BHA17 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-11-07|Before: Griffiths J

The applicant's judicial review grounds 11 It is convenient to summarise the various grounds of review raised in the further amended originating application filed on 16 June 2017 by reference to nine categories and to summarise the parties' respective submissions in respect of each of those categories. Mr Adam Hochroth of counsel appeared pro bono for the applicant. Mr Craig Lenehan of counsel appeared for the Minister.

(a) Ground 1(a): The applicant's status as a refugee 12 The applicant claimed that the Minister had failed to take into account a mandatory relevant consideration, namely his status as a refugee. The applicant emphasised that the temporary protection visa granted to him shortly after he arrived in Australia was granted on the basis that he had a well-founded fear of persecution on the ground of political opinion. He acknowledged that this visa was replaced in 2009 by the RoS visa but he said that such a visa was intended to resolve the status of people who held temporary protection visas and enabled such people to obtain a permanent visa without undergoing a reassessment of their protection claims. He described it as a "quirk" of the visa classification system that, while the holder of a RoS visa had the same benefits and entitlements as a protection visaholder, the RoS visa was not a protection visa within the meaning of ss 5 and 35A of the Act. 13 The applicant submitted that it was not to the point that the cancelled visa was not a protection visa as so defined. Rather, since 25 October 2007, he had held the status of a refugee and he contended that this was a relevant consideration which the Minister was bound to take into account in considering whether or not to revoke the cancellation decision under s 501CA(4). 14 The applicant emphasised that his submission on this issue went beyond the proposition that the Minister was obliged to consider whether Australia owed non-refoulement obligations in respect of him. He sought to distinguish a series of cases which have held that the Minister is not obliged to consider whether non-refoulement obligations are owed to a person in considering whether or not to cancel their visa if the person is able to make an application for a protection visa (such as Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 516 (Ayoub); COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190 (COT15) and Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 (Le)). The applicant acknowledged that, in Le, the applicant had previously been recognised as having refugee status but at the time of the decision to cancel her visa under s 501 of the Act, she held a visa which was unrelated to her then current refugee status. 15 The Minister submitted that Le is indistinguishable and that the reasoning relied upon by the applicant coincided with the reasoning of the primary judge in Le, which reasoning was held on appeal to be erroneous (see Le at [15]). The Minister contended that Le is authority for the proposition that a person's refugee status is not a mandatory consideration in circumstances where the person is entitled to make a subsequent application for a protection visa (citing Le at [61(e)] and [64]). 16 The parties were directed to file written supplementary submissions relating to ground 1(a) after the hearing. In particular, the Court invited the parties' submissions on the relevance and implications, if any, of statements made to the applicant in a Departmental letter dated 11 June 2009 and in an attached document. The letter notified the applicant that he had been granted a RoS visa (and that it replaced his previous visa). He was informed in the letter that persons holding a RoS visa were "eligible to access the same benefits and entitlements as a Permanent Protection visa holder". Details of some of the services available to Australian permanent residents were set out in an attached pro forma document, titled "Important Information". 17 That document (which became Exhibit A and was presumably directed to all RoS visaholders) contained the following relevant statements. In respect of social security payments, RoS visaholders were told that, if they had children, they may be eligible for government-funded Family Assistance payments to help with the cost of raising them. The document also referred to help being provided with "job seeking, social security payments and other assistance provided through the government agency called Centrelink". In respect of medical care, persons holding RoS visas were told that, if they had not already done so, they "may be eligible to join Medicare and gain immediate access to healthcare services and programs", which included free public hospital care, help with the cost of out-of-hospital care and subsidised medicines. On the subject of English language tuition, such visaholders were told that, if they did not have functional English, they were eligible for English language tuition under the Adult Migrant English Programme. Such visaholders were also told that they may be eligible to propose their "'immediate family members' for entry to Australia under the Humanitarian Program". Moreover, they were specifically informed that the RoS visa "allows you to sponsor relatives overseas to settle in Australia". 18 In his supplementary written submissions, the Minister submitted that none of these matters assisted the applicant in advancing ground 1(a). That is because each of the entitlements or benefits described in Exhibit A either: (i) depended upon the applicant continuing to hold a permanent visa (in common with all other persons holding such a visa); or (ii) some of the benefits or entitlements were not subject to any statutory criteria and, in any event, were unlikely to be relevant to the applicant's current circumstances. 19 The Minister submitted that none of these matters depended upon the applicant's "refugee status", nor were any of them put forward as part of the applicant's representations to the Minister, citing Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Goundar) at [55] and [56] per Robertson J. The Minister emphasised that the criteria for the visa which ultimately was cancelled (the RoS visa) did not require the applicant to be a person to whom Australia owed protection obligations under the Refugees Convention (see Sch 2, cl 851.22 of the Migration Regulations). 20 The applicant's supplementary submissions on ground 1(a) may be summarised as follows. Contrary to the Minister's submissions, the benefits and entitlements to which the applicant became entitled on the grant of his RoS visa were obtained in circumstances where the applicant's refugee status underpinned his visa. The issuance of the RoS visa amounted to a legal recognition of his refugee status. As a RoS visa holder, the applicant was entitled to the same benefits and entitlements as he would have been entitled to under a protection visa. The applicant relied upon the history of RoS visas. He submitted that the Minister was obliged to take into account the fact that not revoking the automatic cancellation of his visa would mean that the benefits and entitlements to which he was entitled by virtue of his refugee status would be lost to him.

