Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs - [2020] FCA 557

FEDERAL COURT OF AUSTRALIA
Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557

File number: VID 730 of 2019

Judge: KERR J

Date of judgment: 29 April 2020

Catchwords:
MIGRATION – visa cancellation on character grounds – application for review of decision by Minister not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether failure to give meaningful consideration to substantial and clearly articulated representations concerning risk of harm if returned to Somalia, including risk that applicant would perish soon after arrival – Minister “noted” and “had regard” to various representations – Minister accepted that applicant would suffer “hardship” if returned – consideration of Minister for Home Affairs v Omar [2019] FCAFC 188 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 – relevance of failure to supply corroborative country information – jurisdictional error established – application upheld

MIGRATION – whether Minister erred in failing to consider applicant’s representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because assessing those obligations is a qualitatively different task under ss 501CA and 65 of the Migration Act 1958 (Cth) – consideration of Omar v Minister for Home Affairs [2019] FCA 279, DOB18 v Minister for Home Affairs [2019] FCAFC 63 and related authorities – case law unsettled – DGI19 v Minister for Home Affairs [2019] FCA 1867 not plainly wrong in concluding Omar v Minister for Home Affairs [2019] FCA 279 remains good law – jurisdictional error established

MIGRATION – whether Minister erred in failing to consider applicant’s representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because those obligations have a materially different content under ss 501CA and 65 of the Migration Act 1958 (Cth) – application of Ibrahim v Minister for Home Affairs [2019] FCAFC 89 – any error not material as any differences between international obligations and statutory criteria not relevant to Minister’s decision – jurisdictional error not established

MIGRATION – whether Minister’s conclusion that risk of harm to Australian community outweighed other considerations legally unreasonable – jurisdictional error established in view of other errors made in reasoning underpinning that conclusion

Legislation: Migration Act 1958 (Cth) ss 36, 501(3A), 501(7), 501(12), 501BA, 501CA(4)

Cases cited:
AIJ19 v Minister for Immigration [2019] FCA 2205

Ali v Minister for Home Affairs [2019] FCA 1900

Assistant Minister for Immigration v Splendido [2019] FCAFC 132

AXT19 v Minister for Home Affairs [2020] FCAFC 32

DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395

DGI19 v Minister for Home Affairs [2019] FCA 1867

DOB18 v Minister for Home Affairs [2019] FCAFC 63

EVK18 v Minister for Home Affairs [2020] FCAFC 49

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

FBW18 v Minister for Home Affairs [2019] FCA 1878

FCFYv Minister for Home Affairs (No 2) [2019] FCA 1990

Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628

Hernandez v Minister for Home Affairs [2020] FCA 415

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289

Minster for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320

Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

Omar v Minister for Home Affairs [2019] FCA 279

Tran v Minister for Immigration and Border Protection [2019] FCAFC 126

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

Date of hearing: 17 April 2020

Date of last submissions: 9 April 2020

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 171

Counsel for the Applicant: Ms N Blok

Solicitor for the Applicant: Kerdo Legal

Counsel for the Respondent: Mr G Hill

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 730 of 2019

BETWEEN:
MOHAMED ABDIRASHID AHMED

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIENSHIP, AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:

KERR J

DATE OF ORDER:

29 APRIL 2020

THE COURT ORDERS THAT:
1.The decision of the Respondent made on 20 May 2019 not to revoke the cancellation of the Applicant’s visa be set aside.
2.The Respondent determine the Applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.
3.The Respondent pay the Applicant’s costs of the proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT
KERR J:
BACKGROUND

The Applicant is a citizen of Somalia. He arrived in Australia on 24 August 2009. He was then aged 12. He was the holder of a Class XB Subclass 200 (Refugee) Visa (Refugee Visa).
On 28 August 2015, the Applicant appeared in the Children’s Court of Queensland. He entered pleas of guilty to (a) unlawful stalking, (b) using a carriage service to menace, harass or cause offence, and (c) a rape of a 10 year old boy he had committed on 2 March 2012 when aged 14. No conviction was recorded in respect of any of those counts. No action was taken in respect of the carriage service offence. However, the Children’s Court ordered that the Applicant be subject to a 12 month good behaviour bond on the stalking count. It also sentenced him to two years’ detention in respect of the rape. Accepting however that there were special circumstances, the Children’s Court ordered that the Applicant be released from custody after he had served 50 percent of the detention order.
On 10 February 2016, the Applicant again appeared in the Children’s Court of Queensland in respect of conduct that he had engaged in some years previously: two counts of unauthorised dealing in shop goods (dating from when he had been aged 14) and one count of assault causing bodily harm (dating from when he had just turned 15). No conviction was recorded. The Applicant was ordered to undertake 80 hours of community service within 12 months.
It seems not to be in dispute that the Applicant was only released from detention on 30 December 2016. His release was pursuant to a Youth Supervised Release Order. It is unclear why the Applicant’s detention had extended beyond the period of 50 percent of the detention order, as the Children’s Court had intended.
In any event, it is uncontentious that his time at liberty was short.
The information regarding the Applicant as is contained in the National Police Certificate (CB14-16) and information from Queensland Corrective Services (CB217-218) is challenging to reconcile. However, it seems not to be in dispute that some aspect of the Applicant’s subsequent conduct - which had included an offence of assault or obstruct police committed on 20 September 2016, and in respect of which the Townsville Magistrates’ Court did not record a conviction but did impose a fine of $200.00 on 16 December 2016 - formed a basis for the suspension of his parole. On 27 January 2017, the Applicant was returned into the custody of Queensland Corrective Services. Its records (CB217-218) reveal that he had become liable to serve a further 4 months and 2 days of detention.
On 10 February 2017, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) cancelled the Applicant’s Refugee Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he failed the character test because he had a substantial criminal record (the cancellation decision).
THE LEGAL BASIS OF THE CANCELLATION DECISION
For the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: Migration Act s 501(7)(c).
The circumstance on which the Minister’s delegate relied as establishing that the Applicant had a substantial criminal record was his detention for the offence of rape, as had been imposed by the Children’s Court of Queensland. Section 501(12) of the Migration Act extends the ordinary meaning of the term “imprisonment” to include “any form of punitive detention in a facility or institution”.
The Applicant does not contend that the Minister’s delegate erred by finding on that basis that he did not pass the character test.
Indeed, it may be that the delegate’s view was correct. In Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289 (Martin) at [54], the Administrative Appeals Tribunal accepted that imprisonment in a Youth Justice Centre can constitute imprisonment for the purposes of the character test.
However, the facts in Martin are significantly different to those applying in this case. Mr Martin had been convicted of the offence of armed robbery in the County Court of Victoria. Prior to that conviction, he had acquired a long history of offending that had been dealt with first in the Melbourne Children’s Court and later in the Magistrates’ Court. He was aged 19 at the time of his conviction for armed robbery. It was in those circumstances that he had been sentenced to two years’ imprisonment in a Youth Justice Centre. Senior Member Nikolic observed, at fn 49 to [54], that the applicant’s imprisonment in a Youth Justice Centre satisfied the definition of punitive detention in a facility or institution as provided for by s 501(12).
In the circumstances applying in Martin, such reasoning may readily be accepted. However, the issue of whether a detention order made by the Children’s Court of Queensland in accordance with the provisions of the Youth Justice Act 1992 (Qld) in respect of a child aged 14 at the time of their offending - with no conviction recorded - falls within the language of s 501(12) of the Migration Act properly construed is a different one. It does not appear to have been the subject of any attention in the Tribunal, or any Court.
