Federal Court of Australia

NPBP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1595

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the applicable migration decision be dismissed.

2.    The applicant pay the first respondent’s costs of the application for judicial review to be fixed on a lump sum basis.

3.    On or before 29 December 2023, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement being reached, the determination of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for disposition.

5.    A copy of the reasons for this judgment be provided to the parties before publication.

6.    The parties have liberty to apply for further or other orders concerning the publication of the reasons for judgment by 22 December 2023, failing which the reasons for this judgment will be published.

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

REASONS FOR JUDGMENT

FEUTRILL J

Introduction and background

1    The applicant is a citizen of Nigeria. He first arrived in Australia in 2013, at the age of 30, as the holder of a Prospective Marriage (Subclass 300) visa sponsored by his soon-to-be wife. He has not left Australia since this time. After the applicant and his wife married in April 2014, the applicant applied for and was granted a Provisional Partner (Subclass 820) visa. The applicant has two minor children from that marriage and is the step-father of two adult children from his wife’s previous relationship. The applicant also has a minor step-grandson.

2    In December 2017 the applicant was convicted in the Supreme Court of Western Australia of a drug-related offence. In April 2020, he was ultimately sentenced, after a successful appeal, to eight years’ imprisonment.

3    As a consequence of his conviction and the length of the sentence imposed, in June 2020 the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that the applicant had a substantial criminal record for the purposes of s 501(6)(a) of the Act (cancellation decision). In July 2020 the applicant requested revocation of the cancellation decision. In March 2022 a delegate of the first respondent (Minister) made a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of the applicant’s visa (non-revocation decision). The applicant was notified of that decision on the same day. In April 2022 the applicant lodged an application for review of the non-revocation decision. In June 2022 a member of the second respondent (Tribunal) affirmed the non-revocation decision.

4    As a consequence of the cancellation decision the applicant no longer has a right to enter or remain in Australia. He became, in the language of the Act, an ‘unlawful non-citizen’. Therefore, on his release from prison in July 2021, he was immediately taken into immigration detention, where he remains, as required under s 198 of the Act.

5    The applicant applies to this Court for judicial review of the Tribunal’s decision which affirmed the non-revocation decision.

6    There are two main issues raised on this application. The first concerns the proper construction of para 9.1(6) of Direction 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction 90). In particular, whether on the proper construction of that paragraph the Tribunal was obliged, if it decided to defer consideration of whether Australia owes the applicant international non-refoulement obligations, to ‘consider’ if it should make an assumption in the applicant’s favour that the harm he claims gives rise to international non-refoulement obligations will occur and make its decision on that basis. The second issue concerns whether the applicant has demonstrated, as a matter of fact, that the Tribunal failed to consider if such an assumption should be made in this case.

7    For the reasons which follow, the application must be dismissed with costs.

Legislative framework

8    Sections 501(3A), 501(6)(a) and 501(7)(c) of the Act provide that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person has a substantial criminal record because the person has been sentenced to a term of imprisonment of 12 months or more and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

9    Pursuant to s 501(5), the rules of natural justice do not apply to a decision made under s 501(3A). However, s 501CA provides a mechanism by which a person whose visa has been cancelled under s 501(3A) may have that decision (referred to as the original decision) revoked. Section 501CA(3) provides that ‘as soon as reasonably practicable after making the original decision’, the Minister must give the former visa-holder written notice setting out the original decision and particulars of relevant information and ‘invite the person to make representations to the Minister … about revocation of the original decision’. Section 501CA(4) provides that the Minister may revoke the original decision if the person makes representations in accordance with the invitation and the Minister is satisfied, relevantly, that there is ‘another reason’ why the original decision should be revoked.

10    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, the former visa-holder has a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) is undertaken by the Tribunal in its general division.

11    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, a delegate of the Minister and the Tribunal are bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. In this case, the Tribunal was bound to comply with Direction 90.

12    Section 5 of Part 1 of Direction 90 contains a preamble that sets out the objectives of the direction. Amongst other things, para 5.1 indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. Paragraph 5.2 sets out principles that provide the framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in a particular case) that must be considered in making that decision are set out in Part 2 of the Direction.

13    Section 6 of Part 2 of Direction 90 provides that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. Section 7 provides guidance on giving appropriate weight to information and evidence from independent and authoritative sources and that, generally, primary considerations should be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations.

