Federal Court of Australia

PLCP v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 398

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

1    The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal on 1 February 2024, by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the Global Special Humanitarian visa (Class XB subclass 202) formerly held by the applicant.

2    The applicant relies on two grounds of review, each of which turns on an application of the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582. First, the applicant challenges the Tribunal’s approach of deferring any consideration of whether her removal to South Sudan would involve a breach of Australia’s international non-refoulement obligations, on the basis that such matters could be addressed in the context of an application for a protection visa. Although such an approach was upheld by the majority of the High Court in Plaintiff M1, the applicant submits that the decision by the Tribunal to adopt that approach remains subject to the principles of legal reasonableness, and that it was legally unreasonable in the circumstances of this particular case for the Tribunal to attribute no weight to issues concerning refoulement. Secondly, the applicant contends that the Tribunal erred by failing to consider her representations regarding impediments to her removal to South Sudan, particularly with respect to the risk of persecution and the risks to her mental health.

3    For the reasons set out below, I have concluded that:

(a)    it was not legally unreasonable for the Tribunal to defer an assessment of non-refoulement obligations to any subsequent protection visa application process; and

(b)    the Tribunal considered and sufficiently engaged with the applicant’s representations concerning the impediments that she may face if removed to South Sudan, including any risk of harm based on her gender and ethnicity.

4    Accordingly, the application is dismissed with costs.

Background

5    The applicant was born in what is now South Sudan on 17 February 1996, shortly before she and her mother fled to a refugee camp in Kenya. Together with her mother and other family members, the applicant arrived in Australia in July 2005 as the holder of a Special Humanitarian visa.

6    The applicant has an extensive criminal history in Australia, which encompasses numerous motor vehicle offences, theft, robbery, assault, and drug-related offences.

7    On 16 November 2020, the applicant was convicted in the County Court of Victoria of an offence of intentionally causing injury and sentenced to imprisonment for three years and three months, which was subsequently reduced on appeal to three years’ imprisonment. On the same date, the applicant was convicted of a range of other offences, for which she received sentences of imprisonment for periods between one month and 30 months, with all or part of each of those sentences to be served concurrently. The total effective sentence of imprisonment for six years (with a non-parole period of four years) was reduced on appeal to five years and three months (with a non-parole period of three years and six months), on the ground that the sentencing judge had overlooked the question of visa cancellation and the impact on the applicant of facing the prospect of deportation.

8    On 29 January 2021, the applicant’s visa was cancelled under s 501(3A) of the Migration Act. The applicant made representations to the Minister seeking the revocation of the cancellation decision under s 501CA of the Migration Act.

9    On 1 November 2023, a delegate of the Minister made a decision under s 501CA not to revoke the cancellation of the applicant’s visa. The applicant applied to the Tribunal for review of the delegate’s decision.

The Tribunal’s decision

10    On 1 February 2024, the Tribunal affirmed the delegate’s decision not to revoke the visa cancellation decision. The Tribunal published written reasons for its decision on 14 February 2024: PLCP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 198 (T).

11    It was not in dispute before the Tribunal that the applicant did not pass the character test on the basis of her substantial criminal record within the meaning of s 501(6)(a) of the Migration Act: T [35]–[37]. Accordingly, the Tribunal proceeded to consider whether there was another reason why the visa cancellation decision should be revoked.

12    For such purposes, the Tribunal had regard to and applied Direction No. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which relevantly required the Tribunal to have regard to the primary considerations set out in paragraph 8 and the other considerations set out in paragraph 9. Under Direction 99, primary considerations were generally to be given greater weight than the other considerations, and one or more primary considerations might outweigh other primary considerations: see paragraph 7(2), (3). The Tribunal recognised that it was not precluded from giving equal or greater weight to any consideration, including a non-primary consideration, but did not accept the applicant’s submission that, in the particular circumstances of the present case, it was appropriate to treat certain other considerations as primary considerations and to give them greater weight: T [51].

13    In relation to the primary consideration of the protection of the Australian community from criminal or other serious conduct, the Tribunal had regard to the nature and seriousness of the applicant’s conduct and the risk to the Australian community.

14    The Tribunal made the following findings in relation to the nature and seriousness of the applicant’s conduct.

(a)    The Tribunal addressed in detail the applicant’s lengthy criminal history, culminating in the applicant’s conviction in November 2020 of multiple offences arising from a series of incidents over a two-week period in July 2019. The applicant received a total effective sentence for those offences of imprisonment for a period of five years and three months. The first incident involved a planned theft during which the victim was threatened with a knife by the applicant’s co-accused. In the second incident, the applicant physically attacked a female victim before stealing her mobile phone and credit cards. In the third incident, the applicant was a passenger in a stolen vehicle, following which she and a co-offender attacked a person who had sought to render assistance, resulting in the victim being hospitalised for serious injuries, and proceeded to steal the victim’s car. The fourth incident involved the applicant and a co-offender assaulting a man who had agreed to give them a lift home, before stealing his car.

(b)    The Tribunal found that the applicant’s offending was not only serious, but some of it had been very serious: T [74]. Further, the Tribunal noted that the offending involved crimes of violence, including a crime of a violent nature against a woman. The imposition of a sentence of imprisonment reflected the court’s view that the offences concerned were serious.

(c)    The Tribunal found that the applicant had offended frequently in the four-year period prior to her incarceration in July 2019, over which time her offending became increasingly serious, culminating in the July 2019 incidents which represented an escalation in her offending: T [81].