Consideration of ground 1(a) 21 This ground requires close attention to be paid to the history of RoS visas and the significance of being a RoS visaholder in respect of a person's entitlements and benefits under various Commonwealth programs and regimes, some of which have a statutory foundation. 22 (a) The legislative history of RoS visas: The RoS class of visa was introduced in 2008 by the Migration Amendment Regulations (No 5) 2008 (Cth) (the 2008 Amending Regulation). The Explanatory Statement to the 2008 Amending Regulation explained the intention of introducing this particular class of visa: The intention is to resolve the status of the holders of these visas through the grant of a Resolution of Status (Class CD) visa rather than a Protection (Class XA) visa so that it is not necessary that the Minister make an assessment as to whether Australia owes the person protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Refugees Convention). In effect, the RoS visa was granted on the basis of the earlier assessment of the person being a refugee, which provided the basis for their temporary visa, and without requiring a further assessment of their status as a refugee. 23 The 2008 Amending Regulation, which took effect on 9 August 2008, also changed the criteria for permanent protection visas. In particular, persons holding a RoS visa became ineligible for a permanent protection visa, for reasons which were set out as follows in the Explanatory Statement (emphasis added): New clause 866.232 provides that a criterion to be satisfied at (sic) time of decision for applicants for a Subclass 866 visa is that they do not hold a Resolution of Status (Class CD) visa. As a Resolution of Status (Class CD) visa provides equivalent benefits and entitlements as a Subclass 866 (Protection) visa, there will be no benefit for persons who hold or have been offered a Resolution of Status (Class CD) to continue to be eligible for a Subclass 866 (Protection) visa. 24 Accordingly, as the applicant submitted, the new class of visa was a permanent protection visa in all aspects other than its name and was intended to confer the same benefits and entitlements on the holder as a permanent protection visa. 25 Additional material which explains the background to the 2008 Amending Regulation is contained in an internal Departmental document titled "OPIPA No 28 - Processing and Deciding Resolution of Status (Class CD) visa application", which was issued on 3 September 2008 and became Exhibit 2 in the proceeding. In the introduction to that document it was stated that it comprised guidelines which were intended to provide On-Shore Protection decision-makers with advice to enable them to process and decide applications for the new RoS visa. The following information appeared under the heading "Background": 1. On 13 May 2008, the Minister for Immigration and Citizenship announced that current and former temporary Protection visa (TPV) (subclass 785) and temporary Humanitarian visa (THV) (subclass 447 and 451) holders would be able to have their status resolved permanently, without a reassessment of their protection claims. Only health, character and security requirements would need to be met for this permanent visa, and the visa would offer the same benefits and entitlements as those given to permanent Protection visa holders. 2. The regulations implementing these arrangements took effect from 9 August 2008 and introduced the permanent Resolution of Status (Class DC) visa, which has been designed specifically to resolve permanently the status of former and current TPV and THV holders and, in the future, a very small number of temporary safe haven visa holders. PAM3: Sch 2 RoS - Resolution of Status visas contains comprehensive advice on how these regulations operate. I will return to discuss PAM 3 in more detail in [53] and [66]ff below. 26 On 16 April 2009, the applicant applied for a RoS visa under cl 1127AA of Sch 1 of the Migration Regulations, as in force on that day. He satisfied the relevant requirement in Item 1(d) of the Table in sub-clause 1127AA(3)(c), namely that he held a Subclass 785 (Temporary Protection) visa. He held that class of visa because the Department had accepted in October 2007 that he was a person to whom Australia owed protection obligations under the Refugees Convention. Thus, as the applicant submitted, although his RoS visa was not a "protection visa" within the meaning of ss 5 and 35A of the Act, it was a permanent visa which he was granted because he held a Subclass 785 (Temporary Protection) visa and that visa had been granted to him because he had been assessed as having the status as a refugee. Moreover, as the Explanatory Statement to the 2008 Amending Regulation confirmed, his RoS visa provided him with equivalent benefits and entitlements as if he held a sub-class 866 (Protection) visa. In these circumstances, there was no point in the applicant applying for a protection visa. Indeed, if he had done so it would have been refused (see [28] of Exhibit 2). 27 (b) The entitlements and benefits of RoS visaholder: It is desirable to now address some of the kinds of entitlements and benefits which became available to the applicant as the holder of a RoS visa. The Minister did not dispute that, upon being granted a RoS visa in 2009, which was a permanent visa, the applicant became an "Australian resident", which qualified him in principle for a range of Commonwealth benefits and entitlements. They included: (i) various allowances and payments under the Social Security Act 1991 (Cth) (SS Act); (ii) Medicare benefits under s 10(1) of the Health Insurance Act 1973 (Cth) (Health Insurance Act), being an "eligible person" under s 3(1) of that Act; (iii) pharmaceutical benefits under the National Health Act 1953 (Cth) (National Health Act) (s 86); (iv) the Adult Migrant English Program, as provided under s 4 of the Immigration (Education) Act 1971 (Cth) (s 4A(a)(i)) of that Act); (v) sponsorship of overseas relatives to settle in Australia under Australia's Migration Program; (vi) family tax benefit under s 21(1)(b)(i) of the A New Tax System (Family Assistance) Act 1999 (s 3(1)) (Family Assistance Act); (vii) childcare benefit under s 42 of the Family Assistance Act; and (viii) once it came into force, paid parental leave under s 31 of the Paid Parental Leave Act 2010 (Cth) (s 45). 