BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 312
•31 March 2021
FEDERAL COURT OF AUSTRALIA
BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312
File number(s): NSD 755 of 2019 Judgment of: FARRELL J Date of judgment: 31 March 2021 Catchwords: MIGRATION – application to review and set aside decision of the Minister to exercise his discretion under s 501A(2) of the Migration Act1958 (Cth) to refuse to grant a Protection (Class XA) visa – where Administrative Appeals Tribunal found Australia owes non-refoulement obligations in respect of the applicant – whether Minister formed his assessment of the national interest under s 501(2)(e) unreasonably and not on a correct understanding of the law – where Minister fell into jurisdictional error by assessing the determination of the national interest on an erroneously narrow basis by failing to consider the impact of breach of international non-refoulement obligations on Australia’s national interest arising from a refusal of the applicant’s visa – where Minister’s reasons provide a “formulaic and perfunctory” consideration of the basis of Australia’s non-refoulement obligations and their impact on his decision – Minister’s decision set aside
Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Evidence Act 1995 (Cth) s 144
Migration Act 1958 (Cth) ss 4, 5, 5H, 5J, 5M, 35A, 36, 37A, 48A, 48B, 91A-91X, 189, 193, 195A, 196, 197C, 198, 476A, 501, 501A, 501E, 501G, 501H
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) Arts 1A, 1F, 33
Cases cited: Agraira v Canada (Public Safety and Emergency Preparedness) [2013] SCC 36; 2 S.C.R. 559
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32
AQM18 v Minister for Immigration and Border Protection [2018] FCA 944
AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424
Atkins v Minister for Home Affairs [2019] FCAFC 159
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
BAL19 v Minister for Home Affairs [2019] FCA 2189
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 100
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855
Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; (2017) 256 FCR 455
FRH18 v Minister for Home Affairs [2018] FCA 1769; (2018) 266 FCR 413
Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12
Jione v Minister for Immigration and Border Protection [2015] FCA 144; (2015) 232 FCR 120
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533
Leiataua v Minister for Immigration and Citizenship [2012] FCA 1427; (2012) 208 FCR 448
Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220
Maurangi v Bowen [2012] FCA 15; (2012) 200 FCR 191
Maxwell v Minister for Immigration [2016] FCA 47; 249 FCR 275
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
MZAGK v Minister for Immigration and Border Protection [2014] FCA 1190; (2014) 226 FCR 311
Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391
Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363
Sowa v Minister for Home Affairs [2019] FCAFC 111
Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173
Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; 243 CLR 319
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 197 Date of last submission/s: 19 February 2021 (Respondent)
24 February 2021 (Applicant)Date of hearing: 14 October 2019 Counsel for the Applicant: Mr D Godwin Counsel for the Respondent: Mr C Lenehan SC Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 755 of 2019 BETWEEN: BFM16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
FARRELL J
DATE OF ORDER:
31 MARCH 2021
THE COURT ORDERS THAT:
1.The decision of the Honourable David Coleman MP, Minister for Immigration, Citizenship and Multicultural Affairs, dated 5 April 2019 be quashed.
2.The respondent pay the applicant’s costs fixed in the amount of $11,645.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
INTRODUCTION
This is an application made under s 476A of the Migration Act 1958 (Cth). The applicant (or BFM16) seeks writs of certiorari and prohibition in respect of a decision of the (then) Minister for Immigration, Citizenship and Multicultural Affairs (now Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs) (Minister) made on 5 April 2019 (Minister’s decision). He also seeks associated orders in the nature of an injunction restraining the Minister from removing him from the jurisdiction until further order of the Court.
The Minister’s decision involved an exercise of his power under s 501A(2) of the Migration Act to refuse to grant BFM16 a Protection (Class XA) visa (a species of protection visa) notwithstanding a decision made by the Administrative Appeals Tribunal (Tribunal or AAT) on 15 October 2018 (2018 AAT decision). The Tribunal determined to set aside a decision of a delegate of the Minister made on 23 July 2018 to refuse to grant BFM16 a protection visa pursuant to s 501(1) of the Migration Act and to grant the protection visa.
Relevantly, s 501A(2) of the Migration Act confers power on the Minister personally to set aside a decision such as that made by the Tribunal and refuse to grant a visa where:
(1)The Minister reasonably suspects that the person does not pass the character test (as defined by s 501);
(2)The person does not satisfy the Minister that the person passes the character test; and
(3)The Minister is satisfied that the refusal or cancellation is in the national interest.
It is uncontroversial that BFM16 does not pass the “character test” in s 501(6)(a) (because he has a “substantial criminal record” as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more) and that the Minister is satisfied that he does not pass the character test.
BACKGROUND
The applicant was born in his country of origin (CoO) and arrived in Australia in 1991, then aged four. He has resided in Australia since then but for an approximately five-year absence between 1996 and 2001 during which he resided in his CoO.
BFM16 has a history of visas applications since August 2005, when the visa which was dependent on one of his parent’s status expired. Those visas included Bridging E visas (which he was both granted and refused) and a Temporary Work (Skilled)(Class UC) visa and a Combined Partner (Class UK820/BS801) visa (which were both refused).
BFM16 applied for a protection visa in the latter half of 2015. The basis of his application was that he would be a target of extortion, kidnap and murder if he returned to his CoO because he would be seen as a “wealthy target or a betrayer of Islam” and the family would be seen as westernised foreigners. His appearance as a westernised Muslim would be evident from his behaviour and accent and his wife and child are Australians who would be viewed as foreigners who are not Muslims. Since then, in July 2018, he and his wife divorced but he remains on amicable terms with her.
BFM16’s protection visa application was refused by a delegate of the Minister on the basis that BFM16 is not a refugee under s 36(2)(a) of the Migration Act. The AAT affirmed that decision on 4 April 2016, but the Federal Circuit Court of Australia quashed that decision and directed the AAT to re-determine the review application.
On redetermination, on 27 January 2017, the AAT decided to remit the matter to the Department of Home Affairs for reconsideration with the direction that BFM16 satisfies s 36(2)(a) of the Migration Act (2017 AAT decision).
On 23 July 2018, a delegate of the Minister refused to grant the protection visa under s 501(1) of the Migration Act on account of BFM16’s “substantial criminal record” as defined in s 501(7)(c) of the Migration Act with the result that he did not pass the “character test” in s 501(6) of that Act.
On review of the delegate’s 23 July 2018 decision, the Tribunal made the 2018 AAT decision.
In the record of the 2018 AAT decision, the Tribunal described the applicant’s background as follows:
5.The Applicant has had quite a sad history. His parents are both naturalised Australian citizens, but they were very strict with him in his Muslim upbringing – a matter which they now regret. The Applicant subsequently experienced difficulties assimilating into the Australian culture as a child and he has quite a serious criminal history.
6. On 12 November 2004, he was engaged in an argument at a bus stop and during the course of the argument produced a knife and ended up in a physical fight and wounding someone in the shoulder. The Applicant was sentenced to imprisonment for a year but released forthwith on entering a reconnaissance to be of good behaviour for two years.
7.On 21 August 2005, he held up a service station with his face disguised, and threatened the store attendant with a 30 cm knife and stole $245. The Applicant was sentenced to 4 years imprisonment with a non-parole period of 18 months and at the same time was convicted of a breach of reconnaissance.
8.On 1 May 2008, he entered a pizza store, produced a knife and ordered two employees, one of whom was a minor, to hand over the cash drawer and obtained $300 to $600 from the robbery. The Applicant was at the time on probation. On 26 July 2012, the Applicant was convicted and sentenced to 5 years imprisonment for this offence, commencing on 12 November 2009. Twenty-eight days after being discharged from prison he was taken into immigration detention. The Applicant has been in detention since May 2014, both at Villawood and Christmas Island.
9.Between 2004 and 2012, the Applicant was convicted of multiple offences including drink-driving and dangerous driving.
10.All of this amounts to what could only be regarded as a serious criminal record.
