Federal Court of Australia

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 570

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an originating application for review of a migration decision of the Administrative Appeals Tribunal (Tribunal) filed by the applicant, DBWG, on 17 December 2020. On 27 November 2020, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) not to exercise power under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) to revoke the cancellation of the applicant’s Class CD Subclass 851 Resolution of Status visa (Resolution of Status visa).

2    At the hearing the applicant and the Minister were both represented. The Minister submits that the application should be dismissed, with costs.

Background

3    The applicant is a 43 year old citizen of Russia. He arrived in Australia on 12 February 2004 at the age of 26, having travelled on a false Spanish passport.

4    On 11 March 2004 the applicant applied for a Protection (Class XA) visa. A delegate of the Minister refused the application, which was affirmed on review by the Refugee Review Tribunal on 7 June 2005. Following a challenge to that decision, the matter was remitted to the Department for reconsideration.

5    On 28 August 2006, the applicant was granted a temporary protection visa. The applicant’s temporary protection visa ceased when, on 29 November 2009, he was granted a Resolution of Status visa.

6    The applicant has a substantial criminal record commencing in 2008. The Tribunal noted that the applicant had been convicted of 15 offences in Australian between 2008 and 2018, resulting in 4 custodial sentences. The applicant’s convictions were as follows:

    22 February 2008 – assault occasioning actual bodily harm – sentenced to a s 9 bond under Crimes (Sentencing Procedures) Act 2005 (ACT);

    22 February 2008 – contravene prohibition/restriction order – community service order for 50 hours;

    22 February 2008 – contravene prohibition/restriction order – fined $300;

    22 February 2008 – assault officer in execution of duty – fined $200;

    10 September 2013 – possess unregistered firearm in public place – community service order for 500 hours (later called up for breach of the community service order with a resentence on 14 May 2014 of 6 months imprisonment);

    4 March 2014 – common assault – 8 months imprisonment (with a non-parole period of 6 months);

    14 May 2014 – common assault – 9 months imprisonment (with a non-parole period of 6 months);

    14 May 2014 – resist in officer execution of duty – 6 months imprisonment;

    17 February 2016 – destroy or damage property – s 9 bond (6 months);

    7 March 2016 – behave in offensive manner in/near public place/school – fined $700;

    27 June 2018 – destroy or damage property and have custody of an offensive implement in a public place – section 10A conviction (with no other penalty) for both offences;

    27 June 2018 – assault with act of indecency & assault police officer in execution of duties – 3 months imprisonment for each offence (served concurrently); and

    23 August 2019 – reckless wounding – 3 years imprisonment (with a non-parole period of 1 year and 7 months).

7    On 4 February 2015 the Department wrote to the applicant, informing him that consideration was being given to cancelling his Resolution of Status visa under s 501 (2) of the Migration Act. In that letter the Department noted that it held information indicating that he had a substantial criminal record within the meaning of s 501 (7) of the Migration Act, as a result of which he did not pass the character test by virtue of s 501 (6)(a) of the Migration Act.

8    On 17 August 2016 an officer of the Onshore Protection Victoria section of the Department of Immigration and Border Protection conducted an International Treaties Obligations Assessment (ITOA). The finding of the officer in the ITOA report included that Australia did not owe international non-refoulement obligations in respect of the applicant.

9    On 23 August 2019 the applicant was convicted in the District Court of New South Wales of Reckless wounding – T1 and sentenced to three years imprisonment.

10    On 29 August 2019, the applicant’s Resolution of Status visa was cancelled under s 501(3A) of the Migration Act (cancellation decision). This decision was made on account of the applicant having a “substantial criminal record” within the meaning of s 501(7) of the Migration Act (having been sentenced to a term of imprisonment of 12 months or more). The applicant sought review of this decision.

11    On 3 September 2020 a delegate of the Minister refused to revoke the cancellation of the applicant’s Resolution of Status visa (non-revocation decision). The applicant sought review of the non-revocation decision in the Tribunal, however the Tribunal affirmed that decision.

RELEVANT LEGISLATION

12    Section 501CA of the Migration Act relevantly provides:

Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

(5)     If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)     Any detention of the person that occurred during any part of the period:

(a)     beginning when the original decision was made; and

(b)     ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)     A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (4) to not revoke, see section 501G.

13    In determining whether to revoke a visa cancellation, the Tribunal is required to perform its function and exercise the power to revoke in accordance with any directions given by the Minister under s 499 of the Migration Act. The relevant Ministerial direction in the present case was Direction 79 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Direction 79). Direction 79 identifies considerations relevant to former visa holders in determining whether to exercise the revocation power under s 501CA(4). Non-compliance with Direction 79 may constitute jurisdictional error: see for example FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6], Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [29], Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [179].

14    Materially Direction 79 provided as follows:

14 Other considerations – revocation requests

(1)    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;

…

15    International non-refoulement obligations are relevantly further explained in Direction 79 as follows:

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 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 50 IE of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A 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.