28 For the purposes of evaluating ground 1(a), it is sufficient to focus upon only some of the statutory benefits and entitlements which became available to the applicant when he became the holder of a RoS visa in June 2009. The following analysis draws heavily on the Minister's supplementary submissions dated 8 August 2017. 29 (i) Social Security benefits: At the time the Minister considered whether or not to revoke the visa cancellation decision affecting the applicant, under the SS Act, long term social security payments such as age and disability support pensions had a qualifying residence requirement of ten years (ss 43 and 94 respectively). The terms "Australian resident" and "qualifying Australian residence" were defined in s 7 of the SS Act. An "Australian resident" was relevantly defined in s 7(2) as including a person who held a permanent visa. The term "permanent visa" had the same meaning as in the Migration Act (see s 7(1) of the SS Act). There was no dispute that the applicant's RoS visa was a permanent visa prior to its cancellation. By s 7(6) of the SS Act, a person had a "qualifying residence exemption" for a social security pension if the person was a "refugee" or a "former refugee", which terms were both defined in ss 7(6B) and 7(1) respectively. Sub-paragraph 7(6B)(c)(iii) of the SS Act provided that a person was a "refugee" for the purposes of that provision if the person was the holder of a permanent visa of a class referred to in a declaration of the Minister for Social Security under s 25 of the SS Act. Under that latter provision, the Minister was empowered, by legislative instrument, to declare that a particular class of visa be a class of visa for the purposes of sub-paragraph 7(6B)(c)(iii) (i.e. see further below). "Former refugee" was defined in s 7(1) to mean "a person who was a refugee but does not include a person who ceased to be a refugee because his or her visa or entry permit (as the case may be) was cancelled". 30 By a legislative instrument dated 7 August 2008, the relevant Minister made a declaration under s 25 of the SS Act which had the effect of declaring RoS visas to be a class of visa for this purpose. Accordingly, the holder of a RoS visa was a "refugee" for the purposes of the SS Act and became eligible for relevant statutory entitlements and benefits under social security law, subject of course to meeting any other relevant criteria, such as the age requirement for an age pension. 31 The eligibility criteria for the "Newstart allowance" were defined differently in the SS Act. They turned upon a person being either an Australian resident or a person who was exempt from the residence requirement within the meaning of s 7(7) (see s 593(1)(g)(ii) of the SS Act). The applicant's eligibility for the Newstart allowance depended upon him holding a permanent visa, which qualified him as an "Australian resident". Similarly, because the applicant held a permanent visa, he also qualified for the age pension and disability support pension (along with all other persons holding a permanent visa), as long as other relevant criteria were met. In addition, because of the s 25 declaration dated 7 August 2008, the applicant had a "qualifying residence" exemption for the purposes of the age pension and disability support pension. 32 (ii) Medicare benefit and pharmaceutical benefits: As to the applicant's eligibility for benefits and entitlements under the Medicare scheme once he was granted a RoS visa, as at June 2009, a Medicare benefit was payable in respect of medical expenses incurred in respect of certain services rendered to an "eligible person" (s 10 of the Health Insurance Act). An "eligible person" was defined in s 3 of that statute to be "an Australian resident or an eligible overseas representative". The term "Australian resident" was defined in s 3 to mean, relevantly, a person who was, within the meaning of the Migration Act, the holder of a permanent visa. A person's entitlement to receive pharmaceutical benefits depended upon the person being an "eligible person" within the meaning of the Health Insurance Act (see s 86 of the National Health Act). The applicant became such a person when he was granted a RoS visa. 33 In brief, prior to his RoS visa being cancelled, the applicant, for example, qualified as a "refugee" within the meaning of s 7(6) of the SS Act, which then qualified him for various benefits and entitlements. But he necessarily lost his eligibility for those benefits and entitlements when his RoS visa was cancelled by the Minister. This was an inevitable legal consequence of the Minister's visa cancellation decision, which for the reasons explained above, was a mandatory decision. This legal consequence continued if the Minister, in exercising his discretion and power, declined to revoke the original mandatory decision to cancel the applicant's RoS visa. There is nothing in the Minister's statement of reasons in respect of his non-revocation decision to indicate that he turned his mind to the legal consequences for the applicant if the original decision was not revoked, in terms of the applicant's eligibility for a range of benefits and entitlements under, for example, the SS Act, the Health