FEDERAL COURT OF AUSTRALIA

BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 301

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

DOWNES J

BACKGROUND

1    The applicant is a citizen of Ethiopia, who arrived in Australia as the holder of a Refugee (Class XB) (subclass 200) visa on 14 November 2008 aged 15. He is now 30 years of age. The applicant has a substantial criminal record with convictions recorded over at least a nine-year period commencing in February 2012. It includes convictions for (inter alia) assault occasioning bodily harm, serious assault of a police officer while armed and possession of dangerous drugs.

2    The applicant’s visa was mandatorily cancelled in April 2022 pursuant to s 501(3A) of the Migration Act 1958 (Cth). He made representations to the first respondent (the Minister) that the mandatory cancellation of his visa should be revoked for “another reason” pursuant to s 501CA of the Migration Act.

3    Relevantly, where a person makes representations regarding the revocation of a cancellation decision made under s 501(3A), the Minister may revoke that original decision if the Minister is satisfied that:

(1)    the person passes the character test (s 501CA(4)(b)(i), as defined in s 501(6)); or

(2)    there is “another reason” why the original decision should be revoked (s 501CA(4)(b)(ii), having regard to the principles and considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA’ (the Direction)).

4    On 15 February 2023, a delegate of the Minister decided to not revoke the visa cancellation pursuant to s 501CA of the Migration Act.

5    On 24 February 2023, the applicant applied to the second respondent (the Tribunal) to review the decision of the delegate.

6    A hearing was conducted before the Tribunal on 26 and 27 April 2023.

7    On 10 May 2023, the Tribunal decided to affirm the decision of the delegate, and its reasons were published on 8 August 2023.

8    This is an application for judicial review of the Tribunal’s decision of 10 May 2023. By his amended originating application filed in this Court on 15 November 2023, the applicant seeks a writ of certiorari quashing the Tribunal’s decision dated 10 May 2023, and a writ of mandamus requiring the Tribunal to redetermine, according to law, the applicant’s application for review of the decision of the delegate of the Minister dated 15 February 2023, together with costs.

9    For the following reasons, the application will be dismissed.

GROUNDS OF JUDICIAL REVIEW

10    The applicant advances four grounds based on which he contends that the Tribunal’s decision was vitiated by jurisdictional error, and upon which he bases his application for judicial review:

(1)    The Tribunal failed to comply with the Direction in that it failed to give proper consideration to the nature and seriousness of the applicant’s conduct to date as required by the Direction because it erroneously directed itself that it was not required to consider the applicant’s intent (or absence of intent) – including whether the offending conduct was intended to be targeted towards women – and whether or not the offending conduct was premeditated, and the failure to properly carry out the assessment of the nature and seriousness of the applicant’s conduct required by the Direction was material to its decision;

(2)    There was no evidence or other material before the Tribunal to support the finding that the Anuak language is “widely spoken in the western part of Ethiopia”, and this finding was material to the decision;

(3)    The Tribunal failed to comply with the Direction by failing to properly carry out the inquiry required by paragraph 9.2(1) of the Direction with respect to the extent of impediments the applicant may face if removed from Australia by reason of the Tribunal’s failure to consider the risk of harm faced by the applicant if removed to Ethiopia, including the extent of impediments faced by the applicant if, due to a risk of persecution or serious harm, he had to resettle outside of the Gambela region, and the failure to comply with the Direction was material to the decision; and

(4)    In the alternative to ground (3), the Tribunal failed to evaluate the applicant’s representations that the risk of suffering persecution or serious harm is an impediment he will face if removed from Australia.

Ground 1

The Tribunal’s decision

11    In making a decision under section 501CA(4) of the Migration Act, paragraph 6 of the Direction directs the decision-maker to take into account the considerations identified in paragraphs 8 (primary considerations) and 9 (other considerations), where relevant to the decision.

12    Paragraph 8 of the Direction requires the decision-maker (here, the Tribunal) to have regard to five primary considerations, including the protection of the Australian community from harm as a result of criminal activity or other serious conduct (Primary Consideration 1). Paragraph 8.1 requires the Tribunal to give consideration to (inter alia) the nature and seriousness of the applicant’s conduct to date when reaching a conclusion with respect to Primary Consideration 1.

