FEDERAL COURT OF AUSTRALIA

Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 816

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to the Tribunal to quash the migration decision of the Administrative Appeals Tribunal (Tribunal) made on 20 November 2023 affirming the decision of the delegate of the first respondent not to revoke the cancellation of the visa held by the applicant.

2.    The matter be remitted to the Tribunal to reconsider and re-determine the application for review according to law.

3.    The parties are to confer and seek to reach agreement on any orders for costs pursuant to any conditional costs agreement.

4.    If agreement cannot be reached on the matter identified in Order 3 of these orders within 14 days of the delivery of judgment, the parties are to arrange for this matter to be relisted and provide short minutes and brief submissions in support of the competing orders that they seek.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     INTRODUCTION

1    By an amended originating application for review of a migration decision filed on 27 May 2024 (amended application), the applicant, Subash Ghimire, seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), affirming a decision made by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) not to revoke a decision to cancel the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act).

2    The Tribunal has filed a submitting notice in these proceedings.

3    The amended application raises three grounds of review:

(a)    the Tribunal failed to comply with s 499(2A) of the Act and misunderstood, or misapplied, “Direction No 99 – Visa refusal and cancellation under section 501CA” (Direction 99) in attributing negative weight to the consideration of the extent of impediments if the applicant were removed from Australia, or further and in the alternative, denied the applicant procedural fairness in doing so;

(b)    the Tribunal overlooked substantial, clearly articulated submissions, or failed to consider relevant matters, with respect to the applicant’s submissions on hardship and impediments he would face if returned to Nepal; and

(c)    the Tribunal denied the applicant procedural fairness by preventing him from articulating, and not properly exploring, protection claims during the hearing, and failed to consider the applicant’s representations that he faced discrimination and harassment in Nepal.

4    The applicant seeks an order that the decision of the Tribunal be quashed, and for the matter to be remitted to the Tribunal for determination according to law.

5    The Minister contends that the grounds of review do not amount to any jurisdictional error by the Tribunal, and that the amended application should be dismissed with costs.

6    For the reasons that follow, I have determined that the application should be allowed on the first ground of review relied on by the applicant and the matter should be remitted to the Tribunal for determination according to law.

B.     BACKGROUND

7    The applicant is a citizen of Nepal.

8    On 25 February 2009, the applicant arrived in Australia on a student (subclass 572) visa.

9    On 15 January 2010, the applicant was convicted of an offence of common assault (domestic violence) and was sentenced to a 12 month bond. The applicant was also subject to an apprehended domestic violence order (ADVO) for a 12 month period.

10    On 21 November 2011, the applicant was convicted of three contraventions of the ADVO, two instances of “stalk/intimidate intend fear of physical/mental harm” and two instances of “use carriage service to menace/harass/offend”.

11    On 29 January 2015, the applicant was granted a class BS (subclass 801) partner visa (Visa).

12    In 2014, the applicant suffered a subdural haemorrhage as a result of a gang robbery.

13    On 15 December 2014, the applicant was convicted of driving under the influence of alcohol, and was issued a $500 fine and a 6 month disqualification from driving.

14    On 14 March 2017, the applicant was convicted of a second traffic offence of driving under the influence of alcohol. He was issued a $500 fine, a 3 month disqualification from driving, and a 12 month alcohol “interlock” program.

15    On 4 August 2021, the applicant was convicted of “stalk/intimidate intend fear of physical etc harm (domestic)-T2” and “contravene prohibition/restriction in AVO (Domestic)”. He was issued a $500 fine and a 12 month community correction order.

16    On 17 March 2022, the applicant was convicted for common assault (domestic violence). His community correction order was extended for 3 months, he was issued a $500 fine, and the applicant was required to attend an assessment for alcohol issues and participate in alcohol counselling. Another ADVO was issued for a period of 2 years.

17    On 7 July 2022, the applicant was convicted of “contravening prohibition/restriction in AVO and stalk/intimidate intend fear of physical/mental harm”, and was sentenced to 12 months’ imprisonment.

18    On 27 July 2022, the applicant’s Visa was mandatorily cancelled pursuant to s 501(3A) of the Act (cancellation decision) on the basis that the applicant did not pass the character test, by reason of his substantial criminal record.

19    On 4 August 2022, the applicant made representations to the Minister requesting that the cancellation decision be revoked.

20    On 4 January 2023, the applicant was released from prison, and was placed in immigration detention.

21    On 25 August 2023, a delegate of the Minister (Delegate) made a decision not to revoke the cancellation decision.

22    The applicant sought a review of the Delegate’s decision in the Tribunal.

23    On 20 November 2023, the Tribunal affirmed the Delegate’s decision not to revoke the cancellation decision, with reasons published on 2 January 2024: Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3 (Decision or DR).

C.     LEGISLATIVE FRAMEWORK

24    Section 501(3A) of the Act provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) 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.

25    Section 501CA(4) of the Act provides:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

26    In exercising the power under s 501(CA)(4)(b)(ii) of the Act, a delegate of the Minister, and the Tribunal, is required to comply with directions made by the Minister under s 499 of the Act: FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19 at [6]-[7] (O’Callaghan and Colvin JJ, Derrington J agreeing at [55]). On 3 March 2023, the Minister made Direction 99, which replaced the previous Direction 90.

