BDQ19 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BDQ19 v Minister for Home Affairs [2019] FCA 1630

Review of: Application for judicial review of QJTT and Minister for Home Affairs (Migration) [2019] AATA 152
File number: VID 274 of 2019
Judge: KERR J
Date of judgment: 4 October 2019
Catchwords:

MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal – non-refoulement obligations - construction of cll 14.1(2) and 14.1(6) of Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA in light of potential inconsistency with Migration Act 1958 (Cth) – consideration of PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 – cl 14.1(2) not inconsistent on proper construction – incorrect construction not material

MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal - failure to consider risk of harm to non-citizen if returned by virtue of risk to civilians – jurisdictional error established

MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal - failure to consider recent correspondence relevant to best interests of Applicant’s children in Australia - jurisdictional error established

MIGRATION – non-revocation of visa cancellation affirmed by Administrative Appeals Tribunal – character test - whether offences serious offences as committed against government representatives or officials due to the position they hold, or in the performance of their duties – any error not material

Legislation:

Acts Interpretation Act 1901 (Cth) s 46

Legislation Act 2003 (Cth) ss 8, 13

Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 46A, 197C, 198(6), 195A, 417, 476A, 499, 501, 501CA

Cases cited:

Coco v R [1994] HCA 15; 179 CLR 427

Craig v South Australia [1995] HCA 58; 184 CLR 163 New South Wales v Commonwealth [2006] HCA 52; 229 CLR 1

PRHR and Minister for Immigration and Border Protection [2017] AATA 2782

Date of hearing: 12 September 2019
Date of last submissions: 17 September 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 143
Counsel for the Applicant: Mr O Ciolek
Solicitor for the Applicant: Asylum Seeker Resource Centre
Counsel for the Respondents: Mr D Brown
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 274 of 2019
BETWEEN:

BDQ19

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

KERR J

DATE OF ORDER:

4 OCTOBER 2019

THE COURT ORDERS THAT:

1.Grounds 2 and 3 of the Applicant’s application for judicial review be upheld, and Ground 1 and Ground 4 be dismissed.

2.The decision of the Administrative Appeals Tribunal dated 13 February 2019 be quashed.

3.The matter be remitted to the Administrative Appeals Tribunal for determination according to law by a tribunal differently constituted.

4.The Minister pay the Applicant’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

KERR J:

  1. This is an application for judicial review of a…

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Details
Case
[2019] FCA 1630
Decision Date

CaseChat Overview and Summary

The matter of BDQ19 v Minister for Home Affairs involved an appeal against the decision of the Administrative Appeals Tribunal (AAT) to affirm the non-revocation of a visa cancellation for an Afghan national. The primary legal issues addressed by the court were the proper construction of certain clauses of Direction No. 65 concerning visa refusal and cancellation, the consideration of non-refoulement obligations, and the tribunal's approach to the best interests of the applicant's children. The court further examined whether the AAT had committed jurisdictional errors by failing to consider relevant evidence and the risk of harm to the applicant if returned to Afghanistan.

The court found that the AAT had erred in its construction of clause 14.1(2) of Direction No. 65, which pertains to non-refoulement obligations. The Tribunal had incorrectly interpreted this clause as inconsistent with sections 197C and 198 of the Migration Act, which deal with the duty to remove unlawful non-citizens and the relevance of non-refoulement obligations, respectively. The court clarified that clause 14.1(2) was a statement of government policy, consistent with the Migration Act, and thus the Tribunal's failure to consider it was a jurisdictional error. Additionally, the AAT had failed to consider the risk of harm to the applicant if returned to Afghanistan, and recent correspondence relevant to the best interests of the applicant’s children in Australia, leading to further jurisdictional errors. While the court found some errors in the AAT’s consideration of the character test, these were deemed not material.

The court ordered that grounds 2 and 3 of the applicant's application for judicial review be upheld, leading to the quashing of the AAT's decision. The matter was remitted to the AAT for redetermination by a differently constituted tribunal. Furthermore, the Minister was directed to pay the applicant's costs of the application.

Orders

Orders of the court

1. Grounds 2 and 3 of the Applicant’s application for judicial review be upheld, and Ground 1 and Ground 4 be dismissed.

2. The decision of the Administrative Appeals Tribunal dated 13 February 2019 be quashed.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law by a tribunal differently constituted.

