ALN17 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-06-15|Before: Collier J, Kenny J

The decision of the Assistant Minister made on 18 January 2017 be quashed.
The matter be remitted to the respondent to re-determine according to law.
The respondent pay the applicant's costs of the further amended application for review, to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 On 27 November 2015, a delegate of the respondent (the Minister) decided to cancel the applicant's refugee visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The applicant subsequently asked the Minister to revoke, pursuant to s 501CA of the Act, the delegate's decision to cancel his visa. On 18 January 2017, the Assistant Minister for Immigration and Border Protection (the Assistant Minister) refused to revoke the delegate's visa cancellation decision. 2 The applicant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision made by the Assistant Minister on 18 January 2017 (the Assistant Minister's decision). On 23 February 2017, a judge of the FCCA ordered, pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth), that the proceeding be transferred to this Court. 3 In his further amended application, the applicant advanced four grounds of judicial review. The first ground was that the Assistant Minister took into account a purported "principle" of the "privilege" of a non-citizen remaining in Australia and, in doing so, took into account an irrelevant consideration or misapplied s 501CA of the Act. In written submissions dated 28 April 2017, the applicant relied on the decision of Collier J in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 in support of this ground. On 7 June 2017, shortly before the hearing in this matter, Collier J's decision on this issue was overruled in an appeal to the Full Court: see Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 (Tesic). 4 The second ground was that the Assistant Minister failed to understand and take into account the legal consequences of any refusal to revoke the visa cancellation decision. As a consequence, it was said that the Assistant Minister denied the applicant procedural fairness, or failed to take into account a relevant consideration, or misconstrued or misapplied s 501CA of the Act, or otherwise acted contrary to law. As outlined below, substantially the same ground was upheld by a Full Court of this Court in BCR16 v Minster for Immigration and Border Protection [2017] FCAFC 96 (BCR16) delivered on 13 June 2017, in relevantly the same circumstances. 5 The third ground was that the Assistant Minister failed to consider one of the applicant's representations in support of revocation of the visa cancellation decision and, as a consequence, the Assistant Minister denied the applicant procedural fairness or failed to take into account a relevant consideration. In particular, the applicant drew attention to his claim that he had serious mental health problems, which claim, he said, was not addressed by the Assistant Minister. 6 The fourth ground was that the decisions of the delegate and of the Assistant Minister were invalid because s 501(3A) of the Act, on which both decisions depended, was itself invalid because it purported to confer judicial power on the Minister, contrary to Chapter III of the Commonwealth Constitution. This ground was advanced in reliance on a proceeding pending in the High Court, namely, Falzon v Minister for Immigration and Border Protection (Case No S31/3017) (Falzon). 7 Pursuant to orders made on 16 May 2017, grounds 2 and 3 were listed for hearing on 15 June 2017. After hearing the parties that day, for the reasons then indicated, the Court refused the Minister's application for an adjournment to consider BCR16 and, in particular, whether the Minister would apply to the High Court for special leave to appeal. 8 The parties subsequently agreed that the first ground (the Tesic ground) should also be heard with grounds 2 and 3. The Court varied the orders previously made in this matter accordingly. I note that counsel for the applicant stated at the hearing that the applicant abandoned the fourth ground (the Falzon ground) in the event that the applicant succeeded on the second ground. 9 As I indicated after the hearing on 15 June 2017, the applicant's case under the second ground was relevantly indistinguishable from BCR16 and accordingly the Court granted the relief that the applicant sought. The Court ordered that:

Ground 1 11 In support of the Tesic ground, counsel for the applicant, Mr Knowles, referred to the applicant's written submissions and made a formal submission that the decision of the Full Court in Tesic was in error. Mr Knowles acknowledged, however, that Tesic was indistinguishable from the present case and binding authority so far as a single judge of the Court was concerned. 12 Mr Mosley, counsel for the Minister, relied on Tesic, to oppose the grant of relief on the first ground. 13 I accept, as I must, that the decision of the Full Court in Tesic governs the disposition of the first ground, which must therefore fail. In Tesic at [32]-[33] the Full Court held that the primary judge in that case had erred in upholding an identical ground in relevantly the same circumstances. Accordingly, the first ground relied on in this case cannot be sustained.

