ZMBZ v Minister for Home Affairs

[2019] FCAFC 195

FEDERAL COURT OF AUSTRALIA

ZMBZ v Minister for Home Affairs [2019] FCAFC 195

Appeal from:	ZMBZ v Minister for Home Affairs [2019] FCA 455
File number:	NSD 648 of 2019
Judges:	PERRAM, STEWART AND ABRAHAM JJ
Date of judgment:	11 November 2019
Catchwords:	MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – protection visa refused under s 501 of the Migration Act (Cth) – whether jurisdictional error by Tribunal in failing to take into account appellant’s ethnicity and religion when considering impediments appellant may face if removed to Myanmar – whether argument advanced, or, if advanced, abandoned before the Tribunal – argument was advanced and not abandoned – result might have been different – appeal allowed MIGRATION – leave sought to present new ground of appeal – whether sufficient prospects of success – leave refused
Legislation:	Migration Act 1958 (Cth) ss 5H(1), 5J, 36(2), 499(1), 501
Cases cited:	Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1
Date of hearing:	6 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Appellant:	HPT Bevan and K Hooper
Solicitor for the Appellant:	HIV/AIDS Legal Centre
Counsel for the First Respondent:	BD Kaplan
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

NSD 648 of 2019

BETWEEN:

ZMBZ

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:	PERRAM, STEWART AND ABRAHAM JJ
DATE OF ORDER:	11 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made by the primary judge on 4 April 2019 be set aside and in their place it is ordered that:

“1.A writ of certiorari issue quashing the decision of the second respondent dated 27 June 2018 affirming the decision of a delegate of the first respondent to refuse the applicant’s Safe Haven Enterprise (class XE) visa under s 501(1) of the Migration Act 1958 (Cth).

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application made on 6 April 2018 by the appellant for review of the decision of the delegate of the first respondent to refuse to grant the appellant a Safe Haven Enterprise (Class XE) visa;

3.The first respondent is to pay the applicant’s costs.”

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

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This is an appeal from a judgment of a judge of this Court, in ZMBZ v Minister for Home Affairs [2019] FCA 455. The primary judge dismissed a review of a decision of the Administrative Appeals Tribunal which in turn dismissed a merits review of a decision of a delegate of the first respondent (the Minister) to refuse the appellant his application for a Safe Haven Enterprise (Class XE) protection visa.

2. The appellant is a refugee from Myanmar.  A delegate of the Minister for Immigration and Border Protection initially refused his application for a protection visa.  On referral to the Immigration Assessment Authority, the Authority found the appellant had a well-founded fear of persecution by reason of his membership of a particular social group arising from his HIV-positive status. Because of that finding, the Authority found it unnecessary to make any findings as to the balance of the appellant’s claims, including claims to persecution in Myanmar based on his identity as an ethnic Rohingya and a Sunni Muslim by religion. The Authority remitted the protection visa application to the delegate for reconsideration with the direction that the appellant is a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth).

3. The delegate then refused the protection visa application under s 501(1) of the Act on the basis that the appellant did not pass the character test in s 501(6)(d)(i). That was because in December 2015 he had been convicted of aggravated assault against his then wife and sentenced to seven months imprisonment wholly suspended for 12 months.

4. On merits review to the Tribunal, the Tribunal affirmed the delegate’s decision.  The Tribunal’s decision was finely balanced: the Tribunal found that Australia’s non-refoulement obligations weighed significantly in the appellant’s favour but, in the result, was satisfied that other factors weighed against granting the appellant the visa.

5. The delegate and the Tribunal considered the matter with reference to the Direction No 65 that was made by the Minister on 22 December 2014 under s 499(1) of the Act, entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.

6. Clause 11(1) of Direction No 65 sets out three primary considerations for a decision-maker who is contemplating whether to refuse a visa under s 501 of the Act on character grounds. The primary considerations are (a) protection of the Australian community from criminal or other serious conduct, (b) the best interests of minor children in Australia, and (c) the expectations of the Australian community. Clause 12(1) then provides that “other considerations” must be taken into account where relevant and that these “include” international non-refoulement obligations.

7. Clause 8(4) requires that primary considerations should generally be given greater weight than the other considerations.

8. Before the primary judge, the appellant contended that the Tribunal made a jurisdictional error in the application of cl 12(1) of Direction No 65 or, in the alternative, by constructively failing to exercise its jurisdiction as required by Direction No 65 “by failing to consider the extent of the impediments if [he] were removed from Australia” separate from any consideration of whether Australia owed any non-refoulement obligations to him on the basis of his status as a person being HIV positive. Those impediments were said to arise from the appellant’s Rohingya ethnicity and his Sunni Muslim religious affiliation.

