Azr20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 89
•16 February 2024
FEDERAL COURT OF AUSTRALIA
AZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 89
Review of: Decision of Administrative Appeals Tribunal File number(s): VID 500 of 2022 Judgment of: WHEELAHAN J Date of judgment: 16 February 2024 Catchwords: MIGRATION — application for judicial review of a decision of the Administrative Appeals Tribunal under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s visa – where the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) because he did not pass the character test – where a delegate of the Minister determined not to revoke the cancellation under s 501CA(4) – where the applicant sought merits review of the delegate’s non-revocation decision – where the Tribunal’s first decision to affirm the non-revocation decision was set aside by consent – where, on remitter, a differently constituted Tribunal affirmed the non-revocation decision – whether the Tribunal’s second decision was affected by jurisdictional error – whether the Tribunal misapprehended the nature and extent of the constraints on its jurisdiction – the Tribunal correctly comprehended the range of options open to it for considering international non-refoulement obligations – the Tribunal’s statement that it “cannot” engage with those obligations referred to practical, not legal, constraints – whether the Tribunal constructively failed to exercise its jurisdiction by failing to read, identify, understand, and evaluate representations made by the applicant – the Tribunal was not obliged to consider each particularised element of the broader representation – the Tribunal did engage with the broader representation as a whole – whether the Tribunal constructively failed to exercise its jurisdiction by electing not to defer assessment of the applicant’s claims to engage Australia’s non-refoulement obligations and then failing to assess those claims according to law – it was open to the Tribunal not to consider the non-refoulement obligations as if determining an application for a protection visa – no jurisdictional error established – application dismissed with costs.
PRACTICE AND PROCEDURE — non-publication and suppression orders pursuant to s 37AF and ss 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) – s 91X of the Migration Act was not engaged – revealing the identity of the applicant would undermine the legislative objects of the Migration Act and the Sex Offenders Registration Act 2004 (Vic) – continued use of a pseudonym is necessary to prevent prejudice to the proper administration of justice, and to protect the applicant’s safety – pseudonym order made.
Legislation: Administrative Appeals Tribunal Act 1977 (Cth) s 2A
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)
Migration Act 1958 (Cth) ss 35A, 36, 65, 91X 499(1), 500(1)(ba), 500(6L), 501, 501(3A), 501(6)(a), 501CA, 501CA(3)(b), 501CA(4), 501K
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Sex Offenders Registration Act 2004 (Vic)
Direction No 90, Migration Act 1958 (Cth), made 8 March 2021
Cases cited: AB v Chief Commissioner of Police [2020] FCA 14
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139
Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; 97 FCR 387
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 234
JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239
Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326
Khamisi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2748
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
MSB v Chief Commissioner of Police [2018] VSCA 345; 57 VR 360
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506
Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173
Somba v Minister for Home Affairs [2019] FCAFC 150; 269 FCR 517
SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 516
TNVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 726
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 97 Date of last submission/s: 2 August 2023 Date of hearing: 28 July 2023 Counsel for the Applicant: Mr A White Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms F Batten Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 500 of 2022 BETWEEN: AZR20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
WHEELAHAN J
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the applicant continue to be referred to by the pseudonym “AZR20” for the purposes of this proceeding until further order.
2.The applicant’s application for judicial review be dismissed.
3.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
The applicant is a citizen of Iraq. He arrived in Australia on 7 February 2013 as the holder of a Class XB Subclass 200 Refugee Visa. It was accepted by the parties that this visa was not a protection visa for the purposes of s 35A of the Migration Act 1958 (Cth), and that it remains open to the applicant to apply for a protection visa.
On 27 April 2018, the applicant was convicted of one charge of using a carriage service to procure a person under 16 years of age for sexual activity, and one charge of using a carriage service to solicit child pornography. The maximum penalty for each offence was 15 years imprisonment. The applicant was sentenced to an aggregate of three years imprisonment, to be released after serving 12 months on entering into a recognizance of $1,000 to be of good behaviour for two years. Additionally, he was ordered to attend sex offender treatment for two years and was registered as a sex offender for 15 years.
On 4 June 2018, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act. The cancellation was mandatory because a delegate of the Minister was satisfied that the applicant did not pass the character test because he had a substantial criminal record as defined for the purposes of s 501(6)(a), and was then serving a sentence of full-time imprisonment.
On 24 June 2018, the applicant made representations pursuant to an invitation provided for by s 501CA(3)(b) and sought revocation of the cancellation of his visa. The representations proceeded on the basis that the applicant did not pass the character test but contended that there was another reason why the delegate’s decision to cancel his visa should be revoked pursuant to s 501CA(4) of the Act. A delegate of the Minister considered the representations and on 2 December 2019 determined not to revoke the cancellation.
The applicant then sought merits-based review of the delegate’s decision by the Administrative Appeals Tribunal, exercising its review function under s 500(1)(ba) of the Migration Act. On 25 February 2020, the Tribunal affirmed the decision under review. This was the first of two decisions of the Tribunal.
The applicant sought judicial review of the first decision of the Tribunal. On 11 September 2020, O’Bryan J made orders by consent setting aside the first decision of the Tribunal. The order noted that the Minister accepted that the Tribunal’s first decision was affected by jurisdictional error because it failed to have regard to the effect of non-revocation of the cancellation of the visa on the applicant’s family members.
The delegate’s non-revocation decision was reviewed on remitter by a differently constituted Tribunal. On 23 August 2022, the Tribunal affirmed the decision under review, finding that it was not satisfied that there was another reason why the cancellation of the applicant’s visa should be revoked.
By application to this Court the applicant seeks judicial review of the Tribunal’s second decision on the ground of jurisdictional error.
The Tribunal’s decision
The grounds raised by the applicant before the Court concern the Tribunal’s treatment of his representations concerning harm that he might suffer should he be returned to Iraq.
The Tribunal’s statement of reasons (R) was framed around the considerations in Direction No 90, being a ministerial direction made under s 499(1) of the Migration Act. The Tribunal recounted the circumstances of the applicant’s offending, which included using a social networking platform to contact his victim who was a male child, exchanging explicit photographs, and then arranging to meet the victim at a public park for sexual purposes. The Tribunal considered that the offences were objectively very serious, being offences committed against a vulnerable young boy. In reaching its conclusions as to the seriousness of the offending, the Tribunal referred to and adopted observations of the sentencing judge who stated that the objective seriousness of the offending was high. The Tribunal expressed concern that throughout the hearing and in material before the Tribunal the applicant had sought to minimise the gravity of his offending. The Tribunal considered that the nature and seriousness of the applicant’s offending weighed very heavily against revocation of the mandatory cancellation.
The Tribunal considered at some length the applicant’s risk of reoffending, taking into account a range of evidence. The Tribunal concluded that the applicant’s risk of reoffending was moderate to high, which amounted to a substantial risk because of the potential for great harm to result, and stated that this risk of harm was unacceptable. This risk weighed very heavily in favour of non-revocation of the cancellation of the applicant’s visa.
