Chol v Minister for Immigration and Border Protection
[2018] FCA 2027
•20 December 2018
FEDERAL COURT OF AUSTRALIA
Chol v Minister for Immigration and Border Protection [2018] FCA 2027
Appeal from: Chol v Minister for Immigration and Border Protection & Anor [2018] FCCA 306 File number: NSD 510 of 2018 Judge: MIDDLETON J Date of judgment: 20 December 2018 Legislation: Migration Act 1958 (Cth) Cases cited: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Picard v Minister for Immigration and Border Protection [2015] FCA 1430
Date of hearing: 29 November 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 45 Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr C Lenahan Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
NSD 510 of 2018 BETWEEN: BOUTROS CHOL
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
20 DECEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
INTRODUCTION
This is an application made for an extension of time to appeal from the judgment and orders of the Federal Circuit Court (the ‘FCC’) made on 2 March 2018: Chol v Minister for Immigration and Border Protection & Anor [2018] FCCA 306.
The applicant applied to the FCC for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (the ‘Minister’) not to revoke the cancellation of his visa pursuant to s 501CA of the Migration Act 1958 (Cth) (the ‘Act’).
The applicant sought relief on the grounds that the Minister failed to undertake the statutory task required and denied the applicant procedural fairness in finding that it was unnecessary to determine if the applicant was owed protection obligations. The FCC refused the application.
Before this Court, the applicant’s complaint was that the FCC erred in finding that the Minister failed to make findings as to whether the applicant would face harm if returned to Sudan, and if he did face harm, whether he might satisfy the refugee or complementary protection criteria in s 36 of the Act (the ‘protection criteria’).
The Minister did not contend that the explanation proffered for the delay in prosecuting the appeal was inadequate, or that the Minister would suffer prejudice as a result of the delay. Rather, the Minister submitted that the application ought to be refused because the prospects of the appeal succeeding were insufficient. In these circumstances, I propose to deal with the merits of the proposed appeal.
BACKGROUND
The facts are conveniently summarised in the reasons of the FCC at [1]-[3].
The applicant’s family fled from Sudan to Egypt when he was around six or eight years old. In November 1999, the applicant came to Australia on a humanitarian visa when he was 15 years old.
On 23 April 2015, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act due to his criminal convictions.
In May 2015, the applicant made a request for revocation of that decision pursuant to s 501CA of the Act.
The applicant claimed the decision should be revoked due to his fear of harm in Sudan. In particular, he claimed that:
(1)his father was incarcerated for political reasons;
(2)his father had killed people during civil conflict in Sudan;
(3)the families of the people his father had killed still reside in Sudan, and some hold positions in the government;
(4)there was a death warrant out for the applicant in Sudan;
(5)Sudan is unstable due to conflict between North and South; and
(6)he would be forced to join the military.
THE MINISTER’S DECISION
On 18 January 2017, the Minister made a decision that he was not satisfied there was another reason to revoke the original decision to mandatorily cancel the applicant’s visa.
The Minister identified at [19] of his reasons for decision that the applicant had made claims that may give rise to non-refoulement obligations. The Minister found that it was “unnecessary to determine whether non-refoulement obligations” were owed to the applicant because he could apply for a protection visa. Paragraph 19 provided as follows:
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Mr CHOL has made claims that may give rise to international non-refoulement obligations. However Mr CHOL is able to make a valid application for another visa. In particular I not that Mr CHOL is not prevented by s 501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr CHOL for the purposes of this decision.
The Minister also referred to the applicant’s fears of harm in considering the “extent of impediments if removed”. The Minister referred at [39] to the applicant’s fear that he would need to join the military, and at [41] to his fear that he would be harmed due to his father’s political activities.
In relation to the extent of impediments if removed, the Minister concluded that the applicant would face “considerable emotional practical and physical hardship” if returned to Sudan ([45]). The Minister stated that he had had regard to factors that included the applicant’s “fears for his safety” ([45]).
The Minister’s reasons did not address if the applicant’s fears were well founded in the objective sense.
