XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 323
•13 March 2020
FEDERAL COURT OF AUSTRALIA
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323
Review of: Application for judicial review of XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385 File number(s): VID 298 of 2018 Judge(s): WHEELAHAN J Date of judgment: 13 March 2020 Catchwords: MIGRATION – application to review decision of Administrative Appeal Tribunal – Tribunal affirmed decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the applicant’s visa – whether Tribunal erred in applying Ministerial Direction 65 – whether Tribunal erred in applying a hierarchy between “primary” and “secondary” considerations – whether Tribunal’s decision was based on an incorrect understanding of the law or alleged reality that any future application for a protection visa would almost certainly be refused on character grounds resulting in indefinite detention or refoulement – whether Tribunal failed to consider a substantial submission regarding potential inconsistency with Australia’s obligations under the Convention on the Rights of the Child – application dismissed. Legislation: Constitution s 75(v)
Migration Act 1958 (Cth) ss 5, 5M, 31(3), 35A, 36(1C)(b), 36(2)(a)-(aa), 36(2C)(b)(ii), 65, 195A, 196(1), 197C, 198, 198(2B), 198(6), 476A(1)(b), 476A(1)(c), 476A(2), 477A(1), 477A(2)(a), 500(1)(ba), 500(6A)-(6L), 501(1), 501(3A), 501(6)-(7), 501CA and 501CA(4)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Migration Regulations regs 2.02, 2.03, 866.225, 4001
Convention on the Rights of the Child art 9
Cases cited: Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BAL19 v Minister for Home Affairs [2019] FCA 2189
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268
Minister for Home Affairs v HSKJ (2018) 266 FCR 291
Minister for Home Affairs v Omar (2019) 373 ALR 569
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Omar v Minister for Home Affairs [2019] FCA 279
PQSM v Minister for Home Affairs [2019] FCA 1540
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Taulahi v Minister for Immigration & Border Protection (2016) 246 FCR 146
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Water Board v Moustakas (1988) 180 CLR 491
Date of hearing: 29 January 2019 and 5 February 2019 Date of last submissions: 18 November 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 103 Counsel for the Applicant: Mr R Knowles SC Counsel for the First Respondent: Ms C Symons ORDERS
VID 298 of 2018 BETWEEN: XFKR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHEELAHAN J
DATE OF ORDER:
13 MARCH 2020
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application be dismissed.
3.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
Introduction
The applicant is 45 year old man of Chin ethnicity and of Christian faith who is a citizen of Myanmar, which was formerly known as Burma. He left Myanmar in 2008 and arrived in Australia from Malaysia in 2013 as the holder of a Class XB Subclass 200 Refugee Visa. The applicant is married, and has four children.
On 13 September 2016, the applicant was sentenced in the County Court of Victoria to a total effective sentence of 20 months’ imprisonment for crimes of violence against his wife and children. The applicant had pleaded guilty to six indictable offences and six related summary offences. The six indictable offences, and the corresponding maximum terms of imprisonment, were as follows –
Charges
Offence
Max Sentence
1
Intentionally cause injury
10 years
2, 4 and 5
Common assault
5 years
3 and 6
Make threat to kill
10 years
On 6 October 2016, a delegate of the Minister for Immigration and Border Protection cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) on the grounds that by reason of the applicant’s conviction and sentence he did not pass the character test, and that he was then serving a term of imprisonment. The applicant then made representations to the Minister pursuant to s 501CA(4) of the Act seeking revocation of the cancellation of the visa. On 4 September 2017, another delegate of the Minister refused to revoke the original decision to cancel the visa.
The applicant then applied to the Administrative Appeals Tribunal pursuant to s 500(1)(ba) of the Migration Act for review of the decision of the delegate to refuse revocation of the cancellation of the visa. On 29 November 2017, the Tribunal affirmed the delegate’s decision not to revoke the original decision to cancel the applicant’s visa. The Tribunal’s decision is published as XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385.
By this proceeding, the applicant seeks judicial review of the decision of the Tribunal in the exercise of the Court’s jurisdiction conferred by s 476A(1)(b) of the Migration Act. That jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution: s 476A(2). Relevantly, the jurisdiction requires the demonstration of jurisdictional error: Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [4] (White, Moshinsky and Colvin JJ).
The applicant has three grounds of review which are accompanied by detailed particulars. The grounds are best understood against the factual background of the application, and therefore I shall summarise them later in these reasons when addressing the applicant’s submissions to this Court.
Procedural issues
By fax dated 12 December 2017, the applicant, who was then self-represented, endeavoured to file with this Court an application for judicial review of the Tribunal’s decision. For reasons that are unnecessary to explore, that endeavour did not result in a filed application within the 35 day period prescribed by s 477A(1) of the Migration Act.
