Federal Court of Australia

Maryvan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 977

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is granted an extension of time within which to file his originating application for judicial review of the Tribunal’s decision dated 26 July 2021.

2.    The application is dismissed.

3.    The applicant is to pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

Introduction

1    The applicant is a Laotian citizen who came to Australia in 2005 when he was 17 years old as the holder of a child (permanent) subclass 101 visa (Visa).

2    Since 2010, the applicant has been convicted of 28 offences of varying seriousness ranging from public transport travel offences through to shoplifting and possession of a prohibited drug.

3    On 14 February 2019, a delegate of the Minister cancelled the applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act). The applicant made representations to the Minister pursuant to s 501CA(4) seeking revocation of the cancellation decision. On 27 August 2019, another delegate refused to revoke the cancellation decision.

4    The applicant applied to the Administrative Appeals Tribunal (Tribunal) seeking a review of that decision. On 21 November 2019, the Tribunal affirmed the delegate’s decision refusing to revoke the cancellation decision.

5    The applicant applied to this Court for judicial review of the Tribunal’s decision. On 20 October 2020, by consent, the Court (Anastassiou J) ordered that the Tribunal’s decision, dated 21 November 2019, be quashed and the applicant’s application for review of the decision of the delegate be remitted to the Tribunal for determination according to law.

6    On 26 July 2021, once again, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the applicant’s Visa.

7    It is from that decision that the applicant seeks judicial review.

The application for an extension of time

8    The applicant seeks a remedy under s 476A(1)(c) of the Act. Section 477A of the Act imposes a time limit of 35 days of the date of the migration decision within which an application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s 476A(1)(b) or (c).

9    Pursuant to s 477A(2), the Court may, by order, extend the 35 day period as it considers appropriate if, amongst other things, it is satisfied that it is necessary in the interests of the administration of justice to make the order.

10    Mr Alexander Grosart is employed by Legal Aid NSW. In his affidavit, sworn 14 October 2021 and filed 20 October 2021 (Grosart affidavit), Mr Grosart deposes that initially he acted as the applicant’s solicitor in the original Federal Court proceedings before Anastassiou J. After the matter was remitted to the Tribunal, the applicant was represented by a private solicitor under a grant of legal aid. Mr Grosart was unaware of the outcome of the application before the Tribunal and conducted a number of searches to see if a decision had been published. It was not until on or about 8 September 2021 that he saw that the Tribunal’s decision, dated 26 July 2021, had been published. At this stage, the applicant was detained in an immigration detention centre. As at September 2021, face-to-face visits were not permitted and conferences needed to be conducted by telephone. He booked a telephone call with the applicant on 13 September 2021 and it was during that telephone conversation that the applicant instructed Legal Aid NSW to act for him in filing proceedings in the Federal Court. Mr Grosart deposes further that during the telephone call on 13 September 2021, the applicant told Mr Grosart that he had never received any paperwork about the decision but only that he lost: Grosart affidavit [2]-[6].

11    On 11 October 2021, Mr Grosart made arrangements for a further conference with the applicant by telephone. During that telephone conference, the applicant said to Mr Grosart that he did not call legal aid or Mr Grosart to ask for advice, explaining in words to the effect: Grosart affidavit [7]:

I was in a lot of trouble, I did not know what to do, I did not even call my father or family to tell them.

and

I had too many things in my head I was waiting to get some papers or a letter telling me what to do and then you called me and that was two to three weeks after.

Legal principles - extension of time

12    In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 [20]-[21] Perram, Farrell and Perry JJ said:

20.    The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and are underpinned by a consideration of where the best interests of justice lie. Those principles may be summarised as follows.

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(See eg BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.)

21.    As to the fifth of these matters, the proposed grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]).

See also SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 [16]-[25] (Cowdroy J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6] (Flick, Griffiths and Perry JJ); AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442 [30] (Markovic J).

13    Attached to the application for an extension of time is a draft originating application for judicial review of the Tribunal’s decision. The Minister does not oppose an order extending time, observing the delay is relatively short (16 days); the applicant has provided an explanation for the delay; the Minister is not prejudiced by an extension of time; and accepts the ground of review sought to be advanced in the draft originating application has some merit.

14    Having considered the matters to which Mr Grosart deposes in the Grosart affidavit, the relatively short delay, lack of prejudice to the Minister, and the grounds set out in the draft originating application, I am satisfied that it is necessary in the interests of justice to make the order. Accordingly, I grant the applicant an extension of time within which to file his originating application seeking judicial review of the Tribunal’s decision dated 26 July 2021.

The originating application and the amended originating application

15    I heard the application on 8 April 2022.

16    At the hearing on 8 April 2022, the applicant sought leave to file and serve supplementary submissions on the issue of the meaning of the term “being persecuted for reasons of … membership of a particular social group in Art 1A (2) of the Convention Relating to the Status of Refugees, 1951, as amended by the Protocol Relating to the Status of Refugees, 1967 (together the Refugees Convention)”.

