Application of principles to the present case
48 The appellant's submissions focus on [118] of the Tribunal reasons, which has been set out above. In particular, the appellant highlights the second, third and fourth sentences, in which the Tribunal stated that: the effect of Direction 75 and subsequent Court decisions was that the appellant would have further avenues through which to pursue his refugee status in Australia; in those processes, Australia's non-refoulement obligations would be "assessed in a fulsome manner"; and that this limited the extent to which the non-refoulement obligations in this matter favoured revocation. In the appellant's submission, these statements demonstrate that the Tribunal failed to engage with, or take into account, the appellant's representations regarding "another reason" for revocation of the cancellation decision.
49 The appellant relies on the statement of the primary judge at [17] that the Tribunal, at [118], "chose to do no more than acknowledge that the 'effect of Direction No 75 and subsequent Federal Court decisions is such that the applicant will have further avenues through which he can pursue his refugee status in Australia'".
50 The appellant submits that the error in the Tribunal's reasoning at [118] is similar to the error considered by the Full Court in BCR16 and very similar to the error considered by Mortimer J in Omar (first instance). It is submitted that, for the same reasons as relief was granted in those cases, the relief sought by the appellant in this case should have been granted by the primary judge. The appellant submits that the primary judge fell into error by not following Omar (first instance) and by failing to hold that the Tribunal failed to consider all of the matters (including factual matters) that the appellant had represented would be (or would be part of) a "reason" for revoking the cancellation decision, namely non-refoulement obligations and the claim to fear harm.
51 The appellant submits that: his representations in this case raised the question whether non-refoulement obligations were engaged; the Tribunal acknowledged this at [114], but then failed to properly consider the representations, instead deciding that the effect of Direction 75 was that they would be considered in a protection visa context; and the Tribunal failed to give active, intellectual consideration to the relevant matters.
52 In our view, contrary to the appellant's submissions, the Tribunal did consider (in the sense of meaningfully engage with) the relevant representations, whether these be characterised as representations that Australia owed non-refoulement obligations in respect of the appellant or as representations that the appellant feared harm if he were returned to Myanmar on the bases set out in the documents submitted to the delegate or the Tribunal. Critically, in the section of its reasons at [105]-[118], the Tribunal:
(a) set out the thrust of the appellant's representations in this regard (at [105]-[107]);
(b) noted that the appellant had been granted a Refugee (Subclass 200) visa, and thus it seemed likely that "there has already been an assessment that Australia owed [the appellant] non-refoulement obligations on the basis of those refugee claims" (at [114]);
(c) stated that, while the Minister's representative in the Tribunal proceeding had sought to test the appellant's evidence about apprehension of harm were he returned to Myanmar, "it seems those claims were nevertheless sufficient for [the appellant] to satisfy the [Minister's] predecessor on or prior to December 2011 that his claims for a refugee visa were genuine" (at [115]);
(d) found that the appellant's evidence about his fear of harm were he returned to Myanmar was "unconvincing" (at [115]);
(e) noted that: in response to the specific question as to who exactly would harm him upon return, the appellant had answered vaguely, "the army"; in response to a question about how that harm would occur, the appellant had responded that he would be forced to join the army and consequently would be forced to commit violence against other people; in response to a question whether the army or anyone else in Myanmar had ever harmed him, his parents or anyone else within his social or family circle, the appellant had responded in the negative; and the appellant's evidence as to his apprehension or fear of harm were he to be returned to Myanmar crystallised in a possibility that he would be asked to join the army and possibly ordered to do things he did not want to do (at [116]);
(f) observed that the appellant's apprehension or fear in that regard was "a separate and distinct thing from the army (or anyone else in Myanmar) directly inflicting harm" on the appellant (at [116]);
(g) dealt with evidence given by the appellant to the effect that, if returned to Myanmar, he would not be able to be identified or would not have any identity (at [117]); and
(h) stated that, on the balance of the evidence, this factor should weigh in the appellant's favour to some extent, but not heavily (at [118]).
