MIGRATION – appeal from the Federal Court of Australia dismissing an application for judicial review of a decision made by the Assistant Minister – jurisdictional fact error – where the Assistant Minister did not revoke the mandatory cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where the appellant made representations to the Assistant Minister upon the Assistant Minister’s invitation under s 501CA(3)(b) – where the appellant failed the character test – where the appellant raised Australia’s non-refoulement obligations in respect of him as “another reason” why the decision to cancel his visa should be revoked under s 501CA(4)(b)(ii) – where the Assistant Minister considered it was “unnecessary” to determine whether non-refoulement obligations were owed in respect of the appellant on the basis those obligations would be fully considered if the appellant applied for a protection visa – whether the primary judge erred in not finding that the Assistant Minister erred in deferring consideration of Australia’s non-refoulement obligations in respect of the appellant – whether the primary judge erred in not finding that the Assistant Minister erred in assuming Australia’s non-refoulement obligations would be considered in the same way in any subsequent protection visa application as under s 501CA(4) – whether the primary judge erred in not finding that the Assistant Minister erred in assuming Australia’s non-refoulement obligations would be fully considered on any subsequent protection visa application – appeal allowed
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ali v Minister for Home Affairs [2020] FCAFC 109
Case
[2020] FCAFC 109
Decision Date
CaseChat Overview and Summary
In Ali v Minister for Home Affairs, the appellant, an Ethiopian national residing in Australia on a partner visa, sought judicial review of a decision by the Assistant Minister for Immigration not to revoke the cancellation of his visa. The appellant, who had been sentenced to imprisonment for a serious crime, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth). He made representations to the Assistant Minister seeking revocation of the cancellation decision, citing Australia's non-refoulement obligations as a reason. The Assistant Minister did not consider the non-refoulement obligations, reasoning that they would be fully assessed if the appellant applied for a protection visa.
The legal issues in this case centred on whether the Assistant Minister erred in deferring consideration of the appellant's non-refoulement claims, and whether he wrongly assumed these obligations would be considered in the same manner in any future protection visa application. The court needed to determine if the primary judge had erred in not finding that the Assistant Minister had made a jurisdictional error by not properly considering the appellant's claims.
The court found that the Assistant Minister did indeed make a jurisdictional error. By deferring the consideration of the appellant's non-refoulement claims without adequately assessing them, the Assistant Minister failed to properly perform his statutory function. The court held that the Assistant Minister's decision was flawed as it did not properly consider the appellant's claims regarding Australia's international obligations. The appeal was allowed, the primary judge's orders were set aside, and the Assistant Minister's decision was quashed. The Assistant Minister was directed to perform his function in accordance with the law, and the appellant was awarded costs.
Orders
Orders of the court
1. The appellant have leave to amend the notice of appeal in the form of the document filed 15 May 2020.
2. The appeal be allowed.
3. The orders of the primary judge made on 18 November 2019, by which the appellant’s application was dismissed with costs, be set aside, and in lieu thereof it be ordered that:
(a) The application be allowed.
(b) A writ of certiorari issue quashing the respondent’s decision dated 28 February 2018, by which he purported to decide under s 501CA of the Migration Act 1958 (Cth) (‘the Act’) to not revoke the original decision to cancel the appellant’s visa, made on 20 June 2016 under s 501(3A) of the Act (‘the visa cancellation decision’).
(c) A writ of mandamus issue directed to the respondent requiring him to perform his function under s 501CA(4) of the Act according to law.
(d) The respondent pay the appellant’s costs of the proceeding as agreed or assessed.
4. The respondent pay the appellant’s costs of this appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
As a result of the serious offence committed by the appellant, the Minister was required to cancel his visa. In those circumstances, the Parliament has provided a process by which the appellant can seek to have that cancellation decision revoked. Part of that process requires the Minister (or in this case, the Assistant Minister) to properly consider the grounds raised by the appellant in support of his claim that the cancellation decision should be revoked. If, as happened in this case, the Assistant Minister fails in that task, he will not have performed his function as required by the Parliament. By setting aside the Assistant Minister’s decision, this Court does not decide whether there is or is not a reason for revoking the cancellation decision. That is solely a matter for the Assistant Minister. The Court’s function is to ensure that the Assistant Minister has complied with Parliament’s prescriptions as to the circumstances in which power is or is not to be exercised.Background There is no need to set out at any length the background facts surrounding this appeal. They have been assayed by the learned primary judge with his Honour’s customary lucidity and precision. It suffices to observe that the appellant is an Ethiopian citizen who resided in Australia pursuant to a partner visa. He committed a serious crime for which he was sentenced to 16 months imprisonment. The Minister cancelled the appellant’s partner visa on “character” grounds as is mandated by s 501(3A) of the Act. It is uncontentious that the appellant failed the character test under s 501 once he had been sentenced to a term of imprisonment of 12 months or more (see ss 501(6)(a) and 501(7)(c)). The cancellation of the appellant’s visa triggered the operation of the scheme under s 501CA of the Act. In accordance with his obligation under s 501CA(3)(b), the Minister invited the appellant to make representations to him for the purpose of s 501CA(4). The appellant responded by providing substantial written representations which were more or less structured in accordance with the matters specified in Direction 65. That direction had been issued by the Minister under s 499 and it outlined the issues which would be considered for the purposes of s 501CA(4). As is discussed in more detail below, the appellant claimed in his representations that he feared persecution and harm if returned to Ethiopia and he detailed the difficult socio-political circumstances in that country. Importantly, one of the grounds which he advanced as to why the cancellation decision should be revoked was that if he was returned to Ethiopia, Australia would be in breach of its international non-refoulement obligations. The Assistant Minister’s decision Given the nature of the grounds of appeal there is no need to set out the comprehensive reasons provided by the Assistant