Federal Court of Australia

Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time is granted.

2.    The decision of the respondent dated 1 December 2021 is set aside.

3.    The applicant’s request for revocation of the cancellation decision dated 20 June 2016 be re-determined according to law by the respondent or a delegate of the respondent.

4.    Unless a submission is made and filed by the respondent on or before 7 June 2023 seeking a different order as to costs, the respondent pay the applicant’s costs of the application, in an amount to be agreed, and if not agreed to be fixed by the Registrar on a lump sum basis.

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

REASONS FOR JUDGMENT

BROMBERG J:

BACKGROUND

1    The applicant is a citizen of Ethiopia who has lived in Australia since 2008 with his wife and three children who are all Australian citizens. In 2012, he was granted a Class BC Subclass 100 Partner visa.

2    On 25 September 2015, the applicant was convicted in the County Court of Victoria of two counts of indecent assault for sexually assaulting a female passenger in a taxi he was driving. He was sentenced to a total of 26 months imprisonment and served a total of 19 months. On 20 June 2016, a delegate of the respondent (Minister) cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (cancellation decision) having been satisfied that the applicant did not pass the “character test” and that the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution.

3    The applicant made representations pursuant to s 501CA of the Act for the Minister to revoke the cancellation decision and provided substantial material in support of those representations. Section 501CA(4) of the Act empowers the Minister to revoke a cancellation decision if a person has made such representations and the Minister is satisfied that the person passes the “character test” (as defined in s 501 of the Act) or that there is “another reason” why the cancellation decision should be revoked.

4    On 28 February 2018, the Minister decided not to revoke the visa cancellation. On 29 June 2020 (before the High Court’s judgment in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417), Collier, Reeves and Derrington JJ quashed that decision in circumstances where the Minister had found it unnecessary to consider non-refoulement obligations where the applicant was able to apply for a protection visa: Ali v Minister for Home Affairs (2020) 278 FCR 627.

5    On 28 February 2020, the applicant applied for a protection visa. The application was refused by a delegate of the Minister, and that refusal decision was affirmed by the Administrative Appeals Tribunal on 24 August 2020.

6    For the purpose of the Minister’s reconsideration of whether the cancellation decision should be revoked pursuant to s 501CA(4) of the Act, the applicant then made further representations to the Minister. On 1 December 2021, the Minister personally made the decision not to revoke the cancellation decision and, in accordance with s 501G(1) of the Act, prepared a statement of reasons for that decision (non-revocation decision). The applicant now seeks judicial review of the non-revocation decision pursuant to s 476A(1)(c) of the Act.

7    The application for judicial review was made outside the time limits prescribed by s 477 of the Act. The applicant applied for an extension of time pursuant to s 477(2) of the Act. That application was not opposed by the Minister and was heard instanter with the substantive hearing for judicial review. I consider it appropriate to grant the application for an extension of time and will make an order to that effect.

8    The applicant raised three separate grounds of review:

(1)    The Minister failed to consider the risk of indefinite detention as a legal consequence of non-revocation (Ground 1);

(2)    The Minister failed to consider representations made by the applicant about the risk of prolonged detention by reason of COVID-19 travel restrictions delaying his removal to Ethiopia (Ground 2); and

(3)    The Minister’s decision was legally unreasonable because the Minister gave irrational, disproportionate weight to the expectations of the Australian community (Ground 3).

9    These grounds all essentially contend that the Minister should have found, in accordance with s 501CA(4)(b)(ii) of the Act, that there was “another reason” to revoke the cancellation of the applicant’s visa.

10    For the reasons which follow, I do not consider that that the applicant has established jurisdictional error with respect to grounds 1 and 2. However, in relation to ground 3, I accept that the Minister made a jurisdictional error by failing to consider the applicant’s personal circumstances in determining what weight to give to the expectations of the Australian community. I will therefore make orders setting aside the non-revocation decision and requiring the Minister to reconsider whether the cancellation decision should be revoked according to law.

GROUNDs 1 AND 2 – INDEFINITE DETENTION

11    The first and second grounds of review each raise the Minister’s asserted failure to consider that, should the Minister not order the revocation of the cancellation of the applicant’s visa, the applicant would be subjected to indefinite detention.

12    Under the first ground, the applicant contended that the Minister was required to consider indefinite detention as a legal consequence of the non-revocation decision and, as indefinite detention was not mentioned in the Minister’s reasons, there was a demonstrated failure to give consideration to indefinite detention and this amounted to jurisdictional error.

13    The Minister contended that there was no obligation to consider indefinite detention as a legal consequence of the non-revocation decision in the absence of, first, the engagement of Australia’s non-refoulement obligations or, second, in the absence of any real possibility of prolonged or extended detention.

14    The second ground of review contended that the Minister failed to consider representations made by the applicant that he would be subject to prolonged detention due to travel restrictions caused by the COVID-19 pandemic preventing his removal from Australia.

15    The applicant contended that the Minister was obliged to “read, identify, understand and evaluate” these representations but, as the Minister did not mention these representations in his reasons, the Court should infer that he failed to do so: see Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).

16    The Minister argued that the representations that were made about COVID-19 were not sufficiently substantial, clear, relevant or supported by evidence to require consideration.

17    There is an overlap between grounds 1 and 2. That is because whether the COVID-19 pandemic may have prevented the applicant from being removed from Australia is relevant to the issue raised by ground 1 as to whether the circumstances before the Minister raised the likelihood of indefinite detention. I have therefore dealt with both grounds in this section of my reasons, although each requires individual consideration. I will commence with ground 1.

