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[2016] FCAFC 105
respondent. The appeal be dismissed. The appellant pay the respondent's costs, as agreed or assessed.
A young man who came to Australia from Sudan as a refugee at age 16 later committed many crimes, including serious violent assaults. The Immigration Minister cancelled his visa because of his criminal record. The man argued the decision was unreasonable because he had lived here a long time, had family here, was starting to rehabilitate, and might not be able to be sent back to the new country of South Sudan, leaving him in detention forever. He also said the Minister should have treated him as a formal refugee. The court said the Minister had looked at all those things in the papers provided, had accepted official assessments that South Sudan would take him back, and that the visa did not mean he had been officially recognised as a refugee under the international rules. The decision was reasonable, so the appeal was dismissed and he must pay the Minister's legal costs.
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2 cited instruments linked from this judgment.
The appellant, known by the pseudonym AZAFQ, arrived in Australia on 22 October 2003 at the age of 16 holding a Class XB subclass 200 (Refugee) visa granted on 26 August 2003. The visa was issued to him as a member of his mother's family unit; his mother had been assessed as a woman at risk. He had been born in Khartoum (then Sudan) and had never lived in what became South Sudan. From 2005 onward he accumulated a substantial criminal record of approximately 70 offences, culminating in two tranches that triggered visa cancellation consideration. In July 2010 he was sentenced to 12 months and 21 days' imprisonment for five counts of aggravated assault, three assaults on police and one aggravated assault causing harm after an intoxicated incident on a bus. In March 2012 he received a sentence of four years and four weeks' imprisonment with a three-year-three-month non-parole period for aggravated assault causing harm with intent, in which he and his brother pursued and bashed a victim with a baseball bat.
Notices of intention to consider cancellation (NOICCs) were issued in August 2011 and September 2013. The appellant responded with extensive material, including submissions that he faced a real risk of targeting in South Sudan on ethnic or imputed political grounds, that Australia owed him complementary protection, and that country information showed ethnic violence. Two International Treaties Obligations Assessments (ITOAs) dated 28 April 2014 and 23 June 2014 concluded that South Sudan would accept him as a citizen, that it was reasonable for him to relocate to Juba, and that Australia did not owe him non-refoulement obligations.
On 23 October 2014 the Minister personally cancelled the visa under s 501(2) of the Migration Act 1958 (Cth). The Statement of Reasons (particularly [12]-[18] and [36]-[41]) recorded that the Minister had regard to the appellant's difficult childhood, remorse, completion of a Violence Prevention Program, family support and courses undertaken, but weighed these against his lengthy criminal history, breaches of judicial orders, untested abstinence in the community and the unacceptable risk of further violent offending. The Minister concluded that protection of the Australian community outweighed the appellant's ties, remorse, rehabilitation and the best interests of minor siblings.
The appellant sought judicial review in the Federal Court, arguing the decision was vitiated by jurisdictional error on three bases: (a) failure to evaluate the likelihood of re-offending, (b) failure to consider the realistic possibility of indefinite detention because South Sudan might not physically accept him, and (c) (added on appeal) failure to address his pre-existing refugee status. The primary judge dismissed the application in AZAFQ v Minister for Immigration and Border Protection [2015] FCA 681, holding that the Minister had considered risk and had accepted the ITOAs which provided a rational basis for return. On appeal the Full Court (Allsop CJ, Robertson and Griffiths JJ) heard argument on 1 April 2016, adjourned to permit an amended notice of appeal raising a new ground concerning refugee status, and on 10 August 2016 received supplementary submissions. On 17 August 2016 the Court delivered judgment dismissing the appeal with costs. The Court held that the Minister's reasons disclosed an intelligible justification, that the ITOAs answered the indefinite detention claim, and that the appellant had never been determined to be a refugee under Art 1A of the 1951 Convention; the subclass 200 visa had been granted on secondary family-unit criteria only.
The Full Court decided the appeal must be dismissed because none of the three amended grounds revealed jurisdictional error in the Minister's decision or appealable error in the primary judge's analysis. The reasoning is grounded in a close reading of the Minister's Statement of Reasons and the statutory scheme.
On legal unreasonableness (ground 1), the Court applied the principles from Minister for Immigration and Citizenship v Li [2013] HCA 18 that a decision lacks an evident and intelligible justification where no reasonable decision-maker could have made it. Because the Minister gave reasons, the Court examined those reasons rather than the merits (citing Minister for Immigration and Border Protection v Singh at [47]). The reasons at [12]-[18] explicitly balanced mitigating factors (childhood trauma, remorse, rehabilitation, family support) against aggravating ones (70 offences, prior breaches, untested abstinence) and concluded at [39] that the appellant posed an "unacceptable risk". That evaluative judgment supplied the necessary intelligible justification. The Court rejected the contention that the Minister had considered only the risk "should he re-offend" and not the likelihood; the reasons showed both limbs were weighed. The Court also held that no duty existed to quantify risk by percentage or particular adjective (following Moana at [71] and Ayoub at [44]; Brown at [41]).
The cumulative personal circumstances (arrival at 16, no ties to South Sudan, rehabilitation, family impact) did not render the outcome unreasonable. The Court distinguished Stretton on the basis that the present facts still allowed the Minister rationally to prefer community protection. The passing reference in the reasons at [37] to remaining in Australia as a "privilege" was read in context; the reasons as a whole showed the Minister had turned his mind to protection obligations and accepted the ITOAs (applying Wu Shan Liang). The Court noted the caution expressed in Stretton at [26] and [70(d)] and Fardon at 611 that aliens are not outlaws, but found no jurisdictional error on the facts.
Ground 2 (indefinite detention) failed because the ITOAs contained an express finding that "South Sudan will accept the [appellant] as a citizen". That finding, accepted at [30] of the reasons, was made in the context of non-refoulement analysis and necessarily addressed physical return. The primary judge's analysis at [29]-[39] was endorsed. The Court rejected the submission that separate positive evidence of physical acceptance was required; the ITOA findings supplied the rational basis.
Ground 3, raised for the first time on appeal, rested on a "false premise" that the appellant held refugee status under Art 1A. The Court examined the Migration Regulations at the relevant time. Clause 1402 of Sch 1 required applications to be made outside Australia. Subclass 200 primary criteria in cl 200.211 required the primary applicant (the mother) to be subject to persecution or meet alternative criteria, with compelling reasons for special consideration. Secondary criteria in cl 200.311 and 200.321 required only that the applicant be a member of the family unit. No Art 1A assessment of the appellant himself was required or evidenced. The Court adopted the reasoning in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 47 at [22] that holding a Class 200 visa does not logically entail that Australia owes, or once owed, protection obligations under the Convention. The visa was not a protection visa under s 36. The ITOAs had assessed the appellant against Art 1A and found he did not engage protection obligations; the Minister accepted those assessments. No obligation therefore arose to determine cessation under Art 1C. The Court noted that the appellant could still apply for a protection visa under s 501E(2)(a), which would require a fresh assessment.
The disposition followed: the appeal was dismissed because the Minister's decision was open on the material, the reasons disclosed no legal unreasonableness, and the mandatory considerations alleged were either addressed or not mandatory in the manner contended.
Before this decision the law contained acknowledged tension about the content of the Minister's discretion under s 501(2). Mortimer J in Tanielu had held that the risk of harm to the Australian community is a mandatory relevant consideration and that the decision-maker must evaluate both the likelihood of re-offending and the gravity of harm. The majority in Moana (North and Rangiah JJ) approved the first limb but expressed doubt about any obligation to evaluate static and dynamic factors in every case. Jessup J in dissent considered that risk of harm is not mandatory; the Minister could validly decide on the basis of the character test failure alone. Huynh 2 (Kiefel and Bennett JJ) had earlier held that the Minister is not bound to consider factors personal to the visa holder. Ayoub noted the unresolved tension; Roesner and Brown likewise left it unresolved where the reasons showed the Minister had in fact considered risk.