14    Section 8 of Part 2 of Direction 90 sets out the primary considerations. These are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interest of minor children in Australia; and (4) expectations of the Australian community. Paragraphs 8.1–8.4 describe the primary considerations in detail and provide guidance to decision-makers as to the manner in which each of those considerations is to be taken into account.

15    Section 9 of Part 2 of Direction 90 sets out the other considerations. These are: (1) international non-refoulement obligations; (2) extent of impediments if removed; (3) impact on victims; and (4) links to the Australian community. Paragraphs 9.1–9.4 describe the other considerations in detail and provide guidance on the manner in which each is to be taken into account. Relevant to this application is para 9.1 that addresses non-refoulement obligations, defined in the direction as ‘an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.’ The relevant terms of Direction 90 are set out later in these reasons.

Tribunal's decision

16    The Tribunal’s reasons for decision (T) set out the background to the review application, the details of the hearing, the relevant provisions of the Act and Direction 90 and the issues for determination on the review (T [1]-[7], [8]-[12], [13]-[20], [21]-[27], [28]-[35]). The Tribunal found that the applicant does not pass the character test ([36]-[38]) and considered whether there was another reason why the cancellation decision should be revoked ([39]-[46]). The Tribunal considered the applicant’s offending ([47]-[67]) before turning to the application of Direction 90.

17    The Tribunal addressed each of the primary and other considerations in Direction 90 and made findings as to whether these were in favour, against or neutral to the exercise of the discretion to revoke the cancellation decision (T [68]-[243]). Regarding the protection of the Australian community, the Tribunal placed ‘significant weight’ on the nature and seriousness of the applicant’s offending and that the harm caused by drug related offending engaged in is so serious that any risk of repeated offending is unacceptable ([68]-[83]). Notwithstanding that the applicant had a low risk of reoffending, the Tribunal ultimately found that the risk posed to the Australian community should the applicant commit further offences or engage in other serious conduct meant that the protection of the Australian community weighs strongly in favour of non-revocation ([84]-[98]). The Tribunal gave no weight to family violence committed by the applicant ([99]-[100]). It considered the best interests of minor children in Australia affected by the decision ([101]-[136]), ultimately concluding that, overall, the best interests of minor children weighed strongly in favour of revocation ([137]). It then considered that the expectations of the Australian community weighed strongly against revocation of the cancellation decision ([138]-[153]).

18    The Tribunal went on to consider other considerations, beginning with extensive consideration of international non-refoulement obligations (T [154]-[198]). In that respect, relevantly, Direction 90 provided:

9.    Other considerations

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)    international non-refoulement obligations;

…

9.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(3)    However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

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

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

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

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

(8)    If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.

19    The Tribunal identified the applicant’s non-refoulement claims as follows:

165.    In written submissions, the Applicant raised two matters which he contended gave rise to an issue of non-refoulement obligations:

•    the Applicant has a well-founded fear of persecution by the Nigerian government on the basis of his membership of a particular social group [redacted to preserve anonymity]; and

•    if the Applicant were returned to Nigeria there are substantial grounds for believing that that there is a real risk he will suffer significant harm [redacted to preserve anonymity].

(Footnote omitted.)

20    The Tribunal identified and analysed the evidence in support of and against the applicant’s non-refoulement claims (T [169]-[170], [172]-[179], [183]-[185]). The Tribunal was not satisfied that either claim ‘gives rise to an issue of non-refoulement’. It reasoned as follows.

180.    In the Tribunal’s view having regard to the Applicant’s representations and the information before the Tribunal, there are significant issues with the Applicant’s claim that he faces persecution as a member of particular social group [redacted to preserve anonymity]. One difficulty is that Mr Ayorinde’s opinion does not support a claim that the Applicant would be subjected to prosecution in breach of double jeopardy or that the potential charges in Nigeria would amount to persecution for a convention reason. Mr Ayorinde’s opinion is to the effect that for the Applicant to be successfully charged and prosecuted for the outlined offences, the supervising Courts in Nigeria would need to be satisfied that the Constitutional prohibition against double jeopardy was not infringed. Further, there is no evidence that the laws complained of are other than laws of general application including with respect to the ‘disrepute’ offences to apply to a range of criminal offences committed overseas.

181.    Further, as a practical consideration, while the Applicant’s representative submitted that the Applicant would be a prime target for Nigerian authorities [redacted to preserve anonymity]. In such circumstances the Tribunal is not satisfied any details of the Applicant’s offending could or would be made known to Nigerian authorities, other than, potentially, the headline offence [redacted to preserve anonymity].