The Minister recorded the conclusion of his decision not to revoke the original decision to mandatorily cancel the applicant’s visa at [72]-[81]. At [80], the Minister stated that in reaching his decision he had considered, among other matters “international non-refoulement obligations”.
RELEVANT PRINCIPLES
In the FCC, the applicant relied on the decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (‘BCR16’) as the basis for the application. It is necessary for me to consider that decision, which was distinguished by the FCC.
However, before doing so, I just mention some preliminary matters relating to procedural fairness. Section 501CA(4)(b)(ii) of the Act provides that the Minister may revoke a cancellation under s 501(3A) if he is satisfied that there is “another reason why the original decision should be revoked”. A person whose visa is cancelled must be invited to make representations as to the reasons the cancellation should be revoked (s 501CA(3)). The Minister must afford the person procedural fairness by considering a reason put forward for revocation (Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (‘Picard’) at [42]). The representations, as a whole, are mandatory relevant considerations (Minister for Home Affairs v Buadromo [2018] FCAFC 151 (‘Buadromo’) at [41]). The Minister must give meaningful consideration to the representations (BCR16 at [12]).
Turning then to BCR16, in that proceeding the applicant’s visa had been cancelled under s 501(3A). The applicant made a request for revocation. The Minister found it was unnecessary to determine if the applicant was owed non-refoulement obligations because he could apply for a protection visa (BCR16 at [14]). At [14] of BCR16, Mortimer and Bromberg JJ held that the Minister misunderstood the Act in two ways:
(1)first, the Minister assumed the applicant’s protection claims would be considered as part of a protection visa application. However, a protection visa application by the applicant could be rejected on character grounds without consideration of his claims (BCR16 at [43]-[46] and [68]); and
(2)second, the Minister assumed the entirety of the applicant’s representations regarding his fears of harm would be dealt with through a protection visa application. However, in exercising discretion under s 501CA the Minister may give weight to a fear of harm or type of harm that may not satisfy Australia’s protection obligations as codified in the Act (BCR16 at [48]-[49] and [71]-[73]).
Justices Mortimer and Bromberg then characterized the jurisdictional error in two ways:
(1)first, the Minister failed to carry out his statutory task to consider a reason for revocation raised by the applicant, non-refoulement obligations (BCR16 at [63]-[69] citing Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54]); and
(2)second, the Minister denied the applicant procedural fairness because he did not consider the applicant’s claims to fear harm in exercising his discretion (BCR16 at [62] citing Picard at [42]).
FEDERAL CIRCUIT COURT DECISION
As I have indicated, the FCC distinguished BCR16. The FCC held that despite the Minister misunderstanding the Act, the Minister gave consideration to the applicant’s claims to fear harm in his reasons under the “extent of impediments if removed” section, and in his conclusion. The FCC concluded that the Minister’s misunderstanding of the Act did not mean he failed to consider the applicant’s claims to fear harm upon return to Sudan.
PROPOSED APPEAL GROUND
It was submitted by the applicant that the FCC erred by finding the Minister’s misunderstanding of the law did not affect his consideration of the applicant’s non-refoulement obligations. The FCC identified that there was some consideration by the Minister of the applicant’s claims to fear harm, however, it did not identify if the Minister’s consideration was sufficient to address the applicant’s claims. The applicant’s complaint was that the consideration by the Minister only partly addressed the reason for not revoking the original decision.
It was submitted that the applicant’s claims to fear harm required consideration because:
(1)a subsequent protection visa application could be rejected on character grounds without the applicant’s claims being considered against the protection criteria; and
(2)the applicant did not express his claims within the terms of the protection criteria. The applicant’s claims may have fallen outside of Australia’s protection obligations under the Act but nevertheless constituted a reason to revoke the cancellation.
It was submitted by the applicant that in order for the Minister to respond to the applicant’s claims the Minister needed to identify:
(1)whether there was a risk of the applicant suffering harm in Sudan; and
(2)whether, as a result of that risk, the applicant satisfied the protection criteria in the Act.
