What happened
Mr Nouroz Ali, a citizen of Afghanistan, had previously been granted a Class XB Subclass 202 Global Special Humanitarian visa. Between October 2012 and January 2014 he committed criminal offences for which he received an aggregate sentence of six and a half years' imprisonment. In October 2016 a delegate of the Minister for Immigration and Border Protection cancelled that visa under the mandatory cancellation provision in s 501(3A) of the Migration Act 1958 (Cth) on the basis that Mr Ali did not pass the character test because of his substantial criminal record within the meaning of s 501(7)(c).
On 31 October 2016 Mr Ali's solicitors made written representations inviting revocation of the cancellation decision under s 501CA(4). Those representations asserted that returning Mr Ali to Afghanistan would breach Australia's non-refoulement obligations, that his father had been killed by the Taliban and he himself had almost been killed, that his family had been warned to leave, and that forcible return would place his life in danger of significant harm, particularly having regard to his health and mental conditions. The submission expressly invoked Australia's "protection, non-refoulement and humanitarian obligations".
On 25 October 2017 the Assistant Minister personally decided not to revoke the original cancellation. In the statement of reasons the Assistant Minister recorded satisfaction that Mr Ali did not pass the character test and that there was no other reason why the original decision should be revoked. In dealing with the non-refoulement claims the Assistant Minister noted at paragraph [20] that departmental practice, reinforced by Direction No 75 issued under s 499, was to assess refugee claims under s 36(2)(a) and complementary protection claims under s 36(2)(aa) before character or security concerns. On that basis the Assistant Minister considered it unnecessary to determine whether non-refoulement obligations were owed because Mr Ali could make a valid application for a Protection visa in which those obligations would be considered.
Mr Ali commenced proceedings in the Federal Court seeking judicial review. Two grounds were advanced. The first asserted that the Assistant Minister had constructively failed to exercise jurisdiction by proceeding on a misunderstanding of the law identified by the Full Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, namely that non-refoulement obligations might never be reached if a protection visa application was refused on character grounds under Public Interest Criterion 4001 before s 36 criteria were considered. The second ground alleged failure to consider the effect on Mr Ali if his mental health deteriorated on return to Afghanistan, including risks of serious harm outside the scope of non-refoulement that would be assessed in a protection visa context.
Flick J dismissed the application with costs after a hearing on 26 April 2018. The reasons, delivered on 10 May 2018, comprise 49 paragraphs and systematically reject both grounds while carefully analysing the legislative scheme in ss 501, 501CA, 36, 65 and 197C and the effect of Direction No 75.
Why the court decided this way
Flick J concluded that the Assistant Minister had not committed the jurisdictional error identified in BCR16. The core of the BCR16 reasoning was that the Assistant Minister in that case had wrongly assumed non-refoulement obligations would necessarily be examined in any protection visa process when, as a matter of law, the character criteria in reg 866.225 and Public Interest Criterion 4001 could be considered first under s 65, potentially resulting in refusal without ever reaching s 36(2). Bromberg and Mortimer JJ had emphasised the qualitative difference between the discretionary weighing in s 501CA(4)(b)(ii) and the satisfaction exercise under s 65.
In Mr Ali's case the Assistant Minister's reasons at paragraphs [19]-[21] expressly engaged with that concern. Paragraph [20] recorded awareness of the departmental practice, reinforced by Direction No 75, that protection-specific criteria must be assessed before character or security concerns. Flick J held at paragraph [24] that this was "an express finding as to the Departmental practices to be followed in 'processing Protection visa applications'" and demonstrated "no 'misunderstanding' as to the sequence in which matters are considered". The reasons therefore disclosed a correct understanding of both the power being exercised under s 501CA(4) and the future operation of the Act in light of the Direction.
On the second ground, Flick J applied the principle that representations under s 501CA must be considered as a whole but need not address every particular statement. The 31 October 2016 submission raised non-refoulement, the security situation in Afghanistan and harm linked to health and mental conditions as interconnected claims. These were addressed at paragraphs [19]-[21] (non-refoulement), [31]-[36] (impediments including mental health) and within the overall weighing exercise culminating at paragraph [58]. Treating the reference to "the security situation of Afghanistan in current time" as requiring discrete and separate analysis was rejected at paragraph [45] as "impermissible parsing and analysing". The Assistant Minister had therefore discharged the obligation to consider the representations.
