Federal Court of Australia

AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 130

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application.

3.    Subject to any further order or direction, the reasons for judgment not be published or disclosed except to the parties and their legal representatives up to and including 3 March 2022.

4.    Any application for any order under s 37AF of the Federal Court of Australia Act 1976 (Cth) different from that foreshadowed in [57] of the reasons for judgment be made by interlocutory application to be filed and served (together with any affidavit evidence in support) by 1 March 2022.

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

REASONS FOR JUDGMENT

NICHOLAS J:

Background

1    The applicant was born in Samoa in 1990 and arrived in Australia in 1999. On 13 December 2012 he was convicted in the Supreme Court of New South Wales of murder committed in the course of a violent home invasion and is presently serving a lengthy term of imprisonment. On 19 October 2016 the applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (“Visa”) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

2    Section 501CA(4) of the Act provides that the Minister may revoke a decision made under s 501(3A) (“the original decision”) if the person whose visa has been cancelled makes representations in accordance with an invitation given under s 501CA(3)(b) and where the Minister is satisfied that the person passes the character test (as defined by s 501 of the Act) or is satisfied that there is another reason why the original decision should be revoked.

3    The applicant did not dispute that he did not pass the character test. Rather, he made representations as to the existence of another reason why the original decision should be revoked in a “Personal Circumstances Form” dated 21 October 2016 (“the PCF”) which he submitted to the Department in support of his revocation application.

4    On 11 September 2019 the Minister (acting personally) decided not to revoke the original decision. According to the Minister’s reasons, he was not satisfied that the applicant passed the character test and there was no other reason why the original decision should be revoked. In those circumstances, the Minister concluded that his power to revoke the original decision was not enlivened. In this proceeding the applicant contends that the Minister’s decision not to revoke the original decision was affected by jurisdictional error.

The Minister’s Decision

5    The Minister considered representations made by the applicant in relation to his ties to Australia where he has lived since he was a young child. The Minister’s reasons note that the applicant has significant familial ties in Australia, consisting of his fiancée, two children, mother and sisters. The applicant’s two children reside with their mother, the applicant’s fiancée, who is an Australian citizen. The eldest of the children was born in 2007 and the youngest in 2010. The Minister considered the negative impact that non-revocation of the original decision would have on the applicant’s family and found that the applicant’s fiancée and children would experience financial hardship and that all family members would experience emotional hardship. He also considered representations made by the applicant in relation to the negative impact that non-revocation of the original decision would have on his relationship with his children and accepted that it was in their best interests for the original decision to be revoked.

6    The Minister gave consideration to the applicant’s positive contribution to the community through his three years of employment. However, the Minister ultimately described the applicant’s positive contribution as limited, due to the frequent criminal conduct in which the applicant engaged.

7    In the PCF the applicant stated that he was taking prescription medication for depression and that he was consulting with a psychologist every three months. The Minister referred to this statement at [32] of his reasons. When considering the applicant’s mental health, at [37] of his reasons, the Minister said:

I have taken into account that [the applicant] has a mental health condition that is being treated with medication and psychological counselling. I find that whilst [the applicant] would have access to medical treatment and health services in Samoa, the standard of health care would not be equivalent to the standard available to him in Australia.

8    The material before the Minister included a letter from a Detective Sergeant in the NSW Police Force outlining his knowledge of the applicant’s circumstances, including that of the applicant’s fiancée and children, the fact that the applicant had pleaded guilty to murder, and provided important evidence against his co-offenders. There is also a file note which was before the Minister (and referred to at [88] of the Minister’s reasons) indicating that the Department had received communications from the witness protection unit from the prison in which the applicant is residing indicating that a change of name for the applicant was being considered due to his cooperation with police.

9    At [33] of his reasons the Minister noted that the applicant stated that he feared he would be killed if he was removed from Australia because he had assisted police and had given evidence against his co-offenders and that the police had been able to protect him and his family in Australia. The Minister also noted that the applicant feared that there would be no protection available to him overseas and had regard to the applicant’s submission that he would suffer hardship due to the consequences of being in witness protection. In the PCF the applicant stated:

    I would be killed because I have decided to become a witness. I would have no one to take care of me, but over here I have the police to look after me and family.