It was submitted that the Minister’s only consideration of the applicant’s claims that he would be unsafe in Sudan was in relation to the extent of impediments if removed. It was said that the Minister merely recorded that the applicant held those fears for his safety. The Minister, consistent with his statement that he did not need to determine the applicant’s non-refoulement claims, made no findings as to whether:
(1)the applicant’s father had been involved in rebel activities;
(2)the applicant was at risk as a result of his father’s activities;
(3)the applicant would be conscripted; or
(4)the applicant was at risk due to the civil war.
It was submitted that the Minister did not identify any of the applicant’s fears likely to be realised, and at most, the Minister accepted the applicant held subjective fears of harm upon return to Sudan, and took those fears into account.
It was submitted that the applicant could only be owed non-refoulement obligations if the Minister accepted his fears of harm met the “real chance” risk threshold. On the submissions of the applicant, the Minister, having not made any findings about the likelihood the applicant would be harmed in Sudan, could not have considered non-refoulement obligations as “another reason” the decision should be revoked. Similarly, it was submitted that the Minister could not have considered a risk of harm falling outside of the Australia’s non-refoulement obligations without making a finding about the likelihood the harm would occur.
It was then submitted that the most consistent reading of the Minister’s reasons was as follows:
(1)the Minister made no findings regarding the risk of harm to the applicant of returning to Sudan;
(2)the Minister accepted the applicant held subjective fears of harm and took those fears into account;
(3)the Minister assumed the applicant’s risk of harm would be assessed in a subsequent protection visa application; and
(4)the Minister’s statement that he had taken into account non-refoulement obligations at [80], should be read as referring to the earlier finding at [19] that the applicant’s non-refoulement obligations could be assessed in a protection visa application.
Therefore, it was submitted that the applicant made claims to fear harm that could give rise to non-refoulement obligations and that the Minister, due to his misunderstanding of the law, failed to meaningfully consider these representations. This was said to constitute a denial of procedural fairness and a failure by the Minister to undertake the statutory task required of him based on a correct understanding of the law.
CONSIDERATION
I start by recalling that in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, the Full Court of the Federal Court considered a similarly-worded paragraph to [19] of the reasons of the Minister in this case, and concluded that the existence or otherwise of non-refoulement obligations in relation to a visa holder was not a mandatory relevant consideration in exercising the discretion under s 501(2) of the Act. I am bound by this decision.
Therefore, I proceed on the basis that a consideration of non-refoulement obligations was not a mandatory relevant consideration for the Minister to take into account.
In my view, contrary to the submissions of the applicant, in this application the Minister did come to some definite conclusions unaffected by [19] as to the applicant’s risk of harm and balanced those conclusions as part of his consideration. In the reasons of the Minister it was stated as follows:
[39]He has also expressed concern about being forced to join the military if he were returned to Sudan.
…
[41]I have also given consideration to Mr CHOL’s fears for his life and safety if returned to Sudan as a result of his father’s political activities and continued instability in the country. Mr CHOL has stated he is fearful he could be arrested or killed because of his connection to his father who was responsible for killing people as part of his rebel activities. Mr CHOL has stated the family members of the people his father killed still live in his area of Sudan and some of them hold high positions in government, with him fearing he could be arrested or killed in revenge for his father’s actions. He has stated his father, Isaac Chol (aged 59), went to prison in Sudan and Mr CHOL had not had any contact with his father since his parents separated when he was aged two.
…
[45]Having consideration to the above information, I find Mr CHOL will experience considerable emotional, practical and physical hardship if he is removed from Australia and returned to Sudan. I have come to this conclusion having reference to his length of time in Australia, lack of knowledge of the language and culture, his lack of family or social support in Sudan, Sudan’s status as a developing country and the reduced level of services provided to citizens as compared to Australia and his fears for his safety on his return.
…
[80]In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr CHOL represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his three minor nephews, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, international non-refoulement obligations, his contribution to the community through his volunteer work and employment, his familial ties to Australia, the significant impediments he faces in returning to Sudan and the hardship Mr CHOL, his family and social networks will endure in the event the original decision is not revoked.
