BHKM and Minister for Immigration and Border Protection (Migration)

[2018] AATA 3

BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3 (8 January 2018)

Division:                  GENERAL DIVISION

File Number(s):      2017/6233

Re:BHKM

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B. W. Rayment

Date:8 January 2018

Place:Sydney

The decision to refuse the application will be set aside and remitted for reconsideration with the direction that notwithstanding that the applicant does not pass the character test in s.501 of the Act, the discretion in s.501(1) should be exercised in favour of granting his application for a protection visa. That will enable consideration of any other matters arising under the application for a visa.

.........................[Sgd] ...............................................

Deputy President B. W. Rayment

CATCHWORDS

HOME AFFAIRS – applicant seeks review a decision made by the respondent to refuse his protection visa application – the applicant does not pass the character test – whether the discretion under section 501(1) should be exercised – non-refoulement obligations considered – decision set aside and remitted

LEGISLATION

Migration Act 1958 (Cth) ss 36, 189, 195A, 196, 197C, 198, 499, 501

CASES

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) FCR 461
Minister for Immigration and Border Protection v Lesianawai Minister [2014] FCAFC 141; (2014) 227 FCR 562
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Gungor and Minister for Immigration and Ethnic Affairs [1980] AATA 32
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (1979) 49 FLR 409; (1979) 2 ALD 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482 

OTHER PRIMARY MATERIALS 

Convention Relating to the Status of Refugees
Protocol Relating to the Status of Refugees

SECONDARY MATERIALS

Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Deputy President B. W. Rayment

8 January 2018

1. This case concerns a young man who has had an unfortunate history since he arrived here from the Philippines at the age of six. He arrived with his mother, brother and two sisters.  His father had already left his mother in the Philippines and married another woman. His mother had a new partner, who later began to abuse his mother both verbally and physically and then to beat the applicant himself until he was 11 or 12. By the age of 13 he began to experiment with drugs.  He had difficulties at school, and by the age of 17, he was addicted to ice, as methamphetamine is known. That addiction is one factor which led him into a life of petty crime, associated with a degree of violence. That crime has mainly consisted of matters like driving offences, robbing a fellow train passenger of $50 or $60, and, at a younger age, joining in a street fight to help his younger brother, and activities at the home of his former girlfriend in breach of an apprehended violence order. He has spent the last five years in gaol and in immigration detention, and since 2014, he has been on the methadone program, which has stopped his ice addiction. He has never worked, and obtained his year 10 school qualification at TAFE. He now wishes to obtain employment, and put his troubled past behind him.  His mother and sisters gave evidence of the positive changes they have seen in him since he has been on the methadone program.

2. The young man (who is identified by a pseudonym) applied for a protection visa in December 2016.  He apprehends that if he is sent back to the Philippines he will be liable to extra-judicial killing at the hands of the Duterte regime. The purpose of trying to obtain a protection visa is to enable him not only to avoid being forcibly returned to the Philippines, but also to be released back into the community so he can get on with his life. One important issue in this case relates to Australia’s obligations under treaties, not to forcibly return a person who is a refugee to their native country where they have a well-founded fear that their life or liberty will be threatened.

3. This is the second time the young man has had to bring matters arising under his protection visa application to the Administrative Appeals Tribunal. In April 2017 it was decided by the Migration and Refugee Division of this Tribunal that he satisfied s.36(2)(a) of the Migration Act, thus being entitled to refugee status, and having a well-founded fear that if he were returned to the Philippines, his life would be at risk having regard to his former status as a drug user and his present use of methadone. The Department accepts that this determination remains correct and involves that if the applicant were returned to the Philippines, that would involve a breach by Australia of its international obligations under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967).

4. In October 2017 a delegate of the Minister decided to refuse the application for a protection visa, mainly on the ground that it was necessary to remove him from Australia for the protection of the community. That was an exercise of discretion under s.501(1) of the Migration Act 1958 (Cth) (‘the Act’). It is that decision which is before me for review. The young man (the applicant) has the assistance of the Legal Aid Commission and Ms Bampton of counsel appeared for him. Ms Watson from the office of the Australian Government Solicitor appeared for the Minister on the instructions of his Department to oppose the application.

