact that no-one at the hearing claimed that the applicant’s mother was in fear of harm is not logically probative of a conclusion that she was not in fear of harm (the absence of a claim does not prove the negative); and even if it were true that the applicant’s mother was not in fear of harm, it is not logically probative of a conclusion that the applicant had no basis to fear harm. The Tribunal otherwise made no reference to the country information contained in Annexure A in support of the claim, which indicates that populations are targeted on the basis of imputed political opinion, that is, their perceived support for one or another side in the ongoing conflict in the country.

92    At [175], the Tribunal addressed the applicant’s second claim – to fear harm as a returnee from a Western country and as a person therefore perceived to be wealthy. As noted above, the applicant had submitted that he would be easily identifiable as a returnee from a Western country by his inability to fluently speak the local languages and his ability to speak English. The Tribunal made two observations in respect of that claim. The first observation was that the applicant speaks English, which is the official language of South Sudan, some Sudanese Arabic, and Dinka. In making that finding, the Tribunal cross-referenced a later finding about the applicant’s familiarity with South Sudanese language and culture at [203]:

My conclusion in regard to all this evidence is that LGLH has a good working knowledge of Dinka. I accept that his proficiency in that language has receded since he has been in Australia, has been educated here and has used English more. I consider that, while his Dinka may be rusty, he would be able to make himself understood with other Dinka speakers and would be able to understand Dinka spoken to him, and to a lesser extent, Sudanese Arabic. I also note the Respondent’s submission that the official language in South Sudan is English. I find that there would not be significant language barriers facing LGLH if deported to South Sudan. There may be some cultural barriers because of the large period of time LGLH has spent in Australia; I accept that he would be unfamiliar with the local cultural landscape.

93    The Tribunal acknowledged, at [181], that there are some characteristics of the applicant, having spent the majority of his school years in Australia, which could mark him out as a newcomer, noting especially that the applicant has never lived in Juba or anywhere in what is now South Sudan.

94    The second observation, made at [176], related to DFAT’s travel advice in relation to South Sudan which was relied on by the applicant in his Annexure materials in support of the claim. However, the Tribunal’s consideration of the DFAT travel advice was limited to that part of the advice that referred to the consequences of the COVID-19 pandemic, the Tribunal concluding that that is a special factor that may potentially increase the potential of harm to the applicant, as someone newly arrived from abroad.

95    The Tribunal did not otherwise engage with the applicant’s second claim or the materials in Annexure A submitted in support.

96    At [177], the Tribunal addressed the applicant’s sixth claim – the risk of harm by reason of inadequate mental health treatment in South Sudan. The Tribunal referred to evidence before the Tribunal which indicated that the applicant does not have a major mental illness and does not need psychological or psychiatric treatment (at [177]-[180]). The applicant did not challenge the basis for that finding.

97    Nowhere in its Reasons does the Tribunal address the applicant’s third claim – that as a young and physically able Dinka male, the applicant would be at significant risk of forced recruitment to militia groups.

98    Nor do the Tribunal’s reasons engage with the applicant’s fourth claim – that he would be at risk of harm by reason of the ongoing instability and insecurity in South Sudan. At [182], the Tribunal referred to the DFAT Country Information Report which stated that the relative stability within Juba (the capital) was extremely fragile and criminality was rampant. However, the Tribunal does not refer to, or otherwise connect that report to, the applicant’s fourth claim.

99    At [183], the Tribunal appears to address the applicant’s fifth claim – that the applicant is vulnerable to being targeted as a Dinka given that he has no contacts or links in Juba. The Tribunal noted the DFAT Country Information Report which stated that “Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict”, but that “[i]n Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba”. At [184], the Tribunal recorded that the UN Special Rapporteur on South Sudan has recently reported sporadic conflicts across the country and in the more remote parts, a rise in deaths of citizens caught up in those conflicts, across the different ethnic communities, including the dominant Dinka community. However, the Tribunal does not otherwise refer to the applicant’s fifth claim or make any specific findings in relation to that claim.

100    As has been emphasised in many cases, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”: Buadromo at [49]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46]). Further, as submitted by the Minister, a decision-maker is not, in all circumstances, required to make specific findings of fact. Whether this is required depends on the nature and content of the representations (Omar at [39]).

101    Nevertheless, I am satisfied that the Tribunal did not consider the applicant’s representations regarding non-refoulement obligations in the manner required to discharge its duty under s 501CA(4). The Tribunal was provided with a significant volume of evidence in support of the bases on which the applicant claimed to be owed international non-refoulement obligations. The Tribunal’s reasons fail to demonstrate an active intellectual consideration of each of the claims made by the applicant and the material that supported the claims. In that respect, I note the following matters.