Ground 2 14 The parties also accepted that the present case was relevantly indistinguishable from the decision of the Full Court in BCR16. This is confirmed by reference to the relevant circumstances in this case and in BCR16. Ground 2 was therefore made out. 15 In this case as in BCR16, the applicant sought a favourable exercise of the discretion in s 501CA(4) of the Act to revoke the mandatory cancellation of his visa under s 501(3A). In BCR16, the applicant made claims to the effect that, by reason of his minority religious status and for other reasons, his own and his family's life would be in danger if returned to Lebanon. It may be accepted that these claims directed attention to Australia's international obligations, including non-refoulement obligations. 16 In the present case, the applicant made analogous claims. A letter dated 28 June 2016, which was written by Victoria Legal Aid on his behalf, noted that the applicant had been granted "a Refugee and Humanitarian visa on the basis that he was deemed to be owed protection by Australia". The letter stated that the applicant was a Christian of Assyrian ethnicity from Northern Iraq and that the "available country information on Iraq established that it has become an incredibly dangerous country for religious and ethnic minorities such as Assyrian Christians, who face persecution from both Islamic State as well as others". The letter stated that, in this context, if returned to Iraq, the applicant "would be a returnee from a western country with a long absence from Iraq"; and that "[t]his would render him extremely visible and vulnerable to persecution from Islamic [State]". The letter also noted that the province that the applicant was from in Northern Iraq had reportedly "one of the highest populations of internally [dis]placed persons (IDPs) in all of Iraq". The letter expressly submitted that the applicant was "owed protection by Australia as he has a well-founded fear of persecution in Iraq based on his Assyrian ethnicity; his Christian religion; [and] his membership of the particular social group of returnees from Western countries"; and further that he was "owed protection by Australia as there exist[ed] substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, there [was] a real risk that he will suffer significant harm in Iraq, in that he may be arbitrarily deprived of his life; or be subjected to torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment". 17 It is also convenient to note at this point that the letter submitted that: It is incumbent upon the decision maker to take into account that the existence of a "right" to apply for a protection visa does not guarantee that a visa will ultimately be granted. Nor does it guarantee relief from his immediate circumstances of detention. ... While the impact of long term confinement in immigration detention is not a matter that Direction 65 expressly requires be considered by a decision maker, it is highly relevant that [the applicant] has been in immigration detention at Christmas Island since December 2015. It is axiomatic that he faces the prospect of remaining in detention for a lengthy period while his visa status is determined. ... The situation for [the applicant] is analogous to that of NBMZ [see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1], in that there is no other country that [the applicant] could be removed to consistently with Australia's non-refoulement obligations, rendering him subject to indefinite detention in Australia as a legal consequence of the decision to refuse to revoke his visa cancellation. ... Given the current situation in Northern Iraq, it would be extremely dangerous for [the applicant] to locate there given his lack of tribal or familial connections. Furthermore, given [the applicant's] mental health issues, it is submitted that there would be a very real prospect that the mental health issues identified in the reports attached to this submission would go un-treated and deteriorate. 18 The passages in the Assistant Minister reasons that gave rise to jurisdictional error in BCR16 are set out in [16] of the joint reasons of Bromberg and Mortimer JJ in that case. The reasons of the Assistant Minister in this case contain a virtually identical passage. 19 Paragraphs [22] to [24] of the Assistant Minister's reasons for his decision in this case read as follows: International non-refoulement obligations 22. [The applicant] has made claims that may give rise to international non-refoulement obligations. [The applicant's] legal representative submits that [the applicant] "has well-founded fear of persecution in Iraq on the basis of his Assyrian ethnicity, his Christian religion and his membership of the particular social group of returnees from Western countries". 23. [The applicant's] legal representative submission [sic] also include that, [the applicant] would "suffer significant harm" if returned to Iraq and "he may be arbitrarily deprived of his life, or be subjected to torture or cruel and inhuman treatment or punishment, or degrading treatment". It is submitted [the province the applicant is from] is in the far Northern part of Iraq and has the highest populations of internally displaced persons in the world. It is further submitted that while [the applicant] may have the "right to apply for a protection visa there is no guarantee that a visa will ultimately be granted." 