Insurance Act and the National Health Act. 34 It is an insufficient answer that the applicant became eligible for these entitlements and benefits because he, together with many other people, was the holder of a permanent visa and not because of his refugee status. That is because, as noted above, the applicant only obtained his permanent visa (i.e. the RoS visa) because he held a temporary protection visa which was granted on the basis that he was a refugee. Nor is it to the point that, because of other reasons, the applicant may not have qualified, for example, for the age pension because of his age, when the Minister was considering whether or not to revoke his visa cancellation decision. The essential point is that the applicant's historical status as a refugee, which underpinned his RoS visa, made him eligible for various pensions and entitlements under the SS Act as long as he satisfied all other relevant criteria. 35 I accept the applicant's submission that the Minister was obliged to take into account the legal consequence of not revoking the cancellation of his RoS visa. This consequence included that the applicant would continue to be denied eligibility for the benefits and entitlements under both the SS Act and the Medicare scheme which otherwise would be available to him if he satisfied all other relevant criteria. This could be characterised as either a failure to take into account a mandatory relevant consideration within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 39-40 or a failure on the part of the Minister properly to understand the legal consequences of his decision not to revoke the visa cancellation decision under s 501CA(4) of the Act (see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [17] per Allsop CJ and Katzmann J and at [177] per Buchanan J). 36 I do not accept the Minister's submission that, in fact, he did take into account the applicant's status as a refugee. Such consideration as the Minister gave to this matter in [32] and [34] of his statement of reasons is confined to the issue of non-refoulement and not to the legal benefits and entitlements for which the applicant was eligible arising from his status as a refugee and the relevance of that status to his RoS visa, which benefits and entitlements were lost when his visa was cancelled and would continue to be lost if the cancellation decision was not revoked. 37 Of course, it is ultimately a matter for the Minister to assess whether the weight to be attached to this matter, whether characterised as a mandatory relevant consideration or as an obligation to address the legal consequences of the non-revocation decision, is outweighed by other countervailing considerations in the particular case. It would be open to the Minister, in conducting the balancing exercise, for example, to give more weight to a benefit or entitlement which the applicant was already receiving but had now lost because of the visa cancellation, as opposed to, for example, the age pension, which the applicant might receive in the future. The latter is an example of a non-accrued entitlement or benefit. 38 Nor, in my view, does the Minister's legal obligation to address the legal implications of the person's status as a refugee and the loss of that status depend upon the affected person raising the matter (notwithstanding that, as noted above, the applicant here did in fact raise the issue of his status as a refugee). That is because, as the person with legal responsibility for the administration of the Act, it should be assumed that the Minister has access to all relevant information about a person's migration status and history. It can reasonably be assumed that the Minister's Department is in possession of all relevant information concerning a person's migration status, including the fact that the person has been assessed as a refugee and granted a visa on that specific basis. Given that the effect of cancelling a person's visa is automatically to cancel all other visas held by the affected person with some specified exemptions, including where the other visa is a protection visa (see s 501F(3) of the Act), the Minister's focus will generally be on the particular visa which has been cancelled. But in a case such as the present, that visa was granted to the applicant only because he had previously been granted a particular type of visa which recognised his status as a refugee. 39 Le is distinguishable on at least three grounds: (a) The question of whether a particular matter was a mandatory relevant consideration arose there in the context of a different statutory provision, namely s 501(2) of the Act and the Minister's power to cancel a visa on character grounds. Natural justice applied to that process of decision-making. That is a different statutory regime to that here, where there has been a mandatory cancellation of a visa under s 501(3A) (where natural justice is expressly stated not to apply) and the Minister subsequently gives consideration under s 501CA(4) to whether or not to revoke the original decision. (b) In Le, Ms Le made no claim to be a refugee in the representations she made to the Minister prior to her visa being cancelled, notwithstanding that on her initial arrival in Australia in 1984, she was granted permanent residence on the basis of her refugee status (see [48] of the Minister's statement of reasons in that decision, which is set out in [9] of Le). Indeed, there was evidence that Ms Le had returned to her country of origin twice since first coming to Australia in 1984. (c) Although Ms Le relied upon her status as a refugee in first entering Australia and Australia's continuing obligations to her because of that status, her judicial review case did not squarely raise the issue relied upon by the applicant here in ground 1(a).

