Federal Court of Australia
BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: | 30 JUNE 2023 |
THE COURT ORDERS THAT:
1. The name of the first respondent is amended to the Minister for Immigration, Citizenship and Multicultural Affairs.
2. The amended originating application for judicial review is granted.
3. A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 11 August 2022.
4. A writ of mandamus issue directed to the Tribunal, requiring it to determine the applicant’s review application according to law.
5. The respondent is to pay the applicant’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant is a citizen of South Sudan with multiple disabilities, including an acquired brain injury and cognitive impairment. The applicant is in immigration detention and has been in custody or detention since 2010. On 18 April 2019, a delegate of the first respondent, the Minister for Immigration, Citizenship, and Multicultural Affairs, found the applicant to be a person to whom Australia owed protection obligations.
2 This is an application for judicial review under s 476A of the Migration Act 1958 (Cth) of a decision by the second respondent, the Administrative Appeals Tribunal, dated 11 August 2022. In that decision, the Tribunal affirmed a decision of the delegate of the Minister made on 17 May 2022 refusing the applicant’s application for a Protection (Class XA) visa (protection visa) under s 501(1) of the Act. Section 501(1) of the Act provides that “the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister than the person passes the character test”.
3 Before the Tribunal, the applicant conceded that he did not pass the character test. As such, the only issue before the Tribunal was whether the discretion in s 501(1) should be exercised to refuse to grant the applicant the protection visa. In the exercise of that discretion, the Tribunal was obliged by reason of s 499(2A) of the Act to apply Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
4 At the hearing, I made orders by consent granting leave for the applicant to rely on an amended originating application for judicial review (amended application). The grounds of judicial review raised by the amended application and elucidated in the applicant’s submissions may be summarised as follows:
(1) The Tribunal failed to correctly interpret and apply cl 9.2 of Direction 90, which provides that decision-makers “must” consider the extent of impediments that the non-citizen may face if removed from Australia to their home country.
(2) The Tribunal failed to correctly interpret and apply cl 9.4.1 of Direction 90, which requires that consideration be given to the impact of the decision on the non-citizen’s immediate family members in Australia.
(2B) In the alternative to grounds 1 and 2, the Tribunal’s reasoning was seriously illogical, irrational, and/or otherwise unreasonable. Specifically, the Tribunal reduced the weight to be given to other considerations required to be taken into account under Direction 90 because the applicant could be removed only if he “chose” to be removed to a country where he would be “at risk of arbitrary detention in extremely poor conditions”, in circumstances where refusal of the visa meant that the applicant otherwise faced indefinite detention.
(3) The Tribunal denied the applicant procedural fairness in finding that the applicant’s prospects of employment were low, and “absent being engaged in full time in employment, it would seem likely that the applicant will have an abundance of time on his hands”, which would exacerbate the risk of reoffending.
(4) The Tribunal denied the applicant procedural fairness by failing to respond to substantial, clearly articulated arguments advanced that his indefinite detention would be contrary to Australia’s international obligations under the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS 999 (entered into force 23 March 1976) (ICCPR) and the Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, UNTS 2515 (entered into force 3 May 2008) (CRPD).
5 At the conclusion of the hearing, the Minister was granted leave to file further written submissions addressing ground 2B of the amended application, and did so on 2 February 2023 (Minister’s post-hearing submissions). The applicant was also granted leave to file submissions in reply to the Minister’s post-hearing submissions, and further in reply to the Minister’s oral submissions made at the hearing. These submissions were filed on 9 February 2023 (applicant’s post-hearing submissions). I acknowledge the very considerable assistance afforded by the well-reasoned and helpful written and oral submissions made on behalf of both parties.
6 For the reasons that follow, ground 2B must be upheld and the application for judicial review granted.
7 As mentioned above, the grounds of judicial review focus upon the manner in which the Tribunal applied certain clauses of Direction 90.
8 Section 499(1) of the Act provides that the Minster may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those functions or powers. Section 499(2A) provides that a person or body must comply with a direction made under s 499(1). Direction 90 was made pursuant to s 499 of the Act and came into force on 15 April 2021. That Direction has since been superseded by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA which commenced on 3 March 2023 but is not relevant to this proceeding.
9 Direction 90 distinguishes between “primary considerations” (cl 8) and “other considerations” (cl 9). This significance of the distinction between the two types of considerations is articulated in cl 7 as follows:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
10 Two clauses setting out other considerations are directly raised by the grounds of judicial review. First, clause 9.2 of Direction 90 provides:
9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
11 Secondly, clause 9.4.1(1) of Direction 90 provides:
9.4.1 The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
12 These clauses require the decision-maker to have regard to the practical impacts of a decision refuse a visa. Clause 9.2 would seem to assume that the legal consequence of a visa refusal and cancellation under s 501 will be removal of the non-citizen to their home country. Clause 9.4.1 is not limited in its terms to consideration of the impact of removal on the non-citizen’s family and is therefore capable of requiring consideration of the impact of the decision on family members if the non-citizen is either removed or indefinitely detained, although the latter consequence (indefinite detention) was not expressly contemplated by that clause.
13 Importantly, in that regard, when Direction 90 commenced on 15 April 2021:
(1) section 197C(1) of the Migration Act provided that, for the purposes of s 198 imposing an obligation on an officer to remove an unlawful non-citizen as soon as reasonably practicable, it was irrelevant whether Australia had non-refoulement obligations in respect of the unlawful non-citizen; and
(2) section 197C(2) provided that an officer’s duty to remove a non-citizen from Australia as soon as reasonably practicable under s 198 arises irrespective of whether there had been any assessment of Australia’s non-refoulement obligations.
14 At the time that Direction 90 came into effect, therefore, the fact that removal of an unlawful non-citizen would place Australia in breach of its international non-refoulement obligations was irrelevant to whether it was reasonably practicable to remove the unlawful non-citizen: Commonwealth v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [8] and [67] (Kiefel CJ, Gageler, Keane and Steward JJ).
