DTB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 423
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 423
File number(s): SYG 2628 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 31 May 2022 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal affirming the decision of a delegate to cancel the applicant’s protection visa – the delegate exercised their discretion under s 109 of the Migration Act 1958 (Cth) to cancel the applicant’s visa – whether the Tribunal failed to properly assess the applicant’s prospect of harm – no jurisdictional error identified – application dismissed Legislation: Acts Interpretation Act 1901 (Cth)
Migration Act1958 (Cth) ss 5J, 101, 106, 109, 476, 501, 501CA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: ADU18 v Minister for Home Affairs [2020] FCA 366
Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
CKZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 47
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123
Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 3 March 2022 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: ImmiHouse Legal Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 2628 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS THAT:
1.The application filed on 21 August 2017, as amended, is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application made under s 476(1) of the Migration Act1958 (Cth) (Act) the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 20 July 2017 affirming the decision of a delegate of the first respondent (delegate) to cancel the applicant’s Subclass 866 (Protection) visa (visa).
Background
The applicant is a citizen of Iraq who arrived in Australia as an irregular maritime arrival on 5 January 2010 (Court Book (CB) 36). On 13 April 2010 the applicant applied for the visa. The applicant was granted the visa on 15 April 2010 (CB 110-120). On 25 August 2015 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) under s 109 of the Act (CB 123-135). The NOICC suggested that the applicant had provided incorrect information to the Department in connection to the visa application.
On 17 September 2015 the applicant, by his authorised representative, responded to the NOICC (CB 136-148).
On 16 May 2016 the delegate exercised the discretion under s 109 of the Act and cancelled the applicant’s visa (CB 203-233). The delegate noted that by the applicant’s statutory declaration provided in support of the visa application the applicant alleged to fear harm in (a named place) in Iraq, on the basis of religion. The delegate acknowledged that the applicant had subsequently returned to Iraq on four occasions and obtained an Iraqi passport. The delegate recorded, but was not satisfied by, the applicant’s response to the NOICC and found that the applicant had “deliberately misrepresented” his claims and provided incorrect information under s 101(b) of the Act by falsely claiming to fear harm in Iraq. After weighing the relevant factors, including the prescribed circumstances in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations), the delegate cancelled the applicant’s visa.
Relevant legislation
Section 109 of the Act states:
Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Regulation 2.41 of the Regulations states:
Whether to cancel visa--incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
Tribunal decision
On 16 May 2016 the applicant sought review of the delegate’s decision by the Tribunal (CB 227-228).
On 25 August 2016 the Tribunal invited the applicant to attend a hearing before it on 29 September 2016 (CB 249). The applicant failed to attend on that date and his application was dismissed. The application was reinstated after the Tribunal considered the applicant’s representative’s submissions (CB 292 at [7]). The Tribunal held hearings on each of 5 December 2016 and 7 June 2017 (CB 276-278 and CB 285-287).
On 20 July 2017 the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa (CB 291-327).
The Tribunal set out the procedural background, the relevant statutory background and the evidence before it (CB 292-293 at [1]-[16]). The Tribunal identified that the issue for determination was whether there was non-compliance in the way described in the NOICC, being the manner particularised in the NOICC and, if so, whether the visa should be cancelled (CB 292 at [12]).
The Tribunal noted that there were two certificates issued under s 438 of the Act which it found were valid after having invited the applicant to comment on the validity of those certificates at the second Tribunal hearing and noting that the applicant’s representative had not made any submissions as to the validity of the certificates (CB 293–294 at [17]-[22]).
The Tribunal referred to the applicant’s evidence that he is married with four children, and that his wife, children and parents currently live in Iraq. While the applicant gave evidence that his wife and children lived with his parents his home town in Iraq, later in the hearing he claimed that the family moved from there to a farm elsewhere in Iraq ([26]).
The Tribunal noted that the applicant lived in Sydney, received the Disability Support Pension from Centrelink, had been diagnosed with anxiety and depression and had attempted to commit suicide in the past ([27]). The applicant claimed to be a Sunni Muslim and was born and grew up in a named place in Iraq, a majority Shiite area in Iraq ([28]).
The Tribunal summarised the delegate’s decision and noted that the applicant was granted visa on 15 April 2010 on the basis that he feared for his life and that the Supreme Court would cause him to be harmed or killed if he returned to Iraq, it having been accepted as true that he was unable to relocate (at [37]) but that, on 27 September 2014, it came to the Department’s attention that the applicant had returned to Iraq approximately seven months after the grant of the protection visa and whilst there applied for an Iraqi passport ([38]).