Ground 1

Is the engagement of non-refoulement obligations a necessary element of an indefinite detention?

18    The first objection to ground 1 raised by the Minister was that there was no obligation to consider indefinite detention as a legal consequence of the non-revocation decision in the absence of the engagement of Australia’s non-refoulement obligations.

19    This concern is relevant with respect to the applicant because his application for a protection visa was refused by a delegate of the Minister on 17 March 2020 whose decision was affirmed by the Tribunal on 24 August 2020. The Tribunal was not satisfied that Australia owed protection obligations to the applicant, either under the refugee criteria or on other ‘complementary protection’ grounds. After considering the applicant’s representations, which included new material from that which was put before the Tribunal, the Minister saw no reason to depart from the Tribunal’s assessment and was also not satisfied that Australia’s non-refoulement obligations were engaged in relation to the applicant.

20    In the absence of a finding that returning the applicant to Ethiopia would breach Australia’s non-refoulement obligations, the Minister contended that the prospect of indefinite detention simply did not arise here as there was no obvious legal impediment to removing the applicant to Ethiopia. The applicant accepted that, whilst there were no legal impediments to his removal to Ethiopia, there were factual impediments to his removal to Ethiopia that meant he faced the prospect of being held in detention indefinitely pending executive policy decisions as to whether and, if so, how and when it would be “reasonably practicable” to remove him from Australia in accordance with the applicable provisions of the Act.

21    One possible factual impediment was the COVID-19 pandemic. Another, raised by the Court as a possible factual impediment, was the material before the Minister that suggested that Ethiopia was in a state of political turmoil which may make the removal of the applicant to that country difficult. I address that in more detail below.

22    It is well established that in deciding whether to revoke the cancellation of a person’s visa under the Act, a decision-maker must consider the legal consequences of non-revocation, including the risk of indefinite detention: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [8]-[10], [17] (Allsop CJ and Katzmann JJ); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]-[88] (Kenny, Flick and Griffiths JJ); SPFH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 97 at [88]-[89] (Murphy J). As Allsop CJ and Katzmann J explained at [9] in NBMZ:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

23    That decision, and most of the subsequent decisions that have applied this principle, including those relied upon by the applicant, have arisen in the context of Australia’s non-refoulement obligations. That is, in considering whether to cancel a visa or revoke a decision to cancel a visa, a decision-maker must consider whether the person will be subject to indefinite detention as a result of that decision because the person’s removal from Australia would be made difficult or impossible by the need for Australia to comply with its non-refoulement obligations.

24    The applicant disputed that the principle was confined to where Australia’s non-refoulement obligations are enlivened and relied primarily on the judgment of Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [122]-[123], [136], for which special leave was refused ([2021] HCATrans 195), to support that contention. It is helpful to set out those paragraphs in full:

[122]    After the introduction of s 197C (which occurred after Al-Kateb, Plaintiff M47/2012 and Plaintiff M76), whether indefinite detention remains a possible legal consequence of a non-revocation decision may also depend on what precisely is meant by the term “indefinite detention”. In our respectful opinion, while on one reading the presence of s 197C in the statutory scheme suggests a prolonged period of detention should not occur after all challenges to visa decision-making have been exhausted, much depends on the interaction between executive policy as evidenced by Direction 79 (and perhaps by other policies as well), and the operation of the Migration Act in the case of a particular individual, as well as the factual circumstances of the individual concerned. That includes factual matters such as the attitude of what is said to be the receiving country for a person. These matters may or may not concern questions of non-refoulement. They may concern other matters such as acceptance of a person’s asserted nationality. There may be a myriad of factual reasons why it is not objectively “reasonably practicable” to remove a person at a particular point in time. All these are matters in the first instance for executive policy, although there may come a time where they become matters for a Court, as Al-Kateb and like cases, and AJL20 demonstrate.

[123]    If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label “indefinite” is attached to it, as Wigney J also recognised in MNLR at [93]-[94]. The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.

…

[136]     No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy concerning non-refoulement that reflects Australia’s international obligations, indeed it would be remarkable if that were to be suggested. As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”. A decision-maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision-maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision-makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision-maker as a representation, the decision-maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar (2019) 272 FCR 589 at [38]-[41], followed in GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [30]. (Emphasis added in bold.)

25    Their Honours observations at [122] and [136], emphasised above, that “whether indefinite detention remains a possible legal consequence of a non-revocation decision … may or may not concern questions of non-refoulement” and “[a] decision-maker in any revocation decision … should consider [indefinite detention] as a prospect, whether or not the visa under consideration is a protection visa” seem to clearly resolve the issue. Namely, indefinite detention may need to be considered as a legal consequence of a non-revocation decision even where Australia’s non-refoulement obligations are not enlivened.

26    That conclusion is supported by the judgment of Murphy J in SPFH who expressly agreed at [87] with the observations cited above in WKZM. Although, as pointed out by the Minister, the decision in SPFH, like WKZM, was made in the context of non-refoulement findings made by the decision-makers, Murphy J did not confine his decision to that context. The line of cases on this issue prior to SPFH and WKMZ, which were not referred to by either party, further support the conclusion that the principle is not so confined.

27    In Taulahi, for example, Kenny, Flick and Griffiths JJ found at [52] that:

The Minister fell into error … by failing to take into account the proper operation of s 501C in making his decision under s 501(3). Specifically, the Court infers from the Minister’s statement of reasons in that case that the Minister did not take into account that, where a decision to cancel a visa is made under s 501(3), in considering the revocation of that decision under s 501C, the Minister cannot act on information in the visa holder’s revocation representations that might have led the Minister to determine that the visa should not be cancelled on discretionary grounds.