The Tribunal took into account the best interests of minor children as a topic. The Tribunal addressed the circumstances of the applicant’s young son whom he had not seen in person since he was taken into custody in April 2018, although the applicant had communicated with his wife and son during this period by video. Because of this separation, the Tribunal stated that it was difficult to assess the extent to which the applicant was likely to have a positive parental role in relation to his son were he to be released into the Australian community. The Tribunal further held that whether there could be a positive parental role was also dependent upon the applicant’s risk of reoffending. On balance, the Tribunal held that the interests of the applicant’s son favoured revocation of the cancellation of the visa. The Tribunal also addressed some limited evidence concerning the applicant’s non-parental relationship with his nieces and nephews, and gave this consideration marginal weight in favour of revocation.
As to the expectations of the Australian community, the Tribunal considered that the nature of the applicant’s offending meant that this consideration weighed very heavily against the revocation of the cancellation of the applicant’s visa.
I will now turn to the applicant’s representations concerning harm that he might suffer should he return to Iraq. Before the Tribunal, the applicant maintained a claim to engage Australia’s non-refoulement obligations on the basis of his religion, being a Chaldean Christian. The material before the Tribunal included an amended statement of facts, issues and contentions dated 2 July 2021, and a bundle of material on which the applicant relied. The material included the Minister’s departmental record of the applicant’s application for the visa, a summary of the reasons for the decision to grant the visa, and a record of the assessment of the United Nations High Commissioner for Refugees that the applicant was a refugee. Amongst the material was a statutory declaration of the applicant made 10 May 2019 which was relied on before the Court. The material also included a submission made to the Department on the applicant’s behalf by a migration agent that was prepared in June 2018. On the topic of non-refoulement, the submission referred to the fact that the applicant had been granted a refugee visa, and submitted that if he were returned to Iraq the situation would be dire. The applicant relied upon country information in a DFAT report dated 26 June 2017 to support the submission. The submission stated that the applicant’s brother had been killed in Iraq because he was a Christian, and that the applicant feared that as he was also a Christian he would suffer the same fate.
As a preliminary matter, the Tribunal addressed the question whether it should consider the protection obligations at all, given what the Tribunal perceived to be the expedited nature of the hearing and the fact that it was open to the applicant to make an application for a protection visa. Having addressed that issue, the Tribunal determined not to defer consideration of the applicant’s protection claims. I will return to this aspect of the Tribunal’s reasons, as it was the subject-matter of the first ground of review.
The Tribunal did not accept that the applicant’s claims were of such weight as to favour the revocation of the mandatory cancellation of his visa. The Tribunal summarised the applicant’s representations concerning his protection claims as comprising four features –
(a)a claim that there was a real risk that if he were returned to Iraq, he would be killed or kidnapped;
(b)a claim that he faced a real risk of harm as a registered sex offender if returned to Iraq;
(c)a claim that he would be punished for paedophilia under sharia law; and
(d)the legal consequences of the Tribunal’s decision were he to be returned to Iraq.
The Tribunal stated that the principal reason given by the applicant for his fear of being killed or kidnapped was that he was a Chaldean Christian. The Tribunal also referred to documentary and video evidence produced by the applicant demonstrating that there had been bombing of, and atrocities carried out against, Christians and Christian churches of all denominations in Iraq. In relation to this material, the Tribunal stated that whilst this material demonstrated that there had been attacks against Christian churches in particular, it did not assess the level of risk that Christians faced, in particular of killing and kidnapping. The Tribunal stated that the material produced by the applicant did not enable it to assess specifically the risk of harm that the applicant faced of being killed or kidnapped as he had asserted.
The applicant gave evidence that his older brother had been killed in a targeted attack near the family home in Iraq shortly prior to his arrival in Australia, that he and his family had received threats when he was in Iraq, and in particular that he and his brother had received a threatening telephone call in Iraq in 2011. In relation to this representation, the Tribunal stated that it could not see how the threat posed in that telephone call from an unidentified individual 11 years previously would subsist in the event that the applicant returned to Iraq.
The Tribunal accepted country information that was before it in the form of a DFAT report dated 17 August 2020, which it described at R [138] as being carefully compiled and prepared to a very high standard. This was one of two DFAT reports that were before the Tribunal. The Tribunal stated at R [136] that DFAT assessed that Christians faced a moderate level of societal discrimination and violence in Iraq, similar to that faced by other religious communities in areas where they are a minority. The Tribunal stated at R [137] that there was nothing in that material which established that the applicant would be killed or kidnapped due to his Christianity or, more accurately, his Christian beliefs. The Tribunal repeated at R [137] that DFAT assessed that Christians in Iraq faced low levels of official discrimination and moderate levels of societal discrimination and violence, that it did not specify killing or kidnapping, and that nothing in the evidence rose to the level of harm contended by the applicant. The Tribunal concluded at R [140] that while it might be difficult for the applicant in Iraq due to his Christian beliefs, it was a quantum leap to suggest that he would “certainly” be killed or kidnapped, addressing the terms of one of the representations made by the applicant. The Tribunal noted that there were an estimated 250,000 Christians continuing to live in Iraq, including two sisters of the applicant.
In relation to the applicant’s status as a registered sex offender, and the prospect of punishment under sharia law, the Tribunal stated that the material did not demonstrate that the applicant would face persecution or harm due to being a convicted or registered sex offender, and that there was no material before the Tribunal that would establish that he would be punished for paedophilia under sharia law as he contended.
As for the representations concerning the legal consequences of the Tribunal’s decision if the applicant were unsuccessful in his application, the Tribunal stated that the thrust of those contentions was that if the applicant was unsuccessful in his application, he would be either returned to Iraq in breach of Australia’s international non-refoulement obligations, or he would be indefinitely detained. The Tribunal addressed this claim by accepting that the legal consequence of affirming the delegate’s decision was that it was open to the applicant to make an application for a protection visa that would be considered, during which time he would remain in detention. The Tribunal acknowledged that the applicant had been in custody and subsequent immigration detention since April 2018, and that the period of detention was a significant matter which had clearly had an impact on the applicant. Overall, due to the prospect of indefinite detention, the Tribunal placed some weight on this consideration in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal accepted that the applicant might face impediments if removed to Iraq, and that it was apparent that life would be challenging for him because he would face limited job prospects, have limited family support, and would face moderate levels of societal discrimination. However, the Tribunal also took account of several factors that would limit the extent of impediments that he might face if returned to Iraq, namely that: the applicant was in his early 30s with no significant health concerns; there were no language barriers; the Tribunal did not consider on the evidence before it that there were any cultural barriers faced by the applicant; as an Iraqi citizen, the applicant would have access to the same benefits as other citizens; and that there was evidence from the applicant’s sister that she would assist him financially if he needed it were he returned to Iraq. The Tribunal concluded that the extent of impediments weighed in the applicant’s favour to a limited degree.
The Tribunal then considered the applicant’s links to the Australian community and the strength and nature of his ties to Australia and held that this consideration weighed to a limited degree in the applicant’s favour.