17    On 11 May 2022, the High Court delivered is decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. Following that decision, the applicant sought leave to make further submissions and to file an amended originating application. The Minister did not oppose the application and on 20 May 2022 I granted leave to the applicant to amend his originating application such that the relief now sought and the grounds upon which that relief is sought are as follows:

Details of relief sought

1.    A WRIT OF CERIORARI bringing the decision into this Court to be quashed.

2.    A WRIT OF MANDAMUS, directed to the second respondent, directing it to reconsider and redecide the applicant's application to it according to law.

3.    Alternatively to the relief sought in paragraphs 1 and 2 above, A DECLARATION that the second respondent erred in law in that it failed to consider whether the applicant, due to his mental health condition and drug addiction, would be a member of one or more "particular social groups" within the meaning of section 5J of the Migration Act, 1958.

4.    The first respondent pay the applicant's costs.

Grounds of application

1.    The Administrative Appeal Tribunal failed to lawfully consider issues raised by the submissions and material before it.

Particulars

a.    The Tribunal failed to consider whether the applicant, due to his mental health condition and drug addiction, would be a member of one or more "particular social groups" within the meaning of section 5J(1)(a) of the Migration Act, 1958.

b.    The Tribunal thus failed to consider whether Australia's non-refoulement obligations pursuant to the Migration Act were engaged with respect to the applicant.

18    As is apparent, the applicant’s sole ground of review is that the Tribunal failed to consider lawfully issues raised by the submissions and material before it and the particulars are directed at non-refoulement obligations under domestic law.

19    Both the applicant and the Minister filed further written submissions dealing with the effect of Plaintiff M1/2021 and on 15 June 2022, I heard further oral submissions from the parties.

Direction 90

20    Pursuant to s 499 of the Act, the Minister has given a written direction (Direction 90) to a decision-maker, being a delegate of the Minister or a body such as the Tribunal making a decision under ss 501 or 501CA of the Act. Direction 90 is titled “Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”. It commenced on 15 April 2021.

21    Section 499(2A) makes it mandatory for a person or body to comply with a direction issued under s 499(1) of the Act.

The Tribunal’s reasons

22    The Tribunal’s reasons (Reasons) are very detailed. First, the Tribunal Member dealt with the primary considerations in Direction 90 before turning to “other considerations” which includes “international non-refoulement obligations”: Reasons [132]-[173].

23    I set out below in detail the Tribunal’s consideration of Australia’s international non-refoulement obligations and the applicant’s submissions which were made prior to the High Court delivering its judgment in Plaintiff M1/2021.

24    That is because in the further supplementary written submissions, the oral submissions made on 15 June 2022, and in the amended originating application, the broad effect is that the submissions advanced by the applicant on Australia’s International non-refoulement obligations are equally applicable to a claim for non-refoulement under Australia’s domestic law.

25    The Tribunal Member commenced his consideration of Australia’s international non-refoulement obligations, referring to Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589: Reasons [133]-136]. The Tribunal member set out his understanding of the decision at Reasons [137]:

I comprehend the Full Court’s decision in Omar to mean: (1) it is not sufficient for a decision-maker to merely “have regard to” only some of the significant matters raised in the representations; and (2) deficiencies in the decision-making process are not overcome by the adoption of a broad statement such as “I have considered all relevant matters...” and “Having given full consideration to all of these matters...”. The full Court’s decision in Omar gives rise to a requirement for a decision-maker to engage meaningfully with the significant representations which have been clearly expressed on the risk of harm. I acknowledge that this obligation is not discharged by the generalised statements as quoted in this paragraph of my Reasons.

(Citations omitted, emphasis in the original)

26    Next, the Tribunal Member referred to the High Court decision in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 [33]-[36] (Nettle, Gordon and Edelman JJ) where the Court said:

33    Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.

34    That conclusion is reinforced by the fact that non-refoulement is addressed separately in the Act in provisions concerning the grant of protection visas (being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently with its non-refoulement obligations under international law) and in the context of removal. Given those express provisions, it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised. It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non-refoulement claim is made in a revocation request.

35    Put in different terms, it is through express provisions in the Act that Australia's non-refoulement obligations under international law have been implemented in Australian domestic law; and, if a non-citizen affected by cancellation seeks to have the Minister consider non-refoulement and remains free to apply under those express provisions for a protection visa, the Minister is not required to consider non-refoulement unless a claim for a protection visa is made.

36    It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non-refoulement claim is made - as in this case - non-refoulement does not need to be considered in the abstract. In those circumstances, it would only need to be considered at a later time, if the applicant applied for a protection visa. The appellant has not done so.

27    The Tribunal Member concluded that where non-refoulement obligations are squarely raised by an applicant, it is safest to address it: Reasons [138].

