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[2018] FCA 650
respondent. The Originating Application is dismissed. The Applicant is to pay the costs of the Respondent.
Mr Ali, from Afghanistan, lost his humanitarian visa because of serious criminal convictions. He asked the Assistant Minister to overturn that cancellation, pointing to dangers from the Taliban, his mental health problems if returned, and Australia's duty not to send him back to harm. The Assistant Minister refused. Mr Ali argued in court that the Minister had repeated a legal mistake identified in an earlier case (BCR16) by wrongly thinking that any protection visa application would fully consider protection obligations before character issues. The Federal Court rejected this, holding that the Minister had fixed the problem by referring to a new Direction No 75 which requires protection claims to be looked at first. The court also found the Minister had properly considered Mr Ali's arguments about harm and health even if not every single phrase was quoted. The challenge failed and Mr Ali must pay costs.
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2 cited instruments linked from this judgment.
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.
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.
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.
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.
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.
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.
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.
REASONS FOR JUDGMENT 1 The Applicant in the present proceeding, Mr Nouroz Ali, is a citizen of Afghanistan. 2 He previously held a Class XB Subclass 202 Global Special Humanitarian visa. 3 In October 2016, that visa was cancelled by a delegate of the Respondent Minister for Immigration and Border Protection under s 501(3A) of the Migration Act 1958 (Cth). When making that decision, there was no question that the Applicant had committed a number of criminal offences between October 2012 and January 2014 for which he had been sentenced to an aggregate sentence of imprisonment of six and a half years. 4 On 25 October 2017, the Assistant Minister for Immigration and Border Protection decided not to revoke the delegate's decision pursuant to s 501CA(4). 5 Mr Ali has filed in this Court an Originating Application seeking review of the decision of the Assistant Minister. 6 The Originating Application is to be dismissed with costs.
Sections 501 & 501CA 7 The principal provisions of the Migration Act of present relevance are ss 501 and 501CA. 8 Section 501 of the Migration Act provides in relevant part as follows: Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Decision of Minister - natural justice does not apply … (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or … The phrase "character test" is defined in s 501, and includes the following: Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … Section 501(7), in turn, provides in part as follows: Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 9 Section 501CA provides in part as follows: Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked.
The Grounds relied upon 10 The Originating Application relies upon the following two Grounds, namely: Grounds of application 1. The Respondent Assistant Minister constructively failed to exercise his jurisdiction in failing to consider, on a correct understanding of the law, a "reason" put to the Assistant Minister by the Applicant for the purposes of the exercise of his revocation power under section 501CA(4). … 2. Further or in the alternate, the Respondent Assistant Minister constructively failed to exercise his discretion, in failing to take into account the effect on the Applicant if his mental health were to deteriorate on return to Afghanistan: 2.1 Being a real chance that the Applicant would suffer serious or significant harm (in that the Applicant's capacity to subsist would be threatened); and 2.2 Being harm not within the scope of non-refoulement obligations that would be assessed in the context of a protection visa application. … Particulars are provided in respect to each of these two Grounds.