4. The Minister pay the Applicant’s costs of the application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant also pointed to an additional impediment that he would face if removed: namely a lack of family support and cultural barriers, which he described as follows: The Applicant would also experience significant difficulty in establishing himself and maintaining his livelihood if he were returned to Afghanistan. He would not have the support of his family or community, as he has stated that they would not approve of his lack of religious observance and his relationship with a Christian woman. A number of family members, including his father, have died. He does not know the whereabouts of many others. THE TRIBUNAL DECISION The Tribunal found that the Applicant did not pass the character test, and further that it would not be appropriate to revoke the mandatory cancellation of the Applicant’s Visa. As noted above, the Tribunal therefore affirmed the Delegate’s decision. It is convenient to extract in full certain aspects of the Tribunal’s decision that are directly relevant to the issues raised in these proceedings. The Ministerial Direction titled Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 65) governed the Tribunal’s decision-making in this case. That Direction identifies the best interests of the Applicant’s minor children in Australia as one of the primary considerations in making the revocation decision, and provides further guidance as to how that consideration is to be addressed. In relation to this consideration the Tribunal found, relevantly: 77. There is very limited information before the Tribunal regarding the Applicant’s biological children and stepchild, and so it is very difficult for the Tribunal to determine whether their interests differ and to deal with their interests individually. Consequently, the children will be discussed together (paragraph 13.2(3) of Direction no. 65).78. There is limited other evidence before the Tribunal as to the Applicant’s relationship with his children and step-child. With respect to the nature and duration of the Applicant’s relationship with these children (paragraph 13.2(4)(a) of Direction no. 65), the Applicant gave evidence at the Tribunal hearing that he had not seen his children in person for approximately three years due to his being in immigration detention, and his former partner having lost her licence so she had difficulty bringing the children to visit him (transcript, page 25). He gave evidence that, when he was in prison, he would see the children every week.79. The Applicant gave evidence that he currently speaks to the children on the telephone or via Facebook every two to three days (transcript, pages 24 - 25). Counsel for the Applicant submitted that the Applicant played an active parenting role and support of the children financially prior to his incarceration (Exhibit A1, paragraph [64]). In his evidence at the Tribunal hearing, the Applicant stated that prior to his incarceration he would undertake an activity with his children every weekend. His evidence was that the children are detrimentally affected by his absence because “now, they don’t listen, they talk differently, they don’t want to go to school, they miss school, they misbehave and mentally, they’re in a very bad state” (transcript, page 24).80. Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal is uncertain as to the parenting role that the Applicant will play in the future. As noted above, there is some doubt as to whether the Applicant is still in a relationship with his partner, who is the primary carer for the children, because he described not having spoken to her for approximately seven or eight months leading up to the Tribunal hearing. The children’s mother did not attend the Tribunal hearing to give evidence about the Applicant’s relationship with the children, nor about any domestic violence by the Applicant, and whether the children were present, which is relevant to whether he will be a positive role model in the future. However, given that the children are under the age of 18 years, it is likely that they would benefit from having their father and stepfather in their lives. This is particularly so for the younger children, aged five and 11 years because there are some years remaining until they attain the age of 18 years, including their formative teenage years.81. With respect to paragraph 13.2(4)(c) of Direction no. 65, there is no evidence before the Tribunal with respect to the impact of the Applicant’s prior conduct on the children. If he continues to offend, it may have a negative impact on the children.82. Applying paragraph 13.2(4)(d) of Direction no. 65, there is little current evidence before the Tribunal to inform an assessment of the impact of any separation on the children. However, in a hand written letter from the Applicant’s partner dated 8 June 2014 (G4, page 115) she describes the potential impact on the children if the Applicant was returned to Afghanistan:We have 3 children together 2 girls and 1 boy thou (sic) it is not stated on our first childs (sic) Birth Certificate as he was not present.I also have a daughter from a previous relationship which he has taken to as his own daughter and she looks to him as her father.I am asking as a mother and a loving partner not to send [the Applicant] back to his country as myself and the children would suffer terribly from this as the situation has been hard enough on them already knowing that they may never have the chance to see him again as it is not safe would break all our hearts.I understand he has done things he shouldn’t have but also know he shouldn’t be ripped from his family nor should our children from their father.83. If the Applicant is removed to Afghanistan, it may still be possible, albeit significantly more difficult, for the children to maintain contact with him by letter, telephone or other electronic means (paragraph 13.2(4)(d) of Direction no. 65). The Tribunal agrees with the submission from Counsel for the Applicant in Exhibit A1, paragraph [70] that it is highly unlikely that the Applicant’s children would be able to travel to Afghanistan to visit the Applicant if he were to return there. Counsel for the Applicant cited the official travel advice from the Australian Department of Foreign Affairs and Trade which is not to travel to Afghanistan “because of the extremely dangerous security situation and the very high threat of terrorist attack” (Exhibit A1, paragraph [70]). The Tribunal agrees that it would be very difficult for the Applicant to maintain a meaningful parental relationship with his children if he were returned to Afghanistan.…85. Regarding the wishes of the Applicant’s children (paragraph 13.2(4)(f) of Direction no. 65), the Tribunal has letters from three of the children, written in approximately 2014. The letter from the Applicant’s step-daughter stating that she misses her father and wants him to come home (G4, page 116). A letter from the Applicant’s eldest biological daughter states that she needs her father to come home because it has been hard without him, she misses him and hopes he will come home every night. She also states that it has been hard on her mother to look after for children without him (G4, page 117). A letter from the Applicant’s son states that he needs his father to come home, that he is unhappy without him, and asks not to take his father away from him (G4, page 118).…88. After applying the factors in paragraph 13.2(4) of Direction no. 65, the Tribunal finds that the best interests of the Applicant’s three biological children and step-child will be better served by revoking the decision to cancel the Applicant’s Visa.