15 However, s 197C was amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) with effect from 25 May 2021. Section 197C as amended therefore applied when the Tribunal made its decision on 11 August 2022. Significantly, the amending Act inserted s 197C(3). That provision relevantly provided that the obligation to remove an unlawful non-citizen in ss 197C(1) and (2) did not extend to non-citizens in respect of whom an assessment has been made that they engage Australia’s non-refoulement (i.e. protection) obligations. As a result, unless an unlawful non-citizen could be removed to a safe third country, requested removal, or was granted a visa, she or he faced the prospect of indefinite immigration detention.
16 With respect to the applicant’s present circumstances, the Tribunal accepted that currently the applicant could not be removed to a safe third country (at [229](b) and [230]). It also accepted that, by virtue of s 197C(3), the applicant could not be forcibly removed to South Sudan because a protection finding had been made in relation to him (at [229]). This statutory prohibition on removing the applicant to South Sudan, unless requested by him, was also recognised in the Department’s letter to the applicant dated 3 March 2022 (at AB496-497). That letter explained that as a result of the amending Act, if the applicant was refused a visa, his detention “may continue for an indefinite period” because he is a non-citizen for whom a protection finding has been made.
17 The errors in the Tribunal’s reasoning, which I later uphold, may have stemmed in part from the difficulties in applying Direction 90 in light of the subsequent insertion of s 197C(3) into the Act. Direction 90 was not amended to reflect the fundamental change which s 197C(3) effected to the circumstances in which a non-citizen might be removed to their country of origin, where a protection finding has been made with respect to that person. (I interpose that Direction 99, which repealed Direction 90 and came into force on 3 March 2023 after the Tribunal’s decision, now requires decision-makers to have regard to the legal consequences flowing from s 197C(3) for non-citizens covered by a protection finding as an “other consideration”: see cl 9.1.1(2) of Direction 99.)
18 Be that as it may, my task is to consider whether the Tribunal’s decision, including its consideration of Direction 90, is affected by jurisdictional error. I have concluded that the Tribunal’s reasons were legally unreasonable for the reasons which follow.
2.2 The application for a protection visa and the protection finding
19 The background to this matter is not contentious and is summarised in the applicant’s submissions (at [1]-[3]):
The applicant in this matter is a refugee of South Sudanese background, with multiple disabilities including an acquired brain injury, cognitive impairment, and post-traumatic stress disorder. He was resettled in Australia at the age of 16, together with two of his siblings. He became homeless shortly after his arrival in Australia. He commenced offending in 2010 and has been in custody or detention since 2012. His humanitarian visa was mandatorily cancelled on 2 February 2017, and he subsequently applied for a protection visa.
The applicant was found to be owed protection by a delegate of the first respondent (Minister) on 18 April 2019. In broad summary, the applicant’s father was a [redacted] in Khartoum during the civil war, and [the] applicant fears retribution from the families of people [redacted] by his father, as well as facing discriminatory treatment by reason of his multiple disabilities (AB2: 1575-1590). The delegate was satisfied that the applicant met the criteria in s 36(2)(a) of the Act with respect to South Sudan, and was not a danger to Australia’s security or the Australian community (s 36(1C)) (AB2: 1561).
On 17 May 2022, a different delegate of the Minister refused his application for a protection visa under s 501(1) of the Migration Act 1958 (Cth) (Act) …. The Tribunal affirmed that refusal on 11 August 2022 (AB2: 1966) (T). It is that decision which forms the basis of this application for judicial review.
(Emphasis in original.)
20 Before turning to the Tribunal’s reasons, it is convenient to emphasise at the outset three factors which are not in dispute, and were also accurately summarised in the applicant’s submissions (at [9]-[11]):
First, is the finding made by a delegate of the Minister on 18 April 2019 that the applicant is a person in respect of whom Australia has protection obligations (with respect to South Sudan) pursuant to s 36(2)(a) of the Act. Relatedly, the delegate made a finding that the applicant does not have the right to enter or reside in any other countries.
Second, is the acceptance by the Minister and the Tribunal, that the practical consequence of a decision to refuse the applicant a protection visa was that the applicant would be subject to indefinite detention.
Third, is the significant volume of material before the Tribunal demonstrating that the applicant has serious disabilities. The Tribunal had before it a Report of Mr Tim Watson-Munro, Consultant Psychologist, dated 19 July 2022. In that report, Mr Watson-Munro sets out that by reason of his low level of cognitive function, the applicant’s prospects of employment were limited. However, the Tribunal also had before it plans for community integration prepared by Tom Hall, mental health social worker, dated 6 July 2022. That plan set out steps to regaining employment, which commenced with an application for a disability support pension, followed by the obtaining of employment through disability support agencies.
(Emphasis in original; cross-references omitted.)
21 The applicant conceded before the Tribunal that he does not pass the “character test” because he has a “substantial criminal record”. Accordingly, as I previously explained, the only issue before the Tribunal was whether it should exercise the discretion in s 501(1) of the Act to refuse to grant the applicant a protection visa. At the outset, the Tribunal correctly observed that in exercising its discretion, it was “bound by s 499 of the Act to comply with” Direction 90 (at [32]).
22 In essence, the Tribunal affirmed the Minister’s decision to refuse the application for a protection visa, for reasons summarised briefly in its conclusion as follows (at [301]-[305]).
(1) Significant weight in favour of refusing the visa should be given to two primary considerations under Direction 90, namely, protection of the Australian community from criminal or other serious conduct and the expectations of the Australia community.
(2) Weighing against a decision to refuse to grant the applicant a visa were:
(a) the primary consideration as to the best interests of minor children in Australia, albeit only to “a slight extent”;
(b) other considerations concerning non-refoulement obligations, to a significant extent;
(c) impediments to be faced by the applicant should he be removed from Australia, to a moderate extent; and
(d) the applicant’s links to the Australian community, to a slight extent.
