ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Tribunal Decision 15 The Tribunal Decision is lengthy but it suffices for present purposes to only refer to the part of it that addresses the issue of present concern. It is convenient to replicate it in full (references omitted): 158. The [appellant] held a Class XB Subclass 202 Global Special Humanitarian visa. The issue of this Visa did not involve any assessment that he was owed non-refoulment obligations. 159. I am satisfied…that the [appellant] was never assessed on the basis that he was facing persecution. He was assessed under a "form 681 application". 160. He has never held a Protection Visa. He has never applied for one. He has never been determined to be a refugee under Article 1A of the Refugee Convention. He has never been assessed for an International Treaty Obligations Assessment. 161. Even if I am wrong about this, and I do not think that is the case, any assessment prior to 2011 (which this would have been), would have been made in respect of Sudan, not South Sudan. It would therefore be now irrelevant. 162. The [appellant] in these proceedings raised the issue of non-refoulment in his Statement of Facts, Issues and Contentions, this is set out in summary at paras 88 and 89 as follows: "There is a possibility of the [appellant] suffering harm in Sudan, which might include persecution or discrimination on the basis of his Dinka ethnicity and/or Christian religion… The [appellant]'s removal to Sudan may potentially breach Australia's non-refoulment obligations and there is no known prospect of removing the [appellant] to any other country." 163. After some discussion in closing submissions, the [appellant]'s representative, quite properly in my view, said that there was "nothing known" to him that gave rise to a submission that the [appellant] would suffer any persecution in South Sudan as a Dinka person, or otherwise. There was certainly no evidence led from the [appellant] on this topic. In other words, consistent with his Statement of Facts, Issues and Contentions, the [appellant]'s refoulment argument was formulated on the basis that the receiving country would be Sudan, not South Sudan. 164. On the following day, (6 January 2022) the Tribunal received further, unsolicited submissions on this topic from the [appellant]'s counsel, resiling totally from his position as outlined above. 165. The [appellant]'s counsel referred to various cases. I have considered these cases. I note that the [appellant] led no evidence in support of any assertion that he, by reason of any particular personal characteristic, would suffer any particular persecution or disadvantage, by reason of being returned to South Sudan. Indeed, his representative submitted during the hearing that he could not name one. 166. Each question of refoulment must be determined based on evidence relevant to each individual Applicant. Asserting that other individuals, in their own unique circumstances were owed non-refoulment obligations, does nothing to demonstrate that these obligations are also owed, ipso facto to the [appellant]. The question here is about the individual concerned. It is not a generic question. 167. I note that the most recent Department of Foreign Affairs and Trade Country Information Report on South Sudan available to the Tribunal (dated 5 October 2016) states inter alia: "The Dinka are the largest ethnic group in South Sudan at around 35.8% of the population, and have traditionally dominated South Sudanese society." They may face some incidents of violence in "conflict-affected areas…" "In Juba, [the Capital of South Sudan] Dinkas face a low risk of being targeted on the basis of their ethnicity…" 168. Based on this material, it appears that the [appellant] could choose to live for example in Juba and be relatively safe. There is no evidence to suggest that he would be obliged to do otherwise. 169. This is a separate and different consideration to…the extent of impediments in [an applicant for revocation] "establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)." 170. Having regard to all of the above, I am of the view that on the evidence as it stands, [international non-refoulement obligations do] not arise in this case and so this consideration is neutral.