Having regard to those observations the Court gave consideration as to whether or not it would be open to it to seek submissions from the parties as to what might be a potentially important threshold jurisdictional question, and if so whether it should do so.
Given the findings that the Court has reached with respect to the grounds of appeal the Applicant has advanced, it is satisfied that no necessity to adopt that course exists. The resolution of that point should therefore await decision in a case that requires it to be addressed.
THE APPLICATION FOR REVOCATION OF THE CANCELLATION DECISON
On 24 February 2017, the Applicant applied for revocation of the cancellation decision under s 501CA(4) of the Migration Act. He was invited to, and made, representations with respect to that application through his migration agents.
The Applicant’s Representations to the Minister
The Applicant’s migration agents provided the Minister with a letter from the Applicant. In his letter, he made the following representations relevant to the application now before the Court:
(b)I have no family in Somalia as all my extended family is scattered all over different countries due to the war in Somalia. Going back to Somalia would mean not having any of my family members close to me, and lack of family support will have severe and adverse impact in my life, and future which already looks bleak by virtue of the cancellation of my visa.
(c)My parents and siblings stand to make a great impact and influence in my life. Day to day contact and interaction with my family will provide significant emotional and psychological support to me, as well as make positive social impact in my life. I am already having anxiety and depression on the thought of leaving my family behind in Australia, and would wish that it never happens.
…
(f)… Although it has not been investigated, I have concerns I may be suffering from post-traumatic stress disorder due to violence and war experience as a refugee child.
(g)Leaving Australia will cause severe separation anxiety for me and my parents and younger ones. I retreat [sic] that I have no family or friends back home as I was born in Saudi Arabia while my family was looking for safety, and from there to Somalia, then to Japuti and Eritrea before the United Nations settled us to Australia.
(h)All I have as family is here – sending me back to Somalia poses great risks and danger to my life and future. More critical is the possibility of criminal and extremist groups capitalising on my young and vulnerable age to influence me into a path of life that can only worsen my present state.
(g)Somalia is volatile and dangerous place for any young person to live in, especially where there is no adult presence to provide any form of caution, counsel or advice.
10.Compassion circumstances and Consideration based on my refugee status
While not approving of my actions, which have brought me to where I am today, I humbly point that the offence I have committed are not far from offences committed by other Australian children of my age. My refugee status means that I have nowhere else to go … [r]ather than discard me into a war-torn environment with no family, I ask to be given an opportunity for rehabilitation in Australia.
(Bold italic emphasis in original; underline emphasis added).
The Applicant’s migration agents later made further representations on his behalf. Those which are relevant to the present application are as follows:
32.Due to his age, our client will not have any access to assets or money overseas if sent abroad. His only family is in Australia; he has no connection to Somalia or Saudi Arabia (the country of his birth). He will have no support if he is to be returned there, and will be left homeless and unable to support himself.
33.He does not speak either Somali nor Arabic, and would struggle to live if deported from Australia.
34.A return to Somalia – a volatile and dangerous country in the midst of constant terrorist attacks, civil & political unrest, significant lawlessness – would also risk our client becoming kidnapped or radicalised by extremist groups thereby posing a greater risk to Australia.
(Emphasis added).
The agents also provided to the Minister a number of documents, including letters from various community organisations offering support to the Applicant. Of particular relevance is a letter from Mr Abdi Shirwa, President of the Bright Horn of Africa Somalia Community Townsville. That letter includes the following passage:
… I also suspect that [the Applicant] (19 years old) who is going to be deported also suffers from sort of intellectual disability inherited from the family link, which we believe needs to be investigated.
Our main worry is that this young man might fall into the wrong hands if he is to return to Somalia, as he will be prey to extremist groups as he will not have any family or friends for support in Somalia.
(Emphasis added).
The Applicant’s migration agents also provided the Minister with a letter from his father. In that letter his father states, relevantly:
[d]uring the past 20 years since we have been gone from Mogadishu in Somalia, we have lost all our contacts there, we have no relatives or friends left there for us to rely on – I only have one brother who is living in Ethiopia as a refugee. My wife is grief stricken and suffering from severe anxiety knowing that our son is being deported to somewhere with no family. He will more likely perish without a trace immediately on arrival …
I am from a minority group called Gabooye in Somalia who has no political protection or region left in Mogadishu. As a father, I am certain that if he is deported at this age (19 years old) he will stand no chance whatsoever in terms of surviving for days let alone months ….
The other concern that I have is that at such a young age when my son is deported to Mogadishu disoriented, demoralized and frustrated, cut off from his family he will be a prime choice recruit for extremist groups such as Al-Shabab.
(Emphasis added).
THE MINISTER’S DECISION
The Minister was satisfied that the Applicant did not pass the character test. The Applicant did not, and does not, submit otherwise. Having regard to my observations at [7]-[15] above, I proceed on the assumption that the Minister was correct to find that the Applicant did not pass the character test by reason of his having a substantial criminal record. On that assumption, the Minister was permitted under s 501CA(4)(b)(ii) of the Migration Act to revoke the cancellation decision if but only if he was satisfied that there was “another reason” for doing so.
In that regard the Minister stated:
7. I have considered the representations made by [the Applicant] and the documents he has provided in support of his representations.
…
WHETHER MINISTER IS SATISFIED THAT THERE IS ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE PROVOKED – s 501CA(4)(b)(ii)
10.As I am not satisfied that [the Applicant] passes the character test, I have considered, in light of [the Applicant’s] representations, whether I am satisfied that there is another reason why the original decision should be revoked.
11.In undertaking this task, I assessed all the information set out in the attachments. In particular, I considered [the Applicant’s] representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.
12.In the representations submitted by or on his behalf, [the Applicant] has articulated reasons why the original decision should be revoked, which include:
- the best interests of his infant daughter, his two minor stepchildren and his three minor Australian citizen brothers,
- his Australian citizen parents reside in Australia,
- he was educated in Australia and plans to further his education through TAFE, his commitment to his Mosque and to his community,
- the support offered and available to him through the Somali community,
- his contribution to the Australian community through his involvement with a youth performing group, playing sports and volunteer work,
- he was a minor at the time of the offending and was influenced by friends,
- he regrets his actions and has taken responsibility for what happened,
- he may have post-traumatic stress disorder (PTSD) due to the violence and war he experienced as a refugee child,
- there is no risk that he will reoffend as he ‘has made choices and changes for his future’
- his family fears that he would perish if returned to Somalia,
- his fear of return to Somalia where he has no family or support and would be at risk from extremist groups.
The Minister addressed the Applicant’s case that he ought accept there was another reason why the cancellation of his visa should be revoked under the following headings: best interests of minor children; international non-refoulement obligations; strength, nature and duration of ties; impact on victims; extent of impediments if removed; protecting the Australian community; mitigating circumstances; remorse; and rehabilitation.