Minister for not being satisfied of the matters in s 501CA(4)(b)(i) and (ii). For present purposes, it suffices to set out only the following:International non-refoulement obligations 34.As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face serious harm amounting to persecution if forced to return to Ethiopia on the basis of his Oromo ethnicity. Country information provided indicates that being of Oromo ethnicity in Ethiopia means that an individual is subjected to various forms of harm and discrimination in many aspects of their lives. [The applicant] fears that the ongoing targeting of Oromo people, and his community membership and involvement in Oromo organisations in Australia, mean that he would be targeted and subjected to persecution, serious harm and discrimination in Ethiopia if he is forced to return.35.I consider that it is 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 which case the existence or otherwise of nonrefoulement obligations would be fully considered in the course of processing the application.36.A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, 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 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 referring the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.37.I have also considered [the applicant’s] claims of harm upon return to Ethiopia 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, he would face hardship arising from his Oromo ethnicity were he to return to Ethiopia.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The cancellation of the appellant’s visa triggered the operation of the scheme under s 501CA of the Act. In accordance with his obligation under s 501CA(3)(b), the Minister invited the appellant to make representations to him for the purpose of s 501CA(4). The appellant responded by providing substantial written representations which were more or less structured in accordance with the matters specified in Direction 65. That direction had been issued by the Minister under s 499 and it outlined the issues which would be considered for the purposes of s 501CA(4). As is discussed in more detail below, the appellant claimed in his representations that he feared persecution and harm if returned to Ethiopia and he detailed the difficult socio-political circumstances in that country. Importantly, one of the grounds which he advanced as to why the cancellation decision should be revoked was that if he was returned to Ethiopia, Australia would be in breach of its international non-refoulement obligations. The Assistant Minister’s decision Given the nature of the grounds of appeal there is no need to set out the comprehensive reasons provided by the Assistant Minister for not being satisfied of the matters in s 501CA(4)(b)(i) and (ii). For present purposes, it suffices to set out only the following:International non-refoulement obligations 34.As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face serious harm amounting to persecution if forced to return to Ethiopia on the basis of his Oromo ethnicity. Country information provided indicates that being of Oromo ethnicity in Ethiopia means that an individual is subjected to various forms of harm and discrimination in many aspects of their lives. [The applicant] fears that the ongoing targeting of Oromo people, and his community membership and involvement in Oromo organisations in Australia, mean that he would be targeted and subjected to persecution, serious harm and discrimination in Ethiopia if he is forced to return.35.I consider that it is 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 which case the existence or otherwise of nonrefoulement obligations would be fully considered in the course of processing the application.36.A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Furthermore, 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 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 referring the application for consideration under s501. I am therefore confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa.37.I have also considered [the applicant’s] claims of harm upon return to Ethiopia 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, he would face hardship arising from his Oromo ethnicity were he to return to Ethiopia.
Ratio Decidendi
Legal Principle Established
Putting aside for present purposes the purported decision not to revoke, the substance of this case is whether the Assistant Minister’s administrative function of forming a state of satisfaction as to the existence of “another reason” why the cancellation decision should be revoked, was properly fulfilled.Structure and operation of s 501CA By the structure of s 501CA(4) the Parliament has granted to the Minister a discretion to revoke the cancellation decision (in the chapeau to subs (4)), upon the satisfaction of the matters in subs (a) and subs (b). Those matters are “jurisdictional facts”, which is an expression explained by the High Court in Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43]:Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker. The jurisdictional fact in subs (4)(a) is something which might be objectively ascertained (an objective jurisdictional fact). In this case the Minister made the observation that the appellant had made representations about the revocation of the original decision. That was not something of which he was required to be satisfied. It was merely an event which needed to occur and its existence or otherwise would always be open to full merits review. The matters in subs (4)(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister was satisfied that either existed. By his reasons the Assistant Minister recorded that he was not satisfied that the appellant passed the character test and, nor was he satisfied that there was “another reason why the original decision should be revoked”. The consequence was that the power in the chapeau, which was conditioned on the satisfaction of the jurisdictional facts in subs (a) and (b), was not enlivened. The shielding of jurisdictional facts from curial review by interposing a subjective deliberation on a matter is a long established legislative drafting technique: The Council of the Municipality of Bankstown v Fripp (1919) 26 CLR 385 at 403, acknowledged by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 651 [130], and repeated by his Honour with McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at 1175 [54]. Although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be “reviewed” are limited. An early identification of those grounds was undertaken by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs) at 360. Those grounds have been added to and refined over the years: MacCormick v Federal Commissioner of Taxation (1945) 71 CLR 283; Buck v Bavone (1976) 135 CLR 110 at 118–119 per Gibbs J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS); EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681. Despite that elaboration in the later cases, the principles on which subjective jurisdictional facts may be reviewed are nevertheless generally referred to as “Avon Downs principles”. That being said, where the state of mind on which the operation or exercise of a provision or power is conditioned is vitiated by an Avon Downs error, any subsequent purported exercise of power will necessarily be affected by jurisdictional error: S20/2002 at 1176 [59].