BHB23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 190
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BHB23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 190
File number: MLG 854 of 2023 Judgment of: JUDGE BLAKE Date of judgment: 4 March 2024 Catchwords: MIGRATION - cancellation of visa – whether Tribunal properly considered the Applicant would be subject to indefinite detention when it cancelled visa – whether ‘prolonged’ is the same as ‘indefinite’ – held Tribunal considered whether Applicant was to be indefinitely detained – application dismissed. Legislation: Criminal Code Act 1996 (Cth).
Migration Act 1958 (Cth) ss 116, 197C(2), 197C(3), 198, 499, 499(2A).
Migration Regulations 1994 (Cth) regs 2.43, 2.43(1), 050.211, 050.212, 050.221, and 050.511.
Cases cited: TCWY v Minister for Immigration and Border Protection [2017] FCA 1276
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 22 January 2024 Place: Melbourne Counsel for the Applicant: Mr Drent (Pro Bono) Solicitor for the Applicant: None Counsel for the Respondents: Ms Campbell Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 854 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHB23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.The Application filed on 17 May 2023, as amended 22 December 2023, be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 28 March 2023. In that decision, the Tribunal affirmed the decision of a delegate of the Minister (‘delegate’) to cancel the Applicant’s Subclass 050 (Bridging (General)) visa (‘visa’) (Court Book (‘CB’) 85).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Iranian national. He arrived in Australia on 13 October 2012. On 5 December 2012, the Applicant was granted a Humanitarian Stay (UJ-499) visa. He subsequently obtained various bridging visas.
On 3 May 2017, the Applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).
On 16 June 2017, the Applicant obtained the visa.
In February 2018, the Applicant was charged with several offences under the Criminal Code Act 1996 (Cth).
On 5 February 2018, the delegate issued to the Applicant a Notice of Intention to Consider Cancellation of the visa. The delegate decided to cancel the visa on 5 February 2018.
On 13 December 2018, the application for the SHEV was refused. The Immigration Assessment Authority (‘Authority’) subsequently on 20 February 2019, affirmed the decision to refuse the SHEV. The Applicant never sought to review the decision of the Authority in relation to the SHEV.
On 10 March 2023, the Department re-notified the Applicant of the cancellation of the visa.
On 13 March 2023, the Applicant applied to the Tribunal to review the cancellation of the visa.
On 22 March 2023, a hearing was held at the Tribunal.
On 28 March 2023, the Tribunal affirmed the decision not to grant the Applicant the visa.
The Applicant filed an application in this Court to review the decision of the Tribunal on 2 May 2023. The application was accompanied by a supporting affidavit.
Before me, the Applicant relied on his Amended Application for Review lodged on 21 December 2023 (‘Application’), his affidavit of 17 May 2023, and an affidavit filed 22 January 2024. The Minister relied on a Response filed 23 June 2023, an outline of submissions dated 8 January 2024, and a supplementary outline of submissions filed 15 January 2024. The Minister also prepared a Court Book and a Supplementary Court Book upon which both parties relied. I was also provided with a Joint Bundle of Authorities. Subsequent to the hearing, the Minister provided, at the request of the Court, extracts from the Migration Regulations 1994 (Cth) (‘Regulations’) concerning Subclass 050 Bridging (General) visas, specifically regulations 050.211, 050.212, 050.221 and 050.511. I have had regard to all of this material.
THE APPLICATION
There is a single Ground of Review in the Application. It is as follows:
1.The Second Respondent fell into error in that the Tribunal misunderstood its task, made findings based on irrational or illogical reasoning or failed to give proper, genuine and realistic consideration to the prospect that the applicant would face indefinite detention as a consequence of the non-revocation of the visa cancellation decision, or alternately consider the consequences of indefinite detention on the applicant.