The Minister’s reasons under the heading “international non-refoulement obligations” were as follows:
32.As part of his representations seeking revocation of the original decision to cancel his visa, [the Applicant] submits that he will face harm if returned to Somalia. [The Applicant] states that Somalia is a volatile and dangerous place for any young person to live in, especially where there is no adult presence to provide any form of caution, counsel or advice,
33.[The Applicant’s] father … submits that [the Applicant] will more likely perish without a trace immediately after arrival’, and that ‘he will stand no chance whatsoever in terms of surviving for days let alone months’. [The Applicant’s father] states that [the Applicant’s father] would be a prime choice recruit for extremist groups.
34.I note that [the Applicant’s] representative submits that ‘A return to Somalia – a volatile and dangerous country in the midst of constant terrorist attacks, civil & political unrest, significant lawlessness – would also risk our client becoming kidnapped or radicalised by extremist groups thereby posing a greater risk to Australia’. These concerns are also expressed by community leaders.
35.I am aware that my Department’s practice in assessing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, a Minister has given a direction under s 499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection via must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s 501.
36.I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.
37.In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [the Applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing that application.
38.I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the Applicant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the Applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that it is a possible consequence of my decision, albeit an unlikely one.
39.I have also considered [the Applicant’s] claims of harm upon return to Somalia outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the Applicant’s] claims are such as to engage non-refoulement obligations, [the Applicant] would face hardship arising from the possibility of criminal and extremist groups capitalising on the young and vulnerable, and that Somalia is a volatile and dangerous place, were he to return to Somalia.
(Emphasis added).
Under the heading “extent of impediments if removed”, the Minister reasoned that:
54.In coming to my decision about whether or not I am satisfied there is another reason why the original decision should be revoked, I have had regard to the impediments that [the Applicant] will face if removed from Australia to his home country of Somalia in establishing himself and maintain basic living standards.
55.I have had regard to the advice of [the Applicant’s father], who states that his family is from a minority group called ‘Gabooye’ in Somalia. He states that they lost all of their contacts and have no family or friends to rely on in Somalia. As a result, his son will have no support at all should he be returned to Somalia. [The Applicant’s father] states that [the Applicant] ‘will more likely perish without a trace immediately after arrival’, and that ‘he will stand no chance whatsoever in terms of surviving for days let along months’. [The Applicant’s father] states that his son would be a prime choice recruit for extremist groups.
56.[The Applicant’s] representative submits that [the Applicant] does not speak Somali or Arabic that he would have no access to assets or money overseas, would be left homeless and would be unable to support himself. I accept these statements.
57.I note that [the Applicant] states that he was born in Saudi Arabia while his family were looking for safety before going to Somalia, then Japuti and Eritrea.
58.I note that [the Applicant’s father] states that [the Applicant] was two and half years of age when the family ran for their lives to a refugee camp in Eritrea, where they remained in the harsh environment for ten years before being accepted as refugees in Australia.
59.I note [the Applicant] states that ‘Removing me from Australia would [sic] very detrimental to my future, and may ultimately lead to more havoc in my life. I need the help and support of my family, as well as the Townsville community where I now call home in order to achieve a great future for myself’.
60.I take into consideration that [the Applicant] submits that returning to Somalia poses great risks and danger to his life and future, that there is a possibility of criminal and extremist groups capitalising on his young and vulnerable age to influence him, and that ‘Somalia is a volatile and dangerous place for any young person to live in’ especially without an adult presence to provide counsel, advice and caution.
61.I note that Somali community leaders have also expressed their concerns that if [the Applicant] is removed from Australia, he may fall into the wrong hands in Somalia and would be prey to extremist groups as he will have no family or friends for support. It was submitted in March 2017 that [the Applicant] was fully dependent on his parents. I accept these statements.
62.I note that [the Applicant] wants to marry and raise his children in Australia, stating that if he is removed, he can never return. I also accept [the Applicant’s] statement in his representations that he is close to his parents and brothers in Australia and is experiencing anxiety and depression at the prospect of being removed from them.
63.[The Applicant] is 22 years of age. I note that he believes he is suffering from undiagnosed Post-Traumatic stress disorder (PTSD). I also note his advice regarding his anxiety and depression, and the advice of Mr Abdi Shirwa, President of the Bright Horn of Africa, Somali Community Townsville Inc, that [the Applicant] has an intellectual disability that needs to be investigated. As Somalia is a developing country with limited economic resources, I consider it likely that [the Applicant] would be unable to obtain appropriate assessment and treatment for his mental health.
64.While there is no evidence to suggest that [the Applicant] has any physical health issues that would limit his work capacity, he also has no employment skills or work history to assist him to find employment. I also consider that his mental health problems and a possible intellectual disability may also impact upon his ability to find and maintain employment. I accept that social and economic supports in Somalia are extremely limited. I find that [the Applicant] may experience difficulty finding employment and earning an income, sourcing suitable accommodation and obtaining any required medical treatment in Somalia. I find that [the Applicant] is unlikely to maintain the standard of living available to him in Australia.
65.I note also that [the Applicant] has made claims which may give rise to international protection obligations. Notwithstanding the existence of any international protection obligations claimed by [the Applicant], I find that given the absence of family support in Somalia, he will face very significant impediments to resettlement. I find also that separation from his family in Australia will cause significant emotional hardship for him.
(Emphasis added).
The Minister concluded that:
124.In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the Applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child and other minor family members, as a primary consideration, and any other considerations as described above. These include his length residence and bonds, his claims regarding international non-refoulement obligations, employment, volunteer/charity and familial ties to Australia, and the hardship [the Applicant], his family and social networks will endure in the event the original decision is not revoked.
125.Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 51CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel [the Applicant’s] visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and [the Applicant’s] Class XB Subclass 200 (Refugee) visa remains cancelled.
(Emphasis added).
For those reasons, on 20 May 2019 the Minister - the Hon David Coleman MP - decided not to revoke the cancellation decision. The Applicant was notified of the Minister’s decision by letter dated 22 May 2019.
By an application filed on 4 July 2019, the Applicant sought an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to file a “notice of appeal”. The Applicant also lodged with the Court a draft application for review of a migration decision under s 476A of the Migration Act. The Minister takes no issue with any procedural irregularities.
On 13 September 2019, consent orders were made extending the time for filing the application for review to 4 July 2019 and otherwise setting a timetable. Subsequent consent orders made changes to that timetable. On 30 January 2020, orders were made permitting the Applicant to file and serve any amended draft application on or before 4:30pm on 21 February 2020.
On 21 February 2020, the Applicant lodged but did not file a document titled “Amended draft originating application for review of a migration decision”. Preparation for the hearing of the Applicant’s review proceeded on the basis that that document would be filed in due course.
However, in turn that document was proposed to be substituted for by a foreshadowed further amended application for review on which the Applicant sought leave to rely. In that further amended application, he intended to add a new ground - Ground 1(b) - to be added to cover certain arguments that his counsel had advanced in reply submissions. Counsel for the Minister, Mr Hill, indicated in advance of the hearing that he did not oppose leave being granted to the Applicant to rely on his proposed further amended application provided the Minister was granted leave to file short submissions in response. That being agreed, I made an order by consent on 17 April 2020 that:
The Applicant have leave to rely upon his proposed further amended originating application for review of a migration decision as if it had been filed in accordance with the Federal Court Rules 2011 (Cth).
GROUNDS OF REVIEW ULTIMATELY ADVANCED
The Applicant’s “further amended draft originating application for review of a migration decision” advances the following grounds of review:
Ground 1(a)
The Minister failed to perform his statutory task by failing to consider, and deferring to a future protection visa application, the Applicant’s representations about Australia’s non-refoulement obligations as “another reason” for revocation.
Particulars
The Minister’s reasons at paragraphs 35-38 disclose that he considered it unnecessary to determine whether non-refoulement obligations were owed to the Applicant because the Applicant could make a valid application for a protection visa (where it was likely that, following Direction 75, the issue of non-refoulement would be considered).
Deferring consideration in identical circumstances of the non-refoulement representations in the purported exercise of the discretion under s 501CA(4) of the Migration Act 1958 (Cth) was held in Omar v Minister for Home Affairs [2019] FCA 279 to constitute a failure by the Assistant Minister to perform his statutory task and a jurisdictional error: see also BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 and Minister for Home Affairs v Omar [2019] FCAFC 188.
Ground 1(b)
The Minister misunderstood the Migration Act 1958 (Cth) or its operation by incorrectly assuming that whether Australia owed the Applicant non-refoulement obligations would be considered in the event he made an application for a protection visa. This is incorrect because the criteria for a protection visa under s 36(2) of the Migration Act differ in material ways, and/or do not reflect Australia’s international law non-refoulement obligations. As such, the Minister conflated Australia’s non-refoulement obligations under international law with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa [under] s 36 of the Migration Act.
Particulars
The Minister’s reasons at paragraph 37 which disclose that he considered it unnecessary to determine whether non-refoulement obligations were owed to the Applicant for the purposes of the present decision because the Applicant could make a valid application for a protection visa, and in the “(highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the applications” (emphasis added).
The Minister’s use of the term “non-refoulement obligations” in paragraph 38 of his reasons and the phrase “outside of non-refoulement and the international obligations framework” in paragraph 39 of his reasons.
Ground 2
The Minister failed to perform his statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with, the Applicant’s representations about the harm he would suffer if he had to return to Somalia as “another reason” for revocation: Minister for Home Affairs v Omar [2019] FCAFC 188. This failure included failing to consider (at all) the representation by his father that the family is “from a minority group called Gabooye in Somalia who has no political protection or region left in Mogadishu” (AB56).
Instead, the Minister “noted”, “took into account” or “took into consideration” the representations made (although, significantly, not the lack of political protection representation referred to above). The Minister failed entirely to assess, and/or make any findings about, the representations of harm the Applicant said he would face (cf hardship about which findings were made). In particular, there was no assessment of the strength of the representations, the consequences for the Applicant should they eventuate or the likelihood thereof, in respect of Somalia being “volatile and dangerous” for young people without the presence of adult counsel, that he would “likely perish”, or survive for days only, or “become kidnapped and radicalised”. Instead, the Minister’s “consideration” was essentially formulaic with the result there was little if any, meaningful content, or significance, to the task before him.
Particulars
1.Paragraphs 32-34 of the Minister’s reasons set out the Applicant’s representations about harm were he to be returned to Somalia and the Minister’s consideration of them. The representations included that “Somalia is a volatile and dangerous place for any young person, especially where there is no adult presence to provide any form of caution, counsel or advice” [32]; that the Applicant “will more likely perish without a trace immediately after arrival” and “he will stand no chance whatsoever in terms of surviving for days let along [sic] months” [33]; that “A return to Somalia – a volatile and dangerous country in the midst of constant terrorist attacks, civil & political unrest, significant lawlessness – would also risk our client becoming kidnapped and radicalised by extremist groups thereby posing a greater risk to Australia” [34].
2.Paragraphs 54-64 of the Minister’s reasons set out what the Minister noted, had regard to or took into consideration in respect to the Applicant’s representations about harm and the extent of impediments were he to be returned to Somalia (including those set out at paragraphs 32-34, and others, such as his claim he might have PTSD, and an intellectual disability that required investigation).
3.Paragraphs 39, 63 - 65 of the Minister’s reasons set out the sum of the Minister’s findings and conclusions as to the harm and impediments the Applicant may suffer if returned to Somalia. These findings comprised the following:
- The Minister considered it likely that the Applicant would be “unable to obtain appropriate assessment and treatment for his mental health [63];
- The Minister found that the Applicant might experience difficulty finding work, suitable accommodation and required medical treatment [64];
- The Minister found that the Applicant “is unlikely to maintain the standard of living available to him in Australia” [64]; and
- The Minister found that given the absence of family support in Somalia, he will face “very significant impediments to resettlement”, and separation from his family “will cause significant emotional hardship for him” [65].
Ground 3
The Minister’s conclusion at paragraph 124 of his reasons that the Applicant represents an “unacceptable risk of harm” to the Australian community and that the protection of the Australian community outweighed any other consideration, including the claims regarding international refoulement obligations, was legally unreasonable. In circumstances where the Minister expressly did not consider the non-refoulement claims and failed to make findings about the representations of harm (cf hardship) the Applicant faced should he be returned to Somalia, this conclusion lacked a rational and probative basis.
Background to the Grounds of Review: The Omar Decisions
The Applicant’s counsel, Ms Blok, observes at the commencement of the Applicant’s written submissions that:
[t]he first proposed ground [prior to leave being granted, now Ground 1(a)] is in substance identical to the ground successfully raised by the applicant in Omar v Minister for Home Affairs [2019] FCA 279. The second proposed ground is in substance identical to the ground successfully raised by the respondent in Minister for Home Affairs v Omar [2019] FCAFC 188. The third proposed ground is not dissimilar and arises from the failures of the Minister identified in the first two.
The Minister’s counsel, Mr Hill, does not cavil with that analysis. It follows that the decisions in Omar v Minister for Home Affairs [2019] FCA 279 (Omar (FCA)) and Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar (FCAFC)) (together, the Omar decisions) have particular significance for the present application. It is convenient at the outset to provide a brief summary of those cases.