Flick J further held at paragraphs [28]-[34] that any future difficulties the Minister might face—such as having to decide a protection visa application where character concerns intrude, the possibility of indefinite detention, or the need to grant another visa to avoid refoulement—could not retroactively invalidate the present s 501CA(4) decision. That power had to be exercised on the facts then prevailing. Section 197C was noted as making non-refoulement obligations irrelevant for removal purposes, yet the Minister had never returned a person in breach of those obligations. These prospective matters were left for future decision-making if and when they arose.
Before and after state of the law
Prior to BCR16 the law was understood to permit character concerns to be considered at various stages of visa decision-making, including under s 501(1) or s 501(3) even where protection claims existed. However, BCR16 established that it was a jurisdictional error for a decision-maker under s 501CA(4) to proceed on the assumption that non-refoulement obligations would necessarily be examined in a subsequent protection visa application. The Full Court held that the discretionary weighing of harm (including harms beyond those in s 36(2)) in the revocation context was qualitatively different from the "satisfied" or "not satisfied" task under s 65, and that character criteria could lawfully preclude reaching the protection criteria. The High Court refused special leave to appeal from BCR16.
Direction No 75 was issued on 5 September 2017 expressly to address the BCR16 concerns. Part 2 requires decision-makers to assess refugee claims under s 36(2)(a) and complementary protection claims under s 36(2)(aa) before considering character or security concerns. Where protection criteria are not met the visa must be refused; only if they are met does the decision-maker then consider character.
This judgment represents the first detailed judicial consideration of whether citation of Direction No 75 cures the BCR16 error. Flick J held that it does. The "before" state was that an Assistant Minister's reasons which merely stated it was unnecessary to consider non-refoulement because a protection visa could be applied for were liable to be set aside. The "after" state, at least on the facts of this case, is that express reference to the Direction and the mandated sequencing of assessments demonstrates a correct understanding of the law and avoids jurisdictional error. The judgment also confirms that s 197C renders non-refoulement irrelevant to the mechanical duty to remove under s 198, while leaving open the practical and legal difficulties that may confront the Minister if a person cannot be returned yet cannot lawfully remain.
The decision reinforces that the revocation power in s 501CA(4) is not required to pre-empt or resolve every future contingency that might arise in subsequent visa or removal decision-making.
Key passages with plain-English translation
Paragraph [20]: "I am aware that my Department's practice in processing Protection visa application is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s. 499 of the Act (Direction 75) requiring that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s. 501."
Plain-English translation: The Assistant Minister is saying "I know the rules have changed. We now have to look at whether the person needs protection before we look at their criminal record. I made a Direction that makes this compulsory." This sentence was decisive because it showed the Minister was not making the same legal mistake as in BCR16.
Paragraph [24]: "Read literally, para [20] is an express finding as to the Departmental practices to be followed in 'processing Protection visa applications' and a finding that the matter 'first' addressed is the question as to whether a visa applicant meets 'the refugee and complementary protection criteria'. The reasons at para [20] demonstrate that the Assistant Minister had no 'misunderstanding' as to the sequence in which matters are considered and no 'misunderstanding' as to the future necessity to first address 'the refugee and complementary protection criteria' as required by the terms of Direction No 75."
Plain-English translation: When you read what the Minister wrote, it is clear he understood the new order of events. He knows protection comes first. Therefore he did not make the legal error that caused the decision in BCR16 to be overturned.
Paragraph [33]: "The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised—and was in fact exercised—by reference to the facts and circumstances then prevailing."
Plain-English translation: Even if the Minister might face hard decisions later about detention or other visas, that does not make today's decision unlawful. Today the Minister only has to decide on the information available now.
Paragraph [45]: "The characterisation of the reference in the 31 October 2016 'representations' to 'the security situation of Afghanistan in current time' as a submission warranting separate consideration is rejected. Although there is no express reference in the Assistant Minister's reasons to 'the security situation of Afghanistan', a proper consideration of the 'representations' did not warrant any separate consideration being given to this matter as a separate issue."
Plain-English translation: You cannot pick one phrase out of the submission and say the Minister had to write about it separately. The real point of the submission was that Mr Ali would be harmed because of his health and the general dangers; that point was considered.