16    Relevantly “non-refoulement obligations” is defined by s 5 of the Migration Act as:

… includes, but is not limited to:

(a) non-refoulement obligations that may arise because Australia is a party to:

(i) the Refugees Convention; or

(ii) the Covenant; or

(iii) the Convention Against Torture; and

(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

DECISION OF THE TRIBUNAL

17    In considering its review of the non-revocation decision, the primary considerations the Tribunal took in account were as follows:

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

(b)    the best interests of minor children in Australia; and

(c)    expectations of the Australian community.

18    Other considerations taken into account were:

(a)    international non-refoulement obligations;

(b)    strength, nature and duration of ties;

(c)    impact on Australian business interests;

(d)    impact on victims; and

(e)    extent of impediments if removed.

19    In relation to primary consideration (a) the Tribunal concluded that the applicant’s offending had been frequent, and had shown signs of increasing seriousness as reflected in the sentences imposed upon him. The Tribunal considered that, collectively, the nature, frequency and seriousness of the applicant’s offending reflected poorly on the applicant and demonstrated a disregard for the law and authority.

20    The Tribunal, at [42] was satisfied that the nature and the seriousness of the applicant’s offending weighed heavily against revoking the cancellation of his visa.

21    In relation to the protection of the Australian community, at [72] the Tribunal rejected the applicant’s contention that his character had reformed following alcohol treatment and counselling. Rather, the Tribunal considered that there was a high probability that the applicant would reoffend, which weighed against him.

22    Primary consideration (b) was not relevant in circumstances where the applicant had no minor children, nor did he submit that any minor children would be affected by the reviewable decision.

23    At [77] in relation to primary consideration (c), the Tribunal concluded that the extent, frequency and nature of the applicant’s offending weighed heavily against revoking the cancellation of his visa.

24    The Tribunal then turned to other considerations, in particular the international non-refoulement obligations.

25    At [79] the Tribunal noted that paragraph 14.1 of Direction No 79 provides a list of factors to be considered in determining international non-refoulement obligations.

26    The Tribunal discussed the applicant’s history, including his arrival into Australia, past visa applications and judicial reviews. The Tribunal noted that in a letter requesting the revocation of the cancellation decision, the applicant submitted that he would “face persecution in Russia should he return there in the same or higher degree as he was persecuted before he left Russia.”

27    At [82] the Tribunal made reference to an undated statement which was part of the applicant’s 2004 application for protection, detailing alleged abuse and bullying the applicant received whilst at school in Russia due to his Jewish background. The applicant wrote that during a physical education lesson a fellow student pushed him off a ladder calling him a 'dirty Jew' and that he broke his hand and was taken to hospital. The applicant further stated that local Cossacks, were the main threat to the Krasnodar Jews, and they told him and his parents that they would not tolerate Jews on ‘the Russian Land’. He recounts being beaten by skinheads and forced to dig a grave after he moved to the city of Riazan (Ryazan). The applicant recounts that in 2003 he and his sister were taken to the outskirts of the city by ‘young Cossacks where she was raped and I was beaten’ after which his parents sold their possessions and helped the applicant to leave Russia.

28    The Tribunal noted that the respondent contended that the basis on which the applicant applied for a protection visa in Australia (his Jewish heritage) was found by the ITOA in 2016 to no longer invoke international non-refoulement obligations due to the change in circumstances in Russia since the applicant’s departure from Russia. The Tribunal also referred to a United States Department of State Country Report on Human Rights Practices for 2019 for Russia which confirmed that anti-semitism was not widespread.

29    The applicant’s representative acknowledged that the danger posed by anti-semitism in Russia had ameliorated in recent years, but submitted that it remained a threat and that the applicant could face persecution if returned. In addressing the issue of non-refoulement, the applicant also raised the issue of obtaining an internal identification document known as a “propiska”, which he contended would not be available to him. The Tribunal noted at [84] that this issue was considered in the 2016 ITOA report.

30    At [85] the Tribunal noted that specifics of the applicant’s experiences in Russia had changed over time. Notably a report was compiled by a forensic psychologist, Dr Adam Martin, in which Dr Martin indicated that the applicant moved to Australia following a tragic event in which his parents and sister were killed in a car bomb and their deaths led him to start drinking and to suffer PTSD. The report was before the court when he was sentenced in August 2019 and June 2018.

31    At the hearing before the Tribunal, the applicant confirmed that when he left Russia both his parents were still alive. He said that his father told him of his mother’s passing and that he never received confirmation that his father had died. He concluded that his father had passed when he stopped returning his calls and messages and his phone was disconnected. A pre-sentence report dated 27 June 2018 prepared by Corrective Services NSW reported that the applicant arrived six months after the death of his parents and sister in a fatal car accident and concludes that ‘the tragic nature, the suddenness of their death and being left without any family still impacts on [the applicant]’.

