Federal Court of Australia

MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant do pay the first respondent's costs of the application to be assessed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant was born in what is now South Sudan. As a very young child he left Sudan and spent eight years in a refugee camp in Uganda. As a 9-year-old he was granted a humanitarian visa and since then has lived in Australia. He is now aged in his mid-twenties. In 2018, his humanitarian visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) when he was sentenced to and commenced serving a term of imprisonment of more than a year. He made representations seeking the revocation of the cancellation of his visa in the exercise of the power conferred by s 501CA(4). After various administrative and judicial determinations, his case was reconsidered by the Administrative Appeals Tribunal. The Tribunal affirmed the decision of a delegate of the Minister not to revoke the cancellation of his visa. The applicant now seeks review of the Tribunal's decision on the basis of alleged jurisdictional error.

2    The applicant advances a single ground of review. It concerns an alleged failure by the Tribunal to comply with 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA' (Direction).

3    The Direction was given by the Minister pursuant to s 499. It provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan and Colvin JJ, Derrington J agreeing); and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing). As I explained in CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [29]-[30]:

Section 499 does not authorise the making of a direction that would require a decision-maker to act contrary to the requirements of the Migration Act: s 499(2). Therefore, the terms of the Direction should be approached on the basis that they are intended to conform to the limits of the power conferred by s 499. As s 501(1) [and equally the evaluation for the purposes of s 501CA(4) as to whether there is 'another reason' to revoke the visa cancellation] is not hedged by any mandatory considerations, any direction that purported to confine the exercise of that power in a manner that required the discretion to be informed by particular matters and not others irrespective of the circumstances would be inconsistent with the nature of the discretionary power.

The above matters are reflected in the manner in which the identified considerations are expressed. In each case, the decision-maker is required to take those considerations into account 'where relevant'. Further, the provisions of the Direction that are concerned with the weight to be given to primary and other considerations operate in circumstances where it is for the decision-maker to identify whether a matter is a relevant and appropriate matter to be brought into account as part of the deliberation as to whether to exercise the power. The Direction states expressly that in applying the considerations identified in the Direction, being 'both primary and other', the decision-maker should give appropriate weight to 'information and evidence from independent and authoritative sources': para 7(1). Further, the direction is that primary considerations 'should generally' be given greater weight than other considerations.

4    For present purposes, we are concerned with whether the Tribunal complied with para 9.1(6) of the Direction. It forms part of a section in the Direction that is headed 'Other considerations'. The section begins by stating that in making a decision 'other considerations must also be taken into account, where relevant, in accordance with the following provisions'. It then states that the other considerations 'include (but are not limited to)' various listed matters, the first of which is 'international non-refoulement obligations'.

Paragraph 9.1 of the Direction

5    The next provision in the Direction is headed 'International non-refoulement obligations'. It begins by describing what is meant by that term in the following way (para 9.1(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. …

6    Paragraph 9.1 then goes on to refer to the sources of those obligations and the fact that Australia's interpretation of non-refoulement obligations and the scope of those obligations that Australia is committed to implementing should follow the tests enunciated in the Migration Act. This is a significant aspect to bear in mind when considering the following paragraphs.

7    The balance of para 9.1 of the Direction is as follows:

(4)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)    International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)    It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)    Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(emphasis added)

8    The focus of the competing contentions in the present proceedings concerned what was meant by 'claimed harm' in para 9.1(6) in the passage emphasised in the above quotation. These contentions are considered below.

The applicant's claim of harm before the Tribunal

9    Before the Tribunal, the applicant claimed to be at risk of harm if his visa cancellation was not revoked and he was returned to South Sudan. The Tribunal summarised his claim in the following terms (which are not contentious for present purposes) (para 54):

The applicant made representations concerning risk of harm in South Sudan. He said he was scared of being removed to South Sudan where he might get killed because of the war. He would be homeless and have no family or social support because he does not know anyone in South Sudan. As a returnee from the west with perceived wealth, the applicant claimed he would be a target.

10    The Tribunal dealt with these claims by:

(1)    Finding the applicant had clearly raised claims that may give rise to non-refoulement obligations (para 53, first sentence).

(2)    Deferring substantial assessment of non-refoulement issues (para 53, third sentence).

(3)    Considering his claimed fear of harm as a separate 'other consideration' (para 47).

(4)    Finding as follows as to the circumstances in South Sudan (para 57):

There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status. The applicant would be at risk of harm from ethnic violence because he is of the ethnic group of Acholi. He may be targeted for his perceived wealth as a western returnee. He may be conscripted as a soldier.

(5)    Concluding that the applicant's concerns as to serious harm if removed to South Sudan weighed heavily in favour of revocation of the visa cancellation (para 58).

The applicant's ground of review

11    The applicant seeks review for alleged jurisdictional error on the basis that the Tribunal misapplied or misconstrued para 9.1(6) of the Direction in dealing with the applicant's claims of harm in the manner that it did. The review ground is based upon a contention that 'claimed harm' in para 9.1(6) refers to harm that is claimed to be of a kind that gives rise to a non-refoulement obligation. This is said to be so because the whole of para 9.1 is concerned with harm of that kind. The applicant says that, on a proper reading of para 9.1(6), where an applicant makes a credible claim of harm of a kind that may give rise to a non-refoulement obligation, the decision-maker may assume that the harm gives rise to such an obligation and make a decision on that basis.