11.At the time of all these offences he was addicted to alcohol and drugs. During the Tribunal Hearing held on 2 October 2018, the Applicant very frankly admitted the problems he had had with alcohol and drugs. The Applicant described his addiction as digging him deeper and deeper into a dark hole and that he knew that if he kept it up his future was bleak or non-existent. It was the birth of his daughter in 2012 that made him determined to turn over a new leaf and cure himself of his drug dependence.
12.The Applicant did that between 2012 and 2014 and admitted that there had been failures within the two-year period. Drugs were freely available. The Applicant said that when inmates began talking about drugs he just told them that he had to make a phone call and walked away.
13.By 2014, he was free of his drug dependence and has had no alcohol or illicit drugs since that date.
14.While in detention the Applicant has completed 25% of an online course in carpentry and hopes to further that. The Applicant advised that if released, he will be assisted in finding employment by relatives of his former wife who are involved in the building industry. The Applicant also expressed his desire to be involved in rehabilitation work with people who have suffered a similar life to his own.
15.The Applicant expressed what I regarded as sincere regret for his past errors which he knows are extremely serious. I accept that in the first place his wrongdoing was probably caused by his failure to reconcile a very strict Muslim upbringing with life in this country. The Applicant then took to drugs which led to crime in order to support the drug habit.
On 22 February 2019, the Minister requested the Department to prepare a submission to give consideration to setting aside the 2018 AAT decision and to consider refusing BFM16 a protection visa under s 501A(2) of the Migration Act.
On 26 February 2019, a Notice of Intention to Consider Refusal under s 501A(2) of the Migration Act was issued to BFM16. A copy of Direction 79, which came into force on 28 February 2019, was attached to it. The Notice of Intention advised that, while the Minister is not legally bound by that Direction when making a decision personally, it “will provide a broad indication of the types of issues that the Minister may take into account” and, therefore, BFM16 should read the direction carefully and “address each paragraph in PART B that is relevant to [his] circumstances”.
On 3 March 2019, BFM16 responded to the notice.
RELEVANT MIGRATION ACT FRAMEWORK
It is useful to note the following provisions of the Migration Act.
Section 4 relevantly provides as follows:
4 Object of Act
(1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
…
(4)To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
...
Section 5(1) contains the following definitions:
non-refoulement obligations includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.
Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b)if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
Section 5C sets out the meaning of “character concern”. It includes a non-citizen who has a “substantial criminal record”, being (among other things) a non-citizen who has been sentenced to a term of imprisonment of 12 months or more.
Section 5H defines “refugee” as follows:
5HMeaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)the person committed a serious non-political crime before entering Australia; or
(c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
I note that s 5H(1) closely follows the definition of “refugee” in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol and s 5H(2) closely follows Art 1F of the Refugees Convention.
Section 5M defines “particularly serious crime” as follows:
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
Division 3 of Part 2 of the Migration Act relates to visas for non-citizens which permit them to travel to, enter and remain in Australia. Section 35A provides for different classes of protection visas.
Section 36 sets out the criteria for protection visas. It provides in part as follows:
36 Protection visas—criteria provided for by this Act
(1A)An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
Having regard to the definitions of “refugee” in s 5H (see [20] above), “well-founded fear of persecution” in s 5J, “serious Australian offence” and “serious foreign offence” in s 5, and “particularly serious crime” in ss 5M, 36(2)(a) and 36(1C) relatively closely reflect Art 33 of the Refugees Convention. Articles 32 and 33 of the Refugees Convention provide as follows:
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
…
Article 33
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Section 197C provides as follows:
197CAustralia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Section 198(2A) relevantly provides:
198 Removal from Australia of unlawful non-citizens
…
Removal of unlawful non-citizens in other circumstances
(2A)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is covered by subparagraph 193(1)(a)(iv); and
(b)since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c)in a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision—either:
(i)the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.
Section 193(1)(a)(iv) relevantly provides:
193Application of law to certain non-citizens while they remain in immigration detention
(1) Sections 194 and 195 do not apply to a person:
(a) detained under subsection 189(1):
…
(iv)because of a decision the Minister has made personally under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or
Sections 501 provides in part as follows:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test; and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B)Subsection (3A) does not limit subsections (2) and (3).
(4)The power under subsection (3) may only be exercised by the Minister personally.
(5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii)during an escape by the person from immigration detention; or
(iii)after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the Minister reasonably suspects:
(i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)that the group, organisation or person has been or is involved in criminal conduct; or
(ba)the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i)an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii)the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f)the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g)the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h)an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
…
Definitions
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.
Section 501A provides as follows:
501ARefusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c)not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d)not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the person does not satisfy the Minister that the person passes the character test; and
(e)the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
(3) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c)the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest
(4)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
(4A)Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.
Minister’s exercise of power
(5)The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
Decision not reviewable under Part 5 or 7
(7)A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
Section 501G relevantly provides as follows:
501G Refusal or cancellation of visa—notification of decision
(1)If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; or
(ba) not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non-disclosable information) for the decision; and
(f)…
(2) …
(3)A notice under subsection (1) must be given in the prescribed manner.
(4)A failure to comply with this section in relation to a decision does not affect the validity of the decision.
Section 501H provides as follows:
501H Refusal or cancellation of visa—miscellaneous provisions
Additional powers
(1)A power under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
Cross-references to decisions under section 501
(2)A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501BA, 501C or 501F.
SOLEMN ASSURANCES
Although Articles 32 and 33 of the Refugees Convention and relevant parts of the second reading speech and the Explanatory Memorandum for the Bill that came to be enacted as the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No 135 of 2014) (2014 Amendment Act) and Direction 79 were not in evidence on this application, they are important background to this application.
In BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19) at [32]-[35], Rares J set out Articles 32 and 33 and relevant parts of the second reading speech and Explanatory Memorandum as follows. In the original, Rares J emphasised some passages and that emphasis has been removed; the emphasis below is mine and it is designed to highlight some of the solemn assurances publicly given:
32 Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135 of 2014) (the 2014 Amendments) inserted s 36(1C) into the Act, together with a comprehensive suite of definitions of the other criteria for a person to be a refugee or found to be owed protection obligations in ss 5H-5M and, importantly, s 197C (see Sch 5, Pt 1, item 2 and Pt 2, items 7 and 9).
33 The Minister referred, at [93] of his reasons, to the Explanatory Memorandum for the Bill that came to be enacted as the 2014 Amendments that the then Minister for Immigration and Border Protection, the Hon. Scott Morrison MP, circulated to the House of Representatives.
34 The Explanatory Memorandum made clear at [1236] that the new s 36(1C) was a reasonably precise reflection of Australia’s international non-refoulement obligations in accordance with Art 33(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention). Articles 32 and 33 were not affected by the change to the definition of “refugee” in Art 1 of the 1967 Protocol Relating to the Status of Refugees. Articles 32(1) and 33 read:
Article 32
Expulsion
1.The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
[…]
Article 33
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
(emphasis added)
35 In the second reading speech for the Bill that became enacted as the 2014 Amendments, the Minister’s predecessor told the House of Representatives (Hansard: House of Representatives, 25 September 2014 at 10547-10548):
Schedule 5 of the bill will make clear that the removal power is available independent of assessments of Australia’s non-refoulement obligations, which are addressed in the broader assessment process where a noncitizen meets the circumstances specified in the express provisions of section 198 of the Migration Act. This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.
Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions—not those who seek to direct us otherwise from places outside this country. The new framework clearly sets out the criteria to be satisfied in order to meet the new statutory definition of a ‘refugee’ and the circumstances required for a person to be found to have a ‘well-founded fear of persecution’, including where they could take reasonable steps to modify their behaviour to avoid the persecution.
Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution. Under the new framework, refugee claims will continue to be assessed against the ‘real chance’ test, which has been the test adopted by successive governments, in line with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.
