Jayba and Minister for Immigration and Border Protection (Migration)

[2018] AATA 385

Jayba  and Minister for Immigration and Border Protection (Migration) [2018] AATA 385 (6 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7470

Re:Michael Jayba 

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:6 March 2018  

Place:Sydney

The reviewable decision is set aside and remitted for reconsideration with a direction that the discretion in s.501CA(4) of the Migration Act 1958 (Cth) is to be exercised in favour of the applicant.

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

Deputy President B W Rayment

Catchwords

MIGRATION – non-revocation of mandatory cancellation of visa – refugee and humanitarian visa – character test – substantial criminal record – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – interests of minor children – particularly serious crime’, meaning of – non-refoulement obligations not owed – low to moderate risk of reoffending – decision under review set aside and remitted

Legislation

Migration Act 1958 (Cth) ss 5G, 5H, 5J, 5M, 36(1B), (2), 197C, 499, 501(1), (3A), 501CA, (4)

Cases

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
BBK15 v Minister for Immigration and Border Protection [2016] FCA 680
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
BHKM and Minister for Immigration and Border Protection [2018] AATA 3
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FTYC and Minister for Immigration and Border Protection [2018] AATA 20
Goundar v Minister for Immigration and border Protection [2016] FCA 1203
PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No.65 – Migration Act 1958 – Direction under section 499, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)

REASONS FOR DECISION

Deputy President B W Rayment

6 March 2018

1. The applicant in these proceedings has been given a pseudonym to keep his name and identity confidential.

2. Mr Jayba’s visa has been cancelled under s.501(3A) of the Migration Act 1958 (the Act), a cancellation which was mandatory since the applicant has been convicted of an offence and sentenced to a term of imprisonment of 12 months or more. Section 501CA of the Act is engaged in those circumstances and if representations are made by the person whose visa has been cancelled, s.501CA(4) empowers the Minister, and this Tribunal on review, to exercise a discretion to revoke the cancellation if satisfied that notwithstanding that the person does not pass the character test, there is another reason why the cancellation should be revoked.

3. The case raises issues under Direction 65[1] published by the then Minister for Immigration and Border Protection in 2014, including non-refoulement issues. Direction 65 was published under s.499 of the Act and binds decision-makers who exercise certain discretions under the Act, including the discretion under s.501CA(4).

   [1] Direction No.65 – Migration Act 1958 – Direction under section 499, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

4. The visa in issue in these proceedings is not a protection visa. It is known as a Class XB Refugee and Humanitarian subclass 202 – Global Special Humanitarian visa. It was cancelled because Mr Jayba was sentenced to a term of imprisonment of 15 months in May 2016.

5. A non-parole period of four months was fixed and at the end of the four month period he was granted parole. He was immediately taken into immigration detention, at first at Villawood Detention Centre and later at Christmas Island Detention Centre. He was returned from that island to Villawood for the hearing of these proceedings.

6. Direction 65 specifies certain “principles” for the guidance of decision makers and nominates certain considerations which it is mandatory for decision-makers to take into account when exercising the discretion involved in these proceedings. The list of “other” matters which it is mandatory to take into account is not exhaustive and decision-makers should take into account other (that is, unspecified) matters where relevant. The primary considerations are stated exhaustively and the Direction specifies that they will “generally” outweigh other matters. The primary considerations themselves may tend both ways.

7. The Minister is not personally bound by Direction 65 and the decision which I am reviewing was made by a delegate, who was bound by the Direction.

8. The circumstances of each case, considered in the light of the mandatory considerations, are to be evaluated by decision-makers. The weight to be given to each consideration in the light of the facts of the case is a matter for the decision-maker to determine and the final, principled result, will involve him or her weighing all relevant considerations together.

9. The terms of Direction 65 are published and it is not necessary to set out those terms in full here. The principles set out in clause 6.3 (and largely repeated within the body of the Direction) provide a framework within which decision-makers should approach their task. They put stress on the significance of criminal conduct. Clause 8(1) states that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. That may suggest that visa holders whose visa have been the subject of mandatory cancellation will be accorded greater latitude than visa applicants.

10. Part C of the Direction which comprises clauses 13 and 14, states the mandatory considerations relevant to the discretion to be exercised in this matter.

11. The first mandatory consideration is the protection of the Australian community from criminal or other serious conduct.