182.    Without making a determination on whether the Applicant is owed protection on this basis, the Tribunal is not satisfied this claim gives rise to an issue of non-refoulement such as might weigh in the Applicant’s favour with respect to revocation of the Cancellation Decision.

…

186.    In the Tribunal’s view the Applicant’s claims to fear harm [redacted to preserve anonymity] were vague and unsupported on the evidence. While the Tribunal accepts that the Applicant may have been subjected to threats [redacted to preserve anonymity].

187.    Without determining on whether the Applicant is owed protection on this basis, given the lack of detail in the Applicant’s claims to fear of harm on this basis, the Tribunal is not satisfied that this claim gives rise to an issue of non-refoulement such as might weigh in the Applicant’s favour with respect to revocation of the Cancellation Decision.

21    The Tribunal concluded that:

195    On the basis of the evidence before it, the Tribunal is not satisfied on the evidence that an issue of non-refoulement obligations arises as a relevant issue with respect to the Applicant’s return to Nigeria in the event that the Cancellation Decision is not revoked. The Tribunal considers that it is preferable to defer a determination of whether the Applicant meets the criteria for protection for consideration in the context of a protection visa application, should the Applicant chose to make such an application. However, the Tribunal accepts that the process of applying for a protection visa may take some time during which the Applicant is likely to remain detained. The Tribunal gives some weight to this consideration and finds the consideration overall weighs slightly in the Applicant’s favour.

22    The Tribunal then considered that the extent of impediments if removed weighed moderately in favour of revocation (T [196]-[204]) and that the impact on victims was neutral ([205]-[207]). In this section of its reasons the Tribunal considered, separately, the alleged facts upon which the non-refoulement claims were based when it considered para 9.2 of Direction 90 (extent of impediments if removed). In this respect the Tribunal reasoned (footnotes omitted):

200.    The Applicant claimed to be at risk of harm [redacted to preserve anonymity] and submitted that Nigeria was generally unsafe. Although the Applicant did not direct the Tribunal to any country information in support of these claims, the Tribunal accepts this based on information contained in the 2020 DFAT Report that the security situation in Nigeria is ‘unstable and highly fluid’ with high rates of violent and petty crime and active militant insurgent activity including by Boko Haram in the northeast of Nigeria. The Tribunal takes account of these risks in the Applicant’s favour.

201.    As noted above, there was limited evidence to support the Applicant’s claims [redacted to preserve anonymity] and the Tribunal does not accept on the evidence that he would be. This includes a lack of evidence of any threats [redacted to preserve anonymity].

202.    Further, while the Applicant claimed he would be subjected to arrest and charge in Nigeria [redacted to preserve anonymity] in Australia in breach of the rule against double jeopardy which would result in his unlawful or arbitrary detention, the Tribunal does not accept that the evidence supports those claims. To the extent that the Applicant might be subject to charges for breaching Nigerian law, the evidence establishes there are Constitutional and judicial protections in place to prevent double jeopardy and to oversight the criminal justice process. For the reasons outlined above, the Tribunal considers it unlikely that the Applicant would be prosecuted on return [redacted to preserve anonymity]. However, the Tribunal accepts that in the unlikely event he were arrested and prosecuted, the Applicant would face the prospect of imprisonment in Nigeria. Country information suggests that prison conditions in Nigeria are harsh and that without access to family support to provide resources, may be life-threatening. The Tribunal notes the Applicant has family support in Nigeria. However, the Tribunal accepts imprisonment in Nigeria would be harsh and present significant challenges to the Applicant’s resettlement there. While the Tribunal considers this is unlikely with respect to the Applicant’s past criminal conduct the Tribunal places weight on this factor in Applicant’s favour.

203.    Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship in establishing himself if he were to return to Nigeria, some of these difficulties are significant, but are either unlikely to eventuate or not insurmountable. The Tribunal also accepts that the Applicant would suffer emotionally as a result of being separated from his Australian family members.

204.    The Tribunal finds that this consideration weighs moderately in favour of revocation of the Cancellation Decision.

23    In relation to the applicant’s links to the Australian community, the Tribunal concluded that the applicant’s strong ties to the community would be afforded less weight because the applicant spent a relatively short period of time in the community prior to his offending (T [208]-[228]). After according no weight to the impact on Australian business interests ([229]-[230]), the Tribunal found that the applicant’s links to the Australian community weighed strongly in favour of revocation of the cancellation decision ([252]).