This judgment did not resolve the tension. Instead it followed the pragmatic course taken in Ayoub, Roesner and Brown: even assuming risk is mandatory, the Minister's reasons at [12]-[18] and [36]-[41] showed it had been considered by evaluating both likelihood and consequences and labelling the risk "unacceptable". The judgment therefore reinforced that, provided the reasons demonstrate an intelligible weighing, the precise metes and bounds of mandatory considerations need not be decided.
On refugee status, the law was settled by Huynh 1 and Huynh 2 that a Class 200 visa granted to a secondary applicant does not equate to a determination of refugee status under Art 1A. The present judgment applied that directly to the subclass 200 (Refugee) visa and clarified that the ordinary English meanings of "refugee" and "persecution" in the criteria are not confined to the Convention definitions. The distinction between humanitarian visas granted offshore under s 31 and protection visas under s 36 was emphasised. After the decision the law remained that personal exercise of s 501(2) does not oblige the Minister to consider non-refoulement (though he may), but if ITOAs are placed before him and accepted, they can answer claims of indefinite detention. The availability of a subsequent protection visa application under s 501E(2)(a) was confirmed as a relevant legal consequence that prevents automatic removal or indefinite detention.
Paragraph [1] cites Brennan J in Re Pochi: "When an alien has been resident in this country for many years, when his roots are deep in Australia and the ties which bind him to Australia are strong, a clear case will be required to persuade the decision-maker that it is in the best interests of Australia to banish him from our shores." Plain English: Even though this case is about visa cancellation rather than deportation after merits review, the Court reminds everyone that kicking out a long-term resident is a big deal that needs strong justification.
Paragraph [30] of the Minister's reasons (extracted at judgment [44]): "I had regard to the findings of an International Treaty Obligations Assessment... The finding of each assessment was that [the appellant] was not owed non-refoulement obligations. I had regard to the fact that [the appellant's] representative disputes the findings of these assessments. I accept the findings..." Plain English: The Minister read the official assessments saying Australia does not have to protect this man from return to South Sudan and decided those assessments were correct despite the man's objections.
Paragraph [48]: "In accordance with well-known and often cited authority (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), the Minister's reasons should be read as a whole and without an eye keenly attuned to detecting error." Plain English: Do not cherry-pick one word like "privilege" and treat it as a fatal mistake; look at the whole document fairly.
Paragraph [37] (adopting Huynh 1 at [22]): "As the above discussion reveals, it does not logically follow from the fact that the respondent once held a Class 200 visa that he is a person to whom Australia owes, or once owed, protection obligations under the Refugees Convention." Plain English: Just because the visa has the word "Refugee" in its title does not mean the man was ever officially found to be a refugee under the international treaty rules.
Paragraph [59]: "Viewed in context, these findings (which the Minister accepted and acted upon) went further than merely stating that South Sudan would view the appellant to be a citizen of that country... This finding, properly understood, meant that the Departmental officer was satisfied that the appellant could physically be returned to South Sudan." Plain English: When the ITOA said South Sudan "will accept" him as a citizen, that was enough to show the Minister could lawfully expect removal, so indefinite detention was not a realistic outcome the Minister had to address separately.
This precedent is triggered where the Minister personally cancels a visa under s 501(2) on character grounds and the visa holder challenges the decision on judicial review alleging legal unreasonableness, failure to consider risk of re-offending, risk of indefinite detention, or failure to address alleged refugee status. It applies with particular force where the visa is a humanitarian visa granted offshore to a secondary family-unit applicant, an ITOA has been completed concluding no non-refoulement obligations and that the receiving country will accept the person, and the Minister's reasons expressly refer to those ITOAs, evaluate criminal history against rehabilitation factors, and conclude that the risk to the community is unacceptable. The precedent confirms that a realistic possibility of indefinite detention is answered by an ITOA finding that the receiving state "will accept" the person as a citizen when that finding forms part of a non-refoulement analysis. It is also engaged where the visa holder relies on the name "Refugee" in the visa class to assert pre-existing Convention refugee status; the Court will examine the actual criteria applied at grant (cll 200.211, 200.311) rather than the label. The judgment applies to any case in which the Minister's reasons, read fairly as a whole, show consideration of the matters now said to have been ignored.
The judgment itself treats earlier authorities in a particular way that later courts would be expected to follow. It treats Li, Singh, Stretton and Eden as setting the legal unreasonableness test and the requirement to examine the Minister's reasons for intelligible justification. It treats Moana, Ayoub and Brown as establishing that, even if risk of harm is mandatory, it is unnecessary to resolve the tension with Huynh 2 where the reasons show the Minister evaluated both likelihood and consequences of re-offending and labelled the risk "unacceptable". It applies Huynh 1 and Huynh 2 directly to reject the proposition that a subclass 200 (Refugee) visa carries with it Convention refugee status for a secondary applicant. It treats Wu Shan Liang as requiring reasons to be read holistically rather than with an eye for error, allowing the word "privilege" to be read in context. It treats the ITOA process as supplying a rational basis for concluding that removal is reasonably practicable, thereby answering indefinite-detention arguments. Because the judgment leaves the mandatory-consideration tension unresolved in the same manner as Ayoub, Roesner and Brown, later courts are guided to adopt the same pragmatic course when faced with similar statements of reasons.
The judgment expressly leaves open the "unresolved tension" between the majority in Moana (risk of harm is mandatory) and the views in Huynh 2 and Jessup J's dissent in Moana (risk is not mandatory and the Minister may decide solely on the character test failure). It does not decide whether personal exercise of s 501(2) can ever be unreasonable merely for failure to evaluate "static and dynamic factors" personal to the visa holder. It leaves for another day the precise content of any obligation to consider the legal consequences of cancellation where an ITOA is qualified or where country information changes after the ITOA. Although the Court notes that a protection visa application remains open under s 501E(2)(a), it does not decide what weight (if any) the Minister must give to that possibility in the original s 501(2) decision. The interaction between s 501 cancellation and complementary protection obligations under s 36(2)(aa) where the person later applies for a protection visa is not determined. Finally, the judgment does not address whether the Minister, when personally deciding under s 501(2), must independently verify an ITOA rather than simply "accept the findings". These questions remain for subsequent Full Court or High Court determination.
THE COURT: 1 This is another in a long line of cases which have come before the Court arising from a decision of the Minister (or his or her delegate) to cancel a person's visa under s 501(2) of the Migration Act 1958 (Cth). It is not surprising that such decisions have given rise to so much litigation (in this Court and in the Administrative Appeals Tribunal (AAT)). Many of the decisions affect visa holders who have lived in Australia for a long time and have developed strong family and other connections here. In many cases the visa-holder's family includes individuals who are Australian citizens and whose interests will be significantly and dramatically affected if the visa holder is removed from Australia. The potentially serious ramifications of cancelling a person's visa were emphasised by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 255 when, as the foundation President of the AAT, his Honour said: When an alien has been resident in this country for many years, when his roots are deep in Australia and the ties which bind him to Australia are strong, a clear case will be required to persuade the decision-maker that it is in the best interests of Australia to banish him from our shores. These observations were directed to the Minister's decision under s 12 of the then Migration Act to deport a non-citizen of Italian origin who had lived in Australia for over 20 years and was convicted of a drug offence. The observations were made in the context of the AAT conducting a merits review of the Minister's deportation decision. 2 Whilst acknowledging that the appeal to this Court relates to a differently-worded provision and, significantly, does not relate to a merits review, Brennan J's observations in Pochi are apposite in highlighting the potentially significant impact on an individual and her or his family if, by executive action, she or he is forced to leave Australia. 3 The primary issue in this appeal is whether the primary judge erred in rejecting the appellant's claim in judicial review proceedings that the Minister's decision to cancel the appellant's visa under s 501(2) of the Migration Act was vitiated by jurisdictional error.