32    At [87] the Tribunal noted that at the hearing the applicant explained that the discrepancy was the result of his use of a poor analogy and the absence of an interpreter during his session with Dr Martin. It was previously submitted on his behalf that any discrepancies in his recollection of events could be attributed to his excessive use of alcohol, PTSD and major depressive disorder. The Tribunal further noted that Dr Martin’s report was referenced by two sentencing judges and the inaccuracies were not acknowledged by the applicant until after they were identified by the delegate in the letter refusing to revoke the mandatory cancellation of his visa.

33    At [88] the Tribunal concluded that, in light of the discrepancies in the applicant’s evidence and the absence of any new evidence before the Tribunal relating to non-refoulement obligations, the Tribunal accepted the findings of the ITOA which determined that there are no non-refoulement obligations owing to the applicant.

34    The Tribunal then considered at [89] to [96] the strength, nature and duration of the applicant’s ties to Australia and concluded that the considerations weighed in favour of revocation, but placed less weight on it on account of his offending soon after his arrival in Australia.

35    At [97] to [108] the Tribunal considered the extent of impediment if the applicant was removed from Australia and concluded that this consideration weighed marginally in favour of revocation.

36    The Tribunal concluded that the applicant’s ties to Australia and the impediments to his removal from Australia weighed marginally in his favour, and was satisfied that international non-refoulement obligations had limited relevance to this decision for the reasons it outlined. The Tribunal was satisfied that the preferable decision was not to revoke the mandatory cancellation of the applicant’s visa.

Application to this Court

37    The applicant filed an originating application for review of the Tribunal’s decision on 17 December 2020. The grounds of the application were as follows:

Ground One

1.    The Tribunal acted outside of jurisdiction and failed to undertake the task of jurisdiction by holding at [71] that the Applicant’s risk of re-offending was “unacceptable” and therefore preempting the question of whether the combination of all the reasons advanced by the Applicant meant that the Tribunal was satisfied the cancellation of the Applicant’s visa should be revoked.

Ground Two

2.    The Tribunal acted outside of jurisdiction and failed to undertake the task of jurisdiction by failing at [79] to [88], when considering the mandatory relevant consideration of ‘international non-refoulement obligations’, to consider the terms of Article 1C of the Refugees Convention and generally the question of when Australia’s international non-refoulement obligations in respect of the Applicant could cease as a matter of international obligation, those matters being necessary to consider in order to lawfully consider the matter of ‘international non-refoulement obligations’.

38    At the hearing, Mr Hooke SC for the applicant stated that only ground 2 of the application was pressed.

Submissions of the parties

39    The applicant submitted, in summary:

    Australia recognised the applicant as a refugee in 2006 and accrued obligations under the Refugee Convention in respect of him.

    The question of whether the applicant continued to be a refugee at the time of the non-revocation decision required consideration of both his original status (and whether it has ceased under the Convention) and, if necessary, his current status (i.e. whether he had a well-founded fear of persecution in Russia or could engage in complementary protection). This question would only arise if the applicant’s refugee status had ceased in accordance with the Convention.

    Recognised refugee status under the Convention could only relevantly cease if the cessation provisions in Article 1C of the Refugee Convention were satisfied.

    The ITOA relied upon by the Tribunal simply stated that the cessation clauses “do not apply to the claimant”.

    That reference by ITOA is capable of two interpretations, each of which bespoke jurisdictional error.

•    First, the assessor was intending to find that the cessation clauses were not satisfied (i.e. the applicant remained a refugee). This is consistent with the fact that the clauses are referred to. On this interpretation, the Tribunal failed to consider the extant ‘international non-refoulement obligations’ because it did not appreciate that they were owed by reason of the applicant’s continuing refugee status; or

•    Second, the author was intending to state that the cessation clauses were not relevant to their task. This is consistent with the reference on page 2 of the document to the assessor using the, “relevant provisions contained in the Act even though this is not an assessment of a protection visa application”. On that interpretation, ‘international non-refoulement obligations’ were not considered by the Tribunal because it simply adopted the ITOA and did not otherwise grapple with cessation.

    Cessation was an individualised question, requiring a case by case assessment, and as a matter of international obligation involved a burden on the state. The change of circumstances anticipated was clearly intended to comprehend fundamental change in the country which removed the basis of any fear of persecution. A mere – possibly transitory – change in the facts surrounding the individual refugee’s fear, which did not entail such major changes of circumstances, was not sufficient to make this clause applicable.

    Article 1C of the Convention expressly required consideration of whether there were “compelling reasons arising out of previous persecution for [the applicant] refusing to avail himself of the protection of the country of nationality”.

    There was information before the Tribunal that indicated the applicant suffered trauma from events in Russia. This further demonstrated the materiality of the failure of the Tribunal to consider the basis for the applicant being a refugee and whether that status had ceased.

    Any submission that “international non-refoulement obligations” could be properly considered under s 501CA(4) in respect of an accepted refugee without considering the reasons for their status and whether it has ceased as a matter of international obligations should be rejected.