9. The primary judge rejected the appellant’s argument on two, separate bases:

   ·first, the argument was not clearly advanced by the appellant – or, if it was, it was abandoned during oral argument before the Tribunal (at [16]-[27]); and

   ·secondly, and in any event, even if the Tribunal had considered the argument, its findings were such that the outcome of the review could not realistically have been any different (at [28]-[34]).

10. It was accepted by the primary judge (at [13]), and it is not in dispute in the appeal, that relevant to an exercise of the discretion conferred by s 501 are the “impediments” or “harm” that may be suffered by a person if they returned to their home country, albeit a “harm” that would not attract Australia’s non-refoulement obligations.

    The grounds of appeal

11. The appellant’s notice of appeal asserts two grounds of appeal, both of which must be upheld in order for the appeal to succeed:

    ·first, that the primary judge erred in holding that the appellant’s argument before the Tribunal under cl 12(1) of Direction No 65 was either abandoned before the Tribunal or did not arise such that the Tribunal was obliged to deal with it; and

    ·secondly, that the primary judge erred in holding that, in any event, such an argument was subsumed by the existing non-refoulement obligations.

12. In addition, the appellant sought leave to raise an additional ground of appeal based on a point not argued before the primary judge.  This third ground is put as follows:

    The [Tribunal] committed jurisdictional error in its finding, at [77], that the best interests of minor children in Australia was a consideration that weighed heavily against the appellant.

    Properly construed, in circumstances where, as here, there are no relevant children whose interests fall for consideration by the decision-maker, the best interests of the children can only be a neutral consideration.

13. The Minister opposes this ground, not on the basis that it causes any prejudice but because it lacks any merit.

14. It is convenient to deal with each ground in turn.

    Ground 1: was the argument based on ethnicity and religion clearly put or, if put, abandoned?

15. In a statutory declaration in the proceeding before the Tribunal in which the appellant set out the basis for the review of the delegate’s decision, the appellant relevantly stated the following:

    Fears of what will happen if my visa is refused

    27.If my visa is refused, I understand that my only 2 options are to either return to Burma voluntarily or to remain in detention for the rest of my life.

    28.Should I be forced to return to Myanmar, I will be persecuted due to my Rohingya ethnicity, my religion as a Sunni Muslim and because of my HIV status.

    29.      It is well-known that Rohingya people are persecuted in Burma.

    30.I am afraid of returning to Myanmar. I have experienced maltreatment before due to my ethnicity and religion. If I will be forced to return I would go back to living in fear, and never being able to live a life with dignity and political rights. Members of the Rohingya ethnic community have always been ostracized for many generations and not given fair opportunity or citizenship status in Myanmar. I fear that I will experience physical harm and political persecution due to my stateless status.

16. On the basis of the statutory declaration alone, it is clear that the appellant claimed harm if he returned to Myanmar on the grounds of his ethnicity and religion as well as his HIV status. It was submitted on behalf of the Minister that the characteristics of ethnicity and religion, and the consequences that flow from them, were raised only in the context of the appellant’s claim that he was owed protection and not in the context of other harm, or impediments, that he would face if he returned to Myanmar. In that regard, the Minister drew attention to the appellant’s use of the words and phraseology of protection, in particular “persecution” and “physical harm”, cf. s 5J of the Act.

17. We do not accept the Minister’s submission. In paragraph [30] of the statutory declaration, quoted in paragraph [15] above, the appellant identifies that if he returns to Myanmar he will experience “maltreatment”, he will live “in fear”, he will not be able to “live a life with dignity and political rights”, he will be “ostracised” and he will not be “given fair opportunity” due to his ethnicity and religion. These are all types of harm that do not necessarily rise to the level of harm that would give rise to protection obligations as referred to in s 36(2) of the Act.

18. In the circumstances, it is clear that the appellant’s statutory declaration squarely advances a case of harm that he will suffer if he returns to Myanmar on the basis of his ethnicity and religion that is qualitatively different from that which gives rise to his claim for protection.  Also, it is independent of and different from the harm that the Authority identified as giving rise to his entitlement to protection on the grounds of his HIV status.