Background facts 4 The appellant, who is 29 years old, arrived in Australia from Egypt on 22 October 2003, when he was aged 16, and held a Class XB Refugee and Humanitarian subclass 200 (Refugee) visa which had been granted on 26 August 2003 (the visa). It appears that the appellant's mother had also been granted a similar visa and that the appellant and some of his siblings were granted subclass 200 (Refugee) visas as members of her family unit. It will be necessary to pay close attention below to the criteria and requirements at the relevant time for a person to be granted such a visa. The appellant was born in Khartoum (which is now in the Republic of Sudan). He has lived in Australia since October 2003 and has never left this country. 5 It was not disputed that the appellant has a substantial criminal record in Australia. Since 2005 he has come before the courts in relation to approximately 70 offences. As will shortly emerge, there were two significant tranches of offences which gave rise to the Minister considering whether or not to cancel his visa. Putting those offences to one side for the moment, the appellant did not dispute the accuracy of the following summary by the Department of Immigration and Border Protection of his migration history and criminal record (which record commenced just under two years after he had come to Australia): Date Event details 22/10/2003 Arrived in Australia on Class XB Subclass 200 (Refugee) visa 16/09/2005 Burglary and unlawful assault - without conviction: adjourned to be of good behaviour for 12 months 19/01/2006 Driving at dangerous speed, failing to comply with request to stop vehicle and unauthorised person drive vehicle - convicted: fined $300 and licence disqualified for 12 months. Drive vehicle without consent (2 charges) - without conviction: released on entering bond of $300 to be of good behaviour for 12 months, licence disqualified for 12 months. Disorderly behaviour - without conviction: adjourned to be of good behaviour for 12 months. 07/03/2006 Drive under the influence - pending charge. 12/04/2006 Assault police - without conviction: released on entering bond of $750 to be of good behaviour for 12 months. 21/03/2007 Estreatment of bail - found proved. Estreatment $800 06/07/2007 Fail to comply with bail agreement - without conviction: proved with no penalty imposed. 28/02/2008 Estreatment of bail - found proved. Estreatment $1000. 03/03/2008 Estreatment of bail - found proved. Estreatment $500. 19/03/2008 Disorderly conduct - convicted. Fined $400. 22/08/2008 Refused to state name and address, carry offensive weapon, disorderly conduct (2 charges) and offensive language - convicted: no penalty imposed. 22/08/2008 Commit assault and failed to comply with bail agreement - convicted: fined $200. Carry offensive weapon - convicted: fined $200. Consume liquor in public place and disorderly behaviour - convicted: fined $175. 24/10/2008 Damage property, fail to comply with bail agreement and trespassing - convicted: fined $350. 02/01/2009 Fail to comply with bail agreement - convicted: no penalty imposed. 12/05/2009 Fail to comply with bail agreement - convicted: no penalty imposed. 01/09/2009 Disorderly behaviour, fail to comply with direction to leave vehicle or premises, loitering and hinder police - convicted: no penalty imposed. Commit assault, aggravated use of offensive weapon fail to comply with bail agreement (4 charges) and carry an offensive weapon - convicted: imprisonment of 4 weeks, suspended sentence. Released on entering bond of $200 to be of good behaviour for 12 months. 24/09/2009 Fail to comply with bail agreement (4 charges) and use or threaten unlawful violence - convicted: fined $400. Disorderly behaviour and fail to comply with bail agreement (2 charges) and loitering - convicted: no penalty imposed. 20/07/2010 Disorderly behaviour (2 charges), damage to building or vehicle. Fail to comply with bail agreement (7 charges), loitering, fighting, state false personal details and resist police - convicted: no penalty imposed. 20/07/2010 Commit assault - aggravated offence (5 charges), assault police (3 charges), commit assault causing harm - aggravated offence - on all charges: imprisonment for 12 months and 21 days. 20/06/2011 Fail to comply with bail agreement - convicted: no penalty imposed. 09/08/2011 Notice of Intention to Consider Cancellation (NOICC) of his Class XB Subclass 200 (Refugee) visa issued. 09/03/2012 Breach of suspended sentence imposed 1 September 2009 - breach proven: suspended sentence reinstated. Imprisonment for 4 years 4 weeks. Non-parole period of 3 years and 3 months. 25/09/2013 Second NOICC of his Class XB Subclass 200 (Refugee) visa issued.
6 It is convenient to say a little more about the two significant groups of offences which triggered the Minister's consideration of cancelling the appellant's visa under s 501(2) of the Migration Act. On 20 July 2010, the appellant was sentenced in the Adelaide Magistrates Court for five offences of aggravated assault, three offences of assaulting police and one offence of aggravated assault causing harm. The five offences of aggravated assault occurred in circumstances where the appellant, who was boisterous and intoxicated, assaulted five members of the public who were travelling on a bus and asked him to quieten down. The appellant was sentenced to a term of imprisonment for 12 months and 21 days. This sentence triggered the first of two notices given to the appellant by the Department that consideration was being given to cancelling his visa. 7 On 9 March 2012, the appellant was convicted in the District Court of South Australia for the offence of aggravated assault causing harm with intent to cause harm and was sentenced to four years and four weeks imprisonment. That offence was committed in early April 2010 in circumstances where the victim was a visitor to the home of the appellant and his younger brother. The victim was prompted to leave the home after the appellant's brother began to bully him. The appellant and his younger brother pursued the victim for some distance before catching him. The appellant's younger brother then struck the victim on the head with a baseball bat, fracturing his skull. The sentencing Judge considered that there was no difference in the culpability of the appellant and his younger brother. A non-parole period of three years and three weeks was imposed on the appellant. On 25 September 2013, the Department gave him a second notice that consideration was being given to cancelling his visa. He was invited to respond. He did so, with assistance from the Legal Services Commission of South Australia. Extensive materials were provided to the Department in several tranches in support of his visa not being cancelled, including written submissions, a statutory declaration from his mother, a testimonial from the Lakes Community Welfare Association of SA Inc, updated country information and evidence that the appellant had completed a Violence Prevention Program in June 2014. 8 Several submissions were made on the appellant's behalf, the thrust of which was to contend that the appellant should not be sent to the Republic of South Sudan (where he had never lived) because of what was described as "a real risk" that he "could be targeted on the basis of his ethnicity or his imputed political opinion in South Sudan". It was further submitted that the appellant would be at risk if he was sent anywhere in South Sudan, including the capital Juba. It was also submitted that, in view of the dangerous and violent conditions in South Sudan, including the potential for serious violence along tribal lines, Australia owed him complementary protection obligations. Various media reports concerning the nature and extent of the ethnic conflict in South Sudan around mid-2014 were provided in support of these submissions.
