Federal Court of Australia

JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time dated 2 June 2021 be granted and the applicant be granted leave to rely on the draft amended originating application dated 14 October 2021.

2.    The originating application be dismissed.

3.    The applicant pay the respondents’ costs of the application, to be assessed in absence of agreement.

4.    The first respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

ROFE J:

Introduction

1    The applicant is a 33-year-old man who was born in South Sudan. He is of Dinka ethnicity. The applicant arrived in Australia as a 13-year-old in July 2002 on a Class BA Subclass 200 visa, along with his mother and siblings. The applicant’s Class BB Subclass 155 Resident Return visa was mandatorily cancelled due to the applicant’s substantial criminal record.

2    In this application filed 2 June 2021, the applicant seeks an extension of time in which to file an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The application for judicial review relies on a sole ground, being that the Tribunal erred in its construction of the law on non-refoulement obligations and complementary protection.

3    The Minister opposes the application for an extension of time on the basis that there are insufficient prospects of success for the proposed application. If the Court grants the extension, the Minister also opposes the application for review.

4    For the reasons below, I would permit the extension of time application but dismiss the substantive application.

Extension of time application

5    Section 477A(1) of the Act requires an application for review to be filed within 35 days of the date of the decision. This application was filed approximately three months out of time and therefore requires an extension be granted per s 477A(2).

6    In an affidavit dated 3 May 2021, the applicant explained the circumstances that caused the application to be filed out of time. He states that on 19 February 2021 he spoke with a lawyer from Victoria Legal Aid regarding a review of the Tribunal’s decision. The lawyer advised that they would provide the applicant with the necessary documents to file with this Court. Those documents were erroneously sent to the Christmas Island Immigration Detention Centre. At the time, the applicant was located at Yongah Hill Immigration Detention Centre. The applicant claims that the documents were never passed on to him, nor was the lawyer advised that the applicant was not located at Christmas Island.

7    When the lawyer from Victoria Legal Aid followed up with the applicant on 2 March 2021, the applicant explained he had never received the documents. Assisted by the lawyer, the applicant advises he then completed the application and asked the staff at the detention centre to send them to the Court registry. According to the applicant, the detention centre staff never did so as he later received correspondence from the Australian Border Force indicating he would be returned to South Sudan. Finally, the applicant was able to receive further assistance from Victoria Legal Aid to lodge his application with the Court, which was done so on 2 June 2021.

8    The applicant submits that an extension of time should be granted by the Court as he did everything within his power to file his application before the deadline. Further, once it had become clear that his first attempt at filing had been unsuccessful, the applicant took steps to ensure it was filed as soon as possible, with the assistance of Victoria Legal Aid. Finally, the delay is not “significant” and does not prejudice the Minister.

9    The Minister objects to the granting of an extension of time on the basis that the substantive application lacks sufficient merit. However, the Minister does accept that the applicant has provided an explanation for the delay (in the affidavit referred to above) and that no material prejudice is suffered if the extension is granted.

10    The Court may extend the 35 day time period for the filing of an application for review if it is satisfied that doing so is necessary in the interests of the administration of justice (s 477A(2)(b) of the Act).

11    When considering whether extending the time period for filing an application is in the interests of the administration of justice, the Court should turn its mind to the length of the delay, the explanation for the delay, any prejudice to the respondent and the merits of the substantive application: Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 at 310–311; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

12    As noted above, the Minister only opposes the granting of an extension of time on the basis that the substantive application lacks merit. However, the Court must take care not to carry out a detailed review of the merits of the proposed application when determining whether an arguable case exists for the purposes of the extension of time. Justice Wigney stated in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [49] that “it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time”.

13    Justice Mortimer similarly stated in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]:

The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48])…The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

14    With the assistance of pro bono counsel, Ms Gang, the applicant has presented his proposed grounds of application in a concise manner. Detailed submissions have also been filed expanding on these grounds. Using the language of Mortimer J above, the applicant can be said to have an “arguable” or “reasonably arguable” cause of action.

15    In the circumstances, I consider it appropriate in the interests of the administration of justice to grant an extension of time for the applicant to file an application for judicial review. Counsel for the applicant confirmed at the hearing that they rely on the draft originating application for review dated 14 October 2021. I will now turn to the substantive application.

The Tribunal Decision

16    The applicant was represented at the Tribunal hearing which took place on 14 and 16 October 2020 online. The Tribunal published its reasons affirming the delegate’s non-revocation on 27 January 2021.

