BJI20 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-12-19|Before: McEvoy J

The applicant's submissions 22 The applicant contends that the Minister failed to consider her representation that she would or may face violence, discrimination and other harm (whether or not that harm engaged Australia's international non-refoulement obligations) on account of her sexuality if removed to Türkiye. She submits that she made representations to the Minister in respect of Australia's non-refoulement obligations and in respect of the (factual) harm she would face on account of her sexuality if returned to Türkiye. She maintained that these submissions extended to references to types of harm which were not "serious" or "significant" harm within the meaning of the Act, including that she would live in isolation, face humiliation and embarrassment, that it would be extremely difficult for her to integrate into society in Türkiye, that she would be repeatedly shamed and discriminated against, and that she would "not have any rights to live her choices the way she wants". It was said that these submissions were supported by a significant volume of country information and other evidence. 23 It is the applicant's position that the Minister failed to consider these claims and the underlying facts relating to the harm that she considers she may suffer. The applicant says that the Minister's reasons concerning non-refoulement obligations engaged with her claims regarding her fears through the criteria of a "real risk" or "chance" and "serious" or "significant harm". The applicant submits that although the Minister did not accept conclusively that her claims gave rise to such a risk, he accepted that there was potential for Australia's non-refoulement obligations to be engaged. The applicant contends that although this consideration weighed in her favour, the weight attributed to it appears to have been moderated by the fact that she was entitled to apply for a protection visa. Further, the applicant submits that in assessing the extent of impediments she may face if removed, the Minister merely "adverted" to aspects of her claims to fear violence, discrimination and other harm on account of her sexuality, and that he did not sufficiently evaluate these claims because he assessed them against the criteria in the Act and the ability to apply for a protection visa when the claims would not be capable of meeting that criteria. The applicant contends that this may have led to the Minister discounting or ignoring possible harm which did not meet the criteria for a protection visa. The applicant advanced a number of examples of this in written submissions and at the hearing. It was submitted that this approach was sufficient for the consideration of the existence of non-refoulement obligations, but insufficient and incorrect in relation to the consideration of harm the applicant may face as a factual matter. 24 It will thus be seen that the essence of the applicant's contention is that the Minister did not sufficiently take into account the alleged facts underpinning the claim where those facts were relevant to the consideration of whether there was "another reason" to revoke her visa cancellation. She relies in this respect on Plaintiff M1 at 317 [39]. The applicant submits that the present case is akin to Minister for Home Affairs v Omar (2019) 272 FCR 589, where it was held that the Minister had not given sufficient consideration to the relevant claims. Referring also to Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at 630 [3] (Allsop CJ), the applicant complains that the Minister has failed to engage with and confront the human consequences of a decision not to revoke the mandatory cancellation of her visa. 25 In oral submissions the applicant maintained that Plaintiff M1 left Omar untouched in that whatever legal consequences flow from findings regarding non-refoulement obligations based on whatever facts, the underlying facts still need to be considered, as do the consequences of those facts. It is the applicant's position that the Minister focussed too heavily on the permission effectively given by Plaintiff M1 insofar as it may be said to permit the deferring of consideration of non-refoulement obligations to a protection visa application, while not resolving the factually based issues that Omar indicates must be resolved. The applicant contends that considering claims and accepting them as plausible is not sufficient. Rather, the Minister must actually respond to the case which is put. The applicant submits that the Minister's reasons on her application were in effect the same as those provided in Omar in that they did not fully engage with the representations which had been made, and therefore they did not comply with the obligations which Omar requires be fulfilled. 26 In relation to materiality, the applicant contends that the question is whether different analysis, free from the alleged error, could have led to a different result: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379 at 389 [33] (Yates, Murphy and Moshinsky JJ). See also, on the issue of materiality, Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at [66] (Mortimer and Bromwich JJ); MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 524 [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ), 562-563 [158] (Edelman J); Nathanson v Minister for Home Affairs (2022) 178 ALD 536 at 547 [32] (Kiefel CJ, Keane and Gleeson JJ), 551 [46] (Gageler J), 566 [105] (Edelman J); Nguyen v Minister for Home Affairs (2020) 170 ALD 38 at 54 [90] (Banks-Smith J); CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 377-378 [61] (Murphy, Mortimer and O'Callaghan JJ). 27 The applicant submits that if the Minister had considered her claims of fear of harm outside of the concept of a claim to non-refoulement obligations, then this would have resulted in the Minister giving greater weight to the impediments she may face if removed, and that if this had been given greater weight the final result might realistically have been different in what was a finely balanced statutory task. 28 In her reply submissions the applicant refers to the Minister's contention that he had made factual findings under the heading of "International non-refoulement obligations", and submits that it is misplaced for the Minister to maintain that those findings were "untethered from the question of whether the applicant's claims invoked Australia's non-refoulment obligations". The applicant submits that the factual findings in this part of the Minister's reasons were not directed to questions different from, and in many respects narrower than, the present challenge. The Minister had directed his attention to factual matters which might underpin a legal circumstance, whereas ground one of the review is directed to the factual reality for the applicant of removal, whatever the legal position. The applicant contends, in substance, that the Minister was required either to accept the argument that she would suffer from "heinous discrimination", and confront the consequences of that decision, or make a different set of factual findings responsive to the whole of the applicant's submission, and confront the "reality of imposing that scenario on the applicant". 29 The applicant also submits in her reply submissions that the Minister's reasons (particularly [107], [108] and [109]) were not of the standard required in terms of the level of effort in response to the quality of the submissions provided. It is the applicant's position that the Minister needed directly and expressly to confront the reality of forcibly removing her "to live with gross indignity" and face up to the human (and political) costs of forcing that upon her.