Particulars
a.The Tribunal accepted that affirming the delegates decision would as a consequence mean the applicant would become an unlawful non-citizen and may be liable to remain in detention under s 189 of the Migration Act.
b.The Tribunal noted that there were no further avenues for judicial review and as such there was no impediment to the applicant returning voluntarily to Iran while noting Iranian authorities do not currently accept nonvoluntary returnees.
c. The Tribunal considered the obligation to remove along with the operation of s 197C of the Act the insertion of s 197C (3) ultimately finding that this particular section did not apply to the applicant. There was no direct consideration of s 197C(2) or the under s 198 or the requirement that removal be reasonably practicable and if not, what this entailed for the Executive and its statutory responsibilities.
d.The Tribunal found that cancellation of the bridging visa may lead to prolonged detention if the applicant refused to voluntarily depart the country however failed to properly consider (a) whether cancellation would result in indefinite detention, and (b) the possible consequence of such indefinite detention on the applicant as required under Ministerial Direction No. 63 (7)(d).
e. Alternately, the applicant had at the time of the AAT hearing been in remand for a number of years having served his sentence and had subsequently been in immigration detention for around five months. There was no consideration of the adverse human consequences that indefinite detention could have on the applicant.
The visa was cancelled under section 116 of the Migration Act 1958 (Cth) (‘Act’) and regulation 2.43(1)(p) of the Regulations.
Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. According to subsection (2A) of section 499, where such directions are given, a person or body (including the Tribunal) must comply with a direction.
Relevantly in this matter, the Minister has issued Direction No 63 ‘Bridging E visas- Cancellation under section 116(1)(g) - Regulation 2.43(1)(p) or (q)’ (‘Direction 63’). Direction 63, among other things sets out at items six and seven, primary and secondary considerations. Of particular relevance to the present matter, is item 7(1)(d) which provides as follows:
7. Secondary considerations
(1) In deciding whether to cancel a non-citizen's Bridging E visa, the following secondary considerations must be taken into account:
d. the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status;
The Applicant’s point both in written and oral submissions before me is a short one. The Applicant contends that it was mandatory for the Tribunal to consider item 7(1)(d) and that cancellation of the visa could result in indefinite detention. Despite that, however, the Tribunal did not directly consider whether cancellation of the visa could result in indefinite detention of the Applicant as required by item 7(1)(d) of Direction 63. The Applicant submitted that the Tribunal failed to consider the reasonable practicality of a return to Iran in the context of indefinite detention. It was submitted that the course a particular individual’s case might take after visa cancellation will be ‘highly fact dependent’, and that a decision maker must engage with the legal and practical realities of the act of removal: Robertson J in TCWY v Minister for Immigration and Border Protection [2017] FCA 1276; WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
The Applicant submitted that the error of the Tribunal can be seen from paragraph [50] of the reasons. There, the Tribunal refers to ‘prolonged’ detention rather than ‘indefinite’ detention. Paragraph [50] is extracted below:
50. As such, cancellation of the applicant [sic] bridging visa may lead to prolonged detention if the applicant refuses to voluntarily depart the country. However, the Tribunal has found that the applicant does not have a real chance or a real risk of seriously [sic] or significant ham if he is returned to Iran. In such circumstances, the applicant can return to Iran voluntarily at any time. The Tribunal gives this factor some weight towards cancelling the visa.
The Applicant submits that ‘prolonged’ is not the same as indefinite, and that the Tribunal has failed to engage in active intellectual process in relation to the legal and practical consequences of its decision.
In order to assess the submissions, it is necessary to have regard to the way in which the Tribunal reasoned.
The Tribunal set out the history and background of the Applicant at paragraphs [6]-[13] of its reasons. Among other things, within those paragraphs, the Tribunal noted the Applicant’s evidence that he was introduced to a House Church, that the House Church was raided by police and intelligence services, and that it became dangerous. Following this, the Tribunal notes that the Applicant’s brother helped him to travel to Turkey where he discovered he could travel to Australia. The Tribunal also noted the criminal charges brought against the Applicant, the history pertaining to his applications for visas, and the cancellation of the visa.