5. The applicant was born on 31 August 1989 and is 28 years of age. Upon his arrival here he was granted a permanent visa. On 23 June 2015 his visa was subject to mandatory cancellation under s.501(3A) of the Migration Act, on account of criminal convictions referred to below. He applied to the Minister to revoke the cancellation of his visa and on 12 September 2016 the Minister refused to revoke the cancellation. That led the applicant to make application for a protection visa.

6. Section 36 of the Act states criteria for obtaining protections visa. S.36(2)(a) states the criterion that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee, a term defined in s.5H of the Act, being a person who has a well-founded fear of persecution within the meaning of s.5J of the Act. The provisions in question were introduced in 2014 to codify the obligations of Australia (as understood locally and in Australian case law) under the Refugees Convention, a convention to which Australia has been a party for many years.

7. Other criteria (expressed in the negative) for the grant of a protection visa are specified in sub-sections (1B) and (1C) of s.36. Neither of those sub-sections has been invoked against the applicant. However as s.65 of the Act makes clear, the general power in s.501 of the Act to refuse a visa if the person does not pass the character test applies to an application for a protection visa, as to all other visas. It is that power which the delegate exercised in the present case. It is not in contest that the applicant fails the character test mentioned in s.501 of the Act.

8. The Minister has made a direction under s.499 of the Act which binds decision-makers acting under s.501 including the Tribunal. Such a direction only binds to the extent to which it is not inconsistent with the Act. The current form of direction is Direction 65. It nominates a non-exhaustive list of considerations which a decision-maker must take into account when acting under, amongst other sections, s.501(1).

9. Several more recent decisions of the Federal Court have referred to a possible reason why Direction 65 and its predecessor, Direction 55, may be invalid. Those decisions include Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [36]-[43] (Mortimer J) and Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) FCR 461 at [78] per Kenny and Mortimer JJ. In neither of those cases was it necessary for the Federal Court to deal with that possible reason for the invalidity of the direction because neither party addressed submissions to the court on the point. The validity of the Direction was not challenged before me.

10. Jagroop observes that despite the fact that Direction 65 is a somewhat prescriptive document, it nevertheless leaves a decision-maker in the position that it is not the content of the Direction which will determine the outcome of the s.501 discretion, but rather its application by a particular decision maker to the evidence and material in an individual case. In my opinion the remarks of Perry J in Minister for Immigration and Border Protection v Lesianawai Minister [2014] FCAFC 141; (2014) 227 FCR 562 at [80]-[83] concerning Direction 55 are of equal application to Direction 65. Her Honour said:

    80] Nonetheless, while compliance with Direction No. 55 is required where the delegate or Tribunal is the decision-maker, the purpose of the Direction “is to guide decision-makers… exercising powers under section 501 of the Act…” (cl 6.1(3)) (emphasis added). The tension that this might appear at first blush to create is resolved by recognising that compliance with Direction No. 55 does not involve dictating the way in which the discretion is to be exercised; rather the Direction creates a framework within which the discretion vested in the decision-maker is lawfully to be exercised. I understand it to be in this sense that the concept of “guidance” is employed in the Direction.

    [81] In furtherance of this, certain principles are identified in cl 6.3 which “provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501.” (cl 6.2(3)). These principles include that:

    3In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    4Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    ...

    6The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    [82] Clause 7(1) of Direction No 55 provides that, informed by the principles identified in cl 6.3, a decision-maker “must take into account” primary or other considerations where relevant and “is required to determine whether the risk of future harm by a non-citizen is unacceptable”. The latter determination “requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community” (cl 7(1)(b)).  The primary considerations in the context of a decision whether to cancel a person’s visa are identified in cl 9(1).  Those primary considerations which the Tribunal found to be relevant to the respondent’s case were protection of the Australian community from criminal conduct, the strength, duration and nature of the person’s ties to Australia, and the best interests of minor children in Australia (the three relevant primary considerations).  “Other considerations” which must also be taken into account where relevant include, but are not limited to, those identified in cl 10(1) of Direction No 55. 