28    The relevant legal consequence that the Minister was obliged to consider in Taulahi was not indefinite detention arising from Australia’s non-refoulement obligations. Rather, it was the operation of s 501C of the Act and the capacity of a person who has had their visa cancelled to make representations to the Minister to revoke that cancellation.

29    Therefore, it is not right to say that the cases where the principle in NBMZ has been applied are only cases where non-refoulement obligations are engaged. That the principle is far broader than that, and may generally encompass any legal consequence arising under the Act, is supported by the nature of the principle as characterised by Kenny, Flick and Griffiths JJ in Taulahi at [84]:

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision.

30    Further, as matter of logic, there is no reason why that principle should be so confined to non-refoulement obligations where indefinite detention is the relevant legal consequence that the Minister must consider. The combined effect of ss 189, 196 and 198 of the Act is that if a person has had their visa cancelled, and the Minister decides not to revoke that cancellation, the person must be removed as soon as reasonably practicable from Australia and, pending their removal, they must remain in detention. A legal consequence of the decision not to revoke their visa will be detention and that detention may be indefinite depending on a range of circumstances beyond the circumstance created by Australia’s desire to comply with its non-refoulement obligations.

31    Non-refoulement is but a circumstance which contributes to the possibility of indefinite detention. That is, the engagement of that obligation ordinarily denies the capacity of the Commonwealth to remove the person to their country of origin thereby making removal from Australia far more difficult. But, as noted by Kenny and Mortimer JJ in WKMZ at [122], “[t]here may be a myriad of factual reasons why it is not objectively ‘reasonably practicable’ to remove a person at a particular point in time”. Some of those reasons may include “the health of the person to be removed, or the availability of an operating airport in the country of destination … [or] [t]he willingness of another country to allow the person to enter its territorial boundaries” or any other “practical considerations”: NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 at [52] (Wilcox, Lindgren and Bennett JJ). Such practical considerations may also relevantly include the need to obtain a passport for the detainee, that the receiving country has imposed pandemic-related travel restrictions, including travel bans, which prevents the person from entering the country, or that the Department halts the escorted removal of unlawful non-citizens from Australia because of the infection risk to security escorts: see, eg, AJL20 v Commonwealth (2020) 279 FCR 549 at [150] (Bromberg J).

32    Further, the fact that non-refoulement obligations are engaged does not necessarily mean that there is a possibility of indefinite detention because the applicant may, for instance, be a dual citizen of two countries or there may be another country which has either offered, or is generally offering, to accept persons who cannot be returned to the applicant’s country of origin. AJL20 is an example of that: the applicant’s country of origin was Syria and the Department, given Australia’s non-refoulement obligations preventing his removal to Syria, made some attempt to return him to another country (Lebanon).

33    Therefore, the fact that Australia’s non-refoulement obligations were not engaged did not relieve the Minister from considering the possibility of indefinite detention for the applicant as a legal consequence of the non-revocation decision.

What makes detention indefinite?

34    The second objection to ground 1 raised by the Minister was that only the real possibility of detention that is indefinite, in the sense of being for a prolonged or extended period of time, must be considered by a decision-maker as a legal consequence of their decision, which was not the case with respect to the applicant.

35    The parties disagreed about the meaning of “indefinite detention” but both sought to rely on WKMZ at [122]-[123] to support their construction.

36    The applicant contended that “indefinite detention” means detention “without a chronological fixed point”, referring to WKMZ at [123]. The Minister, relying on comments in WKMZ at [122]-[123], contended that indefinite detention cannot simply mean detention of an uncertain duration but must be for a sufficiently “prolonged” or “extended” period. The relevant question during the hearing was therefore whether Kenny and Mortimer JJ in WKMZ confined the concept of “indefinite detention” to “prolonged” or “extended” periods of detention, as opposed to any period of detention, however short, of an indeterminate length.

37    Since the hearing, Mortimer, Colvin and O’Sullivan JJ handed down their judgment in ECE21 v Minister for Home Affairs [2023] FCAFC 52 which deals with this very question. Their Honours stated at [11]:

In cases where claims are made to the effect that a person will be subjected to indefinite detention if their visa remains cancelled, there is sometimes debate as to what is meant by the term, or more particularly what type of uncertainty in duration is needed before it is a matter that may have significance. For present purposes, indefinite detention may be taken to refer to detention of uncertain duration that is expected to be ongoing for a significant period because the required event necessary to bring it to an end (removal from Australia) is unlikely to be able to occur in the foreseeable future by reason of some circumstance other than the pursuit by the detained person of legal rights in respect of a visa application — noting that it is a term that is capable of a wider meaning that embraces any executive detention where the end point cannot be reasonably predicted or ascertained such that the person whose liberty has been lost has no way of ascertaining when the detention may come to an end: WKMZ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 285 FCR 463 at [123], [132] (Kenny and Mortimer JJ). (Emphasis added.)

38    Their Honours reasoning denies the correctness of the applicant’s singular focus upon the uncertainty of the duration of the detention. Beyond uncertainty of duration, a second element is required. The likely period of an applicant’s detention or further detention must be “ongoing” and “significant”, in the sense that its end point is unlikely to occur in the foreseeable future by reason of circumstances other than the detained person’s pursuit of legal rights in respect of a visa application.