    The Tribunal adopted and incorporated the ITOA findings into its reasons, and gave no consideration of the cessation provisions in Art 1C of the Convention, and no weight to issues of international non-refoulement.

40    The Minister submitted:

    The Tribunal recognised at [81] that the applicant advanced a claim in his revocation request that he feared persecution if he returned to Russia, which required the Tribunal in this case to consider the question of non-refoulement.

    A fundamental misconception underpinning the applicant’s arguments was that the applicant was entitled to some form of (unidentified) ongoing status as a “refugee” simply because in 2006 the Minister’s Department granted him a three year temporary protection visa.

    The term “refugee” denoted recognition that a person came within the terms of Article 1A of the Refugees Convention. It would appear to be the case that in having been granted a temporary protection visa in 2006, a delegate of the Minister must have been satisfied (at that time) that the applicant was a refugee as defined in the Refugees Convention.

    The applicant no longer held a protection visa. His temporary protection visa ceased in November 2009 when he was granted a Resolution of Status visa, which was subsequently cancelled.

    The applicant’s submission that the applicant somehow maintained the status of refugee because of a prior visa grant was unsustainable.

    Contrary to the applicant’s contention that he should be taken to continue to maintain the status of “refugee” as at the time of the Tribunal’s decision, an officer of the Minister’s Department assessed the applicant to determine whether he engaged Australia’s protection obligations arising under the Refugees Convention, the ICCPR and the CAT, and determined that no such obligations were engaged.

    The applicant’s contention that the Tribunal erred in failing to engage with Article 1C was also inconsistent with authority from the High Court. The question whether an entrant to Australia, who had been granted a temporary protection visa, on its expiry, and notwithstanding benign changes in the conditions of the country from which he or she had fled, was entitled under Australian law to assert that he or she continued to be a person to whom Australian has protection obligations, was considered in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 (QAAH). The majority of the High Court in QAAH rejected the visa applicant’s argument that if an applicant has once been accepted as having held, at any time in the past, a relevant fear of persecution, Australia must either accept that he is a refugee for all times and all purposes, including an applicant for a permanent visa, or must effectively assume a burden of showing that the basis for the well-founded fear no longer exists.

    Even to the extent that the grant of a temporary protection visa to the applicant in 2006 was recognition that he was a refugee under Article, such recognition was subject to a change of circumstances in the applicant’s home country. The decision of the Minister’s delegate that the applicant met the requirements for the grant of the visa was based upon a state of satisfaction having been reached at that point in time (in 2006). The Tribunal was not required to consider Article 1C of the Refugees Convention because the applicant was not taken to have, and did continue to assume, the status of refugee under the Refugees Convention.

    The Direction required the Tribunal in the circumstances to consider whether non-refoulement obligations were engaged. The Tribunal did so. Consistently with QAAH, the Tribunal was not required to assume that an earlier recognition that the applicant was a refugee meant that it had to consider whether Article 1C of the Refugees Convention applied such as to discontinue that status. All the Direction required was that the Tribunal consider the existence of non-refoulement obligations as they might exist at the time of its decision. The Tribunal looked to the ITOA as part of its assessment.

    To the extent the applicant submitted that it was not open to the Tribunal to rely on the outcome of the Department’s ITOA for the purposes of determining whether non-refoulement obligations were engaged in respect of the applicant, that argument was inconsistent with the terms of the Direction, paragraph 14.1(6). Although not directly applicable in the present case, paragraph 14.1(6) expressly provides that decision-makers should seek an assessment of Australia’s international treaty obligations in circumstances where a person is prevented from applying for a protection visa. The applicant had not been refused a protection visa for the purposes of s 48A of the Act. (See also s 501E(2) of the Act). In any event, the Direction itself dictates that in some cases an ITOA should be sought in order for an assessment of non-refoulement obligations to be made, and considered.

    The second ground failed to identify jurisdictional error by the Tribunal.

CONSIDERATION

41    As I noted earlier, the only ground of review on which the applicant relies is as follows:

2.    The Tribunal acted outside of jurisdiction and failed to undertake the task of jurisdiction by failing at [79] to [88], when considering the mandatory relevant consideration of ‘international non-refoulement obligations’, to consider the terms of Article 1C of the Refugees Convention and generally the question of when Australia’s international non-refoulement obligations in respect of the Applicant could cease as a matter of international obligation, those matters being necessary to consider in order to lawfully consider the matter of ‘international non-refoulement obligations’.

42    From both this ground, and the submissions of the parties, it is clear that the key issues before the Court are whether:

(1)    The applicant had the status of a refugee at the time of the Tribunal decision; and

(2)    The Tribunal was required to consider cessation provisions in Art 1C of the Refugees Convention and therefore engage with the issue of non-refoulement obligations as required by clauses 14 and 14.1 of Direction 79 (construed with s 5 of the Migration Act).

43    It is helpful to examine each issue in turn.

Did the applicant have the status of a refugee pursuant to Art 1A at the time of the Tribunal’s decision?