13    Paragraph 8.1.1(1)(a) of the Direction provides that:

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i.    violent and/or sexual crimes;

ii.    crimes of a violent nature against women or children, regardless of the sentence imposed; …

14    The applicant made representations to the Tribunal that, while he accepted that his offending was of a violent nature, it was not intentionally targeted at women rather than men, and it was not premeditated (the representations regarding intention).

15    At [31] of its reasons, the Tribunal stated:

The Applicant contends that none of his acts of violence were premeditated, and that his violent crimes against women were not intentionally targeted at women. The Applicant’s purpose in making these submissions is, presumably, to invite me to view his offending less seriously compared to if his crimes were “premeditated” and “targeted”. Respectfully, I reject this invitation. Sub-paragraph 8.1.1(1)(a) requires me to consider the types of crimes committed, not the intention in committing the crimes. The Applicant pled guilty and was convicted of committing numerous violent crimes and crimes of a violent nature against women. The circumstances of the Applicant’s offending in these regards moved his Honour Judge Chowdhury to note the “very serious” nature [of] the Applicant’s conduct.

(Footnotes omitted, emphasis added.)

16    The Tribunal concluded at [32] of its reasons that the applicant’s conduct “clearly involves repeatedly committing violent crimes and crimes of a violent nature against women” and that the conduct engages paragraph 8.1.1(1)(a)(i) (presumably, the Tribunal intended to include a reference to paragraph 8.1.1(1)(a)(ii)) and is properly characterised as “very serious”.

Consideration

Failure to comply with Direction

17    The applicant submits that [31] of the Tribunal’s reasons demonstrates that the Tribunal misconstrued paragraph 8.1 of the Direction, thereby misdirecting itself as to its task of proper consideration of the nature and seriousness of the applicant’s conduct to date. He contends that the Tribunal did not reject his representations regarding intention, but rather rejected the “invitation” to have regard to the factors of premeditation and intentional targeting of women, thereby refusing to properly consider the representations. The applicant further submits that:

The questions of whether there was premeditation, and what was the intention of the offender, would be expected to be considered if properly undertaking an evaluation of the “nature and seriousness” of conduct committed to date. The refusal to do so shows the Tribunal departed from its jurisdictional task to evaluate the Applicant’s representations as to whether there was another reason to revoke the visa cancellation decision and perform its function in the way required by the Direction.

The offences in relation to which submissions were made included committing a public nuisance and wilful damage. Neither offence has, as an element, violence directed towards women. Whether the offences involved violence towards women was an enquiry mandated by paragraph 8.1.1(1) of the Direction.

(Footnotes omitted, emphasis original.)

18    In response, the Minister submits that [31] of the Tribunal’s reasons should be construed as the Tribunal having considered the representations but rejecting the invitation to weigh the seriousness of the applicant’s offending in a particular way. The Minister further submits that the Tribunal determined that “even if the Applicant’s crimes did not involve the alleged premeditation/intentions, that did not reduce the Tribunal’s view on the seriousness of his offending”.

19    During the hearing, counsel for the Minister explained the submission in these terms:

[T]he tribunal is not saying, “I’m not going to consider whether it was premeditated or targeted.” It’s just saying… I guess, “I think these offences are very serious. I’m not going to let you lower that view by trying to set a higher bar,” saying they could be worse, if that makes sense.

20    The Minister also submits that it was entirely for the Tribunal to assess and weigh the seriousness of the applicant’s offending in “whatever way it thought appropriate”.

21    The Tribunal must read, identify, understand and evaluate the representations by an applicant, and a failure to do so is tantamount to a jurisdictional error: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). As the applicant’s lack of intentional targeting of women and premeditation were representations made by the applicant, the Tribunal was obliged to consider them. I did not understand the Minister to submit otherwise.

22    Therefore, whether the Tribunal erred turns on the proper construction of [31] of its reasons; namely whether [31] reflects a decision by the Tribunal to reject the applicant’s invitation to consider the representations regarding intention at all, or whether the Tribunal considered these representations but then rejected the applicant’s invitation to view the offending as less serious in light of the representations.

23    Thus, the question of whether there is jurisdictional error turns first on whether the Tribunal evaluated the representations regarding intention.

24    In my view, while the Decision correctly identifies the applicant’s representations regarding intention, the Tribunal does not engage, either in [31] or elsewhere in the reasons, in any evaluation regarding how and to what extent these representations impact its overall conclusion as to the nature and seriousness of the offending.