(b) Ground 1(b): Australia's non-refoulement obligations 40 The applicant claimed that the Minister failed to take into account another mandatory relevant consideration, namely whether or not Australia owed non-refoulement obligations in respect of him. The applicant drew attention to the fact that in cases such as Ayoub, COT15 and Le, the issue of whether Australia owed non-refoulement obligations in relation to a visaholder whose visa was cancelled were decisions which involved the exercise of power under s 501 of the Act. He submitted that only in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 (BCR16 first instance) did the issue arise in the context of a non-revocation decision under s 501CA(4). He further submitted that that case was distinguishable because the visaholder there was on a partner visa and not one which recognised the person's status as a refugee. Alternatively, he submitted that BCR16 first instance was wrong. 41 Prior to the hearing of this proceeding, the Full Court published its reasons for judgment in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16 Full Court), which reversed BCR16 first instance. This gave rise to ground 1B of the further amended originating application (see further below).

Consideration of Ground 1(b) 42 As will shortly emerge, ground 1B, which also relies on BCR16 Full Court, will be upheld. Accordingly, it is not necessary to resolve the alternative argument raised by ground 1(b).

(c) Ground 1(c): Failure to have regard to the prospect of indefinite detention 43 The applicant claimed that the Minister failed to take into account a mandatory relevant consideration, namely that the legal consequence of the non-revocation decision was the possibility of him being indefinitely detained (citing Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [131]). The applicant submitted that the legal consequence of the visa cancellation decision gave rise not only to the possibility, but the likelihood, of him being indefinitely detained. That is because of the applicant's existing status as a refugee, which made it likely that Australia owed him non-refoulement obligations, and the unlikelihood of him obtaining a protection visa because of the operation of s 36(1C) of the Act and his bad character (which provided one of the planks for the visa cancellation decision). While the applicant acknowledged that the Minister made reference in his statement of reasons to the "prospect of his indefinite detention", he complained that no assessment was made of the likelihood of this occurring. 44 The Minister submitted that ground 1(c) was inconsistent with binding authority (citing Ayoub at [19] and AZAFQ v Minister for Immigration and Border Protection [2015] FCAFC 105; 243 FCR 451 at [70])). The Minister submitted that, in any event, he did consider the prospect of indefinite detention and pointed to [34] of his statement of reasons. The Minister denied that there was an obligation on him to assess the likelihood of indefinite detention.