The decision in BCR16 & Direction No 75 11 The principal argument advanced on behalf of Mr Ali, namely the first of his two Grounds, focussed upon the decision of the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, (2017) 248 FCR 456 ("BCR16"). An application for special leave to appeal from that decision to the High Court has been dismissed: Minister for Immigration and Border Protection v BCR 16 [2017] HCATrans 240. 12 In BCR16, the Appellant's visa had been cancelled under s 501(3A) of the Migration Act. In setting aside the decision of the Assistant Minister not to revoke the cancellation decision, the majority of the Full Court (Bromberg and Mortimer JJ) accepted that the reasons of the Assistant Minister had assumed that "non-refoulement obligations will be examined during the protection visa determination process": [2017] FCAFC 96 at [35], (2017) 248 FCR at 465. That assumption, their Honours held, was wrong in law. This misunderstanding was a "misunderstanding of the likely course of decision-making under the Migration Act": [2017] FCAFC 96 at [67], (2017) 248 FCR at 471. 13 The Minister is to grant a visa if, among other things, he is satisfied that "the other criteria … prescribed by this Act or the regulations have been satisfied": Migration Act s 65(1)(a)(ii). For a Protection visa application, these "other criteria" include those stipulated in s 36, which provides in relevant part as follows: Protection visas - criteria provided for by this Act (1A) An applicant for a protection visa must satisfy: (a) both of the criteria in subsections (1B) and (1C); and (b) at least one of the criteria in subsection (2). … (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: (a) is a danger to Australia's security; or (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or … Ineligibility for grant of a protection visa (2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if: (a) …; or (b) the Minister considers, on reasonable grounds, that: (i) the non-citizen is a danger to Australia's security; or (ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community. 14 Regulation 866.225 in Schedule 2 of the Migration Regulations 1994 (Cth) also provides that an applicant for a Protection visa must satisfy (inter alia) Public Interest Criterion 4001. That criterion provides as follows: Either: (a) the person satisfies the Minister that the person passes the character test; or (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or (c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or (d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test. 15 After having concluded that there was nothing in the legislative scheme to prevent the character criteria to which s 65(1)(a)(ii) refers being considered first, Bromberg and Mortimer JJ in BCR16 went on to conclude (at 467 to 468): [44] The appellant's protection visa application could therefore be refused under s 65 purely on character grounds pursuant to public interest criteria 4001(a) or (b), and the Minister or the Minister's delegate would, lawfully, never reach active consideration of the criteria in s 36(2)(a) and (aa), nor would the s 501(1) discretion ever have been engaged. … [48] We also accept the appellant's submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia's non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion. [49] In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be "satisfied" of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be "satisfied" to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65. Their Honours then identified the jurisdictional error as follows (at 469 to 472): [60] By the appellant's representations, which we have set out at [6]-[10] above, a "reason" has been put to the Assistant Minister for the purposes of the exercise of her revocation power under s 501CA(4). The Assistant Minister states it is "unnecessary to determine" whether non-refoulement obligations are owed, because the appellant can make a protection visa application. It is the Assistant Minister's linkage between her refusal to consider the "reason" put to her by the appellant, and the way the Act will operate if a protection visa application is made, which reveals the error. The Assistant Minister's expression of her understanding about the operation of the Migration Act and the consideration of risks of harm to the appellant during consideration of a protection visa application is incorrect, or at least incomplete. Further, the Assistant Minister's characterisation of the "reason" as "international non-refoulement obligations" is also incorrect, and an incomplete and inaccurate description of what the appellant was putting forward as a "reason" for the purposes of the exercise of the power in s 501CA(4). … [67] The first misunderstanding - identified as a misunderstanding of the likely course of decision-making under the Migration Act - is one that we accept is made out, for the reasons we have expressed at [42]-[52] above, together with what we set out below. [68] The language at [58] of the briefing note to the Assistant Minister (which we have set out at [14] above) is materially identical to the passage at [19] in the Assistant Minister's reasons, which we have extracted at [16] above. Therefore, even on the assumption that the Assistant Minister read and agreed with the statements in the briefing note, her reasoning relevantly goes no further than what is at [19] of her reasons. There is no evidence of consideration of the course of decision-making on a protection visa application made by a person in the appellant's position: that is, a person whose visa had been cancelled under the mandatory terms of s 501(3A), and a person whom the Assistant Minister had personally decided should not be subject to a favourable revocation decision under s 501CA, because of the risk of harm he posed to the Australian community. The Assistant Minister's reasons do not advert to the character criteria for a grant of a protection visa. Her reasons disclose no consciousness that the appellant's