    [83] Clause 8(3) recognises that “[b]oth primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”.  Clause 8 also deals with the manner in which primary considerations are to be weighed against each other and against other considerations.  Thus, by virtue of cl 8(4), primary considerations “should generally be given greater weight than the other considerations”, while cl 8(5) provides that “[o]ne or more primary considerations may outweigh other primary considerations” (emphasis added).  In my view, the words “should generally” and “may” in cl 8(4) and (5) respectively make it clear that those provisions are intended to provide guidance to the decision-maker as to how the balancing exercise required by Direction No. 55 should be approached which the decision-maker is bound to consider, while leaving it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.  The fact that Direction No 55, aside from prescribing relevant considerations in a jurisdictional sense, provides guidance only in this sense as to the manner in which they are to be balanced is in my view a fundamental aspect of the scheme. It equips decision-makers with a width of discretion that enables them to take into account the myriad of different circumstances and different combinations of circumstances that may arise and thereby to reach a result that is fair and rational in all of the circumstances, while ensuring that account is had to those considerations that the legislator has identified as crucial to a lawful decision.

11. In the application of Direction 65 to consideration of Australia’s international non-refoulement obligations a number of questions need to be considered, especially in the   light of decisions of the Federal Court made since the publication of Direction 65 in 2014.

12. I will take the various relevant provisions of the Direction in turn.

13. The Preamble contains objectives, general guidance and principles that provide a framework within which decision-makers should approach their task of deciding, amongst other things, whether to exercise their discretion to refuse a visa. The purpose is stated to be to guide decision-makers. The principles described in clause 6.3 are self-explanatory; some of them are general and others more particular, and clause 6.2 states that they are of critical importance in furthering the objective of protecting the Australian community from harm as a result of criminal or other serious conduct. That consideration is the first nominated primary consideration in Part B of the Direction which relates to the discretion under s.501(1) to refuse a non-citizen’s visa. Clauses 11.1, 11.1.1 and 11.1.2 relate to that consideration.

    Protection of the community

14. The applicant’s criminal record according to the police certificates in evidence commences in 2006 with offences of driving without a licence, and bail offences, dealt with by the children’s court without juvenile detention. In 2008 when the applicant was 19 years old, he was convicted of various driving offences, and a charge of affray and reckless wounding of another person committed in 2007, for which a magistrate gave a bond to be of good behaviour for two years. During that period, he committed driving offences, and the affray and reckless wounding offences were dealt with by another magistrate because the bond had been breached. He was sentenced to a term of imprisonment for 12 months, commencing in May 2009, with a non-parole period. In the year 2012 he was convicted of a variety of offences, including driving offences, for which he was sentenced to 6 months imprisonment, and then sentenced to a further 9 months imprisonment for common assault, affray, damaging property and contraventions of an apprehended violence order, in each case with a non-parole period of 6 months. The magistrate’s remarks on the sentence are in evidence but give little more detail of the offences.  He mentions that there was an aggravating circumstance in relation to the breaches of the apprehended violence order in that there were two young children present.

15. In October 2013 he was sentenced for the offence of robbery in company to imprisonment for 39 months from December 2012 with a non-parole period of 20 months. That sentence was imposed by Judge Sides in the District Court.

16. The remarks on sentence of Judge Sides record that the applicant stole $50 from the victim’s wallet on a train and also took the victim’s debit card from the wallet, demanding to know the PIN number, which the victim gave him falsely. The applicant pushed the victim’s head against the train window, causing the victim to feel dizzy. The victim alerted the train guard and the police and the applicant was soon apprehended.  The applicant was 23 at the time of the offence.  The judge’s sentencing remarks and the evidence of the applicant’s mother show that his parents separated before he arrived in Australia, and that since that time he had no contact with his father. His childhood was dysfunctional because of aggression and violence towards him for which his mother’s partner or partners were responsible. He had behavioural problems at school and completed year 10 at TAFE. His substance-abuse problem began when he was 13.  After his release from gaol in 2012 he gambled and used drugs. He claimed he had not slept for four nights before the offence, had gambled during the night of the offence at the casino and taken some benzodiazepine on the morning of the offence of which he claimed he had limited memory.