17    There was no contest before the Tribunal that the applicant did not meet the character test.

18    The relevant part of the Tribunal’s decision commences at [301], where the Tribunal commences its consideration of the Other Considerations listed in Ministerial Direction No 79 (Direction 79).

19    From [302]–[399], the Tribunal addresses international non-refoulement obligations. Given the substance of the grounds of appeal, it is important to view this section in some detail.

20    The Tribunal began its consideration by providing a “legal overview”. The Tribunal quotes the relevant passages from Direction 79 at [302], then notes that Australia’s non-refoulement obligations have their roots in the Refugees Convention. However, the Tribunal then acknowledges that the definition of non-refoulement obligations in s 5(1) of the Act also encompasses the International Covenant on Civil and Political Rights and its Second Optional Protocol and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as any obligations in customary international law that are of a similar nature to those in the international instruments.

21    At [306]–[312], the Tribunal states several legal principles gleaned from the authorities. These include:

(a)    Australia’s non-refoulement obligations should not be conflated with Australia’s protection obligations imposed by the Act which are considered on an application for a protection visa under s 36: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [103]–[106];

(b)    Australia’s non-refoulement obligations are wider and more generous than the protection obligations arising under s 36: Ali v Minister for Home Affairs [2020] FCAFC 109 at [24]–[25];

(c)    A decision-maker must give “an active intellectual engagement with the matters raised… relating to the risk of harm”: Minister for Home Affairs v Omar [2019] FCAFC 188 at [40].

22    The Tribunal then provided an overview of the applicant’s submissions commencing at [313]. The Tribunal acknowledged that the applicant made clearly articulated claims seeking to engage non-refoulement obligations; and that its role was to assess if the removal of the applicant would breach those obligations (and if so, the consequences of that breach).

23    The Tribunal quotes from the applicant’s submissions in relation to Australia’s non-refoulement obligations and the impediments to the applicant upon his return to South Sudan at [315]. That “key” passage reads:

In summary, [JJNY] fears harm on account of the ongoing violence against the Dinka people in South Sudan as well as on account of his profile as a returnee and a person suffering from mental illness. He also fears that inadequate medical services will mean he will be unable to access the medical treatment that he needs for his mental health conditions, thus rendering him particularly vulnerable to other forms of harm.

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

•    His imputed political opinion on account of:

•    His Dinka ethnicity;

And/or

•    His race on account of:

•    His Dinka ethnicity,

And/or

•    His membership of the particular social groups:

•    Persons suffering mental ill-health;

•    Men at risk of forcible recruitment by armed groups;

•    Persons perceived to be wealthy in South Sudan;

•    Persons perceived to be foreign; and

•    Returnees from Australia.

Moreover, Article 3 of the CAT expressly prohibits refoulement to a place where there are substantial grounds for believing a person would be subjected to torture.

24    The Tribunal then noted country information provided by the applicant in support of his claims. The country information included reports from the United Nations Human Rights Council, Amnesty International, and Human Rights Watch (at [317]). The Tribunal acknowledged the applicant’s submissions and supporting country information in relation to the various claims made by the applicant extracted at [315] (and above). While I will not summarise each of these, some key considerations are set out below.

(a)    Dealing with the applicant’s claim that he would be targeted as a returnee or a person perceived as wealthy and/or foreign, the Tribunal quoted from DFAT Country Information reports and travel warnings at [321] and [323] indicating that violent crime is widespread in South Sudan. The Tribunal noted the applicant’s submissions that he would be considered a foreigner due to the length of his time in Australia and limited Dinka language skills, putting him at further risk of significant harm (at [322]).

(b)    The Tribunal noted submissions regarding the ongoing instability and insecurity in South Sudan. The applicant had submitted that, while a peace deal had been signed in 22 February 2020, there was still considerable instability (at [327]). The Tribunal noted reports of intercommunal violence dated after the peace deal (at [328]) and quoted from 2019 UNHCR and US State Department reports (at [330] and [331]).

(c)    The Tribunal noted that the DFAT Country Report advised that Dinkas would face a high degree of violence in conflict-afflicted areas, however, Dinkas face a low risk in Juba as the Dinka-dominated Government currently controls Juba (at [334]). The applicant’s representative acknowledged he would likely be returned to Juba but submitted that a “low” risk is still consistent with the “real chance” of harm test (at [335]).