    I am also scared that when I get sent back that my family will not see me again because I decided to give evidence against my co-accused and doing so I have singed [sic] to be in witness protection.

    I would have no one because all my family are here [in Australia] and I wouldn’t know anyone over there … and I fear of the result of me been [sic] a witness protection.

10    At [39] of his reasons, when dealing with the applicant’s fears for his safety were he to return to Samoa, the Minister said:

I have taken into account that [the applicant] states he fears for his safety if he returns to Samoa because he gave evidence against his co-offenders. Whilst I acknowledge his fear, I find that [the applicant’s] risk of harm is reduced if he participates in witness protection and would have access to police protection, in the event that he requires it.

11    The Minister considered the need to protect the Australian community. The Minister considered the applicant’s extensive history of offending and that his convictions include offences of violence or offences that have the potential for violence including murder, armed robbery, aggravated break and enter and inflicting grievous bodily harm. The Minister took into account that in relation to the murder conviction, the applicant was outside the premises when the victim was murdered, however he nonetheless played a significant organisational role and was aware that his co-offenders were armed. The Minister concluded that overall the applicant’s offending is very serious.

12    The Minister concluded at [119]-[120] of his reasons as follows:

119.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor children, as a primary consideration, and any other considerations as described above. These include his lengthy residence, his claims that he will suffer hardship and harm if returned to Samoa because he gave evidence against his co-offenders, his employment and familial ties to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

120.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel [the applicant’s] visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and [the applicant’s] Class TY Subclass 444 Special Category (Temporary) visa remains cancelled.

The Grounds for the Application

13    The applicant originally relied on three grounds in support of his application for a writ of certiorari quashing the Minister’s decision and a writ of mandamus requiring the Minister to re-determine the decision according to law.

14    The three grounds contained in the applicant’s originating application are as follows:

1.    The Respondent’s decision is affected by jurisdictional error in that the Respondent made findings in respect of which there was no evidence and/or that were illogical, irrational or unreasonable:

(a)    The Respondent found at [39] of the Statement of Reasons for Decision that the Applicant’s risk of harm in Samoa would be reduced if he participates in witness protection. The Respondent additionally found that the Applicant would have access to police protection in the event it was required. At [37], the Respondent found that the Applicant would have access to medical treatment and health services in Samoa relevant to his mental health condition.

(b)    There was no material before the Minister that was logically capable of sustaining these findings.

(c)    Nor was any intelligible or probative basis for the findings articulated in the Statement of Reasons for Decision.

2.    The Respondent’s decision is affected by jurisdictional error in that the Respondent failed to give proper, genuine and realistic consideration to, or engage in an active intellectual process in respect of, the Applicant’s claim that he would be unable to access effective witness protection if required to depart Australia.

3.    The Respondent’s decision is affected by jurisdictional error in that the Respondent denied the applicant procedural fairness in reaching findings on the availability of protection and relevant health services to him in Samoa.

Viane

15    At the hearing, the applicant relied heavily on the decision of the Full Court in Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 386 (“Viane”) which the Minister submitted was wrongly decided and, in any event, distinguishable. At the time of the hearing Viane was the subject of an application for special leave which was subsequently granted with a decision on the Minister’s appeal handed down by the High Court on 8 December 2021: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 (“Viane HC”).

16    Viane was a case involving judicial review of a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of a visa. The majority in the Full Federal Court (Kerr and Charlesworth JJ) held that there was no probative evidence to support findings made as to the extent to which English was spoken in American Samoa and Samoa and the extent to which the applicant and his family would be able to access health and welfare services there. The majority said at [42]:

In our view the evidence before the primary judge did not support a finding that the Minister in fact proceeded on the basis of his own knowledge and understanding as to the cultural and social circumstances in American Samoa or Samoa …