(3) The general position under Direction 90 that primary considerations are given greater weight than the other considerations is not displaced in the circumstances of this case where two of the three relevant primary considerations weigh significantly in favour of a decision to refuse to grant the applicant a visa.
23 Focusing upon the findings most relevant to this proceeding, in the course of considering primary considerations under Direction 90, the Tribunal (at [75]-[148]) considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (cl 8.1.2 of Direction 90). In this regard, the applicant made submissions and produced evidence before the Tribunal of the significant support that he would receive if released into the community, including a plan for community integration prepared by Tom Hall, a mental health social worker (at [134]-[136]). The Tribunal also had regard to the applicant’s plan in the community to “get a job”, “earn his living”, and “support his family” (at [137]).
24 However, the Tribunal expressed “concern” about the “prospects of the applicant devoting ongoing endeavours to the care plan” because “what the applicant wants to achieve in the community may well not be achievable”. Amongst other reasons the Tribunal expressed this concern because the first step in the community integration plan entailed the making of an application for a disability support pension, and the Tribunal stated that qualifying for such a pension requires “that there be a continuing inability to work” (at [137]). The Tribunal found at [144]-[145] that:
As for the purpose of the applicant’s intended stay in Australia, this both ameliorates and exacerbates the risk of harm being suffered consequent upon the applicant re-offending. It ameliorates that risk given that one purpose of the applicant’s intended stay in Australia is to reside with his brothers … Another purpose of the applicant’s stay in Australia would appear, however, to exacerbate the risk of the community being harmed by the applicant re-offending. The applicant has little work experience and, on the material before me, no significant employable skills. The likely difficulty in the applicant obtaining employment in the community is, as indicated earlier, recognised in Mr Watson-Munro and in Mr Hall’s care plan (given the significance accorded in the plan to the applicant applying for a disability support pension).
This has two consequences. First, the applicant may well be frustrated, given that his evident desire to “work and earn his living, and support his family.” Second, absent being engaged in full time in employment, it would seem likely that the applicant will have an abundance of time on his hands. This is not conducive to pro-social behaviour given the resultant potential for boredom, especially when coupled with the relative lack of supervision and control when free in the community.
These findings are challenged by ground 3 of the amended application.
25 Accordingly, the Tribunal held that the protection of the Australian community consideration weighed in favour of an exercise of discretion to refuse to grant the protection visa (at [146]).
26 The Tribunal then turned to consider “Other Considerations” for the purposes of Direction 90.
27 First, the Tribunal considered the circumstances in which the applicant might be removed to South Sudan. It accepted that, as the applicant was a person to whom Australia owed protection obligations, it would be a breach of those obligations to forcibly remove him to South Sudan and, therefore, he could not be forcibly removed to South Sudan by virtue of s 197C(3) of the Act (at [227]). That being so, the Tribunal found that, despite s 198(6) of the Act (which required an unlawful non-citizen to be removed as soon as possible if a completed visa application had been determined adversely to the non-citizen), if a decision is made not to grant the visa, his removal to South Sudan “will neither be required nor authorised except in certain limited circumstances, none of which are presently applicable” (at [228]; see also at [229]). As a result the Tribunal found at [230] that:
None of these reasons for ending the applicant’s detention currently apply. Moreover, on the material before me and absent the applicant asking for removal, I am not satisfied that any of these reasons are likely to come to apply soon, within any particular period or at any particular time. Given this, like the applicant in BNGP, the applicant faces the “prospect of immigration detention for an indefinite period”, that is without a currently known end point.
28 Secondly, the Tribunal accepted that indefinite detention, and indeed the prospect of indefinite detention, were likely to have “severe adverse consequences for the applicant” (at [231]). The Tribunal referred, in this context, to the submission by the applicant that detention of that nature would have adverse consequences in that it would see Australia in breach of certain international obligations, namely (at [232]):
(1) Article 9 of the ICCPR proscribing arbitrary detention;
(2) Article 7 of the ICCPR proscribing cruel, inhuman or degrading treatment or punishment; and
(3) Articles 14 and 15 of the CRPD requiring persons with disabilities enjoy the right to liberty on an equal basis with others and are not arbitrarily detained.
29 However, the Tribunal found that, having regard to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, it was not under an obligation to form an opinion on the correctness of the applicant’s claim about indefinite detention contravening the ICCPR and CRPD (at [233] and [235]). This was because, in accordance with Plaintiff M1, the Tribunal stated that “[i]nternational obligations unenacted in Australian law are not mandatory relevant considerations” (at [235]). This finding is challenged by ground 4 of the amended application.
30 Thirdly, the Tribunal noted that cl 9.2 of Direction 90 required that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to South Sudan (at [255]). In considering this issue, the Tribunal rejected the Minister’s submission that this consideration should be given reduced weight because it was unlikely that the applicant would be removed to South Sudan (at [271]-[272]). Rather, the Tribunal found (at [272]) that:
Removal is inherent in this consideration. What I am required to take account of are impediments to be faced by the applicant “if removed to …[his] home country.” In purporting to take this consideration into account I am unable to arrive at factual findings inconsistent with doing so. While I need not take account of a consideration which is irrelevant in the circumstances, the respondent is not submitting that this consideration is irrelevant (and nor was its relevance an issue in contention between the parties or one which the applicant was asked to address). When taking this consideration into account the likelihood of removal is irrelevant. Removal is assumed.
31 In assessing this consideration, the Tribunal accepted that the applicant had little in the way of employable skills and had a low level of cognitive function meaning that his employment prospects were at best limited (at [261]). The Tribunal also accepted (at [262]-[265]) that:
The difficulties in earning a living to which his lack of employability gives rise would be compounded by cultural barriers and a lack of social, economic and medical support.
The applicant has never been to South Sudan and has no family there. His brother indicated that the applicant has no knowledge of the tribes in South Sudan.
The relative lack of health care services mentioned earlier reinforces a submission made on behalf of the applicant to the effect that he will be unable to access health care for his mental health conditions if returned to South Sudan.