12    The gravamen of the contentions advanced in support of the ground are as follows:

(1)    The reference in para 9.1(6) to the Tribunal not being required in every case 'to make a positive finding whether claimed harm will occur' and that in an appropriate case the Tribunal 'may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis' should be read as referring to the specific type of harm that may give rise to a non-refoulement obligation.

(2)    In any case where the Tribunal decided to defer consideration of the question whether there were international non-refoulement obligations, the Tribunal was required to turn its mind to whether it was appropriate to assume in the applicant's favour that the claimed harm would give rise to that obligation and make a decision on that basis.

(3)    The Tribunal failed to turn its mind to that question and instead deferred the substantial assessment on non-refoulement issues on the basis that it could, in effect, choose that course without making any assessment by reference to the particular circumstances as to whether that was course was appropriate.

(4)    In the alternative to (3), if the Tribunal did turn its mind to that question it failed to give effect to the terms of para 9.1(6) which required such a determination to be made taking account of the nature and quality of the claims raised.

The position of the Minister

13    The Minister says that the reference to 'claimed harm' is to the factual allegation of harm, not whether the risk of harm gives rise to a non-refoulement obligation. In support of that position, the Minister says that the Direction cannot require the question as to whether a person is owed non-refoulement obligations to be determined on the basis of an assumption because that would be inconsistent with the Migration Act which requires a factually intensive and complex inquiry involving many dimensions in addition to whether there is a risk of harm if the person is returned. In effect, so it was submitted, the applicant's construction would contemplate the decision-maker assuming that the applicant was owed protection obligations without going through any considerations of the requirements that had to be met in order for that to be the case.

14    The Minister says that the applicant's construction should be rejected because it would assume that the applicant has the status of a refugee for the purposes of considering (in the present case) whether to revoke the cancellation of the applicant's visa when a person can only have that status if so assessed in accordance with the Migration Act. It was submitted that it would be contrary to the legislation (effectively an assumption as to the legal status of a person who seeks the revocation of a visa cancellation decision) to make an assumption to that effect for the purposes of considering whether to revoke the cancellation of a visa.

15    No issue is taken with the Tribunal's reasoning addressing whether there was a risk of harm.

Meaning of 'claimed harm'

16    Both parties submitted that the Direction should be interpreted in accordance with usual principles of statutory construction. Perram J has expressed the view that as a species of delegated legislation, instruments under s 499 are to be interpreted in accordance with general principles relating to statutory construction: Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497 at [26]-[31].

17    However, as observed by Jackson J in Meyrick v Minister for Home Affairs [2020] FCA 677 the character of a direction made under s 499 of the Migration Act is 'not abundantly clear': at [74]. There are difficulties in determining whether it is administrative or legislative in character: Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 at [58] (Kenny and Mortimer JJ, Dowsett J agreeing). That said, the Direction is an instrument of policy and there is much to be said for the view expressed by Robertson J in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [54]:

To summarise, in my opinion the Direction is not a legislative instrument within the meaning of the Legislation Act primarily because the Minister is giving directions as to the exercise of a broad discretion and, properly construed, the Direction does not alter the scope or content of the power in s 501. The Direction, as a statement of policy, promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 ; 327 ALR 8 at [54].

18    Nothing was said to turn upon the principles of interpretation. Even if some different approach was appropriate, in my view it would still require regard to the text understood in its statutory context. In the present case that extended to an understanding of the relevant provisions of the Migration Act concerned with non-refoulement and protection visas. That is the approach that I propose to adopt.

19    As may be expected given the description of the 'other consideration' that is being addressed by para 9.1 (namely international non-refoulement obligations), its provisions concern those obligations. As noted at the beginning of para 9.1, those obligations arise where there is a risk of a 'specific type of harm'. In that context, the reference to 'claimed harm' must mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation. When regard is had to the relevant provisions of the Migration Act it is a risk of a specific type of harm that is the type of harm that must be demonstrated in order to give rise to international non-refoulement obligations. The nature and extent of those obligations have been interpreted by the Government and given effect by the relevant statutory provisions: see FCS17 v Minister for Home Affairs [2020] FCAFC 68; (2020) 276 FCR 644 at [8] (Allsop CJ), [36]ff (White and Colvin JJ).

20    The fact that the reference to 'claimed harm' is to the harm that is claimed to support a non-refoulement obligation appears most clearly from the opening part of para 9.1(6) which raises the possibility that the decision-maker may not be able to consider non-refoulement issues in the context of making a decision to which the Direction applies (namely, where a visa has been cancelled or refused). It then refers to the process for determining protection visa applications. In that immediate context, the reference to 'claimed harm' must be to the harm that is claimed to support a non-refoulement obligation. Pointedly, the provision does not then suggest that the decision-maker could assume that the person is entitled to a protection visa. Rather the focus is upon the 'claimed harm'.