44    It does not appear to be in contention that the applicant was granted a temporary protection visa in 2006, which expired three years later, at which time he was granted a Resolution of Status visa.

45    Article 1A of the Convention relating to the Status of Refugees relevantly provides that a “refugee” is any person who:

…

(2)    … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

46    This terminology is substantially incorporated into the definition of “refugee” in s 5H of the Migration Act, which provides:

Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution , is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution , see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

47    In respect of this issue I observe as follows.

48    First, the matter before the Tribunal was not a review of a decision to refuse a protection visa to the applicant. The Tribunal was not tasked with finding whether or not the applicant had a well-founded fear of being persecuted in Russia for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal’s task was to consider whether the cancellation decision should be revoked. This consideration potentially required (and indeed ultimately required) consideration of Australia’s international non-refoulement obligations to the applicant.

49    Second, the applicant was temporarily granted a protection visa in 2006. He was never formally granted a permanent protection visa under the Migration Act and Migration Regulations. To that extent he was never formally recognised as a “refugee”, and not granted refugee status.

50    I am not satisfied that when a non-citizen is granted a temporary protection visa under Australian law, any status arising from that visa continues past the expiry of the visa. Rather, I understand a temporary protection visa may be granted as an interim measure whilst the protection claims of a visa applicant are being assessed. If a non-citizen is granted another visa – as occurred in the present case – he or she acquires rights referable to that visa. That this is so is evident from s 82 of the Migration Act which relevantly provides:

When visas cease to be in effect

(1)     A visa that is cancelled ceases to be in effect on cancellation.

(2)     A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.

…

51    As Gummow and Hayne JJ observed in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 230 ALR 370 at [31], s 82 (2) of the Migration Act evinces an intention that only one substantive visa be held at any one time (see also Minister for Immigration and Border Protection v Le [2016] FCAFC 120).

52    However third, it does not appear to be in dispute that the Resolution of Status visa granted to the applicant in 2009 afforded the applicant rights similar to a protection visa, without granting him refugee status. I make this observation, not only in light of the submissions of the respondent, but also in light of authorities which have given consideration to this type of visa. In particular I note comments of Rares J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [15]-[17] and [26].

53    A fourth point to note is that although the visa of the applicant which was cancelled pursuant to s 501 (3A) was not a protection visa, an ITOA was conducted by the Department in the course of the Minister’s consideration of cancellation. Precisely why an ITOA was conducted is unclear, however I infer that it was to address any prospect that Australia owed non-refoulement obligations to the applicant in circumstances where the applicant had earlier sought protection. I do not consider the fact that an ITOA was conducted could be construed as a concession by the respondent that the applicant had ongoing refugee status in 2016.

54    Finally, the outcome of the ITOA was that, at least on the detailed findings of the Department, there were no substantial grounds for the applicant believing in 2016 that there was a real risk of significant harm to him if he returned to Russia. It appears from the detailed findings of the ITOA that the applicant was not a person who had a well-founded fear of being persecuted in Russia for reasons of race, religion, nationality, membership of a particular social group or political opinion.

55    On balance, I am not satisfied that the applicant had the status of a “refugee” within the meaning of s 5H of the Migration Act at the time of the Tribunal decision in , arising from his earlier temporary protection visa. The fact that the applicant had been granted a Resolution of Status visa did not support any claim on his part of refugee status in 2020.

Was the Tribunal required to consider cessation provisions in Art 1C of the Refugees Convention and therefore engage with the issue of non-refoulement obligations as required by clauses 14 and 14.1 of Direction 79 (construed with s 5 of the Migration Act)?

56    Article 1C of the Refugees Convention provides:

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

…

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

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

57    The High Court has repeatedly stated that Australian Courts should endeavour to adopt a construction of the Migration Act (if that construction is available) which conforms to the Convention: see for example QAAH at 15 [34] and Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 at [53]. However it is well settled that it is the domestic law of Australia which prevails in any conflict between it and the Refugees Convention: QAAH at [33], Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [36]-[37], [45].

58    In this case the applicant was not a refugee at the time of the Tribunal’s decision. Article 1C of the Refugees Convention plainly relates to persons who are refugees – it was not relevant in the applicant’s case, notwithstanding his earlier temporary protection visa. To that extent, the Tribunal was not required to engage with the cessation provisions in Art 1C of the Refugees Convention, as if the applicant had been a refugee.

59    I note however that extensive submissions have been made by the applicant relating to the Tribunal’s consideration of whether international non-refoulement obligations were owed to him. Notwithstanding that I am satisfied that the applicant was not a refugee and that it was unnecessary for the Tribunal to engage with Art 1C of the Refugees Convention, in the event that I am wrong in that view I make the following observations in respect of the Tribunal’s consideration of non-refoulement obligations.

60    Even in circumstances where a person has been granted a protection visa, such a visa can be cancelled (see, for example, Minister for Immigration and Border Protection v EFX17 [2021] HCA 9).