24    The Tribunal then considered other ‘non-prescribed considerations’, being disincentivising cooperation by non-citizens with Australian law enforcement agencies (T [232]-[237]) and the prospect that the applicant may be charged in Nigeria for offences arising from his convictions in Australia which led to the cancellation decision ([238]-[243]). The Tribunal then summarised its conclusions ([244]-[255]) and ultimately found that there is not ‘another reason’ why the cancellation decision should be revoked. Therefore, the Tribunal affirmed the decision not to revoke the applicant’s visa ([256]).

Grounds of Review

25    On 18 July 2023 the applicant was granted leave to file and serve a minute of proposed amended application for review of a migration decision. The amended grounds of review in that proposed amended application are as follows:

[1.]    The Second Respondent (Tribunal) made a jurisdictional error by failing to complete its statutory task in accordance with a written direction made under s 499 of the Migration Act 1958 (Cth), namely Direction 90, in that it failed to comply with paragraph 9.1(6) of that Direction.

Particulars

a.    The Applicant made claims to be owed non-refoulement obligations.

b.    The Tribunal determined that it was appropriate to defer consideration of those claims to any subsequent protection visa application made by the Applicant.

c.    The Tribunal failed to consider in accordance with paragraph 9.1(6) of Direction 90 whether it was an appropriate case to assume in the Applicant’s favour that the claimed harm will occur and make a decision on that basis.

The parties’ submissions

26    The applicant submits that in accordance with para 9.1 of Direction 90, in circumstances in which the applicant raised claims that could engage international non-refoulement obligations, the Tribunal was permitted to defer making findings on those claims to a future protection visa application. However, the applicant submits, relying on the reasoning of Colvin J in MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291 at [27], that in those circumstances the Tribunal was required by para 9.1(6) of Direction 90 to consider whether it was an appropriate case to assume in the applicant’s favour that the claimed harm will occur and make a decision on that basis. The applicant submits that the Tribunal failed to consider if it was appropriate to make that assumption and, thereby, failed to comply with a requirement of Direction 90 which was an error.

27    The applicant submits that the error was material and jurisdictional. Had the Tribunal considered it was appropriate to assume in the applicant’s favour that the claimed harm would occur, it could have accorded that significant weight and determined that the considerations in favour of revocation outweighed those against.

28    The Minister submits that para 9.1(6) of Direction 90 imposed no ‘procedural’ obligation on the Tribunal to consider whether it was an appropriate case to assume in the applicant’s favour that the claimed harm will occur and make a decision on that basis. The Minister submits, to the extent the reasons in MQGT support the contrary proposition they were obiter dictum and should not be followed.

29    The Minister submits that the text of para 9.1(6) of Direction 90 is not framed as imposing an obligation on a decision-maker to make a procedural decision expressly or by necessary implication. Rather, read as a whole, para 9.1(6) is explicative of the broad decisional freedom that a decision-maker has under the Act in dealing with a non-refoulement claim in making a decision under s 501 or s 501CA. Thus, so the Minister submits, para 9.1(6) recognises that, depending on circumstances, it may be open to a decision-maker in accordance with the framework of the Act to assume that certain harm will occur in the event that the non-citizen is returned to their country of origin without making a positive finding to that effect. That does not mean Direction 90 imposes an obligation to make an anterior procedural decision about whether or not to make that assumption. The Minister also submits that construing para 9.1(6) in the manner the applicant suggests would also impose rigidity on decision-making that promotes no discernible purpose and, therefore, such a construction should not be preferred.

30    Further, the Minister submits that the applicant has failed to demonstrate that the Tribunal did not, as a matter of fact, make a procedural decision and decide that it was not appropriate to make the relevant assumption about the claimed harm. The Minister submits that while the Tribunal was obliged to give reasons, by reference to Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [60] and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [16], provisions such as s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) do ‘not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision’. The Minister submits that, by reference to [155], [162]-[163], [165], [166], [167], [171] and [180]-[187] of the Tribunal’s reasons, the Tribunal considered the applicant’s claim to a well-founded fear of harm and made findings about those claims for the purposes of determining if there was 'another reason' to revoke the cancellation decision. It is evident from those reasons that the Tribunal did not make an assumption in the applicant’s favour about his claimed harm. Therefore, so the Minister submits, it should not be inferred that the Tribunal failed to consider it would be appropriate to make such an assumption in his favour. It is equally possible (if not more probable) that the Tribunal considered if the assumption should be made and decided not to make that assumption.