On 16 March 2018, the applicant filed an application for an extension of time, which was substantially in the form of an application for an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) to lodge an application for the review of a migration decision. On 14 September 2018, the applicant, who by then was represented, filed a document titled “Amended originating application for review of a migration decision”. On the first day of the hearing, I gave leave to the applicant to file an amended application for an extension of time so that there was no question that it complied with the requirements for an application in s 477A(2)(a) of the Act. Being satisfied that it was in the interests of justice to do so, I then made an order extending to 14 September 2018 the time within which the applicant might make an application for a remedy under s 476A(1)(b) and (c) of the Act, and ordered that the document titled “Amended originating application for review of a migration decision” and dated 14 September 2018 stand as the applicant’s application.
During the course of the hearing, it appeared that some of the submissions advanced on behalf of the applicant were not reflected in the grounds of review, and I invited counsel for the applicant to apply to amend the grounds: see, Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497. That application was not opposed by the Minister. I gave leave to the applicant to file and serve what became titled a “Second further amended originating application for review of a migration decision.” I shall refer to this document as the applicant’s application.
Also on the first day of the hearing, I ordered that the Tribunal be joined as a respondent to the proceeding, and I made directions for service of the application on the Tribunal. Subsequently, the Tribunal filed a notice submitting to any order the Court may make in the proceeding save as to costs.
The Minister was given leave to file further written submissions consequent upon the amendments to the originating application, and did so by supplementary submissions dated 1 February 2019. After the Court reserved its decision in this case, Omar v Minister for Home Affairs [2019] FCA 279 was decided, and shortly thereafter the Court became aware that it was subject to appeal. Both parties were given leave to file further written submissions following the decision of the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569. The applicant filed further submissions dated 18 November 2019, and the Australian Government Solicitor, acting for the Minister, advised the Court that the Minister was content to rely on the submissions that had already been advanced.
The proceeding before the Tribunal
The Tribunal was charged under s 500(1)(ba) of the Migration Act with conducting a review of the decision of the delegate of the Minister under s 501CA(4) to refuse the revocation of the original decision to cancel the applicant’s visa. The relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth), which are subject to the qualifications in s 500(6A) to s 500(6L) of the Migration Act, contemplate an oral hearing and the provision of further information to the Tribunal: PQSM v Minister for Home Affairs [2019] FCA 1540 at [31] (Colvin J). In this case, the material before the Tribunal included the representations that were before the delegate, and also other material, such as reports from a psychiatrist and a psychologist, statutory declarations, and written statements of fact, issues, and contentions. A full list of materials that were before the Tribunal appears at [15] of its written statement.
There was a time constraint for the review by the Tribunal. Under s 500(6L) of the Migration Act, if the Tribunal did not make a decision within 84 days of the notification to the applicant of the decision under review, it was taken to have affirmed the decision. On his application for review filed with the Tribunal, the applicant stated that he received the delegate’s decision on 6 September 2017. The Tribunal conducted hearings on 10 and 23 November 2017, and made its decision on 29 November 2017, which was the 84th day.
Before the Tribunal, the applicant relied on a series of considerations supporting the revocation of the original decision, and especially the interests of his minor children. Of particular relevance to the applicant’s grounds of review argued in the application before the Court were the following –
(1)A United Nations High Commissioner for Refugees resettlement registration form which stated –
In June 2008, [the applicant] was requested by his villagers to teach Chin language to the children after their regular classes in the school to preserve the Chin literature. One of the Burmese teachers found out about the class and reported to the Myanmar authorities that [the applicant] was teaching Chin language illegally in the school. On 20 August 2008, several Myanmar police came to [the applicant’s] house to look for him while he was working in his farm.
(2)The form stated that, fearing arrest, the applicant fled, eventually arriving in Malaysia in September 2008 and, in relation to the need for international protection of refugees from Myanmar, stated –
Based on the review of refugee claims presented by individuals from Myanmar during UNHCR Malaysia’s individualized refugee status determination procedures and assessments, the Office has detected prevailing patterns of persecution among this refugee group. Persecution, in particular towards those belonging to ethnic minorities, generally includes forced labour / portering, sexual and gender based violence and torture. Individuals and family members of those having political opinions not tolerated by the Myanmar authorities and those who are known / suspected supporters of insurgent groups are also persecuted. Prevalence of such human rights violations in Myanmar is supported by reliable and prominent country information sources. Furthermore, the Myanmar authorities do not tolerate those who have claimed asylum outside the country. It is reasonably likely that persons who have experienced such persecution or who fears [sic] persecution in the future will be arrested, detained and subjected to persecution if returned to Myanmar. It is therefore UNHCR’s view that these individuals are eligible for refugee status and are in need of international protection.