(d)    In relation to the cumulative impact of the applicant’s repeated offending, the Tribunal found that “the applicant’s ongoing offending and the lifestyle that caused or at least accompanied it, has had a severe negative effect on the applicant’s capacity or willingness to contribute positively as a mother to her two children, to her broader family and to the community in general”: T [83].

15    The Tribunal found that there was a high risk that the applicant would reoffend, and that the resultant harm could be very significant: T [139].

(a)    The Tribunal identified the nature of the harm to the Australian community if the applicant were to engage in further criminal or other serious conduct as “financial harm through property offences involving theft and deception and physical harm (potentially very serious physical harm) from acts of violence, with the latter type of harm giving rise to the real prospect of psychological harm”: T [90]. The Tribunal also acknowledged the harm to the community “by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct”: T [91].

(b)    The Tribunal was not satisfied that it was “likely” that the applicant would engage in further criminal or other serious conduct, having regard to her remorse and genuine desire to rehabilitate, but nevertheless found that there was “a high risk” that she would engage in such conduct: T [92], [133].

(c)    In this regard, the Tribunal recognised (at T [93]–[94]) that what the applicant had done in the past was not itself probative of there being a significant risk of repeating that conduct. Nevertheless, the Tribunal considered that the applicant’s circumstances and the nature and circumstances of her past conduct supported an assessment of her risk of recidivism as being high: T [95]. This included the frequency and repeated nature of the applicant’s criminal conduct, along with her history of non-compliance with judicial orders and contravention of bail conditions and community correction orders, which was regarded by the Tribunal as “[i]ndicative of some attitude or character trait or condition that renders the applicant prone to disregard lawful requirements and engage in conduct of the type she has engaged in”: T [97]–[98].

(d)    The Tribunal had regard to the opinion of a psychologist (Mr Ian Mackinnon) in February 2020, who relevantly considered that, if the applicant’s condition was not appropriately treated, there was a significant likelihood of her relapsing into substance abuse, becoming involved in another abusive relationship and reoffending: T [104].

(e)    These conclusions were reinforced by risk assessments carried out by Corrections Victoria: T [105], [138]. Further, the Tribunal considered that the applicant’s conduct in prison was inconsistent with “that of a person whose use of illicit drugs is in total remission or whose risk of recidivism is not significant”: T [107]. The Tribunal referred to several incidents during the applicant’s incarceration, including the use of illicit drugs, assault and threats of assault, and time spent in the management unit. The Tribunal did not accept that the applicant’s poor conduct while in prison was attributable to the prison environment: T [113].

(f)    The Tribunal expressed concerns in relation to the applicant’s relapses into drug use, despite her participation in drug and alcohol programs, noting that “[t]his does not bode well for the prospects of the applicant remaining drug free when in the relatively unconstrained environment of the community”: T [123].

(g)    The Tribunal had difficulty in identifying many protective factors of significance: T [124]. The applicant had limited employability and, while her participation in vocational courses and programs reflected a genuine desire to rehabilitate and to participate positively when in the community, this had not prevented her from being involved in incidents of concern and relapsing into illicit drug use while in prison: T [130]. Similarly, while the Tribunal accepted that the applicant was remorseful for her conduct and sincere in her deep regret, this had not prevented her from engaging in further problematic conduct while in prison: T [131]–[132].

(h)    The Tribunal took into account other “pro-social factors”, such as the support of family members including her mother, a sister and a brother (each of whom had given evidence) and other support available to the applicant in the community: T [134]–[137].

16    Accordingly, the Tribunal found that the primary consideration of the protection of the Australian community weighed “to a significant extent” against revocation of the cancellation decision: T [140].

17    The Tribunal found that the primary consideration of whether the conduct engaged in constituted family violence was not relevant: T [142]. Although the applicant had been convicted of an offence involving the contravention of an interim intervention order in favour of her mother, the Tribunal was not satisfied that the conduct resulting in either the grant of the intervention order or its contravention had amounted to family violence: T [145]–[148].

18    The Tribunal found that the primary consideration of the strength, nature and duration of ties to Australia weighed “to a moderate extent” in favour of revocation of the cancellation decision: T [167].

(a)    The Tribunal considered the impact on the applicant’s immediate family, including her son and her daughter, her mother and her six siblings. The Tribunal accepted that revocation of the applicant’s visa would make it harder for her to maintain or enhance her relationship with her children, and would adversely affect her relationship with other family members: T [152]–[154]. While accepting that the applicant was of some assistance to her mother and siblings, the Tribunal was somewhat sceptical about the level of support that the applicant had provided: T [155]–[159]. In particular, the Tribunal found that the applicant had “rarely, if ever” borne parental responsibilities in relation to her children T [169], [171].

(b)    The Tribunal had regard to the applicant’s other ties to the Australian community. Although the applicant had arrived when she was 9 years of age, the Tribunal noted that “little of the applicant’s time in Australia has been spent in making what could be considered to be a positive contribution”: T [164]. The Tribunal gave little weight to suggestions that the applicant had acted as a mentor in the Sudanese community and had been active in keeping her Sudanese culture: T [165]–[166]. The Tribunal found that there was scant evidence of any positive contribution of the applicant to the community, other than that in relation to her family: T [174].

19    The Tribunal found that the primary consideration of the best interests of minor children in Australia weighed “to a moderate extent” in favour of revocation of the cancellation decision: T [219]. This was on the basis that the applicant would likely play a positive role in the lives of each child if she were free in the community, “as long as she didn’t backslide into illicit drug use and criminality”: T [220]. The ongoing separation of the applicant from her children or her minor sibling would impair their capacity to develop a more substantive relationship: T [193]–[194], [213]–[214], [220].