In my view, the Minister found at [41] that certain matters would result in the applicant facing “considerable emotional, practical and physical hardship” if returned to Sudan, specifically referring to his “fears for his safety on return” (at [45]).
However, ultimately, the Minister found that those and other countervailing considerations were outweighed by the fact that the applicant represented an “unacceptable risk of harm to the Australian community” (at [80]). At [80], the Minister specifically referred to those countervailing considerations as including the “significant impediments” the applicant would face if returned to Sudan and the hardship he might experience (referring back to the matters that appeared at [32]-[45], which, in turn, included the consideration of the applicant’s fears for his life and safety at [41] and [45]).
Therefore, in my view a fair reading of the Minister’s reasons indicates that he did make findings as to the risk of harm to the applicant on returning to Sudan, and took that into account on the assumption that risk could eventuate (whether well-founded or not). Otherwise, the Minister would not have put that risk into the balance of considerations in reaching a state of satisfaction as to which ultimate decision to reach.
At [80], the Minister also identified “international non-refoulement obligations” as amongst those countervailing considerations. In view of the context of [19], the Minister had not finally determined that non-refoulement obligations were in fact owed to the applicant. The Minister did see the possible existence of such obligations as a live issue, given his observations at [41] that he had “given consideration to [the applicant’s] fears for his life and safety…”.
On this basis, the FCC at [29] correctly concluded there was no failure by the Minister to exercise the task required of him under s 501CA(4) of the Act, as for whatever assumption the Minister made about the likely future course of decision making, he did consider the applicant’s representations, including those representations concerning his fears for his life and safety as mandatory relevant considerations in the sense identified in Buadromo at [41].
Accepting then that the Minister did fail to appreciate the likely future course of decision making under the Act, unlike BCR16, this was not an error that could have materially affected the decision and did not lead to jurisdictional error.
The errors detected by Bromberg and Mortimer JJ in BCR16 were instances of the (ordinarily applicable) proposition that a statutory power is subject to an implied condition that the decision-maker must proceed by reference to correct legal principles. In those circumstances, the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. However, this threshold “would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made”: see Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 at [29], [30] (Kiefel CJ, Gageler and Keane JJ).
Another matter raised by the applicant that requires specific mention is the reference at [80] to “international non-refoulement obligations”. In my view, this is just a reference back to [19] to the extent the Minister refers to the claims of the applicant that may give rise to non-refoulement obligations. On the basis that a consideration of non-refoulement obligations is not mandatory, and the Minister did give proper consideration to the representations of the applicant as a separate matter, this reference to “international non-refoulement obligations” at [80] does not indicate the Minister fell into error.
I do not accept that the reference at [80] should be read as referring to the earlier finding at [19] that the applicant’s non-refoulement obligations could be assessed in a protection visa application. All the Minister did was consider what may be the situation, but otherwise specifically addressed the applicant’s risk arising from his fears as articulated to the Minister.
In this regard, I refer to the decision of Perry J in FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 (‘FAF18’). At [32] and [33], her Honour said this:
[32]The Full Court of the Federal Court has recognised that the Minister, when considering cancellation of a visa under subs 501(2), is not required to consider whether Australia owes non-refoulement obligations to a person who is able to make an application for a protection visa (see Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 67 at [61]-[65]). However, that does not absolve the Minister from addressing a claim to fear harm if an applicant is forced to return as a reason for revoking any such cancellation decision. Rather, Justices Bromberg and Mortimer held in BCR16 at [32]-[75] that the Minister will fail to carry out the task required by subs 501CA(4) if the Minister fails to address or turn her or his mind to the risk of harm that an applicant may face on return to her or his country of nationality solely because that risk may be addressed through the protection visa process: BCR16 at [62] and [72]; see also BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [60]-[71] (Griffiths J); and Steyn at [15]-[16] (Jagot J) (applying BCR16 by analogy).