Consideration of ground 1(c) 45 For the reasons advanced by the Minister, which are summarised immediately above, this ground is rejected.

(d) Ground 1A: Misunderstanding legal consequences 46 In the alternative to ground 1(c), the applicant claimed that the Minister fell into jurisdictional error in making the non-revocation decision because he misunderstood the legal consequences of the exercise of his power under s 501CA(4). This was because, if it was subsequently found that Australia did owe relevant non-refoulement obligations, the applicant could not be removed to Zimbabwe and would face the prospect of indefinite immigration detention due to the operation of ss 189 and 196 of the Act. This was said to involve a misunderstanding of the legal consequences of the non-revocation decision because s 197C operated to require the applicant to be removed to Zimbabwe irrespective of Australia's non-refoulement obligations. In support of this ground, the applicant placed heavy reliance on North J's decision in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16) at [12] and [27]. 47 The Minister submitted that any error of the kind identified in DMH16 was not material in the particular circumstances here. This was because the Minister's reasoning in [34] of the statement of reasons, to which ground 1A is directed, is alternative reasoning to the "primary reasoning" in [29] and [30] and there was no error in that primary reasoning. Accordingly, if the Minister did err as to the legal effect of s 197C, the error was not material in the applicant's case.

Consideration of ground 1A 48 Because of the applicant's success in relation to both grounds 1(a) above and 1B below, it is unnecessary to determine this ground.

(e) Ground 1B: Procedural unfairness, constructive failure to exercise jurisdiction 49 In the alternative to ground 1(b), the applicant claimed that the Minister fell into jurisdictional error because he denied the applicant procedural fairness and/or constructively failed to carry out the statutory task required by s 501CA(4). This judicial review ground is directed to that part of the Minister's reasoning in [29]-[31] of his statement of reasons which is to the effect that, because the applicant was not prevented by s 501E of the Act from applying for a protection visa, it was unnecessary to determine whether non-refoulement obligations were owed to the applicant in the context of making the non-revocation decision. The applicant contended that it was likely that the question whether non-refoulement obligations were owed would not be considered in assessing any application for a protection visa by him and, in any event, the context of a protection visa application was different from the context of a non-revocation decision. In substance, this ground relied upon the reasoning of the majority in BCR16 Full Court. 50 BCR16 Full Court concerned the exercise of power under s 501CA(4), following the mandatory cancellation of a visa under s 501(3A). These circumstances are similar to those here. The applicant in BCR16 Full Court asked the Minister to take into account in considering whether or not to revoke the visa cancellation decision the applicant's concerns if he were returned to Lebanon. Reference was made to the civil war and associated danger and violence in that country. The applicant claimed that he would be killed by insurgents and militants as an Alawite. The briefing note to the Assistant Minister in that case referred to this material put forward by the applicant at the level that it "may give rise to international non-refoulement obligations" and further noted that the applicant was not prevented from applying for a protection visa. 51 The Assistant Minister's reasons, as referred to in BCR16 Full Court, contained a paragraph which was substantially similar to [30] of the Minister's reasons here. That paragraph ([19]), which is set out in BCR16 Full Court at [16], acknowledged that BCR16 had made claims that might give rise to international non-refoulement obligations but added that the applicant was able to make a valid application for another visa. It was further noted that the applicant was not prevented by s 501E of the Act from seeking a protection visa. Thus it was said to be "unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of determining whether or not to revoke the mandatory visa cancellation decision". 52 Although the Minister acknowledged the similarity in the wording of the relevant paragraphs in both BCR16 Full Court and here, he submitted that this did not matter. This was because, so he submitted, there was a factual finding made in BCR16 Full Court which underpinned the majority's decision and no similar factual finding was or could be made here in the light of the additional evidentiary material adduced by the Minister. The factual finding is to be found in [68] of the joint judgment of Bromberg and Mortimer JJ in BCR16 Full Court. It is to the effect that the Assistant Minister's reasons made no reference to the character criteria for the grant of a protection visa and there was no "consciousness" on the part of the Assistant Minister that any application for a protection visa by a person whose visa has been cancelled under the mandatory terms of s 501(3A) may have to be refused because of non-satisfaction of the character criteria, in which event considerations of risk of harm to the Australian community may never be reached. 53 The additional evidentiary material relied upon by the Minister here is in the form of an affidavit dated 30 June 2017 by Ms Miranda Lauman. Ms Lauman is an Assistant Secretary in the On-Shore Protection Branch of the Department of Immigration and Border Protection. She said that an internal Departmental document, called the Procedures and Advice Manual 3 for protection visas (PAM 3), provided "an order of assessment and guidance in determining Protection visas" (as referred to in [25] above). In particular, the Minister drew attention to the following paragraph on page 14 of PAM 3 (emphasis added): Although a PV applicant may be unable to meet the protection obligations criteria in the Act if they come under any of the provisions in s 36(1B), s 36(1C), s 5H(2) or s 36(2C) decision-makers must assess whether the applicant engages protection obligations. The reason for making this assessment is to determine whether any of Australia's protection obligations under international instruments are engaged even if a PV cannot be granted. This assessment is important as it will assist with the appropriate management of the applicant's case following the decision on their application. 54 The Minister submitted that, having regard to this evidence, [30] of his statement of reasons in this case should be read as reflecting that the likely course of decision-making would be in accordance with that part of PAM 3. Accordingly, the Minister submitted that the majority view in BCR16 Full Court is distinguishable. 55 The Minister also contended that BCR16 Full Court provided no support for the applicant's claim that the Minister had failed lawfully to consider the applicant's claim that he would face persecution or even be killed if he were returned to Zimbabwe because of his ethnicity and political opinion and because he sought entry to Australia as a refugee. The Minister emphasised that the appellant in BCR16 Full Court did not, in fact, refer to or otherwise seek to engage Australia's non-refoulement obligations. Instead, there was a misunderstanding of his claims by the Minister and the Department. This was said to have been highlighted by Bromberg and Mortimer JJ in [72]. It is desirable to set out that paragraph: 72. Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to "non-refoulement". It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister's reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia's international non-refoulement obligations. Whether or not the harm the appellant feared had a "private quality" as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia's international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a "reason" the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task. 56 The Minister emphasised that, unlike the position in BCR16 Full Court, the applicant here put his case to the Minister squarely on the basis that the reason for revoking the original decision was encompassed in his refugee claims. Accordingly, the Minister submitted that there was no error in proceeding on the basis that what the applicant described as his "refugee claims" was the "reason" he sought to advance for revoking the cancellation. Moreover, the Minister did have regard to the matters the applicant advanced in support of his request that the visa cancellation decision be revoked, as is reflected in [32] and [54] of the Minister's statement of reasons. 57 The applicant submitted that the Minister's attempts to distinguish BCR16 Full Court should not be accepted. First, as to the Minister's additional evidence concerning the process for determining protection visa applications, the Minister's position ignores: (i) the majority's reasoning at [48] to [51] of BCR16 Full Court, which relates to the different role of non-refoulement obligations in assessing a protection visa application compared with the different issue as to whether there is "another reason" why a mandatory visa cancellation should be revoked; and (ii) the majority's reasoning at [52], which relates to consistency in administrative decision-making about the operation of the character provisions in the Act. 58 The applicant emphasised that the Minister had not advanced any evidence which related directly to a person in the position of the applicant, being a person whose visa had been cancelled under the mandatory terms of s 501(3A) and who was the subject of a non-revocation decision. Moreover, the applicant emphasised that the Minister's evidence did not address the possibility that the Minister might exercise his power under s 501(3) of the Act to refuse any protection visa application which the applicant might make. Under that provision the Minister is empowered, without granting a person natural justice, to refuse to grant the person a visa if the Minister reasonably suspects that the person does not pass the character test or the Minister is satisfied that refusal is in the national interest. 59 As to the Minister's reliance on the majority in BCR16 Full Court applying Goundar, the applicant submitted that the Court would not find that the applicant's representations to the Minister in favour of revoking the visa cancellation decision were limited to claiming that Australia owed non-refoulement obligations with respect to him. That is primarily because here, as in BCR16 Full Court, the applicant did not expressly describe any of his claims in terms of "non-refoulement". His representations were wide enough to encompass the risk of harm to him which may fall outside international protection obligations (citing BCR16 Full Court at [72]).