(3)Records of the Australian government produced under the Freedom of Information Act 1982 (Cth) that recorded that on 7 August 2012, the applicant had been assessed as being subject to persecution in his home country –
I have today interviewed [the applicant] and found that the claims he made at interview were consistent with those in his UNHCR referral and [he] is subject to persecution in his home country.
(4)On 1 November 2012, an officer recorded –
I find that [the applicant] cannot be returned safely to Myanmar at this time, and there is no evidence to indicate that he can be resettled in another country. Therefore, there is no other durable solution that would be more appropriate for [the applicant] than permanent resettlement in Australia.
(5)The applicant made a detailed statutory declaration dated 19 October 2017 in which he stated –
Since the military took over the country in 1962, they [practised] a policy that there must be one language, one religion and one nation, saying this is the only way for peace. They forcibly tried to convert our ethnic people from Christianity to Buddhism, and forced us to speak Burmese. They banned the teaching of ethnic languages in school. A Burmese teacher is sent to every village, so that the education must be in Burmese. They also prohibited celebrating Chin National Day and Chin New Year. We have our own Chin language, and the Bible written in Chin language. When they stop us learning our language, the plan is to slow[ly] turn people to be Burman. Our ethnic language and culture are at risk of extinction.
In 2008, my village leader requested me to teach Chin language to the children in our village. Because our village is not a big village, I thought that no one would disturb me or report me. I taught in the school, with all the children together, from around 6 or 7 years to 13 or 14 years of age.
I was teaching for about three months. Then unexpectedly the authorities came to our village. They came searching for me at my home. At the time they came, I was working in my farm. They questioned my wife. My wife sent one of the villagers to warn me, saying do not come home, hide somewhere else. When the police are searching for someone, it is a serious situation - once you are in authorities’ hands you cannot get out unless you can pay lots of money. I did not go home, and fled to Thailand and then Malaysia.
…
I cannot return to Burma because I am wanted by the authorities for teaching the Chin language. This information will be on the government list about our town [redacted], and will be known by immigration on my return. Further, I would be charged for escaping the country illegally, which is an offence punishable by imprisonment. I am at greater risk from the authorities now because I have sought protection as a refugee, which the army views very harshly. I fear I would face imprisonment, physical violence, and may be killed.
Before the Tribunal was country information concerning Myanmar in the form of a DFAT report dated 10 January 2017 that was tendered by the Minister.
Also before the Tribunal was a submission dated 8 June 2017 prepared by Victoria Legal Aid that was also before the delegate, in which it was submitted that the Tribunal should consider grief and trauma to the applicant and members of his family should separation occur. It was submitted that these matters would not be considered in any protection visa application. Broader submissions relating to the principle of the family unit, and the best interests of children were advanced. It was submitted that the removal of the applicant and separation from his children would be inconsistent with Australia’s obligations under the Convention on the Rights of the Child, and that separation of family is not in a child’s best interests, and contrary to the family unity principle, referring to Article 9 of the Convention. It was also submitted that if the decision-maker formed the view that the prospect of indefinite detention and Australia’s protection obligations were not mandatory considerations, the issue of family separation would not be assessed in any future protection visa application.
The applicant was represented before the Tribunal by counsel who relied on a statement of facts, issues, and contentions in which the following was advanced –
The circumstances that caused [the applicant] to flee Burma, and the grave risks he would face if he returned, are set out in his statement and need not be repeated here. He is individually and personally targeted for persecution by the Burmese authorities. The Australian government and UNHCR have each separately established, in refugee status determinations, that those risks are genuine and that it would not be safe for him to return to Burma.
The material before the Tribunal raised the prospect that if the original decision was not revoked, the applicant would face indefinite immigration detention in Australia, or alternatively, mandatory removal to Burma pursuant to s 197C and s 198 of the Migration Act.
The Tribunal’s decision
In affirming the delegate’s decision to refuse to revoke the visa cancellation, the Tribunal was not satisfied that the applicant passed the character test. That issue was not controversial on this application. Additionally, the Tribunal was not satisfied that, for the purposes of the exercise of the power under s 501CA(4)(b) of the Migration Act, there was another reason why the visa cancellation decision should be revoked, and it is that aspect of the Tribunal’s decision that is challenged.
Ministerial Direction No 65
The Tribunal stated at [27] of its written statement that in considering whether to revoke the decision to cancel the applicant’s visa, it was required to comply with a ministerial direction, being Direction No 65 made on 22 December 2014 under s 499 of the Migration Act, which provides (inter alia) –
499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A)A person or body must comply with a direction under subsection (1).
…
Direction No 65 has since been revoked with effect from 28 February 2019, being the date on which Direction No 79 commenced. Those parts of Direction No 65 that are material to the issues in this application are as follows.