The bill also clarifies the interpretation of various protection related concepts such as:
the standard of effective state and non-state protection;
the test for assessing whether a person can relocate to another area of the receiving country; and
the definition of ‘membership of a particular social group’.
The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa.
(bold emphasis added)
In CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 (CWY20) at [15]-[16], Griffiths J described Direction 79 and set out section 12.1(2) after noting that the applicant in that matter received a similar response to that detailed in [14] above. I adopt his Honour’s emphasis:
15. … The Department wrote to the applicant on 8 April 2019, enclosing a copy of Direction 79, and telling him that he “should now use Direction 79 in place of Direction 65”. The Department told him that if the Minister made the decision personally he or she was not bound by Direction 79, however, Direction 79 “provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether to revoke the original decision to cancel your visa”. Presumably the letter dated 8 April 2019 is a pro forma letter. It contains instructions which have no relevance at all to the applicant. No question of revocation arose in circumstances where the applicant was applying for a visa to be granted to him. But he was told in the 8 April 2019 letter that it was important that he read Direction 79 carefully “as it may be relevant to any response you provide”.
16. The preamble to Direction 79 states that the document provides “a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA”. On page 2 of the Direction, it is stated that Part B of the document identifies considerations which are relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. On page 4, the document specifies that a decision-maker “must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa”. Part B identifies three primary considerations which must be taken into account in deciding whether to refuse a non-citizen a visa. Section 12 of the document identifies “other considerations” which must be taken into account where relevant. They include (without limitation) “International non-refoulement obligations”. Section 12.1(2) provides (emphasis added):
(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizens’ visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
In these reasons, I will refer to the bolded passages from BAL19 and CWY20 set out at [34] and [35] above as “solemn assurances”.
SUBMISSION FOR DECISION AND DECISION PAGE
Included in the Court Book is a “submission for decision” (or S) prepared by the Department. It comprises: a cover page (see [38] below), discussion comprising 112 paragraphs, a Decision Page at attachment 1 (see [39] below), a table of attachments at attachment 2, a draft statement of reasons (Reasons or R) at attachment 3 (see [42] and following below) and evidence and material for BFM16 at attachment 4.
Cover page
The cover page contains recommendations with provision for the Minister to respond to the recommendation set out in each item by electronically circling an answer and crossing out rejected answers. The responses in the second column below which were not crossed out were circled in the original. They were to the following effect (emphasis in the original):
Recommendations
That you:
1. Note that on 22 February 2019 you requested the Department to prepare a full submission for consideration of visa refusal under s501A(2). noted / please discuss2. Note the responses to the Notice of Intention to Consider Refusal of a visa that have been made by or on behalf of [BFM16] at Attachments 2 and 4. noted / please discuss3. Indicate your decision and sign the Decision Page at Attachment 1. signed / not signed/please discuss4. If you exercise your power under s501A(2) to refuse to grant [BFM16’s] visa, sign the draft Statement of Reasons at Attachment 3 with any amendments you consider necessary. signed / not signed/please discuss5. If you decide to refuse to grant [BFM16’s] visa under s501A(2), he will remain an unlawful non-citizen subject to immigration detention noted / please discuss6. If you decide to refuse to grant [BFM16’s] application for a Protection visa, indicate if you would like to consider alternative management options. s195A/ s197AB/ no submission required/ please discuss
Decision Page
The Decision Page:
(1)Commences with the statement that:
I have considered all relevant matters including an assessment of the character test as defined by s501(6) of the Migration Act 1958 (the Act), the national interest, and all information before me provided by, and on behalf of [BFM16] in connection with the possible refusal of his application for a Protection (Class XA) visa.
(2)States four alternatives, the last of which was selected by the Minister:
(a)That BFM16 passes the character test;
(b)That the Minister “reasonably suspect[s]” that BFM16 does not pass the character test and BFM16 has not satisfied the Minister that he does, but the Minister is not satisfied that it is in the national interest to refuse to grant BFM16 a visa with the result that “the power under s 501A(2) is not available to” the Minister in this case;
(c)That the Minister “reasonably suspect[s]” that BFM16 does not pass the character test and BFM16 has not satisfied the Minister that he does, and the Minister is satisfied that it is in the national interest to refuse to grant the visa, but he has decided not to exercise his discretion under s 501A(2). Instead, BFM16 is to be warned about his future conduct in relation to s 501 of the Migration Act; or
(d)That:
I reasonably suspect that [BFM16] does not pass the character test and [BFM16] has not satisfied me that he passes the character test and I am satisfied that it is in the national interest to refuse to grant [BFM16’s] visa. I have decided to exercise my discretion under s501A(2) of the Act to refuse to grant [BFM16’s] Protection (Class XA) visa. I hereby refuse to grant [BFM16’s] Protection (Class XA) visa. My reasons for this decision are set out in the attached Statement of Reasons.
The cover page and the Decision Page appear to have been completed, signed by the Minister and dated 5 April 2019 electronically.
Summary of submission for decision
It is useful to note that the structure of the discussion in the submission for decision is as follows:
(1)S[1]-[2] state as follows:
1. Section 501A(2) of the Migration Act 1958 (the Act) provides a non-delegable power for you to personally set aside a non-adverse ‘original decision’ (including a decision of the delegate or the Administrative Appeals Tribunal (AAT)) not to refuse to grant a visa, if (1) you reasonably suspect that the person does not pass the character test (as defined by s501); (2) the person has not satisfied you that they pass the character test, and; (3) you are satisfied that the refusal to grant decision is in the national interest.
2. This submission has been prepared for you to personally consider refusal of [BFM16’s] application for a Protection (Class XA) visa.
(2)At S[3]-[32] there is a recital of BFM16’s arrival in Australia and his visa history leading up to and including the 2018 AAT decision and the issue of the Notice of Intention .
(3)At S[33]-[43], there is a summary of the consequences under the Migration Act depending on decisions taken by the Minister as follows. In his written submissions, the Minister placed emphasis on the bolded words at S[39]-[40]; that emphasis does not appear in the original:
33. The Notice of Intention to Consider Refusal of a visa issued on 26 February 2019 is at Attachment P. On 3 March 2019, [BFM16] responded to the notice. The response is included at Attachment 4. A full list of attachments is at Attachment 2 and all of the relevant material is at Attachment 4.
34. After considering all of the material, please record your decision and sign on the Decision Page at Attachment 1. If you decide to refuse to grant [BFM16’s] visa, a draft Statement of Reasons is at Attachment 3 for your signature, subject to any amendments you consider to be necessary.
35. If you decide to refuse to grant [BFM16’s] visa, any undecided visa application applied for by [BFM16] at the time of your decision (other than a protection visa or visa specified in the regulations) will also be refused by operation of s501F(2) of the Act. [BFM16] has no pending visa applications.
36. If you decide to refuse to grant [BFM16’s] visa, any other visa held by [BFM16] at the time of your decision (other than a protection visa or visa specified in the regulations) will also be cancelled by operation of s501F(3) of the Act. [BFM16] does not hold any other visa.
37. If you decide to refuse to grant [BFM16’s] visa, merits review of your decision in the Administrative Appeals Tribunal is not available to [BFM16]. However, it would be open to [BFM16] to seek judicial review of your decision in the Federal Court of Australia.
38. If you decide to refuse to grant [BFM16’s] visa, he will remain an unlawful non-citizen subject to immigration detention.
39 [BFM16] is a person in respect of whom Australia has been found to owe protection obligations. This means to remove him to his country of nationality would be in breach of Australia’s international non-refoulement obligations. If you decide to refuse to grant [BFM16]’s Protection (Class XA) visa, he will be an unlawful non-citizen who must be detained under s189 of the [Migration] Act and kept in immigration detention until, relevantly, he is removed from Australia under s189 [sic] or is granted a visa.