17    Their Honours continued at [44]:

… [I]t cannot be said that the facts stated by the Minister are commonly known. Unlike the cultural, linguistic and political circumstances in American Samoa and Samoa, the circumstances in countries such as New Zealand and the United Kingdom are matters of common knowledge, so explaining the outcomes in Uelese, McLachlan and Webb. As Burley J observed in Schmidt, the outcomes in such cases are “unexceptional”. In contrast, the proposition that there are comparable welfare systems as between Australia and the United States of America is neither notorious nor patently correct, as Burley J found in Schmidt. Similarly, it is not a notorious fact that English is widely spoken in American Samoa and Samoa. That is not to say that the Minister’s fact finding function is conditioned by evidentiary rules concerning judicial notice such as that contained in s 144 of the Evidence Act 1995 (Cth). It is simply to say that the more obscure the subject matter, the less likely it will be that a court bound by such rules on judicial review will draw the inference that the Minister has in fact acted upon “evidence” in the form of common or specialised knowledge. Depending on all of the circumstances, the preferable inference may be that the Minister has acted on no such knowledge, and hence no evidence at all.

18    Their Honours ultimately held that there was no objective evidence before the Minister to support the relevant findings and that it should be inferred that the Minister did not have personal knowledge which might otherwise provide a basis for them.

19    The Minister’s appeal to the High Court was allowed.

20    The High Court noted that it was common ground that there was no objective evidence before the Minister to support the relevant findings. The Court also observed, and emphasised, that the respondent had never suggested that the Minister’s observations concerning (inter alia) access to healthcare in American Samoa and Samoa were incorrect.

21    The High Court further observed that the Minister is not always required to make findings of fact when considering representations made pursuant to s 501CA(3) but that, when he or she did so, the Minister may rely on personal or specialised knowledge, or commonly accepted knowledge, when making such findings. The Court said at [18]-[20]:

18.    There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is "another reason" for revocation. Indeed, there are simply no limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge. In the circumstances of the present case, where no evidence or other material has been identified in support of the Minister's findings about the speaking of English and the availability of services in American Samoa and Samoa, it can be assumed that the findings proceeded from the Minister's personal or specialised knowledge or were matters commonly known.

19.    In exercising the power conferred by s 501CA(4) of the Act, the Minister is free to adopt the accumulated knowledge of the Minster’s Department ("the Department"). Indeed, it is now well established that the Minister may adopt as the Minister's own written reasons a draft prepared by a departmental officer, provided that such reasons actually reflect the reasons why the Minister had reached her or his decision.

20.    There is no necessary dividing line, for the purposes of s 501CA of the Act, between the use of personal or specialised knowledge, or the use of that which is commonly known, as against the need for some evidence or other material to support a finding which the Minister may make. Where the Minister wishes to make a finding in support of a conclusion that she or he is not satisfied that there is "another reason" for revocation, and the Minister has personal or specialised knowledge which supports that finding, the Minister may use that knowledge. The Minister may also supplement or support such a finding with evidence or other material. Where the finding is not within such personal or specialised knowledge, and is not a matter commonly known, it will need to be supported by some evidence or other material. It cannot be asserted without any basis at all. Different considerations might arise if the finding in question was material to the process of reasoning and was incorrect. But that has not been suggested here.

22    The Court drew attention to the relationship between the representations made, and evidence adduced, by the applicant in the context of the Minister’s obligation to consider such material. Their Honours said at [22]:

It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected.

(footnotes omitted)

23    Referring specifically to conditions in American Samoa and Samoa, their Honours added at [27]:

… Given the store of knowledge the Minister will have built up over many years, from dealing with individuals from so many countries and territories, the source of such specific observations about conditions in American Samoa and Samoa could only have been from the Minister's experience. In that respect, to reiterate, it had not been shown that either observation was incorrect.

The High Court went on to find that the Minister did not err in law when making the relevant findings.

24    After the High Court handed down its decision, the applicant’s solicitor indicated that the applicant required time to consider whether to bring an application to re-open his case to adduce further evidence. Procedural orders were subsequently made to facilitate the making of any such application and for the provision of further written submissions.

25    In compliance with those orders, the applicant filed a further written submission on 24 December 2021. In that submission the applicant indicated that he had decided not to make any application seeking leave to reopen and also advised that, in light of the decision in Viane HC, grounds 1 and 3 of his application were no longer pressed.