As in the present case, the Omar decisions concerned a young Somalian Citizen (aged 17) who had acquired a substantial criminal record. He had an intellectual disability and mental health issues. He had not lived in Somalia since the age of eight. On the basis that he did not meet the character test, a delegate of the Minister had cancelled his Class BC Subclass 100 Spouse (Migrant) visa. Mr Omar was then invited to make representations as to whether there was another reason why that cancellation decision should be revoked. His representations were personally considered by the Assistant Minister.
Mr Omar made representations to the Minister concerning, inter-alia, non-refoulement. With respect to non-refoulement obligations, the Assistant Minister found that:
20.I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s. 499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.
21.Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr OMAR for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.
The Assistant Minister decided not to revoke that cancellation pursuant to s 501CA(4) of the Migration Act.
Mr Omar sought review of that decision. At first instance, Mortimer J set aside the decision. Her Honour found that the Minister had examined the risk of harm to Mr Omar if he were returned to Somalia:
64.It is correct, as the Minister submits, that the Assistant Minister did examine risks of harm to the applicant if he had to return to Somalia. This also distinguishes the circumstances of this proceeding from the circumstances of BCR16, where this did not occur.
65.Harm was certainly put forward as “another reason” by the applicant in the submissions made by his representatives. The Assistant Minister considered in some detail the nature of the harm likely to be encountered by the applicant if he were to return to Somalia. The Assistant Minister accepted there would be harm, but found that in the exercise of the revocation discretion, other factors outweighed whatever harm the applicant might suffer in Somalia. The Assistant Minister appeared to accept at a factual level, and certainly did not reject, all the substantial factual contentions put on behalf of the applicant in submissions about the significant difficulties and likely harm he would experience in trying to exist in Somalia.
However, in light of the fact that the Assistant Minister had not assessed whether or not Australia owed Mr Omar non-refoulement obligations under international law her Honour reasoned as follows.
66.… If, however, the Assistant Minister were to decide [that non-refoulement] obligations were engaged, then, in the consideration of how the revocation discretion in s 501CA(4) should be exercised, weighing the presence of such international obligations in the balance would be quite a different task. Deciding whether Australia’s international obligations to a person should be respected, or are outweighed by risk posed by that person to the Australian community, or that the likely compromise is indefinite detention, frames the issues for the exercise of the s 501CA(4) discretion in quite a different perspective.
By failing to determine whether Australia owed non-refoulement obligations to Mr Omar and if so to weigh that consideration in the balance in the exercise of his revocation discretion, her Honour held that the Assistant Minister had erred jurisdictionally:
81. Ground 2, in terms of the first contended “misunderstanding” of the Assistant Minister, should be upheld. Where a representation is made pursuant to an invitation under s 501CA(3)(b), it is a failure to perform the statutory task then required by s 501CA(4) for the Assistant Minister to decline to determine factual matters raised by the representations by reference to a different statutory process, which is non-existent at the time of the exercise of power, whose invocation is entirely speculative, and during which process the engagement of Australia’s non-refoulement obligations is not a criterion for the grant of a visa.
82 . The question before the Assistant Minister is whether or not to revoke the cancellation of a particular visa: a previously existing visa, which entitled the person to remain in the Australian community, on a particular basis, with the particular status and benefits that accompany that visa. Thus, the question for the Assistant Minister was whether to restore that particular visa to the applicant. In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.
In Omar (FCAFC) a Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) dismissed the Minister’s appeal from her Honour’s decision. However, it did so on the basis of a notice of contention.
The Court, upholding that notice of contention, concluded that her Honour had erred in finding, at paragraphs [64] and [65], that the Assistant Minister had engaged meaningfully with the risk of harm to Mr Omar if he were returned to Somalia and had taken that consideration into account in reaching his decision.
The Court observed that the Assistant Minister had merely “noted” or had said he that had taken into consideration the matters that Mr Omar had raised with respect to the risks of returning to Somalia. However he had not, for example, made findings one way or another as to whether he accepted Mr Omar’s representation that the discrimination to which persons in Somalia with mental illness were subjected amounted to cruel, inhumane or degrading treatment. He had similarly not made findings with respect to Mr Omar’s representation that such persons were frequently imprisoned and chained. His failure to have done so was highlighted when contrasted with the findings that he had made with respect to other issues. It was also highlighted by his erroneous attribution of certain relevant information to an incorrect source, which the Court found to be indicative of a want of active intellectual engagement with the issue.
The Full Court held that that this lack of engagement amounted to jurisdictional error:
44.We are left with the abiding impression that part, possibly a large part, of the reason why the Assistant Minister failed to engage fully and meaningfully with the respondent’s representations on this topic was because of the Assistant Minister’s belief that they could be deferred and dealt with at a later stage of the decision-making process, whether in the context of a protection visa application or the Minister’s consideration of the exercise of his various non-compellable powers under the Act. But to proceed in that fashion is to fail to recognise and give effect to the distinction identified by Robertson J in DOB18 at [185] (with whom Logan J agreed) (see [34(f)] above.
45.Consistently with Colvin J’s judgment in Viane at [75], we consider that the Assistant Minister’s failure to consider in the relevant legal sense significant matters raised clearly by the respondent in the representations is a failure to conform with the Act or, to put it another way, to carry out the relevant statutory function according to law. As Colvin J stated at [75]:
… The statutory requirement for the Minister to invite representations must lead to the conclusion that if representations are made as to significant matters then the Minister must consider whether to revoke the original cancellation and do so by considering the representations as to those matters. Jurisdictional error, in the sense relevant in the present case, consists of such a material breach of an express or implied condition of the valid exercise of a decision making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [23]-[26].
46.The Assistant Minister’s error is material and gives rise to jurisdictional error because there is a possibility that if the Assistant Minister had truly engaged in an active intellectual process with the significant matters put forward by the respondent on the likelihood of harm, he may have come to a different conclusion on the issue of revocation.
The Full Court then concluded that the other issues in the appeal were unnecessary to determine. Omar (FCAFC) thus does not address the correctness or otherwise of Mortimer J’s reasoning in Omar (FCA).
Perhaps with that history in mind, when commencing oral argument counsel for the Minister, Mr Hill, submitted:
…the key ground of review is actually ground 2, whether the claims have been properly considered, and the reason I say that is that if your Honour is with me, that the claims are properly considered, then we can progress to grounds 1(a) and 1(b), but if your Honour is against me on ground 2, then I have to accept that I must lose – well, your Honour wouldn’t have to go any further, but my materiality argument on ground 1(b) would fall away and perhaps it would also fall away on 1(a) as well.
The Court accepts that that dealing with the Applicant’s grounds of review in that order is appropriate.
Ground 2
Ground 2 is stated as follows:
The Minister failed to perform his statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with, the Applicant’s representations about the harm he would suffer if he had to return to Somalia as “another reason” for revocation: Minister for Home Affairs v Omar [2019] FCAFC 188. This failure included failing to consider (at all) the representation by his father that the family is “from a minority group called Gabooye in Somalia who has no political protection or region left in Mogadishu” (AB56).
Instead, the Minister “noted”, “took into account” or “took into consideration” the representations made (although, significantly, not the lack of political protection representation referred to above). The Minister failed entirely to assess, and/or make any findings about, the representations of harm the Applicant said he would face (cf hardship about which findings were made). In particular, there was no assessment of the strength of the representations, the consequences for the Applicant should they eventuate or the likelihood thereof, in respect of Somalia being “volatile and dangerous” for young people without the presence of adult counsel, that he would “likely perish”, or survive for days only, or “become kidnapped and radicalised”. Instead, the Minister’s “consideration” was essentially formulaic with the result there was little if any, meaningful content, or significance, to the task before him.
Particulars
1.Paragraphs 32-34 of the Minister’s reasons set out the Applicant’s representations about harm were he to be returned to Somalia and the Minister’s consideration of them. The representations included that “Somalia is a volatile and dangerous place for any young person, especially where there is no adult presence to provide any form of caution, counsel or advice” [32]; that the Applicant “will more likely perish without a trace immediately after arrival” and “he will stand no chance whatsoever in terms of surviving for days let along [sic] months” [33]; that “A return to Somalia – a volatile and dangerous country in the midst of constant terrorist attacks, civil & political unrest, significant lawlessness – would also risk our client becoming kidnapped and radicalised by extremist groups thereby posing a greater risk to Australia” [34].
2.Paragraphs 54-64 of the Minister’s reasons set out what the Minister noted, had regard to or took into consideration in respect to the Applicant’s representations about harm and the extent of impediments were he to be returned to Somalia (including those set out at paragraphs 32-34, and others, such as his claim he might have PTSD, and an intellectual disability that required investigation).
3.Paragraphs 39, 63 - 65 of the Minister’s reasons set out the sum of the Minister’s findings and conclusions as to the harm and impediments the Applicant may suffer if returned to Somalia. These findings comprised the following:
- The Minister considered it likely that the Applicant would be “unable to obtain appropriate assessment and treatment for his mental health [63];
- The Minister found that the Applicant might experience difficulty finding work, suitable accommodation and required medical treatment [64];
- The Minister found that the Applicant “is unlikely to maintain the standard of living available to him in Australia” [64]; and
- The Minister found that given the absence of family support in Somalia, he will face “very significant impediments to resettlement”, and separation from his family “will cause significant emotional hardship for him” [65].
Applicant’s Submissions
With respect to Ground 2, the Applicant relies upon Omar (FCAFC). Applying those principles to the present case, the Applicant submits that he made “significant and clearly expressed” representations to the Minister about the risk to his life should he return to Somalia. The Applicant notes in that regard that the Minister made no adverse credibility findings against him, his father, or the community members who made representations on his behalf. He did not otherwise suggest that the representations were not true, or reasonable. Moreover, the Applicant submits that:
… (at least some) of the representations appear to be accepted, although it is unclear whether it is the truth of the representation which was accepted cf simply the fact of the representation (eg that he might fall prey to extremists: [61]).
Having regard to that circumstance, the Applicant submits that the Minister failed to engage in an active intellectual process with respect to those representations or to make findings as to the factual allegations they contained. On his behalf, Ms Blok submits in that regard the Minister’s findings at paragraph [64] are “vastly inadequate” to address the matters identified at paragraphs [39], [56] and [63]. Further, those reasons make no mention of the Applicant’s father being part of the Gabooye minority group and the potential impact of that fact on the safety of the Applicant if returned to Somalia.
In oral submissions, Ms Blok developed that submission as follows:
If you have a look at the paragraphs under the heading “Extent of Impediments” where the harm is purportedly considered again, again that consideration is partial and incomplete. At paragraphs 55 and 60, the Minister says he has regard or has taken into consideration some of those matters, but there are no findings made about these significant representations, and the findings which are made don’t reflect them. Instead the findings made at paragraphs 64 and 65 are about quite different issues, about finding employment, earning income, sourcing accommodation, obtaining medical treatment, and about the absence of family support, which would lead him to face significant impediments and emotional hardships. With respect, these findings are woefully inadequate and fall short of what is required to meet the reality of consideration required of decision-makers, especially having regard to the significant representations about risk of harm and/or death made in the case, and I refer there to Maioha [Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643] at [45]. They don’t reflect in any way the significance of the representations about potentially facing death or harm, and nor can it be said that these issues were subsumed within findings about – or issues of greater generality. There were none. The reasons don’t disclose any consideration of whether the harms and risks feared by the applicant are likely to be made out, and I refer there to Ezegbe [Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216] at [32].
Aside from the representations concerning the risk to his life, the Applicant submits that the Minister failed to actively engage with or assess the implications of his potential intellectual disability or mental health condition beyond the “bland” statement that the Applicant “may experience difficulty obtaining the required treatment” in Somalia. The Minister had made no findings as would have appropriately expanded on that statement:
what does this mean? How will his conditions be treated (or not treated) in Somalia and what are the consequences should is conditions not be treated? How does Somalia treat those with disabilities?
For those reasons the Applicant submits that – as in Omar (FCAFC) – in thus failing to give active intellectual consideration to his representations, the Minister fell into jurisdictional error. That error was material. Had the Minister given the necessary attention to those claims, he may have come to a different decision.
Minister’s Submissions
The Minister accepts that following Omar (FCAFC), he was required to give “meaningful consideration” to the risk of harm that the Applicant claimed to fear. He submits however that the level of analysis that constitutes “meaningful consideration” varies depending on context. For example, the applicant in Omar (FCAFC) made a specific representation that if returned to Somalia he would be chained, imprisoned and harmed by virtue of his mental illness. Mr Hill accepts that giving “meaningful consideration” to that submission required the Minister make a specific finding of fact concerning what was likely to occur if the applicant was returned to Somalia. Mr Hill submits however that that is not the case where a claim is advanced in very general terms.
In support of this submission, the Minister cites the decision of the Full Court in Minster for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 (Buadromo). He submits that in Buadromo the Full Court :
rejected the proposition that a decision-maker must always make a finding of fact with respect to every claim made or issue raised by a person. For example, a finding of fact may not be required if the claim or issue is irrelevant or is subsumed within a claim or issue of greater generality, or if the decision-maker reasons that, even assuming fact or proposition A, the decision-maker does not accept that fact or proposition B follows. Further, a finding may be implicit in the decision-maker’s reasons.
(Footnotes omitted; emphasis in original).
The Minister further submits that even where a party is unrepresented, the Minister is not obliged to consider a claim where doing so would require “constructive or creative activity” (citing NABE v Minister for Immigration (No 2) [2004] FCAFC 263; 144 FCR 1 at [56] and DFC16 v Minister for Immigration [2018] FCAFC 56; 259 FCR 460 at [7]). He submits that that principle too must inform what constitutes “meaningful consideration” of a claim.
Having regard to those principles, on behalf of the Minister Mr Hill identifies the key representations made on behalf of the Applicant concerning the risk to which he would be subject if returned to Somalia as follows:
17.1     Somalia is a volatile and dangerous place;
17.2The Applicant is a member of an ethnic minority (the Gabooye) that does not have political protection or a region in Somalia;
17.3     The Applicant was at risk of falling prey to extremist groups;
17.4     The Applicant had possible mental health issues.