(d)    The Tribunal noted the submissions and materials in support of the applicant’s claim of inadequate mental health treatment and stigma in South Sudan. The Tribunal quoted statistics from articles including that 99% of people in South Sudan requiring mental health treatment are unable to access treatment (at [337]); and there are only three practising psychiatrists and 29 psychologists in South Sudan (at [338]).

25    At [340]–[345], the Tribunal extensively quoted evidence given by the applicant at the hearing in examination and in cross-examination, as well as in his written statement dated 7 September 2020. The Tribunal particularly focussed on evidence about the applicant’s trip to South Sudan in 2012–13 for his sister’s wedding. The applicant’s evidence was that he was in South Sudan for some three months, during which time he stayed indoors at his brother-in-law’s family home.

26    From [346], under a heading entitled “are non-refoulement obligations triggered?”, the Tribunal outlines its consideration of the applicant’s claims and its conclusions on non-refoulement.

27    That section commences with the finding at [346]:

For the reasons outlined below, the Tribunal has formed the view that the Applicant’s claims are insufficiently advanced to reach the threshold of establishing that non-refoulement obligations are owed.

28    The Tribunal gives six reasons in support of that conclusion.

(a)    First, the Tribunal considered the applicant’s evidence regarding the situation in Sudan — including that it is more dangerous than in 2012–13 with the civil war having restarted — and other country information (from [347]). The Tribunal notes at [348] that the situation in South Sudan is different to how the applicant put it. The Tribunal notes reports that violence has continued since February 2020, but that the scale of violence has decreased and the peace accord and unity government are still in place (at [349]). The Tribunal also noted that it did not have any report relating specifically to Juba (at [350]).

(b)    Second, the Tribunal considered the applicant’s claim that he fears persecution as a Dinka from persons in the Nuer ethnic group (from [351]). The Tribunal acknowledges that the Dinka are the largest ethnic group in the country, comprising 35.8% of the population, while the Nuer ethnic group comprises just 15.6%. The Tribunal notes that the President is a Dinka, and the Vice President a Nuer. The government and armed forces are primarily of Dinka ethnicity (at [353]). Further, Juba in particular is under the control of the government, meaning it has relative stability (at [354]). Given the country information, the Tribunal concludes there is no credible evidence that suggest the applicant would be at risk of being targeted in Juba because of his Dinka ethnicity (at [355]).

(c)    Third, and relatedly, the Tribunal dealt with the applicant’s submission that he has a well-founded fear of persecution on account of his imputed political opinion arising from his Dinka ethnicity (from [359]). The Tribunal concluded at [362] that, for similar reasons, it was not satisfied that the applicant would face any real risk of being targeted on the basis of his ethnicity, particularly in Juba.

(d)    Fourth, the Tribunal held there was no evidence (given the changed situation since 2020) that the applicant would be at risk of being forcibly conscripted into Dinka militia or into the Army (from [363]). The reports relied on by the applicant dated back to 2015, so the Tribunal at [365] accepted the respondent’s submission that the country information did not support the applicant’s claim.

(e)    Fifth, the Tribunal considered the applicant’s claim that he would be at risk of harm if he is returned to South Sudan because he would be perceived as wealthy and a foreigner (from [366]). The Tribunal accepted that crime is rampant in Juba and that foreigners are often targeted, quoting the DFAT Country Report at [367]. However, the Tribunal said the applicant had not provided evidence as to why he would be targeted as a returnee from Australia, given his appearance would not differentiate him from other Dinka people in South Sudan (at [368]). The Tribunal noted at [369] the applicant had not faced harm during his time in Juba in 2012–13, and did not accept his evidence that he did not leave his brother-in-law’s family home during the time. Finally, the Tribunal acknowledged that while there is a law and order problem in South Sudan, the problem is generalised and there was no evidence that the applicant would be put at a greater risk than any other person (at [370]).

(f)    Sixth, the Tribunal considered the applicant’s claims regarding inadequate mental health treatment (from [371]). The Tribunal noted the applicant’s paranoid schizophrenia diagnosis at [372], and at [373] accepted that South Sudan would not have the same level of medical care as Australia. However, the Tribunal concluded at [374] that while the standard of care would be different to Australia, there was no evidence that the applicant would be denied care in Juba, or that he would receive any worse care than any other citizen of South Sudan (noting that, with financial assistance from family in Australia, the applicant may be better placed).