26    In the result, only ground 2 of the originating application is pressed. In his further written submission the application submitted that “[t]he Minister’s finding … that the applicant’s ‘risk of harm is reduced if he participates in witness protection and would have access to police protection, in the event he requires it’ … [did not] squarely deal with [the applicant’s] claim in the manner required…”. It is apparent that the applicant’s challenge to the Minister’s decision is solely directed to the findings made at [39] of the Minister’s reasons.

The parties’ Submissions

27    In support of ground 2, the applicant referred to two Full Court authorities: DQM18 v Minister for Home Affairs (2020) 278 FCR 529 (“DQM18”) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178 (McKerracher, Kerr and Wigney JJ) (“CTB19”).

28    The appellant in DQM18 contended that the Assistant Minister failed to consider representations made by the appellant in support of his request for revocation of the cancellation of his visa. The appellant pointed to six individual particulars that he alleged the Minister had not considered. Before me, the applicant drew attention to parts of Bromberg and Mortimer JJ’s judgment which concerned one of those particulars, namely whether the Minister considered whether it was in fact unsafe for the appellant to return to Sudan or South Sudan.

29    Their Honours considered the material before the Assistant Minister, including relevant portions of a briefing note, stating at [79]-[81]:

79.    The third place is at [74] of the briefing note:

You may also consider [the appellant’s] claims of harm upon return to Sudan or South Sudan outside the concept of non-refoulement and the international obligations framework. You can consider that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, [the appellant] would face hardship arising from the following issues, were he to return to Sudan or South Sudan; his concerns for his safety, separation from his family, compounding of refugee trauma, the inability to access social, medical and economic support, the inability to find employment and survival in a country that is experiencing instability and violence.

80.    Again, this paragraph does not accurately reflect what the appellant had said, nor what VLA had said. To water the description of the representation down to “claims” or “concerns” is not to grapple with the blunt factual assertion which was being put to the Assistant Minister.

81.    That representation could not any more plainly have raised for the Assistant Minister’s consideration whether, as a matter of objective fact, the appellant would be “safe” if returned to South Sudan or Sudan. That representation required the Assistant Minister, first, to determine where the appellant would be sent; second, to evaluate the information available to him about the circumstances in that place of return; and third, to determine what, as a matter of fact, those circumstances meant for the appellant on his return. Only once those findings were made could this matter be weighed by the Assistant Minister in his determination about how to exercise the power in s 501CA(4).

30    After referring to various passages from the Assistant Minister’s decision at [82]-[87], which included statements such as “[the appellant] raised concerns that factors such as separation from his family, compounding of refugee trauma, the inability to access social, medical and economic support, the inability to find employment and survival in a country that is experiencing instability and violence [would] not be considered in a Protection visa application”, their Honours made the following observations at [91]-[92]:

91.    … even if all the extracts to which we have referred were to be characterised as findings it is not clear what they are findings of. Are they findings that accept that the appellant holds a fear for his safety or are they findings that accept, as a fact, that it is unsafe for the appellant to be returned to South Sudan or Sudan? What has the Assistant Minister taken into account – that the appellant has concerns or fears for his safety or the fact that it is unsafe to return the appellant to South Sudan or Sudan? In the face of that ambiguity it ought not be concluded that the Assistant Minister performed the statutory task required of him …

92.    … As the Full Court in [Minister for Home Affairs v Omar (2019) 272 FCR 589] explained, a representation of that kind requires the decision-maker to identify and then confront the objective reality of the circumstances to which a person is being compelled to return; and then explain how this reality has, or has not, affected the exercise of power …

31    The applicant also referred to similar remarks made by the Full Court in CTB19 at [33], [34] that:

33.    … Using the Tribunal’s language, it may have been to a lesser extent or it may have been to a greater extent, but the absence of any exploration or statement as to what extent suggests that it has not been adequately dealt with, or given the attention which such a serious claim required.

34.    … the respondent effectively said “don’t send me back because I will be killed”, which the Tribunal did not necessarily reject as a possibility. In those circumstances, the prospect of him being killed was capable of constituting another reason why the cancellation should be revoked and the Tribunal was required to explore the making of a finding at least to some extent as to whether there was indeed a prospect he would be killed.