The applicant gave evidence that he is a Sunni Muslim and that he feared Shia militias and the Iraqi government ([74]). The Tribunal considered that there was some evidence that the applicant was a Shia Muslim but, on balance, accepted that he and his family were Sunni ([86]).
The Tribunal observed that the delegate’s decision to cancel the visa was primarily based on the applicant’s conduct following the grant of his protection visa ([91]). After the grant of his visa the applicant travelled to Iraq on 21 November 2010 and remained in Iraq for approximately 12 months ([92]). The applicant gave evidence that the main reason he returned to Iraq during this time was to organise his children’s passports and that he had to apply for them in person. He also claimed that he suffered a psychological condition and was concerned for his family’s safety in Iraq ([124]-[125]). The Tribunal considered that the applicant’s voluntary return to Iraq in 2010 and his continued presence showed that he did not have a subjective fear of harm, as claimed and it did not accept that he would be killed if he returned to Iraq, that he could not live in another part of Iraq and that no place would be safe for him ([126]).
Following the applicant’s first visit to Iraq, he subsequently travelled to Iraq on multiple occasions, including:
(a)a second visit on 26 January 2013, returning to Australia on 5 April 2013 (CB 310 at [127]);
(b)a third visit on 24 December 2013, returning to Australia on 13 March 2014 ([135]);
(c)a fourth visit on 11 July 2014, returning to Australia on 27 September 2014 ([138]);
The Tribunal found that the applicant’s second, third and fourth voluntary return and continued presence in Iraq indicated that at the time he made his application, the statements he made in that application were not correct and he did not have a subjective fear of harm as claimed in his statutory declaration ([134], [137], [149]).
In the circumstances, the Tribunal found that the applicant did not comply with s 101(b) of the Act which gave rise to a ground of cancellation under s 109 of the Act ([151]).
The Tribunal considered the prescribed circumstances in reg 2.41 of the Regulations. In considering whether cancellation of the applicant’s visa would breach Australia’s non-refoulement obligations, the Tribunal accepted that the applicant is a Sunni Muslim ([192]-[197]). The Tribunal found, as demonstrated by his repeated visits to Iraq, the applicant did not have an adverse profile with the Iraqi authorities nor would he face harm as a Sunni Muslim on his return ([197]).
The Tribunal noted (at [64]) the applicant’s claim that the situation in the south of Iraq was getting worse for the Sunni minority. The Tribunal observed that there was generalised violence in Iraq, in the sense of “volatility of the security situation”, “the current difficulties”, the “humanitarian situation” and “some random acts of violence” ([206]).
The Tribunal noted that the applicant referred to problems with his mental health and general health ([207]). After noting country information on health care in Iraq, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there was a real risk that he would suffer significant harm as a result of his medical problems ([215]) and found that the applicant would be provided with adequate health care ([198]-[213]).
The Tribunal found that Australia did not owe non-refoulement obligations to the applicant ([214]-[215]).
The Tribunal concluded that “overall and weighing all the considerations” that the applicant’s visa should be cancelled and found that the applicant’s removal from Australia would not be in breach of Australia’s obligation under relevant international agreements (at [216]-[224]).
Proceedings before the Court
By an application to show cause filed with the Court on 21 August 2017, the applicant sought review of the Tribunal’s decision and raised three grounds of review. At the time the applicant commenced the proceeding he was represented by a solicitor. By orders made, by consent, on 16 November 2017, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 8 February 2018. This did not occur. On 16 October 2020 a Notice of Address for Service was filed for the applicant by another solicitor which had the effect of replacing the original solicitor on the record for the applicant.
On 22 December 2021 the matter was brought into my docket and listed for hearing on 3 March 2022. The hearing was held using the Microsoft Teams platform and each of the parties was represented by Counsel.
At the commencement of the hearing, Counsel for the applicant sought leave to file and rely on a Proposed Further Amended Application which had been appended to the written submissions filed for the applicant. Despite the eleventh hour nature of the amendment, leave was not opposed by the first respondent, nor was there any order sought for costs thrown away. I granted leave for the Further Amended Application to be filed by close of business on 7 March 2022.