40 If you decide to refuse to grant this visa, there is presently no known prospect of removal of him to another country other than his country of origin. Refusal of his visa will mean that as soon as reasonably practicable and if the other conditions in an applicable subsection of s198 are satisfied, he must be removed to [his CoO] even though doing so would be in breach of Australia’s international non-refoulement obligations. This consequence follows from s197C(1) of the Act, which provides that “[f]or the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.
…
42. As a further alternative, it is open to you to consider intervening under s195A of the Act to grant another visa. If you decided to consider whether to intervene under s195A the consequence will be that [BFM16] is detained until you make a decision in this regard. If you decide not to intervene under s195A, then, [BFM16] must be removed to [his CoO] unless some other country is an available destination at that time. That removal must occur as soon as reasonably practicable if the other conditions in an applicable subsection of s198 are satisfied.
43. If you indicate that you wish to consider alternative management options, a further submission will be referred for your consideration.
(4)Under the heading “Background”, the submission for decision sets out BFM16’s age, that he is an applicant for a protection visa, when he arrived in Australia, his return to his CoO with his family for a period of time and the fact that he had resided in Australia for over 20 years: S[45]-[46].
(5)Under the heading “Character test”, S[47]-[48] note BFM16’s conviction for aggravated robbery (in company) and his sentence to five years’ imprisonment and the consequence that he does not pass the character test in s 501(6)(a) with reference to s 501(7)(c) of the Migration Act.
(6)Under the heading “National interest”, at S[49] it is noted that, in accordance with s 501A(2)(e), the Minister must also be satisfied that refusal is in the national interest. At S[50]-[54], there is set out essentially the same consideration of case law set out at R[14]-[17] and the conclusion at R[20].
(7)Under the heading “Offending history”, at S[55]-[65] there is set out commentary on BFM16’s offending history including some sentencing remarks.
(8)Under the heading “Response to the Notice of Intention to Consider Refusal of visa”, S[67]-[76] summarises submissions made on BFM16’s behalf by his then migration agent under the headings “Risk of reoffending”, “National Interest”, “Best interests of minor children”, “Expectations of the Australian Community”, “International non-refoulement obligations”, “Strength, nature and duration of ties to Australia”, and “Impact on victims”. It is relevant to note that S[70]-[71] and S[74] state the following:
National Interest
70. Following on from the AAT finding that [BFM16] is unlikely to reoffend, Mr Kline states ‘If he is not going to re-offend, it cannot possibly be in the national interest within the meaning of s501A(2)(e) of the Act for him to be refused a visa and refouled to a place of danger to his life and safety.’
71. Mr Kline acknowledges that the Ministerial direction regarding the national interest is broad, but notes ‘the one matter the authorities say must be considered is the risk of re-offending and therefore the potential for harm to the Australian community.’He then submits that ‘If, as the AAT found (and found on strong and cogent evidence) that risk is next to nil, any danger to the national interest cannot be engaged.’
…
International non-refoulement obligations
74. Mr Kline notes that [BFM16] is owed international non-refoulement obligations.
(9)Under the heading “Other factors”, there are submissions dealing with the “Best interests of minor children” at S[77]-[79], “Protection of the Australian Community” at [80]-[96], “Non-refoulement obligations” at S[97]-[101], and “Strength, nature and duration of ties to Australia” at S[102]-[107].
(10)S[97]-[101] state as follows:
Non-refoulement obligations
97. On 27 January 2017, the AAT found that [BFM16] is a person in respect of whom Australia has protection obligations, with the country of reference being [his CoO] Attachment H. This means that to remove [BFM16] to [his CoO] would be in breach of Australia’s international non-refoulement obligations. [BFM16] could be removed to a country other than [his CoO] but there is currently no known prospect of removal to such a country.
98. If you decide to refuse to grant [BFM16’s] Protection visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations). According to the relevant provisions of the Migration Regulations, [BFM16] could only apply for a Bridging R (Class WR) visa in response to an invitation. Also, regarding a Protection visa, [BFM16] will be prevented by s48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determined under s48B that s48A does not apply to him.
99. You should also be aware that if you decide to refuse to grant [BFM16’s] Protection visa, he will, as an unlawful non-citizen, be subject to continued immigration detention under s189 of the Act and removal from Australia under s198 of the Act “as soon as reasonably practicable”. In this respect, you should note that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. In relation to the operation of ss189, 196, 197C and 198 of the Act in the context of [BFM16’s] case should you refuse to grant his Protection visa, I refer back to paragraphs 40 to 43.
100. You have been asked to indicate whether or not you would like to consider alternative management options in [BFM16’s] case (which encompass the possibility of granting a visa under s195A) should you decide to refuse to grant his Protection visa.
101. It is open to you to give considerable weight to the assessment that [BFM16] is a person in respect of whom Australia has international non-refoulement obligations and to the statutory consequences of a decision to refuse his application for a Protection visa.
MINISTER’S REASONS
The Reasons appear to have been signed by the Minister and dated electronically without amendment.
Preliminary matters are set out at R[1]-[8]. At R[5], the Minister notes that:
Section 501A(2) of the Act enables me to set aside the original decision made by the AAT decision to not to exercise the power conferred by s501(1) to refuse to grant a visa to a person and to refuse to grant a visa to a person if:
•I reasonably suspect that the person does not pass the character test; and
•The person does not satisfy me that the person passes the character test; and
•I am satisfied that the refusal is in the national interest.
The Reasons are then set out under four major headings, “Character Test”, “National Interest”, “Discretion” and “Conclusion”. There are subheadings in relation to “National Interest” and “Discretion”.
Character Test
Under this heading are R[9]-[12]. In this regard it is sufficient to note that the Minister concluded that, as a result of BFM16 being convicted of aggravated robbery (in company) and sentenced to five years’ imprisonment in 2012, he has a “substantial criminal record” and the Minister “reasonably suspect[s] that he does not pass the character test” by virtue of ss 501(6)(a) and 501(7)(c) of the Migration Act, and BFM16 did not satisfy him that he passed the character test. This indicated that the Minister was satisfied of two of the three preconditions to the exercise of discretion to refuse a visa, being those set out in s 501A(2)(c) and (d) (see [30] above).
National Interest
The third precondition is the national interest consideration referred to in s 501A(2)(e).
At R[13]-[20], the Minister made some general remarks. It is useful to set out R[14]-[20]:
14. The terms of s501A(2) make it clear that national interest considerations are separate and distinct from the question of whether or not a person passes the character test. ‘National interest’ is not defined for the purposes of s501A. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.
15. In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:
‘The Minister in considering the national interest under s501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest’.
16. In Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400, at 409, the Full Court referred to the seriousness of the crimes of the visa holder in that case and said:
‘It is the seriousness of that conduct which has to be assessed in the national interest. Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa’.
17. In Re Patterson; Ex parte Taylor (2001) 182 ALR 657, Gaudron J said, after referring to the decision in Gunner, at 676:
‘Crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled’.
18. I have considered the submissions dated 3 March 2019, from [BFM16’s] then representative, Mr Victor Kline. He submits that the AAT decision of 15 October 2018 ‘was logical and reasoned and in accordance with the evidence he had before him.’
19. Mr Kline acknowledges that the Ministerial direction regarding the national interest is broad, but notes ‘the one matter the authorities say must be considered is the risk of re-offending and therefore the potential for harm to the Australian community.’ He then submits that ‘If, as the AAT found (and found on strong and cogent evidence) that risk is next to nil, any danger to the national interest cannot be engaged.’
20. I consider that matters of national interest include, amongst other things, the seriousness of the criminal conduct having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of it. I also find that matters of national interest include a consideration of the risk of a person reoffending, and the harm which could flow if such a risk eventuated.
Under the sub-heading “Criminal conduct” (at R[21]-[37]), the Minister considered BFM16’s prior criminal conduct, comments made by judges in sentencing, comments made by the AAT and submissions made by BFM16’s representative. At R[35]-[37] the Minister said:
35. I find that the sentences [BFM16] received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy, and in light of the sentences of imprisonment [BFM16] has been sentenced to, including terms of four years and five years respectively, notwithstanding the non-parole periods I have considered that the court viewed the offending as very serious, as do I.