The Minister's decision under s 501 of the Migration Act 9 Section 501 of the Migration Act, as in force at the relevant times, provided (relevantly): … (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. … (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 … (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 … 10 It is notable that the legislation did not contain an explicit list of factors to be considered in determining whether, in the exercise of the discretion under s 501(2), the relevant offender's visa should be cancelled. The Minister's discretion is broad, but that is not to say that it is unreviewable by the Court. Some of the relevant principles applicable to judicial review of the Minister's discretion for jurisdictional error, including legal unreasonableness, were considered recently by the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28. 11 On 23 October 2014, the Minister personally decided to cancel the appellant's visa. He did so after stating that he had considered the detailed submission prepared by his Department which, among other things, summarised matters which had been raised by or on behalf of the appellant in favour of not cancelling his visa. Copies of the materials provided by the appellant to the Department were enclosed in the Ministerial brief. The submission also contained two Departmental assessments dated 28 April 2014 and 23 June 2014 respectively which considered whether Australia owed non-refoulement obligations to the appellant. In both assessments (which are known as "International Treaties Obligations Assessments") (ITOAs), the Departmental officer who conducted both assessments concluded that he was satisfied that South Sudan will accept the appellant as a citizen if he were returned there and that it was reasonable for him to relocate to Juba, the capital of South Sudan, even though it was acknowledged that there were other places in South Sudan where he would not be safe. 12 The Minister provided a document titled Statement of Reasons for Cancellation of Visa under Subsection 501(2) of the Migration Act 1958, dated 23 October 2014. Because of their relevance to the appeal, it is desirable to set out in full [12] to [18] of that statement of reasons, which address inter alia the issue of the risk of the appellant re-offending (emphasis added): Mitigating factors and risk of re-offending 12. I had regard to [the appellant's] very difficult childhood, in Sudan, as a member of a minority group, and as a refugee. I accepted the findings of the Magistrates' and District Courts that [the appellant's] childhood experiences of family dislocation, violence, racism and persecution, and his difficulty in settling in Australia, have contributed to his abuse of alcohol and other drugs, and I noted he was found to meet the diagnostic criteria for an Adjustment Disorder with Mixed Depressed Mood and Disturbance of Conduct, although this issue was not take up by [the appellant] or his representative. 13. When [the appellant] was most recently sentenced, in March 2012, he was found to pose a high risk of re-offending, and to lack insight into the role of alcohol as a factor in his criminal conduct. 14. [The appellant] has breached numerous judicial orders. This was described by a Magistrate in 2010 as [the appellant's] "failure to comply with any measures imposed by the police and the court to stop [him] re-offending". Since these comments were made to him, [the appellant] has failed to comply with a bail agreement and had a suspended sentence of imprisonment reinstated. 15. I accepted that [the appellant] is genuinely remorseful for his offending, and I had regard to rehabilitation and other activities undertaken by [the appellant], in gaol. [The appellant] voluntarily attended a nine month Violence Prevention Program, which he states he has found to be very beneficial. He has also undertaken courses in literacy and numeracy. 16. During the course of two periods of imprisonment, [the appellant] has returned eight positive test results from 13 drug tests administered. [The appellant] claims to have ended his abuse of drugs and alcohol, in prison. [The appellant] claims to realise he is "better off" abstinent and [the appellant] intends to remain abstinent, in the community. [The appellant] last returned a positive test result in November 2011, the only positive test result during his current custodial episode. I considered that this occurred early in his period of imprisonment and is not wholly inconsistent with his claims to have ceased his abuse of substances. However, I also noted his previous, largely unsuccessful attempt at rehabilitation and abstinence in the community and I concluded that his ability to remain abstinent upon release from prison in 2014 is untested. 17. [The appellant] has the strong support of family members and some community support available to him. He has expressed his willingness to undertake any programs required of him as a condition of his parole. [The appellant] intends to study in order to complete his welding qualifications, and to work part-time. His mother is willing to assist him, while he finds a course of study and employment. 18. I considered that [the appellant's] current correctional experience, his lengthy period of abstinence in prison, the courses of education and rehabilitation undertaken by him, his current age, his access to stable accommodation and his renewed family and community support are all factors which will serve to reduce the risk of his re-offending. However, having regard to his lengthy criminal history which contains previous violent offences, his numerous past breaches of judicial orders and his untested ability to refrain from substance abuse in the community, I found that [the appellant] poses an ongoing risk of re-offending. 13 Paragraphs 36 to 41 of the statement of reasons contain a summary of the Minister's reasons for cancelling the visa (emphasis added): 36. I considered all relevant matters including (1) an assessment against the character test as defined by subsection 501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of [the appellant]. 37. [The appellant's] offending is contrary to the Australian community expectations that visa holders respect and abide by Australian laws, values and standards. A non-citizen who has committed serious, violent offences should generally expect to forfeit the privilege of remaining in Australia. 38. [The appellant's] representative submits that a higher level of risk should be tolerated in [the appellant's] case, due to the length of time he has spent in Australia and in recognition of strong humanitarian considerations. Australia has a low tolerance of criminal or serious conduct by people who have been participating in, and contributing to, the community for a short period of time, but may afford a higher level of tolerance to a non-citizen who has lived in Australia for most of his life, or from a very young age. [The appellant] has not spent most of his life in Australia. He arrived when he was aged 16 and his offending behaviour commenced after he had lived in Australia for less than two years. Although I believe that the Australian community would have some sympathy for [the appellant's] situation in South Sudan, on balance I do not consider that it is appropriate for the community to afford him a higher level of tolerance. 39. I formed the view that [the appellant] poses an unacceptable risk of harm to the Australian community. He has caused ongoing harm to at least one of his victims. If he were to commit further violent offences, his victims could suffer serious physical and/or psychological injuries, the effects of which could be grave. I found that [the appellant] still poses a risk of re-offending, and that the nature of his offending and the harm that could result if he were to repeat it, means that this risk is unacceptable. 40. I concluded that the protection of the Australian community outweighed [the appellant's] remorse and rehabilitation to date, the best interests of his minor siblings, his ties to the Australian community, and the hardship he and his adult family members in Australia would experience if his visa is cancelled. 41. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel [the appellant's] Class XB, Subclass 200 (Refugee) visa under subsection 501(2).
The primary judgment 14 The appellant sought judicial review of the Minister's decision to cancel his visa (there was no right to a merits review in the AAT because the decision had been taken by the Minister personally: see s 500(1)(b) of the Migration Act). He contended that the Minister had fallen into jurisdictional error by failing to consider two mandatory relevant considerations and by making a decision which was unreasonable in the legal sense. The two relevant considerations which he claimed the Minister had failed to have regard to were: (a) whether the appellant was likely to re-offend such that it was open for the Minister to conclude that his remaining in Australia amounted to an unacceptable risk to the community; and (b) the fact that the legal consequence of cancelling the visa was that the appellant might be detained indefinitely here in an immigration detention centre because the Minister had no information as to whether South Sudan would accept the appellant back to that country. 15 The primary judge rejected both those contentions. As to the first, his Honour stated that he would apply the view of the majority in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 to the effect that the Minister was not bound to conduct an evaluation of the likelihood of a visa holder re-offending whilst also acknowledging that, in some circumstances, the failure to examine the likelihood of future harm in cancelling a visa may involve legal unreasonableness in the sense of lacking an evident and intelligible justification (see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ). The primary judge rejected the appellant's submission that the majority view in Moana was no more than that the Minister was not required to consider future risk in light of a particular visa holder's circumstances and that it did not preclude the likelihood of future harm being a relevant consideration. In any event, the primary judge found that the Minister's reasons indicated that the Minister did consider the likelihood of the appellant re-offending and the severity of the consequences if he did so. 16 As to the second limb of the appellant's relevant considerations grounds, the primary judge found that, because the Minister made express reference in his statement of reasons to the two Departmental assessments of Australia's non-refoulement obligations to the appellant and accepted those assessments, the appellant's claim that the Minister failed to have regard to the possibility that the appellant might be detained indefinitely was without foundation. 17 As to the appellant's ground of judicial review based on legal unreasonableness, after analysing the High Court's decision in Li, the primary judge concluded that: (a) there was no basis for the appellant's claim that the Minister had given disproportionate weight to the protection of the community in the absence of a proper assessment of the likelihood of the appellant re-offending, for the same reasons as outlined above in respect of the related claim concerning relevant considerations; and (b) as to the appellant's claims that the Minister had given insufficient weight to such matters as whether it was practical for the appellant to be returned to South Sudan and that he might remain in immigration detention indefinitely if it was not possible to return him there, this submission was described as an invitation for the Court "to engage in its own evaluation of the evidence rather than considering whether the Minister's decision was unreasonable in the legal sense". His Honour relied upon the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41 to the effect that it was generally a matter for an administrative decision-maker to determine the appropriate weight to be given to mandatory relevant considerations. The primary judge added that those observations applied equally to matters which were relevant but were not mandatory considerations. The primary judge further added that, in any event, the Departmental assessments relating to the non-refoulement issue set out a rational basis for the conclusion that the appellant could be returned to South Sudan. 18 Finally, in response to a contention that the Minister had failed to take into account potential beneficial effects of the appellant being under supervision on parole for a period of about 12 months, the primary judge found that the contention was unsustainable because, in his statement of reasons, the Minister made express reference to the appellant's stated willingness to undertake any programs required of him as a condition of his parole and his study intentions upon release from prison (the appellant does not appeal against this particular finding). 19 For these reasons, the application for judicial review was dismissed.