Accordingly, the ground of review and its particulars which arose for consideration in the Further Amended Application was as follows:
1. The Tribunal made a jurisdictional error by failing properly to assess the Applicant’s prospect of harm in the event that the visa was cancelled.
a. The Tribunal found at paragraph 206 of its decision that there was generalised violence in Iraq, in the sense of “volatility of the security situation”, “the current difficulties”, the “humanitarian situation” and “some random acts of violence”;
b. However, the Tribunal found at paragraph 199 of its decision that the Applicant “would not face serious harm for reasons of his religion, imputed political opinion or any other reason” and likewise elsewhere found that the Applicant would not suffer “serious harm”;
c. The Tribunal further found at paragraph 223 of its decision that “the applicant’s removal from Australia would not be in breach of Australia’s obligation under relevant international agreements”.
d. In other words, the Tribunal did not consider for the purposes of s 109 of the Migration Act 1958 (Cth) (Act) generalised violence in Iraq, instead considering it dispositive that the Applicant did not face serious harm for a Convention reason; and
e. The Tribunal, therefore, wrongly applied a test under s 109 of the Act of whether the risk of violence arose for a Convention reason instead of also asking whether there was a risk of violence regardless of whether it would warrant a protection visa: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 [Goundar] at [52]-[54];
f. In the alternative, the Tribunal failed to take into account a mandatory relevant consideration arising from its own findings of fact being whether generalised violence in Iraq meant that there should be an exercise favourable to the Applicant of s 109 of the Act: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 [AYY17] at [18], [26]; ADU18 v Minister for Home Affairs [2020] FCA 366 [ADU18] at [24].
Applicant’s submissions
The applicant relied on Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123, in which Robertson J considered a decision of the Minister not to revoke the cancellation of a Subclass 100 Spouse visa under s 501CA(4) of the Act. The visa had been cancelled under s 501(3A) on the basis that the applicant had a substantial criminal record.
The applicant sought to minimise certain distinguishing features between the instant case and Goundar, saying that the essence of Goundar is that if a decision-maker fails to take into account harm falling outside protection visa harm, in a context where such harm is not irrelevant to, and may be a basis for, exercising a discretion as to cancellation of a visa, then it may be inferred that the decision-maker has proceeded on an incorrect understanding of the law and thereby made a jurisdictional error.
It was contended that, as a result, it is not fatal to the applicant’s case that the Tribunal did take into account non-refoulement obligations. The critical point is how the Tribunal treated harm falling outside non-refoulement obligations. Nor, says the applicant, is it fatal to his case that the Tribunal was applying s 109(1) of the Act because the discretion is sufficiently broad that harm falling outside non-refoulement obligations could be a basis for deciding not to cancel the visa.
The applicant argued that Goundar is capable of application in the present case so long as it can be established that the Tribunal proceeded on the basis that harm falling outside non‑refoulement obligations was not relevant to the exercise of s 109(1) of the Act not to cancel the visa.
The applicant submitted that the focus should therefore be on whether the Tribunal has viewed such harm as no basis for exercising s 109(1) of the Act. The harm identified by the Tribunal was the “volatility of the security situation, the current difficulties and humanitarian situation in Iraq” (at [206]). This may be described “as generalised violence in Iraq”. The Tribunal accepted its existence.
The Tribunal then concluded, clearly in the language of non-refoulement obligations under provisions such as s 5J of the Act, that it considered the applicant “would not face serious harm for reasons of his religion, imputed political opinion or any other reason” (at [199]). The Tribunal found “the applicant’s removal from Australia would not be in breach of Australia’s obligation under relevant international agreements” (at [223]).
The applicant said that at no other point did the Tribunal consider generalised violence in Iraq. In other words, the Tribunal proceeded on the basis that, if non-refoulement obligations were present, those obligations were relevant to the exercise of s 109(1) of the Act. However, the Tribunal referred to but did not further consider harm falling outside non-refoulement obligations. I am urged to infer that the Tribunal refrained from taking such harm into account when deciding whether or not to cancel the visa under s 109(1) of the Act. It therefore proceeded on an incorrect understanding of the law.
It was further submitted that, even if the Court does not infer an incorrect understanding of s 109(1) of the Act, then a failure to take into account a mandatory relevant consideration is nonetheless present. It has been suggested that reg 2.41 exhausts the matters to which the Minister must have regard, although it does not prevent the Minister from electing to have regard to other matters: see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [68] per Stone, Foster and Nicholas JJ.
It was contended that subsequent authority suggests that s 109 of the Act “must be exercised by the Minister considering the claims and material put forward by the applicant” (see, in relation to the discretion to cancel a visa under s 501CA(4) of the Act, Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194 at [36] per Nettle, Gordon and Edelman JJ).