17. Judge Sides noted that there was sufficient material in the applicant’s case to indicate remorse. He noted that there had been four breaches of prison discipline since he returned to prison in December 2012.

18. Following his release from prison in August 2015 he was taken into immigration detention at Villawood where he is at the present time. Thus for the last five years he has not been at liberty.

19. He gave evidence and was cross-examined before me. He expresses remorse for all of his offences. He said that he acknowledges these offences as serious.  As to his driving offences, he says that he will ensure he is licensed before driving in future.

20. He has not always been in employment.  He was on the dole at the time of his 2012 offence of robbery. He now wants to be employed if he is released from immigration detention.  He may wish to further his education and over the last five years has become a reader for the first time.

21. He described the 2007 offences of affray and reckless wounding as involving an altercation in which he interfered to assist his brother against a number of people, at a time when he was affected by drugs and alcohol. In 2007, he was 18 and already addicted to ice.

22. He says that if he is released back into the community, he intends to seek support both in the family and with professionals to maintain his abstinence from ice and other drugs, to maintain the methadone program for as long as necessary and to seek help if required to maintain his anger management. A degree of caution is required about these assertions, not because they lack credibility, but because his circumstances have not permitted them to be tested in the community.

1. As to the convictions for breach of the apprehended violence order and of conditions attaching to it, there is in evidence before me a police record (an internal record for police purposes rather than something placed before any court) indicating that the applicant in breach of an apprehended violence order went on several occasions to his then former partner’s house and on one occasion forcibly entered it, using a crow bar, and grabbed his former partner on the arm, pulling her towards him, and she called the police who attended the scene. The applicant and his former partner were said to have ended an eighteen month long relationship some four months earlier.  The applicant agreed in cross-examination with parts of the police statement but asserted that the crowbar was in fact used on him by his former partner, not by him to gain entry to the premises. He asserted that one of the statements made by his former girlfriend and her friend conflicted with what is stated in the police report in this respect, and confirmed that the crowbar was not one which he brought to the premises but was rather something used to hit him with to make him leave the premises. I have not been provided with the statements of the girlfriend or her friend or any oral evidence of any person other than the applicant himself.  The main elements of the offence are not in doubt, and on the version of the facts asserted by the applicant he was, as he acknowledges, in breach of the apprehended violence order in serious respects. I am not prepared to make findings that he used a crowbar to enter the premises.

2. His statement before me indicates that the incident which led to him being charged followed a night of drinking and taking drugs. He said: “My behaviour was inappropriate and excessive and I am deeply ashamed”. He described the relationship with the former girlfriend as off and on, due to his anger and substance abuse. It appears that during 2015 (long after the breaches of the apprehended violence order) the former girlfriend visited him at Villawood on a number of occasions and that they spoke by mobile phone while he was at Villawood on a number of occasions during 2016.   They have had no contact since November 2016 and the girlfriend has apparently taken a new boyfriend. The circumstances in which they ceased to communicate with each other have not been made clear to me. 

3. The respondent’s representative also put to the applicant a statement from internal police records of allegations apparently made to police in October 2016 by the applicant’s former partner. Those allegations were, it appears, never previously put to the applicant and he had no notice of them prior to being asked about them in the witness box.  They may (or may not) have been used by police to obtain an ex parte apprehended violence order against the applicant late in 2016, although that fact is not certain because the former partner seems to have been advised by police not to bring charges based upon her allegations. The allegations were firmly denied by the applicant in the witness box and against his denial I have only the internal police record of allegations which have never been tested in court. I am not prepared to make findings adverse to the applicant on such material, and I know nothing of the lady who apparently made the allegations in question or of her motivation. On this kind of problem, it is useful to refer to what was said by Brennan J when President of this Tribunal in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482. There is no rationally probative evidence before me to the contrary of what was asserted by the applicant in denial of the allegations recorded in the internal police record.

4. Not only was the conduct on which the applicant was cross-examined not involved in any conviction, it was not involved in any charge brought against him, and having heard his denials of the conversations alleged, I put the matter to one side.