39    In other words, where a detained person’s removal from Australia is likely to occur on an uncertain date beyond the foreseeable future (for reasons other than the pursuit of that person’s rights in respect of a visa application), the person’s ongoing detention should be regarded as indefinite. Of course, what constitutes the “foreseeable future” must be assessed in the context of what needs to be foreseen in relation to the prospective removal. For that reason, I think that the phrase “foreseeable future” was used by the Full Court in ECE21 to connote “for as far in the future as can be determined, based on what is known now”: Macmillan Dictionary (online at 29 May 2023) ‘for the foreseeable future’.

40    There are obvious practical issues that must be addressed in order to effectuate a person’s removal from Australia to another country. Some of those practical matters, including obtaining a passport for the detainee or obtaining the requisite permission of the receiving country, have been referred to at [31] above. In an uncomplicated removal, the arrangements and other circumstances necessary to effectuate the removal will be predictable and thus sufficiently known to enable a reasonable approximation of the likely date for the removal. Such a removal is unlikely to occur beyond the foreseeable future. That is because, based on what is now known, it can be determined with sufficient certainty when in the future removal will likely occur.

41    However, complicated removals are usually complicated because they are attended by unknown or unpredictable future events relating to the arrangements or other circumstances necessary to effectuate the removal. The complication may be caused by significant uncertainty as to when, or if at all, the intended receiving country will be prepared to, or have the capacity to, permit the detained person to enter that country. Alternatively, the complication may be the product of the present inability to physically transport the detained person to the intended receiving country (as was the case in AJL20, discussed above at [32]) and it may be uncertain as to how long that inability will last. Whatever the source, a complicated removal characterised by an unpredictability as to when (or if) an arrangement or other circumstances necessary to effectuate removal will occur is likely to mean that the time for the future removal of the detained person is not reasonably determinative. For that reason, such a removal is likely to occur beyond the foreseeable future and the detention should be regarded as indefinite.

42    Whilst I do not intend to be exhaustive, a complicated removal of the kind I have identified, as demonstrated by the circumstances at hand when the Minister is determining whether or not to revoke a cancellation of a visa, is likely to engage the Minister’s obligation to consider whether, as a legal consequence of non-revocation, an applicant is likely to face indefinite detention.

43    There are two further observations that are conveniently made now. The first arises from ECE21. That decision demonstrates at [54]-[59] that it is the circumstances relevant to whether a detainee’s detention is likely to be indefinite, at hand at the time of the making of the Minister’s decision, which need to be considered in determining whether the Minister’s obligation to consider indefinite detention was engaged. Those circumstances need not be the subject of representations made by the applicant (ECE21 at [59]) or clearly arise on the material before the Minister, because the Minister is obliged to consider the legal consequences of a non-revocation decision in any event.

44    Second, because an applicant bears the onus of establishing jurisdictional error (MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French, CJ Bell, Keane and Gordon JJ)), the applicant bears the onus of demonstrating the existence of the circumstances which engaged the Minister’s obligation to consider indefinite detention. However, I do not wish to be understood as suggesting that a strict approach to the question of onus should always be taken. Such an approach may not be warranted where the relevant circumstances are known or constructively known only by the Minister, such as an internal Departmental policy or other information available to the Minister or her or his Department but not available to the public. Nevertheless, the circumstance relied on by an applicant will, at the very least, need to be agitated by the applicant as a likely cause of indefinite detention.

Was the Minister’s obligation to consider indefinite detention here engaged?

45    The Minister’s decision was made on 1 December 2021. On 18 September 2020, the applicant made a submission prepared by Victorian Legal Aid (VLA submission) to the Minister, which stated:

We note further that Mr Ali cannot be returned to Ethiopia in the foreseeable future because of COVID-19 travel restrictions and he therefore faces at least a further lengthy period of detention before any final status resolution can be reached. The effect of long-term detention may be seen as a reason for reinstatement of a visa.

46    Although not expressly stated, it may be presumed that the VLA submission was referring to the notorious fact that it was not possible to leave Australia in September 2020 as international borders were closed due to the COVID-19 pandemic. It may also be accepted that, as at September 2020, the unavailability of international travel for an uncertain duration may well have been regarded as a circumstance which demonstrated the likelihood of the applicant’s indefinite detention.

47    However, there is no evidence before me, nor does the applicant submit, that the COVID-19 circumstance applicable as at September 2020 existed as at the time of the Minister’s decision in December 2021. For that reason, I am not satisfied that the consequences of the COVID-19 pandemic engaged the Minister’s obligation to consider the applicant’s indefinite detention.

48    I turn then to the only other factual circumstance which arose in the hearing as a possible source of indefinite detention for the applicant.

49    I raised with counsel for the Minister during the hearing whether the material before the Minister indicating that Ethiopia was in a violent state of turmoil was, of itself, a circumstance which may have significantly delayed the applicant being returned to Ethiopia, thus creating the likelihood of indefinite detention that the Minister was required to consider.

50    The applicant made substantial representations to the Minister about the security and political situation in Ethiopia which the Minister commented on at [73]-[75] of his reasons:

73.    Additional representations made on behalf of Mr ALI during September 2020 provided updated country information depicting the discrimination Ethiopians of Oromo ethnicity have been subjected to. A recent DFAT report indicated Oromos have borne the brunt of arrests and detentions arising from anti-government protests from 2014 to 2018, due to their vociferous behaviour. Ethiopia's security situation has deteriorated recently, resulting in deaths and destruction of property from clashes between ethnic groups, together with large numbers of people being internally displaced by either internal conflicts or natural disasters. The murder of an Oromo activist in June 2020 created widespread unrest, with around 230 people reportedly killed (including security force members).