Overall, the Tribunal found that the considerations in the applicant’s favour were heavily outweighed by the nature and seriousness of the applicant’s conduct, the risk to the Australian community should he commit further offences or engage in other serious conduct, and the expectations of the Australian community. The Tribunal stated that: (1) this was a case of very serious offending against a child; (2) the applicant on several occasions sought to minimise the gravity of his offending; (3) the applicant had a lack of complete insight into his offending; and (4) there was a moderate to high risk of the applicant reoffending, particularly if he did not undergo an appropriate treatment program as had been recommended by a treating clinical psychologist and which the applicant had not undertaken.
The grounds of review
The applicant raised four grounds of review. Of the four grounds that were raised, the third ground was abandoned. I will summarise and address the arguments relating to the other grounds in turn.
Ground one: the Tribunal misapprehended the nature and extent of the constraints on its jurisdiction
Ground one – the submissions of the applicant
The substance of ground one is a claim that the Tribunal fell into jurisdictional error by assessing the applicant’s representations on the footing that the Tribunal was required to conduct that assessment on an expedited basis. This approach was said to involve jurisdictional error because it reveals that the Tribunal proceeded on a misunderstanding of the extent of the constraints on its review jurisdiction, such that the Tribunal failed to appreciate that it was open to the Tribunal to conduct a full and detailed assessment of the applicant’s representations, if it chose to do so. I referred to this aspect of the Tribunal’s reasons at [15] above. The terms in which the Tribunal expressed itself are important to addressing the applicant’s ground one, so I will set out below the relevant passages from the Tribunal’s reasons.
At R [124], the Tribunal referred to a submission made on behalf of the Minister that the Tribunal should defer consideration of the applicant’s non-refoulement claims because he was a person who was able to make a valid application for a protection visa. The Tribunal then extracted some passages from the joint judgment of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 (Plaintiff M1) at [28]-[30], where their Honours explained at [30] that where a representation was made pursuant to s 501CA(4) of the Act that included or suggested a claim of non-refoulement under domestic law, the claim may be considered by the decision-maker under s 501CA(4), but that one available outcome for the decision-maker was to defer assessment of that claim on the basis that it was open to the former visa holder to apply for a protection visa. The Tribunal then stated at R [125]-[126] –
125.It should be emphasised that in expedited hearing processes such as this, the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa.10 Nor is the Tribunal required to conduct an extensive assessment of the applicant’s claims to fear harm should he return to Iraq.
126.The Tribunal considers that it should not defer a consideration of the applicant’s protection claims. It does not do so because, amongst other things, such a decision to defer consideration could potentially lead to the applicant spending a longer time in detention whilst a protection visa application for instance is being considered. However, nonetheless insofar as international non-refoulement claims are made, they should be identified, understood and evaluated as best as is open to it on the material that has been tendered.
(Emphasis added.)
Footnote (10) to R [125] stated –
Reference should be made at this juncture to the provisions of paragraph 9.1(6) of Direction 90 which provides as follows:
“It may not be possible at the section 501/501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection Visa application.”
Counsel for the applicant submitted that the Tribunal had fallen into jurisdictional error by proceeding on the basis that it was precluded from conducting a complete consideration of the applicant’s representations in relation to non-refoulement obligations. The applicant submitted that, in fact, the Tribunal had a discretion as to the extent of consideration that it should give to the applicant’s representations in that regard. In failing to comprehend the existence of such a discretion, the Tribunal had unlawfully fettered its own jurisdiction and thereby misconceived its function. In oral argument, counsel for the applicant captured the submission by stating that it was open to the Tribunal to give full consideration to the applicant’s representations concerning non-refoulement, but the Tribunal erroneously considered that it was bound not to.
In terms of materiality, counsel for the applicant submitted at the hearing that the very fact that the Tribunal had misapprehended the limits on its power, in the way alleged above, was sufficient to disable the Tribunal in the performance of its jurisdiction. Counsel for the applicant submitted that it followed from the fact that the Tribunal did not appreciate the extent of its powers that the Tribunal had fettered its discretion and foreclosed the possibility of conducting a full or more detailed assessment of non-refoulement obligations.
For the purposes of the applicant’s first ground of review, three further matters should be noted.
First, where the Tribunal has made a decision to affirm a s 501CA(4) decision, and the Tribunal’s decision has been quashed or set aside on judicial review and the matter remitted to the Tribunal for reconsideration, the 84-day time-limit applicable to a review in s 500(6L) is not applicable: Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 at [64] (Logan, Steward and Jackson JJ), citing Somba v Minister for Home Affairs [2019] FCAFC 150; 269 FCR 517 at [13]-[38] (Logan, Steward and Jackson JJ), and Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; 97 FCR 387 (Hall) at [30]-[31] (Finkelstein J). See also Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 234 at [3]-[7] (Jagot J). Counsel for the applicant submitted that accordingly there was no legal requirement or any practice of the Tribunal to follow an expedited process for the conduct of its review.
Second, the review before the Tribunal on remitter took place over a period of many months. The relevant dates were as follows –
(a)on 11 September 2020, O’Bryan J made orders by consent remitting the review to the Tribunal for re-determination;
(b)the Tribunal’s reasons record that the hearing occurred over four days, 20 and 21 October 2021, and 20 and 21 July 2022; and
(c)the Tribunal’s decision was published on 23 August 2022.
Third, on the same day as the decision under review was published, the Tribunal constituted by the same senior member published a decision in Khamisi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2748 (Khamisi). A copy of this decision was received at the hearing without objection. The Tribunal’s review in Khamisi was the subject of the 84-day time period in s 500(6L) of the Act. In Khamisi, the senior member said at [123] –
It should be emphasised that in expedited hearing process [sic] such as this the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa. Nor is the Tribunal required to conduct an extensive assessment of the applicant’s claims to fear harm should he return to Iran.
The above passage is in substantially similar terms to [125] of the Tribunal’s reasons in the present case which I extracted at [27] above.
Ground one – the submissions of the Minister
Counsel for the Minister submitted that there was no evidence before this Court to suggest that the Tribunal acted under any misapprehension as to the applicability in this case of s 500(6L) to its decision‑making powers on remittal. It was further submitted that it was not open to the Tribunal to undertake the same analysis as would be required if an application for a protection visa were made and s 36 of the Act were invoked. That was because the Tribunal was performing the statutory task under s 501CA, which was a “qualitatively different exercise” from the statutory task under s 65, citing BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (BCR16) at [48]-[49] (Bromberg and Mortimer JJ) and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 (Ayoub) where Flick, Griffiths and Perry JJ stated at [28] –
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s “non-refoulement obligations”. It is in this context that s 501E of the Migration Act may assume some relevance. By reason of that provision, the decision of the Minister to cancel Mr Ayoub’s visa pursuant to s 501 could not operate to prevent a future application being made for a protection visa.
(Emphasis in the submission.)