25    That is because it is apparent from [31] of its reasons that the Tribunal considered that, because the applicant’s conduct involved crimes of a violent nature against women, which in turn engaged paragraph 8.1.1(1)(a) of the Direction, the conduct must be characterised as very serious. Therefore, the Tribunal’s rejection of the applicant’s invitation to view his offending “less seriously compared to if his crimes were ‘premeditated’ and ‘targeted’” is an erroneous interpretation of the Direction as not requiring the decision-maker to take into account further considerations relating to the nature and seriousness of the offending, namely the applicant’s representations regarding intention. In short, the Tribunal failed to evaluate the applicant’s representations.

26    In making this finding, I do not accept the Minister’s submission that the Tribunal’s own acknowledgment that its decision requires “a careful review” of the applicant’s representations renders it “inherently unlikely” that the Tribunal would fail to consider the representations regarding intention. This statement by the Tribunal is of a general nature and has no bearing on the extent to which the Tribunal actually performed that task with respect to each individual representation.

27    For these reasons, the Tribunal did not comply with paragraph 8 of the Direction because it failed to give proper consideration to the applicant’s representations regarding intention which in turn meant that it failed to carry out a proper assessment of the nature and seriousness of the applicant’s conduct to date as required by the Direction.

Materiality

28    Whether the Tribunal has fallen into jurisdictional error also turns on whether the error was material: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ), which was cited with approval in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [3] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The applicant bears the burden of proving, on the balance of probabilities, that there was a “realistic possibility” that the Tribunal’s decision could have been different if it had not made the error: see SZMTA at [45]–[46]; MZAPC at [2].

29    However, as the Full Court cautioned in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64 at [77]–[79] (Markovic, Thomas and Button JJ):

Engaging in the reconstructive factual exercise required in assessing materiality may be difficult. At a practical level, the exercise may challenge the conventional (and important) distinction between judicial review and merits review… but it is a task that the court must take up and resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal, and having regard to the appellant's onus of proof.

Caution is also required so that the reconstructive exercise is undertaken while being alive to the extent to which the Tribunal's reasons are a product of the very error whose materiality is being addressed. …

The threshold for establishing materiality has been described as “undemanding” and “not onerous”. However, that does not mean that the exercise in which a court is required to engage in assessing materiality is to be undertaken by adopting an approach that is driven by formalism, which fixes on nuances said to arise from a fine-grained parsing of the decision-maker's language, or which focuses on possibilities that are theoretical rather than real.

(Citations omitted.)

30    The applicant submits that the error is material because:

If, as submitted on behalf of the Applicant, the Tribunal had considered whether the offences involved premeditated violence or were not targeted intentionally towards women, it is possible that the Tribunal may have formed the view that that submission was correct. This in turn may have affected the Tribunal’s view as to the overall seriousness of the conduct to date.

As the weight to be given to various factors is a matter entirely for the decision-maker it is, as a matter of reasonable conjecture, possible that less weight would have been given to the overall seriousness of offending such that it could have been outweighed by factors in favour of revocation. The weighing of relevant matters is a matter for a decision-maker, not the court upon judicial review. The error is material if the Applicant has lost the possibility (not the probability) of a favourable outcome as a result of the error.

(Footnotes omitted, emphasis original.)

31    However, it is apparent that the Tribunal’s error in failing to evaluate the representations regarding intention was not material to its overall decision. That is because, even if the Tribunal had not made this error, I do not consider that there is a “realistic possibility” that its conclusion could have been different, for two reasons.

32    First, in reaching its conclusion as to the nature and seriousness of the applicant’s conduct to date, the Tribunal had regard to other considerations, including that:

(1)    the applicant had committed crimes against vulnerable members of the community (i.e. the elderly) and government representatives (i.e. a police officer), pursuant to paragraph 8.1.1(1)(b)(ii) of the Direction;

(2)    the applicant received multiple sentences for violent and other crimes, including sentences of more than five terms of imprisonment, pursuant to paragraph 8.1.1(1)(c) of the Direction; and

(3)    the frequency of the applicant’s offending and trend of increasing seriousness, and the cumulative effect of the applicant’s repeated offending, pursuant to paragraphs 8.1.1(1)(d) and (e) of the Direction.

33    Second, in reaching its conclusion that Primary Consideration 1 carries “a very heavy weight against revocation”, the Tribunal took into account other key findings in addition to its finding with respect to the nature and seriousness of the applicant’s offending. The Tribunal placed particular emphasis on its findings regarding the risk posed to the Australian community should the applicant commit further offences or engage in other serious conduct, and the absence of “any expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant”: see [57] of the reasons.