27    Paragraph 8 of Direction 99 sets out five primary considerations that the decision maker is required to take into account:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    whether the conduct engaged in constituted family violence;

(c)    the strength, nature and duration of ties to Australia;

(d)    the best interests of minor children in Australia; and

(e)    expectations of the Australian community.

28    Paragraph 9 of Direction 99 sets out four other considerations, which must also be taken into account:

(a)    legal consequences of the decision;

(b)    extent of impediments if removed;

(c)    impact on victims; and

(d)    impact on Australian business interests.

29    Paragraph 7(2) of Direction 99 provides that the primary considerations should generally be given more weight than the other considerations.

D.     THE TRIBUNAL’S REASONS

30    The Tribunal identified that the two issues it was required to determine were (a) whether the applicant passes the character test as defined by s 501(6) of the Act, and (b) if the applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked, pursuant to s 501CA(4) of the Act: DR [28].

31    The Tribunal found that as the applicant had been sentenced to a term of imprisonment of 12 months or more, the applicant does not pass the character test as defined in s 501(6)(a) and s 501(7)(c) of the Act: DR [46]-[48].

32    The Tribunal found that the applicant’s conduct in Australia has been “serious” and that the applicant presents a “moderate to high risk of reoffending” in Australia. The Tribunal therefore considered that the first primary consideration under Direction 99, being protection of the Australian community, weighs against revocation of the cancellation decision, and that the consideration should be “significantly weighted”: DR [70]-[71].

33    With respect to the second primary consideration, being family violence committed by the applicant, the Tribunal considered that the applicant’s history of family violence is serious and “evinces a trend of increasing seriousness”. The Tribunal therefore found that this consideration weighs against revocation of the cancellation decision, and should be significantly weighted: DR [76]-[77].

34    In considering the applicant’s ties to Australia, being the third primary consideration, the Tribunal found that the applicant’s family in Australia would be adversely impacted if the cancellation decision were not revoked, and that the applicant has “a very real network of support in the Australian community”, which would be “irrevocably impaired” if the cancellation decision were not revoked. The Tribunal accordingly considered that the third primary consideration weighed in favour of revoking the cancellation decision, and should be given moderate weight: DR [81]-[86].

35    The Tribunal considered that the fourth primary consideration, being the best interests of children in Australia, weighed in favour of revoking the cancellation decision, and that the consideration should be given moderate weight: DR [92]-[93].

36    The Tribunal found that the fifth primary consideration, being the expectations of the Australian community, weighed against revoking the cancellation decision, and should be given significant weight: DR [103].

37    In considering the other considerations in Direction 99, the Tribunal found as follows:

(a)    there are no legal consequences arising under Australia’s international obligations that would flow from the cancellation decision, and this consideration weighs neutrally: DR [111]-[112];

(b)    the second other consideration, being the extent of impediments if removed, weighs against the revocation of the cancellation decision, and the consideration should be lightly weighted: DR [117];

(c)    the third other consideration, being the impact on victims, weighs neutrally: DR [121]; and

(d)    the fourth other consideration, being the impact on Australian business interests, is not relevant to the applicant’s case: DR [123].

38    The Tribunal then concluded at DR [134] as follows:

Having weighed the relevant considerations in favour of the revocation of the Cancellation Decision and the relevant considerations against revoking the Cancellation Decision, the Tribunal finds that the considerations in favour of revoking the Cancellation Decision do not outweigh the considerations against revoking the Cancellation Decision.

E.     GROUNDS OF REVIEW

39    The amended application sets out three grounds of review, as follows:

1.    The Tribunal

a.    failed to comply with s 499(2A) of the Act and misunderstood, or misapplied, Direction 99; and/or

b.    denied the applicant procedural fairness.

Particulars

a)    The applicant made extensive submissions and representations about the impediments he would face if returned to Nepal.

b)    The Tribunal found the extent of the impediments consideration under cl 9.2 of Direction 99 should be lightly weighed against revoking the Cancellation Decision: D [117].

c)    The Tribunal’s attribution of negative weight to this consideration reflects a misunderstanding of the operation of the Direction, because the ‘extent of impediments if removed’ consideration is not intended to be adverse to an applicant.

d)    There was no legal or factual basis to construe the impediments consideration as adverse to the applicant in this particular case.

e)    The Tribunal’s error materially tainted its evaluative assessment under s 501CA(4) of the Act of whether to revoke the cancellation of the applicant’s visa.

f)    Further and in the alternative, the Tribunal denied the applicant procedural fairness because it did not advise of the adverse conclusion that the extent of impediments consideration weighed against revoking the cancellation, in circumstances where the delegate had found the applicant “is likely to experience moderate hardship if he is returned to Nepal” (AB) T 5 p 27 at [127]) and the Minister’s representative consistently accepted that the consideration under cl 9.2 of Direction 99 would weigh in the applicant’s favour.

2.    The Tribunal overlooked substantial, clearly articulated submissions, or failed to consider relevant matters.

Particulars

a)    The applicant made submissions and representations about hardship and impediments he would face in Nepal in respect of substantial issues including:

…

b)    The Tribunal was required consider (in the sense of adverting to and understanding) the applicant’s submissions.

c)    It can be inferred that the Tribunal overlooked and misunderstood the applicant’s claims because:

…

d)    In the premises, the Tribunal’s reasons show that it proceeded without a proper awareness and understanding of what was being put forward by the applicant.