32    The applicant submitted that the Minister failed to perform the task required of him as he did not make any findings, or reach any conclusions, as to the nature of the risk of harm the applicant would face were he to be deported to Samoa. Instead, the applicant submitted that the Minister was “equivocal” as to the precise nature and extent of harm the applicant would face. The applicant also submitted that the applicant in his claims drew a comparison between the effectiveness of the witness protection arrangements available in Australia versus that available in Samoa.

33    The Minister submitted that, contrary to the applicant’s submissions, the applicant did not make a claim that he would be “unable to access comparable or effective witness protection if required to depart from Australia”. Instead, the Minister submitted that the applicant’s claims were, in effect, bare assertions as to a possible risk of harm due to the lack of support available to him and a lack of family members in Samoa. On this basis, the Minister submitted that the cases the applicant referred to are not relevant to this case as the Minister’s reasons dealt with the claims advanced by the application.

34    The Minister further submitted that any error would be immaterial as the Minister ultimately found that the applicant’s claims concerning the difficulties he would face on return to Samoa weighed in favour of revocation but that this (along with the other factors in support of revocation) were outweighed by the need to protect the Australian community from the “unacceptable risk” posed by the applicant. On this basis, the Minister submitted that any error of the kind identified by the applicant would not have denied the applicant the possibility of a successful outcome, citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”).

Consideration

35    The Full Court in CTB19 summarised the principles concerning the requirement for a decision maker to consider representations that the non-citizen will experience harm if returned to their country of origin as follows at [15]:

(1)    The task of a decision-maker under s 501CA(4) is to determine whether there is 'another reason' to revoke a cancellation decision;

(2)    In discharging the duty under s 501CA(4), a decision-maker is required to have regard to a former visa holder's representations made in response to an invitation under s 501CA(3) as a whole. That is to say, viewed as a whole, the representations comprise a mandatory relevant consideration, but not every statement in the representations can be so described;

(3)    Where a former visa holder makes a representation as to the harm that he or she may face if returned to their country of origin, the decision-maker needs to give consideration to it;

(4)    There is a distinction between considering harm, or the risk of harm and hardship, on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed: See DOB18 v Minister for Home Affairs (2019) 269 FCR 636 per Robertson J (at [185]);

(5)    The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which it is expressed;

(6)    The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations;

(7)    The representations need to be 'significant and clearly expressed' ([GBV18 v Minister for Home Affairs (2020) 274 FCR 202] at [32(d)]) or 'clearly articulated and substantial or significant': Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and [EVK18 v Minister for Home Affairs (2020) 274 FCR 598] (at [14]). Put another way in [AXT19 v Minister for Home Affairs [2020] FCAFC 32] (at [56]) and applied by Bromberg and Mortimer JJ in [DQM18 v Minister for Home Affairs (2020) 278 FCR 529] (at [27]):

[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim.

(See also DQM18 per Snaden J (at [158]-[160])).

As Snaden J observed in Guclukol v Minister for Home Affairs [2020] FCA 61 (Guclukol) (at [28]):

[t]he difficulty that often, if not always, arises in cases such as the present … is that determination of the consequences or circumstances that an applicant will face if removed from Australia … typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn't easily permit of definitive findings. …

(8)    Whether consideration has been given to a former visa holder's representations must be judged in the context of the material placed before the decision-maker by, or on behalf of, the former visa holder: DQM18 per Bromberg and Mortimer JJ (at [36]);

(9)    '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: Omar (at [39]). However, the duty to consider a representation does not necessarily require the making of a finding of fact: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 per Besanko, Barker and Bromwich JJ (at [46]) and Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643 (at [41]) per Rares and Robertson JJ;

(10)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made by a court: GBV18 (at [32(g)], referring to Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [48])); and

(11)    Ultimately, each case turns on its own particular facts and circumstances.

36    The respondent in Minister for Home Affairs v Omar (2019) 272 FCR 589, who was a citizen of Somalia, made representations to the Minister in support of a revocation request under s 501CA(3) of the Act. Amongst other things the respondent claimed that he was at risk of harm if he was returned to Somalia because of his serious mental illness and intellectual disability. The materials put before the Minister by the applicant included several medical reports which the Full Court described as “comprehensive” together with a DFAT report which, amongst other things, noted that the Somalian Government had announced that refugees in need of physiological and mental health support could not be returned to Somalia. The Full Court said at [36]:

… 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 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

37    The Full Court also said at [39]-[40]:

39.    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister 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 (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 (Ezegbe) at [32]-[36] per Perram J).