29    The Tribunal concluded this part of the reasons by noting some other findings. At [375], the Tribunal noted that the applicant would not have the same support network if he was returned to South Sudan, but said there was nothing in evidence to suggest the applicant would be incapable of developing alternative networks. Relatedly, the Tribunal acknowledged that removal would involve immediate hardship and a degree of trauma for his family (at [378]). At [376]–[377] the Tribunal stated:

The evidence presented supports the proposition that to the extent that the Applicant may face any risk of harm in South Sudan due to the current state of security in that nation, such risk of harm is no greater than that faced by the population generally. In short, the Applicant will not be placed in a more precarious position than the general population.

Further, the evidence presented also supports the proposition that the general security position in South Sudan has improved following the February 2020 peace accord and the formation of a national unity government.

30    At [379], the Tribunal concluded:

However, I am not satisfied that a non-revocation decision will result in Australia breaching its non-refoulement obligations, and find accordingly.

31    From [380], the Tribunal commenced a section titled “consequences of non-revocation”. In this section, the Tribunal considers the consequences of not revoking the cancellation decision in light of the fact that the applicant is owed non-refoulement obligations.

32    This section commences:

As explained above, the Tribunal accepts that the Applicant is a person with respect of whom Australia owes non-refoulement obligations. However, the Tribunal has found that the general nature of the claims made by the Applicant are not of a nature or level that meets the standard required to trigger non-refoulement obligations.

33    At [382], the Tribunal set out the applicant’s claims that a breach of Australia’s non-refoulement obligations would:

(a)    adversely impact on the Applicant’s personal safety;

(b)    bring Australia into disrepute and comprise [sic] its global standing, and is therefore contrary to the national interest;

(c)    is contrary to Australia’s unequivocal, clearly articulated policy position; and

(d)     contrary to the dictates of good government.

34    At [385], the Tribunal accepted that having acknowledged the applicant as a person to whom Australia owes non-refoulement obligations, it is its task to meaningfully consider the applicant’s submissions regarding the consequences of breach, as the applicant put that “Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law” (quoting Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]).

35    In response to the applicant’s four claims extracted above, the Tribunal made the following findings.

(a)    The Tribunal reiterated at [386] that it did not accept that the applicant’s personal safety would be any more adversely affected than any other person in South Sudan. Noting again its finding the security situation had stabilised since February 2020, the Tribunal found “the applicant’s return to that country would not result in him being exposed to safety concerns which would trigger a breach of international obligations”.

(b)    At [387], the Tribunal said the applicant had provided no material in support of the suggestion that the deportation of the applicant to South Sudan would bring Australia into international disrepute. The Tribunal acknowledged that if Australia breached its obligations with respect to refugees, it would accept the proposition, but, given its findings, there would be no breach and therefore Australia’s reputation would not be adversely affected.

(c)    At [388], the Tribunal agreed with the applicant’s proposition that a breach of non-refoulement obligations would be contrary to Australia’s clearly articulated policy position. However, flowing on from the reasons given, the Tribunal had not identified a breach so there would be no actions contrary to Australia’s policy position.

(d)    Finally, at [389], the Tribunal agreed with the proposition that a breach of Australia’s non-refoulement obligations would be contrary to the dictates of good government, but said there was no material before it to permit such a finding in this case.

36    At [390]–[391], the Tribunal quotes from Direction 79 the passage reiterating that Australia will not remove a non-citizen as a result of a visa cancellation to a country where a non-refoulement obligation exists, and noted that nothing suggests that commitment would not be honoured.

37    From [392]–[396], the Tribunal also noted that the applicant can apply for a protection visa, in which case there will be an updated assessment concerning current conditions in South Sudan as well as the applicant’s personal circumstances. The Tribunal rejected the applicant’s submission that, in practical terms, an unfavourable decision would be an impediment to the applicant being granted a protection visa. The Tribunal said that any future decision-maker considering an application for a protection visa would not be bound by its findings, and would simply perform the statutory task with the material before it.

38    At [397], the Tribunal concluded: “Viewed from this prism, therefore, the Tribunal finds that there will be no breach of Australia’s international law obligations”.

39    Finally, at [398]–[399], the Tribunal gave its overall conclusion on the international non-refoulement obligation consideration of the Other Considerations in Direction 79. It assigned that consideration neutral weight, due to its conclusion:

Based on the evidence presented, the Tribunal finds that whilst the Applicant is owed non-refoulement obligations, the material before the Tribunal does not meet the standard required for such obligations to be triggered.