36. I have had regard to the AAT Decision Record of 15 October 2018, which states: ‘There is no doubt whatsoever that the Applicant has committed serious offences for which he has spent time in prison…The sentences imposed by the courts, and the observations made at the time of sentencing, indicate that the offences were regarded very seriously and punished accordingly.’ I note that the AAT also took into consideration that [BFM16’s] history of using knives while committing offences could lead the community to conclude ‘that if he were to use a knife in a similar scenario there could be a risk of serious harm’
37. I have considered the circumstances and nature of [BFM16’s] conduct, which includes amongst other offences, instances of violent offending involving the use of knives, and violent offending against a vulnerable minor. I adopt the judicial observations that [BFM16’s] offending behaviour has at times been very serious, taking into account his offences committed while subject to conditional liberty, and his repeated use of knives ‘capable of causing injury and death.’ I have also given consideration to the dispositions imposed by the court including periods of imprisonment up to five years. In light of these considerations, I conclude that [BFM16’s] conduct is of such seriousness that it is in the national interest to refuse to grant his visa.
Under the sub-heading “Risk of Re-offending” (at R[38]-[101]), the Minister considered BFM16’s risk of re-offending having regard to submissions made by BFM16’s representative and findings in the 2018 AAT decision record. At R[38], the Minister noted that:
I have also had regard to whether [BFM16] poses a risk to the Australian community through committing further criminal offences, recognising that such a consideration may assist in founding a satisfaction that it is in the national interest to refuse to grant his visa.
At R[42], the Minister noted that, in considering BFM16’s risk of reoffending, he also took into account:
(1)Causal factors to BFM16’s prior criminal conduct (at R[43]-[53]);
(2)The likelihood of BFM16’s rehabilitation (at R[54]-[82]), taking into account:
(a)orders made by a Magistrate in 2005;
(b)his release on parole in 2007;
(c)sentencing remarks made in 2012;
(d)BFM16’s statements concerning the impact on him of the birth of his child in 2012;
(e)the recommendation made in 2014 that he be released on parole;
(f)comments made in a 2014 pre-release report;
(g)evidence given to the AAT by a solicitor experienced in criminal law matters indicating that she had never seen BFM16 affected by drugs while in immigration detention; and
(h)evidence given to the AAT by a forensic and clinical psychologist that BFM16 was completely free of drugs and alcohol, he exhibited no signs of mental illness, his positive behaviour in immigration detention indicated his ability to “continue to rehabilitate himself in highly testing circumstances”, his opinion that with his network of social supports “the risk of [BFM16] relapsing with resumed substance abuse and reoffending can, on balance, be reasonably viewed as low” but “out of an abundance of caution” he recommended that BFM16 “obtain psychological treatment to assist with his integration back into the community if he is permitted to remain in Australia”;
(3)BFM16’s repeated offending and history of non-compliance with conditions imposed on the grant of liberty (at R[83]-[85]);
(4)Previous warnings given to BFM16 that his conduct may lead to his removal from Australia (at R[86]-[89]);
(5)BFM16’s remorse for his actions (at R[90]-[93]);
(6)BFM16’s behaviour in custody (where he had come to adverse attention) and detention (where a welfare officer on Christmas Island had indicated that he had “displayed exceptional behaviour” and that he was “an exceptional role model”) (at R[94]-[95]); and
(7)Community support including from BFM16’s family members, his former wife and other associates (at R[96]-[98]).
Under the sub-heading “Conclusion - risk”, the Minister set out his conclusions as to the risk at R[99]-[101] as follows:
Conclusion - risk
99. While [BFM16] has a very poor history of compliance with court orders, he has inevitably committed further offences when given the opportunity to undertake rehabilitation in the community, and has not demonstrated the capacity to lead a law abiding lifestyle in the community, I acknowledge that [BFM16] has completed a program to address the lack of cognitive skills that have contributed to his offending, and has maintained a record of positive behaviour in immigration detention over a significant period of time in sometimes trying and traumatic circumstances. However, as stated above, I remain guarded about the prospects of [BFM16] not relapsing into substance abuse and associated criminality.
100. Although I give weight to Professor Wood’s opinion that the risk of [BFM16] committing further offences is low, I do not consider this to be extremely low to the extent of being remote as submitted by Mr Kline.
101. Overall, I find that there is an ongoing risk that [BFM16] will continue to engage in criminal conduct. Given his past offending, especially that involving violence and the use of knives, I find that if [BFM16] were to commit further violent offences it places members of the community at risk of serious physical and/or psychological harm. Furthermore, if [BFM16] were to commit any further offences it would also cause a cost to the community through any required involvement of law enforcement and the justice system.
Under the sub-heading “Conclusion - national interest” at R[102] the Minister said:
In sum, having regard to the above, including [BFM16’s] criminal conduct in Australia, which includes violence that has been categorised by the courts and the AAT as being very serious and has at times involved violent acts against members of the community, including vulnerable minors, and the risk to the Australian community, I conclude that it is in the national interest to refuse to grant [BFM16’s] visa.
Discretion
The Minister then turned to the consideration of whether to exercise his discretion under the heading “Discretion”. At R[103], the Minister said:
Having found that [BFM16] does not pass the character test and that it is in the national interest to refuse to grant [BFM16’s] visa, and having assessed the information set out in the ministerial submission and attachments, I considered whether to exercise my discretion to refuse to grant [BFM16’s] visa, taking into account factors that I considered weighed against and in favour of refusing to grant [BFM16’s] visa. In making my decision I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.
The Minister then addressed the following matters under individual headings:
(1)“Best interests of minor children” (at R[104]-[109]). The Minister said that he had treated the best interests of any affected children who are less than 18 years of age in Australia as a primary consideration and he concluded that it is in the best interests of BFM16’s daughter and niece not to refuse to grant him a visa;
(2)“Expectations of the Australian community” (at R[110]-[112]). The Minister concluded that, given the serious nature of BFM16’s violent offences, the Australian community would expect him not to be granted a visa;
(3)“International non-refoulement obligations” (at R[113]-[119]) (see [55] below);
(4)“The strength, nature and duration of ties to Australia” (at R[120]-[130]). The Minister noted that while BFM16 had spent 22 years in Australia, most of his adult life had been spent in criminal custody and immigration detention rather than in the community. The Minister took into account that two of BFM16’s siblings are Australian citizens. The Minister also took into account BFM16’s representative’s submission that he has a strong supportive network of family and friends in Australia and that, if the visa was refused, his elderly parents would experience substantial emotional hardship, his siblings would suffer emotional hardship, his friends would be disappointed, and his former wife (with whom he maintains an amicable relationship) would likely experience emotional and practical hardship. The Minister found that BFM16 had made some positive contributions to the community between 2002 and 2010 and recognised the effect of visa refusal for minor children, family members and friends; and
(5)“Impact on victims” (at R[131]). The Minister noted the submission from BFM16’s legal representative that it was “extremely unlikely” that visa refusal would impact on the victims of BFM16’s criminal behaviour or their families.
In relation to “International non-refoulement obligations”, the Minister said:
International non-refoulement obligations
113.[BFM16] is a national of [CoO]. [BFM16] has made claims as part of his response to the Notice of Intention to Consider Refusal dated 26 February 2019.
114.On 27 January 2017, the AAT concluded that [BFM16] had a fear of persecution for reasons of his religion if he returns to [his CoO]. Accordingly, the AAT found that [BFM16] is a person in respect of whom Australia has non-refoulement obligations, and I accept that finding.
115.I understand that if I decide to refuse to grant [BFM16’s] Protection visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa. I further understand that, according to the relevant provisions of the Regulations, [BFM16] could only apply for a Bridging R (Class WR) visa in response to an invitation, and that in respect of a Protection visa, he will be prevented by s48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s48B that s48A does not apply to him).