The Minister's submissions 30 The Minister notes that the applicant's representations included claims made on her behalf by her legal representatives to engage Australia's non-refoulement obligations under various international instruments to which Australia is a signatory based on her sexual orientation. It is said that the essence of those submissions was that the applicant would face violence, discrimination, and harassment in Türkiye sufficient to amount to serious harm and thereby engage Australia's non-refoulement obligations. 31 The Minister submits that the statements made by the applicant's friends and family that she would "face humiliation" and "embarrassment", have difficulty integrating into Turkish society, "be repeatedly shamed and discriminated against", and not have "any rights to live her choices the way she wants" were different ways of making the same point. That is, that she would face discrimination and harassment in Türkiye on the basis of her sexual orientation were she forced to return. In relation to these representations the Minister contends: (a) they were brief statements which did not themselves give rise to any claims independent of those raised by the applicant's legal representatives; (b) the relevant statements were not mandatory relevant considerations in the exercise of the power conferred by s 501CA(4) of the Act; (c) while he was not permitted to overlook those statements, their brevity and the fact that they were not adopted by the applicant or her representatives in any submissions made by them, and did not assume prominence in those submissions, informed the degree of effort needed by the Minister to consider them, referring in this regard to Plaintiff M1 at 312 [25] and KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15 at 28 [52] (and the cases there cited); (d) the references in his reasons to having considered the applicant's representations and the documents she provided in support of them were alone sufficient to discharge his duty to consider those statements; and (e) in that regard it is well-established that the absence of reference to a particular claim or item of evidence in a decision-maker's statement of reasons does not alone supply the inference that it was not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31] (French CJ and Kiefel J). 32 It is the Minister's position that in the course of addressing the topic of Australia's non-refoulement obligations he considered, and made findings in relation to, the factual matters underpinning the claims said to enliven those obligations. In doing so the Minister maintains that he engaged not only with whether the applicant's claims might enliven Australia's non-refoulement obligations, a matter which he says he was entitled to defer, but also the underlying claims to fear discrimination or violence. The Minister submits that he made findings that there was a possibility of discrimination or the applicant being subjected to violence in Türkiye on the basis of her sexual orientation which would not rise to the level of torture or put her life in danger, and that these were untethered from the question of whether they invoked Australia's non-refoulement obligations. 33 The Minister contends that he did consider whether the applicant's representations were sufficient to enliven Australia's non-refoulement obligations. Even then, however, the Minister submits that he made findings in relation to the evidence and submissions underpinning the applicant's claims to invoke those obligations before recording, in his reasons, whether they enlivened those obligations. 34 The Minister submits that the applicant's argument that he did not properly evaluate her claims, instead dealing with them under the heading of "international non-refoulement obligations", proceeds on an incorrect footing. That is, that his relevant findings did not record, or did not only record, his assessment of the applicant's claims against the criteria set by the Act. The Minister contends that his findings grappled with the factual matters raised in her evidence and submissions. The fact that he found that the effect that the harm to which the applicant may be subjected would not be so significant as to put her life in danger - a finding that amounted to a qualitative assessment of the degree of harm to which the applicant may be exposed in Türkiye - did not render inconsequential the findings made about whether the claims to fear harm had merit. The Minister also referred to the parts of his reasons where the topic of harm as a factual matter was further considered in relation to the extent that any impediments the applicant may face in relation to establishing herself and maintaining basic living standards. The Minister notes he found that members of the LGBTI community "face a moderate risk of societal discrimination and this may affect [her] ability to access health care, employment and accommodation", but that such discrimination would not result in the applicant being "unable to thrive and exist in Turkey". 35 The Minister submits that findings in these terms were sufficient to respond to the applicant's submissions about the harm she would face. The Minister contends that his acknowledgement that "societal discrimination" exists in Türkiye on the basis of sexual orientation is responsive to statements that the applicant "will face humiliation" and "embarrassment" and that she would be "repeatedly shamed and discriminated against". He submits also that the rejection of the notion that she would be unable to thrive and exist in Türkiye met the claims that she would "live in isolation", have "difficult[y] … integrat[ing] into the society of Turkey" and "not have any rights to live her choices the way she wants". These findings, so the Minister submits, go beyond covering "one narrow element of the feared discrimination, ostracism and harm" raised in the applicant's evidence. 36 The Minister also maintains that his findings at [108] (concerning the applicant's fear of returning) and [109] (relating to hardships and impediments), read with [104] (concerning her lack of local knowledge) and [106]-[107] (concerning discrimination by reason of her sexuality) are broad enough to capture those findings he had made in relation to the harm the applicant claimed she would or may face in Türkiye. 37 In relation to materiality, the Minister contends that separate consideration of the applicant's underlying claims to fear harm in the form of discrimination or ostracism based on her sexual orientation could not realistically have led to a different outcome. This is because none of the matters which had been put on her behalf, including her claims to fear harm or hardship based on her sexual orientation, could outweigh the protection of the Australian community. As the Minister observed (at [129]): In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of her other minor extended family members, as a primary consideration, and any other considerations as described above. These include her lengthy residence and bonds, international non-refoulement obligations, her familial links to Australia, and the hardship [the applicant], her family and social networks will endure in the event the original decision is not revoked. (Emphasis added) It was submitted that as this was not a case where the Minister had deferred non-refoulement to a later decision-making process, the reference to "non-refoulement obligations" in [129] encompassed the applicant's factual claims to fear harm or hardship.