20    The Tribunal found that the primary consideration concerning the expectations of the Australian community weighed significantly against revocation of the cancellation decision: T [244].

(a)    The Tribunal found that the Australian community was taken to view the applicant’s conduct as very serious, including that the applicant had committed a serious crime of a violent nature against a woman: T [228], [234].

(b)    The Tribunal referred to various matters that were identified by the applicant as moderating the weight to be given to the expectations of the Australian community, including international obligations relating to non-refoulement and indefinite detention; the impacts of her removal from Australia on her family; the difficulties and trauma that she had endured as a child; the consequences of the cancellation of her visa, including either indefinite detention or removal to South Sudan in breach of non-refoulement obligations; her prolonged presence in Australia and strong ties to Australia; her potential rehabilitation; and the limited risk she posed to the Australian community: T [239]–[240].

(c)    The Tribunal stated (at T [241]): “I do not adjust the weight to be attributed to the community expectations consideration by reference to matters addressed in these reasons in the context of ‘other considerations’”, as to do so would interfere with the operation of Direction 99 (referring to PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 at [85]–[86] (Middleton J)).

(d)    The Tribunal accepted that the weight otherwise to be attributed to the expectations of the Australian community was “ameliorated” by some of the circumstances that had been identified by the applicant, but found that “the ameliorating effect of these circumstances is offset by the effect of other circumstances” including the risk of harm to the community if the applicant were to reoffend, her lack of respect for Australia’s law enforcement framework, her poor conduct in prison, and her limited positive contributions to Australia: T [242]–[243].

21    The Tribunal proceeded to address various “other considerations” that were considered to be relevant, including potential refoulement or prolonged detention as legal consequences of the cancellation decision, and the extent of any impediments likely to be faced by the applicant if she were to be removed to South Sudan.

22    Referring to paragraph 9.1 of Direction 99 and s 197C of the Migration Act, the Tribunal found that “a legal consequence of a decision not to revoke the visa cancellation decision is that the applicant will be detained until the earlier of her removal from Australia (which is not authorised insofar as it is to a country in respect of which a protection finding has been made) and there being no real prospect of her removal from Australia becoming practicable in the reasonably foreseeable future”: T [249]. While finding that the applicant was a South Sudanese national and was not stateless, the Tribunal accepted that “there may well be practical difficulties in establishing her citizenship [which] may adversely affect the practicability of her removal to South Sudan and thereby prolong her period in detention”: T [255]–[260].

23    In response to the applicant’s non-refoulement representations, based on her fear of harm in South Sudan for reasons of her gender and ethnicity and as a returnee from a Western country, the Tribunal relevantly found as follows:

266.    Given that the applicant remains free to apply for a protection visa, I am not obliged to make a finding in response to the applicant’s submissions concerning non-refoulement, and I do not do so [citing Plaintiff M1 at [34]]. As the applicant is able to apply for a protection visa, it is open to the Tribunal “to defer consideration of representations concerning” the effect of Australia’s non-refoulement obligations [citing BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [142]]. Indeed, that course of action is specifically permitted by [paragraph 9.1.2(2) of] Direction 99.

267.    In particular, I make no finding as to whether non-refoulement obligations are owed by Australia with respect to the applicant, whether removing the applicant to South Sudan would be in breach of those obligations or as to the consequences for the applicant or Australia of breaching such obligations.

(Emphasis in original.)

24    The Tribunal specifically addressed a submission advanced by the applicant that it ought not to defer consideration of her non-refoulement representations, stating:

269.     As I see it, however, it is not inappropriate to seek to have issues concerning nonrefoulement addressed in the context of the Act’s protection visa provisions. It is those provisions which reflect the “the domestic implementation of” Australia’s non-refoulement obligations [citing Plaintiff M1 at [37]] and contain the “specific mechanism chosen by Parliament for responding to protection claims” [citing Plaintiff M1 at [38]], with the scope of the non-refoulement obligations to which Australia is committed to implementing being reflected in the Act’s concept of “protection obligations” [citing Direction 99, para 9.1(2)]. Deferral will simply result in the applicant’s claims with respect to non-refoulement being assessed in the context of those provisions of Australia’s domestic law intended to express Australia’s non-refoulement obligations [citing Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 [43]].

(Emphasis in original.)

25    The Tribunal stated that it was not required to consider “unenacted” non-refoulement obligations that are not encompassed within the protection visa provisions in the Migration Act: T [270].

26    In response to a submission that there was no realistic possibility that the applicant would ever be granted a protection visa, the Tribunal observed that this “might be because it is thought that Australia’s non-refoulement obligations (to the extent reflected in domestic law) are not engaged in her case”: T [272]. The Tribunal also noted that an application for a protection visa might be considered as a “success” if it were to result in a protection finding with respect to South Sudan, with the consequence that the applicant’s removal to South Sudan would be neither required nor authorised: T[272]. The Tribunal continued:

273.    I note that there is authority for the proposition that the Tribunal need not consider the prospects of a successful protection visa application, being a matter of speculation: “Future exercises of discretion and statutory power are to be resolved when they arise.” [citing Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [19]] The Tribunal is “not required to speculate about future possibilities about future visa applications…” [citing RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32]]. In [CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 at [61]], however, Stewart J concluded that the Tribunal was in error in failing to consider the prospects of success of a potential protection visa application where it had been submitted that the application had no realistic possibility of success. That conclusion was, however, directed to matters that ought to have been considered by the Tribunal in response to a submission concerning indefinite detention, not, as here, one directed to a consideration of non-refoulement obligations.