116.I am aware that the statutory consequence of a decision to refuse to grant [BFM16’s] Protection visa is that, as an unlawful non-citizen, [BFM16] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, continued detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
117.I am mindful that even if I refuse to grant [BFM16’s] visa, I have a personal non-compellable power in s195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [BFM16’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to [his CoO], having regard to s197C.
118.I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [BFM16’s] criminal offending in the making of my decision whether to refuse to grant [BFM16’s] Protection visa.
119.In making my decision I have also taken into account the impact that detention has had on his health as outlined in the psychologist report by Ms Burke dated 31 October 2016 who stated that [BFM16] suffers with depression, extreme stress and anxiety about his ongoing stay in detention.
Conclusion
Under the heading “Conclusion”, the Minister said (at R[132]-[140]):
132.I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act, (2) the national interest, and (3) all other evidence available to me, including evidence provided by, or on behalf of [BFM16].
133.Having given full consideration to all of the information before me in this case, I reasonably suspect that [BFM16] does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) and [BFM16] has not satisfied me that he passes the character test. Also, I am satisfied that refusal of [BFM16’s] visa is in the national interest.
134.In considering whether or not to refuse to grant [BFM16’s] visa, I gave primary consideration to the best interests of [BFM16’s] child and have found that her best interests would be best served by not refusing the visa, as would that of [BFM16’s] niece.
135.I also considered the risk posed to the Australian community by [BFM16’s] continued presence in Australia, taking into consideration his past criminal conduct, particularly that involving violence, as well as the risk of him reoffending.
136.[BFM16] has committed very serious crimes of a violent nature involving stabbing and robbery involving knives, which in one instance involved a vulnerable member of the community, that being a minor. Non-citizens such as [BFM16] who commit such offences should not generally expect to be permitted to remain in Australia.
137.I find that the Australian community could be exposed to significant harm should [BFM16] reoffend in a similar fashion, committing violent offences involving knives. I could not rule out the possibility of further offending by [BFM16]. The Australian community should not tolerate any further risk of harm.
138.I found the above considerations outweighed the countervailing considerations in [BFM16’s] case, including the best interests of his daughter and niece treated as a primary consideration, non-refoulement obligations, and the impact on his family members and friends in Australia. I have also considered the positive contributions [BFM16] has made to the community through his education and employment.
139.I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to refuse to grant the visa. This is the case even applying a higher tolerance of criminal conduct by [BFM16], than I otherwise would because he has lived in Australia from a very young age, arriving at the age of four.
140.I find that the considerations favouring non-refusal, in particular the best interests of the affected children treated as a primary consideration, and [BFM16’s] ties to Australia and the hardship on him and his family members and friends, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [BFM16’s] application for a Protection (Class XA) visa under s501A(2) of the Act.
JUDICIAL REVIEW APPLICATION
At the hearing of this application, Mr Godwin appeared for BFM16. Mr Lenehan SC appeared for the Minister. Written outlines of submissions were filed on behalf of BFM16 and the Minister before the hearing.
BFM16 was not legally represented when he filed his application for review. He subsequently obtained the pro bono assistance of Mr Godwin of counsel, following which an amended originating process was filed without leave. The Minister did not oppose leave being granted to BFM16 to rely on the amended originating process and that leave was granted at the hearing.
While judgment was reserved, Rares J handed down judgment in BAL19. BFM16 sought leave to amend the amended originating process to introduce grounds reliant on that decision and that the matter be adjourned pending resolution of an appeal in BAL19. The Minister consented to orders being made and that was done. As a result, the further amended application was filed introducing the fourth and fifth grounds.
The further amended application contained the following grounds:
1.In his assessment of the National Interest the respondent failed to take into account the fact that Australia will be in breach of its international obligations as a consequence of the steps that will occur upon refusal of the visa by him.
2.The respondent failed to address whether or not [his CoO] would cooperate in allowing [BFM16] to return there.
3.The respondent failed to address the consequences for the applicant if [his CoO] did not cooperate in allowing the applicant to return there.
4.The respondent acted unreasonably and failed to engage in an active intellectual process in considering the legal and practical consequences of his decision as he
a.Failed to consider in any way the purpose of the Parliament in enacting s 36(1C) as its expression of the nation’s non-refoulement obligations in respect of the acceptable danger to the Australian community of a refugee other than by his using the generic description of “international non-refoulement obligations” in his reasons;
b.Failed to consider the practical consequences for the applicant of being returned to [his CoO]
5.The respondent did not have the power to refuse the grant of a protection visa to the applicant under s 501A(2) of the Act as he was precluded from doing so by the specific power in s 36(1C) of the Act.
On 1 July 2020, by email to chambers, the Minister’s legal representative advised the Court of the Full Court’s decision in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (KDSP) and of the statement accompanying the orders made by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (SAD 70 of 2020) and BGS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NSD 331 of 2020). The Full Court has since published reasons in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121 (BFW20). The parties agreed that, as a result of those decisions, the fifth ground could not succeed and accordingly BFM16 does not press it. A timetable for the provision of written submissions relating to the fourth ground was agreed and written submissions were provided by both parties in accordance with it.
After a date for handing down judgment had been set, the parties approached chambers to allow time for further submissions in relation to the first ground of review having regard to Griffiths J’s decision in CWY20 and leave was granted for filing of those submissions.
FIRST GROUND
Having regard to the submissions made by BFM16 and the Minister in relation to CWY20 and therefore the basis on which they have joined issue, BFM16’s first ground should be understood as being: the Minister did not, in his assessment of national interest, consider the fact that Australia would be in breach of its international obligations as a consequence of the steps that will occur if the Minister refused BFM16 a protection visa and thereby formed his assessment of the national interest unreasonably and not on a correct understanding of the law.
BFM16’s submissions
BFM16 made the following submissions in support of the first ground:
I do not accept these submissions and prefer the Minister’s submissions that the ground is not made out because there was nothing before the Minister which indicated that there would be any “real possibility” of a legal or practical impediment to BFM16’s return to his CoO.
The application for a protection visa made in September 2015 indicates that BFM16 then held a passport issued by his CoO, which, unless renewed, would have expired before the Minister made the decision under review. BFM16 said that it was held by his parent or his then wife.
BFM16’s submissions to the Minister contained nothing to suggest that there would be any legal or practical impediment to BFM16 obtaining a new passport or to him being removed to his CoO. This is in contrast to the position in Cotterill, where Mr Cotterill’s submissions stated that he had a number of identified health conditions and it was possible that “in the event of a cancellation he may not be able to be returned to the United Kingdom due to his health condition and would face prolonged and possibly indefinite detention”: see Cotterill [117]. The Minister failed to take into account the practical situation which had been drawn to his attention by Mr Cotterill with the result that the Minister failed to take into account the legal consequences of his decision to cancel the visa under ss 189,196 and 198 of the Migration Act.
The discussion in the submission for decision at S[97]-[99] (see [41(10)] above) proceeds on the clear assumption that BFM16 could be removed to his CoO. I accept that in the absence of any submission or evidence to the contrary, the Minister was entitled to act on that assumption.
In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [106], Gummow J noted that by customary international law it is said that the State of nationality is under a duty towards other States to receive its nationals back onto its territory. At [109], his Honour noted (without criticism) that the decisions in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 and Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 had proceeded on the assumption that “once the status of an illegal immigrant was established, then expulsion or deportation would be a practicable course and that the country of nationality could be expected to discharge its international responsibilities”, an assumption not available where the person was stateless.
In Atkins, the fact that Iran does not accept involuntary returnees was before the Tribunal and the Tribunal considered the possibility that the cancellation of Mr Atkins’ visa might lead to indefinite detention. Those facts are far removed from the position in BFM16’s case.
In any event, the consequence of a decision to refuse BFM16 a protection visa would be that BFM16’s detention would continue until his removal could be arranged and the impact of continued detention on BFM16 was drawn to the Minister’s attention and referred to in the Reasons: see S[38] and [99] and R[116] and [119].