Counsel for the Minister submitted that the above observations, which were made in the context of the power under s 501 of the Act to cancel a visa, were equally applicable to the exercise of power under s 501CA(4) to revoke the mandatory cancellation of a visa, citing Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [17] (Perram J). Counsel for the Minister submitted that at R [125], the Tribunal correctly recognised that its task was not to undertake an assessment of protection obligations “in the way that would occur were the applicant to make an application for a protection visa”. It was submitted that the Tribunal expressly acknowledged that insofar as non-refoulement claims were made, they should be “identified, understood and evaluated as best as [was] open to it on the material that [had] been tendered”, and that the Tribunal took the time and care it considered appropriate, in discharging its statutory task under s 501CA, in evaluating those claims. It was submitted that in so doing, it could not be said that the Tribunal “expedited” its decision.
Ground one – consideration
I will commence by referring to two important topics. The first is the nature of a jurisdictional error. “To say that a decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 (MZAPC) at [29] (Kiefel CJ, Gageler, Keane and Gleeson JJ). A decision that is the product of such an error lacks statutory force and is therefore invalid. The statutory limits of decision-making authority conferred by statute are determined as an exercise in statutory interpretation. Ordinarily, but not universally, it is an implied condition of a statutory conferral of decision-making authority that a decision-maker “must proceed by reference to correct legal principles, correctly applied”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 (Hossain) at [29] (Kiefel CJ, Gageler and Keane JJ). Non-compliance with express and implied statutory conditions of a conferral of decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred: MZAPC at [30]. Whether an error in the understanding or application of legal principles is a jurisdictional error will often turn also on whether the error is material, because a statute will usually be interpreted as incorporating a threshold of materiality in the event of non-compliance with a condition on the exercise of statutory power: Hossain at [29]. The question of the materiality of an error is the subject of further explanation in MZAPC at [38], Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [4] and [45]-[50] (Bell, Gageler and Keane JJ), and Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), [45]-[47] (Gageler J) and [76]-[78] (Gordon J).
The second topic is the approach to be adopted to construing reasons of an administrative decision-maker, such as the Tribunal. In the context of decisions under s 501CA(4) of the Act, the joint judgment in Plaintiff M1 at [38] re-stated that a court is not “astute to discern error” in the reasons of an administrative decision-maker, citing Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] (French CJ, Bell, Keane and Gordon JJ), itself citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282 (Brennan CJ, Toohey, McHugh and Gummow JJ). I will apply this guidance.
Because the review the subject of this application was before the Tribunal on remitter, the Tribunal was not the subject of the 84-day time limitation under s 500(6L) of the Act. Objectively, it is difficult to see that the Tribunal was under any misconception that it was under any specific time limitation. That is because the Tribunal did not state that it was under a specific time constraint, and because of the period of months over which the Tribunal undertook the review, as I set out at [33] above.
Within this context, there are two related features of [125]-[126] of the Tribunal’s reasons that fall for consideration. The first is the reference to expedited hearing processes, and the second is the Tribunal’s statement that it could not make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa.
I see no necessary error in the Tribunal’s reference to expedited hearing processes, when taken on its own. The exhortations in s 2A of the Administrative Appeals Tribunal Act 1977 (Cth) include that the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, and quick. In Hall, upon determining that upon a remitter the Tribunal would not be under any time constraint to deal with the remitted application, Finkelstein J added at [31]: “This notwithstanding, I assume that the Tribunal will act in accordance with the general policy of the Migration Act and deal with the application as expeditiously as possible”. However, the statement of Finkelstein J would be equally applicable to any other determination by the Minister or a delegate under the Act. In the end, the Tribunal’s reference to expedited hearing processes is at least infelicitous, because it is unexplained.
That brings me to the Tribunal’s statement that it “cannot” make an assessment of protection obligations in the way that would occur were the applicant to apply for a protection visa. This statement was explained by the Tribunal by its reference to para 9.1(6) of Direction No 90 that was set out in footnote (10) to [125] of the Tribunal’s reasons, which I have extracted at [28] above. The Direction provided that it “may not be possible” at the s 501 or s 501CA stage to consider non-refoulement issues in the same level of detail as would occur on a protection visa application, but the Direction did not state that a decision-maker could not so. Complementing the Direction is Plaintiff M1 at [37], where Kiefel CJ, Keane, Gordon and Steward JJ stated at [37] that the delegate in that case –
... was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff’s claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
Whether the Tribunal assessed the applicant’s non-refoulement claims at all turned on whether the Tribunal decided to defer the assessment on the ground that it was open to the applicant to make an application for a protection visa: Plaintiff M1 at [30], [35]-[37]. A lawful outcome of the Tribunal’s consideration of the applicant’s protection claims could have been not to assess the claims. However, the Tribunal decided not to take that course, stating at R [126] that it would identify, understand, and evaluate the claims as best as was open to it on the material that was tendered, before considering the applicant’s claims. Nonetheless, there is nothing in the joint judgment in Plaintiff M1 to suggest that a decision-maker in the position of the Tribunal in this case in considering protection claims for the purposes of a decision under s 501CA(4) of the Act is precluded from addressing the claims in a comprehensive way, as on an application for a protection visa, although the decision-maker is clearly not bound to do so, as [37] of the joint judgment in Plaintiff M1 makes plain.
As to the submissions of counsel for the Minister, I accept the submission that the statutory task under s 501CA(4) is a qualitatively different exercise from the statutory task under s 65, as Bromberg and Mortimer JJ explained in BCR16. I also accept that in assessing protection claims for the purposes of a decision under s 501CA(4), the decision-maker is not bound to undertake the same level of analysis as would be required in an application for a protection visa, as the Full Court held in Ayoub at [28]. I do not, however, understand the Full Court in Ayoub at [28], or in the emphasised passage which is set out at [36] above, as going further and stating that a more comprehensive consideration of protection claims for the purpose of a s 501CA(4) decision is, as matter of law, precluded.
In this case, I have reached the conclusion that the Tribunal did not misconceive its functions or powers, and therefore did not make a jurisdictional error at R [125] in stating that it “cannot” make an assessment of protection obligations in the way that would occur were the applicant to make a claim for a protection visa. Reasonably construed, the Tribunal’s statement that it “cannot” make such an assessment was not directed to any legal impediment, but was directed to practical issues. This understanding is reinforced by the Tribunal’s citation of para 9.1(6) of Direction No 90 which I set out at [28] above. The statement in the Direction that “[i]t may not be possible ... to consider non-refoulement issues in the same level of detail” is concerned with practical considerations, and is not a legal fetter. It is implicit in Direction No 90 that, as a factual matter, there may be some cases where decision-makers lack the capacity to consider protection claims at the 501CA(4) stage as extensively as upon an application for a protection visa. In saying that it “cannot” make an assessment in the same way that would occur on an application for a protection visa, the Tribunal was stating that the review before it was one of those situations contemplated by para 9.1(6) of Direction No 90 where comprehensive consideration to the same level as might occur on a protection visa application may not be possible. Moreover, the Tribunal’s statement in R [126] that it would evaluate the applicant’s claims as best as was open to it on the material that had been tendered further supports the conclusion that the Tribunal was not acting under any misconception that there was some legal fetter, but was concerned with what was factually and practically open to it. The Tribunal’s impugned statements at R [125] have not been shown to be an error, still less a jurisdictional error, as opposed to some error of fact within jurisdiction.