102    First, the nature and content of the representations made by the applicant, which referred to risks of harm that would enliven Australia’s non-refoulement obligations, necessitated more than the Tribunal simply acknowledging or noting that the representations had been made, and instead required specific findings of fact, including on whether the feared harm was likely to eventuate: Omar at [39]. As my observations above show, the Tribunal made no clear finding in respect of any of the claims, save possibly its finding (relevant to the sixth claim) that the applicant was not suffering from major mental illness and does not need psychological or psychiatric treatment.

103    Second, while brevity of reasoning does not necessarily point to a lack of intellectual consideration, the absence of reference by the Tribunal (even by way of “noting”; cf DQM18 at [45]) to certain of the applicant’s claims (particularly the third and fourth claims), combined with a lack of substantive engagement with the majority of the claims that were addressed, leads me to conclude that the Tribunal did not confront the significance of the information put forward by the applicant.

104    Third and relatedly, I infer from the absence of any reference in the Tribunal’s reasons to certain of the applicant’s claims that the Tribunal overlooked these claims or failed to consider them. The Full Court in Applicant WAEE cautioned (at [47]) that this inference is not to be too readily drawn “where the reasons are otherwise comprehensive and the issue has at least been identified at some point”. That is not the case here. Further, while a particular matter may be subsumed in a finding of greater generality (Applicant WAEE at [147]; Buadromo at [46], [49], [60]), the Tribunal made few findings with respect to non-refoulement obligations owed to the applicant and I do not consider that these findings can be seen to subsume other matters that were not separately referred to by the Tribunal in its reasons. To take the Minister’s example, I do not accept that the Tribunal considered the risk of forced recruitment “in substance” by making observations about the current situation in South Sudan for people of Dinka ethnicity, particularly when, as I observed above, the Tribunal did not reach a clear finding with respect to that matter.

105    Finally, the Tribunal’s criticisms regarding the “boilerplate” and “generic” nature of the applicant’s submissions support the conclusion that the Tribunal did not consider the full extent of claims advanced by the applicant. As I observed above, there is no proper basis for those criticisms.

106    To be described as jurisdictional, the error in the Tribunal’s reasoning needs to be material, in that the appellant was deprived of the realistic possibility of a different outcome on his request for revocation of his visa cancellation: DQM18 at [118]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] per Kiefel CJ, Gageler and Keane JJ. I am satisfied that this threshold is met. Had the Tribunal considered the evidence put forward by the applicant in respect of non-refoulement obligations owed to him in accordance with its statutory task, it might realistically have come to the view that returning the applicant to South Sudan would place Australia in breach of its non-refoulement obligations, and that that consideration should weigh heavily in favour of the applicant.

107    The application for judicial review is therefore allowed on the basis of ground 6(a). Although not strictly necessary, I will nevertheless address grounds 6(b) and (c).

Ground 6(b)

Applicant’s submissions

108    By ground 6(b), the applicant contends that the Tribunal erred by failing to consider whether returning the applicant to South Sudan would breach Australia’s international non-refoulement obligations and, if so, the consequences of that breach. The applicant submitted that the Tribunal’s consideration of international non-refoulement obligations was limited to the “harm” that the Applicant might suffer “if returned”. However, the Tribunal was required to “consider whether in returning the … [applicant to South Sudan] those obligations would be breached” and “the consequences for Australia of that breach” (quoting Ali at [103]), including potential “impacts upon Australia’s reputation and standing in the global community” (quoting Ali at [91]). The authorities make clear that consideration of the risk of harm to an applicant if returned is a related, but distinct, consideration to the potential breach (and consequences of breach) of Australia’s international non-refoulement obligations (referring to Ali at [96], [99], [103] and FAK19 v Minister at [56], [60] per Charlesworth J).

Minister’s submissions

109    The Minister formally submitted to the Tribunal, and formally submitted to this Court, that Ali was incorrectly decided, but recognised that both the Tribunal and this Court are bound by Ali. The Minister noted that he has challenged the correctness of Ali in two Full Court appeals (Minister for Immigration v FAK19 (SAD129/2020) and CZW20 v Minister for Immigration (NSD476/2020)) and one pending High Court case (Plaintiff M1/2021 v Minister for Home Affairs (M1/2021)). The Minister submitted that it would be appropriate for this Court to await decisions in the Full Court appeals before ruling on this ground.