5. The applicant has had two previous lots of communications with the Department which should have brought home to him the seriousness of his situation as a visa-holder. In 2009 departmental officers interviewed him and his mother with a view to possible visa cancellation and his expulsion from Australia. He was then twenty, and suffering from drug addiction. At that time the delegate decided to give the applicant a warning in relation to his conduct and the prospect that his visa might be cancelled. Again in 2002 he made written representations from prison to the department as to why his visa should not be cancelled. Others wrote references on his behalf. Yet shortly after his release from prison, affected by drugs, alcohol and lack of sleep, the offences for which he was convicted by Judge Sides occurred. 

6. His mother lives in Australia as do all of his siblings (two sisters and a brother) and his niece and nephews. 

7. His statement indicates that he attributes his substance abuse to his significant history of childhood trauma involving his mother’s partner, and to a feeling of isolation during his youth by reason of skin colour.  The trauma and violence affected himself, his brother and his mother and continued until the year 2000 or 2001, when the applicant was 11 or 12 years of age.  As mentioned, he began to take drugs at the age of 13, taking marijuana and ice and experimenting with heroin.  By the age of 17 he was addicted to methamphetamine.

8. He has now weaned himself off that drug by means of the methadone program which he commenced in 2014 while incarcerated and has continued it at Villawood.  He says that he has noticed that without methamphetamine (ice) he does not become angry any more, which was a significant problem at the time of his offending. His mother says that she has noticed a positive change in him since he went on the methadone program.  

9. His niece (by his younger sister) and nephews (by his brother and younger sister) are regularly driven to visit him at Villawood by his mother, and his relationship with his family has strengthened while he has been in Villawood. His mother says that the arrival of her grandchildren has marked a big change in the applicant’s attitudes. She said: “He loves his niece and nephews. They are very close to him.” That information is also confirmed by the younger sister, who agrees that the applicant has changed for the better in the way he looks and talks since he has been part of the methadone program. She said that formerly, she was close only to her sister and her mother, but that now, she, her sister and the applicant are all close.

10. He says that the methadone program, together with maturation over the last five years, and his good family relationship has changed his perspective. He says that he regrets not having started to get treatment earlier. It has helped him to understand what his issues were. He had not at a younger age “connected the dots” and didn’t think he needed help.  The progress notes of psychologists who have been treating him at Villawood tend to confirm that he now has a good appreciation of the factors which led to his offending.

11. The Villawood incident reports which are in evidence contain matter suggesting that anger issues continue to affect the applicant.

12. The record of the applicant itself, and his previous failure to rehabilitate himself when warned of possible action being taken against him, suggests that there is a risk that he may re-offend.  On the other hand, if the methadone program is continued after his release, there is reason to think that the risk of his re-offending is significantly lower than previously in his life. Much will depend on events that cannot be known at this time.

13. Overall, this factor, taken alone, favours affirming the reviewable decision. 

    Expectations of the community

14. It is conceded by the respondent that the probable effect of affirming the decision under review is that the applicant would be forcibly returned to the Philippines, conduct which would involve a breach by this country of its international obligations under the Refugees Convention.  That fact is likely significantly to affect community expectations in my opinion. It would be a matter of real concern if the community learned that Australia had knowingly or deliberately breached its treaty obligations. Such conduct would be regarded as contrary to the best interests of Australia. It would be thought to be likely to cause harm to Australia’s international reputation.

15. If, as I have been informed by the respondent, government policy remains that Australia will not refoule non-citizens in breach of its treaty obligations, then a result involving the affirming of the reviewable decision in this case would be all the harder for the community to accept.  The government policy of which I have been informed would be regarded as obviously right by this community.

16. Moreover, the applicant has been punished for his offending, he has taken significant steps towards his rehabilitation, he has lived here with all his immediate family almost all his life, and the reason why he was accorded refugee status is that he has a well-founded fear that his life will be at risk if he is returned to the Philippines. To put his life at risk rather than expose the community to a risk that he will offend again, when he has already been punished for his crimes, would seem to most of this community to be wholly disproportionate, and to many to be double punishment. That is not to say that the applicant’s level of offending would be seen as other than serious, and if this matter were looked at before 2014, when the applicant began to try to rehabilitate himself, the risk of his offending again would have been seen to be high. In 2018 the position about the risk of his re-offending seems lower, although it has not yet been tested in community conditions.