The appeal 20 The notice of appeal as originally filed raised three grounds of appeal, which may be summarised as follows: (a) the primary judge erred in finding that the Minister had properly considered the risk the appellant posed to the Australian community; (b) the primary judge erred in finding that the Minister had done more than merely advert to a matter that was fundamental to his consideration; and (c) the primary judge erred in finding that the Minister's cancellation decision was reasonable in a legal sense. 21 The hearing of the appeal commenced in Adelaide on 1 April 2016. The Court heard argument from both parties on the three grounds of appeal in the original notice of appeal. An issue also emerged during the course of the hearing (which had not been argued below) as to whether the appellant had the status of a refugee and whether the Minister was obliged to consider this matter and, if so, whether he had. The hearing was adjourned to enable the appellant to prepare and seek leave to file an amended notice of appeal. 22 The amended notice of appeal is in the following terms (without alteration): Grounds of appeal 1. That the Federal Court erred in finding that the Decision of the Respondent was reasonable in a legal sense (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332). Particulars 1.1. The Appellant was a young man who arrived in Australia at the age of 16 against a background of significant violence in Sudan. 1.2. The Appellant's family resides in Australia and he has no family connection to South Sudan, being the intended place of return. 1.3. The Appellant remains a young man who appears to have commenced the process of rehabilitation whilst in prison. 1.4. Australia, having granted the Appellant Refugee Status at the age of 16, continues to have obligations to the Appellant. 1.5. The Appellant has never been a citizen of South Sudan, has no ties with South Sudan and has no family ties with South Sudan. 1.6. The Respondent accepted that should the Appellant be returned to South Sudan he would have little prospects of employment, accommodation may not be available and his living standards would decline significantly from those that he has in Australia. 1.7. The Respondent accepted that there would be a negative impact upon the Appellant's family and particularly upon his siblings. 1.8. There was no positive evidence that the Appellant as an individual would be granted citizenship of South Sudan, nor was there evidence that as an individual he would be allowed to enter South Sudan. 1.9. There is no evidence in a general sense that the Appellant or people in the position of the Appellant had been removed successfully to South Sudan or could be in future removed successfully to South Sudan. 1.10. That it is a realistic possibility that in the circumstances the Appellant would be required to spend an indefinite period of time in immigration detention due to the inability of him being practically removed to South Sudan. 1.11. Given the accumulation of all of the above circumstances, notwithstanding the serious nature of the offending, it was legally unreasonable for the Respondent to cancel the Appellant's visa. 1.12 The Respondent failed to make an assessment of the risk of the Appellant to the Australian community. 2. That the Federal Court erred in finding that the Respondent had considered the specific claim that the Appellant was at risk of being detained indefinitely in accordance with ss 189, 196 and 198 of the Migration Act 1958 (Cth) ('the Migration Act'). Particulars 2.1. The Appellant had no previous ties with the country South Sudan. South Sudan being a country that did not exist at the time the Appellant was granted Refugee Status. 2.2. The Appellant's country of his former habitual residence Sudan no longer exists and he is accordingly not able to return to the country of former habitual residence. 2.3. There is no evidence that the Appellant as an individual will be granted citizenship of South Sudan or that he will be allowed to enter South Sudan. 2.4. In those circumstances it is a realistic possibility that the Appellant will be required to spend an indefinite period of time in immigration detention and this is a matter that the Respondent should specifically have dealt with. 2.5. The question as to whether the Appellant would remain in immigration detention for indefinite period of time is a legal consequence of the Decision of the Respondent to revoke his visa. 2.6. The revocation of the Appellant's visa by the Respondent under s 501 of the Migration Act purported to be for the protection of the Australian community that can only be protected if a person such as the Appellant is removed from that community. 2.7. Upon the Respondent making a determination to cancel the Appellant's visa, s 189 of the Migration Act requires that the Appellant was detained and further s 196 requires that the Appellant be detained until such further action is taken either by way of removal, deportation or the Appellant being granted a visa. Section 198 of the Migration Act then requires that an unlawful non-citizen be removed as soon as reasonably practicable. 2.8 It cannot be reasonably said that a decision under s 501(2) is not a decision with respect to expulsion but is a decision as to whether a person can be permitted to remain lawfully in the community (Cotterill v Minister of Immigration Border Protection [2016] FCAFC 61 at [107], [124-135]). 3. That the Respondent failed to consider the interaction between the Appellant's pre-existing status as a refugee and the manner in which the Respondent was required to deal with that status in exercising his discretion under s 501(2) of the Migration Act. Particulars 3.1. The Appellant was granted a visa as a family member of his mother who was granted a Class 8XB sub-class 200 ('the Refugee Visa'). 3.2. The power to grant the relevant visa was found in s 31 of the Migration Act. 3. 3. It is irrelevant as to the basis upon which the Refugee Visa is granted. 3.4. The Respondent, having deemed it appropriate to take into account the non-refoulement obligations of Australia (Articles 32 and Articles 33 of the 1951 Refugee Convention), was required to specifically determine whether in revoking the Appellant's Refugee Visa the Respondent was determining that the Appellant was no longer a refugee or, alternatively, notwithstanding the fact that he was a refugee it was appropriate to return the Appellant to South Sudan. 3.5. This process of reasoning required the Respondent to commence his deliberations on the basis that the Appellant was a refugee at the time of the Respondent's consideration and to make determinations on that basis. 3.6. The Respondent made no such determination and further did not independently consider the information contained in the ITOA's in the process of purporting to exercise his discretion. 23 When the hearing resumed in Sydney on 10 August 2016, the appellant's counsel explained that amended ground 1 (particularised up to 1.11) reflected all the original grounds of appeal; amended ground 2 related to indefinite immigration detention and overlapped with the unreasonableness ground and that amended ground 3 was a new ground which had not been argued before the primary judge and for which the appellant sought leave. Counsel confirmed that ground 1 of the amended notice of appeal was intended to maintain that aspect of the original grounds of appeal which related to the appellant's claim that the Minister had failed to make an assessment of the risk the appellant posed to the Australian community. Thus, particular 1.12 under ground 1 was propounded. 24 The Minister did not oppose leave being granted to the appellant to file and rely upon the amended notice of appeal, as amended at the hearing. Leave was granted. 25 Both the appellant and the Minister took advantage of the opportunity to file supplementary submissions in respect of ground 3 of the amended notice of appeal. Otherwise they both relied upon their respective written and oral submissions which addressed the three grounds of appeal in the original notice of appeal. The parties also made supplementary oral submissions in respect of ground 3 of the amended notice of appeal when the hearing resumed in Sydney on 10 August 2016.
Appellant's submissions summarised 26 Ground 1 of the amended notice of appeal relates to the issue of whether the primary judge erred in finding that the Minister's decision was not unreasonable in the legal sense. Part of that claim relates to the alleged failure of the Minister to assess the risk the appellant posed to the Australian community. 27 The appellant contended that the Minister made the same reviewable error as that found in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 namely he failed to determine the risk of the appellant re-offending as distinct from the risk should he re-offend. The appellant further contended that the primary judge erred in relying upon Moana on the issue of risk of re-offending and in finding that the Minister had done more than merely advert to a matter that was fundamental to his consideration. It was submitted that consideration of the risk to the community is a two stage process and the Minister had considered only one aspect of that risk, namely the risk should the appellant re-offend and the Minister failed to address or explain why he considered that the appellant would re-offend. The appellant relied on the fact that in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [39], the Minister argued that the majority view in Moana was incorrect in its treatment of this issue. 28 The appellant's complaint relating to unreasonableness in the legal sense included a claim that the Minister failed to take into account the protection obligations which were owed to the appellant, as was said to be reflected in the reference in [37] of the statement of reasons to the appellant's ability to remain in Australia being a "privilege". 29 While acknowledging the Full Court's recent decision in Stretton, the appellant submitted that his was a rare case and that the primary judge erred in not finding that legal unreasonableness was made out because of the "cumulative effect of the personal circumstances of the Appellant and the unique circumstances of the purported intention to send the Appellant to a country that did not exist at the time he was found to be a refugee and with which he has no ties". The appellant contended that Stretton was distinguishable because: (a) Mr Stretton was to be returned to the United Kingdom, a country of which he was recognised as a citizen and in which he had previously resided; (b) there was no question that Mr Stretton was able to be returned to the United Kingdom, thus there was no risk of him being held in detention indefinitely; and (c) Mr Stretton had not been found to be a refugee and was not owed protection or non-refoulement obligations. 30 Ground 2 of the amended notice of appeal relates to the claim that the primary judge erred in finding that the Minister had considered the appellant's specific claim that he was at risk of being detained indefinitely in Australia, substantially because there was no evidence that the appellant as an individual would be granted citizenship and/or permitted to enter South Sudan. The appellant submitted that the primary judge erred in not accepting his contention that there was no material before the Minister as to whether South Sudan would accept the appellant, with the consequence that there was a risk that he might be detained in immigration detention indefinitely. He submitted that although there was a finding by the author of both ITOAs that he was satisfied that South Sudan "will accept [the appellant] as a citizen", there was no evidence that South Sudan would physically accept the appellant were he to be returned to that country. 31 Ground 3 of the amended notice of appeal, which was not argued below, relates to the claim that the Minister failed to consider the interaction between what was alleged to be the appellant's pre-existing status as a refugee and the Minister's power under s 501(2) of the Migration Act. The appellant contended that, when the Minister was considering whether to exercise his discretion under s 501(2), the appellant held the status as a refugee and that status needed to be considered by the Minister. The appellant submitted that, when he was granted his visa, it was recognised that he had refugee status on either a primary or on a secondary basis and the Minister was obliged to deal with that status in determining whether or not to cancel his visa. It was insufficient for the Minister to rely upon the assessment in ITOAs that the appellant was not a refugee, with the consequence that Australia did not have non-refoulement obligations. This reasoning, so the appellant submitted, ignored the fact that he already had refugee status. The appellant claimed that it was evident from the Minister's written outline of submissions in the appeal that he accepted that the ITOAs had expressly indicated that no consideration had been given to whether the appellant had ceased to be a refugee under Art 1C of the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967, with the consequence that the Minister failed to consider this matter. It was submitted that this amounted to jurisdictional error.
