GBV18 v Minister for Home Affairs

Case [2019] FCA 1132

FEDERAL COURT OF AUSTRALIA

GBV18 v Minister for Home Affairs [2019] FCA 1132

File number(s): VID 1524 of 2018
Judge(s): ANDERSON J
Date of judgment: 29 July 2019
Catchwords:

MIGRATION – application for judicial review of exercise of power by Administrative Appeals Tribunal (Tribunal) under s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal decided not to revoke cancellation of applicant’s visa – whether Tribunal failed to consider whether applicant would be owed complementary protection and, if so, whether the existence of such obligations was a “reason” for revocation – whether the Tribunal failed to carry out its statutory task by misunderstanding the scope of Australia’s non-refoulement obligations or otherwise engaged in irrational reasoning – whether the Tribunal failed to consider findings in UN report – whether the Tribunal failed to carry out its statutory task by stating that, in the event the applicant applied for a protection visa, his protection claims “must be comprehensively assessed” – consideration of Direction No. 65 – consideration of Direction No. 75 – consideration of the extent to which, and the manner in which, a decision-maker under s 501CA(4) is to consider Australia’s non-refoulement obligations

Held: application for judicial review dismissed – Tribunal’s reasons did not evidence irrational reasoning nor a failure of the Tribunal to adequately consider the claims and representations put to it by the applicant – Tribunal did not fail to carry out its statutory task
Legislation:

Migration Act 1958 (Cth) ss 5, 5H, 5J, 36(1C), 36(2)(a), 36(2)(aa), 36(2A), 36(2B)(c), 36(2C)(b), 47, 65, 65(1)(a), 65(1)(a)(i), 430(1), 476(1)(c), 477A(1), 499, 499(2A), 501, 501(2), 501(3A), 501(3A)(a)(i), 501(3A)(b), 501(7)(c), 501BA(2), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(ii), 501E, 501E(1), 501E(2), 501E(2)(a)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Migration Regulations 1994 (Cth) cl 866.226 of sch 2

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:

AFY18 v Minister for Home Affairs [2018] FCA 1566

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

ARG15 v Minister for Immigrationand Border Protection [2016] FCAFC 174; 250 FCR 109

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513

BCR16 v Minister for Immigration and Border Protection

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Details
AGLC
GBV18 v Minister for Home Affairs [2019] FCA 1132
Case
[2019] FCA 1132
Decision Date

CaseChat Overview and Summary

In this case, the applicant, a 27-year-old South Sudanese citizen, challenged the Administrative Appeals Tribunal's decision not to revoke the cancellation of his visa. The Tribunal had found that the applicant's criminal history and character grounds justified the cancellation of his visa. The applicant argued that the Tribunal failed to adequately consider Australia's non-refoulement obligations, his eligibility for complementary protection, and the content of a United Nations report detailing ethnic violence in South Sudan. The Federal Court was tasked with determining whether the Tribunal's decision evidenced irrational reasoning or a failure to adequately consider the applicant's claims and representations.

The legal issues before the court were whether the Tribunal failed to consider the applicant's eligibility for complementary protection and whether the existence of such obligations constituted a "reason" for revocation. The court also examined whether the Tribunal misunderstood the scope of Australia's non-refoulement obligations or engaged in irrational reasoning. Furthermore, the court considered whether the Tribunal failed to consider the findings in the UN report and whether the Tribunal misapplied its statutory task by stating that the applicant's non-refoulement claims "must be comprehensively assessed" in a protection visa application.

The court held that the Tribunal's reasons did not evidence irrational reasoning nor a failure to adequately consider the claims and representations put to it by the applicant. The court found that the Tribunal had properly considered the applicant's non-refoulement obligations, including the content of the UN report. The court also held that the Tribunal did not fail to carry out its statutory task by stating that the applicant's non-refoulement claims "must be comprehensively assessed" in a protection visa application. The court found no merit in the applicant's grounds of review and dismissed the application for judicial review.

The final orders of the court were that the application be dismissed and that the applicant pay the First Respondent's costs of and incidental to the application. The court noted that the entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application.

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

TABLE OF CONTENTS

Introduction and summary

[1]

Structure of these reasons

[6]

Background

[7]

The Tribunal’s decision

[24]

Application for judicial review in this Court

[34]

Relevant legislation

[39]

The Act

[39]

Revocation of the visa cancellation

[39]

Criteria for protection visa

[42]

Legislative instruments

[44]

Direction No. 65

[45]

Direction No. 75

[51]

Operation of s 501CA(4)

[54]

Nature of the discretion

[56]

Consideration of non-refoulement obligations

[58]

Degree of obligation to consider non-refoulement obligations

[61]

Obligation to consider representations

[74]

Current position of the law

[82]

Ground (1) – Failure to consider complementary protection obligations

[91]

Applicant’s submissions

[95]

Minister’s submissions

[97]

Consideration

[101]

Complementary protection claims raised by the applicant

[101]

Was the Tribunal required to consider these claims?