21    The contentious language is directed to the making of the finding that needs to be made for the purpose of making a decision to which the Direction applies. For convenience of reference, the relevant sentence of para 9.1(6) is as follows:

A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

22    The assumption to be made is that 'claimed harm will occur' and that assumption is to be made for the purposes of making the decision to which the Direction applies. The assumption that claimed harm will occur would not, of itself, be a sufficient basis upon which to demonstrate that there are international non-refoulement obligations. Indeed, as to harm, the relevant provisions of the Migration Act are concerned with risk of harm so an assumption that claimed harm 'will occur' does not appear to relate to a consideration of those provisions.

23    Further, there is another contextual matter that is relevant. It is common ground that the list of 'other considerations' in the Direction does not operate to exclude unlisted considerations from being taken into account: see BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22]-[23]. In particular, there may be cases where an applicant claims that removal from Australia may give rise to a type of harm which may not be 'a specific type of harm' for the purposes of non-refoulement obligations. Further, in cases where it is claimed that the harm is 'a specific type of harm' to which the applicant will be exposed if returned to a particular place then there is a distinction between considering the risk of harm and considering whether non-refoulement obligations arise: DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 at [185]-[186] (Robertson J, Logan J agreeing generally). In such cases, it is open to the Tribunal to consider the harm irrespective of whether it forms the view that it is the kind of harm which gives rise to a non-refoulement obligation. Indeed, it 'may be necessary for the decision-maker to take account of the alleged facts underpinning' a claim that non-refoulement obligations are owed even where the assessment as to whether those obligations are owed is deferred: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [39] (noting that the High Court was there concerned with an earlier version of the Direction).

24    Therefore, there are good reasons why a decision-maker making a decision to which the Direction applies, would be considering whether the claimed harm will occur - not for the purpose of determining whether international non-refoulement obligations are owed but for the purpose of considering whether the claimed harm is an 'other consideration' for the purposes of the decision.

25    In my view, considered in context, para 9.1(6) makes clear that, as to claimed harm that is made in support of an allegation the international non-refoulement obligations are owed (and that those obligations should be take into account as an 'other consideration'), the decision-maker (in the present case, the Tribunal) can assume that the claimed harm will occur and make the decision on that basis. This enables the whole of the question as to whether there is a non-refoulement obligation to be deferred for separate consideration - being a course that para 9.1 contemplates.

26    The language does not support taking the further step of interpreting the Direction to allow the decision-maker to assume that protection obligations are owed. Indeed, such an approach would be problematic for the reasons submitted by the Minister - it would assume that a person is entitled to a visa when the process for determining whether that is so has not been followed. Rather, the focus is upon the approach that may be adopted to the claims of harm rather than an assumption about all matters relating to protection.

Consequences of interpretation of para 9.1(6) for applicant's ground of review

27    Applying the above conclusion as to the proper construction of para 9.1(6) to the contentions advanced by the applicant, the following consequences flow:

(1)    The assumption contemplated by the Direction does not extend to an assumption that the applicant is owed a non-refoulement obligation.

(2)    Nevertheless, the Tribunal was required to consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur.

(3)    The Tribunal failed to turn its mind to that question and simply proceeded on the basis that it could choose whether to make that assumption without evaluating whether an assumption was appropriate.

(4)    However, in any event, the Tribunal (after undertaking an assessment of whether the claimed harm would occur) concluded that the applicant's concerns as to serious harm if he was removed to South Sudan weighed heavily in favour of revocation of the visa cancellation.

Materiality

28    The Minister relied upon materiality. I am not sure that it arises because the nature of the error alleged was that the Tribunal should have considered whether to assume that a non-refoulement obligation arose in respect of the applicant (or should have made such an assumption). For reasons that have been given, I have not accepted that claim which depended upon a particular construction of para 9.1(6) which I have rejected.

29    The submissions for the applicant as to materiality assumed that it was successful on the construction point. That approach is understandable because it is difficult to see how a failure by the Tribunal to consider whether to make an assumption as to claims of harm which it ultimately found to be established could be material in the relevant sense. Nevertheless, I will address the question against the possibility that I have misunderstood the extent of the submission.

30    An immaterial breach of a statutory condition to the exercise of decision-making power (in this case compliance with the Direction) is not jurisdictional. Where materiality is put in issue, the burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition': MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39]. The threshold for establishing materiality is not onerous. The standard to be applied is one of reasonable conjecture. As to these matters, see Nathanson v Minister for Home Affairs [2022] HCA 26.

31    To assess whether a breach was immaterial it is necessary to have regard to how the decision was made: MZAPC at [38].

32    In the present case, regard to the way the decision was made demonstrates that the applicant had the benefit of an actual finding as to the matter in respect of which the Direction permitted an assumption to be made. Therefore, to the extent that it is necessary to consider whether there was a material failure to comply with the Direction because the Tribunal did not consider whether to make an assumption as to the claimed harm, I find that the failure was not material.

Conclusion and orders

33    For the reasons I have given, the application for review must be dismissed. It was accepted that costs must follow the event. I will make an order for costs in favour of the Minister. In accordance with usual practice it will provide for a lump sum assessment in default of agreement.

Associate:

Dated:    3 April 2023