40    Ultimately, the Tribunal concluded that the ongoing risk the applicant poses to the Australian community outweighs all the other considerations in his favour and affirmed the decision under review.

Ground 1

41    The applicant puts forward one ground of review with six sub-grounds. In its entirety, the ground of application takes issue with the Tribunal’s construction of the law on non-refoulement obligations and complementary protection.

42    The ground of review reads as follows:

(1)    The Tribunal erred in law in misconstruing the relevant law on non-refoulement obligations and complementary protection.

(a)    The Tribunal did not enter into an active intellectual engagement of the Applicant’s submissions on subjective “fear” in s5H(1) of the Migration Act 1958.

(b)    The Tribunal misapplied the law in relation to the “real chance” element to establish non-refoulement obligations in s5J(1)(b) of the Migration Act 1958.

(c)    The Tribunal misapplied the law by failing to consider the “real chance” element by way of cumulation of grounds, amounting to a failure in active intellectual engagement in the Applicant’s submissions.

(d)    The Tribunal misapplied the law relating to potential breach of international obligations as a factor in “national interest”.

(e)    The Tribunal misapplied the law in relation to “complementary protection” in s36(2)(aa) of the Migration Act 1958.

(f)    The Tribunal misconstrued the element of “breach” of non-refoulement obligations.

Principles

43    Before dealing with the substance of the application, it is helpful to set out the principles regarding the Tribunal’s role in assessing non-refoulement obligations in the context of Direction 79.

44    Where a person’s visa is mandatorily cancelled under s 501(3A) of the Act because they do not pass the character test, s 501CA(3) provides that the Minister must give that person written notice of the decision and invite the person to make representations to the Minister about the revocation of that decision. Section 501CA(4) provides that the Minister may revoke the cancellation decision after representations have been made if the Minister is satisfied that either the person does pass the character test, or that there is another reason why the original decision should be revoked.

45    Under s 499, the Minister may give directions to a person or body having functions or exercising powers under the Act. A person having functions or exercising powers under the Act must comply with a direction made under this section (s 499(2A)). At the relevant time, Direction 79 was in force in relation to mandatory cancellation under s 501CA.

46    When considering whether there is “another reason” why a cancellation decision should be revoked, decision-makers must take into account both the Primary Considerations and Other Considerations outlined in Direction 79. Direction 79 identifies three Primary Considerations, which should generally be given greater weight than the five (non-exhaustive) Other Considerations. International non-refoulement obligations are identified at paragraph 14 of Direction 79 as being one of the “Other Considerations”.

47    In relation to international non-refoulement obligations, subparagraph 14.1 of Direction 79 reads:

(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.

…

(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).

…

48    As Direction 79 identifies, Australia’s non-refoulement obligations arise under several international instruments:

(a)    the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together, the Refugees Convention);

(b)    the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and

(c)    the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

49    As Direction 79 also states, the Act interprets Australia’s obligations under those instruments. Direction 79 requires that decision-makers follow the tests enunciated in the Act where relevant.

50    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1), the High Court addressed at [18] that Australia’s non-refoulement obligations to the extent enacted as domestic law are addressed in provisions in the Act concerning the grant of protections visas. The Court (per Kiefel CJ, Keane, Gordon and Steward JJ) observed at [20]:

Australia's international non-refoulement obligations, as distinct from the criteria for the grant of a protection visa, are addressed separately and later in the scheme of the Migration Act in the context of removal. That distinction is important. In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter the domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.

51    Section 36 outlines the criteria for the grant of a protection visa. Relevantly, two criteria under s 36 are that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia owes protection obligations because that person is a refugee under s 36(2)(a) (giving effect to the Refugees Convention); or, if the person does not satisfy the refugee criterion, the person meets the complementary protection criteria in s 36(2)(aa) (giving effect to some other international non-refoulement obligations under other instruments such as the CAT and ICCPR): DQU16 v Minister for Home Affairs [2021] HCA 10 (DQU16) at [1]; Plaintiff M1 at [18].

52    The assessment of a “refugee” for the purposes of s 36(2)(a) is informed by the definitions in ss 5H and 5J, which enshrine certain principles from the Refugees Convention. Section 5H provides that a person is a refugee if they are outside of the country of their nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. Section 5J defines a “well-founded fear of persecution”, which, relevantly, a person is said to have where (a), the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b), there is a real chance that, if returned, the person would face persecution for one of those reasons.