Ratio Decidendi

Legal Principle Established

It is convenient to reproduce in full the Applicant’s written submissions on this issue: 4. The Tribunal, agreeing with the reasons of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782, reasoned (at [106]-[108]) that the final sentences of paras 14.1(2) and 14.1(6) of Direction 65 “should be omitted”.5. Paragraph 14.1(2) stated as follows:The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the county in respect of which the non-refoulement obligation exists.6. The Tribunal relevantly reasoned (at [105]) that, in light of this Court’s decision in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, there was a “clear contradiction” between the second sentence of para 14.1(2) and the operation of s 197C of the Migration Act, because that sentence refers to the fact that Australia “will not remove” a non-citizen to a country in respect of which a non-refoulement obligation exists, “and yet s 197C effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations”. 7. That reasoning was erroneous. It takes, as its premise, the proposition that the second sentence of para 14.1(2) of Direction 65 is a statement of the law, which it is not. The second sentence of para 14.1(2) is a statement of government policy as to the manner in which the Migration Act will be administered. That articulation of policy was consistent with s 197C and, because it formed part of a written direction made under s 499(1), the Tribunal was obliged to take it into account. Its failure to do so was a jurisdictional error.B. Government policy as to the administration of the Migration Act 8. It is convenient first to consider s 197C of the Migration Act, read with ss 189(1) and 198. 9. Section 189(1) of the Migration Act requires an officer of the Department to detain a person he or she reasonably suspects to be an unlawful non-citizen. Relevantly, s 198 is framed in mandatory terms, and states that an officer “must remove as soon as reasonably practicable” an unlawful non-citizen who falls within its terms. As a Full Court of this Court held in SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1 at [38]-[39], the effect of the High Court’s decision in Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319 is that the officer on whom s 198 imposes a duty is not obliged to remove the applicant if steps are being taken to ascertain whether the Minister’s powers in ss 48B, 195A or 417 of the Migration Act should be exercised. Each of those provisions confers a non-compellable discretionary power on the Minister. Respectively, those powers are to: (a) lift the bar which s 48A imposes on certain categories of persons applying for a protection visa (s 48B); (b) grant a visa to a person who is in detention under s 189 (s 195A); and (c) substitute, for a decision of the Tribunal under s 415, another decision that is more favourable to the applicant (s 417). 10. Section 197C speaks directly to the issue of Australia’s non-refoulement obligations, and to their relevance to the duties imposed under s 198. In SZSSJ, the Full Court considered the operation of s 197C, and held (at [49]-[52]) that s 197C does not prevent the officer referred to in s 198 from taking into account the fact that the Minister is considering whether to exercise one of the personal non-compellable powers in ss 48B, 195A or 417, even if the subject matter of the Minister’s consideration is itself the issue of non-refoulement.2 11. Accordingly, the officer on whom s 198 imposes a duty is not obliged to remove a non-citizen if steps are being taken to ascertain whether the Minister’s powers in ss 48B, 195A or 417 of the Migration Act should be exercised, even if the subject matter of the Minister’s consideration is itself the issue of non-refoulement. Sections 197C and 198 leave open, as a matter of law, the possibility that a non-citizen will not be removed, while the Minister decides to consider assessing whether to exercise one of the personal non-compellable powers. 