Paragraph 6.2 of Direction No 65 is headed “General Guidance”, and sub-paragraph 6.2(3) provides (inter alia) –
… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 65 is headed “Principles” and provides –
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7 of Direction No 65 is headed, “How to exercise the discretion”, and provides –
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of Direction No 65 is headed, “Taking the relevant considerations into account”, and provides –
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises 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.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction No 65 identifies the considerations that are relevant to a decision whether to revoke the mandatory cancellation of a visa. Paragraph 13 in Part C is headed “Primary considerations – revocation requests”, and provides (inter alia) –
…
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
More detailed provisions are then made for the primary considerations in Part C in the following paragraphs –
•13.1 - protection of the Australian community;
•13.1.1 - the nature and seriousness of the conduct;
•13.1.2 - the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct;
•13.2 - best interests of minor children in Australia affected by the decision; and
•13.3 - expectations of the Australian community.
Paragraph 13.2(4), which concerns the interests of minor children, provides –
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Paragraph 14 of Part C then provides for “other considerations” in relation to revocation requests. Paragraph 14(1) provides –
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Material to the present application are international non-refoulement obligations, which are the subject of the following provisions in paragraph 14.1 –
14.1 International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)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.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In relation to paragraph 14.1(4) of Direction No 65 set out above, in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, the appellant invoked s 501CA(4) of the Act and sought revocation of an original decision that his visa be cancelled. The appellant made representations that he risked suffering harm should he return to Lebanon. The Assistant Minister characterised the representations as possibly giving rise to international non-refoulement obligations but said it was unnecessary to determine whether such obligations were owed because the appellant could apply separately for a protection visa. That decision was held by the majority (Bromberg and Mortimer JJ) to involve jurisdictional error because there was nothing in the legislation that prevented character criteria being considered first, with the consequences that the application for a protection visa could be refused purely on character grounds, and that the claims for protection would never be considered. The majority also held that the consideration of non-refoulement for the purposes of a decision under s 501CA(4) was different to the consideration of such matters for the purposes of s 65 of the Act in determining whether to grant or to refuse an application for a visa. In substance, their Honours held that non-refoulement claims which relied on the risk of harm might inform the consideration of the exercise of the power under s 501CA(4), whereas for the purposes of assessment of a visa application under s 65, the delegate or the Minister had to be “satisfied” of the existence of the risks in the terms required by s 36(2)(a) and (aa) and associated provisions.
Ministerial Direction No 75
Following the decision in BCR16, the Minister on 5 September 2017 made a Direction under s 499 of the Migration Act titled, “Direction No 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)”, which directed the order in which elements of an application for a protection visa should be considered by decision-makers. Under the heading “General Guidance”, Direction No 75 provides (inter alia) –
3)The following principles provide a framework within which decision-makers should approach their task of deciding whether to refuse an applicant’s visa under section 65 on the basis of section 36(1C) or section 36(2C)(b).
And under the heading “Principles”, Direction No 75 provides (inter alia) –
4)Refusal of a Protection visa because of a specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessary mean that a person should be removed from Australia.
The directions themselves are in Part 2 of Direction No 75, and provide that the decision-maker must first assess refugee claims before assessing any character or security concerns –
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
1)The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.
2)Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa specific ineligibility criteria at section 36(1C).
3)Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision-maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
a)Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4)If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5)The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
The Tribunal’s consideration
Primary considerations
The Tribunal considered the applicant’s circumstances in some detail. The Tribunal identified at [34] the three primary considerations referred to in paragraph 13(2) of Direction No 65, which I have set out at [26] above. The Tribunal addressed those considerations, and took account of –
(1)the remarks of the sentencing judge upon the applicant’s convictions for offences of violence and threats to kill committed against his wife and children, who described the applicant’s offending as “humiliating”, “disturbing”, “very serious”, and involving “significant violence”;
(2)the circumstances of the offending, as described by the sentencing judge, which the Tribunal stated reflected “considerable judicial concern” in relation to the applicant’s conduct;
(3)the position of the applicant’s wife and children as vulnerable members of the Australian community, and the Tribunal’s view that they should not, ever, under any circumstances, live in fear of threat or injury from their father or husband;
(4)the Tribunal’s view that the applicant’s conduct should be viewed as very serious, and that overall his offending demonstrated a degree of recklessness towards the well-being of the Australian community that cannot be tolerated or dismissed, which weighed heavily against the revocation of the decision to cancel the applicant’s visa;
(5)the weighted risk of the applicant reoffending, which took account of the serious nature of the offences, the Tribunal’s concern that the applicant did not complete an anger management course while in prison, and what the Tribunal considered to be an alarming lack of insight on the part of the applicant in relation to his issues with anger and domestic violence;
(6)the Tribunal’s doubts about whether the applicant’s rehabilitation and therapeutic efforts would prove successful in the long term, and its view that there remained a real risk that the applicant would continue to abuse alcohol if released into the community with a consequential risk that he would reoffend, and that this posed an unacceptable risk to the Australian community;
(7)that should the applicant reoffend, the result for the community (and, in particular, his wife and children) would again be completely unacceptable; and
(8)while it was in the best interests of the applicant’s children to have the decision to cancel the applicant’s visa revoked, this consideration was tempered by the effect that the applicant’s offending had on his children, which lessened its weight, and in any event, this consideration did not outweigh the nature and seriousness of the applicant’s crimes and the risk, which was significant, to the Australian community and his family should the applicant reoffend.