As I have found no error within ground one that would be a candidate for a jurisdictional error, no question of materiality arises.
For these reasons, I conclude that ground one is not made out.
Ground two: the Tribunal constructively failed to exercise its jurisdiction by failing to read, identify, understand, and evaluate representations made by the applicant
Ground two – the submissions of the applicant
The applicant’s argument in relation to ground two was essentially that the Tribunal failed properly to engage with the applicant’s representations in relation to being owed non-refoulement obligations. The applicant relied upon Plaintiff M1 in support of ground two where Kiefel CJ, Keane, Gordon and Steward JJ said at [24] –
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations [made by the relevant applicant to the decision-maker]. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
(Emphasis added; citations omitted.)
Counsel for the applicant submitted that the applicant had made a series of representations to the Tribunal to the effect of being owed non-refoulement obligations. At [16] of the applicant’s written submissions to the Court, the specific representations to the Tribunal were identified as being –
(a)he had a well-founded fear of persecution if he [were] returned to Iraq;
(b)he feared being “attacked, threatened or killed” in Iraq for the reasons of his Christian religion;
(c)he feared facing the same fate as his brother, who was killed in Iraq at the hands of Islamic extremists;
(d)he had been threatened with death prior to fleeing Iraq and feared those threats would be carried out if he returned;
(e)the Christian community in Iraq faced a high level of harassment and violence in Iraq;
(f)the Department of Foreign Affairs and Trade (DFAT) reported that Christians in Iraq faced “moderate levels” of societal violence;
(g)Freedom House reported on the “systemic and widespread violation of human rights” of Christians in Iraq[.]
The specific representations referred to above were said to have been contained in documents which were before the Tribunal.
The first significant document was a statutory declaration made by the applicant on 10 May 2019 for the purposes of seeking revocation of the cancellation of his visa. The applicant submitted that the key paragraph of that declaration was [10], which provided –
I wish to have the decision to cancel my visa revoked for a number of reasons. Firstly, if I am returned to Baghdad I will almost certainly be killed. I have been threatened with death prior to fleeing the country, and I believe these threats will be carried out if I am returned. Most of my family has fled Iraq because of the danger to our survival. To this day the Australian government advises people not to travel to Iraq because although the terror cell Da’esh was supposedly defeated in 2017, the risks remain. The Department of Home Affairs reports that ‘the country continues to be beset by post-conflict challenges as well as longstanding political and sectarian divisions’. The UK Home Office observes that ‘terrorists are very likely to try to carry out attacks in Iraq. There’s also a high kidnap threat. When attacks can take place at any time, there’s a heightened threat during religious or public holidays’. It also advises against travel to Iraq.
(Emphasis added.)
This extract was said to give rise to two specific representations by the applicant, namely that on account of his Chaldean Christian faith, he feared that if he were returned to Iraq –
(1)he would “almost certainly be killed”; and
(2)he would be subject to a “high kidnap threat”.
In terms of (1), this maps onto part of representation (b) and the entirety of representations (c) and (d) referred to at [50] above. Regarding (2), this reflects part of representation (b) referred to at [50].
The applicant did not dispute that those two representations had been adequately addressed by the Tribunal in terms of the claim that the harm that the applicant feared would almost certainly occur if he were returned to Iraq. The applicant acknowledged in his written submissions that “[i]n effect, the Tribunal rejected that the [a]pplicant engaged Australia’s non-refoulement obligations because the material did not support a conclusion that the [a]pplicant would be ‘certainly killed or kidnapped if returned to Iraq’”. In making that acknowledgment, the applicant’s written submissions drew attention to [137] and [140] of the Tribunal’s reasons, which were as follows –
137However, when one carefully assesses all of the evidence that was before the Tribunal, including the most recent DFAT Country Information Report of 17 August 2020, there is nothing in that material which establishes that the applicant would be killed or kidnapped due to his Christianity or more accurately, his Christian beliefs. It should be repeated that this report records that Christians in Iraq face low levels of official discrimination and moderate levels of societal discrimination and violence. It does not specify killing or kidnapping, and nothing in the evidence rises to the level of harm contended by the applicant. This assessment is the same as the earlier DFAT Country Information Report dated 9 October 2018 that was in evidence before the Tribunal. It appears from that material, the position has not changed in recent years.
…
140The material before it, including that relied upon by the applicant, does not create a sufficient evidentiary platform or foundation for the Tribunal to be satisfied that the applicant would be killed or kidnapped were he to return to Iraq. The Tribunal does not doubt that it would be difficult for him over there due to his Christian beliefs. However, it appears to the Tribunal that it is a quantum leap to suggest that he would be certainly killed or kidnapped.
(Emphasis as per the applicant’s written submissions.)
However, counsel for the applicant submitted that the Tribunal had not addressed his representations “to the effect that [his] fear was not that [his being killed or kidnapped] would certainly eventuate, but that it was only at least a real chance of eventuating” (emphasis added). Further, it was submitted that the applicant’s representations in relation to being owed non-refoulement obligations extended beyond those outlined at [53] above to a representation that he had a fear, on the basis of his faith, of some sort of persecution other than being killed or kidnapped. This broad representation may be thought to capture representations (a), (e), (f), (g), and the part of (b) which relates to being “threatened” as extracted at [50] above. That is, the broad representation just described captured the residue of the representations reproduced at [50] which were not caught by representations (1) and (2) described at [53] above.
The broad representation was said to be sourced from multiple documents.
First, the applicant drew attention to a “Personal Circumstances Form” dated 24 June 2018 which had been completed by the applicant and submitted in relation to the delegate’s s 501CA(4) decision. In answer to the prompt “Are there any other problems you would face if you have to return to your country of citizenship?”, the applicant wrote the following response –
It would [be] very difficult to live in Iraq as I have some family in the other area of Iraq. It will be hard, almost impossible to get a job because of my religion. I will be attacked, threatened and killed for my religion.
(Emphasis added.)
Second, the applicant pointed to an undated set of submissions prepared on his behalf by Ms Liz Kefford, one of his representatives. Those submissions were before the Tribunal on remitter and stated that “[t]he applicant holds a well-founded fear of persecution if he is returned to Iraq”. The submissions further stated –
[The applicant] is a member of a minority Christian religious group which has been targeted by Anti-Christian organisations in premeditated attacks. His brother was killed in an explosion near the family’s apartment block in Baghdad. The Australian government via the Department of Foreign Affairs and Trade (“DFAT”) says that ‘During late 2013 and 2014, the terrorist organisation Da’esh seized territory’ and ‘systematically persecuted ethnic and religious minorities and committed abuses against vulnerable groups’. Despite Da’esh being declared defeated on 9 December 2017, DFAT advises Australians ‘not to travel to Iraq due to the security situation, and that Australia has granted visas to Iraqis with a priority for the places to include ‘persecuted minorities with least prospect for return to their home countries’. [The applicant] is a member of such a minority.