Consideration 38 In my assessment it is not correct to conclude that the Minister failed to consider the applicant's representation that she would or may face violence, discrimination and other harm (whether or not that harm engaged Australia's international non-refoulement obligations) on account of her sexuality if removed to Türkiye, or that the Minister's careful and detailed analysis took insufficient account of the alleged facts underpinning the applicant's claim and the human consequences for her of not revoking the cancellation of her visa. 39 The High Court in Plaintiff M1, and the Full Court of this Court in ECE21, Jabari, and Shi, have made it clear that where the decision-maker adverts to and demonstrates understanding of the representations an applicant has made, the degree or quality of the engagement with a given representation is a matter for the decision-maker, as long as the decision-maker acts within the bounds of rationality and reasonableness: Plaintiff M1 at 312-313 [24]-[26]; ECE21 at 424-425 [7]-[9]; Jabari at [51]-[53]; Shi at [23]-[25]; see also JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 718 at [20] (Logan J) and TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 788 at [20] (Logan J). As to the ongoing significance of Hands in this respect in light of Plaintiff M1, see BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 at [64] (Jagot J); BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [124] (Perry J), [146] (Bromwich and Kennett JJ) (BNGP Full Court). 40 The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind - the court does not substitute its decision for that of an administrative decision-maker: Plaintiff M1 at [26], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J). 41 In the circumstances of the present case there is no suggestion that the Minister's decision is irrational or otherwise unreasonable in the sense in which those terms are usually understood: see Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 364-365 [68]-[69] (Hayne, Kiefel and Bell JJ), and 370ff (Gageler J); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 644-648 [121]-[131] (Crennan and Bell JJ); Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. Nor could there be when the Minister's reasons are considered. Even on the subject of understanding and engagement, however, it is apparent that the Minister fully understood and engaged with the representations made on behalf of the applicant as to the level of difficulty she would confront as an LGBTI woman if compelled to return to Türkiye. The Minister did not need to make "actual findings of fact as an adjudication of all material claims": Viane at 406-407 [14]; see also Guclukol v Minister for Home Affairs (2020) 169 ALD 279 (Snaden J); Guclukol at 622 [40]-[41] and 625 [50]; ECE21 at 424-425 [6]-[9]. 42 Indeed, the level of the Minister's understanding of and engagement with the applicant's representations is demonstrated throughout his reasons, to such an extent that it may be accepted that he at least found that there would be a potential risk that the applicant "may face societal discrimination" by reason of her changed sexual orientation (see at [81]). The fact that the Minister went on to state that he did not regard this factor alone as engaging Australia's non-refoulement obligations does not, in my view, negate or otherwise minimise the conclusion that the applicant may suffer societal discrimination if forced to return to Türkiye. 43 There are other illustrations also in the Minister's reasons of his engagement with the applicant's representation that she may face violence, discrimination and other harm on account of her sexuality if forced to return to Türkiye and the extent to which the Minister took account of the facts underlying this representation. 44 These include: (a) [92], where the Minister accepted the possibility that the applicant could face a real risk of suffering which might include discrimination and/or violence as a gay woman in Türkiye and that she could be rendered stateless due to her lack of Turkish passport and criminal history in Australia; (b) [102], where the Minister took account of the applicant's age and health (mental and physical) as well the fact that she was "terrified" of returning to Türkiye; (c) [103], where the Minister noted the applicant's diminished Turkish language skills and cultural barriers and the possibility of this inhibiting her employment and accommodation prospects; (d) [104], where the Minister acknowledged the applicant's lack of contacts in Türkiye and lack of knowledge about the housing or health system, as well as her representation that Türkiye was "not a country of freedom" and that it would not accept her for "being a woman who is gay"; (e) [105], where the Minister analysed the possible consequences of her imprisonment in Australia and criminal record upon her return to Türkiye; (f) [106], where the Minister acknowledged the applicant's representation that she would face discrimination in receiving healthcare, employment and housing due to her sexuality which could "threaten her capacity to subsist, and that her 'low socio-economic level, complete lack of family connections, no education or employment history' would impede her"; (g) [107], where the Minister acknowledged DFAT's assessment that LGBTI individuals face a moderate risk of societal discrimination in Türkiye which may affect her ability to access health care, employment and accommodation; and (h) [109], where the Minister acknowledged that the applicant, having come to Australia as a child, would face hardship, at least initially, in establishing herself with new social and medical networks, maintaining basic living standards and communicating in Turkish, as well as significant other impediments should she be removed, but that these difficulties would not be insurmountable. 