28    In the next part of the Reasons, the Tribunal Member considered the evolution of the applicant’s contentions and the extent to which those contentions dealt with non-refoulement could be gleaned from the evolutionary process of the matter. The Tribunal Member observed that, firstly, the applicant said nothing about non-refoulement issues when making representations to the Minister about the decision to cancel his Visa. Secondly, the applicant made no claims about international non-refoulement obligations said to be owed to him when the matter came before the Minister’s delegate who decided to affirm the decision to cancel the applicant’s Visa. Thirdly, in the first hearing before the Tribunal (the subject of the judicial review proceedings before Anastassiou J) the applicant did not rely on any non-refoulement obligations. Fourthly, it was during the course of the Tribunal hearing the subject of this review that the applicant put forward the apparent existence of non-refoulement obligations said to be owed to him. The Tribunal noted that the previously constituted Tribunal did not find the applicant was a person in respect of whom Australia owed non-refoulement obligations but the applicant’s circumstances may constitute grounds for a protection visa claim: Reasons [140]-[142].

29    The Tribunal moved to consider the Statement of Facts, Issues and Contentions (SFIC) filed on the applicant’s behalf in the proceedings before the Tribunal in which a contention was made that the Tribunal should be satisfied the applicant’s risk of removal from Australia would constitute a breach of Australia’s non-refoulement obligations under the Refugees Convention, and further that that would damage Australia’s international standing and reputation contrary to Australia’s national interest: Reasons [143].

30    The Tribunal Member referred to a written statement by the applicant, in the materials before the Tribunal, in relation to his fears about returning to Laos: Reasons [146].

My dad and step mother and brother are going to help me out as they are worried about my wellbeing and safety if I removed from Australia. I spoke with my dad he offers helping me. That is because I do not have anyone else in Laos to go to ask for support. I have not talked or seen my mother in the 20-25 years and have no one else to turn to for help.

Also, Laos has no mental health support system that I can rely on. Lack of mental health and professional, psychological, support and medications I need in Laos will lead to me be unable to stabilise my schizophrenia and depression. That further makes me unable to find any work and have any income. Because of these reasons I fear, and I know, that I would be homeless and as a mental patient be forcefully detained by the authorities in mental institution and never be released.

I therefore, ask to stay in Australia to have my mental health managed with the support father and family.

31    The Tribunal Member considered the applicant’s Personal Circumstances Form (PCF) as well as the applicant’s oral evidence and the report of a clinical psychologist, Ms Bogicevic, dated 11 June 2020: Reasons [147]-[150], before comparing the evidence between the first Tribunal hearing and the hearing before him.

32    The Tribunal Member identified that new material put before him confirmed that the applicant had mental health issues and substance abuse issues redolent in the applicant’s psychological symptomatology. He identified the mental health issues as schizophrenia for which the applicant was receiving medication and that the applicant was currently on a methadone treatment for drug use: Reasons [151]-[155].

33    Having identified the applicant’s schizophrenia and potential drug use, the Tribunal Member expressly considered non-refoulement, identifying the issue as crystallising into two questions: first, the extent to which the applicant will be able to obtain treatment for his mental health symptomatology; and second, whether he will be the subject of mistreatment, abuse or vilification as a result of seeking and/or receiving such necessary treatment: Reasons [156].

34    The Tribunal Member referred to a “Standard Q & A Report” prepared by the Department of Home Affairs contained within the respondent’s supplementary tender bundle which set out material concerning the availability and quality of mental health care services in Laos. That report noted the limited nature of mental health programs available in Laos as well as drug abuse support services: Reasons [156].

35    The Tribunal Member also referred to two documents tendered by the applicant which he described as being relevant to the issue of non-refoulement. The first is a submission prepared by “Harm Reduction International” and “World Coalition Against the Death Penalty” from 11 June 2018 which was a “Submission to the Human Rights Committee - 123rd session (2-27 July 2018)”. The submission notes what the Tribunal Member describes as adverse outcomes for people involved in drug rehabilitation treatment in Laos: Reasons [156]-[157].

36    The second is a document titled “Joint Submission to the Working Group for the Universal Periodic Review - Third cycle 35th Session - January/February 2020”, jointly prepared by “Harm Reduction International”, “The International Drug Policy Consortium” and the “Asian Network of People who Use Drugs”. The submission makes reference to reported violations and abuses suffered by individuals involved in drug rehabilitation in Laos: Reasons [156]-[158].

37    Having dealt with the evidence of mental health and drug rehabilitation treatment programs in Laos, the Tribunal Member dealt with the applicant’s stated fears of harm which the Tribunal Member identified as being based on two grounds. First, the capacity of the public health care system in Laos to deal with or manage the applicant’s mental health and illicit drug addiction, and second, the fear by the applicant that he will suffer abuses frequently suffered by individuals undergoing drug-rehabilitation therapies in Laos: Reasons [159].

