Merit of proposed ground
37 The parties agree that, on the question of an extension of time, the Court should only assess the applicant's prospects of success on the grounds raised by the draft originating application in a reasonably impressionistic manner.
38 The applicant relied on the decision in Goundar and referred to:
(a) "PV harm", which I take to mean harm which does attract non-refoulement obligations; and
(b) "non-PV harm", which I take to mean harm other than that which would attract non-refoulement obligations, that is, harm of the type which founded the jurisdictional error identified by Robertson J in Goundar at [53]-[54].
39 Mr Goundar's visa had been mandatorily cancelled under s 501(3A) of the Migration Act and he had been invited to make and had made representations to the Minister for revocation of the cancellation decision under s 501CA(4). I note that:
(a) The evidence of both Mr Goundar's brother and mother stated that they believed that there was a risk of retribution against Mr Goundar from Mr Goundar's victim's family and his ex-wife's family (relatives) if he was returned to Fiji and it was submitted that the existence of the risk to his safety was a strong factor against the cancellation of Mr Goundar's visa;
(b) The relevant representation was that there was a risk of retribution and a risk to Mr Goundar's safety as a matter of fact. There was no claim made that this engaged Australia's non-refoulement obligations;
(c) Both the Department's submissions to the Minister and the Minister's reasons noted that Mr Goundar's claims may give rise to international non-refoulement obligations. The Minister found that he did not need to consider non-refoulement claims arising from the risk from the relatives because Mr Goundar was free to apply for a protection visa. The Minister did not otherwise consider Mr Goundar's risk from relatives in his reasons. The Minister found that there was not another reason to revoke the cancellation decision; and
(d) Mr Goundar claimed that the Minister thereby made an error of law, because the possibility that Mr Goundar could apply for a protection visa did not protect him from all forms of harm from the relatives, including harm motivated for reasons of revenge (and not persecution) or harm short of significant harm as defined in s 36(2A) of the Migration Act.
40 In Goundar at [47], Robertson J observed that the Minister did not consider the applicant's retribution claim except in the context of international non-refoulement obligations, and in so doing, assumed that the risk of retribution, and the consequent risk to Mr Goundar's safety claimed in his representation, was coterminous with the risk relevant to the issue of a protection visa. At [53]-[54], Robertson J found as follows (case citations inserted):
53 The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa. This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant's representations referred. The Minister did not presently consider the applicant's representation as to the claimed risk of retribution and risk to his safety because of the view the Minister took or the assumption the Minister made. The error was in proceeding on the basis that the circumstances the subject of the applicant's representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4).
54 The harm claimed by the applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. The Minister proceeded on the basis that he did not need to consider the representation of risk of harm because of the line of authority summarised in [Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56] at [41]-[65]. That error had a material effect on the Minister's decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the applicant's safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law: see [Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22] at [33] and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ. That is an implied condition of the valid exercise of that power. Here there was an incorrect understanding of the law. The case is one of jurisdictional error.
41 Counsel for AHZ21 accepted that a decision-maker pursuant to s 501CA(4) is entitled to defer consideration of PV harm to be addressed on consideration of an application for a protection visa. However, counsel submitted that AHZ21's claims were all claims to both PV harm and non-PV harm and the non-PV harm should have been considered by the Assistant Minister. When pressed to identify AHZ21's claims concerning non-PV harm, counsel submitted that the Assistant Minister was obliged but failed to consider as non-PV harm AHZ21's claim to fear harm in Iraq as a war zone.
42 Counsel for the respondent submitted that AHZ21's difficulty in this case is that there was no clearly articulated claim to fear harm, other than harm capable of falling with within Australia's non-refoulement obligations, which was not considered by the Assistant Minister. Specifically:
(a) AHZ21's claims to fear harm on account of his Sunni religion and Kurdish ethnicity were clearly capable of falling within the scope of the refugee criterion in s 36(2)(a) of the Migration Act. Further, his claims to fear harm based on his uncle's photograph with a former President of the United States are referable to a fear of harm that is based on imputed political opinion or actual or imputed membership of a particular social group. Therefore, they are claims available under s 36(2)(a) of the Migration Act. In any event, claims to fear abduction or targeted killing would come within the scope of significant harm that is protected under s 36(2)(aa) of the Migration Act;
(b) The claim that AHZ21 could not return to Iraq as it was a war zone and he did not want to get mixed up with war, in isolation, would not engage the refugee criterion in s 36(2)(a) of the Migration Act. However:
(i) in context, the war zone claim appears to be connected to AHZ21's claims based on race, religion, political opinion or membership of a particular social group;
(ii) even if the refugee claim under s 36(2)(a) of the Migration Act was not engaged, the risk of harm in Iraq by reason of the country's war situation was extremely unlikely to be uniform across all areas of the country. In those circumstances, the risk of significant harm was capable of coming within the complementary protection criterion in s 36(2)(aa). The claim would not necessarily be excluded by s 36(2B)(c) which excludes risks "faced by the population of the country generally and … not faced by the non-citizen personally": see BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 (BCX16) at [37] (Charlesworth J); ADH17 v Minister for Immigration and Border Protection [2020] FCA 53 (ADH17) at [39]-[42] (O'Bryan J); and
(iii) in any event, AHZ21's claim was so vague and lacking in detail that it could not be said that the Assistant Minister had an obligation to consider the claim. The respondent relied on AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] in which the Court (Flick, Griffiths and Moshinsky JJ) said:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits - and not judicial - review.