34    It is apparent from the Tribunal’s reasons that these key findings did not flow from its finding as to the nature and seriousness of the applicant’s conduct, because the latter finding turns on the applicant’s conduct to date while the former findings concern the likelihood of harm in the future, which likelihood includes taking into account the absence of satisfactory evidence of rehabilitation.

35    For these reasons, ground 1 must fail.

Ground 2

The Tribunal’s decision

36    Paragraph 9 of the Direction requires the Tribunal to have regard to four “Other considerations”. Relevantly, paragraph 9.2(1) requires the Tribunal to consider the extent of any impediments that the applicant may face if removed from Australia. This is often referred to, including by the Tribunal in its reasons, as Other Consideration (b) and it states as follows:

(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.

37    The Tribunal had regard to each of the considerations listed in paragraph 9.2(1) of the Direction. At [113]–[114] of its reasons, the Tribunal found:

… Sub-paragraph 9.2(1)(b): the Applicant was born in Ethiopia and arrived in Australia on a permanent basis in 2008, aged around 15 years. As the Applicant has spent around one-third of his life in Ethiopia, it is difficult to assert that the Applicant will be confronted with insurmountable or significant cultural barries [sic] were he returned to that country. Evidently, the Applicant maintains a sound Anuak language capacity. Anuak is the language of the Anuak people and is widely spoken in the western part of Ethiopia. Accordingly, I am not persuaded that this will impede his return and re-settlement to Ethiopia.

…

Overall, I am of the view (and find) that Other Consideration (b) [extent of impediments if removed] confers very heavy, but not determinative, weight in favour of revocation of the decision under review.

(Emphasis original.)

Consideration

Lack of evidence to support finding

38    The applicant submits that the Tribunal did not have “a skerrick of evidence or information” to support its finding that the Anuak language, being the language spoken by the applicant, “is widely spoken in the Western part of Ethiopia”. I refer to this finding as the language finding.

39    At the hearing, counsel for the applicant submitted that the language finding “needs to be considered in light of the representations made about the significance that [the applicant’s] lack of language skills in other languages which may be spoken in Ethiopia”. It was also submitted that the Tribunal’s finding is “a statement saying well, it doesn’t matter whether he goes back to [Gambela] because the language he speaks is spoken widely in the western part of Ethiopia”.

40    In turn, the Minister submits that the applicant’s contention “involves a misconstruction of the Tribunal’s reasons” because the Tribunal’s reference to “the western part of Ethiopia” was “an apparently intended reference to Gambela (which is situated [in] the western part of Ethiopia)”. In respect of that finding, the Minister submits “there was clear evidence that the Gambela area was significantly populated by the Anuak people and that their language was thereby widely spoken in that area”.

41    Further, the Minister submits:

The Applicant’s case before the Tribunal was put on the basis that he and his family were, and are, members of Anuak tribe/people who lived in the Gambela region until leaving Ethiopia. His case was also put on the apparent basis that, if returned to Ethiopia, he would return to the Gambela area and would be at risk of harm due to the harm perpetrated in that region against the Anuak people.

…

Having regard to the way the Applicant’s case was put, [the Tribunal’s finding at [113]] is consistent with the Tribunal being of [the] view that the Applicant would return to Gambela where the Anuak people/tribe he had historically associated with were based.

(References omitted.)

42    At the hearing, counsel for the Minister pointed to multiple examples of the applicant’s representations that were focused on the Gambela region. Counsel submitted that these examples show that nothing was put before the Tribunal to suggest a reason why the applicant might go outside Gambela. It was submitted that “the tribunal’s reasons have to be read in light of the case put before it... It was very clearly put that, at least implicitly, [the applicant] would be returning to [Gambela]” and “there was no suggestion that he would go outside that area”.

43    For the following reasons, I accept the Minister’s submissions.

44    The evidence before the Tribunal established that the Anuak language is spoken by the Anuak people. They are one of the two largest ethnic groups residing in the Gambela region. The map of Ethiopia’s regions which is in evidence shows that Gambela is located in the western part of Ethiopia.

45    Importantly, counsel for the applicant could not point to any evidence that the Anuak language is only spoken in the Gambela region. Nor was there any evidence that the Anuak people only reside in the Gambela region.