Third, the applicant highlighted [20] of his submissions to the Tribunal in relation to the hearing which resulted in the 25 February 2020 decision which was quashed by the orders of O’Bryan J. Those submissions were before the Tribunal on remitter. At [20], the submissions stated –
The claim [that the applicant is owed non-refoulement obligations] is detailed in the applicant’s statutory declaration (G 101), and is based on him being an Iraqi Christian. DFAT’s Country Information Report on Iraq dated 9 October 2018, at 3.27 states that Christians face “moderate levels” of societal violence, noting that “moderate” is defined on page 5 of the report as “DFAT is aware of sufficient incidents to suggest a pattern of behaviour”. The Tribunal should accept that the applicant cannot be returned to Iraq in light of this information.
Fourth, the applicant cited the Country Information Report referred to in the preceding extract. That report was before the Tribunal on remitter. The applicant’s submissions referred to in the previous paragraph accurately summarise, at [20], the report’s contents at paragraph 3.27 and at page 5.
Fifth, the applicant noted that in his amended statement of facts, issues and contentions to the Tribunal on remitter, dated 2 July 2021, he had said the following at [24] and [26] –
24. The applicant adopts the submission by the Minister from [75]-[80], in particular the concession at [80] that the “Minister accepted that the Applicant is a member of the Chaldean Christian community in Victoria” and “[i]n light of the information in DFAT’s Country Information Report for Iraq (updated in 2020, SG6), the Minister accepts that the Applicant, being a member of the Chaldean Christians, will likely be subject to a low risk of official discrimination and to a moderate risk of societal discrimination and violence in areas where they are a minority if he were returned to Iraq.”
…
26.… [T]he applicant wishes to direct the attention of the Tribunal to the most recent reports by (a) Human Rights Watch, Iraq Report 2021; (b) Amnesty International, “Iraq 2021” and (c) Freedom House, “Iraq regarding the systemic and widespread violation of human rights and in particular, the persecution of Christians in Iraq.
(Emphasis original.)
Sixth, the applicant relied upon the Country Information Report referred to in the preceding extract. That report was before the Tribunal and stated that “DFAT assesses Christians belonging to recognised denominations [of which Chaldean Catholics are one] face a low risk of official discrimination” and that “Christians face a moderate risk of societal discrimination and violence in areas where they are a minority”.
Having identified the above sources, the applicant submitted that the Tribunal’s reasons had failed to address the broad representation outlined at [55] above –
Nothing in the Tribunal’s reasons supports a conclusion that the Tribunal read or understood (much less evaluated) the [a]pplicant’s representations to the effect that should he be returned to Iraq he also or alternatively [to fears of being killed or kidnapped] feared some less severe form of persecution (including being threatened or attacked, or subjected to societal violence or human rights abuses) or representations to the effect that the [a]pplicant’s fear was not that this harm would certainly eventuate, but that it was only at least a real chance of eventuating.
At the hearing, counsel for the applicant put the submission in this way –
[T]here’s not any recognition by the Tribunal that the moderate risk of societal discrimination and violence that was assessed by DFAT was the substantial basis, or a substantial basis, at least, for a claim that the applicant engaged Australia’s non-refoulement obligations, and I say that that’s sufficient to support the inference that the Tribunal either did not read or otherwise fundamentally misunderstood the nature of the representations that the applicant put to say that he engaged Australia’s non-refoulement obligations.
Accordingly, the applicant submitted that the Tribunal had made a jurisdictional error because it failed to undertake the tasks identified in the joint judgment in Plaintiff M1 extracted at [49] above.
Ground two – the Minister’s submissions
Counsel for the Minister submitted that the applicant’s claim that the Tribunal had failed to read, understand or evaluate the Applicant’s non-refoulement claims was not borne out by the Tribunal’s reasons. It was submitted that the Tribunal had accepted that the applicant faced low levels of official discrimination and moderate levels of societal discrimination and violence by reason of his Christianity, similar to that faced by other religious communities in areas where they are a minority, and that violence included threats and attacks. Counsel for the Minister pointed to the Tribunal’s references in its reasons to the applicant’s evidence that his older brother was killed, and that the applicant had received threats when he was in Iraq which were largely due to the fact he was a Chaldean Christian, in particular a threatening phone call in 2011: see [18]-[19] above.
Counsel for the Minister submitted that the Tribunal undertook its assessment of “international non‑refoulement obligations” by reference to the case made by the applicant by his representations. It was submitted that the Tribunal carefully assessed all the evidence that was before it, and preferred the contents and conclusions contained in the DFAT report to which I referred at [19] above which assessed the risk of harm faced by Christians in Iraq. The Tribunal was not satisfied that the applicant would be killed or kidnapped were he to return to Iraq.
Insofar as the applicant complained about the Tribunal’s use of the word “certainly” in [140], counsel for the Minister submitted that the Tribunal was not undertaking the task under s 65 of the Act of deciding whether the applicant qualified for a protection visa, but was considering Australia’s non-refoulement obligations with respect to the applicant in order to decide whether there was “another reason” why the cancellation of his visa should be revoked. It was submitted that in those circumstances, the Tribunal was not required to undertake the same analysis as is required if an application for a protection visa is made and s 36 is invoked, and that the Tribunal’s language reflects the language that was used in the representations.
Finally, it was submitted on behalf of the Minister that to the extent the applicant claimed a “well-founded fear of persecution” or a fear of being “attacked or threatened” without further elaboration, the Tribunal was not required to consider claims that were not clearly articulated. It was further submitted, relying on Plaintiff M1 at [24], that the statutory power conferred by s 501CA of the Act did not oblige a decision-maker to make actual findings of fact as an adjudication of all material claims made by an applicant.
Ground two – consideration
I do not accept that the Tribunal erred in the way claimed in support of ground two. In my view, the Tribunal did assess the substance of the applicant’s representations in a way that was consistent with the statements of principle by the majority in Plaintiff M1, and in particular in the joint judgment at [24] which I set out at [49] above.
At R [3] the Tribunal referred to the “vast array of documentary evidence” before it, which included the “G” documents, supplementary “G” documents and further supplementary “G” documents filed by the Minister. Save for the applicant’s amended statement of facts, issues and contentions referred to at [61] above, all of the documents identified at [57]-[62] above were contained in the G documents or supplementary G documents. In addition, the updated 2020 DFAT report that was referred to at [24] of that amended statement was independently cited by the Tribunal at R [136] and [137]. Given the vast materials before the Tribunal, I am not persuaded that the Tribunal did not read the materials said to give rise to the broad representation so as to breach the obligation “to read, identify, understand and evaluate” the applicant’s representations derived from [9] and [24] of Plaintiff M1.
