Federal Court of Australia

ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 506

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application on a lump sum basis, with such lump sum to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The applicant was born in Khartoum, Sudan and arrived in Australia in 2009, aged 19, on a Class XB Subclass 202 Global Special Humanitarian visa. The applicant has lived in Australia since.

2    The applicant is a Christian and part of the Dinka ethnic group.

3    Since arriving in Australia, the applicant has a significant criminal history. On 27 July 2020, the applicant was sentenced to a term of imprisonment for three years, five months and 14 days for a number of different offences.

4    On 22 October 2020, the applicant’s visa was the subject of mandatory cancellation pursuant to s 501(3A) of the Migration Act 1958 (Cth) on grounds that the applicant did not pass the character test. On 21 October 2021, an application for revocation of the cancellation was refused by a delegate of the Minister on the grounds the delegate was satisfied the applicant did not pass the character test (s 501(3A)(a)) and that the applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of a state (s 501(3A)(b)).

5    An application for review of that decision to the Administrative Appeals Tribunal was unsuccessful, with the decision affirmed on 22 January 2022.

6    It is from that decision that the applicant now seeks review pursuant to s 476A of the Act on the two grounds set out in the amended originating application:

(a)    The Tribunal fell into jurisdictional error in its consideration of Australia’s non-refoulement obligations by failing to consider a claim that clearly emerged from the materials before it and/or to consider critical material and evidence (ground one); and

(b)    The Tribunal’s finding that the applicant led no evidence in support of the non-refoulement claim in respect of South Sudan was irrational and/or unreasonable or failed to consider critical material and evidence (ground two).

7    The issue that arises in this matter is whether the Tribunal fell into jurisdictional error on one or both of the claimed grounds.

8    It is for the reasons which follow that the Tribunal did not fall into jurisdictional error and the application is dismissed.

Tribunal’s Reasons (Reasons)

9    It was common ground before the Tribunal that by reason of his ancestry, the applicant would be entitled to obtain South Sudanese citizenship.

10    The Tribunal Member conducted a detailed and comprehensive review of the applicant’s offending noting that in reports tendered at the hearing before the Tribunal by a Psychologist, Mr Balfour, and a Psychiatrist, Dr Glowinski, both had reason to doubt whether they could rely on the history provided by the applicant to them.

11    There was no contest before the Tribunal that the applicant failed the character test. That being the case, the question the Tribunal was considering was whether there “is another reason why the original decision should be revoked”: s 501CA(4)(b).

12    In considering the application for review, the Tribunal was obliged to apply Direction 90 which was issued by the Minister on 8 March 2021: s 499(2A). The Tribunal Member considered the Primary Considerations and Other Considerations set out in Direction 90.

13    The Tribunal turned its mind to Australia’s non-refoulement obligation, noting that the visa held by the applicant did not involve any assessment that the applicant was owed non-refoulement obligations; that the applicant was never assessed on the basis the applicant was facing persecution; that the applicant has never held a protection visa nor has the applicant been determined to be a Refugee under Article 1A of the Refugee Convention: Reasons [158]-[160].

14    The Tribunal also recorded that the applicant led no evidence in support of any assertion that by reason of any particular personal characteristic, the applicant would suffer any particular persecution or disadvantage by reason of being returned to South Sudan and that the applicant’s representative had submitted during the hearing that the applicant could not name one: Reasons [163]-[165].

15    The Tribunal Member referred: at [167], to the most recent Department of Foreign Affairs and Trade (DFAT) Country Information report on South Sudan, which the Tribunal Member noted was dated October 2016, which stated:

The Dinka are the largest ethnic group in South Sudan at around 35.8% of the population, and have traditionally dominated South Sudanese society.

They may face some incidents of violence in “conflict -affected areas …

In Juba, [the Capital of South Sudan] Dinkas face a low risk of being targeted on the basis of their ethnicity…

16    The Tribunal Member concluded the applicant will be relatively safe living in Juba: Reasons [168], and that on the evidence, Australia’s international non-refoulement obligations did not arise such that this consideration was neutral: Reasons [170].

Ground one

17    The applicant contends the Tribunal fell into jurisdictional error when considering Australia’s non-refoulement obligations by failing to consider a claim that clearly emerged from the materials before it and/or to consider critical material and evidence.