    Protection of the Australian community

12. It is convenient first to discuss Mr Jayba’s criminal record, and I should start with his driving record. He has three drink-driving offences, one of low range alcohol content in his blood, one of mid-range and one of high range. It was the high range offence which was the most recent and he was convicted of it in May 2016. Although no one was injured in any of the offences, it is those offences which have the greater potential to do harm to the community, if repeated. When convicted of the mid-range offence in 2011 he was also convicted of other driving offences, of driving with an expired licence, driving an unregistered vehicle and driving while disqualified, an offence of which he had also been convicted in 2005.

13. The trip which he took when driving with a high-range blood alcohol content was a very short one. His ability to drive in that condition was minimal and he crashed the car with no injury to any person. He was driving alone, having been asked by his drinking mates to get more alcohol.

14. Mr Jayba hails from Sudan, a country now divided into two countries. If that division had occurred when he was born, he would be described as a South Sudanese. He arrived here as a teetotaller at the age of 21. He had at the age of ten witnessed a young friend’s leg being cut off with a machete during the Sudanese civil war. His father was killed fighting in that war. He, his brother and sisters and his mother moved to Khartoum, and later to Egypt. After a year of schooling in Australia he began working as a fruit picker.

15. At the age of 23, he began drinking alcohol. In the same year he was convicted of his first drink-driving offence. He was driving his mother’s car. At the age of 29, he was convicted of his second drink-driving offence. I infer that he was driving his own car, not then registered. At the age of 34, he was convicted of his third and most serious drink-driving offence. He is now 36 years of age.

16. Mid-range and high-range drink-driving offences, if repeated, have the potential to damage persons and property in this country.

17. The Minister has not had him examined by a doctor recently. There is a report dated 2016 from a psychologist dated 30 November 2016.  She stated that Mr Jayba is likely to benefit from specialist counselling to help him address his misuse of alcohol and his relationship concerns. She said that in the longer term he may benefit from specialist trauma counselling to help him address the impact of his trauma experiences in Sudan when he is ready and able to address his trauma.  She also suggested neurological examination to rule out underlying organic causes or brain damage to explain his memory deficits and comprehension difficulties.  At the present time none of those things seem to have been addressed in detention, save that he regularly attended Narcotics Anonymous meetings in Villawood prior to his removal to Christmas Island. Such treatment may be assumed to be in practice unavailable to Mr Jayba if he is sent to South Sudan, but may be available to him in Australia.

18. On one occasion prior to his most recent offence, he was referred to a detox clinic in Sydney but decided not to go, having been persuaded not to do so by a Sudanese drinking friend. He would have benefited from the services which would have been available to him in the clinic and he may possibly not have committed his last offence if he had done as suggested to him.

19. He intends if released into the community to obtain employment and to improve his qualifications so as be able to improve his general financial position.

20. He has not consumed alcohol since May 2016, while in gaol and detention. The period of abstinence, together with what he has seen of life in gaol and detention, and his fear that as a result of action taken by the Minister, he may be sent back to Sudan or South Sudan, where he believes he may be killed, have caused him to reflect on his alcoholism, and his driving history. He expresses contrition for his history, and I accept that it is genuine. He says he has decided not to drink again, and that he has also decided not to drive again.

21. His girlfriend, with whom he would live if released into the community, does not have a car, and will, I accept, support him and his intention to remain free of alcohol. She also does not drink and will not allow alcohol in her house. She says public transport is readily available where she lives.

22. His mother says that she will also support him, and will not lend him her car even if he asks for it. I accept her evidence.

23. His sister says she will support him and pleads that he be given another chance to remain in this country.

24. His family and siblings live in the same area as his girlfriend. His mother also does fruit picking and drives to his former place of employment and says that she will drive him to and from work.

25. The Magistrate who dealt with him in May 2016, apart from sentencing him to 15 months imprisonment with a four month non-parole period, disqualified him from driving for 12 month and made a 48 month ‘interlock order’.

26. An interlock order requires that if he ever obtains the use of a motor vehicle, he must see a general practitioner at various stages, once before embarking on the program, once during the program and once at the end of the program. His car would be fitted with a device which requires him to blow into a tube before starting the car. If alcohol is detected, the car will not start. If he drives without embarking on the program, on conviction, his licence will automatically be cancelled for five years.

27. He will join Alcoholics Anonymous in his area. Other support will be made available through a community organisation with which his girlfriend is connected.

28. His drinking began because he mixed with other Sudanese, who also drank heavily. He says that they are no longer persons with whom he will associate, and I accept that he does intend not to be in their company. As would be evident from what I have written, that would be a quite important matter.