19. In a statement of facts and contentions of the same date as the statutory declaration, under a heading “Other considerations” the appellant identified three considerations in addition to the primary considerations under separate sub-headings, namely “International non-refoulement obligations”, “Impact on family members” and “Non-specified consideration – Potential consequences for the applicant if his visa is refused”.  Under the first of these sub-headings, the appellant identified the consequences of his return to Myanmar on the basis of his being Sunni Muslim, Rohingya and HIV positive.  Under the third of the sub-headings, the appellant identified what he characterised as three possible outcomes, each of which was premised on him not being returned to Myanmar.

20. In the circumstances, on the basis of the statement of facts and contentions before the Tribunal it was not clear that the appellant had advanced an “other consideration”, i.e. other than Australia’s international non-refoulement obligations and impact on his family members, on the basis of the harm that he would face if returned to Myanmar.  The statement of facts and contentions is reasonably understood to limit his claim to fear of harm if returned to Myanmar to the consideration of non-refoulement obligations and not to form a separate consideration of harm that would result from the refusal of his visa. 

21. So, notwithstanding the relatively clear way in which the matter was put in the appellant’s statutory declaration, on the basis of the written material as a whole it is not clear that the appellant advanced a relevant consideration of harm in reliance on his ethnicity and religion.  There was no error by the primary judge in this respect.

22. It is therefore necessary to consider whether the argument had been advanced or, if advanced, it had been abandoned during the hearing before the Tribunal.

23. The first point to note from the transcript of the hearing before the Tribunal is that the appellant declined to give evidence.  This was on the basis of an asserted right against self-incrimination in relation to other possible allegations of violence against his wife, i.e. other than the conduct for which he was convicted as referred to above.  The result was that the Tribunal was restricted to relying on the documentary evidence.

24. The solicitor for the Minister made oral submissions first.  He focussed on the primary considerations of protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community and recorded that the Minister accepted that non-refoulement obligations were owed to the appellant.  The solicitor was not explicit as to whether that was on the basis of the Authority’s earlier finding based on the appellant’s HIV status or whether it was on some other basis, but submitted that there are not different categories of non-refoulement obligations.

25. The appellant’s solicitor also addressed the issues in relation to the appellant’s conviction and his conduct first.  He then turned to the consideration of Australia’s non-refoulement obligations.  In that context, the appellant’s solicitor mentioned the appellant’s ethnicity and religion, to which the Tribunal responded that the non-refoulement obligations had been accepted and that “there is no contention in that respect”. 

26. The solicitor, after indicating that he was moving on, then stated that there are “other considerations that the [Tribunal] can take into account besides those in the Direction”.  That necessarily referred to considerations other than the non-refoulement consideration which is expressly identified in Direction No 65. 

27. Developing that submission, the solicitor stated the following:

    And one of our contentions was that in addition to facing the harm that the DIS has found that he may face if returned to Myanmar, that there are other sorts of harm that he may face on account of his ethnicity, and that is another consideration: his ethnicity and his religion of returned to Myanmar.

28. It was submitted on behalf of the Minister that the use of the past tense, indicated by the use of “was”, has the result that this passage is to be understood as meaning that the solicitor was referring to “contentions” that had previously been put but which were no longer being put.  We do not accept that that is necessarily so, in particular because it could equally be a reference back to the statutory declaration which had been filed at an earlier time but which was still before the Tribunal.  It could also merely reflect a manner of speech, rather than being intended to have the specific meaning that the Minister seeks to ascribe to it.

29. In any event, from the passage that follows it is apparent that the Tribunal understood the appellant’s solicitor to be saying that the appellant is owed protection on account of his ethnicity and religion, or possibly that the Authority had decided that he is owed protection on those grounds, and did not understand him to be raising those grounds as giving rise to harm independently of the non-refoulement consideration.

30. After the Tribunal asked some questions about the documents before the Tribunal apparently for the purpose of identifying exactly what the delegate had decided in relation to non-refoulement obligations, the appellant’s solicitor reverted to the submission as follows:

    … so it’s been conceded that there are non-refoulement obligations owed based on the Authority’s decision [i.e. based on HIV status].  However, as another consideration [i.e. additional to the non-refoulement consideration], we are asking the Administrative Appeals Tribunal to consider that the applicant is a Rohingya and that he has …

31. The Tribunal then interrupted.  One can pause here and note that it is clear that what was sought to be advanced in this passage is “another consideration”, which is wording taken from Direction No 65, independently of the consideration of non-refoulement obligations.  However, this is apparently not how the Tribunal understood this passage.  The Tribunal made the observation that for it to make “those findings” it would have to “go through the assessment of his old protection claims” which it cannot do on the evidence before it.  It also observed that there would be a problem because the appellant “doesn’t want to answer any questions”.