After referring to the above considerations, the Tribunal stated at [87] of its written statement –
The Tribunal is of the view that women and children have the right to live without fear of violence and that the majority of Australians would find domestic violence to be a most disturbing crime with far reaching negative consequences. In the circumstances of this matter, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as [the applicant], who was convicted of very serious domestic violence offences, who has shown disregard for the laws of Australia and who has shown a lack of insight into the nature and consequences of his conduct should expect to lose his visa.
Other considerations
The Tribunal then turned to “other considerations”, and referred to paragraph 14(1) of Direction No 65, which is set out at [29] above. The Tribunal identified that the following “other considerations” referred to in paragraph 14(1) of Direction No 65 were relevant –
(1)international non-refoulement obligations [paragraph (a)];
(2)the strength, nature and duration of ties [paragraph (b)]; and
(3)the extent of impediments if removed [paragraph (e)].
International non-refoulement obligations
As to Australia’s non-refoulement obligations, the Tribunal considered that, following the decision of the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, the Tribunal was required to assess any international non-refoulement obligations that might arise in relation to the applicant, and a return to Myanmar, whether or not the applicant specifically framed the risk of harm as a non-refoulement issue. This approach, which requires consideration of the claim of harm regardless of its characterisation, has been confirmed as being correct by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [34(f)] and [39]. The Tribunal stated at [91] –
… It was agreed by both parties that the High Court has now upheld the decision of the Full Court of the Federal Court in [BCR16]. As such, following the principles outlined by the Full Federal Court, it was agreed that the Tribunal must now assess any international non-refoulement obligations that might arise if [the applicant] returned to Myanmar. This is so despite the fact that an applicant can apply for a protection visa and regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.
The Tribunal considered that it was not required to, and could not, undertake the same sort of analysis as that which would be undertaken by those who would consider such claims in support of an application for a protection visa, citing the Full Court’s decision in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [28]. The Tribunal stated that it did not have the benefit of an International Treaties Obligations Assessment, or the full body of evidence one would expect in a protection visa hearing. The Tribunal described the information from the applicant himself as dated and sketchy. As to the DFAT Country Information Report, the Tribunal stated that it had been provided by counsel for the Minister at very late notice, and on this basis, counsel for the applicant had objected to its use. The Tribunal at [95] described the evidence before it on these issues as “scant”, and “less than ideal”.
At [103] of its written statement, the Tribunal found that the applicant faced at least some risk of harm if he returned to Myanmar –
103.Based on the limited evidence before it, the Tribunal finds that [the applicant] faces at least some risk of harm if returned to Myanmar because he departed the country illegally and is technically subject to up to five years imprisonment for having illegally crossed a border ([DFAT Country Information Report received as “R3”]). The Tribunal also holds some concerns about the safety of teachers of his minority language. Myanmar is a country in turmoil. The country information available to the Tribunal is now also arguably dated but on the evidence available it is at least arguable that non-refoulement concerns do arise here.
In relation to the submissions put by counsel for the applicant before the Tribunal that affirmation of the decision under review would expose the applicant to being removed from Australia, or to indefinite detention, the Tribunal stated at [107]-[109] –
107.[The applicant] arrived in Australia as the holder of a Refugee visa. He has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. He is, accordingly, able to apply for a Protection visa in accordance with s 501E(2) of the Migration Act.
108.A decision to affirm the delegate’s decision not to revoke the cancelation of [the applicant’s] visa will mean that [the applicant’s] visa will remain cancelled pursuant to s 501(3A) of the Migration Act. Should this occur, the applicant would remain an unlawful non-citizen in the relevant migration zone.
109.In accordance with s 189 of the Migration Act, [the applicant] would initially be detained in immigration detention. It is not disputed that he could, at this time, apply for a protection visa and, arguably, a bridging visa. It is noted in this context that any character findings made in relation to [the applicant] in these proceedings would not negate any protection claims he may have from being assessed. This is so because of the operation of Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) – Part 2, which specifically precludes character findings arising from a criminal deportation finding being assessed first (and instead requires any protection claims to be assessed first).