74.     Consequently, it is submitted that Mr ALI risks being exposed to physical harm arising from the increasing inter-clan and inter-ethnic violence, as well as the possibility of becoming an internally displaced person

75.    Further representations made on behalf of Mr ALI during August 2021 provided more recent country information indicating that the security situation in Ethiopia has deteriorated further, particularly in the Tigrayan province. According to Human Rights Watch Prime Minister Abiy Ahmed is struggling to maintain order across the country with government security forces reportedly engaging in abuses in the Oromia region including widespread arbitrary arrest, extrajudicial and public executions, enforced disappearances and harassment of people with perceived links to Oromo rebel groups. Given Mr ALI has now lived for many years outside Ethiopia, his links to his home country are now tenuous meaning that he will be at risk of becoming destitute and unable to subsist if forcibly returned to Ethiopia, resulting in him becoming one of the many thousands of internally displaced persons across the country. (Emphasis added.)

51    This information about Ethiopia was provided in support of the applicant’s representation to the Minister that he could not be removed to Ethiopia due to Australia’s non-refoulement obligations. However, the information also raises the possibility that the removal of the applicant to Ethiopia will be complicated because of civil unrest and the consequent inability of the Ethiopian government to maintain order.

52    The specific nature of the possible complication to the applicant’s removal to Ethiopia is not expressed in the material before the Minister. It may be the case that civil unrest and a loss of governmental control in Ethiopia has led to uncertainty as to if, and as to when, Ethiopia would be able, or prepared, to undertake the necessary arrangements for that country to receive a returnee such as the applicant. There may be other reasons such as the loss of control of an airport which would hinder entry into Ethiopia. However, in the absence of specific evidence or submissions on this point, the Court is really left to speculate as to whether such complications existed in December 2021. The material before me is insufficient to permit an inference to be drawn as to whether or not the civil unrest in Ethiopia was an impediment to the making of the necessary arrangements for the applicant’s removal from Australia. I appreciate that the information necessary to sustain an inference of that kind may well have been known only to the Minister. However, the applicant has not even identified an arrangement or other circumstance which he says would have been affected by the civil unrest and would have so complicated his removal to make it likely that his ongoing detention should have been regarded by the Minister as indefinite. Nor has the applicant raised jurisdictional error based on any asserted failure by the Minister, given the material before him about the unrest in Ethiopia, to make reasonable enquiries about the consequences of that unrest upon the likelihood that the applicant would be removed in the foreseeable future.

53    I therefore do not regard the unrest in Ethiopia as demonstrating that the Minister’s obligation to consider indefinite detention was engaged. Nor is there evidence of the existence of any other relevant circumstance which would enable that conclusion. Consequently, ground 1 must be rejected.

Ground 2 – Was the Minister obliged to consider the COVID-19 representation?

54    With respect to ground 2, the applicant contended that the Minister made a jurisdictional error by failing to consider the applicant’s representations that he may be subject to indefinite detention because the impact of COVID-19 would delay his removal to Ethiopia.

55    The relevant representation was made in the VLA submission referred to above at [45].

56    There was no dispute that the Minister’s reasons did not mention this representation. Rather, relying upon Plaintiff M1 at [23]-[25], the Minister contended that the representations about COVID-19 did not need to be considered because they were vague, not supported by evidence or particulars and were not repeated in further submissions made by the applicant in August 2021 before the Minister made his ultimate decision in December 2021.

57    The circumstances when a decision-maker must consider representations or claims before them was most recently set out by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1 at [25]-[27]:

[25] The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

….

[27] if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument … that may give rise to jurisdictional error.

58    As their Honours also pointed out at [23], not every statement within a representation is a mandatory relevant consideration that a decision-maker must consider and provide a response.

59    Even if it is accepted that the representation made in September 2020 about COVID-19 is sufficiently clear, there is, nonetheless, a real question regarding the continued relevance of the representation, given that the Minister made his decision around 15 months later in December 2021 after receiving supplementary submissions from the applicant in August 2021.

60    The applicant contended that, given that the supplementary submission made in August 2021 stated “we adopt the information provided in our full submission to your office on 18 September 2020”, the Minister was still required to consider the COVID-19 representation when he made his decision on 1 December 2021. That contention overlooks the crucial point that the representation made in September 2020 was temporally anchored to the time in which it was made. That is because pandemic-related travel restrictions are not fixed but change with time and circumstances. The representation therefore only remained relevant to the Minister’s decision if the borders continued to be closed at the time of the Minister’s decision in December 2021. The Minister would have been entitled to construe the sentence “we adopt the information provided in our [earlier] submissions” as we adopt that information only as far as that information remains relevant. The applicant did not state in its August 2021 submissions that the situation with respect to COVID-19 travel restrictions was unaltered such that the earlier representation remained relevant. Nor has the applicant identified in its submissions to this Court why the representation made in September 2020 with respect to COVID-19, which is obviously time dependent, continued to be relevant in August 2021 or December 2021.

61    As such, the representation that the applicant faced the likelihood of indefinite detention due to COVID-19 travel restrictions delaying his removal to Ethiopia, was not sufficiently relevant to require the Minister’s consideration when he made his decision in December 2021: see Plaintiff M1 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ). The Minister’s failure to consider this representation therefore did not give rise to a jurisdictional error, as ground 2 contended.