45 The Minister's canvassing of these matters sits uncomfortably with the applicant's submission that the Minister merely "adverted" to aspects of her claims to fear violence, discrimination and other harm on account of her sexuality, and that he did not sufficiently evaluate these claims because he assessed them against the criteria relevant to a protection visa, particularly when the Minister's reasons are read as a whole: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). 46 As to the Minister's rejection of the contention that the applicant would be "unable to thrive and exist" (at [107]), it was submitted by the Minister and I accept that an appropriate basis for such a conclusion is to be found at [70]-[71], [74]-[75] and [81] of the reasons: 70. The country information that [the applicant] refers to, provides information on the situation in Turkey relating to LGBTI people ... Whilst most of this information is generic, I acknowledge that there is a potential for discrimination and/or harm, particularly for LGBTI people who come to the attention of the authorities. However, this is not the case with all LGBTI persons residing in Turkey. I note that there may be elements of discrimination from some sections of the community in Turkey, and that Turkey could be considered to be one of the most populous countries where Islam is the dominant religion, and, the stance in that religion against homosexuality is well understood. I note however that the provision of government services in Turkey is largely secular and the type of potential discrimination [the applicant] and her representative contend would not ordinarily lead to violence, torture or death. I do not consider the type of discrimination espoused by [the applicant] to be systemic within Turkey. 71. The examples of discrimination that [the applicant] refers to, primarily involve gay men who have been outspoken or have had some media attention or publicity about their sexuality ... The examples of discrimination given, does not necessarily lead me to believe that that most LGBTI people in Turkey will experience such discrimination; that said, I acknowledge that discrimination is likely in cases of high profile LGBTI activists or people who come to the attention of the media. There is little evidence to support the assertion that all or most LGBTI people will necessarily encounter discrimination of the nature described, although I do accept that there is a possibility that this could happen. However, I do not consider that [the applicant] falls into this category… 74. I acknowledge that [the applicant] submits that her 'risk is higher than others' in the LGBTI community in Turkey, by virtue of her being a female without male protection, without any meaningful social or employment connections and with limited means to support herself and secure accommodation and employment (emphasis in the original) ... The supporting evidence does not contain any instances of such a risk being present, let alone heightened for females without male protection. I accept that it is a possible risk, but not of such an extent that it is 'higher' than others. I give this consideration limited weight. 75. Most of the country information contained in the report from the Department of Foreign Affairs and Trade dated 9 October 2018 refers to a few homophobic statements that were made by politicians, religious leaders or other persons in Turkish society. These statements, while homophobic, do not mean that violence or discrimination will necessarily follow. Similar homophobic statements have also been made in some Western countries, however this does not mean that discrimination will follow or eventuate. Whilst I accept that gender inequality may be more widespread in Turkey, I am also mindful that being gay in Turkey is not illegal and that 'no legislation in Turkey prohibits homosexuality or homosexual acts'… 81. All of the above country reports state that LGBTI people can face a higher level of discrimination than other citizens of Turkey, and that transgender people and those involved in LGBTI events can face a much higher risk. I accept these statements. However, I do not regard [the applicant] falls [sic] into the higher risk categories considered above, nor do I consider her living as a gay woman in Turkey to necessarily lead to torture, violence or death. Whilst I acknowledge the potential risk that [the applicant] may face of societal discrimination, I do not regard this factor alone as being sufficient to invoke Australia's non-refoulement obligations. 47 In these paragraphs the Minister plainly engaged with the applicant's representations about the violence, discrimination and other harm she might suffer in Türkiye on account of her sexuality, and with the facts underpinning her claim in a manner consistent with the authorities which have been mentioned. Bearing in mind the court's limited role in judicial review, there is no occasion to analyse further the degree or quality of the Minister's engagement with these matters. 48 For these reasons the applicant's first ground of review must fail. On the subject of materiality, even if there was something to be said for the applicant's claim that the Minister failed properly to consider her representations concerning the harm she may suffer if removed to Türkiye (whether or not that harm engaged Australia's international non-refoulment obligations) on account of her sexuality, I accept the Minister's submission in answer to this point. That is to say, I accept that separate consideration of the underlying claims to fear harm in the form of discrimination or ostracism based on the applicant's sexual orientation could not realistically have led to a different outcome. That is because the Minister's reasons at [129] make it plain that none of the matters advanced by the applicant - including her claims to fear harm or hardship based on her sexual orientation - could outweigh the protection of the Australian community by reason of the unacceptable risk of harm to the community the applicant represents.