3.    The Tribunal:

a.    denied the applicant procedural fairness by preventing him from articulating, and not properly exploring, protection claims during the hearing;

b.    failed to consider the applicant’s representations that he faced discrimination and harassment in Nepal (independently of whether the risk of harm was of such a kind that Australia owed non-refoulement obligations with respect to the applicant).

Particulars

a)    The applicant claimed to face discrimination, harassment and harm in Nepal due to this conversion to Christianity from Hindu extremists.

b)    In attempting to elucidate his claims to the Tribunal, the applicant sought to address his conversion to Christianity but was stopped by the Tribunal on the basis that “this is not a Protection visa application”: (Affidavit of Paige Durham dated 24 May 2024 P 86 transcript lines 4 – 20).

c)    In circumstances where it was not open for the applicant to lodge a further protection visa application by dint of s 48A of the Act, the Tribunal was required – and failed – to afford the applicant a “reasonable opportunity” to present his claims: s 39 Administrative Appeals Tribunal Act 1975 (Cth), Clause 9.1.2(1) Direction 99.

d)    Further, the Tribunal was required to consider the applicant’s representations about potential discrimination and harassment outside of the framework of Australia’s international obligations.

e)    When assessing the extent of impediments if removed consideration, the Tribunal did not engage with the discrimination and hardship the applicant claimed he would face, and failed to consider the factual basis of claims and representations as a distinct issue from whether any adverse treatment the applicant could face on return would engage Australia’s international obligations.

E.1.     Failure to comply with Direction 99

E.1.1.     Overview

40    In this ground, the applicant contends that the Tribunal failed to comply with s 499(2A) of the Act and misunderstood, or misapplied, Direction 99, in attributing negative weight to the consideration of the extent of impediments if the applicant were removed from Australia, or further and in the alternative, denied the applicant procedural fairness in doing so.

41    The Minister accepts that, at least in a non-exceptional case, the impediments to removal consideration cannot lawfully be weighed against revoking a visa cancellation under s 501CA(4) of the Act, and therefore accepts that the Tribunal did misunderstand or misapply paragraph 9.2 of Direction 99.

42    The Minister, however, contends that the Tribunal’s error was not material, in that there was no realistic possibility of a different outcome had the error not been made.

E.1.2.     Relevant principles

43    Paragraph 9.2 of Direction 99 provides:

9.2     Extent of impediments if removed

(1)     Decision-makers must consider the extent of any impediments that the noncitizen 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.

44    Paragraph 9.2 of Direction 99 is concerned with “certain detriment which an applicant might suffer on being returned to their home country and which may be a reason or part of a reason for revoking a cancellation decision”: GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [55] (Derrington J).

45    As Derrington J observed in Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84 at [30] with respect to the former Direction 79:

Broadly speaking, paragraph 8(3) of the Direction provides that both primary and other considerations may weigh in favour of, or against, whether to revoke a mandatory cancellation of a visa. In considering the Direction as a whole, it is clear that certain considerations — such as the protection of the Australian community from criminal conduct, the expectations of the Australian community, and the impact on victims — are intended to generally weigh against revoking the cancellation of an applicant’s visa, while others — such as international non‐refoulement obligations and the extent of impediments if removed — are intended to generally weigh in favour of revoking the cancellation of an applicant’s visa. On a common sense approach, the strength, nature and duration of the applicant’s ties to Australia (ie para 14.2 as a whole) is a consideration which generally falls into the latter category. On a similar approach, the family ties sub‐consideration may generally be placed in the same category.

(Emphasis in original.)

46    In most cases, an error by the decision maker will only be a jurisdictional error if it was material to the decision that was in fact made, in the sense that there is a realistic possibility that the decision that was in fact made could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

47    The concept of “realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. The threshold is not demanding or onerous: LPDT at [14].

48    A Court called upon to determine whether the threshold of materiality has been met must be careful not to assume the function of the decision maker: LPDT at [15]. A reviewing Court does not engage in a review of the merits of the decision, reconstruct a decision making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision: LPDT at [29].

49    As the plurality in LPDT said at [16]:

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

50    In Holloway v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 217; [2022] FCA 1126, Colvin J said at [27]:

The majority reasoning in Nathanson exposes a significant aspect of those cases where a failure to afford procedural fairness results in submissions or evidence (or both) not being entertained by the decision-maker. In such instances, the required conjecture as to what was reasonably possible must allow for uncertainty as to how the process may have unfolded. As a court on review must be assiduous in not usurping the decision-making role entrusted by statute to the particular repository, the Court’s conjecture cannot be guided by any assessment of its own as to what the result could or should have been had the submissions or evidence been received and a lawful decision made within the scope of the decision-making authority. Within the scope of that authority, the task of undertaking the required assessment has been entrusted to the repository. Therefore, in such instances, conjecture as to whether there was a realistic possibility that the decision-making process could have resulted in a different outcome will usually recognise that possibility. In part that is a consequence of the fact that such a party will, by definition, have been denied the opportunity to put its case. The process will be incomplete. As a result, much uncertainty is introduced and conjecture as to what may have occurred will be likely to entertain the possibility that further evidence or particular submissions may have influenced the decision.

