COT15 v MIBP (No 1)

Case [2015] FCAFC 190

FEDERAL COURT OF AUSTRALIA

COT15 v Minister for Immigration and Border Protection (No 1)
[2015] FCAFC 190

Citation: COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190
Appeal from: [COT15] v Minister for Immigration & Anor [2015] FCCA 1407
Parties: COT15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number: SAD 167 of 2015
Judges: NORTH, COLLIER AND FLICK JJ
Date of judgment: 22 December 2015
Catchwords: MIGRATION – cancellation of sub-class 101 (Child) visa – visa cancelled because appellant provided incorrect information to Department and failed to notify Department of change in circumstances – exercise of discretion to cancel visa – whether Tribunal required to determine whether Australia owes protection obligations to appellant in determining whether to cancel visa – “present circumstances of the visa holder” – physical, economic, emotional and relationship circumstances – whether reg 2.41(e) required Tribunal to consider as a mandatory consideration non-refoulement obligations owed by Australia to the appellant – whether Tribunal required to consider Australia’s non-refoulement obligations under reg 2.41(e), by reference to PAM3, and in accordance with the subject matter, scope and purpose of Migration Act 1958 (Cth) – protection obligations do not fall within scope of visa holder’s current circumstances under reg 2.41(e) – cancellation of visa is legally distinct from removal – future exercises of discretion and statutory power are to be resolved when they arise – appellant’s protection claims could be raised in an application for a protection visa – Tribunal did not fall into jurisdictional error – appeal dismissed
Legislation:

Migration Act 1958 (Cth) ss 107, 109
Migration Regulations 1994 (Cth) reg 2.41; sch 2, cl 101.213

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
Cases cited: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43
Minister for Immigration and Citizenship v Khadgi (2010) [2010] FCAFC 145; 190 FCR 248
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612
Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641
Date of hearing: 24 November 2015
Date of last submissions: 27 November 2015
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 45
Counsel for the Appellant: Mr S D Ower
Solicitor for the Appellant: McDonald Steed McGrath
Counsel for the Respondents: Dr S Donaghue QC with Mr K Tredrea
Solicitor for the Respondents: Sparke Helmore Lawyers
Table of Corrections
23 December 2015 The file number on the cover page, orders and reasons pages has been corrected.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL…

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AGLC
COT15 v MIBP (No 1) [2015] FCAFC 190
Case
[2015] FCAFC 190
Decision Date

CaseChat Overview and Summary

The case of COT15 v MIBP (No 1) involved the appellant, COT15, who sought a review of a decision by the Tribunal to cancel his sub-class 101 (Child) visa. The cancellation was due to COT15 providing incorrect information to the Department and failing to notify the Department of changes in his circumstances. The Federal Circuit Court was tasked with determining whether the Tribunal was required to consider Australia's non-refoulement obligations when deciding to cancel COT15's visa, and whether the Tribunal made a jurisdictional error in its decision-making process.

The primary legal issue was whether Australia's non-refoulement obligations were a mandatory consideration under Regulation 2.41(e) of the Migration Regulations 1994 (Cth). This regulation requires the Tribunal to consider the "present circumstances of the visa holder" when deciding whether to cancel a visa. COT15 argued that this included considering Australia's non-refoulement obligations, which he claimed were mandatory by virtue of the policy and administrative matters (PAM3) guidelines and the overarching purpose of the Migration Act 1958 (Cth). The Court needed to decide if the Tribunal was legally required to consider these obligations and if it had erred by not doing so.

The Court held that the Tribunal was not required to consider Australia's non-refoulement obligations as a mandatory consideration under Regulation 2.41(e). The regulation specifically refers to the visa holder's physical, economic, emotional, and relationship circumstances, which do not include Australia's international obligations. Furthermore, PAM3 explicitly distinguishes between mandatory considerations under Regulation 2.41 and discretionary considerations, such as Australia's international obligations, which should be taken into account where relevant. The Court found that the Tribunal had not erred in its consideration of the matter and had, in fact, taken into account Australia's non-refoulement obligations. Thus, the Court dismissed the appeal, holding that the Tribunal's decision was legally sound.

In conclusion, the Court extended the time for the filing of the notice of contention, dismissed the appeal, and ordered the appellant to pay the respondent's costs of the appeal. The Court's decision reaffirmed that the Tribunal's consideration of Australia's non-refoulement obligations was discretionary and not mandatory, and that the Tribunal's decision-making process was not flawed.