[103]

Tribunal’s consideration of the complementary protection claims

[110]

Ground (2) – Misapplication of non-refoulement obligations

[119]

Applicant’s submissions

[120]

Minister’s submissions

[123]

Consideration

[125]

Relevance and application of s 36(2B)(c) of the Act

[125]

Conflation of “persecution” and “hardship”

[133]

Ground (3) – Failure to consider ethnic violence detailed in UN Report

[141]

Applicant’s submissions

[144]

Minister’s submissions

[146]

Applicable principles

[149]

Consideration

[153]

Presentation of the UN Report to the Tribunal

[154]

Tribunal’s use of the UN Report

[157]

Ground (4) – Failure to carry out statutory task by stating non-refoulement claims “must be comprehensively assessed” in protection visa application

[166]

Applicant’s submissions

[169]

Minister’s submissions

[172]

Consideration

[176]

Misapprehension of statutory task?

[177]

Effect of Direction No. 75

[181]

The correctness of Omar

[184]

Conclusion and orders

[185]

Background

Background to the litigation

The broad structure of these reasons is as follows:(a)Background ([7]-[38]): This section summarises the applicant’s circumstances, the litigation history and the judicial review application to this Court;(b)Relevant legislation ([39]-[53]): This section outlines the relevant aspects of the Act and the operation of various legislative instruments guiding decision-makers under that legislation;(c)Operation of s 501CA(4) ([54]-[90]): This section outlines the general operation of s 501CA(4) of the Act and addresses some points of debate around its application. These matters influence the determination of the applicant’s grounds of review; and(d)Consideration of grounds of review: The balance of these reasons outlines the submissions of the parties and considers each of the four grounds of review advanced by the applicant, starting below at [91], [119], [141] and [166] respectively.Background The applicant is a 27 year old citizen of South Sudan. His childhood was largely spent in displaced persons camps and refugee camps in Sudan and Kenya. The primary applicant for the Visa was the applicant’s eldest sister. The applicant was granted the Visa as her dependant. The applicant and his sister, along with her children, arrived in Australia on 15 December 2004. The applicant was aged 12 years at the time. The maintenance of the applicant’s Visa was subject to the provisions of the Act. Relevantly for current purposes, s 501(3A) of the Act provides that:Refusal or cancellation of visa on character grounds…(3A) The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) …; and(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State of a Territory. For the purposes of the character test referred to in s 501(3A)(a), a “substantial criminal record” includes where the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act. The applicant has compiled an extensive criminal record since arriving in Australia. The reasons of the Tribunal (AAT Reasons) record that the applicant’s history encompasses 21 court appearances in four states since 2009. His convictions as an adult are for increasingly serious offences, including crimes of violence against innocent citizens, police, emergency workers and a prison officer. This includes a sentence of 12 months’ imprisonment on 10 March 2011 for affray, recklessly causing serious injury and robbery. Accordingly, since this time, the applicant has had a “substantial criminal record” for the purposes of s 501(3A)(a)(i). The criterion in s 501(3A)(a) was satisfied. In November 2016, the applicant was serving a full-time sentence of imprisonment in a custodial institution for an offence against a State law, being a breach of a family violence intervention order and associated offences. The criterion in s 501(3A)(b) was therefore also satisfied.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Paragraph 79 of the Applicant’s Statement was accompanied by a footnote citing “UN Human Rights Council. Report on the Commission of Human Rights in South Sudan”, being the same report cited in the VLA Submissions (see above at [18]).The Tribunal’s decision On 31 October 2018, the Tribunal affirmed the decision of the delegate not to revoke the cancellation of the applicant’s Visa. The Tribunal summarised the evidence before it at [26]-[79] of its reasons. Important to the Tribunal’s decision was [53], in which the Tribunal recorded some of the bases on which the applicant feared returning to South Sudan:[The applicant] said he considered Australia to be his home. If returned to South Sudan he says there is nothing for him in a country he ‘left when young’ and which he says is ‘uncivilised.’ He continues to speak Dinka fluently, which is the language used by the major ethnic group of South Sudan, but has no recollection of what life is like there. He has no family or other social support, stating that he was unaware of the location of his biological father in South Sudan. Based on what [the applicant] had seen on television and what others told him, he feared any re-settlement in South Sudan. [The applicant] said he left high school in Australia during year 9 and therefore felt his prospects of getting a job if forced to leave Australia were very limited. In response to questions, [the applicant] confirmed he had never worked since arriving in Australia and had depended on social security payments like Youth Allowance and Newstart since arriving here. When asked what his fears of persecution or being forced to fight with the Army or militia in South Sudan were based on, [the applicant] said ‘I have no evidence to back it up – it’s what I’ve heard people saying.’ He felt that if returned to South Sudan, people there would look at him in ‘different ways – they think you have something you don’t have and then you’ll be killed.’ In response to further questions about the basis of his fears, he said: ‘being a target – this is the stuff I hear people speaking.’(Citations omitted.) After setting out the relevant background and evidence, the Tribunal’s reasons, like the VLA Submissions and the Applicant’s Statement beforehand, followed the structure set out in Direction No. 65. The Tribunal acknowledged it was bound by Direction No. 65 (AAT Reasons at [15]), subject to any respect in which Direction No. 65 was inconsistent with the Act (AAT Reasons at [120]). After considering the “primary considerations” set out in Direction No. 65, the Tribunal turned to the “other considerations” set out in that instrument. Relevant for current purposes, the Tribunal considered at [115]-[129] the relevance of Australia’s international non-refoulement obligations. In doing so, the Tribunal first recognised at [115] that paragraph 14.1(1) of Direction No. 65 “refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm”. The Tribunal then continued at [116]-[123] to outline the relevant material presented by the applicant, highlight the need for the Tribunal to consider Australia’s non-refoulement obligations, and summarised that bases put by the applicant for his fear of harm. In particular, the Tribunal noted at [122] the matters that had been raised in paragraph 76 of the Applicant’s Statement (as extracted above at [22]):OTHER CONSIDERATIONSInternational non-refoulement obligations…122. [The applicant’s] fears about harm arising from a possible return to South Sudan have more recently been advanced as:(a) Lack of access to treatment for his diagnosed Hepatitis B;(b) A lack of social and economic support; and(c) A lack of cultural or experience living in South Sudan (given that the Applicant has never lived in South Sudan other than in the context of internally displaced persons camps and, even then, he has not lived in South Sudan since he was 3 years old).