E.1.3.     The applicant’s submissions

51    The applicant submits that there was no legal or factual basis to construe the impediments to removal consideration as adverse to the applicant in this particular case. The applicant submits that the unavoidable inference is that the Tribunal misunderstood paragraph 9.2 of Direction 99, which tainted its evaluative assessment of this consideration.

52    The applicant submits that paragraph 9.2 of Direction 99 could not ever be adverse to a former visa holder, even in exceptional circumstances. The applicant submits that in this case, it was not possible for the Tribunal to rationally conclude that the circumstances were such that the consideration weighed against revocation.

53    The applicant submits that the fact that the Tribunal found the consideration should be lightly weighed does not indicate that light weight would have been apportioned to the consideration had the Tribunal not misunderstood its task.

54    The applicant submits that where what is in issue is a misunderstanding of the law, quite specific circumstances would be required before a reviewing court could confidently conclude that an applicant was not deprived of the possibility of a successful outcome. The applicant submits it would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning.

55    The applicant submits that lawful compliance with Direction 99 could realistically have led the Tribunal to attribute weight to the impediments to removal consideration in the applicant’s favour, which might have affected its ultimate decision.

56    The applicant submits, further or in the alternative, the Tribunal denied the applicant procedural fairness by weighing the impediments to removal consideration against revocation without advising the applicant of a potential adverse conclusion that was not obviously open.

57    The applicant submits that the Tribunal’s indications during the hearing, which were contrary to its ultimate finding, underscores that the adverse conclusion was completely unexpected. The applicant submits that the Tribunal heard no argument from either party, and had the applicant been on notice, he could have made submissions as to why the consideration ought to be given weight in favour of revocation, not against revocation.

E.1.4.     The Minister’s submissions

58    The Minister submits that the error is a misunderstanding of one aspect of Direction 99, and that it is patently clear that the Tribunal did not make any finding that could have led to a conclusion that the impediments to removal consideration would favour revocation.

59    The Minister submits that the error was in ascribing some small weight to the consideration in favour of not revoking the cancellation decision, which must be evaluated against the Tribunal’s findings that two primary considerations weighed significantly against revocation, and two primary considerations weighed moderately in favour of revocation.

60    The Minister submits that it could not be put that the Tribunal’s findings on the impediments to removal consideration was the determinative factor in the Tribunal’s calculus. The Minister submits that had the Tribunal properly understood and applied the impediments to removal consideration, it is inconceivable, on the Tribunal’s findings, that it would have prompted the Tribunal to be satisfied there was another reason why the cancellation decision should be revoked.

61    The Minister accepts that the erroneous finding at DR [131] that the impediments to removal consideration weighed against revocation could not lawfully be taken into account in the evaluative assessment undertaken by the Tribunal but submits this does not relevantly compromise the assessment once regard is had to the factual findings made by the Tribunal at DR [114]-[117].

62    The Minister also accepts that had the Tribunal put the applicant on notice that it was going to weigh the impediments to removal consideration against him, the applicant might have persuaded the Tribunal that it should not be weighed in such a way. The Minister submits, however, that on the Tribunal’s findings, there is no basis for it to be said that the Tribunal might have weighed the consideration in favour of revocation.

63    Further, the Minister submits that the Tribunal’s comments made during the hearing, as evidenced in the transcript, are not the Tribunal’s ultimate findings, which must be the focus of the materiality analysis.

E.1.5.     Consideration

64    The first limb of the first ground of review is directed at an alleged misunderstanding or misapplication by the Tribunal of the impediments to removal consideration in Direction 99.

65    In LPDT, the High Court found that the Tribunal in that case had misunderstood paragraph 8.1.1(1)(a) of Direction 90, which in turn, in the statutory context in which the decision was made, “compel[s] the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error”: LPDT at [35]. The plurality continued:

Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal’s assessment of Primary Consideration 1, and in that the Tribunal’s assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant’s visa. The Tribunal’s error in its process of reasoning in these respects alone established that the error was material.

It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred.

66    The fundamental and in my view insurmountable problem with the Tribunal’s approach to the impediments to removal consideration is that it approached the consideration on the basis that it could weigh against revocation. As the Minister fairly conceded, it would only be in exceptional circumstances, which the Minister accepted did not apply in the present case, that the consideration would weigh against revocation. It would appear to be a somewhat perverse conclusion to find that a matter that an applicant advanced as an impediment to their removal, on analysis, weighed against revocation of a cancellation decision.

67    The necessary consequence of the error by the Tribunal was that the weighing exercise that it undertook in order to conduct its single evaluative exercise at DR [124]-[134] included the following impermissible finding at DR [131]:

With respect to second other consideration, being the extent of impediments if removed, this weighs against revoking the Cancellation Decision. This other consideration should be lightly weighted.

68    I do not accept, contrary to the Minister’s submissions, that the following factual findings made by the Tribunal at DR [114]-[116], make plain that there is no realistic possibility that the Tribunal could have come to a different decision:

It is accepted that the Applicant’s return to Nepal would be contrary to his intentions or wishes. His evidence has been entirely consistent to the effect that his future in Nepal would be less felicitous or agreeable than continuing to reside in Australia. Balanced against this is the fact that the Applicant has returned to Nepal several times since first arriving in Australia and also that he has put his time in Australia to some use in obtaining further qualifications and experience. He is relatively young and, with no criminal history in that country, he can be expected to adjust back into Nepalese society as well as any citizen of that country who returns after 15 years abroad.