61    However, a non-citizen whose visa is cancelled may be a person in respect of whom Australia owes international non-refoulement obligations. The existence of international non-refoulement obligations may be “another reason” to revoke a cancellation decision pursuant to s 501CA (4)(b)(ii) of the Migration Act. A recent case in point was the decision of the High Court in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, where the visa cancelled was not a protection visa but rather a Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa. Equally, the absence of international non-refoulement obligations owed to the non-citizen may mean that there is no “other reason” to revoke the cancellation of his or her visa. As the High Court observed in QAAH:

43.    Both the opening words of Art 1C(5), "He can no longer" (emphasis added), and the subsequent words, "the circumstances ... have ceased to exist" (emphasis added), make it clear that the circumstances from time to time and not merely as a matter of history are the relevant circumstances, that is, that the "status", as the Convention has it, of a person permitted to reside in an asylum country may change as circumstances in the country which he has left change.

62    The applicant in the present case raised with the Tribunal the issue of international non-refoulement obligations being owed to him by Australia, as being “another reason” for the Tribunal to revoke the visa cancellation decision. In such circumstances the Tribunal was required to identify and evaluate the applicant’s claims referable to the prospect of such obligations being owed: Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [36].

63    I have already noted that, at the time of the Tribunal decision, Direction 79 given by the Minister under s 499 of the Migration Act required consideration be given to international non-refoulement obligations in determining whether the mandatory cancellation of a visa should be revoked. Importantly, cl 14.1 of Direction 79 specifically recognised Australia’s international obligations under the Refugees Convention, the CAT, and the ICCPR. Further, cl 14.1 (6) provided for assessments to be conducted in order to ascertain non-refoulement obligations – I understand that the ITOA conducted in 2016 in the present case was precisely the type of assessment contemplated by cl 14.1 (6).

64    An ITOA has been described as an administrative process, being a response of the Department, conducted in accordance with standardised procedures set out in publicly available material published by the Department (see for example Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [9], WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [52]), AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at [11]).

65    Plainly the Tribunal had regard both to Direction 79, and the ITOA conducted 17 August 2016 in respect of the applicant. Under the heading “Other consideration – international non-refoulement obligations” the Tribunal observed as follows:

79.    Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations.

80.    As mentioned, the Applicant initially travelled to Australia on a false Spanish passport. An International Treaties Obligations Assessment (“ITOA”) dated 17 August 2016 records that he applied for a Class XA Subclass 866 Protection Visa on 11 March 2004 which was refused by the Department later that month. The decision was affirmed by the Refugee Review Tribunal (“RRT”) on 7 June 2005. Following a judicial appeal, the second RRT remitted the case and the Applicant was granted a Class XA Subclass 785 (Temporary Protection) Visa on 28 August 2006, due to his arrival in Australia on a false passport. He was granted a Class CD Subclass 851 Resolution of Status Visa on 29 November 2009.

81.    In a letter requesting the revocation of the cancellation decision, the Applicant submitted that he will ‘face persecution in Russia should he return there in the same or higher degree as he was persecuted before he left Russia’.

82.    In an undated statement submitted as part of his 2004 application for protection, the Applicant detailed the abuse and bullying he received whilst at school in Russia due to his Jewish background. He writes that during a physical education lesson a fellow student pushed him off a ladder calling him a ‘dirty Jew’ and that he broke his hand and was taken to hospital. Local Cossacks, he writes, were the main threat to the Krasnodar Jews, and they told his parents and he that they would not tolerate Jews on ‘the Russian Land’. He recounts being beaten by skinheads and forced to dig a grave after he moved to the city of Riazan (Ryazan). In 2003 he and his sister were taken to the outskirts of the city by ‘young Cossacks where she was raped and I was beaten’. Following this incident his parents decided to sell their possessions and help the Applicant leave Russia.

83.    The Respondent contends that the basis for which the Applicant applied for a protection visa in Australia, his Jewish heritage, was found by the ITOA in 2016 to no longer invoke international non-refoulement obligations due to the change in circumstances in Russia since the Applicant’s departure from Russia. The Tribunal also has before it a United States Department of State Country Report on Human Rights Practices for 2019 for Russia which confirms that antisemitism is not currently widespread.

84.    During the hearing, the Applicant’s representative acknowledged that the danger posed by antisemitism in Russia had ameliorated in recent years but submitted that it remained a threat and the Applicant may face persecution if returned. In addressing the issue of non-refoulement, the Applicant also raised the issue of obtaining an internal identification document known as “propiska”, which he contends would not be available to him. The Tribunal notes that this issue was considered in the 2016 ITOA report, which is before the Tribunal, and in that report it was found that Australia does not have a non-refoulement obligation to the Applicant.

85.    The specifics of the Applicant’s experiences in Russia have changed over time. Notably a report was compiled by forensic psychologist Dr Adam Martin in which Dr Martin indicated that the Applicant moved to Australia following a tragic event in which his parents and sister were killed in a car bomb and their deaths led him to start drinking and to suffer PTSD. The report was before the courts when he was sentenced in August 2019 and June 2018.