32. In answer to that, the appellant’s solicitor stated “I will not press that”.  In context, this is to be understood as a statement by the solicitor that he would “not press”, i.e. not advance, the argument identified by the Tribunal.  That was the argument that the appellant was owed protection on the basis of his ethnicity and religion.  It makes perfect sense that the solicitor would say that he was not advancing that argument because that was not the argument that he had sought to advance, but the Tribunal had apparently misunderstood him.

33. The discussion continued, and on three further occasions the solicitor made the same statement that he would “not press that”.  On each occasion that was in response to the Tribunal’s statements which show that it had in mind non-refoulement obligations based on ethnicity and religion, and not harm flowing from ethnicity and religion independently of non-refoulement obligations.

34. The Tribunal then reiterated that it considered it inappropriate for it to entertain a reassessment of the protection claims in circumstances where the Authority’s decision stands and the Minister has accepted that the applicant is owed protection on that basis.

35. The appellant’s solicitor responded by saying “And what I was going with initially, Member, was that I am not asking the [Tribunal] to consider those claims in relation to any non-refoulement obligations or the fact that he was found to be a refugee on other counts.”

36. The following exchange then took place (Mr Parwani being the appellant’s solicitor):

    MR PARWARNI: It was just another consideration [i.e. additional to the non-refoulement consideration] that I was asking the Administrative Appeals Tribunal to consider, that he is Rohingya and he is Muslim, and that he faces risk of being returned to Burma.  That is all.

    SENIOR MEMBER: Again, I need to think very carefully about that but again, I reiterate without entertaining a full assessment of the protection claims, I see it as being inappropriate of me.  I take note of your submissions, though.

    MR PARWARNI: Okay.

    SENIOR MEMBER: Thank you very much. 

1. The Tribunal then called on counsel for the Minister to address it.

2. In the last quoted passage, the solicitor again raised, as “another consideration”, the harm that the appellant would face on the basis of his ethnicity and religion.  As dealt with above, the appellant’s statutory declaration had set out the basis for findings of substantial risk of harm to him because of his ethnicity and religion if he returned to Myanmar.

3. The Tribunal did not respond by saying that such other consideration could not be entertained, but instead said that it would take note of the submissions.  That suggests that the matter was left on the basis that the submission was open before the Tribunal.

4. The first point then made by the Minister’s solicitor in oral submissions in reply was that “the extent of the impediments if removed” is a consideration expressly identified in Direction No 65 for decisions to cancel a visa on character grounds (cl 10(1)), or to revoke the cancellation of a visa on character grounds (cl 14(1)), but not for a decision to refuse a visa application (cl 12(1)), being the decision in question.  That suggests that the Minister’s solicitor also understood the submission to have been put and not to have been withdrawn or abandoned.  It would also have been reasonable for the appellant’s solicitor to have been left with that understanding.

5. There was evidence before the Tribunal, as there is on appeal, that Rohingya and Sunni Muslims face very substantial disadvantage, discrimination, hardship and persecution in Myanmar.  Two observations arise from this.  First, it was not necessary for the appellant to give oral evidence in order for the argument in question to be advanced as there was already evidence in the documents to support the argument.  Second, the argument was a significant one which would not lightly have been given up.

6. In the circumstances, by the end of the hearing the argument had been clearly and cogently, albeit briefly, put, and there was ample evidence to support the argument.  It was not given up or abandoned.

7. It follows that in our respectful view the primary judge erred in concluding that the argument was not clearly advanced for consideration before the Tribunal and was in any event abandoned during the course of the hearing.  Ground 1 of the appeal accordingly succeeds.

   Ground 2: was the argument based on ethnicity and religion subsumed in the other non-refoulement argument?

8. The primary judge observed (at [30]) that the Tribunal had taken into account the appellant’s ethnicity and religion in considering Australia’s non-refoulement obligations.  In that regard, the Tribunal made findings that the appellant is a Rohingya and that he is a Sunni Muslim.  Nevertheless, the finding that Australia owes the appellant non-refoulement obligations was based on the Minister’s acceptance of the findings of the Authority which, as indicated, were limited to the risk of harm faced by the appellant on account of his HIV status.  The Tribunal did not consider or make findings on any harm that the appellant may face on the basis of his ethnicity and/or religion if he returned to Myanmar.