17. Overall, this factor favours the setting aside of the reviewable decision.

    The interests of minor children

18. The applicant has no children of his own, and is not in a parental relationship with any children. Nevertheless he is the uncle of children born to his younger sister and to his brother. When he was last in the community they were babies, but at Villawood he has come to know them better. His brother has an older son and a younger daughter with whom he has a good and close relationship. He describes his sister’s children (both boys) as very outgoing and playful. His sister and mother both confirm the evidence of the applicant as to the strong relationship which has developed between the applicant and them since he has been on the methadone program at Villawood. The children look forward to his release into the community.

19. This factor also favours the setting aside of the reviewable decision, although not strongly, in my opinion.

20. The three factors just considered are called primary factors in the direction. There follows in clause 12 a non-exhaustive list of “other” factors which should be taken into account “where relevant”. The first of those is Australia’s international non-refoulement obligations.

    Australia’s obligations of non-refoulement

21. Paragraph 12.1 of Direction No. 65 provides:

    (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
    
    (2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s 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.
    
    (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
    
    (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
    
    (5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
    
    (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

22. A number of matters require consideration about this clause of the Direction. I will take them in turn although some necessarily overlap with others

    Section 197C and authorities in the Federal Court of Australia

23. Section 197C of the Migration Act provides that

    (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.

24. Section 198(2A) Act relevantly provides that “[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen”.

25. DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (‘DMH16’) concerned a refusal by the Minister personally to grant a protection visa notwithstanding that it had been concluded that the applicant was a person in respect of whom protection obligations were owed by Australia. It was held by North ACJ that the Minister misunderstood s.197C of the Act, he was persuaded by the same view which is stated in the clause 12.1 (6) of the Direction, namely, that the applicant “may face the prospect of indefinite immigration detention because of the operation of s189 and s196 of the Migration Act.” North ACJ accepted that the true position was that as things then stood, there was no evidence that it was not reasonably practicable to remove the applicant to Syria. The effect of the Minister’s refusal of the visa was that the applicant would be forthwith removed to Syria, and was not that he would face the prospect of indefinite immigration detention. He also held that if the Minister decided to consider granting a visa under s.195A of the Act then the non-citizen could be detained for so long as was necessary for him to complete that consideration, and if he decided to refuse to do so, or to refuse to grant a visa under s.195A, then the effect of s.197C was that there would the arise a duty to remove the applicant forthwith to Syria.

26. This Tribunal is, of course, bound by the decision of North ACJ. It is bound to find that the operation of sections 189 and 196 of the Act does not mean that if the protection visa is refused, the applicant would face the prospect of indefinite immigration detention. Rather, and in the absence of the Minister choosing to exercise his power under s.195A, there would be a duty arising under s.197C immediately to deport the present applicant to the Philippines, at any rate as soon as such removal is reasonably practicable. To that extent, at least, the Direction is inconsistent with the Migration Act and not binding under s.499 of the Act.

27. Other questions were debated before me about whether other aspects of clause 12 ought to be taken to be amended in consequence. Trying to work out the intention of the document in that way seems to me to be very difficult and risks a decision-maker mistaking the task involved. The Direction is, under s.499 of the Act, binding except to the extent to which it is inconsistent with the Act. I am not satisfied that any part of the Direction is inconsistent with the Act other than the words at the end of clause 12.1 (6) which read “the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention”.[1]

    [1] Since preparing the reasons for decision I have been referred to the decision of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 at paragraphs [148] – [155]. As at present advised, and with respect, the decision of Deputy President Forgie does not cause me to alter what I have written in this paragraph.

28. When s.197C was introduced by way of amendment to the Migration Act, the explanatory memorandum stated at paragraph [1142]:

    Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

29. In the course of his second-reading speech for the bill which introduced s.197C (the Migration and Maritime Powers Legislation Amendment (resolving the Asylum Legacy Caseload) Bill 2014 the Minister said that the changes were “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” identified in any earlier processes. The Minster further stated that “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” (emphasis added).