18    In the amended originating application, the applicant provides a number of particulars before contending that the Tribunal failed to consider what is described as the broader, clearly articulated, claims that the applicant is owed international non-refoulement obligations by virtue of a real chance that the applicant would suffer harm upon a return to South Sudan on account of his Dinka ethnicity and/or unique characteristic as a returnee from a western country with no relatives or connections in South Sudan.

The parties’ submissions and consideration

19    The applicant submits that in finding that no non-refoulement obligations exist in respect of the applicant’s return to South Sudan, the Tribunal failed to address clearly articulated and substantial representations before it that the applicant was forcibly conscripted into the Sudanese Army at the age of 14 and was in the army for three years.

20    The applicant submits that in the applicant’s application for his Offshore Humanitarian visa (Class XB) the applicant’s mother made a statutory declaration that in 2006 the applicant was seen being dragged away by Islamic militia and went missing.

21    The Minister submits that the applicant was represented by a legal practitioner at the review hearing, that it is significant the applicant was represented: SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80], [81] (Thawley J), and the applicant’s representative made no claim at the hearing that the applicant was owed non-refoulement obligations because of his service in the Sudanese Army.

22    The Minister submits further that the fact the applicant was in the Sudanese Army is irrelevant given the applicant would be returning to South Sudan, not Sudan.

23    I accept the first respondent’s submissions. It is unclear what the applicant seeks to make of the submissions concerning the applicant’s conscription into the Sudanese Army as there is no apparent nexus between that fact and Australia’s non-refoulement obligations in relation to South Sudan being the receiving country. Further, nowhere in the material referred to by the applicant is there a suggestion that because the applicant had been in the Sudanese Army the applicant was owed non-refoulement obligations by reason of that service.

24    The applicant referred to his “Statement of Facts, Issues and Contentions” (SFIC) before the Tribunal in which it was stated that South Sudan became an independent country in 2011, as a result of which any person with South Sudanese ancestry automatically lost eligibility for Sudanese citizenship and that South Sudan is mired in conflict. The applicant also refers to his Dinka ethnicity, that people of Dinka ethnicity have been targeted by the Sudan People’s Liberation Army, and that the applicant is from the Abyei region which is the subject of dispute between Sudan and South Sudan such that the situation in that region remained hostile, confrontational and a war zone.

25    There was a reference in the SFIC of the possibility of the applicant suffering harm in Sudan which might include persecution or discrimination on the basis of his Dinka ethnicity and/or Christian religion: AB p 74 [88] [89]. There was also a reference to the applicant not having any family members in Sudan or South Sudan upon which the applicant could rely for support and that the applicant would be at risk of physical harm or even death due to ongoing tribal conflict: AB p 89 [143].

26    The Tribunal Member referred to an exchange with the applicant’s representative during which the applicant’s representative said there was “nothing known” to him that gave rise to the submission that the applicant would suffer any persecution in South Sudan as a person of Dinka ethnicity or otherwise. The Tribunal Member found there was no evidence that would be the case. The Tribunal Member there noted that the applicant’s refoulement argument was directed at a return to Sudan, not South Sudan: Reasons [163].

27    The Tribunal Member then refers: Reasons [164], to the applicant’s counsel resiling from the position as outlined in Reasons [163] in a further submission received on 6 January 2022.

28    In that submission (further submissions) the applicant referred to a different matter that had been before the Tribunal (but not before this Tribunal Member) in 2021 in which it had been accepted that if the applicant in that matter had the receiving country as South Sudan, the applicant was owed non-refoulement obligations because they would face a risk of harm, “… due to his status as a returnee from a western country who has never lived in South Sudan, does not have relatives and meaningful relationships with any individuals in a country that is in civil strife”. The further submissions also referred to other applications which had been before different Tribunal Members.

29    The applicant refers to the applicant’s other personal attributes (referred in submissions as the “broader claim”), which was contained in the further submissions as being that the applicant’s status as a returnee from a western country; who has never lived in South Sudan; who does not have relatives or meaningful relationships in South Sudan; has a military background in Sudan with ancestry from an area disputed between Sudan and South Sudan; and would experience discrimination and a lack of support in a country that is in civil strife, as supporting the applicant’s non-refoulement claim. The applicant submits that his non-refoulement claim was based on more than simply his Dinka ethnicity, however that was the only matter considered by the Tribunal. Accordingly, the applicant submits that the Tribunal gave no consideration to this “broader claim” which it submits was supported by the materials before the Tribunal.