Ground 3 – the expectations of the Australian Community

62    At [11] of the Minister’s reasons, the Minister noted that, although he is not legally bound to comply with Ministerial Direction 90 (Direction) in satisfying himself as to whether there is another reason why the cancellation decision should be revoked, the Minister did have regard to the Direction.

63    The Direction is made under s 499(1) of the Act which provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. The Direction in question concerns “visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” and commenced on 15 April 2021.

64    One of the considerations dealt with by the Direction is the expectations of the Australian community (community expectations consideration). The applicant’s third ground raises whether jurisdictional error occurred in relation to the Minister’s application of that consideration to the non-revocation decision.

65    It is not necessary to set out the terms of the Direction in so far as it deals with the expectations of the Australian community. It is sufficient to extract [64]-[66] from the Minister’s reasons where the Minister deals with that consideration including by explaining what that consideration entails:

Expectations of the Australian community

64.    As explained in the Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

65.    As also stated in the Direction, non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of Mr ALI, those specified kinds of conduct include crimes of a sexual nature against women. Noting that Mr ALI has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applies in this case.

66.    As explained in the Direction, the Government's view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

66    The applicant contended that the Minister’s decision was legally unreasonable. The basis for that contention was that there was a disproportionate exercise of the Minister’s discretion. The applicant relied on the observations of Wigney J (in dissent) in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420 at [137] where his Honour regarded a decision which may be characterised as “obviously disproportionate” to be a decision capable of demonstrating legal unreasonableness.

67    The Minister’s decision was said to be disproportionate because the Minister applied the expectations of the Australian community that any non-citizen who had committed an offence of a sexual nature against women should not continue to hold a visa, even where compelling personal circumstances weighed heavily in favour of revocation. As the applicant put it, “the reasoning resulted in an outcome that was ‘plainly unjust’” and therefore was obviously disproportionate and legally unreasonable

68    The applicant’s outcomes based assertion of legal unreasonableness presumes that the weight to be accorded to the community expectations consideration was assessed against the personal circumstances of the applicant which weighed in favour of the revocation of the cancellation decision and that the resulting weight accorded to that consideration was disproportionate. In other words, the applicant’s contention is based on the assumption that the Minister engaged in a relative weighing process and jurisdictional error is manifested in the conclusion arrived at by the Minister.

69    Put in that way, the applicant’s assertion of jurisdictional error has to meet a high threshold, fails to do so and in my view should be rejected. On the premise that the Minister had regard to the applicant’s personal circumstances in attaching the weight he accorded to the community expectations consideration, the weight to be attached was quintessentially a matter for the Minister’s evaluation. At [132] of the Minister’s reasons, the Minister recorded that he attached “significant weight … towards non-revocation” to the community expectations consideration. That weighting is not outside the realm of rational assessments that the Minister may have evaluatively made. It is not so disproportionate as to “lack an evident and intelligible justification” such that it is unreasonable, even if it be the case that others may legitimately regard the assessment to be harsh or unjust: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [82] (Nettle and Gordon JJ).

70    In the course of the hearing, another way of expressing the possibility of jurisdictional error in relation to the way in which the Minister dealt with the community expectations consideration arose. The alternative, process based, possibility of jurisdictional error was raised by the Court with the Minister’s counsel and was the subject of post-hearing submissions filed by both parties. The question raised was whether, in attaching significant weight towards non-revocation to the community expectations consideration, the Minister assessed the weight to be attached to that consideration without having regard to the applicant’s personal circumstances.

71    In a post-hearing submission which primarily relied upon the reasons of Beach J in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, the applicant contended that the Minister had to engage with the applicant’s personal circumstances in assessing what weight to give to the community expectations consideration. Relevantly, the applicant contended:

Here, a central vice relied on by the Applicant is that the Minister’s reasoning did not rationally and actively engage with how the community expectations identified in Direction 90 interacted with the Minister’s conclusions about the particular and compelling circumstances of the Applicant’s case. As Beach J observed in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 at [97], individual factors from a person’s specific circumstances “are brought to account when deciding what relative weight to give community expectations”. Here, as in Kelly, the Minister, having referred to deemed community expectations at [132], then immediately stated that he gave this “primary consideration significant weight”, without an explanation as to how those deemed community expectations weighed against the specific circumstances of the Applicant’s case. Consistently with the observations of Beach J in Kelly at [109], a Minister acting reasonably would have engaged with the Applicant’s personal circumstances in assessing what weight to give to deemed community expectations. Here, that did not occur.

72    By a post-hearing submission, the Minister contended that he was not obliged to consider the applicant’s personal circumstances “in identifying the imputed expectation of the Australian community as set out in the Direction”. Given the authority relied upon for that contention — the judgment of the Full Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 — it seems to me that what the Minister was here saying was that the personal circumstances of the applicant were not relevant to determining the expectations of the Australian community because that criteria is fixed by the Direction. It is not clear to me that the Minister was here saying that the applicant’s personal circumstances were not relevant to the Minister’s assessment of the weight to be given to the community expectations consideration and the post-hearing reply submissions made by the Minister did not contest the applicant’s reliance upon the observation made by Beach J in Kelly at [97] that personal circumstances “are brought into account when deciding what relative weight to give community expectations”.

73    If there is an issue between the parties as to whether the applicant’s personal circumstances are capable of being relevant to the assessment of what weight should be accorded to the community expectations consideration, I would hold, for the reasons that follow, that those circumstances are capable of being relevant and, having being raised by the applicant, had to be taken into account by the Minister.