9. It was submitted on behalf of the Minister that the prospect of harm that the appellant might face by reason of his ethnicity and/or religion if he returned to Myanmar was irrelevant because the level of harm that the appellant was found by the Tribunal to face by reason of his HIV status could not have been any less than the harm which he might face on account of his religion and/or ethnicity.  It was said that the appellant’s HIV status exposed him not only to various forms of harm, both physical and psychological, but also to the most extreme kind of physical harm, being loss of life.  On this basis, it was said that any harm that he might face as a consequence of his ethnicity and/or religion, which could not rise to a higher level, was subsumed by the Tribunal’s finding or acceptance that Australia owes the appellant non-refoulement obligations.

10. We do not accept that submission.  The Authority, in concluding that the appellant is a refugee within the relevant definition, found that if he was to return to Myanmar he would face “a real chance” of serious harm of the type mentioned.  That means that there is no certainty that that harm will actually eventuate, or that it will reach its highest level.  Similarly, if the Tribunal had considered the argument based on ethnicity and religion and had concluded that there was “a real chance” that if he returned to Myanmar he would face the types of harm identified by him in his statutory declaration on those grounds, there would also be no certainty that that harm would actually eventuate or that it would reach its highest identified level.  However, there being “a real chance” of harm arising on both grounds independently, i.e. on the basis of his HIV status and his ethnicity and religion, there would be a materially increased chance of one or other of the types of harm arising.

11. As indicated above, the Tribunal’s decision was finely balanced.  The primary considerations of protection of the Australian community and expectations of the Australian community weighed heavily against the applicant, as did consideration of the impact on the victim, but the consideration of Australia’s non-refoulement obligations was given significant weight and it “weighed heavily on the Tribunal personally”.  The Tribunal was not satisfied that Australia’s non-refoulement obligations “in the circumstances outweigh other considerations”.

12. It follows that if the submission that was put on behalf of the appellant that if he returned to Myanmar he would face significant harm as a consequence of his religion and/or ethnicity had been considered by the Tribunal, it “could have resulted in the making of a different decision”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [31] per Kiefel CJ, Gageler and Keane JJ, and at [72] per Edelman J.

13. In the result, in our respectful view the primary judge erred in concluding that the findings of fact made by the Tribunal most probably precluded the appellant from having any greater prospect of success even if the argument had been advanced differently.  Ground 2 of the appeal succeeds.

    Ground 3: the best interests of minor children in Australia

14. This proposed ground of appeal turns on paragraph [77] of the Tribunal’s reasons:

    In relation to the Primary Considerations, Protection of the Australian Community, Expectations of the Australian Community, the best interests of minor children in Australia, the Tribunal is satisfied, for the stated reasons, that those considerations weigh heavily against the applicant. Also weighing heavily against the applicant is the consideration of the impact on the victim.

15. The appellant submits that on a plain and fair reading of this paragraph, including in light of paragraph [49] of the Tribunal’s reasons, the Tribunal has treated the absence of minor children in Australia whose interests may be affected by the decision as a factor that weighed “heavily against the [appellant]”.

16. Paragraph [49] of the Tribunal’s reasons, and the sub-heading immediately preceding it, is as follows:

    b)        The best interests of minor children in Australia:

    The applicant does not have children under the age of 18.  He has one relative in Australia, who is his paternal aunt’s grandson and that relative is over the age of 18.

17. The appellant submits that the absence of any minor children means that the primary consideration of the best interests of minor children in Australia was irrelevant and should have been treated as neutral, whereas, so it was submitted, it was treated as weighing “heavily” against the appellant.

18. In our view, the appellant’s submissions on this point overlook the effect of the words “for the stated reasons” in paragraph [77] quoted above.  Quite plainly, the Tribunal identified in paragraph [49] in relation to the primary consideration of the best interests of minor children in Australia that there were no minor children.  The inescapable conclusion from that is that the Tribunal appreciated that that consideration was neutral or played no role in the balancing exercise that was being undertaken.

19. The function of paragraph [77], in referring to each of the three primary considerations, was to identify that each had been considered.  The conclusion drawn from the three primary considerations, namely that they weighed “heavily” against the appellant was qualified by the phrase “for the stated reasons” – that is, the stated reasons in respect of each of the other two primary considerations showed that they weighed heavily against the appellant but the stated reasons in respect of the primary consideration of the best interests of minor children in Australia gave that primary consideration no weight at all.

20. In the circumstances, the proposed ground of appeal is hopeless.  No leave should accordingly be granted for it to be advanced.

    Conclusion

21. In the circumstances, the appeal succeeds.  There is no reason why the first respondent should not pay the appellant’s costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Stewart and Abraham.

Associate:

Dated:       11 November 2019