The applicant requires support, including medical and psychological services support. As noted earlier, the provision of ongoing support is said to be vital. In her May 2017, report Dr Scally said that the applicant “… will require significant treatment and support services to manage his mental health needs and assist with his daily functioning. Indeed, he has no history of independent functioning, or acquired occupational skills to assist him to function independently and has a very poor capacity to learn new skills unassisted.”
(I note that, while at times the Tribunal referred in its reasons to whether the applicant could be “returned” to South Sudan, that language was inaccurate as the applicant had, as the Tribunal accepted above, never in fact been to South Sudan.)
32 Accordingly, the Tribunal found that the applicant would face “very significant impediments in establishing and maintaining basic living standards” (at [270]). The Tribunal also found that “[a]s a person who suffers from mental health disorders whose condition in South Sudan would likely deteriorate, the applicant would be at risk of arbitrary imprisonment in extremely poor conditions” if removed to South Sudan (at [267]). In this regard, the Tribunal at [268] referred to (and apparently accepted) the findings of a 2016 Amnesty International Report that:
Individuals with mental health conditions deemed to pose a danger to themselves or other often end up arbitrarily detained in prison, even if they have not committed any crime… In prison, people with mental health disorders receive insufficient medical care, if any at all …. Although general living conditions in South Sudan’s prisons are extremely poor, inmates with mental disorders are often naked, chained or held in solitary confinement.
(Emphasis added.)
33 The Tribunal referred to the assessment conducted in 2019 in relation to the applicant’s claim to be owed protection obligations, which found that the applicant’s fear of persecution in South Sudan as a person with disabilities was well founded (at [269]). The Tribunal gave significant weight to that finding (at [269]).
34 While, as I have earlier held, the Tribunal accepted that it was required to consider the impediments to the applicant “if removed to … [his] home country”, it found that currently the applicant will “only be removed if he asks to be removed” (at [272]-[273]). Accordingly, the Tribunal found that the impediments the applicant would face on removal are ones he “would only need face because of a choice he made”. The Tribunal continued (at [275]-[277]):
It is said that the choice to ask to be removed would not be one made voluntarily, given that the alternative, should the grant of a visa be refused, would be the admittedly bleak prospect of detention for an indefinite term.
As I see it, however, choices are often made in the context of stressors. That, of itself, is not sufficient to deprive the relevant choice of its voluntary character. While the severity of a stressor may be such as, in reality, to leave little option but to choose a particular course, on the material before me, I am not satisfied that the prospect of detention for an indefinite term is such a stressor. It is by no means an attractive proposition. That fact, however, does not render in voluntary a choice to ask for removal from Australia.
Accordingly the impediments to maintaining basic living standards the applicant will face in South Sudan will be a direct consequence of a choice he makes voluntarily. Any nexus between those impediments and a decision to refuse to grant the applicant a visa will be relatively remote. This serves to reduce the weight otherwise attributable to this consideration.
35 The Tribunal concluded that this consideration weighed in favour of not exercising the discretion to refuse to grant the applicant a visa “to a moderate extent” (at [278]-[279]). This was said to be because “the applicant would face very significant impediments in establishing himself and maintaining basic living standards, if removed to South Sudan, at least in part because of the choice voluntarily made by him” (at [279]).
36 This finding is challenged by grounds 1 and 2B of the amended application.
37 Fourthly, pursuant to cl 9.4.1 of Direction 90, the Tribunal considered the strength, nature and duration of ties to Australia, including the impact of the decision on the applicant’s immediate family members in Australia (at [284])-[293]).
38 The Tribunal found that a decision to refuse the grant of a visa “will be emotionally distressing for both [of the applicant’s] brothers, especially if (as [the Tribunal] consider[ed] likely) the applicant’s mental health was to deteriorate in detention” (at [288]). It also accepted that a decision to refuse the grant of a visa to the applicant “will be emotionally distressing” for Ms H, with whom the applicant has a close personal relationship (at [292]). As for the applicant’s ties to the Australian community, the Tribunal considered that they were not extensive (at [289] and [293]).
39 Therefore, the Tribunal accepted that if the applicant were removed to South Sudan, “the impact on those with whom the applicant has ties in the Australian community would be more severe”. However, it concluded that (at [299]-[300]):
As I see it, however, that impact would be a result of the applicant asking to be removed from Australia. As indicated earlier, any nexus between that impact and a decision to refuse to grant the applicant a visa would be relatively remote.
Given these matters, I attribute only slight weight to this consideration.
40 This finding is challenged by grounds 2 and 2B of the amended application.
41 Finally, the Tribunal accepted (at [228], footnote 232) that in April 2022, the applicant had asked to be removed to South Sudan, but that request was subsequently withdrawn. The Tribunal also referred to evidence before it where the applicant indicated that he would or may request removal if the protection visa were not granted (at [243]). However, ultimately the Tribunal made no finding as to the applicant’s intentions in this regard.
3. GROUNDS OF THE AMENDED APPLICATION FOR JUDICIAL REVIEW
3.1 Was the Tribunal’s reasoning as to the weight to be given to cll 9.2 and 9.4.1 legally unreasonable (ground 2B)?
3.1.1 Legal unreasonableness: relevant principles
42 It is helpful to briefly summarise the relevant principles governing legal unreasonableness.
43 First, legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58] (the Court). In determining whether an administrative decision is vitiated by legal unreasonableness, it is essential to bear in mind that the Court’s jurisdiction is strictly supervisory, and does not involve the Court reviewing the merits or substituting its own view as to how the discretion should be exercised: Li at [66] (Hayne, Kiefel and Bell JJ); Eden at [59] (the Court).
44 Secondly, Gordon J explained in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 at [43]:
unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached.
45 Thus, as Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133], “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. As their Honours continued (at [135]):
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.
(Emphasis added.)
46 It follows that the threshold for finding that the end result or fact finding leading to the end result is illogical or irrational is high. It is not a finding lightly made.