Judicial review and the present appeal 16 The appellant's application for judicial review identified two grounds upon which he contended that the Tribunal Decision was a product of jurisdictional error. Only one of them is relevant for present purposes, namely: 1. The [s]econd [r]espondent fell into jurisdictional error in its purported consideration of Australia's non-refoulement obligations by failing to consider a claim that clearly emerged from the materials before it and/or to consider critical material and evidence. Particulars a) The [appellant] made submissions that: a. He was stateless and eligible for South Sudanese citizenship ([61]-[62] of the [appellant]'s Statement of Issues and Contentions). b. He would be at risk of harm giving rise to non-refoulement in South Sudan due to his ethnicity as a Dinka Christian and his status as a returnee from a western country who has never lived in South Sudan, does not have relatives and meaningful relationships with any individuals, in a country that is in civil strife ([8] of the [appellant]'s post-hearing submissions). b) Further, the [s]econd [r]espondent found, based on its review of the Department of Foreign Affairs and Trade (DFAT) Country Information Report on South Sudan dated 5 October 2016 ("the South Sudan Report"), that as the [appellant] is a Dinka Christian, the [appellant] could reside in Juba (the Capital of South Sudan) and be relatively safe because in Juba, Dinka's face a low risk of being targeted based on their ethnicity. c) The [s]econd [r]espondent failed to consider the broader, clearly articulated claims that the [appellant] is owed international non-refoulement obligations by virtue of a real chance that he would suffer harm upon a return to South Sudan on account of his Dinka ethnicity and/or unique characteristic as a returnee from a western country with no relatives or connections in South Sudan. 17 That challenge marries (although not perfectly) with the sole ground contained within the appellant's draft notice of appeal, which reads as follows: 1. The Court erred in failing to find that the [s]econd [r]espondent's decision dated 12 January 2022 was affected by jurisdictional error by reason of a failure to give proper, genuine and realistic consideration to a clearly articulated claim raised by the [a]ppellant in relation to non-refoulement obligations. Particulars 1.1 The [appellant] made a clearly articulated claim that he would face a risk of harm giving rise to non-refoulement obligations upon a return to South Sudan due to his status as a returnee from a western country who has never lived in South Sudan, does not have relatives and meaningful relationships with any individuals, in a country that is in…civil strife (CB 1173). 1.2 The [s]econd [r]espondent failed to consider this claim. 18 As has been stated, the appellant's application for judicial review of the Tribunal Decision did not succeed. It is not necessary here to step through the reasoning by which the learned primary judge was led to conclude as his Honour did. For the reasons that follow, we are satisfied that no error has been established in his Honour's conclusion that the Tribunal Decision was not affected by jurisdictional error as alleged by the appellant.

Preliminary issue: extension of time 19 As has been stated, the appellant requires an extension of time within which to bring his proposed appeal. The criteria governing the grant of such extensions are notorious and need not be outlined in any detail here. It suffices to note that an extension will be granted if the court is satisfied that the interests of justice require one. Typically, those interests are informed by factors that include the length of an applicant's delay in challenging a first-instance judgment, the reasons behind that delay, the degree of prejudice to the respondent(s) if an extension were granted and the merits of the substantive case that is proposed to be entertained: Dimitrovski v Boland [2023] FCAFC 86, [28] (Markovic, Downes and Kennett JJ). 20 The present application was lodged 13 days after the expiry of the 28-day appeal deadline. On any view, the delay has been short. It was the subject of explanation in the affidavit that was filed in support of the extension application. Succinctly, the delay was brought about in part by a change to the appellant's representation and in part by reason of the ill-health of his father. 21 Without conceding anything about the merit of the proposed appeal, the Minister does not oppose the granting of an extension. There is no suggestion of any material prejudice to the Minister in the event that an extension were granted. 22 Although we are not persuaded that the sole appeal ground that is sought to be agitated should succeed, it could not be said to be so without merit as to warrant rejection of an extension. Furthermore, the delay that has occasioned the need for it has been explained and, in any event, was short. In our view, it is appropriate in the interests of justice to grant the extension for which the appellant moves.