At paragraphs [14]-[19] the Tribunal referenced section 116 of the Act, regulation 2.43 of the Regulations, and Direction 63. At paragraphs [17]-[18], the Tribunal summarised the primary and secondary considerations contained within Direction 63.
In the paragraphs that followed, the Tribunal then considered the matter before it by reference to the requirements in the Act, Regulations and Direction 63. Among other things:
(a)at paragraphs [24]-[26], the Tribunal made express reference to the application for the SHEV and noted that in respect of the SHEV application, the Authority did not accept the Applicant’s evidence that he had engaged in Christian activities in Iran. The Tribunal noted that the Authority had not been satisfied that the Applicant had a well-founded fear of persecution, or that there was a real risk he would be significantly harmed if returned to Iran;
(b)at paragraphs [28]-[31] the Tribunal considered Country Information available to it;
(c)at paragraph [32], the Tribunal did not accept that the Applicant had converted to Christianity as claimed, and did not accept there was any chance of him being seriously or significantly harmed in Iran. The Tribunal also found that there was no real chance or real risk that the Applicant will be seriously or significantly harmed if he is returned to Iran because of him having attended a House Church as claimed;
(d)at paragraph [35], the Tribunal found there was no real chance that the Applicant will be seriously harmed and that there is no real risk he will be significantly harmed if he is to return to Iran as a Christian convert;
(e)at paragraph [36], the Tribunal found that there is no real chance or real risk of the Applicant being seriously or significantly harmed upon his return to Iran;
(f)at paragraphs [41]-[42], the Tribunal turned its mind to any mandatory legal consequences. It noted in paragraph [41] that the Applicant was currently in the detention and also noted that if the visa was cancelled, ‘he would become an unlawful non-citizen and may be liable to remain in detention under s.189 of the Act’. In paragraph [42], the Tribunal noted that the SHEV process had been completed, the Applicant was unable to make any further application, there was no pending application for judicial review of the SHEV application, and that in the circumstances ‘there is no impediment to the applicant returning voluntarily to Iran’;
(g)at paragraphs [44] – [50], the Tribunal considered other international obligations as follows:
(i)at paragraph [44], it noted the Applicant’s submission that his forcible removal to Iran would amount to a clear breach of Australia’s non-refoulement obligations;
(ii)at paragraph [45], the Tribunal stated that ‘if the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act and must be removed as soon as practicable’;
(iii)at paragraph [46] – [47], the Tribunal set out and considered the terms of section 197C of the Act, before stating that at paragraph [48] that ‘in circumstances where no protection finding has been made in favour of the applicant, s 197C doesn’t apply. As such, there is no impediment to the applicant’s removal or any issues with non-refoulement obligations’;
(iv)at paragraph [50], the Tribunal concluded (as set out above) that cancellation of the visa may lead to prolonged detention if the Applicant refuses to voluntarily depart the country and gave some weight to this factor; and
(h)at paragraph [52], the Tribunal concluded that the visa should be cancelled.
There was no dispute before me as to the principles that are to be applied when dealing with a contention that the Tribunal made findings on an irrational or illogical basis, or failed to give proper, genuine and realistic consideration to the issues before it. Those principles were conveniently summarised in paragraph [10] of the Minister’s submissions. I do not repeat them here, suffice to say that there is a high bar, and not every lapse of logic will give rise to jurisdictional error.
I accept that it is mandatory for the Tribunal to consider, in a case such as this, the matters in item 7 of Direction 63. In my view, the Tribunal did consider the matters in item 7. The Tribunal’s reasons do not disclose unreasonableness, irrationality, or illogicality for the following reasons.