Minister's submissions summarised 32 In response to ground 1 of the amended notice of appeal, and the claim that his decision was unreasonable in the legal sense, the Minister submitted that his decision did not lack a rational foundation or an evident or intelligible justification so as to attract the principles described in cases such as Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; Stretton and Eden. The Minister rejected the appellant's contention that he had failed to take into account the protection obligations owed to the appellant, as was said to be reflected in the use of the word "privilege" in [37] of the statement of reasons. The Minister submitted that the reference to "privilege" was simply a reference to the "principle that a non-citizen who commits a serious crime should generally forfeit the privilege of staying in Australia". 33 The Minister submitted that, although he was not required to do so, he did consider the risk of the appellant re-offending and the consequences thereof in terms of the risk of harm to the Australian community. He submitted that the primary judge did not err in finding that there was no requirement to quantify the risk of the appellant re-offending in terms of using an adjective or in percentage terms, citing Coderre v Minister for Immigration and Border Protection [2014] FCA 769; 143 ALD 675 at [36] per Besanko J. 34 As to ground 2 of the amended notice of appeal, and the claim that the Minister did not take into account that the appellant could remain in immigration detention in Australia indefinitely, the Minister relied on those parts of his statement of reasons which indicated that he did turn his mind to Australia's non-refoulement obligations and that he considered and accepted the two assessments by his Department on this topic. As noted above, in both those assessments it was concluded that the appellant, as a citizen of South Sudan, could be returned to South Sudan and, specifically, to Juba. 35 The Minister's supplementary submissions, which addressed ground 3 of the amended notice of appeal, may be summarised as follows. 36 The Minister submitted that ground 3 was based on a false premise, namely that the appellant had the pre-existing status as a refugee when his visa was cancelled. Notwithstanding that the appellant held a Class XB subclass 200 (Refugee) visa, the Minister submitted that this type of visa was granted to the appellant on the basis that he satisfied the relevant secondary criteria which did not require any assessment to be undertaken as to whether or not he was a refugee within Art 1A of the Refugees Convention - nor was there any evidence that any such assessment was carried out before or after the appellant was granted the visa. 37 The Minister relied upon the following observations of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 47 (Huynh 1) at [22] per Spender, Branson and Stone JJ: As the above discussion reveals, it does not logically follow from the fact that the respondent once held a Class 200 visa that he is a person to whom Australia owes, or once owed, protection obligations under the Refugees Convention. The criteria specified in respect of Class 200 visas, read together with the provisions of Part 2 Division 1AA of the Act as in force in the period following 30 June 1992, make it clear that applicants for Class 200 visas were not assessed against the definition contained in Article 1A of the Refugees Convention. Additionally, as is mentioned above, certain dependent members of the family unit of a person entitled to a Class 200 visa, whether or not they themselves were subject to any persecution, could receive Class 200 visas. The inference that the respondent became entitled to a Class 200 visa as a dependent member of Ms Huynh's family unit is, on the material that was before the Federal Magistrate, strong. 38 Although there was no obligation on the Minister to consider Australia's non-refoulement obligations when personally exercising the power under s 501(2), the Minister submitted that he could chose to do so and had done so here by his consideration of the two ITOAs. Those assessments were to the effect that the appellant did not have a well-founded fear of persecution if he was removed to Juba and thus did not fall within Art 1A of the Refugees Convention. 39 The Minister submitted that, as the appellant had never been found to be a refugee under Art 1A, there was no obligation to consider whether the appellant had ceased to be a refugee under that provision. 40 The Minister contended that the appellant does not hold, and never has held, a protection visa as defined in the Migration Act. It was submitted that Australia grants many visas every year to refugees or people in refugee-like situations who are outside Australia, but these visas are not protection visas. Rather, they are visas of a class created under s 31 of the Migration Act. At the relevant time, cl 1402 of Pt 4 of Sch 1 of the Migration Regulations 1994 (Cth) prescribed one such class of visa as being the Refugee and Humanitarian (Class XB) visa, and a subclass of that visa was the subclass 200 (Refugee) visa, which is the visa granted to the appellant. The Minister emphasised that, under cl 1402, a requirement for such a visa was that the application be made outside Australia and the applicant also be outside Australia. The Minister drew attention to the fact that, at the relevant time, cl 1402(3) provided that a person claiming to be a member of the family unit of a person who is an applicant for a Refugee and Humanitarian (Class XB) visa might also apply at the same time and place as, and combined with, the primary application. The Minister submitted that this appeared to have occurred in relation to the appellant, who applied for his visa as a member of his mother's family unit when she also apparently applied for the same kind of visa.