[33]… in this case it is apparent that the Minister did take the applicant’s submissions regarding his fear of harm if returned into account in deciding not to revoke the cancellation decision, as the Minister submitted. It is true that, as in BCR16, the Minister considered that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant, noting that the applicant was able to make a valid visa application, is not prevented by s 501E of the Act from applying for a protection visa, and had in fact so applied …. However, unlike BCR16, the Minister’s consideration of the applicant’s fears if he were returned to Eritrea did not stop at that point. Rather, as earlier explained, the Minister then took into account the applicant’s fears for his safety if returned in the context of considering the extent of impediments that the applicant would face if returned from Australia to Eritrea …. As such, this is not a case where the Minister wrongly failed to take such fears into account either by misunderstanding the applicant’s claims or by assuming that they would be addressed through the protection visa process (emphasis added).
The context in which her Honour made these observations was described as follows:
[17]Relevantly, with respect to the question of international non-refoulement obligations, the Minister found as follows:
16.[The applicant] has made claims that may give rise to international non-refoulement obligations. I acknowledge [the applicant’s] submissions that he was born in Eritrea. He fled the country during a civil war. He …finally arrived in Australia as a stowaway [in] 1986. He was granted permanent residency on refugee grounds [in] December 1987.
17.… [The applicant] states that he will be killed ‘for political reasons’ if he were to return to Eritrea. He also fears being conscripted for ‘indefinite national service, knowing that anyone who resists conscription in Eritrea risks being killed’. I acknowledge that [the applicant’s] circumstances may give rise to international non-refoulement obligations.
18.I had regard to [the applicant’s] Statement of Claim for protection, dated 26 October 2016, which states that he fears for his safety and deterioration of his mental health if he were to return to Eritrea.
19.However, I note that [the applicant] is able to make a valid application for another visa. In particular [the applicant] is not prevented by s501E of the Act from making an application for a Protection visa. I note that his application for a Class XA Subclass 866 Protection visa was received by the department on 8 November 2016. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of this decision.
[18]In addition under the heading “Extent of impediments if removed”, the Minister notes that the applicant fears for his safety and found that:
33.I have considered the submission detailing [the applicant’s] circumstances before he escaped from Eritrea. I note that he is ‘scared of the police and government’ and ‘fears for his safety’ if he returns to Eritrea.
34.I note that [the applicant] arrived in Australia prior to the Eritrea became [sic] an independent country in 1991 and consequently has not resided in Eritrea.
35.I note that Eritrea is a developing economy. While [the applicant] may have equal access to health and other services as are generally available to other Eritrean citizens in the same position as [the applicant], I recognise that the health care and welfare systems in Eritrea offer limited support to its citizens and will be of a significantly lower standard compared with those available to him in Australia.
36.I find that [the applicant] has limited education and employment background in Eritrea, and that he may encounter substantial difficulties in finding employment, considering his age and health conditions.
37.With his traumatised past, limited employment prospects, alcohol addiction and mental health problems, lack of familial and social support in Eritrea and the lengthy residence in Australia, I find that [the applicant] will experience considerable emotional, financial and practical hardship should he be removed to his home country. His mental health conditions are likely to deteriorate further with possible relapse in alcoholism and I have taken this into consideration in making my decision.
In my view, the position I have found in this application is similar to that before Perry J in FAF18. In that case it was not argued, as it has been before me, that the significance of not complying with non-refoulement obligations was a matter of some weight, as distinct from just the looking at the subjective fears of the applicant. On this basis, it was argued that the Minister should have given more weight to this obligation, than just making findings about the risks to the applicant. However, I do not consider that takes the matter any further. Once it is accepted that it is not a mandatory relevant consideration to take into account the existence or otherwise of non-refoulement obligations, and that the Minister undertook an active intellectual process and made findings in relation to the representations of the applicant as to his safety concerns and the risks of harm, that fulfilled the statutory task imposed on the Minister completely.
DISPOSITION
For the above reasons, the application for an extension of time to appeal is dismissed with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 20 December 2018
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