38    The Tribunal Member found that the first articulated fear was credible, noting the existence of independent clinical, and what the Tribunal described as, “suitably expert evidence”, confirming the applicant’s psychological symptoms, medication and recommended course of treatment to manage the symptoms. As to treatment in Laos for mental health symptoms, the Tribunal found the applicant was correct to feel fear and apprehension that those symptoms may not be dealt with at the level to which he has become accustomed in Australia as compared to Laos, and that the applicant rightfully fears harm as a result of that shortfall in his treatment. The Tribunal Member noted that it was not just the applicant who speaks of the limited mental health programs available in Laos, observing that the “Standard Q & A Report”, prepared by the Department of Home Affairs, forming part of the respondent’s supplementary tender bundle, identified that with a population of 7.2 million people, the extent of mental health providers in Laos was limited to two psychiatrists; two neurologists; one mental health nurse practitioner; 11 general physicians with some practical training in mental health; 16 nurses and technical staff; and 10 community health workers. Further, there was no psychologist or social worker working in the public sector services and only 35 mental health beds in the general hospital system: Reasons [160]-[161].

39    As to the second stated fear, the Tribunal Member recorded that there was credible, reliable and independently prepared contemporary reports speaking of violations and abuses suffered by individuals seeking drug rehabilitation in Laos. The Tribunal Member referred in particular to where the second of the two reports to which he referred says: Reasons [158], [162]-[163].

[w]hat is formally described as treatment and rehabilitation in reality constitute arbitrary detention following arbitrary arrest lacking due process guarantees or judicial oversight in a context with violence and abuse are commonplace.

40    The Tribunal Member concluded in relation to both articulated fears: Reasons [164]-[165]:

1.    While I accept that the Applicant may face a risk of harm in the form of either (1) a potentially dangerous shortfall in the level of care for his mental health and substance abuse symptomatology, and (2) from any participation in purported drug-rehabilitation in Laos, such risks are, by necessity, faced by the whole population of that country and will not necessarily be faced by the Applicant personally. While I accept a level of risk arising from the Applicant’s articulated fears of harm, I have difficulty in reaching a state of satisfaction that this Applicant’s particular circumstances are such as to differentiate the risk suffered by the Applicant compared to the risk faced by the general population of Laos sharing circumstances similar to the Applicant.

1.    While not satisfied that a non-revocation in the instant application will necessarily result in Australia breaching its non-refoulement obligations, I nevertheless accept that removal to Laos will result in a measure of hardship and possible harm to the Applicant. Such hardship could manifest in him not receiving sufficiently fulsome levels of care for his symptoms compared to what he has experienced in Australia and that he may suffer harm while participating in a course of drug rehabilitation.

41    The Tribunal Member then dealt with the consequences of non-revocation at [166]-[170] of their Reasons including that the applicant’s fear of harm may be ventilated in any future application for a protection visa on the basis of those issues having been ventilated in the application before him. The Tribunal Member referred to Part 2 of Ministerial Direction No 75 which governs a decision-maker’ s consideration in relation to refusal of protection visas:

In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.

1) The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.

42    At Reasons [172]-[173], the Tribunal Member set out his findings and allocation of weight to cl 9.1 of Direction 90 “International non-refoulement obligations” in the following terms:

1.    I have found that the Applicant’s articulated and propounded claims to fear harm upon a return to Laos are, to my mind, not sufficiently advanced to reach the threshold of an engaging whatever non-refoulement obligations Australia may owe him. I have also found that to the extent prolonged detention may be a possibility for the Applicant, this would result in a measure of harm or hardship for him.

1.    Overall, I am of the view (and I find) that the actual or possible hardship or harm the Applicant may experience from (1) certain of his claimed fear(s) of harm upon a return to Laos and (2) possible prolonged detention, are factors that attract a certain, but not determinative, level of weight in favour of revocation. This weight is outweighed by the combined weight I have attributed to Primary Considerations 1 and 4.

43    Thereafter, the Tribunal Member dealt with the remaining considerations in cl 9 of Direction 90. After summarising its conclusions, the Tribunal determined not to revoke the Visa cancellation: Reasons [208]-[211].

The Applicant’s submissions

44    The applicant submitted in his initial submissions that the Tribunal fell into jurisdictional error in its Reasons at [164]-[165] which I have set out above at [40].

45    The applicant starts by referring to the judgment of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 and his Honour’s consideration of the weight to be given to “other considerations”. That case dealt with Direction 65, now revoked, but the applicant submits it is equally applicable to Direction 90. I accept that submission.

46    The applicant relies on that part of his Honour’s judgment in Suleiman at [23] where he says:

… Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

Particular social group

47    The applicant refers to cl 9.1(1) of Direction 90 and the reference in that paragraph to the Refugees Convention, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights and its Second Optional Protocol (ICCPR) and the decision of the Full Court of this Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [118] (Kerr and Mortimer JJ) (Allsop CJ agreeing at [1]). In FAK19 the Court identified statutory modifications within the Act to the approach at international law as to which circumstances will lead to a person falling within Art 1A(2) of the Refugees Convention, such as to gain the protection of the non-refoulement obligations in Art 33 of the Convention.