40.    That is particularly the case here where representations were clearly made on the respondent’s behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country. It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia’s treatment of the mentally ill, which claim was supported by the WHO 2010 report. As Robertson J stated in [DOB18 v Minister for Home Affairs (2019) 269 FCR 636] at [190] (with whom Logan J agreed), “the nature and content of submissions made to the Minister” in support of a revocation request under s 501CA(4) is relevant. There had to be an active intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm.

38    In AXT19 v Minister for Home Affairs [2020] FCAFC 32 the Full Court emphasised the caution that must be exercised in considering an argument that a claim had not been considered. The Full Court said at [56]:

Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

(Emphasis added)

Similar remarks were made in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (Collier, McKerracher and Banks-Smith JJ) where the Court referred at [31] to the fundamental threshold requirement that such a claim or issue “clearly emerge” from the material.

39    In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 the Full Court (Griffiths, White and Bromwich JJ) said at [48] that “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made”. These remarks were endorsed in CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 at [76] per Allsop CJ, Kenny and Snaden JJ.

40    In my view the way in which the Minister has dealt with the applicant’s claim that he was at risk of serious harm in Samoa because he had given evidence against his co-offenders reflects the generality of the claim made by the applicant. The applicant never advanced any specific claim that there was no “effective” witness protection or police protection available in Samoa. Instead, his claims were general statements to the effect that he would be killed because there was no family support available to him in Samoa and there would be no one there to take care of him. This is apparent from a review of the representations made by the applicant to the Minister which included the various statements previously set out.

41    The applicant did not provide any material to the Minister to support any representation to the effect that there would be either no, or no effective, witness or police protection available in Samoa on which he might rely if, as he feared, any of his co-offenders sought to kill him in Samoa. Nor did he provide the Minister with any evidence of any threats that he had received or any evidence that would substantiate his claim that he would suffer serious harm were he to be returned to Samoa or that the likelihood of him suffering such harm would be any greater there than it would be in Australia.

42    In relation to the evidence before the Minister relating to the witness protection available to the applicant in Australia, the evidence indicates (at its highest) that the applicant was being considered for witness protection in Australia upon his release, not that such protection had been granted, or that it would necessarily or was even likely to be granted. Nor was there any evidence as to the nature of the protection that would be afforded to the applicant or his family if he was granted witness protection upon his release from prison.

43    In the context of s 501CA decisions, this Court has held that it is incumbent on the applicant to put before the Minister any representations and material that he or she wishes the Minister to consider when deciding whether or not there was another reason why the original decision should be revoked. The Minister is, in turn, required to consider and take into account any such representations and evidence in considering whether to revoke the original decision: see Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14], Taualii v Minister for Home Affairs [2019] FCA 2013 at [96] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434 at [6]-[9]. This accords with the approach taken by the High Court in Viane HC (see especially [22] which is extracted above).

44    It is apparent from the Minister’s reasons that the Minister referred expressly to the applicant’s stated fear that he would be at risk of serious harm in Samoa. The Minister did not dismiss this fear, but found that the risk of harm would be reduced (which does not mean that it would be eliminated) by the availability of witness protection and police protection.

45    The applicant in his submissions argued that the Minister did not make any assessment of the extent of the risk that the applicant would be killed or would suffer some other harm if he were returned to Samoa and that this omission constituted jurisdictional error.

46    I do not accept the applicant’s submission that the Minister was obliged to quantify the extent of the risk. There was nothing that was placed before the Minister to indicate that the risk of the applicant being harmed was anything more than a possibility and the Minister approached his decision on that basis. There was no supporting material adduced by the applicant which the Minister was required to answer including, in particular, any material as to the existence of any credible threat posed to the applicant’s safety by any of the applicant’s co-offenders were he to be returned to Samoa or as to the effectiveness of the witness or police protection available there. Neither the letter from the Detective Sergeant nor the Departmental file note referred to any threat to the applicant’s safety whether in Australia or Samoa beyond indicating, in the case of the file note, that a change of name was being considered due to his co-operation with the police.