53 These aspects of the Tribunal's reasoning demonstrate, in our view, that the Tribunal did meaningfully engage with the representations made by the appellant concerning Australia's non-refoulement obligations and relating to the risk of harm to the appellant if he were returned to Myanmar. The Tribunal's discussion of the relevant representations and the evidence of the appellant in connection with those representations demonstrate that the Tribunal brought an active intellectual process, and gave proper, genuine and realistic consideration, to these matters. Accordingly, in our view, the Tribunal did consider the appellant's representations.
54 It is true that, in the second, third and fourth sentences of [118], the Tribunal noted that it was open to the appellant to apply for a protection visa and, if he did so, these matters would be assessed in a fulsome manner, and stated that this "limits the extent to which the non-refoulement obligations in this matter favour revocation". However, these statements do not detract from the proposition that the Tribunal meaningfully engaged with the relevant representations and the evidence presented in connection with those representations. Further and in any event, any error by the Tribunal in this regard was not material, in the sense that it could not realistically have affected the outcome. The Tribunal had already concluded in the first sentence of [118] that, on the balance of the evidence, this factor (non-refoulement obligations) weighed to some extent, but not heavily, in the applicant's favour. The Tribunal's statements in the second, third and fourth sentences of [118] were merely further reasons for reaching that view.
55 It may perhaps be asked why, given its critical evaluation of the appellant's evidence, the Tribunal concluded that this factor (non-refoulement obligations) weighed even "to some extent" in the appellant's favour. The reason why the Tribunal so concluded would appear to be that the appellant had earlier received a favourable assessment of his refugee claims. On this basis, the Tribunal was prepared to conclude that this factor weighed "to some extent" in the appellant's favour.
56 Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits - and not judicial - review.
57 In the present case, where the representations were expressed in somewhat general terms, it was appropriate for the Tribunal to focus on the appellant's evidence at the Tribunal hearing. It is true that the Tribunal did not in terms make findings as to whether Australia owed non-refoulement obligations in respect of the appellant or as to the harm that he feared if returned to Myanmar. However, the first sentence of [118], in which the Tribunal stated that this factor should weigh in the appellant's favour to some extent, but not heavily, was a conclusion in relation to this factor. Given the appellant's evidence at the hearing, it is difficult to see what more the Tribunal could or should have done in dealing with the appellant's representations concerning non-refoulement obligations and his fear of harm if returned to Myanmar.
58 Further, on the facts of the present case, to the extent that the appellant raised a claim to fear harm independently of any non-refoulement obligations, that claim was adequately considered by the Tribunal.
59 If and to the extent that the primary judge took the view that the Tribunal did not consider the relevant representations (see the Reasons at [17] and [20]), for the reasons given above we respectfully disagree. In our view, the Tribunal meaningfully engaged with the relevant representations.
60 The appellant relies on the judgment of Mortimer J in Omar (first instance), particularly at [44]-[45] (set out above). In Omar (first instance), Mortimer J accepted the applicant's contention (based on BCR16 at [48]-[52], [73] and [94]) regarding the "different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared with their role as, in effect, incidents of one criterion (the 'protection criterion') in the requirements for the grant of a protection visa": Omar (first instance) at [43]; see also [44]-[45]. Her Honour held that, on the facts of that case, the Assistant Minister did not appreciate "the very different task conferred on him by s 501CA(4)", and that "the task of considering whether there was 'another reason' to revoke the visa cancellation required consideration of all other 'reasons' put forward in the representations made by the applicant's representatives (or at least, all those seriously and substantively advanced)": Omar (first instance) at [46]. We note that the Full Court in Omar (FFC) did not need to consider the correctness of this aspect of the reasons at first instance, as it dismissed the appeal on the basis of a notice of contention.
61 The appellant's submission is that the Tribunal, in the fourth sentence of [118], made a comparable error to that identified in Omar (first instance). In our view, for the reasons given at [54] above, if the Tribunal made any such error, it was not material in the circumstances of this case. Accordingly, it is unnecessary to determine whether Omar (first instance) at [44]-[45] is correct.
62 For these reasons, we reject the appellant's grounds of appeal. To the extent indicated above we uphold the Minister's notice of contention. It follows that the appeal is to be dismissed. In relation to costs, it was accepted at the hearing that, at least if the appellant was unsuccessful, costs should follow the event. Accordingly, we will also make an order that the appellant pay the Minister's costs of the appeal.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Griffiths and Moshinsky.