Unreasonableness in the legal sense 41 As noted above, ground 1 in the amended notice of appeal concerns whether the primary judge erred in rejecting the appellant's claim that the Minister's decision was unreasonable in a legal sense. 42 The appellant's case on legal unreasonableness relied heavily on what his counsel described as "the unique circumstances of the purported intention to send [him] to a country that did not exist at the time he was found to be a refugee and with which he has no ties" and also on the claim that the Minister failed to consider the real possibility that the appellant could not be sent to South Sudan and would remain in immigration detention indefinitely. 43 As presented, the appellant's case appeared to depend upon the limb of legal unreasonableness relating to the outcome of the exercise of the power, as opposed to the limb which focuses on an examination of the reasoning process by which a decision-maker arrives at the exercise of power (see Singh at [47] per Allsop CJ, Robertson and Mortimer JJ). Where, as here, reasons are given for a particular exercise of a power, "it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was" (Singh at [47]). 44 The Minister's statement of reasons reveals that: (a) the Minister acknowledged that the appellant is no longer a citizen of Sudan where he was born and that he has never lived in South Sudan, where he is now a citizen (see [21] of his statement of reasons); (b) the appellant entered Australia holding the visa which was granted to him as a dependant of his mother, who was considered to be a woman at risk (see [28] of his statement of reasons); and (c) consideration was given to whether Australia owed non-refoulement obligations to the appellant and the Minister concluded, at [30] of his statement of reasons, as follows: I had regard to the findings of an International Treaty Obligations Assessment completed by [sic] on 28 April 2014, and a Supplementary International Treaty Obligations Assessment, completed on 23 June 2014. The finding of each assessment was that [the appellant] was not owed non-refoulement obligations. I had regard to the fact that [the appellant's] representative disputes the findings of these assessments. I accept the findings and I am satisfied that [the appellant] is not owed non-refoulement obligations. 45 The key findings of the two ITOAs are outlined in [11] above. In our view, it was open to the Minister to rely upon these assessments regarding Australia's protection obligations to the appellant and to reject the appellant's contention that he might remain in immigration detention indefinitely if he could not be returned to South Sudan. We respectfully agree with the primary judge's finding at [46] that the Department's assessments set out a rational basis for the conclusion that the appellant could be returned to Juba in South Sudan. 46 As noted above, part of the appellant's case on unreasonableness in the legal sense relied upon the reference in [37] of the Minister's statement of reasons to the appellant's ability to remain in Australia as being a "privilege". This particular term also appears several times in the current direction issued by the Minister under s 499 of the Migration Act (Direction No 55) which binds delegates, but not the Minister personally. The appellant contended that this reference revealed that the Minister failed to take into account Australia's protection obligations owed to him. 47 If the reference to "privilege" in the Minister's statement of reasons is read in isolation from the balance of those reasons, there might appear to be some force in the appellant's complaint. This Court has previously commented on the danger of describing a visa holder's entitlement to remain in Australia as a "privilege" (see Stretton at [26] per Allsop CJ and at [70(d)] per Griffiths J). The inappropriateness of describing such entitlement as a "privilege" is further underlined in the following passage from Gummow J's judgment in Fardon v Attorney-General(Qld) [2004] HCA 46; 223 CLR 575 at 611: … in other respects aliens are not outlaws; many will have a statutory right or title to remain in Australia for a determinate or indeterminate period and at least for that period they have the protection afforded by the Constitution and the laws of Australia. 48 In our view, however, it would be wrong to conclude in the particular circumstances here that the Minister's use of the word "privilege" discloses jurisdictional error. In accordance with well-known and often cited authority (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), the Minister's reasons should be read as a whole and without an eye keenly attuned to detecting error. Applying those principles here, it is clear that the Minister did turn his mind to, and take into account, Australia's protection obligations to the appellant. As noted above, the Minister made express reference to, and relied upon, the two Departmental assessments which concluded that there was no legal impediment to returning the appellant to South Sudan and, specifically, to Juba. 49 In support of that part of ground 1 which related to the risk of him reoffending, the appellant placed heavy reliance on Mortimer J's decision in Tanielu. Her Honour held there that a decision-maker exercising the discretion under s 501(2), including the Minister personally, is bound to take into account the risk of harm to the Australian community posed by the visa holder remaining in Australia. Her Honour's finding was approved by a majority in Moana (Rangiah J, with whom North J agreed). Notably, however, the majority there did not go so far as to say that the decision-maker was also bound to evaluate the likelihood of a visa holder engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2). Justice Rangiah said at [73] that he doubted that Mortimer J had held in Tanielu that "the Minister must evaluate the static and dynamic factors personal to an individual that may affect the risk that the person may pose when exercising the discretion". His Honour added that the majority decision in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 (Huynh 2), per Kiefel and Bennett JJ, constituted a direct authority to the contrary of the proposition that the Minister is bound to consider factors personal to the visa holder. His Honour observed at [71] in Moana that, while the Minister must consider the risk of harm, "it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way". 50 Different views were expressed in Moana concerning the correctness of Mortimer J's finding in Tanielu that the risk of harm to the Australian community is a mandatory relevant consideration. In dissent in Moana, Jessup J concluded that Mortimer J had misapplied Mason J's observations in Peko-Wallsend and had erred in concluding in Tanielu that the risk of harm to the Australian community is a mandatory relevant consideration for the purpose of s 501(2). Although disagreeing with Mortimer J's findings, Jessup J made the following pertinent observations at [10]: This is not to hold that, in addition to the visa holder's failure to satisfy the Minister that he or she did pass the character test, the discretion for which s 501(2) provides is not a real or useful one. There must be a decision made in the particular case. There may always be particular circumstances to which the Minister might validly give attention before exercising the power. But it is to hold that the power may be validly exercised in a situation in which, having turned his or her mind to the facts of the case, the Minister chooses not to take into account any consideration other than the fact that the visa holder does not pass the character test. There is, in my view, nothing in the subsection, or elsewhere in the Act, that has the effect that the power may not be validly exercised unless the Minister takes account of the risk posed to the Australian community of the visa remaining uncancelled. 51 In Ayoub at [36], a differently constituted Full Court (Flick, Griffiths and Perry JJ), referred to an "unresolved tension" between the majority view in Moana and the observations of Kiefel and Bennett JJ in Huynh 2 at [74]. In Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132, a later decision of the Full Court, Allsop CJ, Flick and Griffiths JJ referred at [22] to there being "some tension in the case law concerning the question whether or not the risk of re-offending constitutes a mandatory relevant consideration in all cases involving the Minister's discretion under s 501(2)", referring inter alia to Huynh 2, Tanielu and Ayoub. In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1, Allsop CJ and Katzmann J stated at [25]-[27] that, if the particular circumstances of the visa holder in that case were correctly seen to be mandatory relevant considerations, this might require a reconsideration of the views of the majority in Huynh 2, and posed the question (without answering it) whether the dissenting views of Wilcox J in that case were not preferable. 52 The Full Court stated at [37] in Ayoub that it was unnecessary, in the particular circumstances of that case, to resolve the various views concerning whether or not there are mandatory relevant considerations under s 501(2). Nor was it considered necessary to determine the Minister's contention that both Mortimer J's finding in Tanielu and the majority view in Moana were incorrect. That was because the Full Court concluded in Ayoub that the Minister's statement of reasons indicated that the Minister had properly addressed the fact of "risk" of re-offending and properly took it into account in the context of the other matters set out in the statement of reasons. 53 A similar approach to the "unresolved tension" has been adopted in two subsequent Full Court decisions (see Roesner at [23] and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88 at [38] per Rares, Flick and Perry JJ). It was concluded in both these cases that, even if the risk of harm was a mandatory relevant consideration, it was unnecessary to resolve the tension in the relevant authorities because the Minister's statements of reasons in both cases revealed that the matter had in fact been considered. 54 It is appropriate to adopt the same approach here. The Minister's statement of reasons reveals that he did take into account the risk of harm to the Australian community. This occurred in the specific context of the Minister considering whether or not there was a risk that the appellant would re-offend. The Minister set out in [18] of his statement of reasons the basis upon which he concluded that the appellant posed an ongoing risk of re-offending notwithstanding that there were some factors which he acknowledged served to reduce that risk, including the appellant's rehabilitation in prison and his renewed family and community support. The Minister concluded, however, that taking into account other facts, such as the appellant's long criminal history, his previous violent offences and his untested ability to refrain from substance abuse in the community, there was an ongoing risk of re-offending, which the Minister described in [39] of his statement of reasons as an "unacceptable risk". 55 The appellant also argued that the Minister was obliged not only to take into account the risk of harm to the Australian community but also to quantify that risk and that he failed to do so. That argument should be rejected. It is inconsistent with both Moana and Ayoub, as well as Brown. In Brown, Rares, Flick and Perry JJ said at [41]: First, even if the Minister had a duty to consider the risk of harm to the Australian community, he had no duty to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of the risk: Moana [2015] FCAFC 56 at 71; Ayoub [2015] FCAFC 83 at [44]. 56 There is, in any event, a further reason why the argument must be rejected. That is because, even if (contrary to the above), the Minister was obliged to quantify the risk of the appellant re-offending, he did so, as is reflected in his conclusion at [39] of his statement of reasons that the appellant posed an "unacceptable risk". 57 The appellant has failed to establish any appealable error in the primary judge's reasons and findings concerning the Minister's consideration of the risk of harm to the Australian community. 58 As to the other matters which are particularised in the amended notice of appeal in support of ground 1, it is evident from the Minister's statement of reasons that the Minister took into account matters such as the fact that the appellant has never been a citizen of South Sudan and has no ties, including family ties, with South Sudan; that he would face hardship if he were to return to South Sudan; and that there would be a negative impact on the appellant's family and his siblings if he were removed from Australia. The Minister weighed these matters against a range of other considerations which he took into account but he ultimately concluded that the appellant's visa should be cancelled. Minds might differ as to the merits of that conclusion but the appellant has not established that the Minister's cancellation decision lacked an intelligible justification. Ground 1 is rejected.