86.    At the hearing the Applicant confirmed that when he left Russia both his parents were in fact still alive. He said that his father told him of his mother’s passing and that he never received confirmation that his father had died. He concluded that his father had passed when he stopped returning his calls and messages and his phone was disconnected. A pre-sentence report dated 27 June 2018 prepared by Corrective Services NSW reports that the Applicant arrived six months after the death of his parents and sister in a fatal car accident and concludes that ‘the tragic nature, the suddenness of their death and being left without any family still impacts on [the Applicant]’.

87.    At the hearing the Applicant explained the discrepancy was the result of his use of a poor analogy and the absence of an interpreter during his session with Dr Martin. It was previously submitted on his behalf that any discrepancies in his recollection of events could be attributed to his excessive use of alcohol, PTSD and major depressive disorder. I note that Dr Martin’s report was referenced by two sentencing judges and the inaccuracies were not acknowledged by the Applicant until after they were identified by the delegate in the letter refusing to revoke the mandatory cancellation of his visa.

88.    In light of the discrepancies in the Applicant’s evidence and the absence of any new evidence before the Tribunal relating to non-refoulement obligations, the Tribunal accepts the findings of the ITOA which determined that there are no non-refoulement obligations owing to the Applicant. Consequently, this factor is afforded neutral weight.

66    In relation to whether cessation provisions in Art 1C possibly applied to the circumstances of the applicant, and the Tribunal’s consideration of such, I find as follows.

67    First, in respect of the existence or otherwise of international non-refoulement obligations owed by Australia to the applicant, it is plain that the Tribunal placed considerable weight on the findings of the ITOA. In summary I note:

    The ITOA conducted in respect of the applicant resulted in a lengthy and detailed document. The assessor noted that the applicant was granted a Resolution of Status Visa on account of having held a Subclass 785 (Temporary Protection) Visa and for having made a Protection Visa. The assessor identified Australia’s non-refoulement obligations by reference to the Refugee Convention, the CAT and the ICCPR, and stated that the material before it was:

•    Departmental files;

•    Australian case law as footnoted throughout the assessment record;

•    Country information as footnoted throughout the assessment record;

•    Procedures Advice Manual 3: Refugee Law Guidelines;

•    Procedures Advice Manual 3: Complementary Protection Guidelines;

•    Any relevant country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations;

•    All information provided by or on behalf of the claimant.

    The assessor summarised in detail the applicant’s written claims, and the response of the applicant’s representative, including claims of anti-Semitism. The assessor accepted that the applicant had converted to Christianity, and that while residing in particular areas he had been targeted on account of his Jewish ethnicity. In summary, the assessor then found:

•    The Refugees Convention ground of race was the essential and significant reason for the harm feared by the applicant pursuant to paras 5J (1)(a) and 5J (4)(a) of the Migration Act;

•    The harm the applicant feared was serious harm and involved systematic and discriminatory conduct, such as to amount to persecution;

•    In relation to whether the applicant faced a real chance of being persecuted in Russia in the reasonably foreseeable future for Refugees Convention reasons, it was appropriate to take into consideration the applicant’s claims and available country information;

•    The assessor took into account country information, including The United States Department of State 2014 International Religious Freedom Report on Russia and The United States Department of State Country Reports on Human Rights Practices for 2015 on Russia.

•    The assessor referred in detail to targeting/mistreatment of ethnic Jews in Russia, specifically the region where the applicant was from.

•    The assessor made detailed reference to Jewish presence in the region of Russia where the applicant was from, as well as Cossacks in that region and adverse treatment of ethnic Jews by Cossacks in that region.

    The ITOA concluded:

Assessment:

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonable foreseeable future.

I have considered [the applicant’s] claims regarding his mistreatment as an ethnic

Jew, at the hands of the Cossacks in [redacted], in light of the above country information. Considering the period of time that has lapsed since [the applicant’s] claims of mistreatment and the significant changes in the region, in conjunction with the Russian President's attempts to prevent anti-Semitism in Russia, I find there is no real chance that [the applicant] will suffer any mistreatment, should he return to the [redacted] region in Russia.

I have considered the articles submitted by [the applicant] and I note that the reports are on the general situation in the Russia, particularly in regards to anti-Semitism in media and vandalism attacks on Jewish synagogues, the most recent referenced attack being in 2013. There was no evidence to suggest that ethnic Jews are being targeted individually or that [the applicant] would be targeted. I have considered in particular the reporting on the migration of Russian Jews to New York from the Mosaic Magazine. However there is no evidence to suggest that they migrated on account of being targeted because of their Jewish ethnicity.

I find there is no evidence to suggest that in the present day there are Cossacks in [redacted] that adversely treat ethnic Jews. Country information indicates that in recent years the Jewish community has shown signs of rejuvenation. A synagogue was rededicated (after a seven-year reconstruction) ...

