BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-05-22|Before: Collier J

The name of the first respondent be changed to "Minister for Immigration, Citizenship and Multicultural Affairs".
The applicant's amended application for an extension of time filed 10 November 2022 be allowed.
The applicant's application for judicial review be dismissed.
The applicant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Before the Court is an amended application for an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) to lodge an application for review of a migration decision. The amended application was filed by the applicant on 10 November 2022. 2 At the hearing the parties made submissions on the application for an extension of time, and the applicant's proposed substantial application on the premise that the Court granted an extension of time.

reasons for non-revocation decision 8 The applicant accepted that he did not meet the character test under s 501(6)(a) of the Migration Act as he had been sentenced to imprisonment of 12 months and therefore had a "substantial criminal record" within the meaning of s 501(7) of the Migration Act. 9 The issue before the Minister was whether there was "another reason" why the cancellation decision should be revoked pursuant to section s 501CA(4)(b)(ii) of the Migration Act. The Minister had regard to Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA of the Migration Act (the Direction), made under s 499 of the Migration Act. The Minister noted that he was not bound by the Direction. 10 The Minister had regard to primary considerations under the Direction, namely: Protection of the Australian Community Family violence conduct Best interests of minor children and Expectations of the Australian community 11 Further, the Minister had regard to other considerations specified in the Direction, namely: International non-refoulement obligations and Extent of impediments.

Protection of the Australian community 12 In relation to the protection of the Australian community, the Minister referred to the seriousness of the conduct, namely that the applicant was found to be guilty of unlawful sexual intercourse with a person under 17 years and sentenced to imprisonment for two years and six months with a non-parole period of 12 months. The sentencing Judge commented that the applicant's offending was serious on the basis that the applicant had sexual intercourse with girl who was significantly younger then himself and he knew of the victim's age. The offence impacted the victim significantly, requiring her to undertake counselling. 13 The Minister noted that the applicant has been convicted of numerous driving related offences between 2008 and 2014, including fail to stop, assist, present to police after accident (for which he was sentences to six months imprisonment and suspended for two years), and had two counts of driving with excess blood alcohol. 14 The Minister found that vulnerability of the victim of the sexual intercourse, and repeated offences, was very serious. 15 The Minister also considered risk to the Australian community, as there has been repeat offending by the applicant, and the seriousness of the offence would have the potential to cause physical and/or psychological harm to members of the Australian community. 16 The Minister also considered factors in favour of the applicant, which included: Factors contributing to past conduct, such as: • difficult childhood of the applicant, • time in refugee camps without knowing whereabouts of his parents, • childhood experience while being exposed to a civil war and seeing people killed and injured, • his statement that he would never commit any offence with underage people and he feared for his life when the car accident occurred as a person came towards him with a hammer so he fled the scene. As the applicant had, at the time of his offending, resided in Australia for more than a decade, and had been exposed to these expectations for a significant period through his schooling, employment and community engagements, the Minister did not accept that the offending could be largely attributed to the experience of the applicant's childhood. The applicant claimed he had experienced remorse and rehabilitation, evidenced by: • attending literacy and numerous courses, • health, safety and wellbeing courses, • he did not take sex offenders program as he was assessed to not be at an ability to understand English, and • he accepted he needs help to deal with childhood trauma. 17 The Minister concluded: 42. I have found that the nature of [the applicant's] conduct is very serious. I have further found that this offending conduct has the potential to cause physical and/or psychological injury to members of the Australian community. I remain concerned that [the applicant] lacks insight into his offending conduct, given the limited rehabilitation undertaken, however on balance I consider there to be a low likelihood that [the applicant] will reoffend. Nevertheless, I considered that, should [the applicant] engage in similar conduct again it may result in psychological and/or physical harm to members of the community. I have given this weight in favour of non-revocation.

Family violence conduct 18 The Minister found that the applicant had not engaged in conduct that constituted family violence as defined in the Direction.

Best interests of minor children 19 The Minister noted that the Direction required decision-makers to determine the best interests of a child in Australia who would be affected by the decision, and, consistently with the Direction, considered whether non-revocation in this case would affect any child in Australia. The Minister noted that the applicant had four minor children, and that custody of these children had been awarded to the children's mother. The Minister referred to the applicant's evidence of his relationship with his children, and also to the effect on his visa cancellation on the applicant's six children. 20 The Minister was satisfied that it was in the best interests of the applicant's children for the cancellation decision to be revoked to allow them to continue their relationship with their father in a meaningful manner, including personal contact, should they so desire and in accordance with any court orders. The Minister considered that less weight should be attributed to the interests of the applicant's nephews and nieces in circumstances where the applicant … does not appear to have a parental type relationship with these children nor has he provided any details on the nature of their relationship.