46    In any event, there was no suggestion that the applicant would, if returned to Ethiopia, reside in any region other than the Gambela region with the Anuak people, or that he would be required to communicate in a language other than the Anuak language. Indeed, counsel for the applicant conceded before the Tribunal that if the applicant returned to Ethiopia, he would reach out to his brother and uncle who (he believes) live in the Gambela region. It was also accepted that, if the applicant was to reside in the Gambela region, he would not experience a “language issue”.

47    The Court should give the Tribunal’s decision a beneficial construction which requires that it not construe reasons “minutely and finely with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ), cited by LPDT at [61]. Moreover, the Tribunal’s decision “must be considered in the light of the basis upon which the application was made”: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [1] (Gleeson CJ).

48    I consider it to be implicit in the Tribunal’s language finding that, were the applicant removed to Ethiopia, he would reside in the Gambela region with the Anuak people where he would not experience an impediment in the form of a “substantial language barrier”. This is the basis upon which the applicant’s case was advanced before the Tribunal.

49    For these reasons, I do not consider that the Tribunal erred in making the language finding because, on its proper construction and in the context of the applicant’s case as put before the Tribunal, there was evidence to support the language finding.

Materiality

50    In any event, I do not consider that, if the language finding was an error, that error would be material.

51    The applicant contends that this finding was material because the finding:

…is central and crucial to the Tribunal’s consideration of sub-paragraph 9.2(1)(b) of the Direction as to whether there are “substantial language or cultural barriers” which may serve as an impediment faced by the Applicant if removed from Australia to his home country in establishing himself and maintaining basic living standards.

The finding necessarily affected the extent of impediments faced by the Applicant, and may therefore have affected the weight to be placed upon that consideration by the Tribunal. The finding was material in that as a matter of reasonable conjecture, the outcome may have been different had the Tribunal reached a different view as to whether the Applicant faced impediments as a result of the language spoken by him if returned to Ethiopia.

52    However, in addition to the language finding, the Tribunal considered other impediments that the applicant would face if removed to Ethiopia. Despite finding that the applicant would not face a language barrier if removed to Ethiopia, the Tribunal ultimately found that the extent of the impediments if removed “confers very heavy, but not determinative, weight” in favour of revocation of the Minister’s decision.

53    I do not consider that there is a realistic possibility that a finding that the applicant would face an additional impediment in the form of a language barrier could have caused the Tribunal to place determinative weight on the consideration relating to the extent of impediments if removed.

54    In support of this is the fact that the Tribunal placed heavy weight against revocation of the applicant’s visa on primary considerations 1 and 5 (at [58] and [89] of its reasons), moderate but not determinative weight on primary considerations 3 and 4 (at [70] and [77] of its reasons), and neutral weight on primary consideration 2 (at [60] of its reasons). Paragraph 7 of the Direction stipulates that the Tribunal should generally attribute greater weight to “primary considerations” than “other considerations” (such as the extent of impediments if removed).

55    For these reasons, ground 2 must fail.

Grounds 3 and 4

56    It is appropriate to deal with grounds 3 and 4 together given that both parties dealt with these grounds together in their written and oral submissions. The applicant’s counsel described these grounds at the hearing as alternative ways of characterising the same error: T3/31–32.

57    As was the case for ground 2, grounds 3 and 4 concern paragraph 9.2(1) of the Direction which requires the Tribunal to consider the extent of any impediments that the applicant may face if removed to Ethiopia in establishing himself and maintaining basic living standards.

The Tribunal’s decision

58    In its consideration of “Other Consideration (a): Legal consequences of decision under section 501 or 501CA”, the Tribunal had regard to the applicant’s representations that he would be at real risk of serious or significant harm if he were removed to Ethiopia. The Tribunal observed at [96] of its reasons that:

in respect of claims by an applicant that they are owed non-refoulement obligations under unenacted international law and under domestic law, the decision-maker is permitted, but generally not required, to consider those claims as part of the request for revocation of the mandatory cancellation if the applicant can still apply for a protection visa.

59    After setting out the parties’ representations, the Tribunal found at [103] that, based on the evidence before it, it is not in an “optimal position to make a finding about whether the applicant is in need of complementary protection” but noted that the applicant is not precluded from applying for a protection visa, and that an application of this kind would enable the applicant’s claims to be more “comprehensively assessed”.