48    Relying on Omar at [35]-[37], the applicant had submitted to the Tribunal that should he be removed to Laos, Australia would be in breach of its international non-refoulement obligations primarily because of the applicant’s fear of harm due to his mental health, as well as because of his drug addiction. Consequently, the applicant submitted that, although the submissions to the Tribunal did not state the basis upon which the fear of harm was based, given the Tribunal Member’s reasons at [164] where he said:

… I have difficulty in reaching a state of satisfaction that this applicant’s particular circumstances are such as to differentiate the risks suffered by the applicant, compared to the risks faced by the general population of Laos sharing circumstances similar to the applicant.

those claims arose under the Refugees Convention and the Tribunal was obliged to consider whether the applicant was a refugee by reason of “membership of a particular social group” as defined in Art 1A(2) of the Refugee Convention.

49    The applicant had not submitted before the Tribunal that he was a member of a “particular social group”.

50    As to what comprises a “particular social group”, the applicant refers to S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387 [36] (Gleeson CJ, Gummow and Kirby JJ) where their Honours identified what was required for the determination of whether a group falls within the definition of a “particular social group”:

… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.

(citations omitted)

51    The applicant submits that the Tribunal failed to address the first aspect of the enquiry, namely, whether Laotians sharing circumstances similar to the applicant constituted a particular social group. The applicant identifies two particular social groups: the first being those Laotians who suffer mental illness, and the second, Laotians addicted to drugs, and submits that people in each group are identifiable by the characteristic of one or other (or both) of these characteristics such that they comprise a “particular social group”.

52    Still further, the applicant submits that the Tribunal’s failure to address itself to the issue of whether the applicant was a part of a particular social group meant that it necessarily precluded itself from making a finding as to whether the applicant faced a real chance of persecution by reason of being a member of a particular social group or groups. That in turn involves the question of whether a law of Laos, by which he would be arbitrarily detained, was “appropriate and adapted” to achieving some legitimate objective of Laos: S v Minister for Immigration at [43]-[45] (Gleeson CJ, Gummow and Kirby JJ) referring to Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, (2000) 201 CLR 293:

43    The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]". These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.

44    In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory . Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.

45    The joint judgment in Chen expanded on these criteria:

"Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective."

That ultimate consideration points to the answer in the present case.

(Citations omitted)

53    In the applicant’s additional written submissions that were filed and served after the initial hearing but before Plaintiff M1/2021 was delivered, the applicant addressed the concept of persecution for reasons of membership of a particular social group and its application to this matter.

54    As to what comprises persecution for the purposes of the Refugees Convention, the applicant refers to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429-430 per McHugh J:

… The term "persecuted" is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted". The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment: … Nor is it a necessary element of "persecution" that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution: … Moreover, to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution: ... Thus the U.N.H.C.R. Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: … par. 151. In Oyarzo v. Minister of Employment and Immigration the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of "Convention refugee" in the Immigration Act 1976 (Can.), s. 2(1). The Court rejected the proposition that persecution required deprivation of liberty. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.

(Citations omitted)

55    The applicant also referred to the judgment of McHugh J in Applicant A v Minister for Immigration and Multicultural Affairs [1997] HCA 4; (1997) 190 CLR 225, 258, on the question of what constitutes persecution where his Honour said:

Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.

Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution . Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.

(Citations omitted).

56    The applicant submits that having accepted that the applicant faces a level of risk from participation in purported drug rehabilitation in Laos, the Tribunal should have found the treatment in drug rehabilitation centres constitutes serious harm and therefore “persecution” if done for a reason in Art 1A(2) of the Refugees Convention. The applicant submits that the applicant would not face treatment such as forced labour, incarceration, unsanitary conditions and sexual violence were he not a drug user and were it not possible that he may resume using drugs if returned to Laos. Further, the harm is neither “… appropriate and adapted to achieving some legitimate government objective of Laos” nor could the treatment meet the standards of “… civilised societies which seek to meet the calls of common humanity”: Chen Shi at [29] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

57    On that basis, the applicant submits the Tribunal failed to consider whether international non-refoulement obligations were owed to the applicant as a refugee by being a member of a particular social group and that by failing to do so, the Tribunal fell into jurisdictional error.

Applicant’s further submissions following the delivery of Plaintiff M1/2021

58    The applicant submits that the effect of Plaintiff M1/2021 includes that: [29]-[30]

29    Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.

30    Where the representations do include, or the circumstances do suggest, a claim of non refoulement under domestic law, again the claim may be considered by the decision maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

(Citations omitted – emphasis in original)

59    As a consequence, the applicant submits that if the Tribunal considers and makes findings on Australia’s enacted non-refoulement obligations and misconstrues the law in doing so, such an error goes to the decision-maker’s jurisdiction if the error is material in the sense described in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421 at [3], [45] (Bell, Gageler and Keane JJ).