Consideration of ground 1B 60 For the following reasons, this ground should be accepted. In my opinion, this case is indistinguishable from the majority joint judgment in BCR16 Full Court. Moreover, PAM 3 does not provide an adequate basis for distinguishing that binding authority. 61 The Minister's reasons in this case contain a virtually identical passage to the material in the Assistant Minister's reasons which were the focus in BCR16 Full Court. The relevant passage in BCR16 Full Court is set out in [16] of the majority's reasons. 62 Paragraphs [29] to [31] of the Minister's reasons here are as follows: Non-refoulement obligations 29. [The applicant] states that if he were sent back to Zimbabwe he would face prosecution or even be killed because of his ethnicity as a member of the minority [redacted] tribe, and his activities in opposing the government of Robert Mugabe as a member [of a particular political group] which is a banned political party in Zimbabwe, and because he sought entry to Australia as a refugee. 30. [The applicant] has made claims that may give rise to international non-refoulement obligations. [The applicant] is able to make a valid application for another visa. In particular I note that [the applicant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of this decision. 31. I note that [the applicant] has previously been found to be owed non-refoulement obligations towards (sic) and therefore might be again, if he makes a further application for a Protection visa. This would mean that the applicant] cannot be removed to Zimbabwe. I also accept that, while [the applicant] would be able to be removed to a country other than Zimbabwe, there is currently no known prospect of removal to such a country. 63 In BCR16 Full Court, the majority accepted at [66]-[67] that the Assistant Minister had wrongly considered that non-refoulement obligations would necessarily be considered if the appellant applied for a protection visa, when it was held that this was not the case. This was for the reasons explained by Bromberg and Mortimer JJ at [36]-[47] of their joint judgment. Significantly, at [48], Bromberg and Mortimer JJ found that there was a distinction between the consideration of non-refoulement obligations in the context of considering the exercise of the revocation power in s 501CA(4), as opposed to the exercise of power under s 65 of the Act whether or not to grant a person a visa. The former power is discretionary, whereas s 65 involves a different exercise, as their Honours further explained at [49]-[50]: 49. In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be "satisfied" of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be "satisfied" to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65. 50 For example, if the Minister is satisfied that the appellant has been "convicted by a final judgment of a particularly serious crime" and "is a danger to the Australian community" (the criterion in s 36(1C)(b)), then s 65 compels the Minister to refuse to grant a protection visa. Whether the risk of harm to the appellant in Lebanon might be real, it will avail the appellant nought if other visa criteria are found not to be satisfied. 64 The following observations of Bromberg and Mortimer JJ in BCR16 Full Court at [68] are also apposite to the circumstances here: 68. … There is no evidence of consideration of the course of decision-making on a protection visa application made by a person in the appellant's position: that is, a person whose visa had been cancelled under the mandatory terms of s 501(3A), and a person whom the Assistant Minister had personally decided should not be subject to a favourable revocation decision under s 501CA, because of the risk of harm he posed to the Australian community. The Assistant Minister's reasons do not advert to the character criteria for a grant of a protection visa. Her reasons disclose no consciousness that the appellant's protection visa application may be required to be refused because of non-satisfaction of character criteria, so that considerations of risk of harm might never be reached. 65 In [68] to [72] of BCR16 Full Court, Bromberg and Mortimer JJ identified two misunderstandings of the law by the Assistant Minister in that case. Those misunderstandings are also evident here. First, the likely course of decision-making under the Act was not properly understood because there was no apparent appreciation by the Minister that, even if the applicant applied for a protection visa, his application might be rejected on character grounds and without the decision-maker having to address or assess his fears of persecution. For the reasons given by the majority in BCR16 Full Court at [37] to [52], the scheme of the Act permits and, indeed, contemplates that a person who poses real character concerns is unlikely to be granted a visa and it makes "much administrative sense for this to be dealt with as an initial consideration". 66 This finding is not avoided in the circumstances of this case by reference to Ms Lauman's affidavit and PAM 3. That material relates to the Department's decision-making processes and procedures in assessing a protection visa application. There is no evidence that the Minister was under a legal obligation to act in accordance with PAM 3 when he or she chooses personally (or is required by the Act) to exercise a power such as that conferred by s 501CA(4) or indeed s 65. As the applicant also pointed out, however, any future application by him for a protection visa might be rejected by the Minister personally acting under s 501(3), relying simply on character (or national interest) grounds and without the applicant being afforded procedural fairness before any such decision was made. There is no evidence of any consciousness or awareness on the Minister's part of the significance to any future decision-making by the Minister of the serious adverse findings previously made concerning the applicant's character, based on his criminal conviction, in cancelling the person's visa. 67 In any event, in its own terms, PAM 3 provides "policy" and "guidelines" and, presumably, could be departed from because of the merits of a particular case if a Ministerial delegate happened to consider and determine a future application for a protection visa. There was no evidence to indicate that PAM 3 had the status of a Ministerial direction under s 499 of the Act. I note that Jagot J took a similar view of this material in Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 (Steyn) at [19] as also did White J in Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 (Ibrahim) at [56] - [64] who provided additional reasons for rejecting the material. 68 For completeness, for the reasons given in [36] above, I reject the Minister's contention that BCR16 Full Court is distinguishable because the Minister claims that he did take into account the applicant's "refugee claims". There is nothing in the Minister's statement of reasons which justifies a finding that the Minister turned his mind to the continuing loss of the applicant's benefits and entitlements, as summarised in Exhibit A. The Minister's consideration was limited to the issue of non-refoulement and, even in respect of that matter, was substantially deferred until such time as the applicant might apply for a protection visa. 69 The second misunderstanding as identified in BCR16 Full Court, which is also present here, relates to the application of Goundar. The applicant here plainly identified the harm he feared if he were returned to Zimbabwe. Several times in his written representations dated 23 December 2015 to the Minister he said that he would face prosecution or be killed if he were returned to Zimbabwe. The applicant linked this feared harm to his status as a refugee, but that does not provide a sufficient basis for distinguishing his case from BCR16 Full Court on this issue. As the majority pointed out there at [72], whether or not the feared harm has a "private quality" (as in Goundar itself) there "might be other reasons it be harm outside the kind covered by Australia's international non-refoulement obligations". In the context of an application by him for a protection visa, the feared harm identified by the applicant here may not have been accepted by the decision-maker as being sufficiently linked to a Refugees Convention ground, but the harm expressed by the applicant in his representations was nevertheless being put forward by him as a "reason" within the meaning of s 501CA(4) for revoking the visa cancellation decision. That feared harm was not considered by the Minister because of his misunderstanding as to law as identified above and his failure to recognise the different legal requirements applying to decision-making under s 65 as opposed to s 501CA(4) of the Act. Consistently with BCR16 Full Court, this involves jurisdictional error (see also Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). 70 Accordingly, because I am bound by the majority's decision in BCR16 Full Court and consider that it is indistinguishable, ground 1B must be upheld. A similar approach was taken by Kenny J in ALN17 v Minister for Immigration and Border Protection [2017] FCA 726 (ALN17); Jagot J in Steyn (s 501(2) decision) and White J in Ibrahim. The Minister did not contend that BCR16 Full Court should not be followed in circumstances where the Minister has filed an application for special leave to appeal that decision in the High Court. Even if he had made such a contention, that would likely be an insufficient basis for not following a currently binding authority. 71 As noted above, the applicant here contended that the Minister had further misunderstood the law, namely his understanding of the operation of s 197C of the Act and whether that provision precluded any consideration of non-refoulement obligations. I note that a similar argument was raised in both BCR16 Full Court and ALN17 but, in both cases, the view was taken that the argument should await an appropriate case for consideration. Having regard to the applicant's success on the other aspects of ground 1B, resolution of the complex issues concerning the proper construction and application of s 197C should await another occasion where it is necessary to do so.