53    The assessment of a whether a person is a “refugee” therefore comprises both a subjective and an objective element. That is, the person must hold a subjective fear of persecution, and that fear must be well-founded in an objective sense.

54    As noted above, the complementary protection criterion in s 36(2)(aa) engages non-refoulement obligations under the ICCPR and the CAT, by which Australia agreed not to return a non-citizen to a receiving country where they would be subjected to the death penalty, arbitrarily deprived of their life or subjected to torture or cruel, inhuman or degrading treatment or punishment: DQU16 at [12]. The terms of ss 5H and 5J are not relevant to an assessment of these obligations. The assessment instead turns on the criteria of whether or not there is a real risk that a person will suffer significant harm as a result of being removed from Australia to a receiving country. The concept of “significant harm” is defined in s 36(2A), which provides:

(2A)     A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

55    The complementary protection regime in s 36(2)(aa) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth). The Full Court of this Court explained the complementary protection regime in the context of s 36 in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18]–[20]:

18     The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.

56    In Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, the Full Court confirmed that the “real risk” test in s 36(2)(aa) is the same test as the “real chance” test in s 36(2)(a) (Lander and Gordon JJ at [232]–[246]; Besanko and Jagot JJ at [297]; Flick J agreeing).

57    I have set out those principles above as the applicant relies on them in his submission that the Tribunal fell into error by misapplying or misconstruing the law relevant to various provisions of the Act. However, I also note at this stage that an exercise of the statutory power conferred by s 501 of the Act does not require the same analysis that would be required if a person applies for a protection visa and s 36 is invoked: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Ayoub) per Flick, Griffiths and Perry JJ at [28].

58    Since the hearing of this matter, the High Court has addressed how decision-makers are to assess non-refoulement obligations in the context of Ministerial Direction No 65 (the immediate predecessor to Direction 79) in Plaintiff M1, a case involving a decision pursuant to s 501CA(4) not to revoke a visa cancellation. While the circumstances were not completely analogous, several principles emerging from that case are relevant to the determination of the present case.

59    In the majority judgment of Kiefel CJ, Keane, Gordon and Steward JJ, their Honours found that where an applicant makes representations raising potential breaches of Australia’s non-refoulement obligations in response to an invitation under s 501CA(3), the decision-maker must read, identify, understand and evaluate those representations: Plaintiff M1 at [9].

60    Before descending into the specifics of that particular case, the majority in Plaintiff M1 summarised the correct approach to non-refoulement at [28]–[30], depending on whether and what representations were made by the applicant. In the circumstances relevant to this case, where the applicant has made representations claiming non-refoulement obligations under domestic law, the approach set out was:

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.

Consideration

61    Before addressing the various sub-grounds, I would comment that the Tribunal’s reasons demonstrate a thorough grappling with the applicant’s representations regarding international non-refoulement obligations, consistent with the Tribunal’s role as expressed in the authorities above. The Tribunal has not misconstrued its task, and has given thorough consideration to the representations made by the appellant. The Tribunal acknowledged it was open to the applicant to apply for a protection visa at [392]–[396], and that such a course of action was not prevented by ss 48A or 501E of the Act. The Tribunal observed that if the applicant chose to apply for a protection visa, the matter would be re-ventilated and the decision maker would not be bound by the findings made and conclusions reached by the Tribunal. Nevertheless, the Tribunal still gave consideration to the claims relating to non-refoulement.

62    I will now consider the various sub-grounds.

63    In oral submissions, the applicant indicated that sub-grounds (a) and (e) could be considered together.

64    By sub-ground (a), the applicant submits the Tribunal erred by only considering the applicant’s objective fear, and not considering the applicant’s subjective fear of persecution. Counsel for the applicant submits that the Tribunal was required to consider the applicant’s subjective fear as part of assessing whether the applicant was a “refugee” within the meaning of s 5H(1) of the Act.

65    By sub-ground (e), the applicant submits that the Tribunal misapplied the law relating to complementary protection set out in s 36(2)(aa) of the Act. The applicant contends that the Tribunal failed to consider complementary protection, despite it being raised by the applicant in his Statement of Facts, Issues and Contentions, the respondent’s Statement of Facts, Issues and Contentions, and in the delegate’s decision.