The Tribunal then addressed the question whether the applicant would be deported before any such assessment could be made, and the alternative prospect of permanent detention. In relation to deportation, the Tribunal referred to s 198(2B) of the Migration Act, which relevantly provides –
198Removal from Australia of unlawful non-citizens
…
(2B)An officer must remove as soon as reasonably practicable an unlawful non- citizen if:
(a)a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b)since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c)in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision – either:
(i)the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
It is convenient also to set out s 198(6), which counsel for the applicant submitted would be applicable here –
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii)the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
The Tribunal also referred to s 197C of the Migration Act, which provides –
197CAustralia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
The Tribunal found at [117] that any concern that arose in relation to the deportation of the applicant if the decision to cancel his visa was not revoked was minimised by a clear commitment from the Australian government not to refoule anyone who is owed protection once that need for protection is properly assessed. The Tribunal relied on four matters in support of this finding –
(1)the Tribunal referred at [109] of its written statement to Direction No 75 (see [34] above), and its requirement that any protection claims are to be addressed first;
(2)the following statements in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which related to the addition of s 197C of the Act –
1132.The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.
...
1144.The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so... In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.
(3)a passage in the applicant’s statement of facts, issues and contentions before the Tribunal, which referred to one of the principles in Direction No 75 (see [33] above) –
Section 197C notwithstanding, the Ministerial Direction stipulates in terms that ‘Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations’, a commitment that is also reflected in the Explanatory Memorandum relating to the enactment of s 197C itself.
(4)confirmation by counsel for the Minister in oral submissions that it was not the Minister’s intention to breach Australia’s treaty obligations and to refoule someone in circumstances where they have been identified as being at risk of harm if returned to their country of origin.
The Tribunal stated at [117] that the fact that the applicant could apply for a protection visa went a considerable way towards addressing any concerns that the Tribunal might have about risk of harm should the Tribunal not revoke the decision to cancel the applicant’s visa.
The risk of permanent detention
In relation to the risk of permanent detention, the Tribunal at [119] referred to s 196(1) of the Migration Act, which provides –
196 Duration of detention
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b)he or she is deported under section 200; or
(c)he or she is granted a visa.
The Tribunal referred at [120] to the decision of the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513, and set out extracts from [18]-[20] of the Full Court’s reasons, emphasising the following passage in [19] –
Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.
The Tribunal then referred to the reasons for judgment of Bromberg and Mortimer JJ in BCR16 at [84]-[89] before stating at [122]-[129] –
122.It is clear here that it remains open for [the applicant] to apply for a protection visa. This goes a considerable way towards addressing any concerns that [the applicant] will be permanently detained if the Tribunal does not revoke the decision to cancel his visa. Permanent detention is not a “given” here as other avenues are indeed open. These include an application for a protection visa and a bridging visa pending resolution of [the applicant’s] protection visa application.
123.Overall, the Tribunal does accept that non-refoulement obligations do arise here and that, accordingly, there is at least some prospect that, at some point in the future, [the applicant] may face permanent detention. That is not, however, a given and it cannot be determined here on limited evidence whether or not that will indeed occur. It is, however, a relevant consideration and concern.
124.The question the Tribunal needs to ask here, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
125.The Tribunal finds that these findings do not outweigh the primary considerations outlined above. The Tribunal finds that, on the limited evidence before it, [the applicant] may face harm if returned to Myanmar. He may also equally face hardship if indefinitely detained at some undetermined point in the future. The evidence in support of these findings is, however, scant.
126.Overall, the Tribunal finds these secondary considerations are tempered by:
•a government commitment not to return an applicant who faces harm once it has been determined that a non-refoulement obligation exists; and
•the prospect of a protection visa application that would allow for a full and detailed analysis of [the applicant’s] protection claims and which arguably limits the risk of permanent detention.
127.The Tribunal needs to weigh any concerns it does have in relation to refoulement (which may not occur on the Minister’s statements) and permanent detention (which, again, is not a given on the evidence here because other options still exist) with the very strong concerns outlined above in relation to the seriousness of [the applicant’s] crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on clear and unequivocal evidence.
128.Overall, the Tribunal does not accept that these secondary considerations outweigh the primary considerations detailed above. Noting that the primary considerations in Direction No. 65 (based here on very clear evidence) are normally given greater weight than the other considerations (here, based on less than complete evidence), the Tribunal finds that the primary considerations here clearly outweigh any secondary considerations.
129.None of the above should, however, be seen as a comment by the Tribunal as to the prospects of any future protection visa application by [the applicant].
It is relevant to the applicant’s first ground of review in this Court to note that, at [124], [126], and [128] set out above, the Tribunal equated “other considerations” with “secondary considerations”.
The strength, nature and duration of the applicant’s ties to Australia
In relation to the applicant’s ties to Australia, the Tribunal referred to paragraph 14.2(1) of Direction No 65, which required decision-makers to have regard to the non-citizen’s ties to Australia. The Tribunal referred to the material before it on this topic, and concluded at [134]-[135] –
134.[The applicant] and his wife have been married for 16 years. They have four children, all of whom live in Australia. He also has relatives here and has friends associated with his ethnic community and his church. He is active in his community through his church and has a group of friends who support him and speak of the positive impact he has had in their lives.