The applicant's submissions 49 The applicant's second ground of review is that the Minister erred by failing to consider the prospect that she might be detained indefinitely. This is partly particularised on the basis that the applicant made a substantial and clearly articulated representation that "if the cancellation decision were not revoked, she faced the prospect of indefinite detention". She contends that the Minister failed to evaluate and resolve this issue, that he was required to do so, and that his failure to do so in the circumstances was material in the sense that proper consideration of this possibility could realistically have led to a different decision. In this regard the applicant submits that the Minister's reasons do not include any reference to the prospect of her being indefinitely detained. 50 The applicant points to the following representations that she made on the subject of indefinite detention: (a) in her response to further information regarding possible revocation of visa cancellation under s 501CA of the Act dated 15 January 2018 prepared by her solicitors, the applicant contended (at [15]-[16]): 15. In applying the above principles, the Supreme Court of Appeal did not feel it appropriate to increase [the applicant's] sentence in the DPP's appeal. For many reasons, which are outlined below, [the applicant] will not be able to be returned to her home country of Turkey, the consequence of which may mean she is subject to life-long detention that is excessively and unreasonably beyond the term of punishment she has already served. 16. It is submitted that in the matter of [the applicant], her 17 years since offending, throughout which she has been punished appropriately through the criminal justice system and the potential for her to be disproportionally subjected to life-long detention are factors of paramount importance when considering whether to revoke the cancellation of her visa. (b) and then at [68] of that document the applicant contended: It is submitted, for the reasons detailed above, subjecting [the applicant] to the possibility of indefinite detention, given there is no possibility of return to Turkey, upon the completion of her sentence would be far beyond the term of punishment she has already served and not within the expectations of the Australian community…Cancelling her visa, would effectively see her indefinitely detained and given a life-term sentence. She does not have a valid passport to Turkey, there is a high possibility that she may face revocation of her Turkish citizenship given the nature of her crime and be stateless. Coupled with this, is her sexuality and her risk of harm should she even be able to be returned to Turkey. (c) in her response to further information regarding possible revocation of visa cancellation under s 501CA of the Act dated 26 March 2019 prepared by her solicitors, the applicant contended (at [8]): 8. Should the decision maker refuse to exercise the discretion in favour of [the applicant], by reference to the factors in Direction 79, there are only three possible outcomes: a. [the applicant] is removed to Turkey where she will face serious or significant harm (as discussed above); b. [the applicant] is removed to a safe third country; or c. [the applicant] is detained in immigration detention on an indefinite basis, upon the completion of her criminal sentence. (d) and at [10]-[11] of that document the applicant contended: 10. Consequently, if [the applicant's] application for revocation is refused and her visa remains cancelled, the only alternative available to the Department is to detain [the applicant] in immigration detention upon the completion of her criminal sentence. We submit that any such detention would be indefinite, given it is extremely unlikely that a safe third country option will become available, or that circumstances in Turkey will change such that [the applicant] would no longer be at risk of harm. 11. Given [the applicant's] non-refoulment claims and the fact that there is no safe third country to which she could be returned, refusing her request for revocation would effectively see her indefinitely detained and given a life-sentence of administrative detention which would be far beyond the term of punishment she has already served. Such factors must be considered by the decisionmaker [sic] and, we submit, weight [sic] heavily in favour of revoking the cancellation of her visa. (e) finally, in her response to further information regarding possible revocation of visa cancellation under s 501CA of the Act dated 8 July 2020 prepared by her solicitors, the applicant contended (at [25]-[27]): 25. Under international law, [the applicant] cannot be returned to Turkey as there is a real risk, she will face persecution or significant harm and to do so would be in gross violation of Australia's non-refoulement obligations. Meaning, if the cancellation of her visa is not revoked, [the applicant] would face the prospect of indefinite detention. Detention of this nature would be arbitrary because it would be beyond a period for which the Australian Government could provide an appropriate justification, and disproportionate response to a legitimate aim. 26. Such a period of detention would be in breach of Australia's international obligations in Article 9(1) of the ICCPR under which the Australian Government has an obligation not to subject any person to arbitrary detention, including for immigration control purposes. 27. We submit that this weights [sic] in favour of revoking the visa cancellation. 51 The applicant submits that the Minister's course of reasoning brought the issue of indefinite detention forward and "made it immediately or presently relevant". In this regard she refers to [90] of the Minister's reasons where he recognised the "possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria". The immediate consequence of this possibility, so the applicant submits, is the legal possibility, and practical certainty, of indefinite detention. The applicant submits that because the Minister identified the need to consider, evaluate and resolve the possibility of a protection visa being refused despite non-refoulement obligations being engaged, and a clearly articulated argument had been made about the ramifications of that possibility, it was not "a remote, or 'unripe' issue". Thus the applicant contends that the Minister was required to consider the submissions concerning the risk of indefinite detention, and to evaluate and resolve this issue. The applicant maintains that this is not a case where it can be said that the obligation to consider the representation did not arise because the premise of the representation was rejected. 52 Once again referring to Plaintiff M1 at 312 [24], the applicant submits that the Minister was obliged to read, identify, understand and evaluate the representations made on her behalf and the claims she advanced. The exercise is said to require the Minister to "evaluate representations made in response to an invitation issued under s 501CA(3)(b), assess and weigh relevant evidence and material, and weigh and balance considerations for and against revocation": Nathanson at 557 [71] (Gordon J). 53 At the hearing, and by reference to the second particular of this ground of review, the applicant clarified that this second ground of review is based squarely on the Minister's failure to consider the representations which were put to him, and not on any asserted obligation to consider some residual legal consequence that might have existed. 