110    The Minister submitted that it was common ground in the Tribunal that, if returning the applicant to South Sudan would be in breach of Australia’s international non-refoulement obligations, then the Tribunal should consider the effect of this breach, separately from the risks of harm to the applicant. However, the Minister submitted that it is apparent from the Tribunal’s other findings that it considered that returning the applicant to South Sudan would not be in breach of Australia’s non-refoulement obligations. For example, the Tribunal rejected the Applicant’s claims to fear harm based on imputed political opinion, and Dinka ethnicity (Reasons at [174], [183]-[184]). The Tribunal did find that non-refoulement “on balance” weighed in favour of the applicant (Reasons, [187]). The Minister argued that, in its terms, that finding does not suggest that returning the applicant to South Sudan would breach Australia’s non-refoulement obligations (because then this consideration would weigh clearly in his favour, not just “on balance”). Rather, properly understood, the Tribunal found that the Applicant faced risks of harm that did not rise to the level of engaging non-refoulement obligations, but nonetheless weighed in his favour. Accordingly, the Tribunal rejected the premise of the claim that it was necessary to consider the effect of Australia breaching its international obligations. It was therefore not necessary for the Tribunal to refer expressly to this claim in its reasons (see for example Buadromo at [49], quoting Applicant WAEE at [47]).

Consideration

111    As noted above, the Full Court heard the Minister’s appeals of FAK19 and CZW20 together and delivered judgment on 23 August 2021 (Minister v FAK19). The Full Court upheld the correctness of the principles stated in Ali and I accordingly reject the Minister’s contentions in so far as they are based on the proposition that Ali was wrongly decided.

112    As the Full Court stated in Ali (at [44]), to discharge the statutory task required by s 501CA(4)(b), the decision-maker must consider a clearly articulated ground raised in any representations provided by an applicant under s 501CA(4)(a). A failure by the decision-maker to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the applicant’s representations amounts to an error which may vitiate the putatively formed state of mind: Ali at [45]. In so far as an applicant’s representations to the decision-maker raise expressly or by necessary implication Australia’s non-refoulement obligations, the decision-maker must consider (i) whether Australia owed non-refoulement obligations to the applicant, (ii) whether in returning the applicant to his or her country of nationality those obligations would be breached, (iii) the consequences of such a breach for the applicant and (iv) the consequences for Australia of breaching its international non-refoulement obligations: see Ali at [99], [103].

113    As discussed in connection with ground 6(a), the applicant in this case clearly articulated a claim that returning the applicant to South Sudan would be in breach of Australia’s non-refoulement obligations. It was therefore necessary for the Tribunal to consider and reach a concluded view on those claims and, if the Tribunal found the claims made out, consider the consequences for the applicant if he were to be returned to South Sudan and the consequences for Australia of breaching its international non-refoulement obligations.

114    In respect of ground 6(a), I have found that the Tribunal failed to discharge its statutory task of considering the applicant’s claims to fear harm if returned to South Sudan. I also reject the Minister’s submission, made in respect of ground 6(b), that the Tribunal reached the positive conclusion that returning the applicant to South Sudan would not be in breach of Australia’s non-refoulement obligations. A fair reading of the Tribunal’s reasons does not support that submission. Rather, the Tribunal’s reasons are marked by a failure to state any clear conclusion on that question. As observed by the Minister, the Tribunal ultimately found that non-refoulement “on balance” weighed in favour of the applicant (Reasons, [187]). I accept the Minister’s submission that that finding cannot be understood as a finding that Australia owed non-refoulement obligations to the applicant, because such a finding would necessitate a conclusion that the consideration clearly weighed in the applicant’s favour, not just “on balance”. However, I reject the Minister’s submission that the finding should be understood as a rejection of the claim that returning the application to South Sudan would breach Australia’s obligations. Rather, the finding appears to reflect an acceptance by the Tribunal that the applicant would face some risks of serious harm if returned to South Sudan, but without ultimately determining whether Australia’s non-refoulement obligations would be breached.

115    I note for completeness that the applicant advanced the submission that the Tribunal’s finding at [186], that if the applicant were returned to South Sudan he would be exposed to the risk of being specifically targeted as a newcomer by persons who might want to do him harm (being a risk that is not fanciful or remote), is a finding that the applicant engaged Australia’s non-refoulement obligations in that respect. I do not accept that submission, largely because the Tribunal does not engage with the implications of such a conclusion, and expresses its ultimate conclusion that “the consideration” weighs “on balance” in favour of the applicant. Read in context, I consider that the Tribunal’s finding reflects an acceptance that the applicant would face a risk of some harm if returned to South Sudan, consistent with one of the applicant’s claims, which the Tribunal regards as relevant to its decision, but without reaching any conclusion as to whether Australia’s non-refoulement obligations are engaged in respect of the applicant.