Firstly, the Tribunal was well aware of the particular facts of the Applicant’s case. The Tribunal was aware of the Applicant’s claims for protection, and that those claims had not been accepted by the Authority. It was aware of the criminal charges against him. It was aware the SHEV application had been refused, was aware judicial review had not been sought of the decision to refuse the SHEV application, and was aware that the non-refoulement obligations had not been engaged. It made its own findings in relation to whether the Applicant faced a risk, and whether Australia’s protection obligations were enlivened. It was aware the Applicant did not wish to return to Iran. It was aware of the position of the Iranian authorities in relation to non-voluntary returnees. It was aware the Applicant was in detention and was liable to remain in detention. Importantly, the Tribunal rejected each of the Applicant’s claims to fear harm in Iran.
Secondly and critically in my view, the reasons when read fairly and as a whole, disclose that the Tribunal was well aware of the consequences of cancellation of the visa for the Applicant, including the detention he would be subject to. The Tribunal noted expressly at [41] that cancellation of the visa would result in him becoming an unlawful non-citizen who was liable to remain in detention. It noted expressly the position of Iran that it did not accept non-voluntary returnees at [44]. It noted expressly at [42] that the Applicant could return to Iran, in circumstances where it had found he was not at risk. It noted again at [45] that he would be liable to detention. These various findings informed the conclusion of the Authority at [50] that the Applicant faced ‘prolonged detention’.
The Applicant says the term ‘prolonged detention’ is not the same as ‘indefinite detention’. While that proposition may hold water in other cases, it does not in this case. In this case, given the way in which the Tribunal reasoned, it is a distinction without a difference. The Tribunal was aware in a context where all his claims were rejected, that the Applicant could return to Iran, and was aware of the position of the Iranian authorities to non-voluntary returnees. In that context, the statement that the Applicant faced prolonged detention is unexceptional. It reflected the facts. It is also clear that in so reasoning, the Tribunal dealt with the mandatory consideration in item 7 of Direction 63. The Tribunal did not need to, and there was no requirement for it to, use the precise wording set out in item 7 of Direction 63. The reasons of the Tribunal in this case plainly disclose it was aware of the consequences for the Applicant in cancelling his visa, including that he faced prolonged detention. Furthermore, the Tribunal was aware of the obligation on the Executive to remove the Applicant.
For all of the above reasons, the Application must fail.
In my view, the Application should also be dismissed on discretionary grounds. That is because no useful result could ensue even if the matter were remitted to the Tribunal. The visa the subject of the Application is a subclass 050 Bridging (General) Visa. It is a visa that is granted to an applicant if, among other things, an applicant has made a valid application for a substantive visa of a kind specified. The Applicant here was granted the visa because he had an application for a SHEV on foot. As noted earlier however, the application for the SHEV was refused, and the Applicant has not sought judicial review of that decision. Against this background, items 050.221 050.211, and 050.511 of the Regulations are important. Taken together, those items of the Regulations relevantly provide that the visa will be in effect for 35 days after the Authority makes its decision on the substantive visa application. The visa ceases to have effect after that 35-day period.
The position then is that even if this matter were to be remitted to the Tribunal, the Tribunal could not do anything because the visa has lapsed by virtue of the Regulations referred to. The position is also, given there is no application for a protection visa on foot and no application to review the decision of the Authority, that the Applicant as matters presently stand, is not entitled to hold a subclass 050 Bridging Visa.
I note that the Applicant caused to be filed, a late affidavit in which he has outlined various steps he has taken to explore whether he can review the decision of the Authority to refuse to grant him a SHEV. The content of that affidavit does not materially advance his case. The fact remains that no application for a review of the SHEV has ever been filed and that remains the case today. That being the case, a remittal of the matter to the Tribunal would be futile.
CONCLUSION
For all of the reasons above, the Application must be dismissed.
The Minister seeks costs of $8,371.30. The Applicant has been entirely unsuccessful in this matter. Given that circumstance, I award costs to the Minister of $8,371.30.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 4 March 2024
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