24. I note [the applicant] arrived in Australia on a Class BA Subclass 202 (Global Special Humanitarian) visa, and as such, [the applicant's] circumstances may give rise to international non-refoulement obligations. However, [the applicant] is able to make a valid application for another visa. In particular I note that [the applicant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of this decision. 20 Paragraph [24] above was not materially different from [19] of the Assistant Minister's reasons in BCR16, being that part of the Assistant Minister's reasons that gave rise to jurisdictional error. Regarding this part of the reasons of the Assistant Minister in BCR16, Bromberg and Mortimer JJ observed (at [62]) that, "the Assistant Minister formed a view she did not have to address, or turn her mind to, the risk of serious or significant harm that might be faced by the appellant on return to Lebanon because that could be dealt with through another process, if the appellant chose to apply for a protection visa". 21 In BCR16, after considering the decision of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Goundar), Bromberg and Mortimer JJ noted (at [66]) the appellant's submissions that "the Assistant Minister had misunderstood the course of any consideration of a protection visa application made by the appellant, and that issues concerning risk of harm might never be reached". Amongst other things, the appellant submitted, and their Honours accepted, that the Assistant Minister had wrongly "considered that non-refoulement obligations would 'necessarily' be considered in the event that the appellant was to make an application for a protection visa", when this was not the case: BCR16 at [66]-[67]. 22 The nature of the misunderstanding is apparent from their Honours' discussion of the Assistant Minister's approach to the risk of harm to the appellant if returned to Lebanon, appearing earlier in their reasons. 23 At [36]-[47], Bromberg and Mortimer JJ stated: Although the appellant accepts that the criteria for a protection visa at the relevant time specified in s 36(2) of the Migration Act were intended, at least in part, to give effect to Australia's non-refoulement obligations under the Refugees Convention, and under the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) and the ICCPR (International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)), he submits that there was, at the time of the Assistant Minister's decision, nothing in the Act or in the Migration Regulations 1994 (Cth) which governed the manner in which the Minister (or the Minister's delegates) were required to consider whether the criteria for a protection visa were satisfied, for the purposes of the task in s 65 of the Migration Act. There was, he submitted, nothing to govern the order in which the criteria needed to be considered. The logical consequence, the appellant submitted, was that the Minister and the Minister's delegates were free to decide the manner in which a protection visa application would be considered, the steps taken in that consideration, and the order in which criteria for a protection visa would be evaluated. That submission should be accepted. ... In decision-making on a protection visa application, satisfaction that the visa criteria are met, or not met, compels a result one way or the other. This point was made by Gummow J in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [136]: It is plain from the terms of the section that s 36(2) of the Act does not purport to cover "completely and exclusively" the criteria for the grant of a protection visa. Section 31(3) explicitly provides for the prescription by the Regulations of other criteria. It follows that an applicant to whom the Minister is satisfied Australia has protection obligations under the Convention yet may fail to qualify for a protection visa. (Footnote omitted.) And Hayne J at [180]: All the requirements of s 65(1) are important. It may be possible to refer, as the parties' arguments sometimes suggested, to some of them as positive (satisfying the health criteria) and others as negative (the grant "is not prevented" by certain considerations). But a distinction between positive and negative requirements or criteria is not helpful for present purposes. What is presently important is that s 65(1) directs attention to different requirements. See also Heydon J at [265]-[266]. More recently, in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 at [34], Crennan, Bell, Gageler and Keane JJ said: The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or 'jurisdictional facts') - the Minister's satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister's non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made (s 67). (Footnote omitted.) Thus, the Act envisages non-satisfaction of health criteria could result in a duty to refuse a visa. There is nothing in the scheme to prevent or preclude health criteria being examined first. Pertinently there is also nothing in the legislative scheme to prevent the character criteria to which s 65(1)(a)(ii) refers being considered first. The Minister or the Minister's delegates could decide to examine, first, the criteria in public interest criteria 4001 (which applies by reason of cl 866.225 of Schedule 2 to the Migration Regulations), and which provides: 4001 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. 