30. During the hearing of this matter, I enquired of the respondent whether it remained government policy that Australia will not forcibly remove a non-citizen to his or her country of origin if such removal would involve a breach of Australia’s international non-refoulement obligations.  I was informed by Ms Watson, who took instructions from the Department, that government policy was still to that effect, and I act on that basis.

31. One reason for my enquiry was that Ms  Bampton, on behalf of the applicant, queried whether government policy was still to the effect stated in the previous paragraph, and announced to members of parliament by the then Minister in 2014. That is because it is difficult to understand why, in the light of the policy, the respondent opposes this application. The simplest way to give effect to the policy would have been for the respondent to consent to the setting aside of the reviewable decision so as to open the way for the applicant to be granted the protection visa.

1. The government policy in question is restated twice within clause 12.1 of the Direction: See clauses 12.1(2) and 12.1(6). Those statements operate at least as a reminder to decision-makers of the policy when they come to exercise discretions under the clause. Their presence in the Direction, which is made binding by s.499, could possibly be thought to operate as making the government policy binding on decision-makers. That would mean that in an appropriate case, a decision-maker must not refuse to grant a protection visa. That possible view is very hard to justify, when the other provisions of Direction 65 are borne in mind. That is because clause 12.1 states only one consideration which is mandatory to take into account, and there are others, which the direction always requires to be taken into account, where relevant. Since the Direction is binding, the question of its wisdom does not arise for a decision-maker. Leaving it to a member of the executive government to decide whether or not Australia should, or should not, go into breach of an international treaty is curious in the extreme, but that seems to be the effect of Direction 65.

2. The default method by which the clause states that the policy will be given effect to (namely indefinite detention) turns out, in the light of s.197C, as construed in DMH16, to be incorrect.  Another view of the clause, either as a matter of construction, or as a matter of the proper exercise of discretion in a particular case, is that in considering whether to refuse to grant a protection visa, the government policy will predispose a decision-maker not to do so. That is, short of binding a decision-maker to take into account the consequences of a breach of a treaty, the decision-maker will be entitled to treat the consideration as a powerful reason not to refuse the grant of a protection visa.  Although not necessarily conceding that the proposition is correct as a matter of the proper construction of clause 12, the Minister concedes that it is open to this Tribunal (and, it must follow, to delegates as decision-makers) to give great weight to the non-refoulement consideration.

3. In this Tribunal, although government policy is not, as such, binding on the Tribunal, it is, in general, proper to be taken into account when exercising discretions.  This was established in the decision of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (‘Drake’s case’).  Bowen CJ and Deane J wrote a joint judgment and Smithers J wrote a separate judgment.  Bowen CJ and Deane J stated, in the course of their reasons for judgment, that ordinarily:

   an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. Clearly, in considering whether a deportation order should be made in respect of the plaintiff in the present matter, the Minister was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or objects of the Migration Act.

4. Their Honours also said, when considering the role of this Tribunal:

   In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision.

5. Their Honours further  said:

   It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.  

6. If the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, their Honours said that it is desirable that “the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.

7. Smithers J stressed in the course of his reasons for judgment, considerations in decision-making by reference to what is seen to be good government in the best interests of Australia, and found that the Tribunal decision had not tested the decision under review against the dictates of good government in the best interests of Australia but rather had exercised a supervisory role inconsistent with the mandate of the Tribunal to form its own independent decision of the correct or preferable result.

8. In Drake’s case, the order made by the Full Court was that the matter be remitted to the Tribunal to be reheard. It came on before Brennan J, as President of this Tribunal. His reasons for decision on the remitter are reported in Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (1979) 49 FLR 409; (1979) 2 ALD 634. The judgment is one of importance for many purposes in this Tribunal. For present purposes, it is sufficient to note that His Honour said in the course of his reasons: 

   “Good government”, as I understand the Smithers J to use the phrase in Drake’s case has to do with balancing the protective effect of a deportation order with those other effects which an order invariably has upon the person to be deported, upon those directly affected by the proposed deportation and upon the community at large. And good government is, of course, in the best interests of Australia.