Expectations of the Australian community 21 In summary, the Minister found: 60. As also stated in the Direction, non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of [the applicant], those specified kinds of conduct include serious crimes against children, including crimes of a sexual nature. Noting that [the applicant] has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applies in this case.

International non-refoulement obligations 22 The Minister stated that, if non-refoulement obligations were engaged in this case, that would be a factor in favour of revocation of the cancellation decision. The applicant submitted that returning to Burundi would be very dangerous and hazardous for his personal safety due to that country's volatile political and military situation. He stated that there was no one to support him if he returned to Burundi, including his family whose location and status were unknown to him, and that returning to Burundi would place his life at risk. 23 The Minister noted the applicant's representative made representations that the applicant was at risk of persecution due to his actual and perceived opinion in opposition to the Ruling Party Youth League in Burundi. This Ruling Party were documented as committing human rights abuses against political opponents and as imputing returnees with political opposition to this group. The applicant had indicated he would not support that group. 24 The Minister noted the submission that the applicant would be at risk due to his membership of particular social groups, namely: male refugees returnees to Burundi; male returnees suspected of support of opposition groups; returnees who have not lived in Burundi since childhood, and who have no family support; returnees from the West with perceived wealth; and Burundians suffering post-traumatic stress. The Minister noted the submission that country information indicated that: the Ruling Party Youth League had carried out widespread human rights abuses including extrajudicial executions, disappearances and arbitrary arrests; citizens were forced to make financial contributions, and those who did not pay were subjected to threats and ill-treatment, and/or deprived of access to public services; returning Burundian nationals were among the main targets of human rights abuses, accused of belonging to or supporting opposition groups; and returning Burundian nationals were also at risk of criminal targeting as returnees from the West. 25 The Minister accepted that the nature of the applicant's claims indicated a potential for Australia's international non-refoulement obligations to be engaged in relation to the applicant, however continued: 70. A conclusive finding as to whether non-refoulement obligations are in fact owed in respect of [the applicant] is not possible without a full and comprehensive assessment through a process similar to what is required to assess a Protection visa application. Nevertheless, for the purposes of the present decision, I accept there is at least a possibility that [the applicant] could face a real risk of suffering the abovementioned kinds of harm in Burundi, which might include human rights abuses such as arbitrary arrest and execution, threats and ill-treatment, and denial of access to services. 71. Consequently, for the purposes of this decision, I accept that there is at least a possibility that non-refoulement obligations are enlivened in relation to [the applicant], with the country of reference being Burundi. This means that his removal to Burundi may potentially breach these obligations. I also accept that there is currently no known prospect of removing [the applicant] to any other country. 72. I am aware that the statutory consequence of a decision to not revoke the cancellation of [the applicant's] visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable. 73. However, the requirement to remove [the applicant] under s 198 would not apply if he is granted another visa. I acknowledge that if I decide not to revoke the cancellation of [the applicant's] visa under s 501CA, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations 1994). Given the nature of the claims made by [the applicant], I consider it likely that he will apply for a Protection visa. 74. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Provided that [the applicant's] visa application is valid, the duty to remove him under s198 of the Act will not apply while his application is being determined. In that context, any claim by [the applicant] that he would face harm on return to Burundi could be conclusively assessed in the context of his Protection visa application to the extent that those claims are relevant to the criteria for visa grant. 75. In this regard, I have noted that s36A of the Act ensures that the Minister assesses and records findings against the protection obligations criteria when considering a valid Protection visa application, even where the visa can be refused on other grounds. 76. I have considered [the representative's] submission dated 4 July 2021…. She states that the suggestion that [the applicant] might be granted a Protection visa should be rejected. [The representative] referred to the Full Court of the Federal Court findings in which the Court expressed the view that there was no realistic possibility that the Minister would use their discretion to grant another visa to a person who failed the character test, after failing to use their discretion to revoke a visa cancellation on character grounds. [The representative] also provided information released under the Freedom of Information Act 1982 which showed that the Minister had never subsequently issued a Protection visa to a person whose section 501(3A) visa cancellation was not revoked. 77. I do not consider the prospects of myself, another Minister or delegate of the Minister granting a Protection visa to be unrealistic in relation to [the applicant] simply because his visa has been cancelled on character grounds and I have decided not to revoke that cancellation. That decision will be based on the circumstances existing at the time of decision. Regardless, l am cognisant of the possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. However, even if he is not granted a Protection visa, any protection finding made for [the applicant] in the course of considering his Protection visa application in respect of Burundi would prevent him being removed to Burundi, except in the limited circumstances set out in s197C(3)(c) (such as where the Minister has decided that [the applicant] is no longer a person in respect of whom any protection finding would be made and that decision is no longer subject to merits review). 78. Further, where a criterion for a Protection visa grant implements a non-refoulement obligation, consideration of whether [the applicant] meets that criterion is in effect consideration of whether that non-refoulement obligation is in fact engaged in his case. However, I am mindful that Australia's international non-refoulement obligations may not be fully encompassed by the Protection visa criteria in s36(2) of the Act. 79. I am also mindful that consideration of whether [the applicant] satisfies a Protection visa criterion under s36(2), in the context of determining his Protection visa application, cannot be regarded as a substitute for consideration of non-refoulement claims in the present context. I accept that case law indicates that the issue to be determined under s501CA(4) (that is, whether there is 'another reason' why a cancellation decision should be revoked) is less categorical than the issue of whether a person satisfies a relevant criterion under s36(2), and that the material or representations advanced in support of a claim in the context of s50ICA are not required to meet predetermined benchmarks.