protection visa application may be required to be refused because of non-satisfaction of character criteria, so that considerations of risk of harm might never be reached. [69] A person in the appellant's position would be applying for a protection visa in a very particular set of circumstances. The scheme of the Act intends that a person in his position be subject to automatic cancellation of his current visa on character grounds, and that he be compelled to seek a favourable exercise of discretion to have it reinstated. A person in his position has failed to persuade the Assistant Minister such a course should be taken because the Assistant Minister has given primary weight to character concerns and the risk posed by the appellant, in the Assistant Minister's opinion, to the Australian community. In order for the scheme of the Act to retain any integrity and consistency, those particular considerations would inevitably intrude on any decision-making process in relation to an application for a protection visa. The Assistant Minister's reasons disclose no awareness of this. 16 At least one of the bases upon which Bromberg and Mortimer JJ proceeded, and as further explained by Jagot J in Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11], was that the Minister when making a decision under s 501CA(4) simply misunderstood the operation of the Migration Act, "specifically that it permitted an application for a protection visa to be refused on character grounds alone without consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality". 17 More recently, a Full Court has rejected an argument advanced on behalf of the Minister that the decision in BCR16 was "plainly wrong" and should not be followed: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [84] to [90] per Robertson, Moshinsky and Bromwich JJ. In the course of their consideration of BCR16, their Honours there observed: [73] When the reasons of Bromberg and Mortimer JJ in BCR16 are read as a whole, we consider that the substance of their Honours' reasoning in relation to what was described as the 'first misunderstanding' was that the Assistant Minister had erred in assuming that non-refoulement obligations would necessarily be considered if the appellant made a protection visa application, rather than (as contended by the Minister in the present appeal) that the Assistant Minister had erred in assuming that non-refoulement obligations were likely to be considered in that event. It is true that the word "likely" was used at [67] and [70] of their Honours' reasons. But we consider that this was merely used as a label or descriptor, and does not convey the substance of their Honours' reasoning. Further, the reference in [52] (see also [75]) to a "probability" was expressed in a different context. (Emphasis in original.) 18 Presumably in order to address the conclusions of the Full Court in BCR16, and in particular the conclusions at para [68], the Minister on 5 September 2017 gave a direction under s 499 of the Migration Act. That direction, "Direction No 75", addresses the refusal of Protection visas relying on s 36(1C) and s 36(2C)(b). Part 2 of Direction No 75 provides in part as follows: 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. …
A constructive failure to exercise jurisdiction - the reasons advanced 19 In expanding upon the first Ground, the written submissions filed on Mr Ali's behalf summarised the conclusions reached by the Full Court in BCR16 which were said to apply in this case as follows (without alteration): 16.1. First, that the Assistant Minister's decision proceeded on an assumption that non-refoulement obligations would be examined during the protection visa determination process being an assumption that was wrong at law, and not proven as a fact as a protection visa application could be refused in circumstances where "the Minister or the Minister's delegate would, lawfully, never reach active consideration of the criteria in s 36(2)(a) and (aa) of the Act" (at [35] - [47]) (the Factual Assumption); 16.2. Second, that "the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in section 501CA(4) and an exercise of power" by a delegate of the Minister under the protection visa framework (at 48 - 51) (the Distinction in Powers); and 16.3. Third, that "the harm comprehended by such [non-refoulement] obligations … does not describe the universe of harm which could be suffered by a person on return to her or his country of nationality", as a consequence of which the failure by the Assistant Minister to consider those matters led to jurisdictional error (at 70 - 72) (the Private Harm). 20 Notwithstanding the considerable care with which Counsel on behalf of Mr Ali developed these written submissions, it is concluded that there has been no error of the kind identified in BCR16 committed by the Assistant Minister in the present proceeding. 21 On the facts of the present case, the Assistant Minister was making a decision pursuant to s 501CA(4) confined to a decision not to revoke the cancellation of a visa. In exercising that statutory power, the Assistant Minister did not: misunderstand the nature and extent of the power being exercised and, more particularly, did not misunderstand the "likely course of decision-making" or any necessity to consider non-refoulement obligation if a Protection visa application were to be made; or fail to consider the submissions made as to why an adverse decision should not be made pursuant to s 501CA(4). The latter issue falls for consideration when resolving the second Ground. Of present concern is the first Ground. 22 The Assistant Minister's reasons in respect to the first Ground were as follows: International non-refoulement obligations 19. Mr ALI's migration agent, Dr Daawar, submits that 'Australia has protection, non-refoulement and humanitarian obligations to Mr ALI', as his father was killed by the Taliban, he himself was almost killed at the same time and his family was warned to leave the country. His family members echo these concerns. 