In terms of engagement with a broad representation of the substance described at [55] above –
(1)The Tribunal acknowledged at R [134] that the applicant had given evidence of his older brother being killed in a targeted attack near his family’s home in Iraq, and of threats targeted at him and his family members when he was in Iraq, in particular a threatening phone call made to him and his brother in 2011, with such threats being “largely due to the fact that he was a Chaldean Christian”.
(2)The Tribunal acknowledged at R [136]-[137] both of the DFAT reports. Further, the Tribunal at R [136] cited DFAT’s assessments that “Christians in Iraq face low levels of official discrimination” and that “Christians face moderate levels of societal discrimination and violence … in areas where they are a minority”. Indeed, having noted that the first respondent agreed that those assessments were applicable to the applicant, the Tribunal concluded R [136] by stating that it agreed.
(3)At R [137] the Tribunal emphasised, in relation to the more recent DFAT report from 17 August 2020, that the report “record[ed] that Christians in Iraq face low levels of official discrimination and moderate levels of societal discrimination and violence”.
(4)At R [140] the Tribunal acknowledged that it would be difficult for the applicant should he be returned to Iraq due to his Christian beliefs.
It is clear that the Tribunal engaged generally with the broad representation made by the applicant and the evidence which was before the Tribunal in relation to that representation. Having considered the evidence, the Tribunal at R [138] preferred the contents and conclusions contained in the DFAT reports, to which it had referred. The Tribunal accepted that the applicant would face low levels of official discrimination and moderate levels of societal discrimination and violence, which addressed whether the applicant faced some form of persecution that was of a lower order than the claim that he would be “certainly” killed or kidnapped, which the Tribunal also addressed at R [140] and did not accept.
It is true that the Tribunal did not methodically go through each of the particularised elements of the broad representation said to arise from representations (a), (e), (f), (g), and the part of representation (b) relating to being “threatened”, as specified at [16] of the applicant’s written submissions before the Court and extracted at [50] above. However, the Tribunal was not required to be so methodical. Its role was to “read, identify, understand and evaluate” the representations made by the applicant, with the level of engagement necessitated by that obligation being a function of context including as to the “nature, form and content” and the “length, clarity and degree of relevance” of the representations: Plaintiff M1 at [25]. The Tribunal considered representations to the effect that if the applicant were returned to Iraq “there [was] a real risk that … he [would] be killed or kidnapped” (at R [128]) and that “he would be certainly killed or kidnapped” (at R [140]) as the most serious representations. Accordingly, the focus of the Tribunal’s reasoning in the relevant portion of its decision was on those representations. However, it also paid attention to the broad representation and indeed accepted a version of it, as I have concluded above.
It follows that I also do not accept the applicant’s argument, referred to at [55] above, that the Tribunal did not address the question whether there was a “real chance” that he would be kidnapped and killed if he were to be returned to Iraq. This claim was referred to by the Tribunal at R [128], and at R [133] the Tribunal noted that “[t]he applicant consistently gave evidence that there is a real risk that if he is returned to Iraq, he will be killed or kidnapped”. The Tribunal understood the terms in which the applicant put the relevant representation. However, having considered the relevant evidence, the Tribunal stated at R [134] that “[t]he material produced by the applicant does not enable the Tribunal to specifically assess the risk of harm that the applicant faces of being killed or kidnapped as he asserts”. Having come to that conclusion, logically, the value of the applicant’s representation was therefore indeterminate. The Tribunal made no error, for the purposes of Plaintiff M1, in the dealing with the matter in this way.
For the above reasons, ground two is not established.
Ground three: the Tribunal denied the applicant procedural fairness by effectively adopting a different procedure, having determined not to defer consideration of the applicant’s non-refoulement claims for consideration in relation to any protection visa application made by the applicant
Ground three was abandoned, and need not be considered.
Ground four: the Tribunal constructively failed to exercise its jurisdiction by electing not to defer assessment of the applicant’s claims to engage Australia’s non-refoulement obligations and then failing to assess those claims according to law
Ground four – the submissions of the applicant
I will commence by setting out the applicant’s commendably succinct written argument in support of ground four –
By ground 4, the Applicant asserts that upon deciding that it would not defer consideration of the Applicant’s non-refoulement claims, the Tribunal became obliged to resolve those claims lawfully. By failing to assess the Applicant’s non-refoulement claims according to law, the Tribunal committed jurisdictional error.
The Applicant’s submission in relation to ground 4 is made formally to preserve his position on appeal. The Applicant recognises that the asserted obligation of the Tribunal is inconsistent with earlier decisions of this Court (which the Applicant does not say were plainly wrong, and) which principles of comity demand should be followed.
(Citations omitted.)
The earlier decisions of this Court referred to by the applicant were two single judge decisions: JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239 at [57], [66] and [72] (Rofe J) (JJNY); and TNVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 726 at [42]-[43] (Stewart J) (TNVP). At the hearing, counsel for the applicant clarified that ground 4 was to the effect that the Full Court’s decision in Ayoub and the two decisions of single judges in JJNY and TNVP were wrongly decided, and that having elected to consider the applicant’s representations in relation to non-refoulement obligations, the Tribunal was required to resolve them according to law. Counsel advanced these submissions in a courteous and formal manner in order to preserve appeal rights.
In brief oral argument, counsel for the applicant relied on a similar submission to that made in support of ground two, namely that the Tribunal rejected the applicant’s claims on the ground that it was not satisfied that the evidence rose to the level of supporting a finding that he would certainly be kidnapped or killed. In addressing ground two, I have rejected the claim that the Tribunal did not consider the applicant’s other representations that were of a lower order, including for the reason that the Tribunal accepted the applicant would face low levels of official discrimination and moderate levels of societal discrimination and violence.
Ground four – the submissions of the Minister
Counsel for the Minister submitted that, as the applicant had recognised, the obligation that was asserted was contrary to earlier decisions of the Court which the applicant did not claim were plainly wrong. It was submitted that in the circumstances, principles of comity required that the earlier decisions should be followed, and that accordingly ground four should be rejected.
Ground four - consideration
In TNVP, the applicant sought judicial review of a decision of the Tribunal to affirm a s 501CA(4) decision of a delegate of the Minister not to revoke the mandatory cancellation of his visa pursuant to s 501(3A). The applicant had made claims before the Tribunal that he was the subject of non-refoulement obligations in relation to his likely return to India. The Tribunal held that while the applicant might experience some difficulties when reintegrating into the Indian community, he was unlikely to face serious difficulty if he were to relocate within India to avoid the problems that he claimed. At [42], Stewart J summarised the submissions of the applicant to the Court which are relevant for present purposes –
The applicant submits that by concluding that he was “unlikely to face serious difficulty” if he was to relocate within India, the Tribunal misapplied or misconstrued the tests enunciated in the Act. He submits, with reference to Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 429, that a real chance of persecution or a real risk of significant harm can exist even though persecution or significant harm is unlikely to occur. On that basis, the applicant submits that the Tribunal erred by applying an incorrect test.