Extent of impediments if removed to Burundi 26 The Minister considered the extent of impediments that the applicant would face in establishing himself and maintaining basic living standards if removed from Australia to Burundi. In summary, the Minister found: The applicant spoke Kirundi; The applicant had not lived in Burundi since the age of 6 years old, which would present a considerable challenge for him should he return; Although the applicant stated that he would face many hardships if he were required to return to Burundi, including unemployment, lack of housing, starvation and isolation in the absence of a family or support network, the Minister found that the applicant would have the same access to health services, treatment and welfare services as available to other citizens of Burundi, although the standard and ease of access may not be of the same high standard and as widely available as those services were in Australia; The applicant had experience in agricultural industries, which could provide him with skills which would enhance his employment opportunities in Burundi; The lack of family support network in Burundi might cause him to suffer disadvantage; and On balance, the return to Burundi would result in significant hardship for the applicant.

Links to the Australian community 27 The Minister noted that the applicant had immediate family members in Australia, and found that those family members would experience emotional hardship from the removal of the applicant from Australia. 28 The Minister had regard to the applicant's relationship with his former partner, and the members of his Church. The Minister found that the applicant had been making a positive contribution to the community through his education, employment, church and community activities. 29 The Minister acknowledged that the applicant had lived in Australia for a considerable period of his life, had been contributing positively to the community in that time, and that the Australian community may therefore afford a higher level of tolerance of criminal conduct in relation to him 30 The Minister concluded as follows: 103. I have found that the best interests of [the applicant's] minor children … as a primary consideration, weigh significantly in favour of revocation of the cancellation of [the applicant's] visa, f also find that the best interests of [the applicant's] six nephews and nieces weigh in favour of revocation. 104. In addition, I have found that a number of other factors also weigh in favour of a decision to revoke. These include strength, nature and ties to Australia, and the adverse consequences of a non-revocation decision on [the applicant's] brother and sister-in-law, and his wife; and the impediments [the applicant] may face on his return to Burundi. I also accept that there is at least a possibility that international non-refoulement obligations are enlivened in relation to [the applicant]. 105. However, I have also given significant weight to the very serious nature of the crime committed, the likelihood of [the applicant's] reoffending, and the harm to the community [the applicant's] reoffending would cause. 106. Furthermore, I have considered that non-citizens who have engaged in sexual offences against a child raise serious character concerns such that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well towards non-revocation of the visa cancellation. 107. Noting that [the applicant] has lived in Australia for a considerable period of his life, I have taken into account that Australia may afford a higher level of tolerance of criminal conduct in relation to him than it would otherwise. However, I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient for me to revoke the decision to cancel [the applicant's] visa. 108. On balance, I find that the factors that weigh against revocation of [the applicant's] visa outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel [the applicant's] Class XB Subclass 200 Refugee visa should be revoked, as required by s501CA(4)(b)(ii) of the Act.