Consideration

31    Direction 90 was given by the Minister pursuant to s 499 of the Act. A failure to comply with such a direction may result in jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (and the authorities there cited); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]-[68]. That may include a failure to comply with a direction based on a misconstruction of its terms.

32    However, ‘[o]rdinarily, a statute which impliedly requires a condition [of a statutory conferral of decision-making authority that a decision-maker must proceed by reference to correct legal principles, correctly applied] is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance’: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29].

33    Materiality involves consideration of ‘the basal factual question of how the decision that was in fact made was in fact made’. That question is determined by proof of historical facts on the balance of probabilities. It is then necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32], citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38].

34    Where, as in this case, representations a former visa-holder has made to the Minister (or a delegate of the Minister or Tribunal) include a claim of non-refoulement under domestic law, that claim may be considered by the decision-maker under s 501CA(4). However, the decision-maker may defer assessment of whether the former visa-holder is owed those non-refoulement obligations on the basis that it is open to the former visa-holder to apply for a protection visa: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [28]-[30]. Where the cancelled visa is not a protection visa, deferring assessment of non-refoulement obligations does not mean that it is not necessary for the decision-maker to consider or take into account the alleged facts underpinning the non-refoulement claim where those facts are relied upon by a former visa-holder in support of ‘another reason’ why the cancellation of the visa should be revoked: Plaintiff M1/2021 at [39].

35    There is a distinction between consideration of the claim that gives rise to an assertion that Australia owes non-refoulement obligations to the former visa-holder and an assessment of the non-refoulement claim. The claim of harm or persecution that underpins the claim of non-refoulment may need to be considered as part of another relevant ‘other consideration’ or an independent ‘unlisted consideration’ or reason why the cancellation should be revoked: MQGT at [23]-[24]. As Colvin J further observed:

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

36    Colvin J went on to observe in the passage upon which the applicant relies:

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

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

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

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

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

(Emphasis added.)

37    The Minister submits, in effect, that the construction of para 9.1(6) of Direction 90 stated by Colvin J in MQGT at [27(2)] was incorrect. The Minister submits that the observations of Colvin J were obiter dictum because the basis for the decision in MQGT was his Honour’s rejection of the applicant’s contention, in that case, that on the proper construction of Direction 90 where a former visa-holder makes a credible claim of harm of a kind that might give rise to a non-refoulement obligation a decision-maker may assume that the harm gives rise to such an obligation and make a decision on that basis. The Minister submits that para 9.1(6) should not be construed as obliging a decision-maker to make a procedural decision whether or not it is appropriate to assume in an applicant’s favour that claimed harm will occur and make a decision on that basis.

38    Although I accept that the observations of Colvin J in MQGT at [27] were obiter dictum and I am free to consider the construction question unconstrained by that observation, I am, nevertheless, not persuaded that his Honour’s observation and construction of para 9.1(6) is ‘clearly wrong’. In the absence of binding authority to the contrary and in the interests of certainty and consistency, I am inclined to accept the correctness of the construction of para 9.1(6) in MQGT at [27(2)] for the purposes of these proceedings.

39    The Tribunal was entitled to defer assessment of the applicant’s non-refoulement claims. However, as part of the Tribunal’s obligation to read, identify, understand and evaluate the applicant’s representations, it was necessary for the Tribunal to consider if the alleged facts underpinning the non-refoulement claim were also relevant to a separate ground for there being ‘another reason’ why the cancellation decision should be revoked. If so, in that context, the Tribunal was obliged to consider if it was appropriate to assume, for the purposes of that separate reason, if the ‘claimed harm’ will occur.

40    In this case, the reasons do not reveal expressly whether the Tribunal considered it was appropriate to assume that the claimed harm will occur. However, the Tribunal considered the allegations of fact upon which the applicant’s non-refoulment claims were based and concluded that it was not satisfied that the applicant was at risk of the claimed harm. Thus, the question is whether it should be inferred that the Tribunal failed to consider if it should make an assumption that the claimed harm will occur and make a decision on that basis.