That is not to say that the damage done to his family relationships in Nepal as a result of his serious offending in Australia have no implications for him on return. However, the Applicant has stated that he is committed to rehabilitating and making amend to those persons who have been affected by his serious offending in Australia. He also has the tools necessary to continue to engage with his online counsellors and his online faith-based community.

The Applicant enjoys an understanding of Nepalese culture, society and laws developed through his formative years in that country. He has a network of family support in Nepal and he is in reasonable health. I acknowledge that he has mental health needs, however, these will be accommodated by the same systems and resources that are available to all Nepalese citizens and there is nothing in the DFAT country information report on Nepal to suggest that the Applicant will be discriminatorily prevented from accessing the same level of physical or mental health care as other Nepalese citizens.

69    The difficulty with any reliance on these findings is that they were made through a lens that the impediments to removal consideration was a matter that might weigh against revocation of the cancellation decision. The specific question that the Tribunal was thus addressing was whether the matters sought to be relied upon by the applicant weighed against revocation. By asking itself the wrong question, at least in the circumstances of this case, given the nature of the matters advanced by the applicant in support of the consideration, the Tribunal had incorrectly framed the parameters of its task.

70    It is possible that the Tribunal was approaching the impediments to removal consideration on the basis that it might weigh either against or in favour of revocation but that is not apparent from the Tribunal’s finding at DR [117]. Moreover, the somewhat extraordinary step of approaching the impediments to removal consideration on the basis that impediments advanced by an applicant could weigh against revocation, suggests that little if any consideration was given by the Tribunal as to whether the impediments weighed in favour of revocation.

71    Further, any assessment that the factual findings at DR [114]-[116] weighed lightly against revocation cannot relevantly guide what weight the Tribunal would have given to those findings in assessing whether they weighed in favour of revocation or were neutral. The Tribunal did not undertake that task. Consistently with the reasoning in LPDT that is not a task that the Court can now do.

72    I turn now to the denial of procedural fairness limb of the first ground of review.

73    In Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59, a Full Court of this Court found that the Tribunal had denied the applicant procedural fairness in finding that the best interests of children consideration weighed against revocation, in circumstances where the parties had not advanced their case on that basis, nor was it an issue that the Tribunal squarely raised or one that was obvious given the course of the proceedings: Korat at [59]-[62] (Rangiah, Thawley and Shariff JJ). The Full Court then said at [63]:

The Tribunal heard no argument (from either party) about why the “best interests of children consideration” should not weigh against revocation. The Tribunal’s reasoning is not without difficulty. If the Tribunal had provided an opportunity for submissions on the topic, it may have reasoned in a different way and to a different outcome. If the Tribunal had concluded that this consideration weighed in favour of revocation, then the ultimate result necessarily might have been different: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [65].

74    Similarly to the position in Korat, in this case neither party advanced any submissions as to why the impediments to removal consideration might weigh against revocation. Nor was it an obvious finding given the nature and content of the submissions advanced by the applicant in support of the consideration. Indeed, the findings made by the Tribunal at DR [114]-[116] appear to be directed at submissions that the matters raised would, but for the militating factors referred to by the Tribunal, have weighed in favour of revocation. In my view, if the Tribunal had informed the parties that it was taking the exceptional step of finding that the matters relied upon by the applicant on the impediments to removal consideration weighed against revocation, it might have received submissions that caused it to reason in a different way and the ultimate result might have been different. The submissions that were advanced as to why the impediments to removal consideration weighed in favour of revocation might well have been expanded upon or advanced differently if they were addressing an unexpected proposition from the Tribunal that the impediments to removal consideration weighed against revocation.

75    For the foregoing reasons, both limbs of this ground of review have been established.

E.2.     Failure to consider substantial, clearly articulated arguments

E.2.1.     Overview

76    In this ground, the applicant contends that the Tribunal overlooked substantial, clearly articulated submissions, or failed to consider relevant matters, with respect to the applicant’s submissions on hardship and impediments he would face if he returned to Nepal.

E.2.2.     Relevant principles

77    In Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776, I provided a summary of the relevant principles with respect to an alleged failure to respond to substantial, clearly articulated arguments at [64]-[67]. It is convenient to set out those principles below.

78    Where a reason is sufficiently identified and advanced in representations, discharging the statutory task requires that consideration be given to that reason: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 at [62]-[63], [72] (Bromberg and Mortimer JJ).

79    If a review of a decision maker’s reasons discloses that the decision maker ignored, overlooked or misunderstood a substantial and clearly articulated argument, that may give rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). Further, a failure to respond to “substantial, clearly articulated arguments relying upon established facts” may amount to a denial of procedural fairness: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [86] (Perry J).

80    The nature, form and content of the representations made affects the Tribunal’s obligation to consider the representations. The requisite level of engagement required by the decision maker will depend on the nature, form and content of the representations. The degree of effort required of the decision maker will vary, depending on the length, clarity and degree of relevance of the representations. The decision maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: Plaintiff M1 at [25].