27    The Tribunal noted (at T [277]–[278]) that prolonged and perhaps indefinite detention was not an inevitable and direct legal consequence of a non-revocation decision, referring to BJI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1632 at [70] (McEvoy J). The Tribunal was not satisfied that the applicant’s detention would be likely to come to an end “within any particular period or at any particular time”, so that the applicant would face the prospect of a prolonged period in detention: T [279]. However, her detention would cease if and when there were no real prospect of her removal from Australia becoming practicable in the reasonably foreseeable future (see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005): T [280]. The Tribunal proceeded to consider the impact on the applicant’s mental health of any prolonged period in detention, or her release into the community on a bridging visa subject to curfew and monitoring conditions: T [283]–[288].

28    The Tribunal concluded that the legal consequences of visa cancellation weighed in favour of revocation of the cancellation decision, albeit to a moderate extent: T [290]–[294].

29    The Tribunal accepted that the applicant would face the most severe conceivable impediments if she were removed to South Sudan: T [295]–[296], [307]. This included language and cultural barriers; the absence of economic or social support and familial connections; emotional distress; health issues; the factual matters underpinning her non-refoulement representations (i.e. the risk of harm for reasons of gender and ethnicity); and the humanitarian, political and security situation in South Sudan: T [297]–[306]. Accordingly, the “extent of impediments if removed” consideration weighed significantly in favour of revocation: T [308].

30    The Tribunal acknowledged that its findings on each of the primary considerations and the other considerations did not “point in a uniform direction” and that the decision was “finely balanced”: T [313], [315]. Nevertheless, the Tribunal was not ultimately satisfied that there was another reason to revoke the cancellation decision. Each of the primary considerations concerning the protection of the Australian community and the expectations of the Australian community were given significant weight against revocation, while the primary considerations concerning the nature and strength of ties to Australia and the best interests of minor children in Australia were given moderate weight in favour of revocation: T [314]. Two other considerations were given weight in favour of revocation, namely the legal consequences of the decision (moderate weight) and the extent of impediments if removed to South Sudan (significant weight): T [314].

31    The Tribunal summarised its reasons for not being satisfied that there was another reason to revoke the cancellation decision as follows (T [315]):

While the applicant has been in Australia for most of her life and has two young Australian children, she has engaged in some very serious offending, there is a high risk of her re-offending, she has made little by way of positive contributions to the community, her children have from birth been primarily in the care of another and there is little likelihood of her being removed from Australia, at least in the short term, given her capacity to apply for a protection visa and the potential for a protection finding to be made in the course of considering such an application.

Grounds of review

32    The originating application contains three grounds of review, each of which arises from the findings of the Tribunal that are summarised at paragraphs 22 to 29 above:

(a)    Ground 1: The Tribunal’s decision to defer consideration of non-refoulement obligations to a protection visa application process and to “attribute no weight … to issues concerning refoulement” was legally unreasonable in all of the circumstances of this particular case.

(b)    Ground 2: The Tribunal failed to consider the applicant’s representations regarding the impediments to the applicant if removed regarding risks with respect to her persecution (as a young female victim-survivor of sexual violence and on account of her ethnicity) or with respect to her mental health (in particular her past trauma in South Sudan and her associated post-traumatic stress disorder).

(c)    Ground 3: The Tribunal failed meaningfully to consider the applicant’s removal to South Sudan as a legal consequence of the decision.

33    Ground 3 was not ultimately pressed by the applicant.

Consideration

Ground 1: Was the Tribunal’s decision legally unreasonable?

34    In her written submissions, the applicant submits that “[w]hile in many respects the Tribunal’s approach was careful and thorough, it erred jurisdictionally in its response to the Applicant’s representations concerning non-refoulement obligations and the risk of harm said to engage those obligations”.

35    The applicant contends that the process of reasoning engaged in by the Tribunal to defer consideration of non-refoulement obligations in the particular circumstances of this case was legally unreasonable, leading to jurisdictional error.

36    The applicant had made extensive submissions before the delegate as to the harm that she would face if she were returned to South Sudan. The delegate accepted for the purposes of their decision that the applicant could face a real risk of harm in South Sudan, including “forced marriage, rape, persecution, harm and possibly even death due to her ethnicity, status as a woman and the absence of any familial support there”, and as a consequence accepted that there was a real likelihood that non-refoulement obligations were enlivened in relation to the applicant’s return to South Sudan.

37    Before the Tribunal, the applicant relied on the findings made by the delegate, along with country information consistent with those findings. Rather than seeking to address those submissions or that evidence, the Minister contended that the Tribunal should defer assessment of the applicant’s claims to fear harm in South Sudan, on the basis that it was open to the applicant to apply for a protection visa so that those claims could be comprehensively assessed. In her reply submissions to the Tribunal, the applicant reiterated that she was likely to be owed non-refoulement obligations and resisted the Minister’s submission that the Tribunal need not engage with her submissions that she would face a real chance of harm on return to South Sudan, arguing that such an approach was “legally wrong and poses the risk of leading the Tribunal into error”. After submitting that the Tribunal was required to engage with her clearly articulated representations, the applicant’s reply submissions continued:

23.     In light of the ease with which enacted nonrefoulement obligations can be considered, the Tribunal in the present [case] ought not defer its consideration of enacted nonrefoulement obligations. Indeed, the Applicant submits that it would be unreasonable to do so. Rather, the Tribunal should find that removing the Applicant would place Australia in breach of its enacted nonrefoulement obligations. It should further find that this is a significant matter weighing in favour of revocation, both because of the prospect of that eventuality occurring and because of the alternative prospect of the Applicant being indefinitely detained.