In response to this submission Stewart J held at [43] –
The Tribunal was considering Australia’s non-refoulement obligations with respect to the applicant in order to decide whether there was “another reason” why the cancellation of his visa should be revoked. It was not undertaking the task under s 65 of the Act of deciding whether he qualified for a protection visa. In those circumstances, the Tribunal was not required to undertake the same analysis as is required if an application for a protection visa is made and s 36 is invoked: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [28]. There is no error in the approach taken by the Tribunal.
In JJNY, the applicant also sought judicial review of a decision of the Tribunal to affirm a s 501CA(4) decision of a delegate of the Minister not to revoke the mandatory cancellation of his visa. The applicant’s ground of review was extracted by Rofe J at [42], which for present purposes relevantly provided –
(1)The Tribunal erred in law in misconstruing the relevant law on non-refoulement obligations and complementary protection.
(a)The Tribunal did not enter into an active intellectual engagement of the Applicant’s submissions on subjective “fear” in s5H(1) of the Migration Act 1958.
(b)The Tribunal misapplied the law in relation to the “real chance” element to establish non-refoulement obligations in s5J(1)(b) of the Migration Act 1958.
…
(e)The Tribunal misapplied the law in relation to “complementary protection” in s36(2)(aa) of the Migration Act 1958.
…
Rofe J rejected sub-grounds (a) and (e) on the following basis at [66] –
I accept the respondent’s submission that it is open for the Tribunal to approach an assessment of international non-refoulement obligations “generally”. Counsel for the applicant has not pointed to any authority that requires the Tribunal to apply and come to a conclusion on the bodies of law under ss 5H and 36. Given the statutory scheme, it is not necessary for the Tribunal to engage in a granular analysis of each statutory provision. The Tribunal’s reasons … show its understanding that Australia’s non-refoulement obligations are not to be conflated with considerations for a grant of a protection visa under s 36. As the Full Court said at [28] in Ayoub, the analysis required by the Tribunal is not the same as an analysis that would be required in an application for a protection visa.
(Emphasis added.)
Her Honour rejected sub-ground (b) at [72]-[75]. One of the crucial reasons was that “the Tribunal is not required to perform a full assessment of whether the applicant was owed protection obligations” noting at [72] that “[t]he task may be different when assessing a claim under s 65 of the Act, but the Tribunal’s assessment of the chance of harm to the applicant was sufficient for its task under s 501CA”.
The decision of the Full Court in Ayoub concerned a discretionary decision of the Minister made on 16 May 2014 to cancel the applicant’s visa under s 501(2) of the Migration Act as then in force. Subsection 501(3A), which now requires the mandatory cancellation of visas on character grounds, was not in force at the time of that decision, with the addition of s 501(3A), s 501CA(4), and related amendments being effected by the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), the relevant provisions of which commenced on 11 December 2014.
It was open to the applicant in Ayoub to apply for a protection visa. For present purposes, the appellant in Ayoub submitted that the Minister, having embarked upon a consideration of “non-refoulement obligations” was obliged to carry that analysis out to completion, applying correct legal principle. That is an argument which resembles the present applicant’s ground four. The Full Court rejected the argument, stating at [28] –
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s “non-refoulement obligations”. It is in this context that s 501E of the Migration Act may assume some relevance. By reason of that provision, the decision of the Minister to cancel Mr Ayoub’s visa pursuant to s 501 could not operate to prevent a future application being made for a protection visa.
Bearing in mind the limited argument that was advanced on behalf of the applicant on this application, I see no reason to doubt the applicability of TNVP, JJNY and Ayoub to the present case. In my respectful view, TNVP, JJNY, and Ayoub sit harmoniously with Plaintiff M1, where the majority held at [24] that upon reading, identifying, understanding, and evaluating representations made by a former visa holder, it was for the decision-maker to determine what weight to afford them, and that the decision-maker was not required to make actual findings of fact as an adjudication of all material claims. This is all subject to not ignoring, overlooking, or misunderstanding relevant facts or materials, or a substantial and clearly articulated argument: see [27]. And as I have already mentioned, one available outcome for the decision-maker is to defer consideration of claims of non-refoulement under domestic law to a protection visa application: see [30]. It must follow that even if a decision-maker engages with representations concerning non-refoulement under domestic law for the purposes of s 501CA(4), the decision-maker is not required to adjudicate on those claims as if determining an application for a protection visa, at least where that course remains open to the former visa holder.
For the above reasons, ground four must fail.
Conclusion
For the reasons I have given in relation to each of the grounds pressed by the applicant, the application for judicial review will be dismissed with an order that the applicant pay the first respondent’s costs.
Whether the applicant’s name should be subject to a non-publication order
At the beginning of the hearing, I raised with counsel the fact that the applicant’s name was presently represented by a pseudonym in the proceeding, seemingly by way of operation of s 91X of the Migration Act. In light of the terms of s 91X, I questioned whether that section provided a basis for the applicant continuing to be identified by a pseudonym and gave leave for the parties to file submissions in relation to whether s 91X was engaged and, if not, whether the applicant sought a non-publication order. The applicant and the first respondent both took up the opportunity to file written submissions on these questions, which I have considered.
I have come to the conclusion that while s 91X of the Migration Act is not engaged, the applicant’s pseudonym should be continued on the ground that it is necessary to prevent prejudice to the proper administration of justice, and on the ground that it is necessary to protect the applicant’s safety, which are grounds specified in s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth).
The requirement that the order be “necessary” is a stringent requirement, but it is not the same as requiring a “but for” analysis. There are two considerations that are relevant in this case.
First, the Sex Offenders Registration Act 2004 (Vic) to which the applicant is subject has a policy embedded within it that an offender’s registration under that Act is generally to be kept confidential. In AB v Chief Commissioner of Police [2020] FCA 14 at [118]-[120], I referred to this feature of that Act and to its consideration by the Victorian Court of Appeal in MSB v Chief Commissioner of Police [2018] VSCA 345; 57 VR 360 at [55]-[56] (McLeish JA, with whom Maxwell P and Almond AJA agreed). While recognising that there are no blanket rules, to name the applicant in this proceeding would give wide publicity to his registration under the Sex Offenders Registration Act contrary to one of its legislative objects. And at a general level, the identification of persons who are registered sex offenders may have a chilling effect on the bringing of proceedings by such persons in courts.
The second consideration is that although the Tribunal came to a different conclusion, the applicant was found to satisfy the refugee criteria for the purposes of the Subclass 200 Refugee Visa that was cancelled. It remains open to him to apply for a protection visa. It is necessary that the applicant not be deterred from making that application, or seeking any subsequent review, and that the policy underlying ss 91X and 501K of the Migration Act not be undermined. It is also necessary that the applicant not be deterred from pursuing an appeal from the dismissal of his application in this proceeding: see SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 516 at [3] (Jackson J).
I will make an order pursuant to s 37AF of the Federal Court of Australia Act that preserves the use of a pseudonym in this proceeding.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate:
Dated: 16 February 2024
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