66    I accept the respondent’s submission that it is open for the Tribunal to approach an assessment of international non-refoulement obligations “generally”. Counsel for the applicant has not pointed to any authority that requires the Tribunal to apply and come to a conclusion on the bodies of law under ss 5H and 36. Given the statutory scheme, it is not necessary for the Tribunal to engage in a granular analysis of each statutory provision. The Tribunal’s reasons at [306]–[312] show its understanding that Australia’s non-refoulement obligations are not to be conflated with considerations for a grant of a protection visa under s 36. As the Full Court said at [28] in Ayoub, the analysis required by the Tribunal is not the same as an analysis that would be required in an application for a protection visa.

67    Furthermore, I accept the respondent’s submission that, even if the Tribunal were required to consider the applicant’s subjective fear, it would not have been necessary in the present case given the Tribunal’s findings on the objective elements. In other words, given the Tribunal was not satisfied that the applicant faced a real risk or real chance of persecution, considering whether or not he had a subjective fear would have taken the case no further.

68    I also reject the applicant’s submission that complementary protection was not considered. Even though the consideration may not have been explicitly signposted, the Tribunal’s lengthy discussion of the risk of harm showed that it was considering the issue of complementary protection throughout its reasons.

69    Sub-grounds (a) and (e) must fail.

70    Similarly, by sub-ground (b), the applicant submits the Tribunal erred by misapplying the law in relation to the “real chance” test (or the objective element to refugee criteria) outlined in s 5J(1)(b) of the Act. More specifically, counsel submitted that the Tribunal was required to consider whether there was any readily foreseeable change to the political situation in South Sudan. It is submitted that given the long term nature of the conflict in South Sudan, the Tribunal should have been on notice as to the likelihood of changes in circumstance. The applicant states that the Tribunal could have informed itself of such matters, and erred in law in not turning its mind to readily foreseeable changes.

71    I reject that submission.

72    First, I again note that the Tribunal is not required to perform a full assessment of whether the applicant was owed protection obligations. The task may be different when assessing a claim under s 65 of the Act, but the Tribunal’s assessment of the chance of harm to the applicant was sufficient for its task under s 501CA.

73    Second, the Tribunal’s reasons show that it did indeed turn its mind to the current situation in South Sudan in its assessment of country information. While it did not look to the future, in its reasons it considered recent developments including the 2020 peace accord and contemplated how the situation may have recently changed, and what that might mean for the applicant if he were to return.

74    Third, this ground essentially seeks merits review. The applicant’s submission is that the Tribunal should have found that the conflict in South Sudan might revive and that would mean there was a real chance of harm to the applicant. The Tribunal’s reasons canvas recent developments in South Sudan, and it could be inferred that the Tribunal sees that the situation has been improving. Absent any evidence of external factors detracting from the political and security situation, it appears the Tribunal accepts there has been some improvement. The applicant is essentially asking for the Tribunal to come to a different conclusion.

75    Sub-ground (b) must also fail.

76    By sub-ground (c), the applicant claims the Tribunal failed to consider the applicant’s claimed grounds of risk cumulatively. The applicant claims to be owed non-refoulement obligations on a number of grounds, not just due to his Dinka ethnicity. In reaching its decision, the applicant submits the Tribunal should have considered all of these grounds cumulatively and determined whether their combined effect of harm amounts to “serious harm”. The applicant states that he faces a real chance of persecution due to his Dinka ethnicity and as a seriously mentally ill person at risk of forcible recruitment, a person perceived to be wealthy, foreign and a returnee from Australia.

77    In response, the respondent submits that having considered and rejected each individual claim, the Tribunal was not required to undertake a separate, cumulative analysis that could not have produced any different result. The respondent quoted the Full Court in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34]:

It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.

78    I accept the respondent’s proposition and the logic of the Full Court. The Tribunal variously found that there was no evidence the applicant would be targeted because of his Dinka ethnicity (at [355]); that it was not satisfied the applicant would face any real risk of being targeted due to his ethnicity and any imputed political opinion (at [362]); that the security situation had changed since the peace accord in 2020 (at [349]); that despite having spent time in Australia, the applicant did not face any greater risk than any other person of being targeted for being perceived to be wealthy (at [370]); and that the applicant would not receive any worse mental health care than any other citizen of South Sudan (at [374]).

79    Given that the Tribunal essentially concluded that none of the claims put forward by the applicant could establish any risk of harm, then no amount of cumulative consideration would be capable of producing a different result.