application for an extension of time 31 It is not in dispute that the applicant was required to file his application for judicial review of the Minister's decision within 35 days of the date of the decision (that is, by 4 January 2022). The application was brought on 13 July 2022, and was clearly out of time. The application for extension of time is made pursuant to s 477A (2) of the Migration Act. 32 At the hearing the applicant was represented by pro bono Counsel. The Minister was also represented. 33 The grounds on which the applicant sought an extension of time were set out in the affidavit accompanying the amended application for extension of time filed on 10 November 2022. In that affidavit the applicant deposed as follows: 1. I am the Applicant in this proceeding. 2. I wish to apply for an extension of time in which to make my application for judicial review of the Minister's decision on 30 November 2021, and to amend my application as originally made on 13 July 2022. 3. I believe that an extension of time is in the interests of the administration of justice for the following reasons: (a) I am currently held on Christmas Island, where I have been since September 2020. (b) I have limited English skills and require the assistance of an interpreter to understand English which I have used to make this affidavit. (c) I was given notice of the Minister's decision of 30 November 2021 by my private lawyer who represented me at that time. When I was given that notice, the lawyer told me that if I wanted to challenge the decision in court I would need to give them $20,000. I did not have any money so this was not possible, and I considered my only option was to return to Burundi. At that time, I did not realise that I could apply to the Court without the help of a lawyer. (d) Although I do not know the specific date, to the best of my knowledge, in around May 2022, I learned from my brother that my wife was suffering from a serious mental illness, that she had been seen walking in the streets talking to herself, and that the four children that I have with her [names redacted] had been taken away from her and put in the care of my mother in law. (e) I considered that my mother-in-law is too old to care for young children, so I considered that I needed to do what I could to stay in Australia to care for my children. (f) In around May 2022, I learned from a friend that I could get assistance from Legal Aid. With their assistance, I prepared documents that I filed with the Court making an application for review. 4. As a result of discovering that information, I applied to the Federal Court. 34 A draft amended originating application for review of a migration decision was handed up in Court at the hearing and marked MFI-1. 35 In summary, the applicant submitted that it was appropriate for the Court to grant an extension of time in which to file his application for review in circumstances where: The applicant was in detention; He was not legally represented; He had rudimentary English; He realised late he was entitled to represent himself, which assertion not challenged by cross-examination; He learned late that his former partner had mental health issues and his children were at risk, similarly an assertion not put to him in cross-examination; There was little that pointed to how any prejudice to the Minister would be exacerbated by the granting of the extension of time as distinct from the determination of the merits of the application. 36 The applicant also relied on the decision of O'Bryan J in CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588 at [16]. 37 At the hearing I put to Counsel that the proceedings were referable to an application for extension of time rather than the actual review of the Minister's decision. Notwithstanding that the Minister opposed the application for extension of time, the following exchange took place: MR JAMES-MARTIN: Your Honour, in my submission, this is ought to be - if an extension is granted, then this ought to be treated as the argument of the substantive application. HER HONOUR: So you're going to argue the substantive application now as well. All right. Are you content with that, Ms Nikolic? MS NIKOLIC: Yes, your Honour. HER HONOUR: I think that's appropriate. It just makes sense since we're all here. MS NIKOLIC: Yes, your Honour. I agree. HER HONOUR: And particularly given that Mr James-Martin is here representing - I understand you're representing the applicant pro bono. MR JAMES-MARTIN: That's so, your Honour. HER HONOUR: Thank you. Well, since he's getting such able representation by Mr James-Martin I think it would be a shame for me not to progress to hear the hearing as it is. MS NIKOLIC: Yes, that's fine, your Honour. Thank you, your Honour. HER HONOUR: Thank you. Please continue, Mr James-Martin. (transcript page 8 lines 7-31) 38 Plainly by this point in the hearing no submissions had been made referable to the merits of the applicant's proposed application. However there were clearly reasons of substance for the delay given by the applicant, and no prejudice of substance was identified by the Minister. Consistently with the approach of the Full Court in AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341; [2015] FCAFC 193 at [12], I grant the extension of time in the circumstances of this case. 39 I now turn to the merits of the substantive claim of the applicant.