47 Thirdly, an evaluation of whether a decision in the exercise of a statutory power is legally unreasonable must be made having regard to the terms, scope and policy of the statutory source of the power: see e.g. Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ, with whose reasons Wigney J agreed at [90]). Thus, as the Full Court of the Federal Court explained in Eden at [63]:
in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]–[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].
48 Finally, as indicated in this passage from Eden, the question of legal unreasonableness is highly fact-focused. As such, only limited assistance can be gleaned from other cases, especially where the facts, including the precise line of reasoning adopted by the decision-maker, are different. As Allsop CJ held in Eden the “concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary” (at [10]). Whether a decision is unreasonable will ultimately depend upon the “nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law” (at [7]).
3.1.2 Particulars of ground 2B and its relationship with grounds 1 and 2
49 While ground 2B of the amended application is pleaded in the alternative to grounds 1 and 2, the applicant submitted that if Ground 2B is made out, it is unnecessary for the Court to address grounds 1 or 2. This is because grounds 1 and 2 “raise precisely the same substance” as ground 2B, “albeit with a different legal complexion” (applicant’s reply submissions at [7]), and can essentially be subsumed into ground 2B as they suffer from the same alleged illogicality. As such, it is unnecessary separately to consider grounds 1 and 2, given that I consider that ground 2B is established.
50 Ground 2B is pleaded in the following terms:
[T]he decision of the Tribunal is affected by jurisdictional error in that:
(a) clause 9.2 of Ministerial Direction no. 90 provides that decision-makers “must” consider the extent of impediments that the non-citizen may face if removed from Australia to their home country;
(b) clause 9.4.1 of Ministerial Direction no. 90 requires that consideration be given to the impact of the decision on the non-citizen’s immediate family members in Australia;
(c) in respect of (a) above, the Tribunal:
(i) found that “the applicant would face very significant impediments in establishing himself and maintaining basic living standards” in South Sudan (at [270]), including that he “would be at risk of arbitrary imprisonment in extremely poor conditions” as a person with disabilities (at [267]);
(ii) reasoned that that the applicant will only be removed if he asks to be removed, and so “the impediments the applicant would face on removal to South Sudan are ones he would only need face because of a choice he made” (at [273]-[274];
(iii) reasoned that (ii) above moderated the weight otherwise attributable to this consideration (at [277]); and
(d) in respect of (b) above, the Tribunal:
(i) accepted that if the applicant were to be removed to South Sudan, the impact on those with whom the applicant has ties in Australia would be “severe” (at [299]);
(ii) reasoned that the cause of that impact would be the applicant asking to be removed from Australia and so “any nexus between that impact and a decision to refuse to grant the applicant a visa would be relatively remote” (at [299]);
(iii) reasoned that (ii) above moderated the weight to be attributed to this consideration (at [300]);
(e) whether the applicant’s removal from Australia would be voluntary could not rationally or reasonably bear on the weight to be attributed to the considerations under clause 9.2 and/or clause 9.4.1; and
(f) in the premises, the Tribunal reasoned in a manner that was seriously illogical, irrational and/or unreasonable.
51 In short, the pleadings focus upon the Tribunal’s finding that the applicant could be removed from Australia only at his own request, and the related findings to, therefore, reduce the weight which the Tribunal would otherwise have attributed to the “other considerations” in cl 9.2 (the extent of impediments in South Sudan) and cl 9.4.1 (the impact on his family in Australia). The question raised by ground 2B is whether the Tribunal’s process of reasoning with respect to these considerations was illogical, irrational and/or otherwise legally unreasonable.
3.1.3 The parties’ submissions
52 In the applicant’s submission, ground 2B is predicated on the Tribunal’s “misconstruction” of the terms of Direction 90. The applicant submits that the Tribunal reasoned in a manner that was seriously illogical, irrational, and/or unreasonable by taking into account the “voluntariness” of his removal from Australia to South Sudan in weighing the considerations under cll 9.2 and/or 9.4.1 of Direction 90. Specifically, the applicant submits that, in the particular circumstances of his case, whether any removal from Australia was voluntary could not rationally or reasonably bear on the weight to be attributed to the extent of impediments he would face in South Sudan or the impact on his family in Australia.
53 In the applicant’s submission, there was “not a skerrick of evidence to suggest that he would choose to go to Sudan other than because the visa was refused”. The applicant therefore contends that it is irrational to consider such a decision to be voluntary, in circumstances where the choice is imposed between indefinite detention in Australia or removal to South Sudan, where he is likely to face significant impediments and would (as the Tribunal found) be “at risk of arbitrary imprisonment in extremely poor conditions”. On the applicant’s submissions, the evidence discloses that any such choice was one that was in effect forced on him by reason of his circumstances as a result of a decision to refuse the visa. In this context, the applicant submitted that the fact that he could be removed only if he requested removal cannot logically bear on the weight to be given to the impediments he would face in South Sudan, or the impact of his removal on his family. In this regard, the applicant sought to distinguish the decision in Fonoti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1553 on which the Minister relied where a similar argument was unsuccessful (as I shortly explain).
54 The Minister, however, contended that “the applicant’s argument was tantamount to saying that the Tribunal was forbidden from having regard to the voluntary nature of his removal from Australia in applying cll 9.2 and 9.4.1.”
55 In the Minister’s submission, the starting point is the Tribunal’s finding that “if a decision were made not to set aside the decision under review, the applicant could only be removed to South Sudan voluntarily”, and that the applicant would request removal in those circumstances. The Minister summarised the Tribunal’s reasoning as follows (respondent’s submissions at [8]):
Because the applicant’s removal to South Sudan could only be effected under s 198, if he made a request to be removed within the scope of s 197C(3)(c)(iii) of the Migration Act 1958 (Cth), the significant impediments that he would face on his return to that country would not be the consequence, or at least not the direct consequence, of the Tribunal’s decision to affirm the visa refusal decision. Any adverse consequences that may result from being exposed to those significant impediments would be the direct result of the applicant’s request to be removed (or a subsequent decision under s197D of the Act).