What fact patterns trigger this precedent
This judgment will be triggered in any judicial review of a non-revocation decision under s 501CA(4) where the applicant relies on BCR16 and asserts that the decision-maker has failed to appreciate that a protection visa application might be refused on character grounds before non-refoulement obligations are assessed. The critical factual precondition for the ratio to apply is that the Assistant Minister's or Minister's reasons contain an express reference to Direction No 75 and to the practice or requirement of assessing refugee and complementary protection criteria first. Where that reference appears, a court following this judgment is likely to find that the decision-maker has demonstrated the requisite understanding of the legislative scheme.
The precedent also applies where an applicant seeks to elevate peripheral phrases within lengthy representations—such as a single sentence about country conditions—into discrete mandatory considerations. If the representations as a whole raise non-refoulement, risk of harm and health impediments, and the reasons address those topics in the sections dealing with international obligations and impediments to removal, the precedent indicates that no separate consideration is required.
Fact patterns outside the ratio include cases where the reasons contain no reference to Direction No 75 or continue to use the pre-Direction language that it is "unnecessary" to consider non-refoulement without acknowledging the mandated sequencing. In those circumstances BCR16 would remain directly applicable and the decision would be at risk of being set aside.
How later courts have treated it
The judgment itself cites and applies BCR16 while distinguishing it on the basis of the inclusion of Direction No 75. It also cites Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 for the proposition that the substance of BCR16 was a misunderstanding that non-refoulement obligations would necessarily be considered rather than merely likely to be considered. Flick J reads BCR16 as a whole and concludes that the Assistant Minister's reasons avoid the error there identified.
The judgment cites Goundar v Minister for Immigration and Border Protection with approval for the proposition that representations constitute a mandatory relevant consideration as a whole but individual statements within them do not necessarily do so. However, the correctness of that aspect of Goundar was left open by the Full Court in Parker v Minister for Immigration and Border Protection [2017] FCAFC 115. Flick J expressly states at paragraph [43] that it is unnecessary to resolve the correctness of Goundar on the facts of this case.
The judgment also refers to Steyn v Minister for Immigration and Border Protection for the proposition that the Minister under s 501CA(4) misunderstood the operation of the Act if the Minister thought a protection visa application could be refused on character grounds alone without consideration of risk of harm. The present reasons distinguish the facts before Flick J from that line of authority by pointing to the explicit engagement with Direction No 75.
Because the judgment post-dates the cited authorities and no subsequent treatment appears in the text, the precedent relationships are limited to the manner in which this Court has itself distinguished BCR16 while endorsing the statutory analysis in that decision when the factual precondition of Direction No 75 is met.
Still-open questions
Several important questions are left unresolved by the judgment. First, the correctness of the Goundar principle—that particular statements inside representations do not themselves constitute mandatory relevant considerations—remains open. Flick J notes at paragraph [42] that the Full Court in Parker left the point open and finds it unnecessary to decide on these facts. Future cases presenting clearer discrete claims may require a higher court to resolve the tension between considering representations "as a whole" and the obligation to engage with clearly articulated and significant matters.
Second, the judgment acknowledges at paragraphs [31]-[32] the "considerable" difficulties that may confront the Minister if a person cannot be returned because of non-refoulement obligations yet cannot satisfy the character test. The possibility of granting a visa with conditions or some other form of lawful status is noted but not resolved. The interaction between s 197C, the duty to remove "as soon as reasonably practicable" under s 198, and the international obligations not to refoule remains live.
Third, the judgment does not decide whether, in a case where the Minister rather than a delegate is deciding a protection visa application by a person whose visa has already been cancelled under s 501(3A) and not reinstated, the Minister could lawfully refuse on character grounds under s 501(1) or s 501(3) without reaching s 36(2). The reasons at paragraph [31] raise the possibility but expressly leave it for future determination.
Fourth, the precise weight to be given to the prospect of indefinite detention as a factor in the discretionary weighing under s 501CA(4)(b)(ii) is not addressed. The judgment treats such prospects as future matters that cannot invalidate the present decision, but does not foreclose argument that indefinite detention is itself a form of harm that must be weighed in the revocation decision.
These open questions mean that while this judgment provides a clear pathway for Ministers to avoid BCR16 error through express invocation of Direction No 75, the broader interaction between character cancellation, protection obligations and removal duties continues to generate litigation.