29. The Minister submitted that the chance that he will reoffend is moderate. The applicant’s counsel submitted that the risk is low. The risk that he will re-offend is mitigated by each of the matters to which I have referred, so one or other of the submissions made to me is correct about the degree of risk. The risk is however a real one, bearing in mind his history. If he does not resume drinking, there will be no significant risk of a drink-driving offence. If the interlock order is enforced against him, as is to be expected, that would significantly reduce any risk to the community even if he does drink.

30. The rest of his criminal record should be referred to. There are breaches of apprehended violence orders obtained against him on behalf of his mother some 12 years ago. His mother says she feels safe in his company. His behaviour at the time was alcohol-related.

31. There is a conviction 11 years ago for assault occasioning actual bodily harm for which he was sentenced to nine months’ imprisonment with a three month non-parole period. That offence was alcohol-related.

32. There are other more minor convictions dealt with by way of fine or bond, all apparently also alcohol-related. The various convictions which he has had were all punished at the lower end of the scale (except the last, where his sentence was of 15 months, compared with a maximum of two years) with shorter non-parole periods. At the conclusion of his non-parole period he was released, indicating that his conduct in corrective facilities was satisfactory.

33. Those are the primary findings which I make about the protection of the Australian community consideration, and I turn to the second-mentioned consideration of the interests of minor children.

    Interests of minor children

34. Mr Jayba had a relationship extending for some years which came to an end when his partner lost patience with his drinking and moved interstate. He fathered two daughters, with whom he has not had contact recently. They live interstate with their mother. He has some news of his former partner through her sister’s Facebook posts, but no direct contact with her or his former partner, whose address he does not have.

35. He wishes to have contact with his young daughters, which is no doubt a possibility if he returns to the community, at any rate if his wish to remain alcohol-free is realised. The daughters will no doubt wish to come to know their father, and his general behaviour in the family, as described to me in evidence, is that he is good-hearted.

36. The evidence permits of no further comment about the children.

    Expectations of the Australian community

37. The next primary consideration is that of the expectations of the community. Consistently with the construction put upon this part of Direction 65 by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] in substance this consideration does not favour any applicant, and is a kind of deeming provision, not dependent on actual community considerations as discerned by the decision-maker, including this Tribunal. I therefore proceed on the basis that it favours affirming the decision under review.

38. I proceed to deal, together, with three “other” specified mandatory considerations, the issue of non-refoulement obligations, the strength nature and duration of ties and the extent of impediments if removed, because the issues of fact and law which arise overlap. There are also two “other” considerations which ought in my opinion to be taken into account at the same time, namely the harm that the applicant may suffer, including the possible loss of his life if he is sent to South Sudan and the general question of the practical consequences of affirming the reviewable decision. The list of other considerations specified in Direction 65 is to be supplemented by any other consideration which is relevant.

39. I start with the suggestion that non-refoulement obligations are owed by Australia in relation to Mr Jayba.

40. The applicant was represented before me by Ms Battisson, from Human Rights for All Pty Ltd, a pro bono organisation of which she is Director Principal. Mr Gell, from Clayton Utz, appeared for the Minister.

41. Ms Battisson has asked me to determine in these proceedings whether non-refoulement obligations are owed to Mr Jayba in this case. Such a determination would involve me in the construction and application of s.36 of the Act together with related sections. She points out that if Mr Jayba were to apply for a protection visa, he may well be back before this Tribunal in perhaps two years’ time, having been in detention in the meantime. Character concerns would arise again in those proceedings since one way in which an applicant for a protection visa may fail to obtain it is if the discretion under s.501(1) is not exercised in his or her favour. Direction 65 makes non-refoulement obligations a mandatory consideration on this review and I am bound for that reason to take them into account.

42. The Minister submits that having regard to the decision of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 the Tribunal must “turn its mind” to any international non-refoulement obligations that might arise if the applicant is returned to South Sudan. He submitted that the Tribunal is “not required to conduct an extensive assessment of the Applicant’s claims to fear harm in South Sudan” and refers to what was said in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28]; (2015) 231 FCR 513. I am thus invited by the Minister to conduct some sort of limited review when considering non-refoulement obligations.

43. As is implicit in the Minister’s submissions just recorded, the Department has not examined for itself the non-refoulement obligations, if any, owed by this country in respect of Mr Jayba. Rather the delegate said that it was not necessary to determine whether non-refoulement obligations were owed in respect of Mr Jayba because he could apply for a protection visa. Nor has the Department considered the two, non-specified “other” considerations to which I have referred.

44. The Tribunal is effectively bound to decide these proceedings within a strict time limit. The decision being reviewed will be taken to be affirmed unless the Tribunal decides to the contrary within 84 days, which will expire in early March.