The claims and material put forward by an applicant, for this purpose, extend to matters arising from the decision-maker’s own findings of fact: see AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ; Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 at [69] per Bromwich and Wheelahan JJ; ADU18 v Minister for Home Affairs [2020] FCA 366 at [24] per Derrington J).
It was submitted that, in light of the authorities subsequent to Khadgi, if the material before the Tribunal (including its own findings) raised a matter then the Tribunal was required to consider it even if it fell outside of the matters referred to in reg 2.41 of the Regulations.
In the present case, the Tribunal accepted that there was generalised violence in Iraq. The applicant says that as a result of this finding, it was required to consider whether, due to that generalised violence, the applicant’s visa should not be cancelled under s 109(1) of the Act. The applicant says that the Tribunal failed to consider this matter (Cf CKZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 47) and as a result, the Tribunal made a jurisdictional error.
Minister’s submissions
The Minister says that to the extent it is alleged that the Tribunal did not consider the risk of generalised violence in Iraq at [206] and excluded consideration of such violence on the basis that it would not be motivated by a Refugees Convention basis, this is not a fair reading of the Tribunal’s reasons (at [192]-[206]). This is because the Tribunal at [206] found that there was not a real chance of the applicant suffering serious harm in Iraq. The Minister contends that nowhere in the decision does the Tribunal state that it was only assessing whether the applicant faced harm for a Refugees Convention reason and thereby excluding some forms of harm from consideration.
The Minister submits that while the Tribunal at [206] uses the language of “serious harm” derived from the Act: see 5J(4)(b) and (5), this does not indicate that it is thereby excluding generalised violence in Iraq from considerations: see CKZ19 (supra) at [23]-[29]. Rather, the reasons at [206] indicate that the Tribunal is making an assessment of the risk of harm would be inflicted for a Refugees Convention reason.
The Minister submits that the Tribunal did not refuse to consider a claimed risk of harm to the applicant, as identified in Goundar at [52]-[54], which was a decision where the Minister exercising powers under s 501CA refused to consider claims of possible harm because of the erroneous view that they could be addressed by an application for a protection visa. The Minister stated that Goundar does not relate to the current case as the Tribunal (at [192]-[206]) expressly considered, as part of the exercise of its discretion, whether any non-refoulement obligations would be breached if the applicant’s visa were cancelled.
Consideration
The questions for resolution by the Court in this matter turn upon a proper construction of the Tribunal’s reasons and it has long been accepted that in assessing the reasons of an administrative decision-maker, those reasons are entitled to a beneficial construction.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259 at 271 –272, Brennan CJ, Toohey, McHugh and Gummow JJ held that (footnotes omitted):
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker: Pozzolanic (supra) at 287. The Court continued:
"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
The principle that reasons are not to be scrutinised in search of error, which has its origins in Collector of Customs v Pozzolanic (1993) 43 FCR 280 (in turn citing Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 per Lockhart J) is generally attributed to Wu Shan Liang. As I recently observed in AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 while it is so frequently cited in this jurisdiction as to have become trite, this should not cause it to be overlooked.
As the Full Federal Court recently observed in XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 at [27]:
As such, when it is said that such reasons should be read beneficially, ultimately this means that “a common sense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] - [15] (Allsop J (as his Honour then was)).
In accepting the aforementioned beneficial construction approach, the applicant said that “beneficial” should not be construed as meaning that the Court should adopted a strained approach with the aim of preserving the validity of the Tribunal’s decision, as might occur in the case of the construction of legislation having regard, for example, to s 15AA of the Acts Interpretation Act 1901 (Cth).
The applicant submits that there are three matters to be considered by the Court. The first being a question of fact, as to the effect of the Tribunal’s reasons and thereafter, two questions of law. The applicant concedes that if the Court finds as a matter of fact that the Tribunal did in fact consider generalised violence as part of its assessment of the harm the applicant might suffer in Iraq because such harm would not be inflicted for a Convention reason, then the ground fails at the factual level and the questions of law (namely, sub-grounds 1(e) and 1(f)) do not arise for consideration.
Turning then to the Tribunal’s reasons for decision, the Tribunal raised the broad issue of non-refoulement for itself. The applicant concedes that unlike in Goundar (supra), the applicant in the instant case did not raise the question of a fear of harm from generalised violence in Iraq. This is also a feature which renders this case a fortiori to CKZ19 per Nicholas J (in particular at [10]).