(Emphasis added.)
56 The Tribunal’s reasoning, the Minister contends, is “hardly ‘extreme’ illogical or irrational reasoning”, nor “outside of the ambit of the “decisional freedom” of a decision-maker” when considering the weight to be given to cll 9.2 and 9.4.1. The “true cause” of the impediments the applicant would face and consequences on his family “would not be the Tribunal’s decision to affirm the decision under review, but rather the applicant’s choice to depart Australia voluntarily”.
57 While the Minister accepts that “the choice that would confront the applicant if his visa application were unsuccessful would be a harsh one: potentially indefinite detention in Australia or removal to South Sudan”, he nonetheless submits (at [13]) that:
there is plainly a logical connection between the voluntariness of a person’s removal from Australia to their receiving country and the degree of weight that may be placed on factors such as the extent of impediments that they may face if removed or the impacts of refusal on their immediate family in Australia. Whether a choice to depart Australia is made because the visa applicant desires to return to their home country or cannot tolerate potentially indefinite detention in Australia may rationally inform the extent to which the decision-maker places weight on the mandatory considerations in cll 9.2 and 9.4.1 in the person’s favour, but the applicant makes no complaint about the degree of weight placed on the voluntariness of his removal; rather, his complaint is that the weight to be given to those considerations “could not logically or rationally be affected” – that is, could never be informed – “by whether his removal was “voluntary” or “involuntary”” (ASR [7]).
58 The thrust of the Minister’s submission, therefore, is that the Tribunal’s reasoning discloses a logical connection between the applicant’s voluntary removal to South Sudan and the extent to which the Tribunal placed weight on the extent of impediments that the applicant would face in that country (cl 9.2) and the strength of his connections to Australia (cl 9.4.1). The Minister relies on Fonoti in support of the proposition that the choice made by a non-citizen to depart Australia voluntarily is not irrelevant to what weight that may be placed on the strength of their ties to Australia.
59 In essence, the differences in position between the parties may be understood in the following manner (as succinctly explained by counsel for the applicant):
[The Minister] says … because the applicant makes a choice to be removed, whatever the character of that choice – a voluntary choice – therefore, the – it was permissible for the tribunal to give less weight to the impediments. And [the applicant] say[s] the fact of that choice has no rational connection … [t]o the weight to be given to the impediments and to the weight to be given to ties.
3.1.4 Reasons for upholding ground 2B
60 I agree with the applicant’s submission that the Tribunal’s reasoning at [277] and [300] to reduce the weight to be given to the other considerations in cll 9.2 and 9.4.1 is, with respect, irrational, illogical and otherwise unreasonable for the following reasons, and ground 2B must therefore be upheld.
61 First, as explained above, there was no suggestion before the Tribunal or on judicial review that the considerations specified by cll 9.2 and 9.4.1 of Direction 90 were irrelevant, whether by reason of the fact that the applicant could not be forcibly removed to South Sudan by virtue of s 197C(3) or for some other reason. Rather, the Tribunal, and the parties on the application for judicial review, proceeded on the basis that the Tribunal was required to consider cll 9.2 and 9.4.1 by virtue of s 499 of the Act and that “[r]emoval is inherent in this consideration” (at [272]). It will also be recalled that the Tribunal found that the likelihood that the applicant would be removed was irrelevant (at [272]).
62 There is no suggestion on this application that the Tribunal was wrong in so finding. Against this context, therefore, the sole issue raised by ground 2B is whether it was illogical, irrational or otherwise legally unreasonable for the Tribunal to reduce the weight which it would otherwise have given to the other considerations in cll 9.2 and 9.4.1 because, in the applicant’s current circumstances, the Tribunal found that the only way in which he could be removed to South Sudan was at his own request.
63 Secondly, contrary to the Minister’s characterisation of this ground, ground 2B does not allege that the Tribunal took into account an irrelevant consideration under s 501(1) when finding that the applicant’s removal from Australia to South Sudan, if any, could only (currently) occur at his request. The applicant accepted that the fact of a voluntary choice to be removed could, in some cases, be relevant to the Tribunal’s assessment of the considerations in cll 9.2 and 9.4.1, as illustrated by the decision in Fonoti. Furthermore, while grounds of judicial review may overlap to some extent, the question of whether the Tribunal took into account an irrelevant consideration does not, of course, necessarily answer the question of whether the Tribunal’s reasoning is illogical, irrational or otherwise unreasonable.
64 Thirdly, the Tribunal did not find that the fact that any removal would be at the applicant’s request somehow lessened the impediments that he would face if removed to South Sudan, or was a basis on which to infer that the strength of his ties in Australia were weaker than he might have claimed. This is a critical point of distinction between the present case and the decision in Fonoti on which the Minister relied.
65 In Fonoti, the applicant decided to depart from Australia whilst she was in immigration detention during the period when her application for revocation of mandatory cancellation of her visa was being considered. That request was accepted and she returned to New Zealand for a period of time before returning to Australia where her continued criminal offending led again to mandatory cancellation of her visa. Relevantly, as explained by Sarah C Derrington J in Fonoti at [48] and [50], the applicant alleged that, in deciding that there was not another reason for revoking the cancellation, the Tribunal erred in the following way:
It is contented that the Tribunal’s categorisation of Ms Fonoti’s election to voluntarily remove herself under s 98(1) of the Migration Act on the last occasion on which she was detained in immigration detention in 2017 and its finding that she ‘gave not a second thought to her Australian based family at that time’, which ‘tempered’ the strength of her social and familial ties to Australia, was illogical and/or irrational.
…
The ‘illogical’ path of reasoning was said to be a failure on behalf of the decision-maker to have regard to the statutory scheme which, in effect, forced Ms Fonoti to choose between indefinite detention, because no time limit is imposed upon the Minister’s decision-making process, or requesting removal to New Zealand.