60    Nonetheless, the Tribunal reasoned at [104] that the applicant “cannot be removed while a protection visa application is being processed, and the grant of a protection visa would obviously entitle him to return to the wider community”. In the event that the applicant is found to be in need of complementary protection but denied a protection visa (for reasons including character, community safety or national security), then s 198 of the Migration Act – which mandates the removal of unlawful non-citizens from Australia as soon as reasonably practicable – “would not require or authorise his removal” and he would instead be detained in immigration detention.

61    The Tribunal next considered “Other Consideration (b): the extent of impediments if removed”. After setting out paragraph 9.2(1) of the Direction at [108] of its reasons, the Tribunal identified the applicant’s submissions at [109]–[111] which were, in summary:

(1)    the applicant would experience significant detriment if returned to Ethiopia, beyond the danger to his life and physical safety outlined in relation to Other Consideration (a): [109];

(2)    given his PTSD diagnosis and his traumatic early life, the applicant requires counselling and mental health support, which would not be easily available in Ethiopia: [110];

(3)    if the Tribunal decides it is not going to consider the effect of visa cancellation on Australia’s domestic and international non-refoulement obligations during this process, then the likely harm the Applicant will suffer due to his Anuak ethnicity must nonetheless be considered as part of Other Consideration (b). A serious risk of violence and/or persecution is clearly an ‘impediment’ to establishing oneself and maintaining basic living standards: [111].

62    After referring to the Minister’s submissions and aspects of the evidence at [112], the Tribunal made the following findings in paragraphs [113]–[114] of its reasons:

Based on the parties’ submissions, I am of the view that:

•    Sub-paragraph 9.2(1)(a): the Applicant’s age (30 years old) is not an impediment to him re-establishing himself in Ethiopia. The evidence before the Tribunal indicates that the Applicant has suffered long-term mental (including substance abuse induced psychosis and PTSD) and other health issues. This is obviously a significant medium to long-term obstacle for the Applicant in maintaining basic living standards in Ethiopia. I do not consider that the Applicant’s mental and health conditions can be adequately managed over time in Ethiopia (noting the non-comparable levels of healthcare available to the Applicant in that country). I consider (and find) that significant health-related resettlement impediments will likely persist for this Applicant in the medium to long-term.

•    Sub-paragraph 9.2(1)(b): the Applicant was born in Ethiopia and arrived in Australia on a permanent basis in 2008, aged around 15 years. As the Applicant has spent around one-third of his life in Ethiopia, it is difficult to assert that the Applicant will be confronted with insurmountable or significant cultural barries [sic] were he returned to that country. Evidently, the Applicant maintains a sound Anuak language capacity. Anuak is the language of the Anuak people and is widely spoken in the western part of Ethiopia. Accordingly, I am not persuaded that this will impede his return and re-settlement to Ethiopia.

•    Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health will present significant impediments upon return and resettlement in Ethiopia. I have also earlier found that Ethiopia has non-comparable levels of healthcare to Australia. A similar finding can be made with reference to government-related economic supports available to the Applicant in Ethiopia. Moreover, the Applicant does not appear to have durable social and family support in Ethiopia, and this will obviously impede his short and medium-term re-settlement.

Overall, I am of the view (and find) that Other Consideration (b) confers very heavy, but not determinative, weight in favour of revocation of the decision under review.

(Emphasis original.)

The parties’ contentions

63    The applicant submits that, in evaluating the parties’ representations, the Tribunal limited itself to discussing those matters which are specifically identified in paragraphs 9.2(1)(a), (b) and (c) of the Direction.

64    The applicant submits that the Tribunal’s alleged failure to evaluate the representations concerning the likelihood of persecution, harm and discrimination faced if he returned to Ethiopia appears to follow from its conclusion, at [103] of its reasons, that it was not in an “optimal position” to make a finding about whether the applicant is in need of complementary protection and that this would be considered if the applicant applied for a protection visa.

65    However the applicant submits, by reference to GBV18 v Minister for Home Affairs (2020) 274 FCR 202; [2020] FCAFC 17 at [32(e)] (Flick, Griffiths and Moshinsky JJ), that the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation as to risk of harm independently of any claim based upon Australia’s non-refoulement obligations. The applicant contends that in this case, such representations were made independently of any claim that Australia’s international non-refoulement obligations were engaged.

66    Relevantly, the applicant submits that the representations ought to have been considered as part of the Tribunal’s consideration of the “extent of impediments” faced by the applicant if he were returned to his home country because this is a hypothetical question posed by the Direction and therefore a matter required to be considered by the Tribunal.