54 The applicant submits that the Minister's only reference to the possibility of indefinite detention was his statement in [122] of his reasons that he was aware that the statutory consequence of a decision not to revoke the cancellation of her visa would be that, as an unlawful non-citizen, she would become liable to removal and in the meantime would remain or be liable to detention under s 189 of the Act. The applicant says that there was no acknowledgment at all that such detention might be indefinite in the sense that it would have no fixed chronological end point (as to which see WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at 494-495 [123] (Kenny and Mortimer JJ)), and this was not a matter which could have been omitted from the reasons because it was "immaterial" (as to which, in the national interest context, see ENT19 v Minister for Home Affairs (2021) 289 FCR 100 at 117 [73], 122 [100], 123-124 [107], 124 [108], 124-125 [112] (Katzmann J, 130 [138] (Wheelahan J), although cf BNGP Full Court at [150] (Bromwich and Kennett JJ)). 55 The applicant also submits that the Minister's failure to refer to indefinite detention in his reasons is all the more surprising given that he accepted the possibility that she may have a protection finding made in her favour such that she could not be returned to Türkiye, and accepted (at [93]) that there is currently no known prospect of removing her to any other country. Although the applicant concedes that the failure to refer to a particular claim or piece of evidence will not always support an inference that it was overlooked or not evaluated, she submits that here that inference should be drawn because of the substantive force of the submission and its centrality to [90] of the Minister's reasons. 56 In her written reply submissions the applicant clarified that it was the likelihood or risk of indefinite detention, rather than the inevitability or reality of such an eventuality, that was the subject of her representations. She contends that it was her representation that she would be exposed to a risk of indefinite detention that ought to have been considered, and that the Minister accepted that there was a risk of indefinite detention when he accepted the possibility that the protections obligations may be engaged. The applicant also submits that the Minister's reliance (at [7] of his reasons) on the statement that he had "considered the representations" to demonstrate that he had discharged his obligation to consider indefinite detention is not conclusive and is of little value in responding to a complaint of a failure to consider: Hands at [3]; DQM18 v Minister for Home Affairs (2020) 278 FCR 529 at 537 [27] (Bromberg and Mortimer JJ). The applicant submits that the better inference is that the indefinite detention representations were overlooked. 57 In oral submissions counsel for the applicant referred to DQM18, MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 525, and RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 in support of the contention that where representations are clearly made about the prospect of indefinite detention such a possibility must be the subject of consideration, which did not occur here. 58 The focus of the applicant's submissions on ground two, however, was the issue of materiality. The applicant contends that in circumstances where the representation concerning the risk of indefinite detention was clearly or squarely made, and that one course open to the Minister was to discount that possibility or deal with it by finding that there would not be indefinite detention, or that the possibility was too speculative to require engagement, a failure to engage with the issue must present a materiality problem in the sense that it would be difficult to say that considering the issue would not have made a difference: see DQM18 at 553 [113] (Bromberg and Mortimer JJ) and at 564 [168] (Snaden J). 59 The applicant submits that in the present circumstances the Minister was prepared to afford weight to possibilities, such as the possibility of non-refoulement obligations being owed, which were considered and given weight in the applicant's favour (see ([87], [93], and [127] of the Minister's reasons) and that the same reasoning process may have occurred if the Minister had actively engaged with the representation concerning the risk of indefinite detention.

The Minister's submissions 60 In relation to ground two the Minister draws attention to the fact that the applicant's representations included a claim that, if her removal to Türkiye could not be effected because she is found to be a person in respect of whom Australia owes non-refoulement obligations, then it is possible that she would face indefinite detention. The Minister contends that the applicant's submissions show that the claim about the possibility of indefinite detention was inextricably linked with removal to Türkiye being in contravention of Australia's non-refoulement obligations, and that what the applicant did not claim was that she faced "the prospect of indefinite detention" if he considered that she may or might engage those obligations. 61 This, the Minister submits, is not a case where it was found that the applicant's removal to Türkiye could not lawfully be effected pursuant to s 198 of the Act. Such a finding could only have been made had there been a "protection finding" in the course of considering a valid application for a protection visa. Appreciating that it was open to the applicant to have made such an application, and that she had not done so at the time he made his decision, the Minister submits that it was not for him to speculate about what findings a different decision-maker might make about the applicant's claims for protection (in the event that she made a valid application for a protection visa) and then to form a view about whether indefinite detention would or would not be likely (as to which see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at 519 [19] (Flick, Griffiths and Perry JJ), and RRFM at [37]). Thus the Minister submits that his statement at [90] that it is possible that the applicant may be refused a protection visa because of the ineligibility criteria even if she were found to satisfy the protection criteria for the grant of that visa does not advance matters in the sense that the mere possibility of prolonged immigration detention is not a circumstance which must be taken into account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act: see DFTD v Minister for Home Affairs [2020] FCA 859 at [42] (Snaden J) (affirmed on appeal: (2020) 281 FCR 209; [2020] FCAFC 207). 62 It is the Minister's position that his statement at [90] does not give rise to an obligation to consider a claim that was never made. That is, that the applicant faced the prospect of indefinite detention if: (a) he decided not to revoke the decision to cancel her visa; (b) she applied for a protection visa; and (c) the decision-maker on her protection visa application decided that she satisfied the protection criteria in s 36(2) of the Act but did not meet the criteria in ss 36(1B), (1C) and, or alternatively, s 501 of the Act. In other words, the Minister was not required to deal with a hypothesis that was not raised: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at 593 [47]. 63 The Minister submits that because he did not make a finding that the applicant's removal to Türkiye could not lawfully be effected pursuant to s 198 of the Act, a critical component of her claim that she would or may face indefinite detention is missing. The Minister relies primarily in this regard on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at 326 [24] (Gummow and Callinan JJ) (and 340 [95] (Hayne J)) in support of the proposition that his duty to consider claims raised in representations about revocation of a cancellation decision applies only to "substantial, clearly articulated argument[s] relying upon established facts". The Minister submits that the applicant's claim in relation to the possibility of indefinite detention was not based on "established facts" because he had not embraced the factual bases for the claim: see GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [48] (Derrington J). In the present case the Minister made no finding that the applicant's removal from Australia would not be authorised or permitted by reasons of s 197C(3) of the Act and therefore the claim of indefinite detention, as it was framed by the applicant, was not one in relation to which the Minister was under any obligation to respond. 