30    The first respondent submits that the Tribunal considered the further submissions at Reasons [164]-[166].

31    The first respondent refers to the Tribunal Reasons at [165]:

… the applicant led no evidence in support of any assertion that he by reason of any particular personal characteristic, would suffer any particular persecution or disadvantage by reason of being returned to South Sudan. Indeed, his representative submitted during the hearing he could not name one.

32    The first respondent submits the applicant’s contentions were considered by the Tribunal and that by reference to the DFAT Country Information Report, the Tribunal considered the applicant could return to Juba, the capital of South Sudan, where he would face a low risk of being targeted on the basis of his ethnicity and that based on the DFAT Report, the applicant could choose to live for example in Juba and be relatively safe with there being no evidence to suggest the applicant would be obliged to do otherwise: Reasons [167].

33    The Tribunal Member referred to the cases that had been referred to by the applicant in the further submissions. It was in that context that the Tribunal Member noted the applicant had led no evidence in support of any assertion that the applicant would suffer any particular persecution or disadvantage because of any particular personal characteristic, and that the applicant’s representatives submitted during the hearing that the applicant could not name one.

34    Having considered the further submissions, the Tribunal Member identified that each question of refoulement is to be determined based on the evidence relevant to each individual and that simply because other individuals with their own unique circumstances were owed non-refoulement obligations does not mean that those obligations are also owed to the applicant, it not being a generic question: Reasons [166]. With respect to the Tribunal Member, that is clearly correct.

35    I accept the first respondent’s submissions. The Tribunal dealt with the question of discrimination as I have described above and the “broader claim” to which the applicant refers. When considering the remaining Other Considerations in Direction 90, I note the Tribunal Member concluded that the extent of impediments faced by the applicant if removed (Other Consideration (b)) and the applicant’s links to the Australian community including the strength, nature and duration of ties to Australia (Other Consideration (d)) weighed in favour of revocation. In the case of Other Consideration (b), it weighed heavily in favour of revocation.

CKT20

36    After the hearing before this Court, the Full Court delivered its judgment in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124. Both parties applied for and were given leave to file further submissions in light of this decision.

37    CKT20 was an appeal against the decision of a primary judge who had dismissed an application for review against a decision of the Tribunal which had affirmed a decision of the Minister’s delegate to cancel the appellant’s visa. Before the Tribunal, the appellant had been self-represented.

38    Before the Full Court the appellant, by this time represented, sought and obtained leave to file a proposed ground of appeal which had not been raised before the primary judge.

39    The appellant had been born in Khartoum and was of Dinka ethnicity. The appellant was granted leave to raise a single ground of appeal which was substantially similar to that advanced in ground one in this application. The same DFAT Report was before the Tribunal as it was in this matter.

40    The appeal in CKT20 was allowed on the basis that the Tribunal had not considered a claim which had squarely arisen on the material before the Tribunal which was the appellant’s evidence that the appellant feared harm in South Sudan and the appellant believed people would harm him because of “tribal issues”. The Full Court noted the Tribunal made no mention of the DFAT Country Information upon which the appellant relied, the Tribunal’s reasons contained no reference to the circumstances that the materials potentially enlivened Australia’s enacted international obligations nor did they disclose whether the Tribunal considered it appropriate to defer the determination of the ethnicity claim to the protection visa application process: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [39], [42] (Kiefel CJ, Keane, Gordon and Steward JJ).

41    Accordingly, the Full Court inferred the Tribunal either overlooked those matters during the decision-making process or regarded them as irrelevant. On that basis, the Full Court considered the failure of the Tribunal to address these matters was an error of law which it also considered was material such that jurisdictional error had been established.

42    The applicant submitted that in this matter, the applicant’s representations or claims before the Tribunal are more extensive than that in CKT20 because it was made as part of the “broader claim” to which I have referred above which was not limited to Dinka ethnicity alone.