12. Therefore, the Tribunal was wrong to find that s 197C of the Migration Act “effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations” (emphasis added). Certainly, if the Minister decided in every case not to consider the exercise of one of the personal non-compellable powers, that would be the effect of ss 197C and 198. But it would be equally open to the Minister to decide that, in every case where s 198 imposes a duty on an officer to remove an unlawful non-citizen in respect of whom Australia has non-refoulement obligations, the Minister will give consideration to whether the powers in ss 48B, 195A or 417 of the Migration Act should be exercised. 13. As was explained in para 14.1(1) of Direction 65, a non-refoulement obligation is an obligation under international law not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the Refugees Convention,3 the Convention Against Torture4 and the CCPR.5 Paragraph 14.1(1) went on to state that the Migration Act “reflects Australia’s interpretation of those obligations”. 14. For the reasons discussed above, it would be consistent with the provisions of the Migration Act, and specifically ss 197C and 198, for the Government to adopt a policy that, notwithstanding those provisions, Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. Consistently with ss 197C and 198, the Government could give effect to that policy by recourse to the Minister’s personal non-compellable powers under the Migration Act. 15. The applicant submits that, on its proper construction, the second sentence of para 14.1(2) of Direction 65 is an articulation of a policy of precisely that kind. 16. First, if the second sentence of para 14.1(2) is construed as a statement of law, it would be inconsistent with ss 197C and 198, because those provisions contemplate that Australia may remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. 17. However, s 499(2) provides that s 499(1), under which Direction 65 was made, does not empower the Minister to give directions that would be inconsistent with, relevantly, the Migration Act. And s 46(1)(c) of the Acts Interpretation Act 1901 (Cth) has the effect that Direction 65 is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the Minister. 18. It follows that, if an alternative construction of the second sentence of para 14.1(2) of Direction 65 is available that is not inconsistent with ss 197C and 198, that construction should be preferred. 19. Second, the applicant’s proposed construction of the second sentence of para 14.1(2) is supported by consideration of extrinsic material associated with the insertion of s 197C: Acts Interpretation Act 1901 (Cth), ss 15AB, 46(1). 20. That provision was inserted together with various other amendments by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and came into force on 16 December 2014. Direction 65 was made six days later, on 22 December 2014. 21. The Explanatory Memorandum for the Bill for the Amending Act relevantly stated: 1140. The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances as set out in section 198 of the Migration Act. 1141. This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen. 1142. Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act. 22. Similarly, in the Statement of Compatibility with Human Rights, which was Attachment A to the Explanatory Memorandum, the following was stated (at 28): Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from the duty established by the removal power. 23. Third, it is also relevant to note that, in the Minister’s reasons for refusing to grant a protection visa to the applicant in DMH16, the Minister had stated “In making my decision I am aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding s 197C of the Act) …” (at [12]). In that case, the Minister submitted to this Court that that statement in his reasons “should be read as a statement of intent from a policy perspective, rather than a statement relating to legal power” (at [25]). 24. For the preceding reasons, properly construed, the second sentence of para 14.1(2) is a statement of government policy as to the manner in which the Migration Act will be administered. That articulation of policy was consistent with ss 197C and 198. The Tribunal erred in “omitting” that sentence from Direction 65 and erred jurisdictionally by failing to comply with it, contrary to s 499(2A). (Footnotes omitted).