81    As a Full Court of this Court said in ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52 at [7]-[8] (Mortimer, Colvin and O’Sullivan JJ):

[7]     Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister’s reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

[8]     Hence when it was said in Plaintiff M1/2021 that ‘a decision-maker must read, identify, understand and evaluate the representations’ (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with.

E.2.3.     The applicant’s submissions

82    The applicant submits that he provided detailed representations, submissions and supporting information in respect of the extent of impediments he faced if he were removed to Nepal.

83    The applicant submits that it can be inferred from the Tribunal’s reasons that it overlooked and did not engage with substantial submissions and evidence, as follows.

84    First, the applicant submits that the Tribunal’s finding that the applicant “has a network of family support in Nepal and he is in reasonable health” at DR [116] did not engage with the applicant’s representations to the contrary, that (a) he lacks economic and medical support in Nepal, (b) he has “literally no one in … Nepal to get me support” and (c) his mother is not financially strong enough to support him. The applicant submits that it can be inferred from the Tribunal’s finding at DR [116] that it proceeded without a proper awareness and understanding of the applicant’s representations.

85    Second, the applicant submits that the Tribunal’s finding that the applicant is in reasonable health at DR [116] overlooked his evidence that he suffered a subdural haemorrhage and needed ongoing medical treatment, being a critical component of his health and wellbeing that cannot be provided in Nepal. The applicant submits that he was left to guess what role, if any, his representations played in the Tribunal’s assessment.

86    Third, the applicant submits that the Tribunal’s findings that the applicant’s mental health needs will be accommodated by the same systems and resources that are available to all Nepalese citizens, at DR [116], does not address the applicant’s submissions on the inadequacies of Nepal’s mental health systems. The applicant submits that the Tribunal made no findings about the extent to which removal would impact his recovery.

E.2.4.     The Minister’s submissions

87    The Minister submits that while the applicant submitted that he had been treated for a subdural hematoma, the applicant did not explain what current or ongoing future treatment he would require, and absent any detail, it was unnecessary for the Tribunal to address it.

88    The Minister submits that the Tribunal was aware of the applicant’s mental, alcohol and psychological problems, as referred to at DR [115]-[116]. The Minister submits that the Tribunal found that the applicant’s mental health needs would be accommodated in Nepal by the same systems and resources that were available to all Nepalese citizens, which reflects the terms of paragraph 9.2 of Direction 99 which requires consideration of impediments “in the context of what is generally available to other citizens of that country”.

89    The Minister submits that the applicant’s reference to having been on a detox program was not developed, and did not address what need the applicant presently has for detox programs, or would require in the future.

90    To the extent that the applicant made representations regarding employment, his indebtedness, that he would be homeless in Nepal and the lack of social and economic support from the government, the Minister submits that the Tribunal took these matters into account in noting that the applicant had returned to Nepal several times since arriving in Australia, that he had used his time in Australia to obtain further qualifications and experience, and was relatively young with no criminal history in Nepal, at DR [114].

91    The Minister submits that the fact that the applicant made representations contrary to some of the Tribunal’s findings does not support the Court inferring that the Tribunal ignored or was unaware of the applicant’s representations. The Minister submits that this simply indicates that the Tribunal did not accept them.

E.2.5.     Consideration

92    The extent of the obligation to read, identify, understand and evaluate representations made by an applicant in support of an application for the Tribunal to revoke a cancellation decision is necessarily framed by the content and specificity with which the representations are made. Further, it is not generally necessary to set out the evidence or particulars provided by the applicant in support of each representation that might be advanced to demonstrate that a substantial, clearly articulated submission has not been overlooked.

93    In my view, the Tribunal’s reasoning at DR [114]-[116] is sufficient to establish that it did not overlook substantial, clearly articulated submissions in its consideration of the impediments to removal consideration.

94    The applicant’s contentions were generally expressed. At times, the contentions did not rise above concerns that the medical and mental health facilities available in Nepal would not be of the same standard that are available in Australia. Paragraph 9.2(1) of Direction 99, however, dictates that in assessing the extent of impediments that an applicant may face if removed to their home country, the assessment is to be undertaken in the context of “what is generally available to other citizens of that country”. As Mortimer J explained in Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 at [34], that statement “is designed to ensure that a rational comparison is made between what will face the individual concerned, and what may face other citizens of that country on a day to day basis, rather than any comparison with the situation in Australia”, although that is not to say that what a person enjoys in Australia is irrelevant.

95    There was a considerable overlap in the various contentions advanced by the applicant in support of the impediments to removal consideration. In summary, they were largely directed at the lack of emotional, financial and medical support he could expect to receive, if he were removed to Nepal.

96    The applicant’s alleged lack of social and economic support in Nepal was not explained, other than his claims that “my situation is compounded by the absence of any friends or relatives in Nepal” and “I’ve got no one, literally no one in the Nepal to give me support”. These claims were inconsistent with the presence of both his mother and her family in Nepal. Moreover, his claim that his mother was “not financially strong enough to support me” does not establish that she could not provide any social or economic support.

97    The applicant made no more than a bare assertion that his historical subdural haemorrhage injury required “ongoing medical attention”, but did not expand upon what that might have entailed other than to state it involved “monitoring for symptoms”. The applicant did not provide details of any existing treatment programmes for his prior substance abuse or details of any medications that could not be obtained in Nepal, nor did the applicant provide any specific details of his depression and anxiety that he “had been struggling with my entire life” or explain why the “chance of my recovery will be very minimal”.