(Emphasis added.)

38    In this Court, the applicant submits that the High Court’s decision in Plaintiff M1 does not require a decision-maker to defer consideration of non-refoulement obligations, but simply confirms that such an approach is permissible, as “one available outcome”: see Plaintiff M1 at [9](3), [30], [36] (Kiefel CJ, Keane, Gordon and Steward JJ). Accordingly, where a non-refoulement claim is included in the representations made by a former visa holder or is otherwise suggested by the circumstances, it remains open to a decision-maker under s 501CA(4) to consider that claim: Plaintiff M1 at [30]. The applicant submitted that the approach adopted by the decision-maker in the circumstances of any particular case is governed by the principles of legal reasonableness and that, where the decision-maker decides to defer consideration of non-refoulement obligations, there must be an evident and intelligible justification for adopting that approach.

39    In the present case, the applicant submitted that the Tribunal’s deferral of consideration of non-refoulement obligations was legally unreasonable based on the following circumstances:

15.1     The delegate had accepted ‘that there is a real likelihood that non-refoulement obligations are enlivened’ (AB 34 [161]);

15.2     The visa the subject of the cancellation was a Global Special Humanitarian visa (subclass 202), a precondition of which was relevantly that the Applicant was subject to substantial discrimination, amounting to a gross violation of human rights, in her home country;

15.3     There was no evidence before the Tribunal, nor any submission from the Minister, that conditions in South Sudan (previously Sudan) had improved since the grant of the Global Special Humanitarian visa;

15.4     There was a substantial body of relatively recent evidence before the Tribunal going to the risk of harm faced by the Applicant;

15.5     That evidence came from ‘independent and authoritative sources’;

15.6     The Minister did not seek to contradict that evidence, or even cast any doubt on it;

15.7     Indeed, at least one source of evidence (the DFAT report) was the same as that to which any protection visa decision-maker would be obliged to have regard;

15.8     The Tribunal was assisted by comprehensive submissions from a specialist legal service on the issue of non-refoulement obligations;

15.9     The Minister did not seek to contradict those submissions, or even cast any doubt on them;

15.10     The Tribunal apparently accepted the relevant risk of harm the subject of the submissions (T [302]);

15.11     There was an extant obligation to remove, as the Applicant had not applied for a protection visa, such that the so-called ‘deferred’ consideration of non-refoulement obligations was not in fact guaranteed to take place (noting that no evidence was led by the Minister as to any Government policy to assess non-refoulement obligations before removing a person whether or not they had applied for a protection visa);

15.12     Relatedly, there was no evidence that the Applicant would necessarily apply for a protection visa, and indeed there were submissions from the Applicant’s legal representatives (uncontradicted by the Minister) that there was no realistic prospect of the Applicant being granted a protection visa or being the subject of a discretionary intervention under ss 195A or 197AB such that the only realistic ‘positive’ result of a protection visa application for the Applicant would be to secure a protection finding and consign the Applicant to a protracted period of detention while the Commonwealth exhausted the prospects of removing her to a country other than South Sudan (even then, she might capitulate and request removal – s 198(1)).

15.13     The case was otherwise ‘finely balanced’ (T [315]) such that, if non-refoulement obligations were considered and were weighed in favour of the Applicant this might result in a different decision and thus avoidance of the alternatives (which were, at least in the short term, removal or protracted detention).

15.14     The relevant direction expressly noted that, if not deferred, consideration of nonrefoulement obligations need not be ‘in the same level of detail’ as would be required on any application for a protection visa.

(Footnotes omitted.)

40    In response to Ground 1, the Minister submits that, as was the case in Plaintiff M1, there was a reasonable and rational justification for the Tribunal’s approach in not giving weight to potential non-refoulement obligations on the basis that they could be appropriately assessed in the context of a subsequent application for a protection visa.

41    In Plaintiff M1, the plaintiff made representations to the Minister about revocation of a decision to cancel his visa under s 501(3A) of the Migration Act. This included a claim by the plaintiff that he would face persecution if he were returned to South Sudan. The delegate stated that they had considered those representations, but that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the plaintiff because he could make a valid application for a protection visa, and the existence or otherwise of non-refoulement obligations would be fully assessed in the course of processing such an application: Plaintiff M1 at [5], [36]. Thus, as the plurality stated (at [36]):

The Delegate decided not to bring the plaintiff’s representations in relation to non-refoulement to account (in the sense of giving weight to them and balancing them against other factors) in making the Non-Revocation Decision, reasoning that a protection visa application was “the key mechanism provided for by the [Migration Act] for considering claims by a non-citizen that they would suffer harm if returned to their home country”.

The relevant paragraphs from the delegate’s reasons were reproduced in full in the dissenting reasons of Edelman J (at [85]).

42    As noted in the plurality’s reasons, what ultimately divided the parties in Plaintiff M1 was not whether the representations raising a potential breach of non-refoulement obligations should have been considered by the delegate, but how those representations ought to have been considered: Plaintiff M1 at [8], [21] (Kiefel CJ, Keane, Gordon and Steward JJ). The High Court relevantly held that, while the delegate was required to read, identify, understand and evaluate the plaintiff’s representations raising a potential breach of Australia’s international non-refoulement obligations, it was open to the delegate to defer assessment of those obligations (to the extent that they were given effect in the Migration Act) on the basis that the plaintiff was able to make an application for a protection visa: Plaintiff M1 at [9].