FOURTH GROUND
The fourth ground of review is that the Minister acted unreasonably and failed to engage in an active intellectual process in considering the legal and practical consequences of his decision in two ways set out in paragraph (a) and (b) of the ground.
As noted previously, the fourth ground reflects the reasoning of Rares J in BAL19 in relation to the first ground pleaded in BAL19’s case while BFM16’s fifth ground (on which he does not now rely) reflects the second ground in BAL19’s case. Justice Rares’ decision in respect of the first ground in BAL19’s case was not considered or expressly overturned in KDSP or BFW20, while his Honour’s reasoning in relation to the second ground was found to be in error.
In relation to the fourth ground of his application for review, BFM16 relies in particular on BAL19 at [37], [50]-[54] which are as follows:
37 Here, the Minister accepted that Australia owed the applicant non-refoulement obligations because he had a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups (at [91]-[92]). That is, the Minister found, in substance, that the applicant was a refugee within the meaning of ss 5H and 36(2)(a). The Minister did not suggest that the applicant had not satisfied the other criteria in s 36(1A). Yet, at no point did the Minister refer to s 36(1C) or explain what he understood were Australia’s non-refoulement obligations in which s 36(1C) plays a crucial role.
…
50 Refoulement of the applicant to Sri Lanka as soon as reasonably practicable, even though Australia owed him protection obligations, would be the, or a reasonable, legal and the immediate practical, consequence of a decision to refuse the visa. Contrary to what he said in [95] and [97], were he to have refused the visa, the Minister had no reasonable, available alternative to refoulement as soon as reasonably practicable, but to act in accordance with the requirements of ss 197C and 198. The Minister’s reasons at [94]-[97] were perfunctory and cursory. They did not amount to an active intellectual process that engaged at all with, let alone with the legal or practical consequence of, what his assessment of risk necessarily would entail, if he refused the visa, namely that he would have to refoule the applicant in breach of this country’s international obligations as reflected in s 36(1C).
51 The Minister’s use of the reasoning in [94]-[97] was tantamount to saying that he had considered the consequences under ss 197C and 198 of refusing to grant the visa, but disregarded them: Telstra 176 FCR at 182 [107], applying East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ, 256 [102] per Gummow and Hayne JJ. The effect of this reasoning would be to prolong the immigration detention of the applicant to further deprive him of his liberty in this country. That prolongation could only occur (having regard to ss 197C and 198) if the Minister could be, or was, considering using his non-compellable powers under s 195A to grant a visa or under s 48B to allow the applicant to make what necessarily would be a futile application for a substantive visa (because even if allowed to be made, it necessarily would be refused), thus justifying the continued detention for the purposes of that consideration: cf. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 198 [44], 200-201 [52]-[57] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. The applicant’s arbitrary detention, that both the Australian Human Rights Commission and the WGAD had found inconsistent with the applicant’s internationally recognised human rights would only be exacerbated by further delay.
52 The possibility that the Minister might consider using, or use, his non-compellable powers in that way in order to hold a person in immigration detention when there is no bona fide or rational possibility that those powers will be exercised so as to result in the grant of a visa, is beyond the Minister’s power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ (see too at 12 per Mason CJ).
53 In [94], the Minister said, in effect, that the correct understanding of the law was as he set out at [95] and [97]. He did this as a basis for not addressing (or engaging in an active intellectual process), in making his decision under s 501(1), whether the legal or practical consequence of his decision would be that he would have to refoule the applicant in accordance with ss 197C and 198. That was a material error of law since, in acting under s 501(1), he had to take into account that the legal or practical consequence of a decision to refuse to grant the visa on the basis that his reasoning process in [115]-[119] inevitably would be refoulement: NBMZ 220 FCR at 4-5 [6]-[10] per Allsop CJ and Katzmann J, 39 [177]-[178] per Buchanan J; Taulahi 246 FCR at 168 [84] per Kenny, Flick and Griffiths JJ; Cotterill 240 FCR at 48 [107], 51-52 [129]. Nor did the Minister consider in any way the purpose of the Parliament in enacting s 36(1C) as its expression of the nation’s non-refoulement obligations in respect of the acceptable danger to the Australian community of a refugee other than by his using the generic description of “international non-refoulement obligations” in his reasons. That failure also represented a lack of engagement in an active intellectual process.
54 The Minister committed a material jurisdictional error. What the Minister said in [94]-[97] of his reasons demonstrated that he did not approach the exercise of the discretion under s 501(1) on the basis that a refusal would have the legal or practical consequence of refoulement (as the direct and immediate result) that ss 197C and 198 mandated, in spite of this country’s non-refoulement obligations owed to the applicant. He acted unreasonably (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 362-363 [63]) and did not address the correct question, namely what would happen to the applicant (i.e. the legal or practical consequence) if the visa were not granted because of the “unacceptable” risk that the Minister found and, as must then happen, he were returned to Sri Lanka where, the Minister also found, there is a real chance that the applicant would be persecuted as a person who had been involved with the LTTE for 10 years.
BFM16 made the following submissions:
(1)The Minister gave no consideration to the intention of Parliament in enacting s 36(1C) and making the potential danger to the Australian community of the applicant remaining in Australia as part of a process of determining whether the applicant should be eligible for the grant of a protection visa. As in BAL19, there is no reference to s 36(1C) in the Reasons. BFM16 relies on BAL19 at [37] and [53] in this regard.
(2)While, at R[118] (see [55] above), the Minister said that he carefully weighed Australia’s non-refoulement obligations when he considered the seriousness of BFM16’s offending, the Minister did not refer to the fact that the danger to the Australian community of BFM16 remaining in Australia had been determined to be acceptable when addressing the criterion in s 36(1C). (I note that none of the materials before the Court contain an express consideration of the criterion in s 36(1C)). The Minister did not grapple with the seeming contradiction between his assessment of risk and that which had already taken place in the assessment of protection obligations.
(3)The non-refoulement obligations referred to in R[118] are owed to other nation states. To say that non-refoulement obligations have been carefully considered is not to say that the specific harm that BFM16 had been found likely to suffer on return to his CoO had been considered.
(4)The Minister did not attempt to engage in an active intellectual way with the risk BFM16 faced in his CoO. That harm is the practical and legal consequence of the Minister’s decision.
Paragraph (a)
Paragraph (a) of this ground is a contention that, the Minister failed to give consideration to the intention of Parliament in enacting s 36(1C) of the Migration Act as an expression of the nation’s non-refoulement obligations in respect of the acceptable danger posed by a refugee to the Australian community other than by using the description of “international non-refoulement obligations”. Section 36(1C) is set out at [24] above.
I accept the Minister’s submission that paragraph (a) of the fourth ground is misconceived.
The first ground in BAL19 was primarily concerned with the Minister’s reasoning regarding the possible exercise of his non-compellable powers to grant another visa: see BAL19 at [49]-[52] and the first three sentences of [53] and [54].
In BFM16’s case, the Minister indicated that he did not wish to receive submissions about non-compellable powers and it must be inferred from that that the Minister did not intend to exercise them. It is clear from R[116]-[117] (see [55] above) that the Minister understood that the consequence of exercising his discretion to refuse the visa where the non-compellable powers were not exercised was that BFM16 would be removed to his CoO “as soon as reasonably practicable” notwithstanding any breach of non-refoulement obligations in circumstances where the Minister accepted (at R[114]) that Australia owed non-refoulement obligations in respect of BFM16 where the receiving country is his CoO.
The “purpose of the Parliament” aspect of the first ground in BAL19 was explained by Rares J in BAL19 at [45]:
45 The Minister’s reasons did not explain how the risk that the applicant posed disentitled him to a protection visa when the Parliament expressly stipulated in s 36(1C) that a criterion for such a visa was that, first, a person who had not been convicted of a particularly serious crime here or overseas was eligible for the grant of the visa and, secondly, even a person [that] had been convicted of such a crime was eligible, unless the Minister also considered, on reasonable grounds, that the person was, in fact, a danger to the Australian community.