45. Limited country materials have been placed before me by the Minister to enable me to “turn my mind” to the non-refoulement consideration. They consist of a Department of Foreign Affairs and Trade (DFAT) report dated 5 October 2016, and, at my request, the current DFAT travel advisory for the country dated 10 November 2017.

46. Fortunately, Ms Battisson has collected more extensive and more up-to-date country material concerning Sudan and South Sudan and placed it in evidence before me without objection from the Minister.  

47. I will first discuss the submissions of the Minister recorded in paragraph 42 above. In BCR16 it was decided by the Federal Court that the Assistant Minister’s personal decision not to revoke the mandatory cancellation of a Partner (Temporary) (Class UK) (Subclass 820) visa should be set aside because the Assistant Minister had misdirected herself in law in several respects when she concluded that because the applicant could apply for a protection visa, it was not necessary for her to consider the claim of the applicant to fear harm in the country of his nationality.

48. The Full Court found that the effect of the legislative regime was that non-refoulement obligations would not necessarily be considered on an application for a protection visa. Such a visa could be refused without consideration of such a matter, and thus the Assistant Minister fell into jurisdictional error, either because of a denial of procedural fairness or because of a failure to carry out the task required under s.501CA(4), by failing to observe that the claim of the applicant was that he and his family might suffer harm if returned to Lebanon, a claim which had, to use the language of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54] “had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s.36(2)(aa) as defined in s.36(2A) of the Migration Act”. The Full Court agreed with Robertson J that the harm contemplated by non-refoulement obligations does not describe the universe of harm which could be suffered by a person on return to her or his country of nationality.

1. The kind of harm described in Goundar is one of the “other” considerations not specified in Direction 65 which, in my opinion, hasrelevance to this case. In Ahmed and Minister for Immigration and Border Protection [2017] AATA 1908 the same “other” consideration was considered, especially at paragraph [70]. Several points of distinction arise between that consideration and non-refoulement obligations. Avoidance of harm as such is not a treaty obligation, yet may be a discretionary consideration either under s.501(1) or s.510CA(4) of the Act.

2. As to the relevance of BCR16 to the present proceedings, which involve Direction 65, the following may be said: In the first place, clause 14.1(4) of the Direction is in the following terms:

   Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

3. That sub-clause contains similar language to the language used by the Assistant Minister considered in BCR16 and seems to involve the same error of law if it depends on an understanding of the legislative scheme. The Minister’s submissions recorded at paragraph 42 above seem to proceed on that view, and the Minister may be taken to have invited me not to follow the advice given in sub-clause 14.1(4). In any event, clause 14.1(4) does not oblige a decision-maker not to consider non-refoulement obligations, but rather suggests that it is unnecessary to do so.

4. The Minister has tendered Direction 75[2] before me. That document deals with how decision-makers should proceed with protection visa applications under s.36 of the Act. That section provides as follows:

   [2] Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b).

   36  Protection visas—criteria provided for by this Act

   (1A)     An applicant for a protection visa must satisfy:

   (a)       both of the criteria in subsections (1B) and (1C); and

   (b)       at least one of the criteria in subsection (2).

   (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

   (1C)     A criterion for a protection visa is that the applicant is not a person whom   the Minister considers, on reasonable grounds:

   (a)       is a danger to Australia’s security; or

   (b)       having been convicted by a final judgment of a particularly serious   crime, is a danger to the Australian community.

   Note:   For paragraph (b), see section 5M.

   (2)       A criterion for a protection visa is that the applicant for the visa is:

   (a)       a non‑citizen in Australia in respect of whom the Minister is satisfied   Australia has protection obligations because the person is a   refugee; or

   (aa)     a non‑citizen in Australia (other than a non‑citizen mentioned in   paragraph (a)) in respect of whom the Minister is satisfied Australia   has protection obligations because the Minister has substantial   grounds for believing that, as a necessary and foreseeable   consequence of the non‑citizen being removed from Australia to a   receiving country, there is a real risk that the non‑citizen will suffer   significant harm; or

   (b)       a non‑citizen in Australia who is a member of the same family unit   as a non‑citizen who:

   (i)        is mentioned in paragraph (a); and

   (ii)       holds a protection visa of the same class as that applied for   by the applicant; or

   (c)       a non‑citizen in Australia who is a member of the same family unit   as a non‑citizen who:

   (i)        is mentioned in paragraph (aa); and

   (ii)       holds a protection visa of the same class as that applied for   by the applicant.

   (2A)     A non‑citizen will suffer significant harm if:

   (a)       the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)       the death penalty will be carried out on the non‑citizen; or

   (c)       the non‑citizen will be subjected to torture; or

   (d)       the non‑citizen will be subjected to cruel or inhuman treatment or   punishment; or

   (e)       the non‑citizen will be subjected to degrading treatment or   punishment.