9. In Gungor and Minister for Immigration and Ethnic Affairs [1980] AATA 32 Smithers J referred to the judgment of Brennan J in Drake’s case, and said:

   it was pointed out that the learned judge placed great emphasis on consistency which might be achieved by adherence to a policy. Consistency is undoubtedly a virtue. Ultimately however, it must be related to principle and is safely sought by reference to policy only when the policy has passed the test of compatibility with good government and the best interests of Australia.

10. Taking up the same theme in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 305, Smithers J said:

    It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review.  In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.

11. In Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 327 those remarks were approved by Keifel J with whose reasons on this matter Crennan J agreed.

12. The respondent drew attention to the possibility that the Minister may exercise his personal, non-compellable power under s.195A of the Act to grant some kind of visa to the applicant, which might (depending on its terms, which are at large) avoid or defer the consequence of putting Australia in breach of its treaty obligations. This possibility is remote in my opinion. It was described as “a matter of speculation” by the Full Federal Court in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, a case, like the present, where there was not even an indication that the Minister might consider exercising his personal, non-compellable power to act under s.195A. If any such visa was intended to be granted by the Minister, it would have been simple for evidence to that effect to be led before me from an officer of the Department, and none was led.

13. The current guidelines published by the Minister for the exercise of his powers under s.195A would probably not lead to the present application being referred to him by the Department for consideration.

14. The protection visa is the means specifically designated in s.36 of the Act for the purpose of enabling Australia to give effect to its protection obligations. If it is refused, then the applicant is unable to apply for any other visa, except one that would not prevent his removal from Australia. For a decision-maker to rely on the mere possibility that a Minister might in the future take action which there is no obligation on him to take, when exercising a discretion to grant or refuse a protection visa may well amount to a legally unreasonable failure to exercise discretion if, on that account, the decision-maker put the non-refoulement obligations aside.

15. To sum up in relation to the non-refoulement consideration, it is in my opinion there is a very powerful discretionary reason why the reviewable decision should be set aside. A breach of a treaty to which this country is a party is not in the best interests of Australia, it is not consistent with the dictates of good government. The government policy to which I have referred in paragraph 52 above is one entirely consistent with the best interests of the country and with the dictates of good government, and, in the proper exercise of discretion, it, also, ought to be taken into account by decision-makers acting under Direction 65 and s 501(1).

    Impact on family members

16. This is another mandatory “other” consideration.  The applicant’s three siblings and his nephews and niece all live here.  They are all settled here and would be unable to accompany the applicant back to the Philippines.  They have not, in the case of the applicant’s siblings, yet become citizens, but they are permanent residents.  Their evidence about the impact upon them of the applicant’s forced removal is not in contest.  If the result were that the applicant suffered injury or death as a result of his return to the Philippines, the impact upon them would necessarily be severe indeed.  This factor also favours setting aside the reviewable decision.

17. Drawing together the various mandatory considerations already discussed, the only consideration which supports the reviewable decision is the first, that of protection of the Australian community.  All of the others, including some primary considerations, favour the setting aside of the reviewable decision.  The non-refoulement consideration in particular strongly favours setting aside the delegate’s decision. In my opinion the correct and preferable decision is to set the reviewable decision aside.

18. The decision to refuse the application will be set aside and remitted for reconsideration with the direction that notwithstanding that the applicant does not pass the character test in s.501 of the Act, the discretion in s.501(1) should be exercised in favour of granting his application for a protection visa. That will enable consideration of any other matters arising under the application for a visa.

I certify that the preceding 71 paragraphs are a true copy of the reasons for the decision herein of Deputy President B. W. Rayment

.........................[sgd]...............................................

Associate

Dated: 8 January 2018

Date(s) of hearing:	18 and 19 December 2017
Counsel for the Applicant:	Ms D Bampton
Solicitors for the Applicant:	Ms M Cicak, Legal Aid New South Wales
Solicitors for the Respondent:	Ms D Watson, Australian Government Solicitor