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. 21. Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr ALI for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing that application. 23 Paragraph [20] of these reasons is unquestionably an attempt on the part of the Assistant Minister to address the concerns expressed by the Full Court in BCR16. The Assistant Minister was obviously fully aware of Direction No 75. 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. 25 Paragraph [20] was a necessary part of the reasoning process of the Assistant Minister given the claim made by the Applicant that Australia would be in breach of its non-refoulement obligations should he be forcibly returned to Afghanistan. 26 But there nevertheless remained, on the case advanced on behalf of the Applicant, a further "misunderstanding". As the case for the Applicant evolved, it was understood that that argument seized upon: the possibility that the Minister could make a decision under s 501 to refuse to grant a visa to a person on character grounds without the necessity to consider the criteria prescribed by s 36(2) or to form any separate assessment as to whether those criteria were satisfied or should prevail. That possibility would emerge if the Minister were to form the view that, whatever the merit of the claim to refugee status may be, the visa applicant did not pass the character test (s 501(1)) or if the Minister reasonably suspected that the person did not pass the character test and was satisfied that a decision to refuse the visa was in the national interest (s 501(3)); and/or the lack of utility in "putting off" any consideration as to whether the Applicant satisfied the criteria prescribed by s 36(2). There would be no utility in "putting off" any assessment as to "the refugee and complementary protection criteria" if the inability to satisfy the character test would or could ultimately result in the refusal or cancellation of a visa, regardless of the conclusion reached as to any protection obligations that may be owed to the Applicant. A person with no lawful authority to remain in Australia, but who could not be returned to the country of origin because of Australia's non-refoulement obligations under international law, could be exposed to indefinite detention. There is a certain initial attraction in the case advanced on behalf of the Applicant. 27 But the case for the Applicant is to be rejected. 28 At the end of the day, the decision sought to be reviewed in the present proceeding is the decision made on 25 October 2017 to not exercise the power conferred by s 501CA(4) to revoke the original decision. That decision-making process relevantly required a state of satisfaction to be formed - not as to whether a person satisfied the criteria prescribed by s 36(2) - but a state of satisfaction as to whether "there is another reason why the original decision should be revoked" for the purposes of s 501CA(4)(b)(ii). 29 To the extent that the Applicant raised claims for consideration in the submission made on 31 October 2016 - and, more specifically, the submission that he claimed to fear persecution and that his return to Afghanistan would be contrary to "Australia's obligations under the non-refoulement principle" - that was a submission which was addressed when making the decision on 25 October 2017. The Assistant Minister considered it "unnecessary to determine whether non-refoulement obligations are owed". 30 To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non-refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75. 31 To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether: that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia. The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia's international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, "it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen". 32 The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia's international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test. 33 But these are all decision to be made and - if necessary - reviewed at some point of time in the future. 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. 34 Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to: the sequence in which claims would be resolved in accordance with Direction No 75. Nor does the reasoning process expose any misunderstanding, or even say anything with respect to: the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so. 35 The first Ground advanced on behalf of the Applicant is rejected.
Ground 2 - a failure to consider the submission made? 36 The second Ground relied upon in the Originating Application focusses upon an argument that the Assistant Minister failed to consider aspects of Mr Ali's claim. 37 The decision-making chain affecting Mr Ali relevantly started with the decision of the delegate made on 4 October 2016 cancelling Mr Ali's visa under s 501(3A) of the Migration Act. 38 Thereafter, on 31 October 2016, Mr Ali's solicitors made a submission to the Minister requesting the revocation of the delegate's decision. The three page submission claimed (inter alia) that: returning Mr Ali to Afghanistan would be contrary to "Australia's obligations under the non-refoulement principle"; and further claimed that: "[w]e are all aware of the security situation of Afghanistan in current time" and that the forcible return of Mr Ali "will put his life [in] an absolute danger of significant harm particularly considering his health and mental conditions". It was submitted that "Australia has protection, non-refoulement and humanitarian obligations to Mr Ali". 