Contrary to the applicant’s contentions, the distinguishing differences between Goundar and the instant case, namely that the instant Tribunal:
(a)did consider non-refoulement obligations, whereas the Minister in Goundar refused to consider such obligations, instead leaving them to be considered at the protection visa stage; and
(b)was exercising the discretion in s 109(1) of the Act, whereas the Minister in Goundar faced applying s 501CA(4)(b)(ii) of the Act;
are both significant and relevant points of distinction which result in Goundar having limited analogous value in the context of the current cancellation.
In the present case, despite the applicant not having raised a claim to fear harm from generalised violence in Iraq, the Tribunal went on to consider it for itself at [192]-[215] (CB 318-323) of its reasons for decision, which come under the following subheading:
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements.
Thereafter, the Tribunal considered, at length, an array of matters which included the applicant’s religious affiliation, the applicant’s mental health and generalised violence, relevant findings of which are set out below.
From the time the applicant was first granted a protection visa on 13 April 2010, he repeatedly travelled to Iraq. The first of those visits was in November 2010 and there were three others between then and late 2014. After considering the whether the applicant would face serious harm on return in breach of Australia’s non-refoulement obligations, the Tribunal found that the applicant did not hold any genuine fears that he would face serious harm on return to Iraq nor that he had a profile which suggested he would face harm as a Sunni Muslim (CB 319 at [197]).
After detailing the applicant’s evidence regarding the whereabouts of his family in Iraq (CB 319 at [198]) the Tribunal found (CB 319 at [199]) that if the applicant was to return to his home town:
he would not face serious harm for reasons of his religion, imputed political opinion or any other reason.
The applicant says that this sentence must be read as meaning “or any other Convention reason” (emphasis added).
I disagree. Notwithstanding that in the harm is referred to as “serious harm” in the first part of that sentence, there is nothing from a contextual reading of this passage within the section dealing with non-refoulement, or the Tribunal’s decision as a while which suggests that the interpolation of “Convention” into this sentence was intended.
With respect, to do so would employ precisely the strained construction against which the applicant cautioned at [48] above.
At [205]-[206] (CB 321) the Tribunal considered certain country information which indicated that the southern part of Iraq is, and remains, more secure that other parts of Iraq and makes findings regarding the general security and humanitarian situation in Iraq. Contrary to what is contended for the applicant, there is no part of [205] that excludes generalised violence from the Tribunal’s discretionary consideration simply because it may not have a Convention nexus.
Nor am I persuaded that in this case the Tribunal’s use of the expression “serious harm” in the context of the non-refoulement section of its reasons, was used as a term of art in the s 5J sense and gives rise to an inference that the Tribunal was therefore not considering the risk to the applicant from generalised violence in Iraq beyond a Convention basis: see CKZ19 (supra) at [25].
In my view the Tribunal did not fail to consider harm to the applicant on the basis that such harm was not inflicted for a Convention reason, nor to consider the risk of such harm as when determining how to exercise its discretion under s 109(1) of the Act.
From [216]-[224] of its reasons, the Tribunal set out its conclusions. In doing so the Tribunal found that overall and weighing all considerations, the visa should be cancelled (at [216]). Having considered generalised violence in a separate section of its reasons pertaining to Australia’s non-refoulement obligations it is open to infer, and I do, that the risk of harm to the applicant in Iraq from such violence was a matter the Tribunal took into account in the exercise the discretion under s 109(1) of the Act.
This is moreso from its final conclusion on the issue at [223] (CB 325) where it said:
For the reasons set out above the Tribunal finds that the applicant’s removal from Australia would not be in breach of Australia’s obligations under relevant international agreements.
In my view the applicant has failed to demonstrate that the Tribunal’s decision was affected by jurisdictional error in relation to the matters alleged by grounds 1(a) to (1)(d)(inclusive) of the Further Amended Application. As conceded by the applicant, the balance of grounds (1)(e) and 1(f) therefore do not arise for consideration.
In the absence of any jurisdictional error, the decision is a privative clause decision and the application, as amended, must be dismissed. I will so order.
The parties each made submissions at the hearing of this matter that whichever of them was successful, the appropriate costs orders should be in accordance with Schedule 2, Part 2, Division 1, Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is presently $7,853. Accordingly I will also order that the applicant pay the first respondent’s costs and disbursements in that amount.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 31 May 2022
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