74    Before further explaining why I have reached that conclusion, it is convenient to return to Kelly. In Kelly, Beach J considered the judgment of the Full Court in FYBR which had construed the predecessor direction to the Direction (Direction 79). His Honour observed at [69]-[71] that both Charlesworth J and Stewart J in FYBR had determined that Direction 79 treated the community expectations consideration as being the Government’s view about community expectations. The Direction states that the criteria for this consideration are that it is concerned with what the Government regards to be the expectations of the Australian community, does not speak to the outcome in any particular case and is not concerned with what the Government regards the community to expect in a given case. Accordingly, a decision-maker is not required to consider any countervailing factors specific to the given case in order to discern or assess the requisite criteria for the expectations of the Australian community.

75    However, as Beach J held at [71], “those countervailing factors might cause the decision-maker to give lesser weight to community expectations, relative to other considerations”. And further at [97]:

Further, FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations. (Emphasis added.)

76    Whilst it is not clear to me if Beach J intended to say that the emphasised sentence is attributable to FYBR, I note that the reasoning of Charlesworth J in FYBR at [76]-[77] is consistent with that observation.

77    In Kelly, Beach J held at [95] and [100] that, in light of the representations made by the applicant in relation to the community expectation consideration, it was incumbent upon the Minister to give active intellectual consideration to the specific circumstances of the applicant, including his very low risk of re-offending and the very serious impact of an adverse decision upon him. Having regard to the content and structure of the Minister’s reasons, his Honour determined that the Minister had failed to consider the applicant’s circumstances in assessing the weight the Minister had accorded to the community expectations consideration (at [109]-[112]) and, for that reason, jurisdictional error was demonstrated.

78    In the post-hearing reply submission responsive to the applicant’s reliance upon Kelly, the Minister did not contest the correctness of the principles applied by Beach J in Kelly, although it was noted that Kelly was determined just prior to the High Court’s decision in Plaintiff M1. Nor did the Minister contest the observations made by Beach J that, under the Direction, the specific circumstances of an applicant are factors which are to be taken into account when determining the weight to be accorded to the community expectations consideration. The fundamental point made by the Minister was that Kelly was distinguishable on the facts. Namely, that the inference able to be drawn in Kelly that the Minister had determined the weight to be accorded to the community expectations consideration without regard to the specific circumstances of the applicant cannot be drawn here because the structure of the Minister’s reasons is very different to the structure of the reasons given by the Minister in Kelly.

79    Whilst I consider that there are similarities of significance between the Minister’s reasons in Kelly and those given here, I accept that the way the two sets of reasons are structured are different in at least one relevant respect. Whilst I will bear in mind both the similarities and the differences, whether the relevant inference is available in this case is ultimately a matter for my assessment based upon the reasons as given by the Minister in the Decision.

80    To properly assess what the Minister did or failed to do, it is necessary to set out that part of the submission made to the Minister on behalf of the applicant in relation to the issue of “Community Expectations”:

Community Expectations

There is considerable decisional freedom attached to this issue. In most instances including the previous refusal to revoke the visa cancellation, the focus is almost exclusively on the rationale that the Australian community would expect people to obey the law and any breach must inexorably lead to non-revocation. This reasoning reduces a highly complex question into a single factor which in itself, we submit may be contrary to what a community might expect of decision-makers. On the contrary the decision-maker should bring an open mind to the full depth of an applicant’s current circumstances as contained in representations. In Mr Ali’s situation, it may be that the community would expect that a father who has continued to be involved in his family’s life despite the fact of detention, should be able to re-join them in the Australian community. This community view might be buttressed by the very real remorse shown by Mr Ali for his conduct, for what has been described as a lapse of judgment, albeit a serious one. The community may well see Mr Ali as person who has paid his debt to society; he has completed a term of imprisonment and has spent a further long period in immigration detention. The community is made up of countless disparate groups, including those who signed a petition in support of Mr Ali in the original revocation request. Put simply the community may expect that a single course of offending, when set against many positive factors, can and should be weighed in the applicant’s favour. We note also that the community might expect that a person should not be involuntarily returned to a country where they subjectively fear harm.

81    This representation sought to emphasise that the Minister had considerable decisional freedom on the “issue” of community expectations and that the Minister should consider the “full depth of an applicant’s current circumstances as contained in representations”. The submission then went on to list some such circumstances relevant to “[the applicant’s] situation”. Although it was not expressly stated that the applicant’s personal circumstances should be taken into account when the Minister considered the relative weight to be accorded to the community expectations consideration, it is sufficiently clear that the applicant was contending that those circumstances were relevant to that consideration as a whole and was seeking that the Minister take them into account in determining the significance that should be given to the community expectations consideration.

82    What needs to be considered next is how the Minister responded to those representations. Having given his understanding of the community expectations consideration as explained in the Direction at [64]-[66] (set out above), the Minister at [67] noted the petition signed by many members of the Australian community in support of the applicant and then at [68] referred to the applicant’s submission. In response to the extract from that submission which I have just set out dealing with the issue of “Community Expectations”, the Minister said this:

[68]    I also note Mr Ali's representations articulate that the Australian community would expect that a father who has striven to be actively involved in his family's life, despite being detained, should be reunited with them. Furthermore, the community may expect that a person who is truly remorseful for a lapse in judgement, albeit a serious one, has paid his debt to society through his incarceration and subsequent immigration detention. Finally, the Australian community might expect that a person should not be forcibly repatriated to a country in which they have a subjective fear of being harmed Attachment BB.