135.On the evidence, the Tribunal finds that [the applicant] has contributed to some degree to the Australian community. The Tribunal also accepts that [the applicant’s] wife and children will be negatively affected if the Tribunal does not revoke the decision to cancel his visa. All of this weighs in favour of revoking the decision to revoke [the applicant’s] visa. Balanced against this, however, is [the applicant’s] history of domestic violence. As correctly stated by counsel for the Minister, [the applicant’s] criminal record does not reflect a positive contribution to the Australian community. While the Tribunal finds that [the applicant] does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above
The extent of impediments if the applicant is removed from Australia
In relation to any impediments the applicant might face if removed from Australia, the Tribunal referred to paragraph 14.5(1) of Direction No 65, which required decision-makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards. The Tribunal referred to submissions that were made on behalf of the applicant at the hearing before the Tribunal, and to the submissions in the Minister’s statement of facts, issues and contentions, and concluded at [140]-[142] –
140.In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal accepts that [the applicant] may face impediments if removed to Myanmar. It is clear that life will be challenging for him if he is returned to Myanmar, given that he has not lived there since 2008. He will face very limited job prospects and has limited family support in Myanmar.
141.The Tribunal also notes and repeats its comments above in relation the risk of possible physical harm for [the applicant] if he is deported. As above, the Tribunal finds that any risk of harm is minimised by the fact that [the applicant] can apply for a protection visa and will not be returned if he is found to be owed protection.
142.Overall, although the Tribunal considers that this consideration weighs in [the applicant’s] favour, this consideration does not outweigh any of the primary considerations outlined above.
The Tribunal’s conclusions
The Tribunal summarised its findings, and stated that it was of the view that the Australian community would expect that the applicant’s visa would remain cancelled. The Tribunal referred to the factors that weighed in favour of revocation, but concluded at [151]-[153] that the correct and preferable decision was to refuse to revoke the cancellation of the applicant’s visa –
151.There are considerations that weigh in favour of revocation of the decision to cancel [the applicant’s] visa. These include his ties to the Australian community, the best interests of his children and the extent of the impediments he may face if returned to Myanmar. The Tribunal also finds, on the rather limited evidence before it, that Australia may owe non-refoulement obligations to [the applicant].
152.The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above. The Tribunal notes that any concerns [the applicant] has in relation to non-refoulement obligations or risks of harm he may face if returned to Myanmar can be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed. In this context, any concerns that arise in relation to refoulement and the risk of mandatory detention are clearly outweighed by the primary considerations detailed above – findings which are based on the unequivocal evidence before the Tribunal.
153.Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of [the applicant’s] visa.
The applicant’s grounds of review
The applicant relied upon three grounds of review which were accompanied by detailed particulars. In summary, those grounds of review and the applicant’s submissions in support of them are set out in the sections below.
Ground 1 – applicant’s submissions
The applicant claimed that the Tribunal erred in the weight that it gave to the “other considerations” referred to in paragraph 14 of Part C of Direction No 65 that were material to his representations. This ground was developed in two related ways. First, the applicant claimed that the Tribunal treated the relevant “other considerations”, to which Direction No 65 required that the Tribunal have regard, as “secondary considerations”, and thereby did not give them sufficient weight, relying principally on Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 (Colvin J). I referred at [50] above to [124], [126], and [128] of the Tribunal’s written statement, where it referred to “secondary considerations” on four occasions. In making his submissions, counsel for the applicant also drew the Court’s attention to the subsequent decision of the Full Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 291 which considered a similar issue.
In considering the interests of the applicant’s children, the Tribunal at [72] of its written statement set out paragraph 13.2(4) of Direction 65, to which I referred at [28] above, which listed the factors that must be considered, where relevant, in considering the best interests of a child. In my view, the requirement in Direction No 65 that a decision-maker consider the best interests of minor children may be seen to further Australia’s treaty obligations.
At [74], the Tribunal set out extracts from a statutory declaration made by the applicant’s wife –
6.Our children miss him very much. They are not happy at school or church, because they miss him when they see the other families with their fathers. The youngest always asks me, why is dad not back yet. He asks me not to close the door at night when he is going to sleep because his dad is coming back. My older sons accuse me, saying why is he not coming back, you are telling us a lie. This is very hard for me.
7.I am not able to help them with their education because the school curriculum is English and I don’t know any of that. [The applicant] knows English and he could help them, he used to help them with their homework before he went to prison. It would be good for them to have their dad back, to help them with their learning again.