The substantive issue: Failure to consider 23 In order that it might properly be (or not be) exercised, the revocation power conferred by s 501CA(4) of the Act is conditioned upon prior consideration of any representations that, in any given case, are made in response to the invitation extended under s 501CA(3)(b). A decision purportedly made under s 501CA(4) that is made without prior consideration of what is advanced as "another reason" for revocation is not one that the statute authorises. 24 In Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (hereafter, "Plaintiff M1"), the High Court had occasion to identify when or how the obligation to consider representations might be discharged. The plurality reasoned (at [24], references omitted): 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. 25 The obligation to consider what an applicant advances as "another reason" for revocation under s 501CA(4) varies according to how specifically it is advanced. A claim that is put summarily might properly be considered or addressed just as baldly. In AXT19 v Minister for Home Affairs [2020] FCAFC 32, [56] (Flick, Griffiths and Moshinsky JJ), the point was made as follows: …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… 26 In Plaintiff M1, the High Court plurality made a similar observation (at [25], reference omitted): …The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations… 27 Presently, the appellant complains that the Tribunal made its decision without first considering what he had put forward as "another reason" as to why the Cancellation ought to be revoked: specifically, that he would face a risk of harm upon removal to South Sudan that was sufficient to invoke Australia's international non-refoulement obligations. That was said in the email, recited above at [14], to be so because of "…his status as a returnee from a western country who has never lived in South Sudan [and who] does not have relatives and meaningful relationships with any individuals, in a country that is in…civil strife". 28 There are some important contextual considerations to note about that representation. 29 First, it was summarily stated in the unsolicited submission that was furnished the day after the Tribunal hearing (see above, [14]). True it is that that submission gave his status as noted above at [27], and also contained references to other decisions of the Tribunal; but it failed to relate any characteristic to the relevant risk of harm. The most that was said was that, "[i]n line with the Tribunal's reasoning in [those] cases…" the appellant was "owed non-refoulement obligations due to his receiving country being South Sudan". 30 Second, the representation that was advanced resiled from what the appellant's representative had told the Tribunal only one day earlier (above, [13]), noting importantly the concession that there was nothing about the appellant's characteristics that would expose him to relevant harm. 31 Third, the representation touched upon an important consideration - namely, the significance of Australia's international non-refoulement obligations - but was highly generalised as to the appellant's individual circumstances and did not expose why those circumstances would expose him to the relevant harm. 32 Those matters properly inform the level of effort that the Tribunal was required to expend in discharging its obligation to consider what the appellant advanced. In our view, in the circumstances the Tribunal was not obliged to address the submission in any more detailed manner. 33 In any event, there can be no doubt in this matter that the Tribunal identified, read and understood what was contained within the unsolicited post-hearing submission. Its receipt was expressly referred to in the Tribunal's reasons; and it was not unfairly described as "resiling totally" from the position that his representative advanced at the hearing. Further, the Tribunal correctly recorded the appellant's reliance upon the authorities to which the unsolicited submission referred. Plainly, none of that could have been possible without proper identification, review and comprehension of what was advanced. 34 It is equally clear that the Tribunal engaged with the substance of the submission in the requisite way, notwithstanding that the submission was made without leave and after the conclusion of the oral hearing. As is apparent from the extracts replicated above, the Tribunal's consideration of the question of non-refoulement in its reasons for decision was commensurate with and appropriate to address the representation as made. It took account of the authorities upon which the appellant relied, stressing - on any view, correctly - that questions of non-refoulement "…must be determined based on evidence relevant to each individual applicant". Perhaps most importantly, the Tribunal referred to country information about conditions in the South Sudanese capital, Juba; and concluded that the appellant "…could choose to live…in Juba and be relatively safe". 35 That other applicants with similar characteristics were the subject of different findings in other cases is not material. The court is concerned presently to assess whether the submission that the appellant advanced was considered in the way that the Act mandates: in other words, did the Tribunal reflect upon the harm to which the appellant claimed that he would be subjected if he were removed to South Sudan and did it bring that reflection to bear upon its assessment of whether there was "another reason" for revoking the Cancellation? 36 We accept that it did. It identified what the appellant had asserted on the issue of non-refoulement (howsoever baldly and inconsistently with the submissions that were advanced at the hearing), it explained why the authorities to which he pointed were of limited if any assistance, and it made a finding of its own about the risk of harm to which the appellant might be subjected upon removal to South Sudan. It is not for this court to second-guess what the Tribunal concluded. It suffices to note that there was no relevant want of consideration.

Conclusion 37 In light of what has just been stated, it is unnecessary that we should say anything about s 500(6J) of the Act. Whatever might be the limits of its application, they are not dispositive of the appeal and, for that reason, we would prefer to say nothing more: Boensch v Pascoe (2019) 268 CLR 593, 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ). 38 The court should grant the extension of time that is sought; but the substantive appeal should be dismissed with costs. We will make orders accordingly. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Snaden, Abraham, Cheeseman.