60    The applicant referred to his submissions made to the Tribunal that Australia owed him international non-refoulement obligations, but that the circumstances put forward came within Australia’s domestic law to the extent that Australia’s international non-refoulement obligations had been enacted as a part of Australia’s domestic law, specifically a well-founded fear of persecution (s 5J(1)(a)-(b) of the Act), involving systematic and discriminatory conduct (s 5J(4)(c)) for the sole reason of his being a drug user (s 5J(4)(a)).

61    The applicant then submits that because of his mental health and his drug addiction (albeit he told the Tribunal he was no longer a drug addict), the applicant comes within the meaning of a “particular social group” within the meaning of s 5L of the Act.

62    On that basis, the applicant submits the Tribunal should have considered Australia’s international non-refoulement obligations to the extent they had been incorporated into Australian domestic law: ss 5L and 36 of the Act. The applicant submits that cl 9.1(1) of Direction 90 directs decision-makers to apply the provisions of the Act in considering non-refoulement obligations.

63    The applicant pointed to the Tribunal’s findings that the risk of harm faced by the applicant was also faced by the whole of the population of Laos and not just by the applicant personally, noting the Tribunal Member’s difficulty in reaching a state of satisfaction that the applicant’s particular circumstances are such as to differentiate the risk to the applicant compared to the risk faced by the general population of Laos sharing circumstances similar to the applicant.

64    The applicant also noted that the Tribunal Member, whilst not accepting that non-revocation would necessarily breach Australia’s non-refoulement obligations, nonetheless accepted that removal to Laos would result in a measure of hardship and possible harm to the applicant in the form of him not receiving sufficiently fulsome levels of care for his mental health symptoms compared to that which he might receive in Australia, and that he may also suffer harm from participating in a course of drug rehabilitation: Reasons [164], [165].

65    Although the applicant’s initial submissions were directed to Australia’s international non-refoulement obligations, by this submission, the applicant seeks to bring the same submission within Australia’s domestic law, specifically s 5J(1)(a)(b)(5) of the Act.

66    I reject that submission. It is clear that in the Reasons at [164]-[165], the Tribunal specifically found that the risks of harm in the form of either a dangerous shortfall in the level of care for the applicant’s mental health and substance abuse symptomology, and from any participation in drug rehabilitation, were risks that of necessity were faced by the whole population of Laos and not necessarily by the applicant personally.

67    Next, the applicant submits that the country information before the Tribunal: Reasons [157], [158], [163] suggests strongly that the detention of drug users in Laos is pursuant to law or policy of the Government: Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157, (2010) 190 FCR 23 [40] (Perram J, Moore J agreeing [1], Buchanan J contra):

40        In a case where a person applying for a protection visa claims to be a member of a particular social group which is persecuted by the operation of some criminal law, the approach to be taken by those deciding the visa application is well settled. First, the decision-maker must ask whether the particular social group claimed exists. Secondly, if the group exists then the decision-maker must ask whether the nominated criminal law discriminates against that group. This is necessary because unless the criminal law discriminates against the group then there can be no question of the group being persecuted by that criminal law. Thirdly, however, discrimination although necessary is not sufficient. If discrimination be shown the decision-maker must then ask whether the criminal law is appropriate and adapted to some legitimate object of the country in question. This is a two-pronged test requiring consideration both of the legitimate object identified as well as an assessment of whether the criminal law is appropriate and adapted to the achievement of that object.

68    The applicant submits that the Tribunal failed to address the first question, which is whether the particular social group exists. He submits the particular social group relied upon is drug users in Laos, which is a characteristic common to all members of the group and distinguishes people in it from people in society at large.

69    It is for the reasons I have set out above that I do not accept that submission. As I have noted, no submission was made to the Tribunal that the applicant formed part of a particular social group. Nevertheless, the Tribunal specifically found that the risks of harm faced by the applicant were of necessity faced by the whole population of Laos and not necessarily by the applicant personally.

70    Next, the applicant submits that because the Tribunal failed to address itself to the issue of whether people in the applicant’s position are members of a particular social group, that necessarily meant the Tribunal failed to consider whether the applicant faced a real chance of persecution by reason of his membership of the particular social group. That in turn, involves the question of whether the Law or Policy by which the applicant may be detained arbitrarily is one that is “appropriate and adapted” to achieving some legitimate objective of Laos. As to what is “appropriate and adapted”, in Chen Shi Hai, the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said: [28]-[29].

28    As McHugh J pointed out in Applicant A, the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]". Moreover, it is "[o]nly in exceptional cases ... that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution."

29    Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.

(citations omitted)

71    I do not accept the applicant’s submission. It proceeds on the basis that the applicant formed part of a particular social group within the meaning of s 5L of the Act. The Tribunal member found the laws and/or policy of Laos applies to the whole of the population.

72    Further, Plaintiff M1/2021 is clear authority for the proposition that where, as here, the representations before the Tribunal do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by a decision-maker under s 501CA(4) but they are not mandatory relevant considerations under that section. If, however, the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, the claim may be considered but a decision-maker under s 501CA(4) has, as one available outcome, the option to defer that assessment of whether the former Visa holder is owed non-refoulement obligations on the basis it is open to that former Visa holder to apply for a Protection Visa.