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. ... In our opinion these aspects of the Act support the appellant's contentions on this ground of appeal. 24 At [48], Bromberg and Mortimer JJ accepted that the circumstances in which consideration of non-refoulement occurs were different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Act. Their Honours observed that the revocation power in s 501CA(4) was discretionary, and the risk of significant harm to the appellant would be a matter that the Assistant Minister would "weigh[] in the balance". Similarly, returning a person to a country where there was a real possibility of significant harm, or a real chance of persecution, where that may contravene Australia's non-refoulement obligations, was also "a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation". Their Honours noted (at [49]-[50]) that s 65 of the Act involved a qualitatively different exercise, saying: 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. For example, if the Minister is satisfied that the appellant has been "convicted by a final judgment of a particularly serious crime" and "is a danger to the Australian community" (the criterion in s 36(1C)(b)), then s 65 compels the Minister to refuse to grant a protection visa. Whether the risk of harm to the appellant in Lebanon might be real, it will avail the appellant nought if other visa criteria are found not to be satisfied. 25 In the present case, the Assistant Minister also misunderstood the likely course of decision-making under the Act. There is no relevant difference between the circumstances of the appellant in BCR16 and the applicant here. It was noted that the briefing note for the Minister in the applicant's case was slightly different in its terms. Importantly, however, it provided no analysis as to whether or not the Assistant Minister might consider the issue of Australia's non-refoulement obligations in the exercise of the discretion in s 501CA(4). Under the heading "International non-refoulement obligations" the briefing note merely stated: [The applicant's] legal representative submits [the applicant] was granted a Refugee and Humanitarian visa on the basis he was deemed to be owed protection by Australia. It is submitted that [the applicant] "has well-founded fear of persecution in Iraq on the basis of his Assyrian ethnicity, his Christian religion and his membership of the particular social group of returnees from Western countries". [The applicant's] legal representative also submits that [the applicant] would "suffer significant harm" if returned to Iraq and "he may be arbitrarily deprived of his life, or be subjected to torture or cruel and inhuman treatment or punishment, or degrading treatment". It is also submitted [the applicant] is of Assyrian ethnicity, he is Christian and is from [a province] which is in the far Northern part of Iraq and has the highest populations of internally displaced persons in the world. It is further submitted that while [the applicant] may have the "right to apply for a protection visa there is no guarantee that a visa will ultimately be granted". As counsel for the applicant submitted, there is nothing in the briefing note that contradicts the statement in the Assistant Minister's reasons that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant for the purposes of making a decision under s 501CA(4) because the applicant could make application for a protection visa, when this issue would arise for consideration. 26 In this case, as Bromberg and Mortimer JJ stated in BCR16 at [68]: 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. 27 It is plain enough that the applicant's case is not materially distinguishable from BCR16; and it follows that in this case too the Assistant Minister misunderstood the effect of the relevant provisions of the Act and misunderstood "the course of any consideration of a protection visa application made by the appellant, and that issues concerning risk of harm might never be reached": see BCR16 at [66]. 28 The applicant's case that there was jurisdictional error in the Assistant Minister's decision as identified in ground 2 was made out; and for this reason the Court made the orders it did after the hearing last week. 29 I note that, as in BCR16 so in this case, a second misunderstanding of the law on the Assistant Minister's part was also said to arise. This was that s 197C of the Act would also relevantly preclude any consideration of non-refoulement obligations. The applicant in this case contended that it was incumbent on the Assistant Minister to turn his mind to s 197C in the event of any refusal to revoke the visa cancellation decision but that his reasons indicated that he did not do so and, in consequence, that he misunderstood the relevant law. In BCR16 Bromberg and Mortimer JJ declined to rule on this submission, on the basis that it should await an appropriate case for consideration. So too, it being unnecessary to do so, I would not rule on this submission in this case.