   (2B)     However, there is taken not to be a real risk that a non‑citizen will suffer   significant harm in a country if the Minister is satisfied that:

   (a)       it would be reasonable for the non‑citizen to relocate to an area of   the country where there would not be a real risk that the non‑citizen   will suffer significant harm; or

   (b)       the non‑citizen could obtain, from an authority of the country,   protection such that there would not be a real risk that the   non‑citizen will suffer significant harm; or

   (c)       the real risk is one faced by the population of the country generally   and is not faced by the non‑citizen personally.

   Ineligibility for grant of a protection visa

   (2C)     A non‑citizen is taken not to satisfy the criterion mentioned in   paragraph (2)(aa) if:

   (a)       the Minister has serious reasons for considering that:

   (i)        the non‑citizen has committed a crime against peace, a war   crime or a crime against humanity, as defined by   international instruments prescribed by the regulations; or

   (ii)       the non‑citizen committed a serious non‑political crime   before entering Australia; or

   (iii)      the non‑citizen has been guilty of acts contrary to the   purposes and principles of the United Nations; or

   (b)       the Minister considers, on reasonable grounds, that:

   (i)        the non‑citizen is a danger to Australia’s security; or

   (ii)       the non‑citizen, having been convicted by a final judgment of   a particularly serious crime (including a crime that consists   of the commission of a serious Australian offence or serious   foreign offence), is a danger to the Australian community.

   Protection obligations

   (3)       Australia is taken not to have protection obligations in respect of a   non‑citizen who has not taken all possible steps to avail himself or herself             of a right to enter and reside in, whether temporarily or permanently and   however that right arose or is expressed, any country apart from Australia,   including countries of which the non‑citizen is a national.

   (4)       However, subsection (3) does not apply in relation to a country in respect   of which:

   (a)       the non‑citizen has a well‑founded fear of being persecuted for   reasons of race, religion, nationality, membership of a particular   social group or political opinion; or

   (b)       the Minister has substantial grounds for believing that, as a   necessary and foreseeable consequence of the non‑citizen availing   himself or herself of a right mentioned in subsection (3), there would   be a real risk that the non‑citizen will suffer significant harm in   relation to the country.

   (5)       Subsection (3) does not apply in relation to a country if the non‑citizen has   a well‑founded fear that:

   (a)       the country will return the non‑citizen to another country; and

   (b)       the non‑citizen will be persecuted in that other country for reasons   of race, religion, nationality, membership of a particular social group   or political opinion.

   (5A)     Also, subsection (3) does not apply in relation to a country if:

   (a)       the non‑citizen has a well‑founded fear that the country will return   the non‑citizen to another country; and

   (b)       the Minister has substantial grounds for believing that, as a   necessary and foreseeable consequence of the non‑citizen availing   himself or herself of a right mentioned in subsection (3), there would   be a real risk that the non‑citizen will suffer significant harm in   relation to the other country.

   Determining nationality

   (6)       For the purposes of subsection (3), the question of whether a non‑citizen is   a national of a particular country must be determined solely by reference to             the law of that country.

   (7)       Subsection (6) does not, by implication, affect the interpretation of any   other provision of this Act.

5. The non-refoulement obligations are set out primarily in s.36(2) of the Act. However, they are also able to be negatived by reasons of subsections (1B), (1C) and (2C). Amongst other things, if the non-citizen has been convicted of a particularly serious crime, and is a danger to the community, non-refoulement obligations are not owed in respect of him or her at all.

6. Some of the decisions made under s.36 are capable of review in this Tribunal. In particular the subsection (2) questions are subject to review in the Migration and Refugee Division of this Tribunal, and the subsection (1C) and (2C) questions are capable of review in the General & Other Division of the Tribunal.

7. The expression “particularly serious crime” is not the subject of any exhaustive definition. Rather, s.5M of the Act defines it to include certain crimes. In that respect Direction 75 erroneously states that the expression refers to crimes consisting of those mentioned in s.5M. By way of example, I refer to a decision of this Tribunal in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782. That was presented to this Tribunal by the Minister as a case in which protection obligations were owed, but a perusal of the findings made in the proceedings suggest to me both that the crime in question was a particularly serious crime (even though it did not cause s.5M to be engaged) and that the non-citizen was a danger to the community. If so, protection obligations were not owed in respect of him because of s.36(1C) or (2C). The Tribunal was not asked to deal with the case on that basis and I use its facts merely as an illustration.