43    In reaching this conclusion, Kiefel CJ, Keane, Gordon and Steward JJ distinguished between “unenacted” non-refoulement obligations under international law, and international non-refoulement obligations that are given effect under domestic law in the Migration Act: Plaintiff M1 at [17]–[18]. In both cases, a claim of non-refoulement may be considered by the decision maker. However, “unenacted” international non-refoulement obligations are not a mandatory relevant consideration, and non-refoulement obligations that are given effect in the Migration Act can be considered by deferring their assessment to a future protection visa application process: Plaintiff M1 at [9], [20], [29], [30].

44    In this context, Kiefel CJ, Keane, Gordon and Steward JJ referred to paragraph 14.1 of the applicable Ministerial direction (Direction 65 dated 22 December 2014), which included international non-refoulement obligations as one of the “other considerations” that must be taken into account “where relevant” in deciding whether to revoke the mandatory cancellation of a visa. Paragraph 14.1(4) of Direction 65 had stated that “[w]here a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked”: Plaintiff M1 at [16]. On the other hand, paragraphs 14.1(5) and (6) of Direction 65 contemplated that international non-refoulement obligations should be assessed in circumstances where the visa that was cancelled was a protection visa and the person would be prevented from making a further application for a protection visa.

45    On the facts of the particular case in Plaintiff M1, the plurality stated (at [38]):

The Delegate’s reasons convey that the Delegate had read and understood the plaintiff’s claim and proceeded on the basis that non-refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non-refoulement obligations as “another reason” for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the [Migration Act] or deny the plaintiff procedural fairness.

(Emphasis added.)

46    The plurality in Plaintiff M1 do not appear to have laid down a universal approach under which the consideration of non-refoulement obligations under domestic law can or should always be deferred to a subsequent protection visa application process. Rather, this was described by the plurality as “one available outcome” (at [9](3), [30]), and that language was picked up in the High Court’s answers to the questions reserved. Similarly, while the plurality concluded that the approach adopted by the delegate was not erroneous, their Honours stated that such an approach was “not inevitable”: at [36]. The plurality nevertheless criticised and disapproved of various different paths of reasoning that had been adopted in prior decisions of this Court in finding error in the deferral of consideration of non-refoulement obligations: Plaintiff M1 at [31]–[35].

47    This conclusion is subject to the qualification that it is still necessary for the decision-maker to take into account the alleged facts underpinning a claimed breach of non-refoulement obligations where those facts are relied upon by a former visa holder in support of there being “another reason” why the cancellation decision should be revoked: Plaintiff M1 at [39] (Kiefel CJ, Keane, Gordon and Steward JJ). In other words, apart from whether or not the person’s claims engage non-refoulement obligations, the claimed harm or hardship must itself be considered in so far as it may be relevant to whether the cancellation decision should be revoked.

48    Justice Gageler (as his Honour then was) agreed with the plurality that the delegate had not failed to exercise the jurisdiction conferred by s 501CA(4), had not denied procedural fairness to the plaintiff, and had not misunderstood the Migration Act and its operation: Plaintiff M1 at [43]. His Honour also considered that the delegate was not obliged to form an opinion on the correctness of the plaintiff’s representations to the effect that his removal to South Sudan would be contrary to international non-refoulement obligations owed by Australia in respect of him, essentially for the reasons that were given by the plurality: Plaintiff M1 at [47].

49    The minority in Plaintiff M1 concluded that the delegate had failed properly to consider the plaintiff’s representations that his removal to South Sudan would be in breach of non-refoulement obligations.

(a)    Justice Edelman concluded that the approach adopted by the delegate was not a legally reasonable consideration of his representations as a whole: Plaintiff M1 at [53]. His Honour noted (at [70]) that the Minister disclaimed any submission that it was not open for a decision-maker to take into account non-refoulement considerations when considering whether there is “another reason” to revoke the cancellation decision. The duty of the decision-maker to consider the plaintiff’s representations as a whole, including any representations as to non-refoulement, was required to be performed in a reasonable manner: Plaintiff M1 at [72]–[75]. On the particular facts of the case, Edelman J concluded that the delegate had acted unreasonably in their consideration of the plaintiff’s representations, which had “clearly and repeatedly” claimed that his removal to South Sudan would involve hardship and harm raising non-refoulement obligations: Plaintiff M1 at [84]. In reaching that conclusion, Edelman J considered that the delegate’s references to “claims of harm” or “hardship” on return to Sudan could not reasonably be understood as a consideration of the matters raised by the plaintiff’s non-refoulement representations (i.e. persecution, torture, and death): Plaintiff M1 at [89]–[90]. While Edelman J accepted that those claims could or would be considered in any later application for a protection visa, he relevantly held (at [95]) that

the possibility that factual representations by the plaintiff might be considered in a later protection visa application made by the plaintiff did not make it reasonable for the delegate expressly to decline to consider the heart of the plaintiff’s representations when considering whether the plaintiff had raised “another reason” to revoke the original decision cancelling his visa within s 501CA(4).

(b)    Justice Gleeson also found that the delegate had failed to consider whether the plaintiff’s claims regarding breach of non-refoulement obligations afforded another reason why the cancellation decision should be revoked, and that deferring the assessment of non-refoulement obligations to a prospective protection visa application process was “no answer to the plaintiff’s representations about the adverse consequences to him of non-revocation of the visa cancellation”: Plaintiff M1 at [115]. In addition to recognising (at [106]) that international non-refoulement obligations may be considered to be a reason why a cancellation decision should be revoked, Gleeson J did not accept that the delegate’s reasons had recorded, “beyond assertion, adequate consideration of the issues of fact presented by the plaintiff’s non-refoulement claims”: Plaintiff M1 at [108]. That is, the delegate did not address “the merits of the factual basis for the relevant claims”, by “an ‘active intellectual process’ of evaluating those issues of fact to the extent necessary to decide whether the plaintiff identified ‘another reason’ why the cancellation of his visa should be revoked”: Plaintiff M1 at [108] (footnote omitted).