Substantive Application for Review 40 The draft application marked MFI-1 handed up at the hearing provided as follows: Details of relief sought 1. The applicant be given leave to file an amended originating application in the form filed on 8 November 2022. 2. A writ in the nature of certiorari issue to the Respondent to quash the Decision. 3. A writ in the nature of mandamus issue to the Respondent to require that the Decision be remade according to law. 4. An order that the Respondent pay the Applicant's costs as agreed or taxed. Grounds of application 1. Ground 1: in making the Decision, being the decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa, the Minister constructively failed to exercise the jurisdiction conferred by s 501CA(4). In particular: a. the Minister acted under mistaken apprehension that under that provision it was not possible for him to make a conclusive finding of whether any non-refoulement obligations were owed to the Applicant without a further process similar to that undertaken as part of a protection visa application; b. in adopting this approach, the Minister operated on a mistaken understanding that, contrary to the approaches permitted by s 501CA(4), he was not permitted to positively assess the applicant's claims for the existence of non-refoulement obligations; and c. in so misunderstanding the scope of the power available to him, he constructively failed to exercise jurisdiction, and fell into material jurisdictional error. 2. Ground 2: the Minister constructively failed to exercise jurisdiction by failing to give genuine consideration to clearly articulated and significant representations. Specifically: a. Ground 2 a): The Minister failed to understand that arguments regarding the basis for claims of fears of persecution, had independent relevance and were required to be considered as reasons, not only in respect of Australia's non-refoulement obligations, but also as independent reasons for revocation; b. Ground 2 b): The Minister failed properly to understand or to evaluate the representations made by the applicant that he suffered from mental health issues and that it would be practically impossible for him to receive treatment for that problem if he were returned to Burundi, and that the problem would be greatly exacerbated if he were indefinitely detained. 3. Ground 3: the Minister's Decision was infected by a material jurisdictional error because the Minister constructively failed to exercise jurisdiction because the Decision was irrational, illogical or legally unreasonable. Specifically: a. the Minister made inconsistent factual findings regarding the likelihood of the applicant's reoffending; b. in reaching his ultimate conclusion addressing the statutory task of s 501CA(4), the Minister erroneously concluded that the applicant's risk of reoffending was independently adverse to the request for revocation. 41 In relation to these grounds the applicant submitted, in summary, as follows. 42 In relation to ground 1: Where representations are made which suggest a claim of non-refoulement under domestic law, it is established that the decision-maker may consider those representations under s 501(CA)(4) of the Migration Act, but also that one available outcome for the decision-maker is to defer assessment of those non-refoulement obligations to the stage at which application is made for a protection visa: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [30]. That is not the only method by which a decision-maker can proceed - rather it remains open to the Minister to consider the claims made and determine whether they give rise to non-refoulement obligations which themselves weigh in favour of exercising the revocation power under s 501(CA)(4). The Minister in this case proceeded on a mistaken understanding of s 501(CA)(4) that he was not able to make that assessment at the revocation stage. This is plain from para [70] where the Minister said it was not possible to make a conclusive finding as to whether non-refoulement obligations were owed to the applicant without a full and comprehensive assessment. Paras [70] and [74] read together indicated a misunderstanding of the approaches which were available to the Minister to assess the existence of non-refoulement obligations. That conclusion amounted to a failure to understand the breadth of the Minister's power under s 501CA(4), and resulted in a constructive failure to exercise jurisdiction. The misconception was material. 43 In relation to ground 2: The applicant made a series of representations in favour of revocation. As the High Court observed in Plaintiff M1/2021 the distinction between claims to non-refoulement and the facts which give rise to them may remain an important matter which needs to be addressed where the cancelled visa is not a protection visa. It may be necessary for the decision‑maker to take account of the alleged facts underpinning a 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. The applicant submitted that he had well-founded fears for his safety and was at risk of persecution, including the risk of torture and sexual violence, on a number of bases, including as a returnee from overseas. These facts were relevant as supporting other reasons for cancellation of the revocation decision. Similarly, representations made by the applicant concerning his mental health and the dire state of Burundi's health care system. The Minister did not actively engage with these submissions in a way which understood their significance to the applicant's argument that, whether or not they engaged any non-refoulement obligations, the representations independently provided "another reason" to revoke the original decision. The Minister's reasons recorded that the applicant had "not listed any medical or health concerns", however this could not be seen as a fair or accurate summary of the representations as they related to the applicant's mental health concerns. The statement of the Minister at [86] concerning the applicant's access to the same health services as other Burindi citizens was formulaic and failed to acknowledge either the significance of the applicant's representations or how that the applicant was specifically affected. Notwithstanding that the applicant's mental health position was referred to in the context of his remorse and rehabilitation, there is no indication it was brought to account as being another reason for non-revocation of the cancellation. 44 In relation to ground 3: The statement of the Minister at [105] in relation to having regard to "the likelihood of [the applicant's] reoffending" suggests that it was treated as adverse to the applicant. This, however, was inconsistent with the finding which had been made earlier that the likelihood was low. The reasons were internally inconsistent. 45 The Minister also filed detailed submissions, in summary that: Ground 1 was not substantiated because, as is clear from the Minister's reasons construed as a whole, the Minister did not misunderstand the options available in assessing non-refoulement obligations, including by operating on "a mistaken understanding that, contrary to the approaches permitted by s 501CA(4), the Minister was not permitted to positively assess the applicant's claims at the revocation stage. Ground 2 was not substantiated because the Minister was required to have regard, and did have regard, to representations made by the applicant as a whole, and not as to the individual statements contained in the representations. In any event, the Minister did have regard to issues referable to the applicant's mental health claims. Ground 3 was not substantiated because the reasoning of the Minister was not internally inconsistent as contended by the applicant. 46 I now turn to consideration of these claims.