8. Direction 75 does require a decision-maker to resolve issues under s.36(2) first, and then to turn to s.36(1C) or (2C), and finally to consider, if residual character concerns remain, s.501(1). Direction 75 bears a date after the decision in BCR16.

9. Returning to the submissions made by the Minister before me summarised at paragraph 42, I turn to the decision in Ayoub. That case concerned a decision made by the Minister personally. It preceded the decisions in BCR16 and also the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448.

10. The question considered by the Full Court at paragraph [28] of Ayoub was considered in the context of a submission to the effect that once the Minister embarked on consideration of the non-refoulement consideration, the Minister was obliged to do it “completely”. The Court doubted whether non-refoulement obligations were a mandatory consideration for the Minister, and said, at [27] and [28]:

    [27] A consideration by the Minister in the present case of Australia’s “non-refoulement obligations” may not have been a consideration of matters irrelevant to the decision to be made. But, having pursued that line of inquiry to some extent, his consideration was not thereafter to be elevated to the position that he was required to do more than properly consider the claims being made and the factual material being relied upon by Mr Ayoub. In the present proceeding, the Minister gave genuine consideration to the claims being made and was not required to undertake further inquiries or solicit further information such that he could make a decision as to whether the return of Mr Ayoub to Lebanon – assuming that decision were to be taken – would be in breach of Australia’s obligations.

    [28] An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s “non-refoulement obligations”. It is in this context that s 501E of the Migration Act may assume some relevance. By reason of that provision, the decision of the Minister to cancel Mr Ayoub’s visa pursuant to s 501 could not operate to prevent a future application being made for a protection visa.

11. The Tribunal is required to take into account the mandatory consideration of non-refoulement obligations, in accordance with Direction 65. The Tribunal would not ordinarily regard its review function as being limited to facts asserted by an applicant for review. Its charge is to reach the correct and preferable decision on the material before it and it has ample power to give directions to both parties, a power which is available if it believes the evidence before it to be incomplete or inadequate. If a decision has been made by the Department without investigation of some matter of importance, it is open to the Tribunal in appropriate cases to set the decision aside and direct that the matter be investigated.

12. I would not take what was said in Ayoub to limit the discharge by this Tribunal of its powers and duties. Nor do I take the Court to have determined more than that the Minister was not obliged as a matter of law to go further than he did. There was no suggestion that it was not open to the Minister to go further.

13. In this case, I have decided to make findings as to whether or not non-refoulement obligations are owed in respect of Mr Jayba. The matter is one of importance and can assist in the determination of proceedings such as this. I have recently examined the significance of non-refoulement obligations in BHKM and Minister for Immigration and Border Protection [2018] AATA 3 and in FTYC and Minister for Immigration and Border Protection [2018] AATA 20. I should mention that if non-refoulement obligations are not owed, the factual findings made may also relate to the other considerations to which I have referred in paragraph 37 above.

14. The questions under s.36 come down to the proper application of s.36(2) in my opinion. The Minister submitted that it is unlikely that reliance would be placed by the Department on s.36(1C) or (2C). The crime for which Mr Jayba was convicted in May 2016 does not appear to me to qualify as a particularly serious crime for several reasons. While the consequences could have been serious for life or limb, they were not. It was not premeditated, and was fuelled by excessive alcohol taken in company with persons with whom he does not propose to associate in future. There are the various risk mitigation matters to which I have referred which would not, taken together suggest that he is a danger to the Australian community. There is nothing to suggest that he might be a security risk.

15. The first question about subsection (2) is: where would he be sent? The Minister’s submissions assume it will be to South Sudan. He was born in Sudan, a country which does not exist with the same boundaries as in 1982. He does not have a Sudanese passport and Sudan may not receive him in any event. I am prepared to assume, like the Minister, that he would be sent to South Sudan, or rather that attempts may be made to send him there. Section 197C of the Act as construed in DMH16, and related provisions suggest that if the decision is affirmed, he will be returned “as soon as practicable”.  In the meantime he would remain in detention until it is practicable to return him.

16. Subsections (2)(a) and (aa) of s.36 are relied upon by Ms Battisson.

17. Ms Battisson has drawn attention to the fact that the United Nations High Commissioner for Refugees currently classifies the situation in South Sudan as an emergency, because of instability and violence. It has some two million displaced persons, with the same number having fled to neighbouring countries as refugees, with numbers of each increasing. Amnesty International states that the South Sudanese conflict has taken on an increasingly ethnic tone, a matter of concern not only for other tribes, but also for Dinkas. Ongoing fighting between government and opposition forces has led to “devastating humanitarian consequences for civilian populations”. In Juba, the capital of South Sudan, and where the applicant came from, significant violence, amounting to open warfare occurred in July 2016 in its densely occupied streets, including indiscriminate shootings, bombings and rape by various factions.