47    I also do not accept the applicant’s submission that he made representations to the Minister that there would be no “effective” or “comparable” witness or police protection available to him in Samoa. It is apparent that the applicant’s claims were expressed far more generally in terms of him not having anyone there to support or protect him. The Minister was entitled to approach the decision on that basis, including by relying on his personal knowledge or the knowledge of his Department, to find that witness protection and police protection were available in Samoa if required and that these would reduce the risk of the applicant suffering harm.

48    The applicant’s complaint is essentially directed to the generality of the Minister’s findings. Given the generality of the representations made in relation to the possible harm the applicant may face if he were returned to Samoa and, in particular, his claim that he would be killed because he had decided to become a witness, the Minister was not obliged to make any more specific or detailed findings than he did. In the circumstances, I am not persuaded that the Minister failed to adequately consider that claim or that he failed to engage in an active intellectual process in doing so. It follows that ground 2 fails.

49    Given that conclusion, it is unnecessary for me to consider the Minister’s submission based on SZMTA. Applying the principles considered in the majority judgment at [45]-[50] per Bell, Gageler and Keane JJ in that case, in order to demonstrate that the Minister’s decision was affected by a jurisdictional error, it is necessary for the applicant to show that the error deprived him of the realistic possibility of a favourable outcome.

50    For the purpose of considering the Minister’s argument it is necessary to assume (contrary to my previous finding) that the Minister failed to engage in an active intellectual process when considering the applicant’s claim that he would suffer serious harm in Samoa at the hands of one or more of his co-offenders. This raises a counterfactual question that is to be addressed by reference to the evidence and any inferences that may properly be drawn from the evidence.

51    In MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 Kiefel CJ, Gageler, Keane and Gleeson JJ said at [38]-[39]:

38.    The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

39.    Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(Original emphasis; footnotes omitted)

52    The question is whether it can be inferred that the applicant was deprived of the realistic possibility of a different outcome as a result of the Minister having failed to adequately consider the risk that the applicant would suffer serious harm at the hands of his co-offenders if he was returned to Samoa.

53    Given the generality of the applicant’s claims, and the absence of any material adduced by him bearing on the extent of the relevant risk, it is not apparent from the evidence or the circumstances of the case more generally that the applicant was deprived of any realistic possibility that the Minister, had he given the issue any more specific or detailed consideration, may have come to a different conclusion. The applicant does not point to anything in the materials before the Minister, or in the evidence before this Court, which would suggest that any further or more detailed consideration of the risk that the applicant may suffer serious harm if he were returned to Samoa may have produced a different outcome. There is nothing, for example, that the Minister is said to have overlooked which bore on the nature or extent of the risk that the applicant would suffer serious harm or the measures that might be taken to reduce that risk.

54    The Minister’s reasons show that this was a case in which he placed greater weight on the risk of harm to the Australian community and the protection of the Australian community than any other consideration referred to in his reasons including any risk to the applicant’s safety in Samoa resulting from him having given evidence against his co-offenders. There is no evidence from which it may be inferred that had the Minister given any more detailed consideration to the material before him, the decision made by him might have been any different.

55    I am not persuaded that the alleged error, even if it had been made, could have deprived the applicant of a realistic possibility of a different outcome.

Suppression order

56    At the hearing of the application, the applicant indicated that he sought an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) to suppress all “evidence and information tending to reveal the identity of the applicant and his family members” on the ground that the order is necessary to protect the safety of any person. In the alternative, the applicant sought an order that publication of the reasons for judgment occur initially only to the parties to permit a specific non-publication order to be sought at some later time. The respondent neither consented to nor opposed the making of either order.

57    I propose to give the applicant an opportunity to make further submissions in relation to the form of any order under s 37AF once he has had an opportunity to consider these reasons. My provisional view is that it is in the interests of justice that there be an order made under s 37AF in relation to evidence filed in the proceeding, but not these reasons for judgment. However, I will hear further from the parties in relation to that matter.

Disposition

58    The application will be dismissed with costs.

59    There will also be an order that these reasons for judgment not be published or disclosed except to the parties and their legal representatives up to and including 3 March 2022 or further order.

60    Orders accordingly.

Associate:

Dated:    22 February 2022