Ratio Decidendi

Legal Principle Established

The VLA Submissions addressed the relevance of Australia’s international non-refoulement obligations to the applicant’s revocation request. The relevant extract of those submissions (with citations omitted) was as follows: Other considerationsInternational Non-Refoulement ObligationsUnder international treaties to which Australia is a party it is accepted that there is an obligation not to refoule a person to a country where they face a real chance of being seriously or significantly harmed for specific Convention reasons.Paragraph 14.1 of Direction [No.] 65 specifically requires that a decision maker consider the existence of any non-refoulement obligations in coming to a decision about an individual’s revocation request. It is not necessary that the person positively raise non-refoulement where those claims are “clear from the facts of the case”.The relevant legal test under Australian law as to whether the future risk of serious harm is well founded is whether there exists a “real chance” of persecution for a Convention related reason. A “real chance” is one that is not based on mere speculation or that is not remote, but rather, has a real and substantial basis.[The applicant] is a member of the Dinka ethnic groups, which is one of the indigenous ethnic communities of South Sudan. Thus he would be eligible to be grated South Sudanese Nationality. We note that since 2013 South Sudan has been experiencing civil war with widespread human rights violations accompanying that conflict.In the recent UN Human Rights Council ‘Report of the Commission on Human Rights in South Sudan’ covering the period July 2016 to February 2017 the following concerns were noted:·The conduct of all parties to the conflict suggested deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing). Including killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting.·The displacement of an estimated 1.5 million South Sudanese refugees to neighbouring counties, and a further 2 million internally displaced people within South Sudan.·Unprecedented levels of hunger, caused by the combination of disease, protracted instability, escalation of conflict and widespread destruction. Food insecurity was expected to reach massive proportions in 2017. It was expected that 5.5 million people (47% of the population) would become severely food insecure between February and April 2017.·A cholera outbreak for the third consecutive year.·Severe restrictions on the enjoyment of fundamental freedoms and civil liberties including reports of people who had been arbitrarily arrested, detained, tortured or subjected to inhuman or degrading treatment after having expressed criticism of the Government. A footnote accompanying the first paragraph extracted above cited the definition of “non-refoulement obligations” under s 5 of the Act. This definition includes obligations that may arise because Australia is a party to the:(a)Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention);(b)International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); or (c)Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) (CAT).