Despite finding that there is no real chance [the applicant] will suffer any mistreatment, should he return to the [redacted] region in Russia, I now turn my mind to whether he will be afforded state protection and whether he will be able to reasonably relocate on account of the claims submitted.

State Protection

More generally, sources indicate that the [redacted] government has pursued anti-migrant' (which includes, in local rhetoric, ethnic minorities) policies and rhetoric.

The SOVA Centre has reported a long-term trend that indicates a reduction in anti-Semitism in Russia. Sources indicate that ethnic Jews are willing to investigate and prosecute anti-Semitic crimes. In 2016, the US Department of State report on human rights in Russia stated, without providing specific examples, '[t]he government investigated anti-Semitic crimes. An earlier 2015 report by the US Department of State provided two examples of Russian authorities filing criminal cases against individual users of a Russian social media site that promoted anti-Semitic views. The report also noted that a St. Petersburg councillor and national TV news presenter had publicly made anti-Semitic comments. The same report indicated that the Federation of Jewish Communities stated that there were no official acts of anti-Semitism at the federal level during the year 2014. Accordingly. I find that the Russian authorities are presently more active in pursuing and punishing offenders committing anti-Semitic acts.

Furthermore, l note that [the applicant] has not submitted that there were any further threats made to his family in Russia, prior to their demise... [The applicant] submitted that the last contact he had with his parents was a few months before their passing ... In conjunction with available country information, I find that [the applicant] would not also face any real chance of serious harm on account of his Jewish ethnicity in Russia.

(redactions made, footnotes omitted)

    The assessor further found (in summary) that, despite the applicant’s claim that he was unable to reside in Moscow, sources indicated there was no discrimination in relation to residency registration in Moscow. Accordingly the applicant could reasonably, in the sense of practicably, relocate to Moscow if required on return to Russia.

    The assessor found that the applicant did not have a well-founded fear of being persecuted for a Refugee Convention reason, and that his fear of persecution was not well-founded.

    The assessor found:

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

    The assessor further found that the applicant did not come within Art 33 (2) of the Refugees Convention in respect of its express exception to the prohibition of refoulement.

    The assessor concluded that the applicant was not a refugee within the meaning of Article 1A and that Australia did not have a non-refoulement obligation to the claimant under the Refugees Convention.

    The assessor then turned to whether Australia’s non-refoulement obligations to the applicant under the CAT and ICCPR were enlivened, however following detailed discussion the assessor concluded that the applicant was not a person in respect of whom Australia had non-refoulement obligations under the CAT and ICCPR.

    The assessor concluded that the applicant was not a refugee within the meaning of Article 1A of the Refugees Convention.

68    Given the detailed findings of the ITOA, made after extensive analysis of evidence and submissions made to the assessor by the applicant, I consider that it was both reasonable and appropriate for the Tribunal to give credence to the ITOA findings in forming its own views concerning whether international non-refoulement obligations were owed by Australia to the applicant.

69    Second, I note the comment in the ITOA (also accepted by the Tribunal) that the cessation clauses in Art 1C of the Refugees Convention did not apply to the applicant. This comment followed a very lengthy assessment by the officer of whether the applicant had a well-founded fear of persecution, and the conclusion of that officer that the applicant did not and therefore was not a “refugee”.

70    Third, I do not accept that the Tribunal uncritically accepted the findings of the ITOA in disregard of any further submissions or evidence of the applicant before the Tribunal. Rather, it is also plain that the Tribunal had regard to the case of the applicant as presented to the Tribunal. In particular:

    The Tribunal noted the discrepancies in the evidence of the applicant, and clearly considered this relevant to the question of whether the applicant would face persecution in Russia “to the same or higher degree as he was persecuted before he left Russia”; and

    As the Tribunal observed at [88], no new evidence was adduced by the Tribunal further to that which was considered in the ITOA.

71    In summary, and consistently with the principles explained by the High Court in QAAH at [43], it is clear that if Australia had ever owed non-refoulement obligations to the applicant, by the time of its decision the Tribunal was satisfied that Australia no longer did so. The Tribunal did not specifically address Art 1C of the Refugees Convention, however the Tribunal had regard to the detailed consideration by the ITOA of Australia’s non-refoulement obligations in respect of the applicant, and further concluded on the basis of the material before it that there was no reason why the applicant could refuse to avail himself of the protection of the country of his nationality. If Art 1C of the Refugees Convention was at all relevant in respect of the circumstances of the applicant, the reasons of the Tribunal adequately addressed issues of non-refoulement.

72    In so concluding, I note again the general proposition that the Court should not be astute to discern error in the reasons of an administrative decision-maker: Plaintiff M1-2021 at [38], Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 185 [25], Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282.

CONCLUSION

73    In my view, ground 2 of the application, being the sole ground pressed by the applicant, is not substantiated.

74    The application should be dismissed. Costs follow the event.

Associate:

Dated:    18 May 2022