(f) Ground 2(a): Irrelevant consideration taken into account by reference to forfeiture of "privilege" of remaining in Australia 72 The applicant claimed that the Minister took into account an irrelevant consideration, namely the "principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia". The applicant relied upon Collier J's decision in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 at [55]-[57].

Consideration of ground 2(a) 73 This ground cannot succeed, in view of the Full Court's subsequent reversal of Collier J's decision in Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 and the High Court's refusal to grant special leave to appeal (see [2017] HCASL 271).

(g) Grounds 2(b) and (c): Other irrelevant considerations 74 The applicant claimed that other irrelevant considerations were taken into account, namely that his rehabilitative efforts were "untested" and the significance of his knowledge of Zimbabwe's "cultural and social norms". As to the former matter (which relates to [46] of the Minister's reasons), the applicant submitted that it was illogical and impermissible to take into account that his rehabilitative efforts were "untested" in circumstances where the occasion for considering whether or not to exercise the power under s 501CA(4) can only arise where there has been a mandatory cancellation of a visa and the former visaholder is in full-time custody (s 501(3A)(b)). Necessarily, therefore, the person will not have had an opportunity to have their rehabilitative efforts tested by living full time for an extended period without supervision in the general community. 75 In response, the Minister submitted that this ground was based on an unduly confined reading of the Minister's reasons. The previous paragraph in those reasons, namely [45], contains a consideration by the Minister of the fact that the applicant had been given limited periods of unsupervised leave while serving his prison sentence. The Minister submitted that he was doing no more than placing that matter in its proper context. The Minister submitted that there was nothing illogical or impermissible about comparing that limited period of unsupervised leave with living full time for an extended period without supervision in the general community. 76 As to the Minister's findings concerning the applicant's knowledge of Zimbabwe's cultural and social norms, the applicant contended that it was "absurd" to reason, as the Minister did in [27] of his reasons, that, because the applicant had lived in Zimbabwe for the first 37 years of his life, his knowledge of its cultural and social norms would facilitate his reintegration. This was because the Minister did not undertake any assessment of the applicant's claims for protection which, if accepted, would mean that the applicant's knowledge of cultural and social norms would be of no use to him if he was constantly on the run from the government in Zimbabwe. 77 In response the Minister contended that the applicant had approached this aspect of the Minister's reasons on this matter without regard to the proper approach established in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259. Having regard to the structure of the reasons, the Minister contended that the passage at [27] should be read having regard to the fact that the Minister was not at that point considering whether non-refoulement obligations were owed.

Consideration of grounds 2(b) and (c) 78 Both these grounds are rejected for the reasons advanced by the Minister in his submissions.

(h) Ground 3: Legal unreasonableness 79 The applicant's claim that the Minister's non-revocation decision was unreasonable in the legal sense relied primarily upon the High Court's decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. In support of this claim, the applicant adopted much of the case he put in support of grounds 1 and 2. In particular, he submitted that: (i) it was illogical for the Minister to refuse to consider whether Australia owed non-refoulement obligations in circumstances where the applicant had refugee status and there was no guarantee that such obligations would fall to be considered in any protection visa application made by the applicant; (ii) it was illogical for the Minister to consider the prospect of indefinite detention without making any assessment as to its likelihood or considering the effect of s 197C of the Act; (iii) it was capricious of the Minister to refer to the "principle" that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia; and (iv) it was illogical and irrational for the Minister to take into account the matters which the applicant claimed to be irrelevant considerations in grounds 2(b) and (c) of the further amended originating application. 80 In response, the Minister emphasised the breadth of his discretion under s 501CA(4), and the observations of the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [63] and [65]. 81 In response to the applicant's contention that there was no intelligible or logical justification for the non-revocation decision because the preponderance of matters favoured revocation and no finding was made as to the likelihood of the application reoffending, the first matter was said to be an impermissible complaint about the merits of the Minister's decision. As to the second matter, the Minister relied upon authorities which indicated that the Minister was not obliged to engage in an evaluation of the likelihood of the person engaging in conduct that may cause harm (citing Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [74] and [78], Ayoub at [44] and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88 at [41]).

Consideration of ground 3 82 In view of the applicant's success in respect of both grounds 1(a) and 1B, it is unnecessary to determine ground 3.

(i) Ground 4: Constitutional invalidity 83 The applicant contends that both the visa cancellation decision and the non-revocation decision were invalid because the provisions under which they were purportedly made are themselves constitutionally invalid. This is a matter which is before the High Court in Falzon v Minister for Immigration and Border Protection (S31/2017). On 15 June 2017, an order was made under r 30.01(1) of the Federal Court Rules 2011 (Cth) that all other grounds be heard separately from ground 4.

Conclusion 84 For these reasons, the further amended originating application is upheld. The non-revocation cancellation decision dated 21 November 2016 will be set aside and the matter remitted for the Minister's reconsideration according to law. The respondent must pay the applicant's costs of and incidental to the proceedings as agreed or assessed. Orders will be made accordingly. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Migration Act 1958(Cth)ss 5, 35A, 36, 65, 82, 189, 196, 197C, 499, 501, 501CA, 501E, 501F

Social Security Act 1991(Cth)ss 7, 25, 43, 94, 593

Ibrahim v Minister for Immigration and Border Protection (No 2) [2017] FCA 1218 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 Tesic v Minister for Immigration and Border Protection [2016] FCA 1465

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (24)