ground 3 30 The applicant claimed, and the Assistant Minister did not dispute, that he had serious mental health problems. The applicant submitted that there was material before the Minister that showed that prolonged detention would adversely affect his already-poor mental health, but that the Minister did not refer at all to this potential impact of prolonged detention. Mr Knowles submitted that this was "a matter that ought to have been considered in the circumstances, given the fact that the representation was made as it being a reason why there should be revocation". Mr Knowles submitted that, bearing in mind that the Assistant Minister had in mind that the applicant could apply for a protection visa, the Assistant Minister ought to have considered the effect of prolonged detention on the applicant as he awaited the outcome of that further application. 31 In support of his submission that the Assistant Minister erred in failing to consider this issue, Mr Knowles referred to Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (Picard), where Tracey J, at [37]-[42], considered the requirements of procedural fairness in the context of decision-making under s 501CA of the Act, concluding (at [42]) that "[i]f, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it". Reference may also be made in this connection to Robertson J's observations in Goundar at [55]-[56]. 32 The Assistant Minister's submission was that, in the letter of 28 June 2016, to which reference has already been made, the applicant's representative did not claim that the Minister should consider the impact of any prolonged detention on the applicant's mental health. Rather, so the Assistant Minister said, the applicant's submission was that the Minister should consider the legal consequences of the decision not to revoke the mandatory cancellation and the possibility of indefinite detention constituted a mandatory consideration in his case. 33 The letter of 28 June 2016 referred to the applicant's "long-standing and unresolved serious mental health issues resulting from trauma, and substance abuse", which, so it was said, explained much of his offending. The letter referred to a significant amount of medical documentation about his mental ill-health, including that he suffered from psychosis, depression and a history of self-harm, and stated that he was "a regular user of mental health services while in prison". The letter further indicated that his mental illness was associated with his "experiencing war trauma before coming to Australia" occasioned by his forcible conscription into the Iraqi army at the age of 16. The letter affirmed that the applicant had "consistently and honestly divulged his traumatic past experiences, his addictions, and his mental health issues to health professionals, and has proactively sought the treatment available to him during his period of imprisonment". 34 In part, the resolution of this issue turns on whether the reference in the 28 June 2016 letter to "the impact of long term confinement in immigration detention" (see [17] above) was fairly read as a reference to the applicant's mental health. It may be recalled that the relevant passage read as follows: While the impact of long term confinement in immigration detention is not a matter that Direction 65 expressly requires be considered by a decision maker, it is highly relevant that [the applicant] has been in immigration detention at Christmas Island since December 2015. It is axiomatic that he faces the prospect of remaining in detention for a lengthy period while his visa status is determined. 35 Although it would have been clearer if the letter of 28 June 2016 had expressly mentioned the connection between the impact on the applicant's mental health and prolonged detention, since this would have prevented an issue of the present kind arising, the submissions made by the letter must be read in light of the information in the documents that accompanied the letter. There was information in the medical reports before the Assistant Minister indicating that prolonged detention would adversely affect the applicant's mental health, as evidenced in a medical report of 31 March 2016, stating that "prolonged detention will impact adversely upon [the applicant's] ... mental health". In these circumstances, it seems to me that the reference to "the impact of long term confinement" (emphasis added) on the applicant is fairly read as a reference to the potential impact on him, in fact, having regard to his mental health and any other pertinent personal circumstances. 36 Even if it be accepted that the impact of prolonged detention on an individual's mental health is not a mandatory relevant consideration in the exercise of discretion under s 501CA(4) of the Act, nonetheless the representations made by or on behalf of that individual as a whole constitute a mandatory relevant consideration: see Goundar at [55]. This may entail that, in having regard to the representations as a whole, the decision-maker attends to a representation of the kind in question here - namely, that potential prolonged detention would impact adversely on the already severely impaired mental health of the individual seeking revocation of the visa cancellation decision - and that a failure to do so constitutes jurisdictional error, whether understood as a failure to have regard to a mandatory relevant consideration or a breach of procedural fairness: compare Goundar and Picard. 37 It is, however, unnecessary to determine this point in this case, having regard to the fact that jurisdictional error is, in any event, established by ground 2.

ground 4 38 As stated earlier, since the applicant was successful on ground 2, he did not press ground 4. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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