Ground 1 47 In considering ground of review 1, it is first useful to have regard to the decision of the High Court in Plaintiff M1/2021. In that case a number of questions of law were stated for the opinion of the Court, and relevantly answered as follows: 1. In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff's representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia's international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act? Answer: In deciding whether there was "another reason" to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for a protection visa under the Migration Act: (1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations; (2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and (3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act. 2. In making the Non-Revocation Decision: (a) did the Delegate fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act? (b) did the Delegate deny the plaintiff procedural fairness? (c) did the Delegate misunderstand the Migration Act and its operation? Answer: (a) No. (b) No. (c) No. 3. Is the Non-Revocation Decision affected by jurisdictional error? Answer: Does not arise. 48 In Plaintiff M1/2021 the plaintiff was born in what became the Republic of South Sudan, and had entered Australia as the holder of a refugee visa. He was convicted of two counts of unlawful assault and sentenced to prison for an aggregate term of 12 months. His visa was cancelled pursuant to s 501(3A) of the Migration Act. The plaintiff sought revocation of the decision, and made representations including that if he were returned to South Sudan he would face persecution, torture and death. A delegate of the Minister made a decision pursuant to s 501CA (4) of the Migration Act not to revoke the cancellation decision in that case because they were not satisfied of "another reason" why the cancellation decision should be revoked. As the Court explained: 5. Under the heading "International non‑refoulement obligations", the Delegate stated that they considered it was unnecessary to determine whether non‑refoulement obligations were owed in respect of the plaintiff because the plaintiff could make a valid application for a protection visa and the existence or otherwise of non‑refoulement obligations would be fully assessed in the course of processing such an application. 49 Relevantly the majority (Kiefel CJ, Keane, Gordon and Steward JJ) observed: 29. Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4)[58]. But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error[59] - they are not part of Australia's domestic law. 30. Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4)[60], but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa. 50 The majority continued: 36. The Delegate was required to read, identify, understand and evaluate the plaintiff's representations. The Delegate's reasons record that they did so. The Delegate accurately identified that the plaintiff's representations raised a potential breach of Australia's non‑refoulement obligations but said that it was unnecessary to determine whether non-refoulement obligations were owed in respect of him because he was able to make an application for a protection visa, "in which case the existence or otherwise of non‑refoulement obligations would be fully considered in the course of processing that application". The Delegate decided not to bring the plaintiff's representations in relation to non‑refoulement to account (in the sense of giving weight to them and balancing them against other factors) in making the Non‑Revocation Decision, reasoning that a protection visa application was "the key mechanism provided for by the [Migration Act] for considering claims by a non‑citizen that they would suffer harm if returned to their home country". That approach was not inevitable, but it was not erroneous. 37 Contrary to the plaintiff's submissions, the Delegate's reasons do not reflect a misunderstanding of the operation of the Migration Act. For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non‑refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations. 38 The Court is not "astute to discern error" in the reasons of an administrative decision-maker[73]. The Delegate's reasons convey that the Delegate had read and understood the plaintiff's claim and proceeded on the basis that non‑refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non‑refoulement obligations as "another reason" for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness. 39 Where the cancelled visa is not a protection visa and a decision‑maker defers assessment of whether non‑refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless 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[74]. 40 Here, the reasons record the Delegate's consideration of the issues of fact presented by the plaintiff's non‑refoulement claims. The Delegate stated that they had considered the plaintiff's "claims of harm upon return to [South] Sudan outside the concept of non‑refoulement and the international obligations framework" and that they accepted that, "regardless of whether [the plaintiff's] claims [were] such as to engage non‑refoulement obligations, [the plaintiff] would face hardship arising from tribal conflicts were he to return to [South] Sudan". The harm, which formed the basis of his non‑refoulement claims, was that if he was returned to South Sudan he faced persecution, torture and death. In concluding that they were not satisfied that there was another reason to revoke the Cancellation Decision, the Delegate stated that they had "considered all relevant matters including ... an assessment of the representations received in relation to the invitation for the purposes of s 501CA(4)(a)". The Delegate concluded that the plaintiff represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed both the interests of his children and "other countervailing considerations", which would include the hardship identified by the Delegate. 41 Given the answers to questions 1, 2 and 3 of the questions of law stated in the Special Case, it would be futile to grant the plaintiff the extension of time he would need to bring the proceeding. 51 In my view the reasoning of the Minister in the present case is entirely consistent with that endorsed by the High Court in Plaintiff M1/2021. In particular, in the present case: The Minister recognised that if non-refoulement obligations were engaged, that would be a factor in favour of revocation of the cancellation decision: [63]. The Minister accepted that the nature of the applicant's claims indicated a potential for Australia's international non-refoulement obligations to be engaged: [69]. Although the Minister considered that a full and comprehensive assessment would be required before a conclusion could be reached as to whether non-refoulement obligations were engaged, he nonetheless accepted that there was at least a possibility that the applicant could face a "real risk of suffering the abovementioned kinds of harm in Burundi, which might include human rights abuses such as arbitrary arrest and execution, threats and ill-treatment, and denial of access to services": [70]. In the circumstances the Minister accepted that the applicant's removal to Burundi might potentially breach Australia's non-refoulement obligations: [71]. The Minister recognised that non-refoulement claims in the context of s 501CA of the Migration Act are not required to meet predetermined benchmarks and that the consideration of such claims under s 501CA(4) of the Migration Act is less categorical than the issue of whether a person satisfies a relevant protection criterion under s 36(2) of the Migration Act: [79]. This principle accords with such authorities as Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513. The High Court in Plaintiff M1/2021 at [30] found that one available outcome for the decision-maker in such circumstances was to defer assessment of whether the former visa holder was owed non‑refoulement obligations, on the basis that it was open to the former visa holder to apply for a protection visa. In the present case the Minister found: • at [70] that the Minister was unable to make a conclusive finding in respect of non-refoulement obligations at that stage; and • at [73] and [74] that it was likely the applicant would apply for a protection visa and it was in that context that the applicant's claims of harm could be conclusively assessed. 52 Although the Minister did not specifically use the term "defer" in respect of findings concerning non-refoulement obligations, his reasons read as a whole plainly demonstrated that the Minister chose to defer consideration of whether the applicant was owed non-refoulement obligations pending application by the applicant for a protection visa. The Minister was entitled to proceed on that basis, and on the basis of the material before him. I do not accept that the Minister erred in finding that a conclusive decision concerning whether Australia's non-refoulement obligations were engaged required a more in-depth analysis of the case than was available in the circumstances of the revocation application. 53 In any event, the Minister at [104] accepted that there was at least a possibility that international non-refoulement obligations were enlivened in relation to the applicant, and to that extent the existence of such obligations constituted another factor which weighed in favour of a decision to revoke. That it did not ultimately result in a decision to revoke the cancellation decision does not mean that there was a constructive failure on the part of the Minister to exercise his discretion pursuant to s 501CA of the Migration Act. 54 I am not persuaded that the Minister erred in the terms contended by the applicant. Ground 1 is not substantiated.