50    In the present case, Ground 1 turns on the proper interpretation and application of the High Court’s reasoning in Plaintiff M1. In that regard, I am bound by the reasoning of the majority. However, the minority judgments may also have some relevance in applying the relevant principles to the particular facts, including whether or not the approach adopted by the Tribunal to its consideration of the “non-refoulement representations” made by the applicant was legally unreasonable.

51    In my view, the decision in Plaintiff M1 is authority for the proposition that a decision-maker under s 501CA(4) of the Migration Act can consider representations made by a former visa holder raising a potential breach of international non-refoulement obligations by adopting an approach of deferring the assessment of those obligations to a subsequent protection visa application process, at least in circumstances where it is possible for the former visa holder to make an application for a protection visa. However, although the existence of international non-refoulement obligations is not itself a mandatory relevant consideration in the exercise of power under s 501CA(4), the decision-maker may still be required to address whether the underlying facts (that is, the claimed harm or hardship that would be faced by the person on his or her return to the country in question) provide a reason to revoke the cancellation decision. On one view, the essential difference between the majority and the minority in Plaintiff M1 turned on the question whether the delegate had adequately or properly performed the requisite statutory task by considering the issues of fact that were raised by the plaintiff’s representations.

52    Further, while a decision-maker is not obliged to assess international non-refoulement obligations for the purposes of making a decision under s 501CA(4), nothing in Plaintiff M1 suggests that it is not open for the decision-maker to do so (see e.g. CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 at [96] (Katzmann, Charlesworth and Burley JJ)). Accordingly, in so far as the power conferred by s 501CA(4) is subject to the implied condition that it must be exercised in accordance with the principles of legal reasonableness, there may be scope to argue that the adoption of an approach of deferring the assessment of non-refoulement obligations to a subsequent protection visa application process is legally unreasonable in the circumstances of the particular case. The decision-maker must still have properly identified and understood the representations made by the former visa holder, including any claims giving rise to international non-refoulement obligations: CKT20 at [105]–[106]. Just as the requisite level of engagement with the representations made by a former visa holder “must occur within the bounds of rationality and reasonableness” (Plaintiff M1 at [25]), so too must any deferral of the assessment of non-refoulement obligations be rational and supported by an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ)).

53    Nevertheless, there is no reason to distinguish the facts of the present case from Plaintiff M1. The plaintiff in that case was also the former holder of a Special Humanitarian visa, who claimed that he would face persecution, torture or death if he were returned to South Sudan. The majority of the High Court held that the delegate had read and understood those claims, and that there was a “reasonable and rational justification” for not giving weight to potential non-refoulement obligations on the basis that they could subsequently be assessed “in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications”: Plaintiff M1 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ); see also at [43], [47] (Gageler J). The plurality also expressly disapproved a number of prior decisions of this Court in which it had been held that the decision-maker had acted unreasonably by deferring an assessment of non-refoulement obligations to a potential protection visa application.

54    In the present case, paragraph 9.1.2(2) of Direction 99 relevantly stated that it was unnecessary for a decision-maker under s 501CA “to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application”, which was the process “specifically designed for consideration of non-refoulement issues as given effect by the [Migration] Act”. Accordingly, where it is open to the former visa holder to make a protection visa application, the decision-maker under s 501CA “is not required to determine whether non-refoulement obligations are engaged in respect of the person” and that “[h]aving considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them”.

55    The Tribunal specifically addressed and summarised the applicant’s “non-refoulement representations”: T [261]–[265]. Referring to Plaintiff M1 at [34] and BNGP v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 609 at [142] (Bromwich and Kennett JJ), the Tribunal found that it was “not obliged to make a finding in response to the applicant’s submissions concerning non-refoulement”, and was “specifically permitted by Direction 99” to defer consideration of representations concerning the effect of Australia’s non-refoulement obligations (in a case where the former visa holder was able to apply for a protection visa): T [266]–[267], [269]. As in Plaintiff M1, this provided a reasonable and rational justification for the approach that was adopted by the Tribunal in considering the non-refoulement representations.

56    In my view, the Tribunal was alive to the distinction between the consideration of non-refoulement obligations (which were not required to be assessed) and the consideration of the underlying issues of fact raised by the applicant’s representations. In the course of considering the extent of impediments that may be faced by the applicant if removed to South Sudan, the Tribunal had regard to “the material to which reference was made in the context of the applicant’s non-refoulement submissions that a large part of the South Sudanese population struggles to survive, with high levels of food insecurity and rampant ethnic discrimination and violence”, and found that the applicant “would face the most severe conceivable impediments if she were returned to South Sudan”: T [306]–[307].