Mr Hill submits that the Minister gave those matters meaningful consideration at paragraph [39] and paragraphs [63]-[65] of his reasons.
As to 17.1, the Minister submits that this representation was advanced at a high level of generality. He could therefore properly address it at a similarly high level of generality. He further notes that there is no general principle that a finding by the Minister that an applicant will suffer “hardship” if returned to their country of origin – a finding which, for example, was made by the Minister in DOB18 v Minister for Home Affairs [2019] FCAFC 63, addressed below – is necessarily suggestive of a lack of engagement. Each case must turn on its own facts.
Expanding on that point in oral argument, Mr Hill submitted that for a representation to oblige a decision maker to address a claim more specifically;
you need to provide factual material to support your assertions. That’s the key point from EVK18 [EVK18 v Minister for Home Affairs [2020] FCAFC 49]. You can’t just assert it; you need to provide factual material to support it.
As to 17.2, the Minister submits that this representation was sufficiently addressed by his finding that the Applicant would face significant hardship if returned by reason of a lack of family support. The Minister submits that the Applicant put the claim regarding his ethnicity no higher.
As to 17.3, the Minister submits that he expressly accepted this claim.
As to 17.4, the Minister submits that the Applicant’s claims concerning his mental health were not supported by any medical evidence. In that respect he distinguishes the present application from that which was the subject of consideration in Omar (FCAFC), where the applicant had been formally diagnosed as suffering from schizophrenia and having an intellectual disability. The Minister submits that his finding that the Applicant would not be able to obtain medical treatment in Somalia and may have difficulty obtaining employment as a result was sufficient to deal with claims advanced at a level of such generality.
In sum, the submissions advanced on behalf of the Minister contend that if appropriate regard is had to the nature of the representations advanced before him it is clear that he did not ignore any significant representation clearly made and accordingly did not fall into jurisdictional error.
Addressing a question from the Court as to the adequacy of the Minister’s consideration of what on the Applicant’s case might be thought to have been a clearly articulated proposition that if he returned to Somalia he was likely to perish or be killed, Mr Hill submitted as follows:
…he will perish without a trace is just – if I can put it this way, without any disrespect, it’s a very emphatic way of saying that the impediments are too great, and it’s those impediments that are addressed expressly in paragraph 64. The things that are necessary for survival, the Minister considers.
Now, there’s a difference between “I am unable to subsist” and “I fear I will be killed”. I accept that, of course. But, in my submission, there’s no particular information or supporting material on which the Minister could make any specific findings. This is dealt with in paragraph 39 under international non-refoulement, because if one is at risk of death, then that is the sort of claim that raises complementary protection and it’s appropriate to deal with it there. And in my – and your Honour understands my submission is the claim is put at a high level of generality. It is dealt with at a high level of generality and that is permissible….
…the claim that “I fear being killed” is subsumed in the discussion of Somalia being a volatile and dangerous place under non-refoulement and dealt with in the finding of hardship.
Applicant’s Reply Submissions
In her reply submissions, Ms Blok largely reaffirms the Applicant’s primary submissions as to the inadequacy of the Minister’s reasons. She emphasises that matters such as the asserted risk to his life if returned to Somalia are simply not addressed in the Minister’s reasons. She submits that it can be inferred that the Minister did not consider those matters, citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [69].
Ms Blok takes particular issue with the Minister’s submissions regarding the representation advanced on his behalf with respect to his ethnicity:
[t]he Respondent also suggests that the representation about the Applicant being “Gabooye” was related to the lack of friends or family support and thus was sufficiently considered … To the contrary, the representation that the Applicant was Gabooye was in the context of saying this was a minority group with no political protection or religion left in Mogadishu (AB 56). This representation was separate and un-connected to a different representations made in the paragraph above to the lack of family in Mogadishu … which was then dealt with …
Ms Blok submits that the use of the term “hardship” has previously been held to fall “well short of a finding as to whether or not [an applicant] may suffer torture or extreme suffering or be exposed to highly dangerous conditions” (AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [67]). In that regard Ms Blok also cites the observation made by Allsop CJ in Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628 (Hands) at [21]:
… The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
Consideration
The Minister accepts, in my view correctly, that Omar (FCAFC) is binding authority for the proposition that - whatever might be the position with respect to the Minister’s entitlement to have deferred consideration of those of the Applicant’s claims as he considered related to Australia’s non-refoulement obligations - he had a legal duty, independently of any such claims, to give meaningful consideration to each clearly expressed significant representation the Applicant advanced with respect to the risk of harm he would suffer if forced to return to Somalia.
Wheelahan J gave attention to that duty in in DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 (DCC18).
DCC18 also concerned a decision by the Minister not to revoke a visa cancellation pursuant to s 501CA(4) of the Migration Act. His Honour summarised the relevant law as binding on him as follows:
36.In Omar at [34]-[41], the Full Court set out a number of guiding legal principles which I shall not reproduce in full, but to which I have had regard. The principles in Omar have been referred to and applied by the Full Court in GBV18 v Minister for Home Affairs [2020] FCAFC 17, and EVK18 v Minister for Home Affairs [2020] FCAFC 49. In particular, the following guidance in Omar at [34] is relevant to the present case –
(h)In determining whether or not there is “another reason” why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the Minister has a degree of “decisional freedom” as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin constitutes “another reason” (see BCR16 at [70]-[73] per Bromberg and Mortimer JJ).
37.If a clearly expressed and significant representation is made such that its consideration is required, then the consideration of it must be meaningful, which requires an active intellectual process with reference to the representation, although each case turns on its own particular facts: Omar at [34(i)], [36(d)-(e)]. See also, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (Allsop CJ, Markovic J and Steward J agreeing). In Omar at [39], the Full Court stated –
[39]Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]–[36] per Perram J).
I respectfully agree with and adopt his Honour’s summary.
On the facts of DCC18, Wheelahan J thereafter concluded that the Minister had fallen into jurisdictional error. The applicant in that case and his representatives had made clear and significant representations that he feared harm if he were to be returned to South Sudan. The Minister had stated that it was unnecessary to determine whether non-refoulement obligations were owed, because any such claims would be capable of being dealt with later if the applicant made an application for a protection visa. However, Wheelahan J was satisfied that the applicant had also made representations of fact that his life would be in danger if returned. Those representations were “independent of his reliance upon international non-refoulement obligations” (at [35]). His Honour observed:
[t]he Minister treated them as being independent of the protection visa context, because at [32] of his statement of reasons, he made separate reference to the applicant’s claims that his life would be in danger, and that he feared being killed due to the ongoing civil war …
Notwithstanding that he had adopted that approach, the Minister had merely “noted” the Applicant’s representations that he would be harmed or killed if returned. Wheelahan J accordingly found that the Minister “did not make any findings of fact, including as to whether the feared harm was likely to eventuate”. Because there had been no active intellectual engagement with the Applicant’s representations, the Minister had fallen into jurisdictional error.
In a recent decision, Hernandez v Minister for Home Affairs [2020] FCA 415 (Hernandez), Charlesworth J referred to the Minister’s duty when determining a s 501CA(4) application to consider any significant and clearly expressed representations that had been advanced. Her Honour did so in the following terms:
16.        As the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said in Minister for Home Affairs v Omar[2019] FCAFC 188; 373 ALR 569, representations made by a non-citizen in response to an invitation given under s 501CA(3) of the Act “play a central role in the relevant statutory regime”. The Court said (at [34(g)]):
…  The Minister’s statutory power to revoke (and therefore ‘undo’) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power.
17 . The Court went on to say (at [36(d)]) that although s 501CA(4) is expressed in terms containing no express duty to “consider” the non-citizen’s representations “it is necessarily implicit in the statutory regime that there is such an obligation”.
18 .       The Minister is obliged to “engage in an active intellectual process with significant and clearly expressed representations” made in support of a revocation request: Omar at [37].
19 .       Whether a particular matter raised in the representations is significant and clearly expressed so as to give rise to that obligation is a question of fact. As Colvin J said in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56 at [68] (in a passage approved by the Court in Omar at [34(i)]):
... the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.
(Emphasis in original).
Applying the principles in Omar (FCAFC) that are binding on me as I take their Honours each to have accurately summarised, I turn to what the Court in respect of the present application can be satisfied were any clearly articulated and substantial or significant representations advanced by or on behalf of the Applicant
I respectfully adopt Charlesworth J’s reasoning in Hernandez that the mere fact that a representation is “concisely stated” and not supported by country information does not necessarily preclude a finding that it was clearly articulated and significant. What will amount to a clearly articulated and significant claim in any particular case must be fact and context dependent. As her Honour reasoned:
25.There was nothing ambiguous about Mr Hernandez’s claimed fear that he was a prime target for mafia groups rendering him at risk of being kidnapped for ransom and murdered. The nature of his claims was that he was at a special risk of grave harm because he had family members in a first world country. He claimed that he was a person exposed to a degree of risk greater than that to which the general population in El Salvador was exposed. That claim may have been concisely stated, but its brevity affected neither its clarity, nor the significance of its subject matter. The claimed fear was a clearly advanced reason that Mr Hernandez had advanced as to why the cancellation decision should be revoked in response to the invitation that had been extended to him under s 501CA(3). The claimed risk of harm required consideration by the Minister in the sense described by Colvin J in Viane and the Full Court in Omar.
26.The circumstance that the claims were not supported by objective country information does not render them insignificant so as to relieve the Minister of the obligation to consider them. The absence of corroborative evidence may legitimately bear on the manner in which such claims are considered and determined, but could not (at least on the facts of this case) justify the issue raised in the claim being ignored.
I am unpersuaded that Mr Hill’s listing of the representations advanced by and on behalf of Mr Ahmed as set out at [57] above covers the totality of the significant representations that the Applicant clearly advanced. It will be recalled that Mr Hill submits that the Minister had the following representations before him:
17.1 Somalia is a volatile and dangerous place;
17.2The Applicant is a member of an ethnic minority (the Gabooye) that does not have political protection or a region in Somalia;
17.3 The Applicant was at risk of falling prey to extremist groups;
17.4The Applicant had possible mental health issues.
In my view, that list does not cover the field. Without suggesting that any of those matters were not required to be considered by the Minister, I am satisfied that the following further clear and significant representations were articulated by the Applicant and on his behalf:
(a)The Applicant would have no money or assets and would be homeless (see at [18]).
(b)The Applicant could speak neither Somali nor Arabic (see at [18]).
(c)That at his age, because he had no family in Somalia, the Applicant would “more likely perish without a trace immediately on arrival” and “he will stand no chance whatsoever in terms of surviving for days let alone months” (see at [20])
(d)The Applicant would be a prime choice recruit for extremist groups such as Al-Shabaab and would be at risk of being kidnapped or radicalised by such a group (see at [18], [19] and [20]).
Having thus identified what I apprehend to have been clear and significant representations advanced on the Applicant’s behalf as to the harm he risked facing if returned to Somalia, it is necessary to examine the Minister’s reasoning with respect to those representations.
Whether a Court will find in this context that the decision-maker Minister failed to discharge his obligation to “consider” those representations turns on the proper interpretation of the Minister’s reasons, observing always the injunction that the reasons of an administrative decision-maker are not to be overzealously scrutinised with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 – 272.
I do not propose to give extended attention to each individual representation. For the purpose of these reasons, it is sufficient that I focus on three directly relevant to Ground 2.
1. Claim of risk by reason of being from “from a minority group called Gabooye in Somalia who has no political protection or region left in Mogadishu”
It will be recalled that Ground 2 alleges that the Minister erred by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with respect to, the Applicant’s representations about the harm he would suffer if he had to return to Somalia. This failure, the Ground asserts, included failing to consider (at all) a representation by his father that the family is “from a minority group called Gabooye in Somalia who has no political protection or region left in Mogadishu.”
Mr Hill accepts that that representation was significant and clearly made (see above at [57]). Further, Mr Hill does not suggest that the Minister’s reasons do refer to that representation.
On the authority of Buadromo however the Minister submits that (a) a finding may be implicit in the decision-maker’s reasons, and (b) the representation was open to be understood as being not a representation as to a risk of harm by reason of the Applicant’s ethnicity, but rather a particular of a broader representation that he would have no family to protect him were he to be returned to Somalia. As to (b) the Minister submits that he considered that broader claim, and that no finding of fact was required because that issue had thereby been subsumed within a claim or issue of greater generality.
An implicit finding?
As to (a), it may be accepted that the Minister was not required to mention each item of evidence before him in reaching his conclusion: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ); Buadromo [48]-[49] (Besanko, Barker and Bromwich JJ). However, that is not the issue in this case. In this case, the Minister was obliged to consider any significant and clearly articulated representation advanced by the Applicant. Subject to his submission that the representation was open to be understood as advancing a more limited proposition than Ground 2 implies, Mr Hill accepts that the relevant representation was made by the Applicant.