43    As I have noted above, the Tribunal dealt with the “broader claim”.

44    As to deferring the determination of the applicant’s ethnicity claim to the protection visa process, the Tribunal’s decision in this matter pre-dated the High Court’s decision in Plaintiff M1. Given the Tribunal dealt with the applicant’s non-refoulement claim, nothing turns on this.

45    The applicant submitted further that in CKT20 the Minister had referred to the same DFAT Country Information as referred to before the Tribunal in this matter and in particular the reference in that Report to the statement that Dinkas living in Juba had a low-risk of harm because it was under Dinka-government control. The applicant refers to the Full Court’s discussion of that submission: at [119]-[120] where the Full Court observed that the appellant did not, and was unable to, identify the place in South Sudan to which he would return, the submission the Tribunal had overlooked the statement at [2.31] of the DFAT Report that the relative stability within Juba is extremely fragile and that although DFAT had assessed the risk to Dinkas as low, it did not say there was no risk.

46    The applicant submits that applying the Full Court’s reasoning in CKT20, the Court ought be satisfied that the Tribunal, having not deferred determination of the applicant’s non-refoulement claim (to the protection visa process), was obliged to determine substantively the claims put by the applicant. However, the Tribunal did not engage with the applicant’s “broader claim”.

47    The first respondent submits that in CKT20, the ethnicity claim, which was the subject of the appeal, “squarely arose” on the material (as that term is discussed in CKT20 before the Tribunal but the Tribunal had not dealt with it. Further, it was an important consideration in CKT20 that the appellant was self-represented. In contrast, in this matter the applicant was represented by a solicitor who in answer to a question by the Tribunal Member said that there was nothing in the personal characteristics of the applicant that was known to the representative which would expose the applicant to persecution as a Dinka person.

48    Although that is correct, as I have noted, the applicant’s counsel resiled from that submission the next day and referred to three Tribunal matters, amongst other things, which it relies upon for the “broader claim”.

49    The first respondent submits further that unlike CKT20, the Tribunal did engage with the non-refoulement claim alleged to have been advanced by the applicant’s solicitor.

50    I accept that submission. It is clear the Tribunal did engage with the non-refoulement claim and in particular the “broader claim”. I am not satisfied that when considering Australia’s non-refoulement obligations, the Tribunal failed to consider a claim squarely arising from the material and evidence before it and/or failed to consider critical material and evidence. On the contrary, I am satisfied that the Tribunal Member gave careful and detailed consideration to the material and evidence placed before the Tribunal when considering Australia’s non-refoulement obligations.

51    It is for these reasons that I do not consider the Tribunal fell into jurisdictional error and the first ground of review fails.

Ground two

52    Ground two contends that in finding the applicant led no evidence in support of its non-refoulement claim in respect of South Sudan, the Tribunal’s finding was irrational and/or unreasonable or failed to consider critical material and evidence.

53    I have dealt with the alleged failure to consider critical material and evidence when considering ground one. It is for those reasons that I am not satisfied the Tribunal failed to consider critical material and evidence.

54    As to the contention that the Tribunal’s finding was irrational and/or unreasonable, that submission relies on the same material and evidence the subject of ground one.

55    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [133] and [135] Crennan and Bell JJ considered the concept of a decision being unreasonable, irrational or illogical. Their Honours identified the test for illogicality or irrationality as being whether on the evidence, logical or rational or reasonable minds might adopt different reasoning or might reach a different decision or finding on the evidence. If the reasoning process engaged in was open to the decision-maker and the decision reached was open on that process, then notwithstanding that logical or rational or reasonable minds might differ in the conclusion reached, the fact that one conclusion has been preferred over another does not mean that a decision can be said to be illogical or irrational or unreasonable. Their Honours said: at [135]

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims …

56    As I have noted, the Tribunal gave careful consideration to the material and evidence before it in reaching its conclusion. It cannot be said that only one conclusion was open on the material and evidence placed before the Tribunal or that the conclusion was not open on that material and evidence or that the process of reasoning adopted by the Tribunal was such that the decision was illogical or irrational or unreasonable.

57    That being the case, no question of jurisdictional error arises.

58    The second ground of review fails.

Conclusion

59    It is for the reasons which I set out that the application is dismissed.

60    The applicant is to pay the first respondent’s cost of the application.

Associate:

Dated:    24 May 2023