116    It follows, in my view, that the Tribunal erred by failing to make a finding about the applicant’s claim that returning the applicant to South Sudan would be in breach of Australia’s non-refoulement obligations. I accept the applicant’s submission that the error was material because, had the Tribunal gone on to consider the matters required by the statutory task, it might well have concluded that this factor weighed heavily in favour of revoking the cancellation. That would be due to both the implications of such a breach for the applicant, and also the implications of such a breach for Australia. As observed by the Full Court in Minister v FAK19, “both the Parliament and the Executive have continued to acknowledge Australia’s ongoing commitment to its non-refoulement obligations” (see [165] and the reasoning that follows in [166]-[175]). It is certainly conceivable that had the executive dimension of Australia’s international non-refoulement obligations been addressed by the Tribunal, it might have altered the relevant calculus in the Tribunal’s decision making (cf Minister v FAK19 at [164]).

117    Accordingly, I would also allow the application for judicial review on the basis of ground 6(b).

Ground 6(c)

Applicant’s submissions

118    By ground 6(c), the applicant contends that the Tribunal erred by misunderstanding the statutory task as permitting less weight to be given to international non-refoulement obligations on the basis that they could be “properly considered” in an application for a protection visa. The applicant submitted that if, contrary to grounds 6(a) and (b), it can be said that the Tribunal did consider the prospect of Australia breaching its international law obligations as a factor weighing in favour of revocation, it erred by giving this consideration less weight on the basis that it could be “properly considered” in an application for a protection visa (Reasons, [185]). The applicant submitted that this case is on all fours with FAK19 v Minister, where the Tribunal was found to have given international non-refoulement obligations less weight on the basis that they could be more fully explored in an application for a protection visa (at [64]-[66]). The applicant acknowledged that merely noting the existence of the protection visa application process cannot of itself be an error, but submitted (relying on FAK19 v Minister at [55]) that it can indicate error. The applicant indicated that the words “on balance” in the Tribunal’s reasons at [187] raised an inference that the Tribunal had moderated the weight of the consideration on the basis that the applicant’s claims could be “properly considered” in the protection visa application process.

Minister’s submissions

119    The Minister submitted that the Tribunal did not use the applicant’s ability to apply for a protection visa as a reason to give lesser weight to non-refoulement obligations. In relation to the Tribunal’s reasons at [187], where the Tribunal noted that the applicant could apply for a protection visa, the Minister argued that the Tribunal does not err simply by noting that a person challenging the mandatory cancellation of his or her visa may still apply for a protection visa, and is in fact required to consider the legal consequences of its decision. Further, relying on Ayoub v Minister for Immigration (2015) 231 FCR 513 at [28], the Minister submitted that the Tribunal cannot be expected to undertake the same analysis in a s 501CA context as would be required for a protection visa application. The Minister acknowledged that, on current case law, there would be jurisdictional error if a decision-maker refused to consider non-refoulement at all because of the possibility of the person applying for a protection visa. However, the Minister argued that this was not what happened here – the Tribunal gave detailed consideration to the applicant’s various claims at [173]-[186] of the Reasons. The Minister further submitted that FAK19 v Minister is distinguishable from the present case. The crucial statement by the Tribunal in FAK19 v Minister was that non-refoulement “weighs heavily in favour of revoking the cancellation but I note that the applicant has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored”. The primary judge accepted that an alternative reading of these reasons was that non-refoulement obligations were given lesser weight because those obligations would be more fully explored in a protection visa application (at [66]). But there is no comparable statement in the Tribunal’s reasons in this case that would suggest that non-refoulement was given any lesser weight.

Consideration

120    As the authorities referred to above make clear, in the performance of its statutory task the Tribunal is required to consider clearly articulated claims and representations made by an applicant which afford a reason to revoke the cancellation of the applicant’s visa. In the present case, the applicant made clear claims that the cancellation of his visa, and the return of the applicant to South Sudan, would place Australia in breach of its non-refoulement obligations. The Tribunal is not permitted to refrain from considering or making findings about such claims on the basis that there is another statutory process (such as an application for a protection visa) under which the claims can be considered. As the Full Court explained in Minister v FAK19, proceeding on that basis would involve three misconceptions about the effect of the Act:

(a)    the first misconception would be that Australia’s international non-refoulement obligations in respect of the applicant would be considered as part of an application for a protection visa under s 36 of the Act (which would not be the case, because the refugee criteria in the Act does not replicate Australia’s international non-refoulement obligations): see at [117]-[120];

(b)    the second misconception would be that the refugee criteria would necessarily be considered as part of an application for a protection visa under s 36 of the Act (which would not be the case, because an application for a protection visa could be rejected on national interest criteria before any protection criteria are considered, particularly in circumstances where a visa has been cancelled on character grounds under s 501): see at [129]-[130];

(c)    the third misconception would be that Australia’s international non-refoulement obligations in respect of the applicant would be assigned equivalent significance in the consideration of a protection visa application as in the consideration of the revocation of a visa cancellation decision (whereas the consideration has a different role in the context of a binary duty under s 65 in comparison to a discretionary decision under, in this case, s 501CA(4)): see at [140]-[142].