Ground 2 55 Ground 2 has two parts, but the applicant essentially claimed that the Minister failed to genuinely consider representations relating to the applicant's fears of persecution and mental health considerations. 56 The requirement of the Minister to consider representations made by an applicant was explained by the Full Court in Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151: 41. The starting point is the terms of s 501CA(4) of the Act. One of the matters which engages the power to revoke a prior cancellation is that the person given the invitation under s 501CA(3) by the Minister has made representations to the Minister. Although the subsection does not say so in express terms, the representations must be considered by the Minister. They are, as the Minister accepted, a mandatory relevant consideration (Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 (Tickner v Chapman)). However, they are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations… 57 Their Honours in that case in turn agreed with comments of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 including the following at [56]: …While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised…. 58 To the extent that the applicant claimed in ground 2(a) that the Minister failed to adequately consider the applicant's fears of persecution as an independent consideration, I refer to the principles I have just set out. I also note that the Minister at [65]-[68] referred to the applicant's claims of risk of persecution for political and other reasons, and at [69] specifically accepted that the nature of the applicant's claims in that respect indicated a potential for Australia's international non-refoulement obligations to be engaged in relation to the applicant. 59 The applicant also submitted that matters put in support of the existence of non-refoulement obligations were intended to be equally applicable to the assessment of impediments to the applicant's return to Burundi. As the Minister submitted however, the phrase "extent of impediments if removed" in Direction No. 90 directs attention to practical issues including age and health, any substantial language or cultural barriers, and social, medical and/or economic support available to an applicant in their country of citizenship. "Impediments" in this respect does not include issues of persecution, which in this case were considered in respect of non-refoulement. 60 To the extent that the applicant claimed in ground 2(b) that the Minister failed to consider the applicant's claims concerning his mental health condition and the prospective inability of the Burundian health services to properly treat him: It does not appear to be in dispute that the applicant did not list any specific medical or health concerns in his representations. In the absence of such information the Minister was not in a position to form any conclusion about the capacity or otherwise of the Burundian health system to treat the applicant; In the absence of identification of specific medical or health conditions, the Minister was not required to accept any uncorroborated assertions by the applicant or his representative about the applicant's mental health, in circumstances where those claims did not clearly arise from the evidence: Plaintiff M1/2021 at [25]; It is plain from his reasons that the Minister considered the applicant's submissions as to his traumatic past in Burundi, expressly acknowledging this as the basis for the finding as to non-refoulement obligations (at [26], [30], [33], [66]. [70). 61 In any event, after taking into account the applicant's submissions including referable to his claims of potential persecution and mental health issues, the Minister at [89] concluded that the applicant would face significant hardship should he be removed to Burundi. This was plainly a factor weighing in the applicant's favour referable to the Minister's consideration of the revocation application. Again, that the significant hardship likely to be faced by the applicant did not ultimately result in a decision by the Minister to revoke the cancellation decision does not mean that there was a constructive failure on the part of the Minister to exercise his discretion pursuant to s 501CA of the Migration Act. 62 In my view ground 2 is not substantiated.