41    Under s 43(2B) of the AAT Act the Tribunal was required to include in its reasons for decision its findings on ‘material questions of fact and a reference to the evidence or other material on which those findings were based’. The Tribunal is also required, in so doing, to expose and explain its reasoning process: Beckett v Tax Practitioners Board [2023] FCAFC 100 at [34]-[35] (Wheelahan, McElwaine and Jackman JJ); Wonson v Comcare [2020] FCAFC 76; (2020) 276 FCR 613 at [89]-[92] (Katzmann, Anastassiou and Abraham JJ); Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] (French J). Thus, the Court is entitled to infer that any matter not mentioned in the Tribunal’s reasons for decision was not considered by the Tribunal to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ). However, while the Court is entitled to draw the inference, it need not do so. ‘The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference’. The ‘inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has been identified at some point’: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [54] (Bromberg, Jackson and Feutrill JJ) (and the cases there cited).

42    Further, the reasons for decision that must be given under s 43(2B) of the AAT Act are the reasons for the ultimate decision on the review. In giving reasons for that decision the Tribunal is not required to give reasons for the exercise or non-exercise of a procedural power (or procedural decisions): BVD17 at [16] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); SZGUR at [32] (French CJ and Kiefel J), [69] (Gummow J), [91] (Heydon J, agreeing), [92] (Crennan J, agreeing). While BVD17 concerned the requirement to give a statement of reasons under s 473EA and SZGUR a statement of reasons under s 430 of the Act, the reasoning is equally applicable to s 43(2B) of the AAT Act.

43    Notwithstanding that the Tribunal may have no obligation to provide reasons for the exercise or non-exercise of procedural powers or in respect of procedural decisions, it does not follow that an inference can never be drawn from the absence of reasons alone or together with other facts that there has been a failure to consider the exercise of a procedural power. Whether there has been such a failure depends upon the facts and circumstances of any given case. But, here, there is no basis for inferring from the absence of reasons alone or taken with other facts that the Tribunal failed to consider whether or not to make an assumption that the claimed harm will occur. For example, the applicant has not pointed to any submission or representation made to the Tribunal to the effect that if the Tribunal decided to defer determination of whether the claimed harm will occur then the Tribunal should decide that it was appropriate to assume that the claimed harm will occur and make a decision on that basis. Had such a submission or representation been made it might have provided some basis for considering that the failure to give reasons for not making that assumption, even in the absence of an obligation to do so, suggests that it was overlooked.

44    In circumstances in which the Tribunal considered the allegations and evidence and concluded that it was not satisfied that the applicant would suffer the harm claimed as the basis for non-refoulement obligations, it cannot be inferred from the absence of any express consideration of the topic that the Tribunal failed to consider if it was appropriate to make an assumption in the applicant’s favour that the claimed harm will occur. It is, at least, equally plausible that the Tribunal considered that it was not appropriate to make that assumption having regard to the views it had expressed about the lack of evidence in support of the applicant’s claims.

45    If I am wrong and an inference should be drawn that the Tribunal failed to consider if it should make an assumption that the claimed harm will occur, that failure and error was not material. While I accept that if the Tribunal had made an assumption that claimed harm will occur and made a decision on that basis the outcome of the Tribunal’s review could have been different, that is not the relevant materiality question having regard to the manner in which the Tribunal’s decision was actually made. The relevant materiality question here is whether, as a matter of reasonable conjecture, the Tribunal’s procedural decision to embark on a consideration and evaluation of the evidence and make findings of fact concerning the claimed harm could have been different had the Tribunal considered if it were appropriate to assume the claimed harm will occur and make a decision on that basis. If as a matter of reasonable conjecture the procedural decision could not have been different, equally, the ultimate decision could not have been different.

46    Although the Tribunal decided to defer consideration of whether the applicant meets the criteria for protection, it was not satisfied on the evidence before it that ‘an issue of non-refoulement obligations arises as a relevant issue with respect to the Applicant’s return to Nigeria’. It is difficult to imagine, based on that conclusion, how the Tribunal could then have considered it was appropriate to assume that the claimed harm will occur and make a decision on that basis. The applicant made no submission as to what, if any, matters the Tribunal could have taken into account when considering if it were appropriate to make the assumption that could have, as a matter of reasonable conjecture, resulted in a decision that it was appropriate to assume the claimed harm will occur. Having regard to ‘the basal factual question of how the decision that was in fact made was in fact made’ the undemanding ‘reasonable conjecture’ threshold has not been crossed in this case.

Conclusion

47    The application for judicial review must be dismissed with costs.

Associate:

Dated:    11 January 2024