Ms Blok however pressed the Court to address those grounds.
Lest I be held in error in respect of my conclusions with respect to Ground 2 I shall do so, albeit perhaps more briefly than the industry of counsel on both sides deserves.
Ground 1(a)
Ground 1(a) provides as follows:
The Minister failed to perform his statutory task by failing to consider, and deferring to a future protection visa application, the Applicant’s representations about Australia’s non-refoulement obligations as “another reason” for revocation.
Particulars
The Minister’s reasons at paragraphs 35-38 disclose that he considered it unnecessary to determine whether non-refoulement obligations were owed to the Applicant because the Applicant could make a valid application for a protection visa (where it was likely that, following Direction 75, the issue of non-refoulement would be considered).
Deferring consideration in identical circumstances of the non-refoulement representations in the purported exercise of the discretion under s 501CA(4) of the Migration Act 1958 (Cth) was held in Omar v Minister for Home Affairs [2019] FCA 279 to constitute a failure by the Assistant Minister to perform his statutory task and a jurisdictional error: see also BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 and Minister for Home Affairs v Omar [2019] FCAFC 188.
Applicant’s Submissions
The Applicant submits that the reasons of the Minister are in this respect on all fours with the reasons found to be erroneous in the Omar (FCA). The Applicant had made representations with respect to non-refoulement obligations. The Minister had considered it to be “unnecessary to determine” whether such obligations were owed, in view of the Applicant’s ability to apply for a protection visa at which time that issue would be addressed pursuant to Direction 75. Following Omar (FCA), the Minister therefore fell into jurisdictional error.
Minister’s Submissions
The Minister acknowledges that Mortimer J’s reasoning in Omar (FCA) supports the Applicant’s submissions with respect to Ground 1. The Minister’s primary position is that the Court should find that Omar (FCA) was wrongly decided, and decline to follow it.
The Minister submits that in any case, the submissions advanced by the Applicant contradict DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) and in particular the reasoning of Robertson J in that decision. DOB18 concerned circumstances where the Administrative Appeals Tribunal had revoked a decision to cancel the applicant’s visa pursuant to s 501CA(4) of the Migration Act. The Minister had then exercised his power to override that decision and cancel the visa under s 501BA. In making that decision, the Minister did not determine whether Australia’s non-refoulement obligations were engaged. The Minister did however consider the hardship that would befall the Applicant if he were removed from Australia. He reasoned as follows:
80.I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the appellant] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.
81. My conclusion in this respect is based on my awareness that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. Furthermore, to reinforce this practice, I have given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501. I am therefore confident that [the appellant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.
82.I have also considered [the appellant’s] claims of harm upon return to [redacted] outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant’s] claims are such as to engage non-refoulement obligations, he would face hardship arising from his stated homosexuality were he to return to [redacted].
The Court dismissed the application. Robertson J relevantly found that:
193.While I accept the appellant’s submission that the role that non-refoulement obligations might play in a protection visa application is very different to the role they might play in a s 501BA determination, I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid protection visa which the applicant is able to make. In particular, it does not disclose jurisdictional error in the present case, in circumstances where the Minister accepted that the appellant would face hardship if returned to Bangladesh – the factual basis said to engage non-refoulement obligations – and took that hardship into account.
Mr Hill submits that analogously, in the present case the Minister did consider the “factual basis” of the Applicant’s submission that Australia’s non-refoulement obligations were engaged. As a result, he did not fall into jurisdictional error.
Mr Hill submits that that approach has been followed in a number of first instance decisions. In that regard, he cites: Ali v Minister for Home Affairs [2019] FCA 1900 (Ali) at [44] (Steward J); AIJ19 v Minister for Immigration [2019] FCA 2205 at [52]-[53] (Perry J); and FBW18 v Minister for Home Affairs [2019] FCA 1878 (FBW18) at [89] (Yates J).
Mr Hill submits that the fact that DOB18 concerned a decision under s 501BA of the Migration Act, rather than s 501CA(4), does not mean that it is relevantly distinguishable from the present case. In that regard, he relies on Ali at [32], [36] and FBW18 at [81]. The Minister acknowledges that the decision of Moshinsky J in DGI19 v Minister for Home Affairs [2019] FCA 1867 (DGI19) at [62] and [66]-[68] may suggest otherwise. However, Mr Hill submits that it should not be followed. The relevant paragraphs of DGI19 provide as follows:
62.In DOB18, in the context of a decision under s 501BA, a similar argument to that presented by the applicant in relation to this ground was rejected: DOB18 at [63]-[65] per Logan J, at [193] per Robertson J. In the course of considering this ground, Robertson J referred to BCR16 and Omar (first instance). Robertson J stated that both cases concerned a decision under s 501CA(4) “where different considerations may arise stemming from the place of representations by the visa applicant under that section, and that the discretion to revoke arises, on the common alternative where passing the character test is not in issue, where the Minister is satisfied that there is ‘another reason why the original decision should be revoked’”: DOB18 at [190]. In light of the distinction between the powers in ss 501BA and 501CA identified by Robertson J, I do not consider this aspect of the reasoning in DOB18 to stand in the way of acceptance of the applicant’s contentions on this ground.
…
66.In my view, on the basis of the reasons of the majority in BCR16 at [48]-[49], as applied in Omar (first instance), the applicant’s ground is made out. For the reasons given by the majority in BCR16, there is a qualitative difference in the role that non-refoulement obligations may play in the context of the exercise of the discretionary power in s 501CA and in the context of an application for a protection visa under s 65. It follows that, if and to the extent that the Minister proceeded on the basis that non-refoulement obligations would be considered in the same way, he proceeded on the basis of a misunderstanding as to the operation of the Migration Act. In my view, in the present case, the Minister did proceed on the basis of such a misunderstanding. It is implicit in his reasons for not considering non-refoulement obligations (see [30] above) that he understood that such obligations would be considered in the same way in the context of an application for a protection visa. In this respect the Minister’s statement of reasons is materially the same as the statement of reasons in Omar (first instance)
67.I note the Minister’s submission that the circumstances of Omar (first instance) can be distinguished from the circumstances of the present case. The Minister submits that in Omar (first instance), Mr Omar’s representatives made detailed submissions that expressly represented that Mr Omar was owed non-refoulement obligations. The Minister submits that in the present case the applicant did not make any serious and substantive representation that he was owed non-refoulement obligations. I do not accept this submission. The applicant’s representatives expressly referred to Australia’s non-refoulement obligations in submissions to the Department: see [24] and [26] above.
68.The misunderstanding as to the operation of the Migration Act was material and constitutes a jurisdictional error because there is the possibility that if the Minister had not made the error he would have considered the representations relating to non-refoulement obligations and come to a different conclusion.
Mr Hill further submits that in any case, if the Minister did err in failing to consider whether Australia’s non-refoulement obligations were engaged then such an error was not material. He relies in that regard on the following passages of AXT19 v Minister for Home Affairs [2020] FCAFC 32, which also concerned a decision by the Minister not to revoke a visa cancellation pursuant to s 501CA(4) for similar reasons:
54. It is true that, in the second, third and fourth sentences of [118], the Tribunal noted that it was open to the appellant to apply for a protection visa and, if he did so, these matters would be assessed in a fulsome manner, and stated that this “limits the extent to which the non-refoulement obligations in this matter favour revocation”. However, these statements do not detract from the proposition that the Tribunal meaningfully engaged with the relevant representations and the evidence presented in connection with those representations. Further and in any event, any error by the Tribunal in this regard was not material, in the sense that it could not realistically have affected the outcome. The Tribunal had already concluded in the first sentence of [118] that, on the balance of the evidence, this factor (non-refoulement obligations) weighed to some extent, but not heavily, in the applicant’s favour. The Tribunal’s statements in the second, third and fourth sentences of [118] were merely further reasons for reaching that view.
…
61.The appellant’s submission is that the Tribunal, in the fourth sentence of [118], made a comparable error to that identified in Omar (first instance). In our view, for the reasons given at [54] above, if the Tribunal made any such error, it was not material in the circumstances of this case. Accordingly, it is unnecessary to determine whether Omar (first instance) at [44]-[45] is correct.
Applicant’s Reply Submissions
In Ms Blok’s reply submissions, she clarified that the Applicant draws a distinction between two separate strands of argument. The first strand is that the role played by Australia’s non-refoulement obligations is qualitatively different where a decision-maker exercises their discretion under s 501CA(4) of the Migration Act, as opposed to s 65. Ms Blok describes this as the “different task” contention. That is the ground now advanced as Ground 1(a)
The second strand is that Australia’s non-refoulement obligations have a materially different content in those two contexts. That is because for the purposes of s 65, the content of those obligations has been subject to statutory modification. Ms Blok describes this as the “different content” contention. As noted above, the Applicant was granted leave amend his application at the hearing. The second strand is now advanced as Ground 1(b).
Importantly, the Applicant submits that neither of these two contentions have been “effectively cured by the promulgation and application of Direction 75”.
Turning to the Applicant’s submissions with respect to the “different task” contention, the Applicant submits that the reasoning of Mortimer J in Omar (FCA) built upon the reasoning of the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCA 96; 248 FCR 456 (BCR16) as below:
48.We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and in the exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing quite a different role in the exercise of the statutory discretion.
49.In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.
Ms Blok submits that in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 63; 260 FCR 523 the Full Court rejected a submission that BCR16 was plainly wrong and should not be followed. The Applicant observes that Mortimer J proceeded on the basis that she was bound by BCR16 (at [74]).
The Applicant also relies on the decision of Moshinsky J in DGI19. In that case, his Honour dealt with a submission that Omar (FCA) should not be followed in the following terms.
I am, however, bound by the decision unless I consider it to be plainly wrong, and I do not consider that to be the case. It reflects the reasoning of the majority in BCR16, in particular the passage at [48]-[49] of that judgment.
Ms Blok’s submissions then refer to various decisions as might point against acceptance of the “different task” contention. The Applicant accepts that some of those decisions appear to disapprove of Omar (FCA). However, she submits that:
25.… Direction 75 did not cure all of the issues raised by the “first misunderstanding” in BCR16. Specifically, it did not cure the matter raised at [48]-[49] of BCR16, being the qualitatively different exercise of power under s 65 of the Act (cf s 501CA(4)). Ultimately, BCR16 remains authoritative in respect of that aspect of the “first misunderstanding” (the qualitatively different exercise of power), even while it may be distinguished in respect of other aspects which were cured by the promulgation, and application, of Direction 75. BCR16 bound Mortimer J in Omar (first instance), and Moshinsky J in DGI19. It also binds this Court.
26.Omar (first instance) is not an “outlier”, nor is it plainly wrong: it dealt with a different aspect of BCR16 to the decisions considered by Anderson J in GBV18 (first instance). It was applied in DGI19. It should be applied here.
(Footnotes omitted).
As to the reasoning of Robertson J in DOB18, which the Minister relies upon as having impliedly overruled Omar (FCA), the Applicant submits that that case is distinguishable because:
(1)No representations were made in DOB18 (FC) canvassing non-refoulement that were not taken into account because they would be considered as part of a valid protection visa claim. This is because no such representations were made at all …
(2)The exercise of the power in s 501BA does not necessitate consideration of whether Australia owed non-refoulement, or at least where such representations are not made. Notably, there is no obligation to invite representations (cf s 501CA(4)) about the revocation nor any other procedural fairness requirements. Having said that, as Robertson J observed at [189], if representations had been made in that case (including about non-refoulement), the Minister would not have been authorised to decline to deal with them. Seen in this light, the power as between ss 501CA(4) and 501BA is fundamentally different.
(3)The harm faced by the appellant in DOB18 (FC) (on account of his homosexuality) was conterminous with both Convention-related harm, and the “significant harm” referred to in s 36(2)(aa) as defined in s 36(2A) of the Act. This may be contrasted with representations made in this case which relate to both non-refoulement obligations (representations about being part of the Gabooye group in Somali) and harm outside of those obligations (for example, being a youthful target for criminal and extremist groups).
(Footnotes omitted).
Regarding the decisions which the Minister submits have since followed the approach of Robertson J in DOB18, the Applicant submits that they are also distinguishable on various bases.
Finally, with respect to AXT16 the Applicant submits that the Full Court did not hold that:
any error of the kind identified in Omar (first instance) would not be material on the basis that “the underlying factual basis of claims to fear harm were properly considered in that case”. Rather, the Full Court considered that the Tribunal had meaningfully engaged with representations made about Australia’s non-refoulement obligations and those relating to the risk of harm to the appellant if returned to Myanmar. Thus both considerations were properly addressed.
(Footnote omitted).
Consideration
The case law with which I am obliged to come to grips under Ground 1(a) is not without challenges. Mr Hill invites the Court to find that Mortimer J’s reasoning in Omar (FCA) is either plainly wrong, or to conclude that it was effectively overruled in DOB18. However, Mr Hill faces the difficulty that after detailed analysis Moshinsky J in DGI19 distinguished DOB18 and concluded that Omar (FCA) had been correctly decided. As against that circumstance, Mr Hill cites the decision of Steward J in Ali to the opposite effect. Mr Hill submits that those decisions are diametrically opposed. In DGI19, Moshinsky held that DOB18 was distinguishable and that Omar (FCA) should therefore be followed. In Ali, Stewart J held that DOB18 was not distinguishable and thus Omar (FCA) should not be followed.