(c) The claims that AHZ21 would have no support in Iraq, that he would have no place to live or income to survive and that he suffered from epilepsy were considered by the Assistant Minister at DR[24]-[26], even though those claims were also vague and non-specific. Given the level of generality at which these claims were expressed, the Assistant Minister's consideration of them was more than adequate; and
(d) No error of the type identified in Goundar is made out on the facts.
43 In reply, counsel for AHZ21 submitted that the Minister fails in his attempt to distinguish Goundar. Counsel submitted that there is no bright line between PV harm and non-PV harm. He submitted that AHZ21's claims clearly extend to non-PV harm. Claims to PV harm are tested by reference to technical requirements of international non-refoulement obligations as incorporated by the Migration Act. Claims to non-PV harm are simply assessed for their factual veracity, as occurred in Hernandez and Ali. The Court should be slow to conclude that AHZ21 was restricting himself to fears which satisfied non-refoulement. He should readily be understood to have been seeking any available consideration of his claims.
44 Before rendering this decision I invited the parties to provide written submissions as to the impact of the High Court's decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 (Plaintiff M1/2021) on this application. Both parties provided those submissions and I have taken them into account in what follows.
45 The plurality in Plaintiff M1/2021 (Kiefel CJ, Keane, Gordon and Steward JJ) found as follows at [22]-[24], [30] and [39] (citations omitted except in [39]):
22 Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23 It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
…
30 Where the representations do include, or the circumstances do suggest, a claim of non refoulement under domestic law, again the claim may be considered by the decision maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
…
39 Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked (74).
46 Footnote 74 to Plaintiff M1/2021 at [39] cited: DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18) at 681 [185]; Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at 607 [39]; GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at 223 [45]; DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 at [38], citing Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 at 147 [36]; AFD21 v Minister for Home Affairs (2021) 393 ALR 398 (AFD21) at 413 [55].
47 The applicant submitted that what the Full Court said in AFD21 at [55]-[56] (Kenny, Kerr and Wheelahan JJ) is representative of what was said in the cases referred to in Footnote 74:
55. The starting point in our analysis is to accept, as we must, that there is a distinction between underlying claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations on the other hand: see DOB18 at [185] (Robertson J). That distinction led the Full Court in Omar to accept the arguments in support of the notice of contention, where, without deciding whether non-refoulement obligations were a mandatory relevant consideration, it was held that the Assistant Minister had failed to engage with the underlying representations concerning risk of harm should the respondent in that case be returned to Somalia.
56. Accepting the distinction to which Robertson J referred in DOB18, it does not follow that the underlying claims and their characterisation as giving rise to non-refoulement obligations are necessarily disconnected or otherwise unrelated. Much depends on the particular claims made in the case at hand. In some cases, the underlying claims are liable to be closely connected, because the claimed fear of harm as represented by the claimant will be of a kind that is typically (and clearly) the foundation for a claim that Australia's non-refoulement obligations are engaged. Such were the fears of harm as represented by the appellant to the Minister in this case.
48 Counsel for AHZ21 acknowledged that the decision-maker in relation to the exercise of power conferred by s 501CA(4) is entitled to defer consideration of PV harm to the protection visa stage. He submitted, however, that the decision-maker should also consider the facts underlying the claim of PV harm (and any qualifying matters independent of the claim of PV harm) as non-PV harm in determining whether there is "another reason" for revocation of the cancellation decision. Counsel noted that, in contrast to the present case, in Plaintiff M1/2021, the delegate stated that they had considered Plaintiff M1/2021's claims of harm in South Sudan and accepted that he would "face hardship" from tribal conflicts if he did return before weighing that matter with other factors in making the determination whether there was "another reason" to revoke the cancellation decision. Accordingly, the facts of Plaintiff M1/2021 are distinguishable. Counsel submitted that the Assistant Minister's failure to consider, as a reason to revoke the cancellation decision, AHZ21's claims to fear non-PV harm in Iraq as a war zone was a jurisdictional error of the Goundar kind as illuminated in Plaintiff M1/2021 at [39].