The risk of the appellant being held in migration detention indefinitely in Australia 59 This issue arises under both grounds 1 and 2. We do not accept that the Minister failed to make a finding on the issue of whether or not South Sudan would physically accept the appellant were he to be returned to that country and that there was consequently a risk that he would be detained indefinitely here in Australia in immigration detention. As noted above, the author of both the ITOAs stated that he was satisfied that "South Sudan will accept the [appellant] as a citizen". Viewed in context, these findings (which the Minister accepted and acted upon) went further than merely stating that South Sudan would view the appellant to be a citizen of that country. These findings were made in the context of a detailed analysis and discussion in the ITOAs of Australian's non-refoulement obligations, which necessarily focused on countries to which the appellant might physically be returned. After finding that there was no evidence to suggest that the appellant would be returned to Egypt (from where he came to Australia), attention had to be focused on South Sudan as the relevant country. After analysing the relevant material, the Departmental officer concluded that the appellant was a citizen of South Sudan and that that country would accept him as a citizen. This finding, properly understood, meant that the Departmental officer was satisfied that the appellant could physically be returned to South Sudan. This finding related to the appellant as an individual. 60 The primary judge dealt with these matters in [29] to [39] of his Honour's reasons for judgment. The appellant has not persuaded us that there is any appealable error in the primary judge's analysis and findings on this subject. Indeed, we respectfully agree with them. Ground 2 is rejected.
Interaction between appellant's refugee status and the power under s 501(2) of the Migration Act 61 We accept the Minister's submission that this ground of appeal is predicated on a false basis, namely that the appellant had the status of a refugee within the meaning of the Refugees Convention. The appellant's case on this matter misconceives the basis upon which he was granted a visa. 62 The Migration Regulations prescribed various classes of visa (see s 31 of the Migration Act). Clause 1402, which was in Pt 4 of Sch 1 of the Migration Regulations, was in the following terms at the relevant time: 1402. Refugee and Humanitarian (Class XB) (1) Form: 842. (2) Visa application charge: Nil. (3) Other: (a) Application must be made outside Australia. (b) Applicant must be outside Australia. (c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Refugee and Humanitarian (Class XB) visa may be made at the same time and place as, and combined with, the application by that person. (4) Subclasses: 200 (Refugee) 201 (In country Special Humanitarian) 202 (Global Special Humanitarian) 203 (Emergency Rescue) 204 (Woman at Risk) 447 (Secondary Movement Offshore Entry (Temporary)) 451 (Secondary Movement Relocation (Temporary) 63 Regulation 2.03 provided that, for the purposes of s 31(3) of the Migration Act, the prescribed criteria for the grant of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Sch 2; or (b) if a relevant Part of Sch 2 sets out secondary criteria, those secondary criteria. 64 The primary and secondary criteria relating to the grant of a Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa were set out in Sch 2 and, at the relevant time, were relevantly as follows: Subclass 200 Refugee 200.1 Interpretation Note: member of the family unit and member of the immediate family are defined in regulation 1.03. 200.111 In this Part: Subclass 200 visa means: (a) a Subclass 200 (Refugee) visa; or … 200.2 Primary criteria Note The primary criteria must be satisfied by all applicants except certain applicants who are members of the family unit, or members of the immediate family, of certain applicants who satisfy the primary criteria. Those other applicants need satisfy only the secondary criteria. 200.21 Criteria to be satisfied at time of application 200.211 (1) The applicant: (a) is subject to persecution in the applicant's home country and is living in a country other than the applicant's home country; or (b) meets the requirements of subclause (2). … 200.22 Criteria to be satisfied at time of decision 200.221 The applicant continues to satisfy the criterion in clause 200.211. 200.222 The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to: (a) the degree of persecution to which the applicant is subject in the applicant's home country; and (b) the extent of the applicant's connection with Australia; and (c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from persecution; and (d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia. 200.3 Secondary criteria Note These criteria must be satisfied by applicants who are members of the family unit, or members of the immediate family, of certain persons who satisfy the primary criteria. 200.31 Criteria to be satisfied at time of application 200.311 The applicant: (a) is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.211 (1) (a); or (b) is a member of the immediate family of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.211 (1) (b). 200.32 Criteria to be satisfied at time of decision 200.321 The applicant: (a) continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 200.211 (1) (a)), is the holder of a Subclass 200 visa; or (b) continues to be a member of the immediate family of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 200.211 (1) (b)), is the holder of a Subclass 200 visa. … 200.4 Circumstances applicable to grant 200.411 The applicant must be outside Australia when the visa is granted. … 65 The appellant's contention that he held the status of a refugee was based principally upon the fact that his visa used that term. Reliance was also placed on the fact that his visa had been granted to him on the basis of him being a member of his mother's family unit and that she had been assessed as a refugee. These contentions should be rejected. That is because, as the Minister submitted, there is no evidence that there has ever been a determination that the appellant is a refugee within the meaning of Art 1A of the Refugees Convention or, indeed, under the Migration Act. Nor is there any evidence to substantiate the claim that the appellant's mother had been assessed as a refugee within the meaning of the Refugees Convention, other than an assertion to that effect in one of the submissions made to the Department on the appellant's behalf in opposing the cancellation of his visa. 66 At first glance, it might seem reasonable to assume that the appellant did have that status, having regard to the particular type of visa granted to him, which included the word "refugee" in its title. The same might be said with respect to his mother, assuming that the same visa had been granted to her (which is not entirely clear on the evidence). Not only does the word "refugee" appear twice in the name of the Refugee and Humanitarian (Class XB) subclass 200 (Refugee) visa, but one of the primary criteria which needed to be satisfied, both at the time of application and at the time of decision, required an assessment as to whether the primary applicant (in this case, the appellant's mother) was subject to "persecution" in her home country. 67 We accept the Minister's contention that the words "refugee" and "persecution" which appear in the provisions relating to subclass 200 (Refugee) visas should be given their ordinary meanings and not be confined to the particular and narrower meanings of those words as used in the Refugees Convention. It is important to note in this regard that the class of visas known as "protection visas" was, at the relevant time, the subject of s 36 of the Migration Act. At that time, one of the criteria for such a visa was that the applicant be a non-citizen in Australia in respect of whom the Minister was satisfied that Australia had protection obligations under the Refugees Convention as amended. It is plain that the visa which was granted to the appellant was not a "protection visa" within the meaning of s 36 of the Migration Act. As noted above, cl 1402 in Pt 4 of Sch 1 to the Migration Regulations made clear that requirements for the grant of a Refugee and Humanitarian (Class XB) visa were that both the visa application and the visa applicant must be outside Australia when the application is made. This is to be contrasted with a protection visa under s 36 of the Migration Act. 68 Nor was the appellant required to show that he was a refugee in order to obtain a subclass 200 (Refugee) visa. As a secondary applicant for that visa, the appellant needed to satisfy the secondary criteria set out in cl 200.3, which, among other things, required that he be a member of the family unit of a person who had met the requirements of cl 200.211(1)(a), both at the time of application and at the time of decision. The appellant was able to meet these requirements as a member of his mother's family unit. In contrast with the position regarding a protection visa under s 36 of the Migration Act, there was no requirement that the decision-maker be satisfied that the appellant was a refugee in any sense of that word. 69 Senior Counsel for the Minister acknowledged that it remains open to the appellant to apply for a protection visa while he is in the migration zone (see s 501E(2)(a) of the Migration Act). The assessment of any such application will require the Minister to conduct an up to date assessment as to whether Australia owes the appellant protection obligation under the Migration Act, which will require an updated assessment to be conducted concerning current conditions in South Sudan. 70 The further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant's visa do not necessarily include removal from Australia or indefinite detention.
Conclusion 71 For these reasons, the appeal must be dismissed and the appellant ordered to pay the Minister's costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and the Honourable Justices Robertson and Griffiths.
AZAFQ
Minister for Immigration and Border Protection
(1979) 26 ALR 247
(2013) 249 CLR 332
[1996] HCA 6
The appeal be dismissed. The appellant pay the respondent's costs, as agreed or assessed.