Ground 3 63 In respect of ground 3, the applicant claimed that the Minister's decision was irrational, illogical or legally unreasonable because the Minister made inconsistent findings regarding the likelihood of the applicant reoffending. 64 There is a legal presumption that the legislature intended that statutory discretionary powers be exercised reasonably. However as the Full Court recently observed in CKL21 v Minister for Home Affairs (2022) 293 FCR 634; [2022] FCAFC 70: 65. While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALD 224 at [35]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ. 65 At [42] of his reasons the Minister specifically found that there was a low likelihood that the applicant would reoffend. I am not persuaded that the Minister, inconsistently, then went on to find that the applicant's risk of recidivism was high. Rather, the reasoning of the Minister was consistent with the prominence given in Direction No 90 to sexual offences against minors, where the risk of harm is grave. At [107] of his reasons the Minister specifically recognised that where significant harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient for the Minister to revoke the decision to cancel. 66 As the Full Court observed in CKL21: 66. … the Court has previously found that a decision-maker, exercising power under s 501CA(4) or a power to cancel a visa, is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious. In BMX15, while the Minister found that the likelihood of reoffending was low (a matter weighing in the applicant's favour), the gravity of possible harm was high (a matter that weighed against the applicant) (at [28]). Justice Bromberg observed (at [29]) that: That combination of likelihood and gravity (which I will call "overall risk") was weighed against other relevant factors. The Minister considered that the overall risk outweighed those other factors. That was not illogical or irrational. It was not legally unreasonable. There was a clear process of reasoning leading to that outcome. It is true, of course, that other decision-makers might reasonably have reached a different conclusion on the merits, but that (of course) does not suffice to demonstrate that this decision was legally unreasonable. This decision was not "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", or "obviously disproportionate": cf AZAFQ at [58]. ... 67. Similarly, in Stretton, Allsop CJ observed at [16]-[17] that: [16] ... The Minister accepted that the risk of Mr Stretton re-offending was low, but recognised that should re-offending occur the harm could be serious to the community ... [17] It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community's behalf, to take the low risk of the possibility of his re-offending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterized as legally unreasonable - as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred, and known immediate human hardship if removal takes place. The decision to be made did not admit of a ready answer by some calculus. The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power ... 67 Plainly, although the Minister thought that the risk of the applicant re-offending was low, it was not unfeasible. The Minister clearly found that, should the applicant re-offend in a similar fashion, the effect on the Australian community would be unacceptable. 68 Ground 3 is not substantiated.

CONCLUSION 69 The applicant's grounds of review are not substantiated. The application is dismissed. Costs follow the event. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

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