49 In Omar at [39], the Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said (emphasis in the respondent's submissions):
Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia's non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 (Ezegbe) at [32]-[36] per Perram J).
50 I agree with the respondent's submission that AHZ21's counsel's submission that claimed PV harm also requires consideration as non-PV harm exceeds the proposed ground, which relies on the Assistant Minister's failure to consider "harm other than that which would attract international non-refoulement obligations". Counsel did not seek to amend the proposed ground to address his broader assertion and I will accordingly not address it any further.
51 Ultimately, each case turns on its own particular facts and circumstances: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 (McKerracher, Kerr and Wigney JJ) at [15(11)]. It is necessary to consider the claims made in this case. The representations made by AHZ21 (set out at [6] above) included (as written):
(a) "If I return to Iraq, my fears I have no support in that country, there is wars happening, if I go to this country I may be abducted as I am Kurdish/Sunee by the sheaid or Isis or by the PKK"; and
(b) "It's absolutly impossible for me to … go back to Iraq where I got no options: (1) I have no one to go to (2) no place to live (3) Iraq is in a war zone (4) no income to survive (5) my social life is nil (6) the impact is totaly negative (7) it will destroy my familly and I will end up more then likely dead like the rest of the others in Iraq."
52 At DR[13] (see [10] above), the Assistant Minister summarised AHZ21's representations. Relevantly, the Assistant Minister said that AHZ21's representations included:
(a) "Iraq is a war zone and [AHZ21] would be targeted for his Kurdish ethnicity, and for his associations (through his uncle) with the United States government". The Assistant Minister addressed those claims under the heading "International non-refoulement obligations" at DR[15], that is, as a claim to PV harm; and
(b) "He has no family support, accommodation and employment in Iraq". The Assistant Minister addressed those claims at DR[25]. The Assistant Minister also noted that AHZ21 suffers from epilepsy as a result of a motor vehicle accident for which he requires medication on occasion: DR[26]. The Assistant Minister addressed those claims under the heading "Extent of impediments if removed". In effect, the Assistant Minister treated the claims as relating to non-PV harm.
53 As can be seen, contrary to the respondent's written submissions at [10], the Assistant Minister did not accurately summarise AHZ21's claims set out at [51(b)] above in his summary of his claims at DR[13]. It appears that, as a result, he did not recognise that "Iraq is a war zone" was a central element of AHZ21's claims discussed at DR[25] and [26] as well as the PV claim mentioned at DR[15]. I do not accept that the "Iraq is a war zone" claim only applied to his claims to fear harm because of his Kurdish ethnicity and Sunni religion (the latter of which was also not recognised in the Assistant Minister's decision record).
54 Counsel for the respondent made an argument for why the "Iraq is a war zone" claim set out at [51(b)] above might be addressed under the complementary protection criteria in s 36(2)(aa) of the Migration Act and therefore why it may legitimately be deferred for consideration on an application for a protection visa. I do not accept that argument for two reasons:
(a) It is not apparent that, in reasoning the way that he did, the Assistant Minister understood the harms addressed in DR[24]-[26] to be encompassed by non-refoulement claims and therefore able to be deferred so the argument put forward by counsel is not the basis of the Assistant Minister's decision; and
(b) As noted by O'Bryan J in ADH17 at [42], the application of s 36(2B)(c) to various circumstances is not straightforward. AHZ21's "Iraq is a war zone" claim recorded at [51(b)] bears more similarity to the circumstances considered in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J) (SZSPT) than the circumstances in BCX16. SZSPT related to the statutory liability of persons who left Sri Lanka illegally upon their return and Rares J found that s 36(2B)(c) applied to the risk created in those circumstances. In BCX16, the appellant relied on personal risk as a resident of the city of Kabul and Charlesworth J found that s 36(2B)(c) did not apply. As noted by Buchanan J in BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 at [32], the reference to risks "faced by the population of the country generally" in s 36(2B)(c) is a reference to risks faced by the general population as that concept is generally understood, not to risks faced by all members of the population or by each citizen of a country.
55 Further, and importantly, the consideration given at DR[24]-[26] does not address the claim actually made by AHZ21 as set out at [51(b)] that he would not have family support, accommodation or employment in Iraq as a war zone.
56 As to the respondent's submission that the claims are too vague to warrant consideration, I note Charlesworth J's finding in Hernandez at [26]: While the absence of corroborative evidence may legitimately bear on the manner in which claims are considered and determined, that does not justify the issue raised in the claim being ignored. The circumstance that the claims were not supported by objective country information does not render them insignificant so as to relieve the Assistant Minister of the obligation to consider them.
57 I consider that there is a meritorious case that the Assistant Minister failed to consider an articulated claim to non-PV harm raised by the proposed ground.