8.It is a bad situation for me living as a single mother with four children. There are no other single mothers who I know. It is very difficult economically. It is distressing to see the impact that this separation is having on our children. I cannot live without him. I ask that the government please give [the applicant] his visa back, to take away our suffering and for the future good of our family.
The Tribunal then proceeded to consider the interests of the applicant’s children at [75] to [82] of its written statement. At [78], it set out passages from the statement of facts, issues and contentions lodged on behalf of the applicant with the Tribunal that addressed the topic of the effect of the cancellation of the applicant’s visa on his family. Those contentions included the following –
28.Second, the Tribunal should also consider the practical and economic hardship that the family now experiences, and will continue to experience without [the applicant] being able to provide for them, while [the applicant’s wife] struggles to get by as, in effect, a single mother with four children, and scarce prospects of improving their situation, especially given her minimal knowledge of English and lack of professional qualifications or experience.
29.[The applicant’s] children have expressed goals for their study and for their future after school, the achievement of which could be made harder in the absence of their father.
…
32.What happens to [the applicant] will inevitably have an impact on his children. If his visa remains cancelled then they will be left knowing that their father has been left imprisoned indefinitely in immigration detention, with no hope of freedom – save for return to the serious danger from which he fled and the continuous fear that he may be seriously harmed, persecuted or killed.
33.That knowledge would be a lasting, heavy and traumatic burden of grief for his children to live with into the future.
34.It is noted that the delegate also formed a view that ‘the children’s best interests can still be served’ if the whole family were to return to …
35.That is a surprising proposition. To do so would involve uprooting the children from Australia – the two youngest of whom have no memory of Burma and don’t even speak the language – and taking them to a place where [the applicant] may be seriously harmed and both parents would face the prospect of imprisonment for having illegally left the country and sought asylum. Any hope of a comfortable future for the children, or even a minimally safe and secure future, would be highly dubious.
36.That could not possibly be considered ‘in the best interests’ of children who are settled safely in Australia, and the very possibility of it occurring would also be a factor weighing in favour of the revocation of [the applicant’s] visa cancellation.
The pithy representations made on behalf of the applicant to the delegate with reference to the Convention on the Rights of the Child did not materially add to the more detailed submissions that were the subject of the applicant’s contentions before the Tribunal, and which are set out above.
At [82], the Tribunal accepted that it was in the best interests of the applicant’s children that the decision to cancel his visa be revoked, although this was tempered by the effect that the applicant’s offending had had on his children. The Tribunal thereby formed a conclusion in relation to the substance of the submission that was made with reference to Article 9 of the Convention on the Rights of the Child, which had been developed by the more detailed contentions that were before the Tribunal.
As to the representation that the issue of family separation would not be assessed in any future protection visa application, this was prefaced by a qualification that this representation arose if the decision-maker formed the view that “the prospect of indefinite detention and Australia’s protection obligations were not mandatory considerations”. It is not evident that the Tribunal formed this view, because it did address the prospect of indefinite detention, and it did address international non-refoulement obligations. Accordingly, this part of the applicant’s submissions did not require attention.
Second, while the representations that were made on behalf of the applicant in response to the invitation under s 501CA(3) of the Act, viewed as a whole, were a mandatory relevant consideration, not every statement in the representations can be so described: Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [34(e)]; and see also, Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [69]-[72] (Colvin J, with whom Reeves J at [3] generally agreed). A decision-maker does not fall into jurisdictional error merely by failing to consider every individual submission advanced on behalf of an applicant, still less every nuance or variation of a submission. The submission in the representations to the delegate that the removal of the applicant would be inconsistent with Australia’s obligations under the Convention of the Rights of the Child did not materially add to the substance of the other submissions that the Tribunal set out and considered in a way that was favourable to the applicant. Paragraph 13(2)(b) in Part C of Direction No 65 (see [26] above), and to which the Tribunal referred at [34] of its written statement, provided that the best interests of minor children are a primary consideration in deciding whether to revoke the original decision to cancel a visa. The Tribunal gave effect to this part of Direction No 65 by addressing that topic. And as I have held at [100] above, the submission that was contingent on the Tribunal finding that the prospect of indefinite detention and Australia’s protection obligations were not mandatory considerations, did not arise.
Third, even if as part of its review function the Tribunal was required, but failed, to give separate consideration to the applicant’s representations that are the subject of the third ground of review, in order to establish jurisdictional error, the applicant has to show that any such failure was material in the sense that, but for the failure, there was a realistic possibility of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45], [46] and [49] (Bell, Gageler and Keane JJ). As I have mentioned, the Tribunal took account of the interests of the applicant’s minor children in a way that was favourable to the applicant. The applicant has not established that any failure by the Tribunal to address in terms the submissions that are the subject of ground 3 was material in the requisite sense.
Conclusions
The application will be dismissed with costs.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan. Associate:
Dated: 13 March 2020
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