57    In so far as the applicant submitted that there was no realistic prospect that she would be granted a protection visa, the Tribunal specifically addressed and responded to that submission: T [272]. For completeness, it may be noted that making an application for a protection visa is the only way to obtain a “protection finding” for the purposes of s 197C of the Migration Act, whether or not that application results in the grant of a protection visa. Accordingly, even if the Tribunal were to have assessed whether non-refoulement obligations were owed and made findings favourable to the applicant on that issue, this would not alone preclude her removal to South Sudan in the event that the Tribunal proceeded to affirm the decision not to revoke the cancellation of her Special Humanitarian visa (or if any decision by the Tribunal to revoke the cancellation decision were subsequently set aside by the Minister personally under s 501BA). Further, any assessment of non-refoulement obligations by the Tribunal would have potentially required consideration of a number of questions that would not otherwise arise directly in the context of deciding whether there was another reason to revoke the visa cancellation decision (e.g. the reasons for any feared harm, the availability of State protection, the possibility of internal relocation, and so on). In such circumstances, it was not unreasonable for the Tribunal to defer any such assessment to the specific statutory mechanism by which protection obligations are ordinarily addressed.

58    Accordingly, none of the matters relied upon in paragraph 15 of the Applicant’s Outline of Submissions (set out at paragraph 39 above) demonstrates that the Tribunal’s decision to defer an assessment of non-refoulement obligations was legally unreasonable in the circumstances of this particular case.

59    For these reasons, Ground 1 is dismissed.

Ground 2: Did the Tribunal fail to consider the applicant’s representations?

60    By Ground 2, the applicant alleges that the Tribunal, in considering the impediments that she may face on her removal to South Sudan, failed to consider her representations “with respect to persecution as a young female victim-survivor of sexual violence and on account of her ethnicity, including threats to her life and liberty”; or “with respect to her mental health, and in particular her past trauma in South Sudan and her associated PTSD”.

61    The applicant again seeks to rely on the decision in Plaintiff M1, in so far as the plurality confirmed (at [39]) that it may be necessary for a decision-maker under s 501CA(4) to take account of the alleged facts underpinning a claim that removal would be in breach of international non-refoulement obligations. The applicant submits that the Tribunal did not adequately engage with her representations on the impediments that she would face if removed to South Sudan, including the risks to her life and liberty.

62    It is not in dispute that the applicant made representations about her fear of being harmed in South Sudan as a reason for revocation of the cancellation decision. Those fears arose both from her gender and ethnicity as a half-Dinka, half-Nuer woman. Her written submissions referred to country information in relation to inter-communal violence between the Dinka and Nuer ethnic groups in the wake of the South Sudanese civil war, as well as gender-based violence and persecution against South Sudanese women. She provided a statement in which she claimed that she had been raped as a young girl while living in a refugee camp in Kenya, and that she was terrified of being molested again if she returned to South Sudan. In written submissions to the Tribunal, the applicant’s representatives reiterated that there was a real risk that she would suffer serious harm on account of her ethnicity and gender if she were forced to return to South Sudan.

63    In this Court, the applicant submitted that the Tribunal did not discharge its obligation to evaluate her lengthy and detailed representations on these matters. In particular, the applicant argued that it was insufficient for the Tribunal simply to accept that “she would be at serious risk of harm of the nature identified in those submissions should she be removed to South Sudan” (T [302]) or that she “would face the most severe conceivable impediments if she were returned to South Sudan” (T [307]), without explaining what exactly had been accepted and evaluating the weight that should be given to this consideration accordingly. The applicant submitted that the first of these findings should be understood as a reference to “any difficulties that the applicant may face because of matters such as her gender and ethnicity” (T [303]).

64    The applicant stressed the importance of these matters “in human terms” or as involving “human consequences”: see e.g. NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [9] (Allsop CJ and Katzman J); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [49]–[50], [84] (Kenny, Flick and Griffiths JJ); Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] (Allsop CJ, with whom Markovic J agreed). As a consequence, the applicant submitted that the Tribunal’s level of engagement with the representations fell short of what was required by s 501CA of the Migration Act. In the applicant’s submission, the superficial nature of the Tribunal’s evaluation of the representations was illustrated by its labelling of the risk of the harms that the applicant might face as “difficulties”.

65    The Minister submitted that, once it was shown that the Tribunal had read, identified, understood and evaluated the applicant’s representations, it was not open to impugn the degree or the quality of the Tribunal’s evaluation of the representations: see ECE21 v Minister for Home Affairs (2023) 297 FCR 422 at [7]–[8] (Mortimer, Colvin and O’Sullivan JJ); Shi v Minister for Home Affairs [2023] FCAFC 136 at [24] (Snaden, Anderson and Goodman JJ); see also Plaintiff M1 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ). In the present case, the Minister submitted that the Tribunal’s evaluation of the extent of impediments that the applicant may face was a reasonable, rational and sufficient consideration of the applicant’s claims.

66    As the applicant accepted both before the Tribunal and in this Court, her representations on the impediments that she may face if removed to South Sudan largely adopted the matters raised in the context of her non-refoulement representations. Those matters were set out at length in the Tribunal’s reasons: T [263]–[265]. The Tribunal also referred to country information in relation to the circumstances in South Sudan, including the “dire” humanitarian and security situation: T [304]–[305]. The Tribunal accepted the applicant’s submissions that she would be at serious risk of harm and would face the most severe conceivable impediments if she returned to South Sudan: T [302], [307]. All of this resulted in the Tribunal attaching significant weight to the extent of impediments if removed as a factor in favour of revocation.

67    I consider that the Tribunal sufficiently engaged with the applicant’s representations about the extent of the impediments that she may face if removed to South Sudan in establishing herself and maintaining basic living standards, taking into account the nature, form, content and degree of relevance of those representations. There is no legal error demonstrating a failure by the Tribunal to perform its statutory task, and Ground 2 is therefore dismissed.

Conclusion

68    The applicant has not established any legal or jurisdictional error in the Tribunal’s decision. Accordingly, the application is dismissed with costs.

Associate:

Dated:    24 April 2025