98    Further, the applicant’s counselling while he had been in immigration detention had been provided online and therefore was not necessarily dependent on him remaining in Australia.

99    Read as a whole, I am satisfied that the Tribunal’s reasoning at DR [114]-[116] demonstrated that it had understood and evaluated the representations made by the applicant with respect to the impediments to removal consideration.

100    At DR [114], the Tribunal balanced the applicant’s general concerns about the less favourable position he would face if he returned to Nepal against his return to Nepal on several occasions, the skills he has acquired in Australia, the absence of any criminal history in Nepal and his relative youth, and concluded that he could be expected to adjust back into Nepalese society as any other citizen who had spent 15 years out of the country would.

101    At DR [115], the Tribunal acknowledged that his serious offending in Australia may have some ramifications for him on his return but balanced this against his commitment to rehabilitate and make amends to those people who had been impacted by his offending and significantly, he had the tools necessary “to continue to engage” with both “his online counsellors” and his “online faith-based community”.

102    At DR [116], the Tribunal observed that the applicant had an understanding of Nepalese culture, society and laws from his early upbringing in the country. The Tribunal then stated that the applicant had a network of family support in Nepal, was in “reasonable health”, had “mental health needs” but that these would be met by the same systems and resources that are available to all Nepalese citizens.

103    The findings that the Tribunal made at DR [114]-[116], in particular that the applicant “was in reasonable health” and “has a network of family support in Nepal” were contrary to the submissions advanced by the applicant. It does not follow, however, that making findings contrary to the applicant’s submissions means the Tribunal overlooked them.

104    For the foregoing reasons, this ground of review has not been established.

E.3.     Failure to afford procedural fairness

E.3.1.     Overview

105    In this ground, the applicant contends that first, the Tribunal denied the applicant procedural fairness by preventing him from articulating, and not properly exploring, protection claims during the hearing, and second, the Tribunal failed to consider the applicant’s representations that he faced discrimination and harassment in Nepal.

E.3.2.     Relevant principles

106    Procedural fairness requires that a person be provided with a fair opportunity of being heard. What is necessary and appropriate to ensure a fair hearing depends on the particular factual and statutory context. The rules of procedural fairness are flexible and adaptable so as to be appropriate in a given case and so as to avoid practical injustice: Korat at [24] citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]-[38].

107    It is essential to examine the statutory and factual context, in order to reach a conclusion as to what procedural fairness required, in the circumstances of any given case: Korat at [27].

E.3.3.     The applicant’s submissions

108    The applicant submits that in his revocation request, he claimed to fear harm in Nepal, due to his conversion to Christianity, from Hindu extremists.

109    The applicant submits that he tried to expound upon his conversion to Christianity, but was stopped by the Tribunal on the basis that “this is not a Protection visa application”. The applicant submits that the Tribunal prevented him from raising relevant issues due to a misunderstanding of the law. The applicant submits that the Tribunal was required to fulsomely consider potential protection claims in circumstances where the applicant did not have the option of applying for a protection visa.

110    The applicant submits that the Tribunal did not consider the issues of discrimination and harassment he raised, independently of whether they engaged Australia’s non refoulement obligations. The applicant submits that even if the Tribunal had found that the levels of potential discrimination and harassment did not constitute persecution for the purposes of Australia’s non-refoulement obligations, it was required to consider the impact of these factors as a discrete issue.

111    The applicant submits that the Tribunal thereby failed to consider the factual basis of a claim and representations relied upon by him in support of there being another reason why the cancellation decision should be revoked.

E.3.4.     The Minister’s submissions

112    The Minister submits that the Tribunal’s comment that this is not a protection visa application must be read in the context of the broader hearing, and particularly the Tribunal’s earlier comment where it explained in detail what non-refoulment obligations were, such as to guide and prompt the applicant to direct his evidence to that question.

113    The Minister submits that the Tribunal did not prevent the applicant from developing his claims of fearing harm in Nepal. To the contrary, the Minister submits that the applicant followed its comment with a series of short and direct questions to ascertain from the applicant what his claims actually were.

114    The Minister submits that the Tribunal did not misunderstand the law, and that it was entirely correct to state that the application before it was not a protection visa application.

115    The Minister submits that the applicant’s representations about the harm he said he would encounter if returned to Nepal lacked the requisite clarity or substance to require the Tribunal’s express consideration. The Minister submits that the representations were no more than bald assertions bereft of any explanation, detail or accounts of prior harm, mistreatment or fear.

E.3.5.     Consideration

116    In my view the Tribunal did not deny procedural fairness to the applicant by its statement that this was not a protection visa application.

117    The applicant relies on the following exchange with the Tribunal to make good his claim that there had been a denial of procedural fairness:

[Applicant:] … I’d like to just to address the concern based on my conversion to Christianity. I acknowledgement (sic) the development in Nepal constitution and it’s now (indistinct) recognised country as secular, however, it is essential to provide further - - -

Okay, I need to stop you there. This is not a Protection visa application. You have been a practicing, believing Christian, as I understand it, since January 2011, is that correct? - - - Yes.

Now, you’ve been back to Nepal several times since then. Were you persecuted on return to Nepal on any of those occasions on the basis that you are a practicing Christian? - - - (No audible response.)