18. The most recent travel advisory issued by DFAT of 10 November 2017 sates: “Do not travel to South Sudan, including Juba, because of instability, ongoing conflict and a deterioration of law and order”. It also sates: “Armed conflict, including attacks on civilian populations, is either ongoing or at risk of breaking out with little warning across the country”.

19. Further it states:

    Border areas between South Sudan and Sudan remain vulnerable to civil unrest and military activity. There have been direct military confrontations between South Sudan and Sudan since early 2012 in border regions. The border between South Sudan and Ethiopia has seen a recent escalation of intercommunal violence, including the mass abduction of children from Ethiopian territory by armed South Sudanese elements in April 2016. The border region remains unstable.  

    and that “Many thousands of people have been killed since violence began in December 2013. The security situation is particularly volatile and may deteriorate with little warning”.

20. Section 36(2B)(c) is set out above. If the real risk of significant harm which Mr Jayba would face is one “faced by the population of the country generally and is not faced by the non-citizen personally” then his case is excluded. This language is not well expressed. It has been construed by Buchanan J in BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 at [29]-[32] not to mean that for the provision to be engaged, the Tribunal must be satisfied that the real risk was faced by the population generally and that the risk is not faced by the non-citizen personally. His Honour remarked that if the Tribunal was satisfied that there was a real risk of harm faced by the population generally which was not faced by the visa applicant personally then s.36(2)(aa) would not be engaged at all.

21. His Honour held that s.36(2B)(c) “draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a “real risk of harm” for the purpose of s.36(2)(aa).”

22. In SZSPT to which his Honour referred, Rares J reached a similar conclusion about the construction of s.36(2B)(c).

23. Mr Jayba, because of his personal circumstances, may be more exposed to the risks which face the population of South Sudan generally, but that is no doubt something which he would share with other, more vulnerable members of the population, and such a distinction is not suggested to be material by Buchanan and Rares JJ in their analysis of s.36(2B)(c).

24. The Tribunal is bound by what was held by Buchanan and Rares JJ in those two decisions, and it therefore ought to be held that the complementary protection obligations mentioned in s.36(2)(aa) are unavailable to him.

25. As to the provisions of s.36(2)(a), they require a finding that Mr Jayba is a refugee, and for that purpose, sections 5H and 5J are relevant. They provide:

    5H  Meaning of refugee

    (1)       For the purposes of the application of this Act and the regulations to a   particular person in Australia, the person is a refugee if the person:

    (a)       in a case where the person has a nationality—is outside the country   of his or her nationality and, owing to a well‑founded fear of   persecution, is unable or unwilling to avail himself or herself of the   protection of that country; or

    (b)       in a case where the person does not have a nationality—is outside   the country of his or her former habitual residence and owing to a   well‑founded fear of persecution, is unable or unwilling to return to   it.

    Note:   For the meaning of well‑founded fear of persecution, see   section 5J.

    (2)       Subsection (1) does not apply if the Minister has serious reasons for   considering that:

    (a)       the person has committed a crime against peace, a war crime or a   crime against humanity, as defined by international instruments   prescribed by the regulations; or

    (b)       the person committed a serious non‑political crime before entering   Australia; or

    (c)       the person has been guilty of acts contrary to the purposes and   principles of the United Nations.

    5J  Meaning of well‑founded fear of persecution

    (1)       For the purposes of the application of this Act and the regulations to a   particular person, the person has a well‑founded fear of persecution if:

    (a)       the person fears being persecuted for reasons of race, religion,   nationality, membership of a particular social group or political   opinion; and

    (b)       there is a real chance that, if the person returned to the receiving   country, the person would be persecuted for one or more of the   reasons mentioned in paragraph (a); and

    (c)       the real chance of persecution relates to all areas of a receiving   country.

    Note:   For membership of a particular social group, see sections 5K and   5L.

    (2)       A person does not have a well‑founded fear of persecution if effective   protection measures are available to the person in a receiving country.

    Note:   For effective protection measures, see section 5LA.