Orders

Orders of the court

1. The time within which the first respondent file his notice of contention is extended until 21 September 2015.

2. The appeal is dismissed.

3. The appellant pay the first respondent’s costs of the appeal.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Following that discussion the Tribunal stated at [38] – [41]:38.In regard to breaching Australia’s international obligations, [the appellant] provided a submission stating a significant proportion of his family now live in Australia. And that if [the appellant’s] visa is cancelled it will result in significant strain and hardship to his family. It is submitted that [the appellant’s] life and liberty would be threatened if he were forced to leave Australia and would be a breach of Australia’s non-refoulement obligations. It is submitted that if he applied for a protection visa and this was refused Australia would be in breach of these obligations. 39.[The appellant] says that as an ethnic Hazara he fears for his life in Quetta and Pakistan. The submission states the delegate’s view that [the appellant] can apply for a protection visa fails to appreciate the implications of cancelling his visa as his application to sponsor his wife and children cannot succeed until a permanent protection visa is granted. 40.The Tribunal has considered his submission, but is satisfied that his claims can be canvassed in any application for a protection visa. 41.The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s. 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled. THE JUDGMENT OF THE FEDERAL CIRCUIT COURT The appellant applied to the Federal Circuit Court for a review of the decision of the Tribunal on the ground that the Tribunal failed to give proper consideration to the likelihood that the appellant would suffer persecution if returned to Afghanistan. In his judgment delivered on 18 May 2015 the primary judge rejected the argument that reg 2.41(e) required the Tribunal to consider as a mandatory consideration the non-refoulement obligation owed by Australia to the appellant. But the primary judge held that even if reg. 2.41(e) required it to do so, then the Tribunal had considered this factor. The primary judge also rejected the appellant’s argument that PAM3 required the Tribunal to take into account Australia’s non-refoulement obligations. The language used in PAM3 indicated that this was a discretionary consideration. But the Federal Circuit Court held that, in any event, the Tribunal had taken this consideration into account. The primary judge neither accepted nor rejected the appellant’s argument that the subject matter, scope and purpose of the Act required the Tribunal to take into account Australia’s non-refoulement obligations as a mandatory consideration. The primary judge held that, in any event, the Tribunal did have regard to that obligation. In the result the primary judge dismissed the application for a review of the Tribunal’s decision. THE NOTICE OF APPEAL AND NOTICE OF CONTENTION On 9 June 2015, the appellant filed a notice of appeal in this Court which challenged the conclusion of the primary judge that the Tribunal was not bound to take into account Australia’s non-refoulement obligations as a mandatory consideration under reg. 2.41(e), by reference to PAM3, and in accordance with the subject matter, scope, and purpose of the Act.

Ratio Decidendi

Legal Principle Established

The notice of contention was filed out of time but the appellant did not object to the Court extending the time for the filing of the notice so that the contention could be argued on the appeal. CONSIDERATION The first issue considered is whether, on any of the three bases proposed by the appellant, Australia’s non-refoulement obligations was a mandatory relevant consideration which the Tribunal was bound to take into account in determining whether to cancel the appellant’s visa. Regulation 2.41(e) stipulates a circumstance which is a mandatory consideration by operation of s 109(1)(c) of the Act. The Tribunal must consider the “present circumstances of the visa holder”. The primary judge concluded that the regulation referred to the physical, economic, emotional, and relationship circumstances of an applicant. It did not extend to whether Australia owed non-refoulement obligations to the visa applicant. That construction of the text of the regulation is correct. The reference to the present circumstances of the visa holder is not apt to refer to obligations which Australia owes to other countries under treaty. That construction is consistent with the matter as treated by PAM3. PAM3 deals with considerations which must be taken into account under reg 2.41 in [15.2] and then in [15.3] it deals separately with considerations which should be taken into account by the decision maker, where relevant, when determining whether to cancel a visa. Australia’s international obligations are discussed in this latter paragraph. PAM3 thus recognises that Australia’s international obligations are not a matter which must be addressed under reg 2.41, and, in particular, those obligations do not fall within the description of the visa holder’s current circumstances under reg 2.41(e). Then, counsel for the appellant contended that, properly read, PAM3 made Australia’s non-refoulement obligations a mandatory consideration. He argued that [15.3] expressly listed matters that “should” be taken into account. “Should”, he said, was used in the sense of “must”. That reading was confirmed by [76] and [78] which provided in part:AUSTRALIA’S INTERNATIONAL OBLIGATIONS76 Relevant international obligationsAustralia’s International obligations derive, in part, from treaties to which Australia is a party. When considering whether to cancel a visa under s109, s116, s128 and s140(2), or whether to revoke a cancellation under s131, officers must take into account any relevant obligations arising under such treaties. Obligations apply to persons within Australia’s territory and also to person within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interest of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm). …78 Refugees Convention non-refoulement obligationsSpecial considerations apply if cancellation of:Ÿa Protection visa orŸanother visa held because the visa holder has been assessed as engaging Australia’s protection obligations under the Refugees Convention (the 1951 Convention relating to the Status of Refugees and its 1967 Protocol)The non-refoulement obligation under the Refugees Convention may also be relevant in non-Protection visa cases, if the person’s life or freedom would be threatened because of a Refugees Convention reason (that is, for reasons of race, religion, nationality, membership of a particular social group or political opinion) if they are removed from Australia. For further guidance, see the Refugee Law Guidelines. Cancellation in such circumstances must be consistent with Australia’s protection obligations under the Refugees Convention. Article 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person’s life or freedom would be threatened because of a Refugee Convention reason, or removal to a country which is likely to remove the person to another country where the person’s life or freedom would be threatened because of a Refugee Convention reason).