64 The Minister submits that the result would be the same - he would have no obligation to consider the claim of indefinite detention as framed by the applicant - if the issue is viewed through the lens of his duty to consider the legal consequences of the decision. This obligation is to have regard to "the inevitable and direct consequences of the exercise of the statutory power in question": BNGP at [51]. The Minister submits that indefinite detention (as to which see AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at 473 [70] and Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at 71 [61(e)]), or the prospect of prolonged detention (see DFTD at [38], [50] and Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798 at [58]-[59]), were not the inevitable and direct legal consequences of his decision. The inevitable and direct legal consequence of his decision is that, as the Minister put it at [122], the applicant "would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, and in the meantime, remain [in] or be liable to detention under s 189 of the Act". The Minister submits that the duty to consider the legal consequences of his decision did not extend to "speculative prospects" (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 at 143 [17] (Perram J)), such as the possibility of the applicant being detained indefinitely in Australia, and for these reasons also the applicant's reliance on [90] of the Minister's reasons is misplaced. 65 The Minister submits further that a different way to approach the question would be to ask whether the claim as articulated by the applicant clearly arose on the material before him, including his findings. This question, it is contended, could only be answered in the negative having regard to the Minister's observation at [94] and [122] of his reasons (that is, his awareness that the statutory consequences of a decision not to revoke the cancellation of the applicant's visa was that, as an unlawful non-citizen, she would become liable to removal under s 198 of the Act). Because the applicant's claim did not arise having regard to those findings, the degree of relevance of the representations made by the applicant was such that there was no duty to engage with them: Plaintiff M1 at 312 [25]. 66 In respect of the applicant's contention that the Minister overlooked her representations, even though the factual foundation for the indefinite detention claim was not made out, the Minister notes that the onus is on the applicant to prove that the representation were overlooked: SZGUR at 616 [67] (Gummow J), 623 [91] (Heydon J), 623 [92] (Crennan J). The Minister submits that the applicant cannot discharge that onus merely by pointing to an absence of "the prospect" of her being detained indefinitely in his reasons in circumstances where no protection finding had been made concerning the applicant's return to Türkiye and the facts established that she would be required to be removed from Australia to Türkiye as soon as reasonably practicable. The Minister submits that s 501G(1)(e) of the Act, read with s 25D of the Acts Interpretation Act 1901 (Cth), does not require him to refer to every contention, particularly where some are misconceived or the factual premise upon which the contention rests has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604-605 [46]-[47] (French, Sackville and Hely JJ). 67 The Minister submits that he considered the applicant's representations and the documents in support, and that these included the documents in which the claim was made. He contends that while the issue of indefinite detention was not expressly referred to in his reasons, that does not mean that it was overlooked. The Minister submits that the better inference to draw is that the absence of any reference to the claim is because he did not consider the issue of indefinite detention to be material to his decision: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69].

Consideration 68 In circumstances where the Minister rejected the core elements of the applicant's claim, that is that her removal to Türkiye could not lawfully be effected pursuant to s 198 of the Act, the applicant's contention that the Minister erred by failing to consider the prospect that she might therefore be detained indefinitely in Australia must fail for lack of reliance on established facts and because it did not clearly arise on the materials before the Minister: see Plaintiff M1 at 312 [25]; Dranichnikov at 326 [24]. As the Minister submits, a claim will not be based on "established facts" if the decision-maker has not embraced the factual bases for it: GXXS at [48]. In the absence of a finding that the applicant's removal from Australia would not be authorised or permitted by reason of s 197C(3) of the Act, her claim that there was a prospect she might be detained indefinitely was not one to which the Minister was obliged to respond. 69 The fact that the Minister recognised (at [90]) that the applicant may be refused a protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria, does not, in my assessment, require any contrary conclusion. I reject the applicant's submission that it does. The Minister's cognisance of this possibility was no more than that: an acknowledgement that, at some point, Australia's international non-refoulement obligations may be engaged. In making the observation he made at [90] the Minister did no more than contemplate this future possibility. There was no finding that the applicant is a person in respect of whom non-refoulement obligations are owed, and no obligation on the Minister to evaluate and resolve the applicant's indefinite detention submission. 70 It may also be accepted, for the reasons advanced by the Minister, that there was no obligation on him to consider the claim of indefinite detention as put by the applicant if the issue is viewed by reference to his duty to consider the legal consequences of his decision. The obligation reposing in the Minister was to have regard to the inevitable and direct legal consequences of the exercise of the relevant statutory power. Indefinite or prolonged detention cannot be said to be the inevitable and direct legal consequence of the Minster's decision. The Minister had no duty to engage in speculation of the kind the applicant's submissions contemplate. 71 For completeness it may be observed that the applicant has not discharged her onus to prove that the Minister overlooked her representations about the prospect of indefinite detention. As the Minister submits, this cannot be done simply by pointing to the absence from his reasons of a consideration of that matter given that no protection finding had been made and the consequence of the Minister's decision was that the applicant would be required to be removed from Australia to Türkiye as soon as practicable. The Minister is not required to consider every contention advanced by an applicant, especially when it is misconceived or the factual premise on which it is based has been rejected. I accept that the absence of consideration of this claim likely reflects the reality that the Minister did not consider the issue to be material to his decision.