Then why would be persecuted in the future if you return to Nepal for the essential and significant reason that you are a practicing Christian? - - - I did not - I - I do not, like, get, but I did express - like, I did experience, like, discrimination, harassment, and - - -

118    Notwithstanding this exchange with the applicant, the Tribunal then proceeded to explore in some detail with the applicant what specific concerns he had about returning to Nepal. This exploration included the following initial enquiry:

I understand that dislocation on return to a home country does happen. People can find it difficult to re-establish themselves. I’m not saying it wouldn’t necessarily be a challenge. But the things I have to consider are would you be persecuted, and that requires agents of harm motivated by some personal attribute that you have that’s immutable that would attract harm to you. Now, who are those agents of harm and why would they be motivated to harm you? - - - One example. If I go back to Nepal permanently, I will − I don't have any friends and family. Yes, of course, I will be proselytising and trying to tell the Gospel of God and whatever I know - - -

119    The Tribunal then observed to the applicant that he had returned to Nepal on several occasions and the following exchange then took place between the Tribunal and the applicant:

And you say you didn’t experience persecution on return. I’m just trying to understand what it is you want me to find? - - - Just I − like, I’m – I’m just trying to, on my understanding as being human beings, and just to − like, I have a very highly chance I can − if I get − my fear is that − is like, I have a, like, potential harm, that's all I want to say.

Generalised fear of harm, is that what you’re saying? - - -Yes, like a discrimination, harassment. I have, like, a chance, significant chance.

120    Next, the Tribunal drew the applicant’s attention to the most recent Department of Foreign Affairs and Trade report on Nepal, in the following terms:

First of all, I'll take you to page 182. 182, paragraph 3.25:

Overall, DFAT assesses that people of different religions generally live side-by-side without incident in a richly multi-ethnic and multi-religious society. Incidents of tensions between groups and discrimination against them has been reported, mostly in localised events. These are described in the relevant section below. DFAT assesses that people involved in multi-ethnic marriages may be at risk from disapproving families, but this depends on the attitudes of individual parents.

Over the page, page 183 at paragraph 3.32:

DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low-level societal or family discrimination which may vary according to their personal and family circumstances.

Now, your evidence is that you’re currently divorced from all of your wives. You have visited Nepal multiple times. You’ve stayed with your mother. You’ve been a practicing Christian since 2011. It seems to be completely consistent with the DFAT country information for Nepal. What is it, in particular, you feel will happen to you if you go back to Nepal tomorrow? - - - Like, I can be all, like, vulnerable from discrimination and harassment.

Because? - - - Because of my religious belief and identity. Like, I'm, like, Brahmin - Brahmin - - -

So you disagree with the country information, despite the fact that your own personal experience has been that you have been able to go back to Nepal? - - - I did − I did - - -

- - - several times without incident and you said that it would be your intention to go back and visit your mother anyway? Do you understand that that is inconsistent evidence? - - - Yes.

Okay, thank you. Anything else you would like to say to me about the prospect of returning to Nepal? - - - About the legal consequence?

Anything at all you would like to say to me about the − that you haven't already said to me about your − the prospects of returning to Nepal? - - - (No audible response.)

121    Nor, in my view, did the Tribunal fail to consider the applicant’s representations that he faced discrimination and harassment in Nepal. I do not accept that the Tribunal’s consideration of these representations was limited to a consideration of whether the potential discrimination and harassment constituted persecution for the purposes of Australia’s non-refoulement obligations.

122    I accept that the Tribunal’s specific consideration of the applicant’s discrimination and harassment claims at DR [108]-[111] was in the context of its consideration of Australia’s non-refoulement obligations in sub-paragraphs 9.1(2) and (3) of Direction 99. Nevertheless, that consideration gives focus and content to the Tribunal’s finding at DR [114], that the applicant’s evidence had “been entirely consistent to the effect that his future in Nepal would be less felicitous or agreeable than continuing to reside in Australia” but this had to be balanced against “the fact that the Applicant had returned to Nepal several times since first arriving in Australia”. In context, it was plain that the “balanced against” remark was to highlight the significance of the absence of any difficulty that the applicant had experienced in returning to Nepal.

123    Further, as Perram J emphasised in Bale v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26], in response to an argument that the Tribunal had failed to take into account a specific matter:

I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: see Hodgson v Minister for Immigration & Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs (2019) FCA 1731 at [67] ff per Anderson J. And, as [54] of the Tribunal’s reasons shows, the Tribunal was well-aware that she was one of his victims.

124    Finally, as the Minister submits, and is readily apparent from the extracts of the exchanges between the Tribunal and the applicant extracted at [117]-[120] above, the representations made by the applicant were “no more than bald assertions bereft of any explanation, detail, or accounts of prior harm, mistreatment or fear”.

125    Neither limbs of this ground of review have been made out.

F.     DISPOSITION

126    For the foregoing reasons, the decision of the Tribunal affirming the decision of the Delegate not to revoke the cancellation of the applicant’s visa is to be quashed and the matter is to be remitted to the Tribunal for determination according to law.

127    Finally, it is necessary to express the Court’s appreciation and gratitude to the applicant’s counsel, Mr C Honnery, who appeared for the applicant pursuant to a pro bono referral from the Court.

Associate:

Dated:    25 July 2024