For my own part, on the facts of this review I do not understand it to be necessary to distinguish DOB18 in order to uphold Ground 1(a). That is because I do not understand Robertson J’s reasoning in DOB18 at [191] to have proceeded on the basis that Omar (FCA) was decided in error. Instead, I am of the opinion that his Honour’s reasoning is to be viewed through the lens of materiality as Ms Blok submitted (see above at [139], at (3)). I take his Honour to have concluded that an error made by the Minister in deferring the question of Australia’s non-refoulement obligations to a future protection visa application will not be material if (but only if) every aspect of a representation advanced as a being relevant to those obligations has been fully taken into account, the issue of non-refoulement aside.
In any event however, if that reasoning does need to be distinguished then I am satisfied that the weight of authority remains as Moshinsky J concluded and for the reasons he gave.
I note that in Hernandez Charlesworth J also accepted the ongoing validity of the “different task” analysis. Her Honour held (at [61]-[62]) that there was a “material difference” between:
a case where non-refoulement obligations are identified in the course of exercising the power conferred by s 501CA(4) of the Act and a case where such obligations are identified in the course of exercising the power conferred by s 65 on an application for a protection visa.
Her Honour expanded on that conclusion as follows:
63. Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing “another reason” why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.
64. On the other hand, if the decision-maker responsible for assessing Mr Hernandez’s visa application were to make findings of fact giving rise to non-refoulement obligations at international law, the existence of those obligations would be irrelevant to the exercise of the mandatory power conferred by s 65. The decision-maker would be compelled under s 65(1)(b) to refuse to grant the visa if not satisfied that the requirements of s 65(1)(a) were met.
65. The course of decision making under Direction 75 exposed Mr Hernandez to the probable consequence that he may be refused a protection visa notwithstanding that he was a person to whom Australia owed non-refoulement obligations under international law …
Her Honour held that in failing to give active intellectual attention to the issue of whether non-refoulement obligations were owed, the Minister had therefore fallen into jurisdictional error.
Having regard to all of the above, in my opinion, although I accept that the law cannot confidently be stated as settled, Omar (FCA) remains good law. Ground 1(a) must therefore be upheld subject to materiality.
Mr Hill conceded the difficulty of establishing want of materiality, assuming the Court was against him with respect to Ground 2. Given my conclusions in those regards, I reject that a different outcome could not have prevailed had the Minister undertaken his decision making conformably with Omar (FCA). Ground 1(a) must therefore be upheld.
Ground 1(b)
Ground 1(b) raises what is described in the Applicant’s reply submissions as the “different content” contention. It is stated as follows:
The Minister misunderstood the Migration Act 1958 (Cth) or its operation by incorrectly assuming that whether Australia owed the Applicant non-refoulement obligations would be considered in the event he made an application for a protection visa. This is incorrect because the criteria for a protection visa under s 36(2) of the Migration Act differ in material ways, and/or do not reflect Australia’s international law non-refoulement obligations. As such, the Minister conflated Australia’s non-refoulement obligations under international law with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa [under] s 36 of [the] Migration Act.
Particulars
The Minister’s reasons at paragraph 37 which disclose that he considered it unnecessary to determine whether non-refoulement obligations were owed to the Applicant for the purposes of the present decision because the Applicant could make a valid application for a protection visa, and in the “(highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application” (emphasis added).
The Minister’s use of the term “non-refoulement obligations” in paragraph 38 of his reasons, and the phrase “outside of non-refoulement and the international obligations framework” in paragraph 39 of his reasons.
Applicant’s Submissions
With respect to this ground, the Applicant relies most heavily on a decision of the Full Court in respect of a proceeding in which a similar ground was articulated: Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (Ibrahim). That case also concerned a decision by the Minister to defer consideration of non-refoulement obligations to a prospective future visa application, although in respect of a decision under s 501BA of the Migration Act rather than s 501CA(4). In Ibrahim the Court reasoned:
111.In our view, when the Assistant Minster’s reasons are read fairly and with regard to the surrounding context, it is apparent that he used the term “non-refoulement obligations” in [97] of his reasons as a form of shorthand reference to both non-refoulement obligations arising under international law and to protection obligations arising under s 36 of the Act. His statement that “the existence or otherwise of non-refoulement obligations would be considered in the course of processing the [Protection visa] application” is a strong indication of this.
112.For these reasons, we consider that the Assistant Minister did proceed on the misapprehension for which the appellant contends, namely, that both non-refoulement obligations under the Refugees Convention as well as protection obligations under s 36(2)(a) would necessarily be considered in the context of an application by the appellant for a Protection visa.
113.The Assistant Minister’s belief involved misapprehension of the effect of the Act because, on an application for a Protection visa, it is only the criteria in s 36 which are to be considered. Section 65 has the effect that a Protection visa is to be granted if the Minister is satisfied of those criteria and refused if they are not. The international relocation principle in relation to the existence or otherwise of non-refoulement obligations cannot form part of that consideration, at least in the application of s 36(2)(a).
The Applicant submits that the Minister made the same error in the present case. The Applicant further submits that this error was material, having regard to factors including:
(a)significant differences in how the possibility of relocation to avoid harm might be dealt with under s 36(2)(a) and under international law (citing Ibrahim); and
(b)significant differences in how non-refoulement obligations might be addressed in respect of applicants who commit particularly serious crimes (citing Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216).
The Applicant notes that other significant distinctions have been explored in the case law: see DGI19 at [84].
Minister’s Submissions
The Minister makes a formal submission that the aspects of Ibrahim relied upon by the Applicant were wrongly decided. However, the Minister accepts that this Court is bound by that decision. Mr Hill also accepts that the Minister’s reasons at paragraph [37] contain what was found to be error in Ibrahim.
Mr Hill submitted however that that error had no adverse consequences for the Applicant, and was not material.
Mr Hill correctly submitted that the Ibrahim error turns on the differences between international obligations and statutory criteria for protection visas:
One is that the … statutory refugee criteria have removed the internal relocation principle and you have to show effectively that … if the Minister can find that there’s any part of the country where you wouldn’t face persecution, you’re not a refugee regardless of whether it’s reasonable for you to relocate in that area, which is an aspect of the international law. So that’s one aspect – one difference. If relocation is an issue, then there’s a difference between the statutory criteria and international law. The second difference is, in complementary protection, in that with those terms cruel and inhuman treatment or punishment and degrading treatment or punishment, there’s a statutory requirement for intentionality, which doesn’t exist in international law.
Mr Hill further submitted that:
….to establish materiality, it’s necessary for the applicant to show how the difference between statutory criteria and international law criteria could have affected the Minister’s decision. And my submission is those differences, whatever they are, could not have affected the findings actually made because the Minister’s findings engaged fully with the factual harms feared and in no way hived off part of the claims on the basis of things analogous to internal relocation or requiring the intention for something to amount to significant harm.
Mr Hill pointed out that nowhere in the Minister’s reasons did the Minister draw a distinction between the level of safety in one part of Somalia as opposed to another. For that reason, he submitted that the asserted legal error could make no difference to the outcome: it was immaterial.
Similarly, Mr Hill submitted that there could have been no material alteration in consequence of the second point of difference given that the Minister drew no distinction between a risk of the Applicant being intentionally subjected to cruel or inhuman treatment by Somalia’s state authorities as opposed to the risk of his being exposed, without such intent, to such treatment.
Thus Mr Hill submitted that, assuming the Court was to find the Minister had been in error, the Court would be entitled to conclude with some certainty that the error did not implicate the reasons given by the Minister.
Consideration
I accept the Minister’s submissions as to materiality. In doing so, I would not want to be understood to assent to the proposition that there are only two differences between Australia’s international obligations not to refoule a person and the statutory criteria for a protection visa: including those applying to complementary protection. Having regard to the scope of instruments such as the Universal Declaration of Human Rights, the universe of those differences may be larger. However, the Applicant does not articulate any distinctions other than those which Mr Hill addressed in his submissions. I accept against that circumstance that had the Minister applied a correct understanding of the law to the findings that he made, the outcome could not have been relevantly different.
I am satisfied that the error which the Minister made was not a jurisdictional error.
For that reason, I would dismiss Ground 1(b).
Ground 3
Ground 3 is as follows:
The Minister’s conclusion at paragraph 124 of his reasons that the Applicant represents an “unacceptable risk of harm” to the Australian community and that the protection of the Australian community outweighed any other consideration, including the claims regarding international refoulement obligations, was legally unreasonable. In circumstances where the Minister expressly did not consider the non-refoulement claims and failed to make findings about the representations of harm (cf hardship) the Applicant faced should he be returned to Somalia, this conclusion lacked a rational and probative basis.
Applicant’s Submissions
The Applicant relies upon the principles set out by Charlesworth and O’Callaghan JJ in Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 and by Mortimer J in Assistant Minister for Immigration v Splendido [2019] FCAFC 132.
The Applicant submits as follows:
55.Applied here: in making the ultimate finding that the Applicant posed an unacceptable risk to Australia, the Minister said that the protection of the Australian community outweighed all other considerations” (at paragraph 124). This was expressly said to include the Applicant’s “claims regarding non refoulement obligations”, and implicitly included the claims about harm should the Applicant be returned (outside of the non-refoulement obligations) (because the Minister said he had included the “other considerations as described above” which included that claim). Further, before concluding he was not satisfied there was “another reason” why the cancellation decision should be revoked, the Minister said he had given full consideration to all of these matters (which implicitly included those just mentioned) (at paragraph 125).
56.In circumstances where the Minister expressly did not consider whether the non-refoulement obligations were engaged, and no meaningful consideration was given to, nor findings made, about the representations of harm made by or on behalf of the Applicant should he be returned to Somalia (outside of the non-refoulement obligations), there is no rational and probative basis to the:
(1)Minister’s finding that the “protection of the Australian community” outweighed all of the other considerations; and
(2)Minister’s lack of satisfaction that there was “another reason” why the visa cancellation decision should be revoked.
As such, these conclusions lacked a “sufficiently rational justification”; or “an intelligible justification” (Stretton (Allsop CJ)).
(Footnotes omitted).
Minister’s Submissions
The Minister notes that – as the Applicant acknowledges – Ground 3 is dependent on the first two grounds:
if there is no error in not considering international obligations as such (see ground 1), then it cannot be legally unreasonable to fail to consider those obligations, as long as the underlying factual basis of the harm is considered. And if the Minister has given meaningful consideration to the representations to fear harm (see ground 2), then this premise of the legal unreasonableness argument is not made out.
The Minister accepts that if his arguments on those accounts are rejected, then Ground 3 must be upheld.
Consideration
Having upheld Grounds 1(a) and 2 it follows, as the Minister concedes, that I should also uphold Ground 3.
ORDERS AND DISPOSITION
The Applicant’s application for judicial review is allowed on Grounds 1(a), 2 and 3. Accordingly, I will make orders that the Minister’s decision not to revoke the cancellation of the Applicant’s visa be set aside, and that the Minister determine the application for revocation of the cancellation decision pursuant to s 501CA of the Migration Act according to law.
The Minister is to pay the Applicant’s costs, as agreed or assessed.