    (3)       A person does not have a well‑founded fear of persecution if the person   could take reasonable steps to modify his or her behaviour so as to avoid a   real chance of persecution in a receiving country, other than a modification                   that would:

    (a)       conflict with a characteristic that is fundamental to the person’s   identity or conscience; or

    (b)       conceal an innate or immutable characteristic of the person; or

    (c)       without limiting paragraph (a) or (b), require the person to do any of   the following:

    (i)        alter his or her religious beliefs, including by renouncing a   religious conversion, or conceal his or her true religious   beliefs, or cease to be involved in the practice of his or her   faith;

    (ii)       conceal his or her true race, ethnicity, nationality or country   of origin;

    (iii)      alter his or her political beliefs or conceal his or her true   political beliefs;

    (iv)      conceal a physical, psychological or intellectual disability;

    (v)       enter into or remain in a marriage to which that person is   opposed, or accept the forced marriage of a child;

    (vi)      alter his or her sexual orientation or gender identity or   conceal his or her true sexual orientation, gender identity or   intersex status.

    (4)       If a person fears persecution for one or more of the reasons mentioned in   paragraph (1)(a):

    (a)       that reason must be the essential and significant reason, or those   reasons must be the essential and significant reasons, for the   persecution; and

    (b)       the persecution must involve serious harm to the person; and

    (c)       the persecution must involve systematic and discriminatory conduct.

    (5)       Without limiting what is serious harm for the purposes of paragraph (4)(b),   the following are instances of serious harm for the purposes of that   paragraph:

    (a)       a threat to the person’s life or liberty;

    (b)       significant physical harassment of the person;

    (c)       significant physical ill‑treatment of the person;

    (d)       significant economic hardship that threatens the person’s capacity   to subsist;

    (e)       denial of access to basic services, where the denial threatens the   person’s capacity to subsist;

    (f)        denial of capacity to earn a livelihood of any kind, where the denial   threatens the person’s capacity to subsist.

    (6)       In determining whether the person has a well‑founded fear of   persecution for one or more of the reasons mentioned in paragraph (1)(a),   any conduct engaged in by the person in Australia is to be disregarded   unless the person satisfies the Minister that the person engaged in the   conduct otherwise than for the purpose of strengthening the person’s claim             to be a refugee.

1. There is a real question as to which is Mr Jayba’s nationality arising under s.5H. If South Sudan is to be treated as the country of his former residence, as may arguably be correct, then one looks to s.5J. Membership of no particular social group to which Mr Jayba belongs is shown on the evidence to be likely to lead to persecution in South Sudan. His alcohol dependence is not shown to be likely to lead to persecution. He is a Dinka and although racial tensions exist in South Sudan, Dinkas do not appear to be persecuted on that account. The deficiencies in health care available in South Sudan are not a matter capable of being described as a form of persecution.

2. I conclude that non-refoulement obligations are not owed in respect of Mr Jayba.

3. Nevertheless the findings I have made in paragraphs 65 to 67 above make it clear that Mr Jayba’s belief that there is a real risk that he will be killed or harmed if returned to South Sudan is fully justified. The risks faced by the general population are sufficient for that finding and indeed Mr Jayba may actually be more exposed to the risk of death or serious injury than some other members of the South Sudan population because he has no community which might offer him protection; he might be regarded, after so long an absence, as a foreigner; he may find himself relying again on alcohol because he would be separated permanently from his girlfriend, family and daughters, and the effects of alcohol may get him into trouble or violent conditions in that country. Moreover, appropriate health care which would be available here is likely to be unavailable to him in South Sudan.

4. There is another possibility which was debated before me. South Sudan is a lawless place, and affected by drought and civil emergency and it may never issue a visa permitting Mr Jayba to travel there. The result may then be if the reviewable decision is not set aside, Mr Jayba will remain in detention for the foreseeable future because his return to South Sudan is not “practicable”.

5. Each of the “other” considerations which I have been examining indicates that Mr Jayba should be released back into the community. . The alternative is that he would face a further, probably long period of further detention, and one day be sent back to a country which is unstable and violent, which he does not know, where he has no family or likelihood of support, when he has already been incarcerated or detained for longer than ordered by the Courts, and where he would be permanently separated from his family and partner, and unlikely ever to see either of his daughters again, and where his life would be at risk. There is a moderate or low risk that he will re-offend in this country, and his future in Australia where he has lived for a long period is not without hope that he will be rehabilitated.

   DECISION

6. Balancing the various primary and other considerations to which I have referred, the correct or preferable decision in my opinion is that the reviewable decision should be set aside and remitted for reconsideration with a direction that the discretion in s.501CA(4) of the Migration Act 1958 (Cth) is to be exercised in favour of the applicant.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 6 March 2018

Date(s) of hearing:	21 & 22 February 2018
Solicitors for the Applicant:	Human Rights for All Pty Ltd
Solicitors for the Respondent:	Clayton Utz