39 The Assistant Minister's statement of reasons dated 25 October 2017: records that the Applicant made submissions on 31 October 2016 (at para [3]) and states that he has "considered the representations made" (at para [7]); records his state of satisfaction for the purposes of s 501CA(4)(b)(i) of the Migration Act that Mr Ali did not pass the character test by reason of his accepted criminal convictions and sentences (at paras [9] and [52]); and records his state of satisfaction for the purposes of s 501CA(4)(b)(ii) of the Migration Act that there is no other reason why the cancellation decision should be revoked (at para [58]). In addressing s 501CA(4)(b)(ii), the Assistant Minister's reasons set forth his consideration given to: the best interests of Mr Ali's minor children (at paras [13] to [18]); Australia's international non-refoulement obligations (at paras [19] to [21]); the strength, nature and duration of Mr Ali's ties to Australia (at paras [22] to [30]); the extent of "the impediments that Mr ALI will face if removed from Australia to his home country of Afghanistan" (at paras [31] to [36]); and the "protection of the Australian community", including Mr Ali's criminal conduct (at paras [38] to [42]) and the risk Mr Ali poses to the Australian community (at paras [43] to [49]). The Assistant Minister then sets forth his conclusions (at paras [50] to [58]). 40 Those reasons, it is respectfully concluded, adequately and properly expose the Assistant Minister's consideration of the claims made having regard to the submissions made on 31 October 2016. 41 It may be noted at the outset that it was common ground that the entitlement to make "representations" carries with it a corresponding duty on the part of the Minister to consider those "representations" when making his decision. But the extent to which the Minister must consider "representations" has attracted some attention. 42 A proper consideration of "representations" made pursuant to an invitation given in accordance with s 501CA(3)(b), it has been concluded, requires the Minister to consider the "representations" as a whole but does not necessarily require the Minister to consider each particular statement that may be set forth therein: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 ("Goundar"). Justice Robertson there concluded as follows: [56] … While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised. Concurrence was expressed with the observations in Goundar in Parker v Minister for Immigration and Border Protection [2017] FCA 314 at [33]. But care needs to be taken in applying these observations to the facts of a particular case. In circumstances where "representations" made pursuant to s 501CA clearly articulate a series of discrete matters, there may be circumstances in which a conclusion would be open that the Minister has failed to properly take into account the "representations" if he addresses one or other - but not all - of the discrete matters raised for his consideration. No parsing and analysing of a submission, however, should be countenanced which would permit a Ministerial decision to be impugned by reason of a failure to make express reference to some peripheral matter which may be found within a submission but which cannot sensibly be characterised as the thrust of the claims being made or a claim that has to be separately addressed. The "correctness" of the observations of Robertson J in Goundar, it may be noted, was expressly left open by a subsequent decision of the Full Court: Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [16] per Siopis, Griffiths and Charlesworth JJ. On the facts of that case it was unnecessary for the Full Court to resolve the issue. 43 It is equally unnecessary on the facts of the present case to resolve the "correctness" of the observations in Goundar. 44 On the facts of the present case, it is considered that a proper reading of the 31 October 2016 "representations" raised for the consideration of the Assistant Minister submissions as to: Australia's non-refoulement obligations; and the dangers faced by Mr Ali should he be forced to return to Afghanistan by reason of his health and mental conditions. The former issue was expressly addressed and considered by the Assistant Minister at paras [19] to [21] of his statement of reasons for decision. The latter issue was addressed and considered by the Assistant Minister in various parts of his reasoning, including at paras [32] to [35]. 45 The characterisation of the reference in the 31 October 2016 "representations" to "the security situation of Afghanistan in current time[s]" 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. The thrust of the submission made, and that which required the attention of the Assistant Minister, was that Mr Ali would suffer harm if he was returned to Afghanistan by reason of his "health and mental conditions". 46 It is an impermissible parsing and analysing of the 31 October 2016 "representations" which seeks to seize upon a particular phrase employed in those "representations" and thereafter elevate that phase to the status of a discrete matter warranting specific attention. 47 Although unnecessary to resolve a separate submission advanced on behalf of the Minister, it should nevertheless be stated that that submission would have been rejected. That further submission was that such consideration as was required to be given to "the security situation in Afghanistan" was addressed in the reasons provided at paras [19] to [21] and paras [31] to [36]. Just as it is impermissible to seek to unearth from "representations" made pursuant to s 501CA a particular matter which was not truly intended as a separate matter warranting express attention, it is equally impermissible to construe the Assistant Minister's reasons which are expressly addressed to (in this case) non-refoulement and the extent of impediment that Mr Ali would face if he was returned to Afghanistan as a consideration of a matter not expressly (or implicitly) addressed.
CONCLUSIONS 48 Neither of the two Grounds as set forth in the Originating Application and as developed in oral submissions have been made out. 49 There is no reason why costs should not follow the event.
THE ORDERS OF THE COURT ARE:
Ali
Minister for Immigration and Border Protection
[2017] HCATrans 240
(2017) 248 FCR 456
The Originating Application is dismissed. The Applicant is to pay the costs of the Respondent.