66 Sarah C Derrington J rejected this ground on the basis that, while harsh, the finding “is not one that no reasonable person could have arrived at in light of all the evidence that was before the Tribunal” (at [52]; emphasis added).
67 The Minister’s reliance in this case on Fonoti is, with respect, misplaced. As I have earlier explained, the question of legal unreasonableness is fact-focused. Thus, as Sarch C Derrington J held, the question of whether the Tribunal’s finding was irrational or illogical turned upon the evidence before the Tribunal in Ms Fonoti’s case. In that case, there was a logical basis for finding that a decision made by Ms Fonoti at an earlier time to voluntarily return to New Zealand, rather than remain in immigration detention and await the outcome of her request for revocation of the mandatory visa cancellation decision, was relevant to assessing the strength of her familial and social ties in Australia. The relevance lay in the (albeit harsh) inference drawn by the Tribunal that her earlier decision to voluntarily return showed that the applicant “gave not a second thought to her Australian based family at that time”. In other words, her previous conduct was treated by the Tribunal as evidence of the strength of those ties.
68 By contrast, in the present case, the Tribunal found that the fact that the applicant could be removed to South Sudan only if he requested removal should reduce the weight given to the strength of his ties to Australia and the extent of impediments he would face if removed. The only reason given by the Tribunal for this conclusion was that any nexus between the decision to be removed and a decision to refuse the visa would be remote (at [277] and [299]). With respect to the Tribunal, without more (such as the inference drawn in Fonoti), that finding is not in itself a reasonable or rational reason for reducing the weight to be given to the considerations in cll 9.2 and 9.4.1. To the contrary, in this case, the decision to give lesser weight to the impediments faced by the applicant if he removed to South Sudan, solely because his removal would be occasioned by his ‘choice’ is unreasonable and irrational for the following reasons.
69 First, a decision by the Tribunal to refuse the visa would mean (as the Tribunal accepted at [230]) that the applicant faced the prospect of indefinite immigration detention. (I interpolate that this is a very different circumstance from that in Fonoti where immigration detention was indefinite only in the sense that it was not known when the decision on the revocation request would be made.)
70 Secondly, the Tribunal did not doubt the severe impediments which the applicant would face if removed to South Sudan, including that he would not receive mental health support, there would likely be a significant deterioration in his mental state, and he may be subject to persecution and arbitrary detention in appalling conditions. There was simply no evidence whatsoever before the Tribunal to suggest that the extent of those impediments would be any less severe if he were removed because he requested it, as opposed to being forcibly removed. Equally, the Tribunal accepted that if the applicant were removed to South Sudan, the impact on those with whom the applicant has ties in Australia would be severe and indeed, removal would threaten the very capacity to retain or develop those ties. In that context, it is not logical, rational or reasonable to give only “slight weight” to that impact because his removal could result only from a request by him. This is because any such request would be the result of a “choice” between two extremes consequent on the decision to refuse the visa: likely indefinite detention (which the Tribunal accepted would likely have “severe adverse consequences for the applicant”) or a real risk of persecution and arbitrary detention in cruel and inhumane conditions. (Again, I interpolate that there was no suggestion that the decision by Ms Fonoti to return to New Zealand involved any such extreme choice.)
71 In this regard, in assessing the reasonableness of the Tribunal’s findings, the human aspects of the applicant’s circumstances resulting from a decision to refuse him a visa cannot be ignored. As Allsop CJ held in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]:
it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
(Emphasis added.)
72 With respect, the Tribunal’s reasoning fell into this form of error. The decision to reduce the weight to the impediments faced by the applicant if he were removed to South Sudan, solely because his removal would be occasioned by his ‘choice’, failed to engage with the human consequences faced by the applicant of the decision to refuse the visa. The applicant would be forced to choose between two alternatives, each of which would, as the Tribunal found, have potentially tragic consequences for him – effective a choice between “the devil and the deep blue sea”. It is not rational or reasonable to reduce the weight of the consequences of that decision, merely because a person has ‘chosen’ one such consequence over another. To do so is effectively to hold against the applicant the very dilemma which the Tribunal’s decision itself created.
73 Finally, the Minister submitted that ground 2B, if upheld, could work to the detriment of a visa applicant because “a decision-maker would need to apply the considerations in cll 9.2 and 9.4.1 in relation to a person who refuses to return to their receiving country voluntarily in the same way that they would in relation to a person who desires to do so”. However, this hypothetical does not assist the Minister because, again, the irrationality arises from the applicant’s particular circumstances, not the hypothetical applicant in every instance where cll 9.2 and 9.4.1 fall to be considered.
74 The Minister correctly did not contend that if errors of the kind alleged in ground 2B were established, that these would not be material in the relevant sense so as to sound in a jurisdictional error. In that respect, in order to establish jurisdictional error, the error must be “material in the sense that there is a realistic basis to consider that the decision-maker’s ultimate conclusion might have been different if the alleged error had not been made”: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29] (the Court). Plainly, there is a reasonable possibility that, if the Tribunal had not considered the voluntariness of the applicant’s removal, the weight given to the considerations in cll 9.2 and 9.4.1 may have been greater and a different conclusion may realistically have been reached.
75 It follows that the Tribunal’s decision was legally unreasonable so as to establish jurisdictional error, and ground 2B must be upheld. For reasons outlined above, it is therefore not necessary to consider grounds 1 or 2.
76 Given this finding, I need deal briefly only with the remaining grounds of the amended application.
3.2 Did the Tribunal deny the applicant procedural fairness in making findings of fact that were not contended for by the Minister nor raised by the Tribunal at the hearing (ground 3)?
77 The applicant contends that the Tribunal denied the applicant procedural fairness by making findings of fact (not contended for by the Minister) as to his inability to work in light of his disabilities. As outlined above, the Tribunal found that the applicant intended to apply for a disability support pension, of which one requirement was “a continuing inability to work” (at [137]). The Tribunal also held that, as a consequence, the applicant may not be able to be engaged in employment and may commit further offences. This finding, the applicant contends, was a denial of procedural fairness because it involved an error of law in respect of the eligibility requirements for a disability support pension. That is because, on the applicant’s submission, “work” is defined in s 94(5) of the Social Security Act 1991 (Cth) as “work that is for at least 15 hours per week”, as opposed to being unable to work at all.