121    In its consideration of the applicant’s claims concerning non-refoulement, the Tribunal stated as follows (at [185], emphasis added):

During the hearing Mr Cunynghame reiterated the Respondent’s written submissions which note that LGLH can apply for a protection visa, which has not yet done. He still has such an opportunity and, by consistent submissions on government policy that the Respondent has made in successive similar matters before the Tribunal, while such an application is properly considered, LGLH would not be removed from Australia. The consideration of such an application would allow expansion of any claims that LGLH might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered. The Tribunal notes that the Minister issued a different direction under section 499, Direction No. 75, on 6 September 2017 and that Direction No. 75 provides that a decision-maker must first assess an applicant’s refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.

122    Immediately following that paragraph, the Tribunal found (at [186]) that the applicant, if returned to South Sudan, would be at risk of being specifically targeted as a newcomer by persons who might want to do him harm, a risk that is not fanciful or remote, and (at [187]) that this consideration weighs, on balance, in favour of the applicant.

123    In my view, the Tribunal’s reasons at [185]-[187] indicate that the Tribunal formed the erroneous view that it was unnecessary to reach a concluded view on whether the applicant being returned to South Sudan would breach Australia’s non-refoulement obligations because the applicant’s claims in that respect could be considered in the context of an application for a protection visa. That conclusion follows from the facts that: first, the Tribunal contemplated the applicant expanding the claims that he had made to the Tribunal; second, the Tribunal considered that the claims could be properly considered in connection with an application for a protection visa, implicitly indicating that the claims could not be “properly” considered in the context of a decision concerning the revocation of the cancellation of the applicant’s visa; and third, the Tribunal’s failure to make any clear finding on the question of Australia’s non-refoulement obligations in respect of the applicant.

124    As noted above, the applicant advanced ground 6(c) with considerable reliance on the findings of the primary judge in FAK19 v Minister. The relevant findings of the primary judge in that case were overturned by the Full Court in Minister v FAK19. Despite that, the applicant’s reliance on FAK19 v Minister does not undermine the conclusion I have reached. The facts in that case were very different to the present. As observed by the Full Court in Minister v FAK19 (at [146] and [149]), the Tribunal in that case gave active consideration to the question whether FAK19’s situation engaged Australia’s non-refoulement obligations, and found that it did, stating that, subject to any successful protection visa application, FAK19 would be returned to Afghanistan, and there would be a very real risk he would suffer significant harm if the cancellation decision were not revoked. In that case, the Tribunal concluded that Australia’s international non-refoulement obligations and the extent of impediments that FAK19 would face if removed from Australia were considerations that favoured revocation of the cancellation decision. In the context of those findings, the Full Court concluded (at [151]) that the Tribunal did not err in making the observation that FAK19’s claims to non-refoulement might be “more fully explored” in a protection visa process. The Full Court noted (at [154]) that it was relevant to the Tribunal’s discretionary decision to observe that any decision making in relation to a protection visa application had not occurred, and to that extent FAK19’s removal from Australia was not certain.

125    In the present case, the Tribunal did not make any clear finding about the applicant’s claim that Australia would breach its non-refoulement obligations if the applicant were returned to South Sudan. I am satisfied that the Tribunal misunderstood the statutory task by failing to reach a conclusion in respect of international non-refoulement obligations on the basis that they could be “properly considered” in an application for a protection visa. I consider that this error is material in the relevant sense, for the same reasons set out in respect of grounds 6(a) and 6(b). If necessary to determine ground 6(c), I would have found in favour of the applicant.

Conclusion

126    In conclusion, I uphold ground 6(a) advanced by the applicant. If it had been necessary to determine ground 6(b), or in the alternative, 6(c), I would have accepted those grounds. I will issue a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus requiring the Tribunal to re-determine the matter in accordance with law. I will also order costs in favour of the applicant. The Court is greatly appreciative of the assistance provided by counsel for the applicant who prepared written submissions and appeared pro bono.

Associate:

Dated:    7 December 2021