Conclusion 72 The applicant's grounds of review having failed, there will be an order dismissing the application, with costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

Migration Act 1958(Cth)ss 36, 189, 197C(3), 198, 476A, 501, 501CA(3)(b), 501CA(4), 501G(1)(e)

irs (2022) 292 FCR 15; [2022] FCAFC 111 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 525; [2021] FCAFC 35 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Nathanson v Minister for Home Affairs (2022) 178 ALD 536; [2022] HCA 26 Nguyen v Minister for Home Affairs (2020) 170 ALD 38; [2020] FCA 127 Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17 RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 Shi v Minister for Home Affairs [2023] FCAFC 136 TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 788 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463; [2021] FCAFC 55

The Statutory Regime and relevant principles 16 Section 501CA(4) of the Act confers power on the Minister to revoke a decision to cancel a visa held by a non-citizen if they make representations in accordance with an invitation given to them under s 501CA(3)(b) and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. 17 The power of revocation in s 501CA(4) is a broad one: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at 405-406 [12]. As the Minister submits, he need only be satisfied that there is "another reason" why the cancellation decision should be revoked. What might be "another reason" is a matter for the Minister: Viane at 406 [13]. The scheme for the revocation of cancellation decisions does not require the decision-maker to take into account any mandatory relevant considerations: Viane at 406 [13]. The scheme does, however, require the Minister to consider and understand the representations received: Viane at 406 [13]. Nonetheless, as the High Court explained in Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304, the duty to consider the representations only requires the decision-maker to "read, identify, understand and evaluate" them: Plaintiff M1 at 307 [9], 312 [24], 316 [36] (Kiefel CJ, Keane, Gordon and Steward JJ). In this regard, the majority in Plaintiff M1 said as follows at 312 [24]: Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder. (Footnotes omitted) 18 Since the present application was argued this aspect of Plaintiff M1 has been the subject of consideration by the Full Court of this Court in ECE21 v Minister for Home Affairs (2023) 297 FCR 422 at 424-425 [6]-[9], Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98 at [50]-[53] (Katzmann, Jackson and McEvoy JJ), and Shi v Minister for Home Affairs [2023] FCAFC 136 at [22]-[25] (Snaden, Anderson and Goodman JJ). In Jabari (at [51]-[53]) the Full Court summarised the position thus: 51 In ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9], a Full Court comprised of Mortimer, Colvin and O'Sullivan JJ emphasised two aspects of the statutory task, having regard to Plaintiff M1/2021. The first is a distinction between considering representations in the sense of averting to and understanding them, and considering them in the sense of evaluating their significance in the course of making the decision. In their Honours' view, a consequence of Plaintiff M1/2021 is that (ECE21 at [7]): it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister's reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made. 52 In other words, provided the decision-maker has averted to and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness. Their Honours held that, accordingly (ECE21 at [8]): approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: [Plaintiff M1/2021] at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like [Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589], that the High Court disagreed with. 53 The second aspect of the statutory task which their Honours thus emphasised was that the weight to be afforded to any particular representation is a matter for the Minister (or other decision-maker), including forming a view that the representation should be given no weight: ECE21 at [9]. It is necessary, however, for the decision-maker to be aware of and to have understood the representation. 19 Consistently with this approach, and as the Minister submits in the present case, the duty to consider the relevant representations does not require the decision-maker to bring them to account - that is to say, to give them weight - in making the decision: Plaintiff M1 at 316 [36]. It does not require the decision-maker to "resolve" a claim: EXT20 v Minister for Home Affairs (2022) 291 FCR 55 at 87-88 [166]-[168] (Snaden J); Guclukol v Minister for Immigration and Border Protection (2020) 279 FCR 611 at 622 [41], 624-625 [49]-[50] (Katzmann, O'Callaghan and Derrington JJ). The Minister submits that if that were not so, the majority's reasoning in Plaintiff M1 at 316 [36] would be erroneous (noting that the majority found that the delegate evaluated the plaintiff's non-refoulement claims, even though they were deferred to a later decision-making process). Nor is there a duty reposing in the decision-maker "to treat every statement within representations made by a former visa holder as a mandatory relevant consideration": Plaintiff M1 at 311 [23] (and the cases there cited). It must also be appreciated that the requisite level of engagement with the representations "will vary, among other things, according to the length, clarity and degree of relevance of the representations": Plaintiff M1 at 312 [25]. 20 As the Minister also submits, where representations are made which seek to invoke Australia's non-refoulement obligations, it is permissible for the decision-maker to defer consideration of claims raised in those representations, at least where the applicant is entitled to make a valid application for a protection visa: Plaintiff M1 at 307 [9], 314 [30]. Nevertheless, "it … may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being 'another reason'" why the cancellation decision should be revoked: Plaintiff M1 at 317 [39]. 21 Against this statutory background, as explicated in recent years by the High Court and the Full Court of this Court, it is necessary to turn to the complaints made by the applicant in relation to the Minister's decision.

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