67    At the hearing, counsel for the applicant linked the Tribunal’s alleged obligation to consider the applicant’s representation regarding risk of harm to its consideration of the extent of impediments faced by the applicant if removed, which is required by paragraph 9.2(1) of the Direction: T18/7–9, 19/18–20, 19/32–36, 20/37–44.

68    In response, the Minister submits to the effect that the representations had been considered because the Tribunal’s reasons under the heading “Other Consideration (a): Legal consequences of a decision under section 501 or 501CA” involved a detailed consideration of what would happen to the applicant following a non-revocation decision. The Minister submits that the Tribunal ultimately came to the view that, following the protection visa which the applicant indicated that he would apply for, the applicant would only be returned to Ethiopia if the Minister assessed him as facing a real risk of persecution or significant harm, referring to [106] of the reasons.

69    The Minister submits that this “explains why, in respect of the consideration of “Extent of impediments if removed”, the Tribunal did not consider any impediments the Applicant would face in Ethiopia on the basis of his perceived fear of harm (as the Applicant would not, in the future, have to return to Ethiopia if he faced a real risk of harm there). In that way, the Tribunal had considered the representation made by the applicant. However, due to the way it reasoned its decision, the impediments the Applicant sought to raise were irrelevant.

70    In any event, the Minister also submits that paragraph 9.2(1) of the Direction does not oblige the decision-maker to have regard to harm as an impediment an applicant may face if removed, but rather that it is only engaged where (inter alia) the relevant impediment “arises or is caused by the applicant’s age, or health, or language or cultural barriers”.

Consideration

71    Having regard to the manner in which the applicant framed his case, it is only necessary to consider the Tribunal’s treatment of the applicant’s representations regarding risk of harm by reference to its consideration of the extent of impediments if removed pursuant to paragraph 9.2(1) of the Direction.

72    Paragraph 9.2(1) of the Direction is concerned with impediments that an applicant may face in establishing themselves and maintaining basic living standards. I accept the Minister’s submission that paragraph 9.2(1) does not require the decision-maker to consider risk of harm as an impediment if removed, but rather only requires the decision-maker to have regard to an impediment that arises from the limited considerations set out in subparagraphs (a), (b) and (c).

73    As Derrington J observed in GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [55]:

[Paragraph 9.2] is concerned with the existence of any impediments which an applicant may face in establishing themselves and maintaining basic living standards. Moreover, the impediments must arise from the applicant’s age, or health, or language or cultural barriers and in the context of any social, medical or economic support available in the home country.

74    For these reasons, no error has been established.

75    In any event, I consider that the Tribunal did consider the applicant’s representation regarding his risk of harm if returned to Ethiopia. The Tribunal’s conclusion that the applicant would not be returned to Ethiopia if found to qualify for complementary protection (which itself requires a finding that the applicant would be at risk of significant harm) demonstrates that the Tribunal had in fact turned its mind to the applicant’s representation regarding such a risk. For the reasons above, it is immaterial that this did not occur in the context of paragraph 9.2(1) under the subheading “Other Consideration (b): Extent of impediments if removed”.

76    For these reasons, I do not consider the Tribunal’s treatment of the representations regarding risk of harm to constitute an error on the part of the Tribunal.

Materiality

77    In any event, I do not consider that the error alleged by the applicant would be material.

78    The applicant submits that:

The failure to evaluate the information before it as to the risk faced by the Applicant if he were returned to Ethiopia as an impediment to his establishing himself and maintaining basic living standards is a matter which could rationally as a matter of conjecture have affected the overall balance of considerations weighed by the Tribunal. The failure was material to the conclusion reached by the Tribunal as to its state of satisfaction whether there was “another reason” why the Applicant’s visa cancellation should be revoked.

79    The Tribunal considered that Other Consideration (b) weighed heavily, but not determinatively, in favour of revocation. I accept that, if the Tribunal considered the applicant’s representations regarding risk of harm as an impediment he would face if removed (which I have found it was not required to do), it could have resulted in greater weight being placed on Other Consideration (b). However, even if this were the case, I do not consider that there is a realistic possibility that the Tribunal could have reached a different conclusion as to revocation for the same reasons outlined in [54] above.

DISPOSITION

80     For these reasons, the following orders will be made:

(a)    The application be dismissed;

(b)    The applicant pay the first respondent’s costs to be taxed if not agreed.

Associate:

Dated:    28 March 2024