73    After referring to Minister for Home Affairs v Omar, the Tribunal Member alluded to this possibility when dealing with options available to the applicant should the non-revocation decision be affirmed. The Tribunal Member said: [169]-[171].

169.    Second, it is open to the Applicant to lodge an application for a Protection Visa. None of the relevant exclusionary sections of the Act, neither ss 48A or 501E apply to his circumstances. His standing to apply for a Protection Visa militates against a presumption that the consequences of a non-revocation decision in the instant application will necessarily result in either his removal from Australia or his indefinite detention. His claimed fear(s) of harm, while not reaching the threshold of engaging Australia’s non-refoulement obligations for the purposes of the instant application, will be ventilated in the conduct of any future application for a Protection Visa consequent upon a non-revocation decision in the instant Application.

170.    Accordingly, the Applicant’s fear(s) of harm will be ventilated in any future application for a Protection Visa due to those issues having been ventilated in the instant application. Ministerial Direction No 75 governs a decision-maker’s consideration in relation to refusal of Protection Visas. Part 2 of Direction No 75 makes it clear that:

“In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.

1) The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.”

71.    A future decision-maker dealing with a protection visa Application by this Applicant will not be bound by the findings and conclusions I have reached in determining the instant Application. Were this Applicant to apply for a Protection Visa – an entirely feasible scenario were he to be unsuccessful in the instant Application – he will have the opportunity to adduce more convincing and substantial evidence to support his propounded claims to fear harm upon to return to Laos.”

The Minister’s submissions

74    In the Minister’s initial submissions, it pointed to the fact that the Tribunal found the applicant had advanced claims that international non-refoulement obligations were owed to him: Reasons [141], and that had the applicant not advanced his international non-refoulement claims, the text, subject matter, scope and purpose of the Act are such that the Tribunal would not have been required to take into account the existence of such obligations as a mandatory consideration: Reasons [138], referring to Applicant S270/2019 v Minister for Immigration and Border Protection [34]-[36].

75    The Minister referred to cl 9.1(1) of Direction 90 and the reference in that clause to international treaties including the Refugees Convention. The Minister submitted, correctly with respect, that the question of whether Australia owes international non-refoulement obligations to the applicant is a different question from whether the applicant would be entitled to the grant of a protection visa, but that in any event, the Tribunal must still consider the applicant’s claims to fear harm: DOB18 v Minister for Home Affairs [2019] FCAFC 63 [185] (Robertson J) and Minister for Home Affairs v Omar [44].

76    That submission should be seen in context given the subsequent decision in Plaintiff M1/2021 but in any event, the Minister submits that the Tribunal determined correctly that the fear of harm by the applicant, both in relation to his mental health symptoms and also his potential illicit drug addiction, related not to the fact of him suffering from mental health issues and/or being an illicit drug user, but rather from the quality of services available in Laos for persons suffering from these issues. Consequently, the risk of harm the applicant feared was a risk faced by the Laotian population generally rather than by him personally. Nor, so the Minister submits, does that lack of ability to access the mental health care he requires mean that the applicant is part of a “particular social group”.

77    The same considerations apply to the applicant’s potential illicit drug addiction. In particular, the applicant was not at greater risk of mistreatment in rehabilitation because he was a drug addict.

78    In its further submissions made following the High Court’s decision in Plaintiff M1/2021, the Minister submits that before the Tribunal, the applicant made no representations about non-refoulement obligations referable to Australia’s obligations as enacted in the domestic law. That submission should be accepted. Further, the Minister submits that the Tribunal observed the applicant was able to apply for the grant of a protection visa during which the applicant “… will have the opportunity to adduce more convincing and substantial evidence to support his propounded claims to fear harm upon to return to Laos.” (sic)

79    On that basis, the Minister submits that if the Tribunal was not required to consider, as a mandatory relevant consideration, Australia’s international non-refoulement obligations, then any error by the Tribunal in addressing those representations cannot result in jurisdictional error. That submission should also be accepted. The High Court’s judgment in Plaintiff M1/2021 [29] makes that position clear. If unenacted international non-refoulement obligations are not mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error, then it follows that an error in consideration of those unenacted international non-refoulement obligations cannot amount to a jurisdictional error: Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82 [153]-[154] (Middleton and Wigney JJ).

Consideration

80    The Tribunal specifically referred to the applicant’s SFIC, and that the applicant’s risk of removal, pursuant to s 197C of the Act, was genuine and must be recognised by the Tribunal as a possible adverse outcome rising from a decision it makes. It noted that the SFIC contains a submission that such an outcome would constitute a breach of Australia’s non-refoulement obligations under the Refugees Convention which would in turn damage Australia’s international standing reputation: Reasons [143]-[145].