78 However, this ground must fail for the following reasons.
79 First, the Tribunal’s conclusions were open to it on the basis of material supplied by or known to the applicant, such as his employment history and a report by his psychologist, Mr Watson-Munro which opined that the applicant’s employment prospects were, at best, limited. The Tribunal’s findings, therefore, merely echoed the submissions made and evidence proffered on behalf of the applicant. It did not make a finding that the applicant would be unable to work at all (as opposed to working at least 15 hours a week). Instead, the Tribunal referred expressly to s 94 of the Social Security Act and recognised the applicant’s “likely difficulty” in obtaining “full-time employment” (at [145]) given his limited employment prospects and lack of significant employable skills (at [144]). Procedural fairness did not require the Tribunal to disclose that it would find adversely to the applicant on the basis of the evidence before it.
80 Secondly, the applicant gave evidence in a statutory declaration dated 7 July 2022 that working will keep him occupied in the community and steer him away from abusing drugs. It was therefore the applicant who put in issue the difficulties he would encounter if he were unable to secure employment, as well as the importance of qualifying for a disability support pension. These issues having been raised by the applicant, it was for him to advance whatever evidence or argument he wished in support of it. The fact that the applicant’s evidence did not rise high enough for the Tribunal to find in his favour cannot be attributed to a denial of procedural fairness by the Tribunal.
81 Accordingly, ground 3 must be rejected.
3.3 Did the Tribunal deny the applicant procedural fairness by failing to respond to substantial, clearly articulated arguments regarding Australia’s international obligations (ground 4)?
82 Ground 4 was also an independent basis on which the applicant sought to have the Tribunal’s decision quashed.
83 As I have earlier explained, the applicant contended before the Tribunal that he faced the prospect of indefinite detention if his visa was refused. As a result, the applicant submitted that Australia would be in breach of its international obligations: namely, Articles 7 and 9 of the ICCPR and Articles 14 and 15 of the CRPD. The Tribunal accepted that indefinite detention was the likely consequence of the mandatory visa cancellation decision, and that this indefinite detention would have “severe adverse consequences for the applicant” (at [231]). However, the Tribunal then relied on Plaintiff M1 to decide that it was not required to evaluate or make any findings on the applicant’s submissions as to the consequences of any purported violations of Australia’s international obligations occasioned by the visa cancellation decision (at [235]). The applicant submits that the Tribunal thereby erred in failing to make findings about a substantial and clearly articulated argument.
84 In Plaintiff M1, the High Court held that, in making a decision under s 501CA(4)(b)(ii) of the Act, international non-refoulement obligations are not a mandatory relevant consideration attracting judicial review, such that a failure to consider those obligations will not, in every case, amount to jurisdictional error (at [20] (Kiefel CJ, Keane, Gordon and Stewart JJ)). However, their Honours also found (at [9]) that “the Delegate was required to read, identify, understand and evaluate the plaintiff’s representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia’s international non-refoulement obligations”.
85 Their Honours further held that (at [27]; footnotes omitted):
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, 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; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
86 It is not in dispute that a failure to respond to “substantial, clearly articulated arguments relying upon established facts” may amount to a denial of procedural fairness. However, beyond that, and subject to the requirement of reasonableness, the decision-maker is free to decide whether to take that claim into account in exercising the broad discretionary power conferred by s 501(1). So much was held by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1 (at [24]; footnotes omitted):
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
87 Consistent with those authorities, ground 4 has not been established for the following reasons.
88 The applicant’s contention that the Tribunal found that it was “not required to do anything at all with those representations simply because they are not mandatory relevant considerations”, incorrectly conflates the Tribunal’s decision not to make findings on the submissions, on the one hand, with a failure to consider the submissions made, on the other hand. As the Minister submits, “the Tribunal’s decision not to make a finding about the correctness of the applicant’s claim cannot be considered to be a failure to evaluate the claim”.
89 Notwithstanding the Tribunal’s reasoning at [235] that it was “not required to make, and do not make, any findings in relation to the relevant submissions” (namely, that the circumstances of the applicant’s indefinite detention would put Australia in breach of its international obligations) the reasoning in the subsequent paragraphs demonstrated its identification, understanding and evaluation of the applicant’s submission. In particular, the Tribunal reasoned (at [244]-[245]):
It is said that the applicant’s removal in these circumstances would not be voluntary (a matter addressed later). Instead, it is submitted that any such removal would amount to constructive or indirect expulsion, an expulsion in breach of non-refoulement obligations owed by Australia under international law.
I make no finding in relation to this submission. Again, the postulated legal consequence is neither inevitable nor direct. Further, the alleged breach of an international obligation unenacted in Australian law is not a consideration in relation to which I am required to make a finding. Lastly, it is not clear that the applicant’s removal to South Sudan would be effected even if he were to request removal given the practical difficulties in establishing citizenship mentioned earlier and his apparent lack of documentation.
(Footnotes omitted).
90 The Tribunal’s reasons, therefore, evinced an active intellectual engagement with the applicant’s claim which was sufficient for the Tribunal to discharge its duty, as articulated in Plaintiff M1, to consider the submission that had been made. That duty did not require the Tribunal to go further and form a view about the correctness of the submission; as Plaintiff M1 makes clear, the Tribunal was not obliged “to make actual findings of fact as an adjudication” of the applicant’s claim (at [24] (Kiefel CJ, Keane, Gordon and Stewart JJ)). To the contrary, it was sufficient that the Tribunal had regard to the representations and brought its mind to bear upon the facts and arguments put forward.
91 It follows from my reasons above that ground 2B of the amended application must be upheld. The amended application for judicial review is allowed, with costs.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
Dated: 30 June 2023