I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.
Associate:
Dated: 29 April 2020

File number:	VID 730 of 2019
Judge:	KERR J
Date of judgment:	29 April 2020
Catchwords:	MIGRATION – visa cancellation on character grounds – application for review of decision by Minister not to revoke visa cancellation pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether failure to give meaningful consideration to substantial and clearly articulated representations concerning risk of harm if returned to Somalia, including risk that applicant would perish soon after arrival – Minister “noted” and “had regard” to various representations – Minister accepted that applicant would suffer “hardship” if returned – consideration of Minister for Home Affairs v Omar [2019] FCAFC 188 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 – relevance of failure to supply corroborative country information – jurisdictional error established – application upheld MIGRATION – whether Minister erred in failing to consider applicant’s representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because assessing those obligations is a qualitatively different task under ss 501CA and 65 of the Migration Act 1958 (Cth) – consideration of Omar v Minister for Home Affairs [2019] FCA 279, DOB18 v Minister for Home Affairs [2019] FCAFC 63 and related authorities – case law unsettled – DGI19 v Minister for Home Affairs [2019] FCA 1867 not plainly wrong in concluding Omar v Minister for Home Affairs [2019] FCA 279 remains good law – jurisdictional error established MIGRATION – whether Minister erred in failing to consider applicant’s representations regarding non-refoulement obligations on the assumption that they would be addressed in relation to a future protection visa application because those obligations have a materially different content under ss 501CA and 65 of the Migration Act 1958 (Cth) – application of Ibrahim v Minister for Home Affairs [2019] FCAFC 89 – any error not material as any differences between international obligations and statutory criteria not relevant to Minister’s decision – jurisdictional error not established MIGRATION – whether Minister’s conclusion that risk of harm to Australian community outweighed other considerations legally unreasonable – jurisdictional error established in view of other errors made in reasoning underpinning that conclusion
Legislation:	Migration Act 1958 (Cth) ss 36, 501(3A), 501(7), 501(12), 501BA, 501CA(4)
Cases cited:	AIJ19 v Minister for Immigration [2019] FCA 2205 Ali v Minister for Home Affairs [2019] FCA 1900 Assistant Minister for Immigration v Splendido [2019] FCAFC 132 AXT19 v Minister for Home Affairs [2020] FCAFC 32 DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 DGI19 v Minister for Home Affairs [2019] FCA 1867 DOB18 v Minister for Home Affairs [2019] FCAFC 63 EVK18 v Minister for Home Affairs [2020] FCAFC 49 Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 FBW18 v Minister for Home Affairs [2019] FCA 1878 FCFYv Minister for Home Affairs (No 2) [2019] FCA 1990 Hands v Minister for Immigration [2018] FCAFC 225; 267 FCR 628 Hernandez v Minister for Home Affairs [2020] FCA 415 Ibrahim v Minister for Home Affairs [2019] FCAFC 89 Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289 Minster for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 Omar v Minister for Home Affairs [2019] FCA 279 Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
Date of hearing:	17 April 2020
Date of last submissions:	9 April 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	171
Counsel for the Applicant:	Ms N Blok
Solicitor for the Applicant:	Kerdo Legal
Counsel for the Respondent:	Mr G Hill
Solicitor for the Respondent:	Australian Government Solicitor