80    The applicant refers to several matters which he submits are capable of supporting the existence of non-refoulement obligations. These include his mental health, law and order problems, and the health system in South Sudan. The Tribunal addressed these matters, and made findings about the risk of harm faced by the applicant. The applicant’s submission again impermissibly seeks merits review.

81    Sub-ground (c) is not made out.

82    Sub-ground (f) contends that the Tribunal “appears to adopt differing interpretations of the element of ‘breach’ of non-refoulement”. The applicant extracts several instances where the Tribunal has used the word “breach”, and submits it is not clear what the Tribunal means, therefore the Tribunal has not correctly interpreted a breach of non-refoulement obligations. The extracted passages are:

(i)     “I am not satisfied that a non-revocation decision will result in Australia breaching its non-refoulement obligations, and find accordingly.” [379]

(ii)     “the Applicant’s return to [South Sudan] would not result in him being exposed to safety concerns which would trigger a breach of international obligations.” [386]

(iii)     “If Australia acted in breach of its international treaty obligations with respect to refugees then the Tribunal would accept the proposition put by the Applicant. However, for the reasons outlined above, the Tribunal has found that there has not been any breach of such obligations in this matter.” [387]

(iv)     “the Tribunal agrees that a breach of Australia’s non-refoulement obligations would be contrary to Australia’s unequivocal and clearly articulated policy position. However, for the reasons articulated below the Tribunal does not find that Australia is in breach of those obligations.” [388]

(Applicant’s emphasis.)

83    Whilst I accept the applicant’s submission that non-refoulement obligations are breached by the return of a person with protection claims to the country of reference, I do not accept the applicant’s submission that the Tribunal erred in misconstruing the element of breach.

84    All the Tribunal is saying in each of the passages extracted by the applicant is that, given its finding that the applicant would not face a real risk of harm in South Sudan, there would be no breach of non-refoulement obligations if it were to make a non-revocation decision. As the respondent submits, in each of the instances above the Tribunal is saying that to return the applicant would not place him at a real risk of harm, meaning that it would not amount to refoulement.

85    Sub-ground (d) is also linked. The applicant argues that the Tribunal misapplied the law by not considering a potential breach of international obligations as a factor in the national interest. The applicant submits that the Tribunal’s conclusion at [387] — that there was no material before it to support the proposition that the deportation of the applicant to South Sudan would bring Australia into international disrepute — was inconsistent with the authority in CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 (CWY20).

86    As discussed in relation to sub-ground (f) above, the Tribunal found that a non-revocation decision would not breach non-refoulement obligations, given the Tribunal had found the applicant did not face a real risk of harm in South Sudan. It flows that, as there would be no breach of non-refoulement obligations, Australia would not be brought into international disrepute. The Tribunal did not err by failing to make a finding about the standing of Australia, as it had not identified any non-refoulement obligations owed to the applicant in the first place.

87    Further, as the respondent submits, CWY20 deals with a different situation and is not applicable to this case. In CWY20, the Minister had accepted that non-refoulement obligations were owed, and the refusal of the applicant’s visa application would render the applicant liable to removal notwithstanding the non-refoulement obligations. The question of whether the Minister had properly considered the potential impact of removal on Australia’s international reputation arose in that context, which is quite different to the present.

88    Sub-grounds (f) and (d) must also fail.

Other matters

89    During oral submissions, counsel for the applicant referred several times to irrationality. As can be seen from the ground of review extracted above, the case was not pleaded on a ground of irrationality. The sole ground relates to a misconstruction or misapplication of the law. I have proceeded on the basis of the ground stated in the notice of appeal.

90    Some reference was made to the seemingly contradictory statements in the Tribunal’s reasons at [346], [380] and [398], where the Tribunal found that the “applicant is a person with respect of whom Australia owes non-refoulement obligations”, but that the “nature of the claims made by the applicant are not of a nature or level that meets the standard required to trigger non-refoulement obligations”. I acknowledge that there appears to be an initial element of internal inconsistency in these statements. However, when this earlier statement is read in the context where the Tribunal had found the applicant did not face a risk of harm, I accept the respondent’s reading of these paragraphs as meaning that a return to South Sudan would not amount to refoulement. To do otherwise would be to read the Tribunal’s reasons with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Conclusion

91    For the reasons above, this application must fail.

Associate:

Dated:    18 October 2022