81    The Tribunal Member said that his understanding of the applicant’s written contentions on the issue of non-refoulement were contained in [35]-[37] of the applicant’s SFIC which is in the following terms: CB pp 545-546:

35.    The applicant contends the Tribunal should be satisfied that the risk of the applicant's removal under sl97C is real, as one of the legal consequences of this Tribunal adverse decision. That would be in breach of Australia's non-refoulement international obligations under the Refugees Convention which damages the Australia's international standing and reputation contrary to the Australia national interest.

36.    It is therefore submitted there is a distinction between the Australia's "non- refoulement obligations" and the Australia's "protection obligations" for the purpose of s36(2)(a) of the Act, should the applicant consider applying for a protection visa.

37.    The applicant further contends that the Tribunal should also be satisfied that whilst the existence of non-refoulement obligations does not preclude non-revocation of the mandatory cancellation of the applicant's visa, it does not equally preclude revocation of the cancellation. It is submitted the Tribunal should be "ready depart" (sic) from "applicable policy", where the applicant would also be subjected to s36(1C) of the Act which "plays a crucial role" in "Australia's non-refoulement obligations" and/or otherwise facing "the prospect of indefinite immigration detention". See Clause 9.1 (3) (5) of Direction 90.

(Citations omitted).

82    It is by reference to these paragraphs of the applicant’s SFIC that the Tribunal Member’s reference to an application for a protection visa may be understood: Reasons [166]-[171].

83    Further, as the Minister submitted correctly, there was no suggestion by the applicant before the Tribunal that he was entitled to the protection of non-refoulement obligations under Australia’s domestic law.

84    Had there been so, the Tribunal was entitled to defer that consideration to any application by the applicant for a protection visa: Plaintiff M1/2021 [30].

85    In any event, the Tribunal conducted a careful and detailed analysis of the applicant’s fear of harm and his consequent non-refoulement claim on the evidence before it: Reasons [143]-[150]. It identified the non-refoulement issues and analysed the applicant’s stated fears of harm which were: first, the applicant was concerned about the capacity of the health system in Laos to properly and effectively manage his mental health symptoms and difficulties with illicit drug addiction, and second, the fear of suffering abuse whilst participating in drug rehabilitation therapies in Laos: Reasons [156]-[160].

86    The Tribunal considered that the applicant’s fears were credible on both issues: Reasons [160], [162], [163]. However, the Tribunal formed the view that the risk or fear of harm identified by the applicant were not directed at the applicant alone but were faced by the whole population of Laos. The Tribunal member expressed his difficulty in reaching a state of satisfaction that the applicant’s particular circumstances are such as to differentiate the risk suffered by him compared to the risk faced by the general population of Laos sharing circumstances similar to the applicant: Reasons [164].

87    The Tribunal did not consider specifically whether the applicant was a member of a “particular social group” for the purposes of the Refugees Convention, however, as I have noted above, it was not submitted to the Tribunal that the applicant was in fact a member of a “particular social group”.

88    Given Plaintiff M1/2021, the Tribunal was not required to do so by reference to Australia’s unenacted international non-refoulement obligations. To the extent the representations included, or the circumstances suggested, a claim of non-refoulement under domestic law, the Tribunal in effect dealt with those submissions insofar as they reflected certain of the unenacted international non-refoulement obligations.

89    Nevertheless, as the Reasons make clear, the Tribunal Member did, in fact, consider whether the risk or fear of harm by the applicant was specific to the applicant or one shared by the entire Laotian population. It was for the detailed reasons the Tribunal Member set out that he found the latter.

90    There is no error in the Tribunal Member’s finding that the applicant is not a member of a “particular social group”.

91    I accept the Minister’s submission in relation to both of the applicant’s articulated fears that the applicant would not be targeted for mistreatment in Laos because he was suffering from mental illness and required mental health assistance in managing his symptoms, and/or is a drug addict who requires rehabilitation services per se but because of the standard of mental health care and/or drug rehabilitation services in Laos.

92    Similarly, I accept the Minister’s submission that there was no evidence before the Tribunal that indicated that drug addicts or people with mental illness were persecuted in broader Laotian society: See also BXT17 v Minister for Home Affairs [2021] FCAFC 9, (2021) 283 FCR 248 (Markovic, O’Callaghan and Anastassiou JJ).

93    Accordingly, I do not consider the Tribunal failed to consider lawfully issues raised by the submissions and the material before it. To the extent that the Tribunal did not consider Australia’s non-refoulement obligations forming part of the domestic law, whereas it did not explicitly do so, and was not asked to do so, in considering Australia’s international non-refoulement obligations, it addressed the same issues that would arise under the domestic law.

94    Further, the Tribunal Member specifically referred to the possibility of the applicant applying for a protection visa - an option the Tribunal Member had available to him: Plaintiff M1/2021 [30].

95    It is for these reasons that I do not consider the Tribunal made a jurisdictional error.

Conclusion

96    The application is dismissed.

Associate:

Dated:    22 August 2022