[69]    As the Direction makes clear, the consideration here is about the Government's views in relation to what the Australian community expects as a norm, as articulated in the Direction; it is not about what the community may expect in relation to the particular non-citizen having regard to their specific circumstances. Nevertheless, I have considered Mr Ali’s specific circumstances to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons.

83    The terms of [68] of the Minister’s decision are identical to the terms used by the Minister at [67] of the decision considered in Kelly (see Kelly at [25]) in a paragraph which was also responsive to representations made about the import of the applicant’s personal circumstances on the issue of community expectations. Of that response made by the Minister in Kelly, Beach J at [109] said this:

I agree with Mr Wood SC that a reasonable Minister responding to the applicant’s representations urging the Minister to have regard to all the evidence in assessing the “expectations of the Australian community” would not respond simply by saying that the Direction “is not about what the community may expect in relation to the particular noncitizen having regard to their specific circumstances”. Rather, a reasonable Minister would have regard to the applicant’s circumstances at least in assessing what weight to give the deemed expectations. It seems to me that that did not occur. (Emphasis in original.)

84    Those observations are apposite here. Read in context with what the Minister stated was his understanding of the Direction, and also in the context of the terms of the representations made by the applicant, a fair reading of [68]-[69] of the Minister’s decision demonstrates that the Minister regarded the applicant’s representations and reliance upon his personal circumstances as not at all relevant to the Minister’s consideration of the community expectations consideration under the Direction. That was because the Minister regarded the criteria for the community expectations consideration to be fixed by “the Government’s views in relation to what the community expects as a norm, as articulated in the Direction” and understood the representations made by the applicant as directed to persuading him to alter a criteria that was so fixed and thus unresponsive to the personal circumstances of an applicant.

85    A decision-maker is obliged to at least consider relevant representations made pursuant to s 501CA(3) of the Act: Plaintiff M1 at [24]-[25] (Kiefel CJ, Keane, Gordon and Steward JJ); WKMZ at [136] (Kenny and Mortimer JJ). Jurisdictional error may be established where a decision-maker ignores or misunderstands those representations: Plaintiff M1 at [27].

86    In my view, a reasonable Minister with a proper understanding of the Direction would have:

(a)    appreciated that the representations made by the applicant in relation to his personal circumstances were also directed to the significance that the Minister should attach to the community expectations consideration;

(b)    appreciated that the applicant’s personal circumstances were relevant (at least in the sense of being permissible considerations) to the weight that the Minister should give to the community expectations consideration; and

(c)    given the representations made, appreciated that regard should be had to the personal circumstances relied upon by the applicant in assessing the relative weight that the Minister should give to the community expectations consideration.

87    A fair reading of [68]-[69] of the Minister’s decision suggests that the Minister did not appreciate any of those matters.

88    It is sufficiently clear from what the Minister said at [69] that the Minister proceeded on the basis that the applicant’s personal circumstances were not relevant to the community expectations consideration at all and, to the extent they were relevant to the broader non-revocation decision, were only relevant to “my consideration of the matters discussed in other parts of this statement of reasons”.

89    I reject the Minister’s suggestion that the reference to “matters discussed in other parts of this statement of reasons” was intended to refer to [132] of the Decision where under the heading “Conclusion” and, having set out a number of conclusions, the Minister said:

Furthermore, I have considered that non-citizens who have engaged in crimes of a sexual nature against women raise serious character concerns such that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well towards non-revocation of the visa cancellation.

90    It is clear enough that when the Minister said at [69] that he had taken the applicant’s specific circumstances into account in considering issues later dealt with by the reasons, he meant that he had done so in relation to considerations other than the community expectations consideration.

91    In my view, an inference is available and should be drawn that in determining that the community expectations consideration should be given “significant weight … towards non-revocation of the visa cancellation”, the Minister did not have any regard to the personal circumstances relied upon by the applicant in relation to that consideration.

92    Contrary to the contention in the applicant’s post-hearing submission, quoted at [71] above, the Minister is correct to contend that, unlike the position in Kelly, the conclusion as to the weight to be attributed to the community expectations consideration was placed in the conclusion section of the reasons rather than (as in Kelly) in an earlier section specifically addressing the community expectations consideration. I also accept that that placement was regarded by Beach J as of significance to the inference his Honour drew: at [98]-[100]. However, in my view, the inference I draw is available from what the Minister said at [68]-[69]. It is available irrespective of the placement of the bare conclusion as to weight at [132] and is not negated by that placement.

93    In deciding whether there was “another reason” to revoke the cancellation decision, the Minister was required to “read, identify, understand and evaluate” (Plaintiff M1 at [24], [36] (Kiefel CJ, Keane, Gordon and Steward JJ)) the representations made by the applicant in relation to his personal circumstances and the reliance placed upon those circumstances in relation to the weight to be attributed to the community expectations consideration. By essentially reasoning that the applicant’s personal circumstances were not at all relevant to the community expectations consideration, the Minister failed to properly consider the representations made. For those reasons, jurisdictional error is established.

Conclusion

94    Accordingly, the application will be allowed. As the applicant has succeeded it would ordinarily be ordered that the applicant’s costs be paid for by the Minister. However, as I have not heard from the parties on the question of costs, I will make an order which preserves the capacity of the Minister to contend that the ordinary order should not be made and, if no such contention is made, that the Minister pay the applicant’s costs.

Associate:

Dated:    31 May 2023