I accept the Minister’s submission that Rares J’s findings concerning the first ground in BAL19 were, like the second ground, premised upon the understanding that the presence of s 36(1C) in some way constrained the exercise of the power conferred by s 501(1). Justice Rares held that it was necessary for the Minister to consider and explain why he was departing from the standard “expressly stipulated” by Parliament regarding the “acceptable danger to the Australian community of a refugee” in s 36(1C): see BAL19 [45], [53].
That reasoning cannot stand in light of the Full Court’s decisions in KDSP and BFW20. In KDSP at [284], O’Callaghan and Steward JJ found that ss 36(1C) and 501(1) are cumulative requirements. Where an applicant fails to satisfy s 36(1C) they will not be eligible for a visa, but if the applicant satisfies s 36(1C), he or she remains subject to the Minister’s discretionary powers in s 501. A similar point was made in BFW20 at [129]. Accordingly, as ss 36(1C) and 501(1) (or, relevantly, s 501A(2)) are cumulative requirements, Parliament’s intention in enacting s 36(1C) says nothing about whether or not there is a basis for the Minister to refuse the visa under ss 501 or 501A(2).
Paragraph (b)
Paragraph (b) of this ground relies on the failure of the Minister to consider the practical consequences for BFM16 of being returned to his CoO.
What is so striking about the part of the Reasons dealing with the impact of Australia’s non-refoulement obligations on his decision under s 501A(2) (and to a similar extent in FRH18 and CWY20) referred to above is the formulaic and perfunctory nature of the consideration.
For the reasons given at [150]-[159] above, in my view the Reasons and the discussion in the submission for decision did not sufficiently consider the basis of the finding made in the 2017 AAT decision at [87]-[89] and this ground should therefore be allowed.
The Minister submitted that: The Minister specifically referred to (and accepted) the Tribunal’s finding in the 2017 AAT decision that BFM16 was a person in respect of whom Australia owed non-refoulement obligations (see R[114] at [55] above). The decision record for the 2017 AAT decision was attachment H to the submission for decision and the Minister can be taken to have adopted it. That decision record contained detailed findings as to the nature of the risk of harm BFM16 faced in his CoO. It is apparent from R[116]-[117] that the Minister considered those risks and/or harms may eventuate, acknowledging that BFM16 would be liable to be removed to his CoO “as soon as reasonably practicable”.
Those submissions should not be accepted.
Although the 2017 AAT decision was attached to the submission for decision, there is no evidence that either the writer(s) of the discussion in the submission for decision and draft reasons or the Minister had any regard to it beyond the bare finding that Australia owed non-refoulement obligations in respect of BFM16.
R[114] indicates that the Minister did not understand that BFM16 had a “well-founded” fear of persecution upon returning to his CoO. The Reasons make no reference at all to the risks or harms BFM16 might face on return there. As said above, the statements at R[118] and R[138] are so perfunctory that it cannot be concluded that the Minister took any account at all of the basis of the 2017 AAT’s finding so as to be in a position to consider the practical consequences of the legal decision the Minister was making in circumstances where he had refused any submissions as to alternative management options.
The Minister submitted that the representations to the Minister filed on BFM16’s behalf did not seek to elaborate on any risk that he might face in his CoO and said nothing more than “International non-refoulement obligations: these are owed to [BFM16]”. The Minister says that he could not be said to be obliged to consider a reason for a particular exercise of power not in fact put by the applicant. The Minister relied on remarks made by Jagot, Bromwich and Thawley JJ in Sowa v Minister for Home Affairs [2019] FCAFC 111 at [43].
The outcome in Omar, accordingly, depended on the terms of the representations which had been put to the Minister. Contrary to the appellant’s submissions, the representations in the present case are not analogous to those that are the subject of consideration in Omar. It is clear from BCR16 at [60] and [72] that there is a difference between claiming to fear harm if required to return to a place and non-refoulement obligations. In the present case, the representations by the appellant make no reference at all to non-refoulement obligations. The representations at AB 73 to 74 are about the appellant’s fear of harm if required to return to Sierra Leone. In contrast to the position in Omar, there is no reference in the representations to Australia’s practice of not returning a person to a place if non-refoulement obligations are owed and there is the potential consequence of indefinite detention. The representation is about a fear of harm if required to return to Sierra Leone, which the Assistant Minister expressly considered in his reasons. As the Minister submitted, the Minister is not required to consider a reason in favour of revocation not in fact put by the appellant: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [79(3)] and [80]. In the present case, nothing was put about non-refoulement obligations and the potential consequences of those obligations for the appellant.
The failing was the Minister’s, not that of BFM16 or his advisor. As I noted above, in light of the statement in Direction 79 at 12.1(2), Mr Kline’s response by reference to paragraph 12.1 that international non-refoulement obligations were owed sufficiently raised the issue. Further, as noted in the discussion in the submission for decision (see [41(8)]), Mr Kline submitted that: “If he is not going to re-offend, it cannot possibly be in the national interest within the meaning of s 501A(2)(e) of the Act for him to be refused a visa and refouled to a place of danger to his life and safety”. That submission is not referred to in the Reasons, albeit that other matters mentioned in Mr Kline’s submissions were (for instance at R[18] and [19]). There is nothing in the Reasons that demonstrates that the Minister accepted that refoulement meant exposing BFM16 to a real chance that he would be killed or otherwise subject to “persecution” as defined.
The Minister also submitted that, in any event, the power conferred on the Minister by s 501A(2) supplies arid ground for implying a requirement to consider any specific factors that are personal to a visa holder; the passages of BAL19 on which BFM16 relies (concerning s 501(1)) do not suggest otherwise.
This submission should also be rejected. It fails to recognise the obligation of the Minister to engage adequately with the application before him and the consequences of the decision being made.
CONCLUSION
A number of cases have reiterated what was said by Allsop CJ (with whom Markovic and Steward JJ agreed) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (emphasis added):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
While this case concerns a decision under s 501A of the Migration Act, in my view, those remarks apply with equal force with respect to determination of the national interest and the exercise of the discretion enlivened by that consideration. In my view, the Minister signally failed to meet these standards in this case.
I recognise that the Migration Act (as amended by the 2014 Amendments) does not expressly require the Minister to refrain from exercising the discretion in s 501A in breach of Australia’s obligations to other countries not to refoule non-citizens who meet the criterion in s 36(2)(a) or (2)(aa) and who are not excluded by reason of the criterion in s 36(1C).
However, the Reasons (and to a significant extent, the discussion in the submission for decision) are formulaic and contain no recognition that the solemn assurances had recently been made by two Ministers with responsibility for immigration (including the current Prime Minister and the Minister who made this decision); that there may be consequences for the national interest of breaching the Convention and those solemn assurances; or of the true basis of non-refoulement obligations owed in respect of BFM16.
The frequent incantation of the term “international non-refoulement obligations” or “non-refoulement obligations” in discussion in the submission for decision and in the Reasons obscures more than it reveals in circumstances where there was no recognition that those obligations are owed to other nations. The Reasons reveal that, in purporting to exercise a discretion enlivened by the national interest consideration, the Minister did not properly understand the basis of the finding in the 2017 AAT decision with respect to BFM16. The Minister failed to recognise that BFM16’s “fear” was “well-founded” and refused to consider alternative management options at the time he decided to refuse a protection visa despite two Tribunals having found protection obligations were owed under the Migration Act. I note that the Minister was not assisted (in a case where the criterion in s 36(2)(a) has been met and the criterion in s 36(1C) does not apply) by the terms of the cover page, particularly in the interaction between items 5 and 6.
As I am satisfied that grounds 1 and 4(b) are made out, the Minister’s decision should be quashed with costs.
I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell. Associate:
Dated: 31 March 2021
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