CFA18 v Minister for Home Affairs

The relevant legislation 6 Section 501(3A) of the Act provides: The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 7 Section 501CA(3) of the Act provides: As soon as practicable after making the original decision [that is, the Minister's decision under s.501(3A)], the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. 8 Section 501CA(4) of the Act provides: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked.

The decision of the tribunal 9 The Tribunal quoted s 501CA(4) of the Act and noted that the issue that it must determine is whether there is "another reason" why the original decision should be revoked pursuant to s 501CA(4)(b)(ii). It noted that this involves an evaluative process requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked. 10 The Tribunal referred to and recited the applicant's criminal history, and then addressed each of the primary considerations identified in Direction No. 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA). 11 The Tribunal then considered the nature and seriousness of the conduct of the applicant, the risk to the Australian community posed by the continued presence of the applicant in Australia, the best interests of minor children in Australia affected by the decision, and the expectations of the Australian community. After considering these matters, the Tribunal turned its attention to "other considerations", the first of which concerns "international non-refoulement obligations", which is the sole focus of the current application for review. 12 The Tribunal found as follows (footnotes omitted): 71. The Tribunal accepts that the Applicant experienced trauma during the civil war in Sudan, particularly while he was separated from his family and looked after by his older brother, and when he was alone. It does not accept all the details of his claims about what happened to him because there is inconsistent evidence about significant aspects of it, including when and where his father died and whether he was trained as a child soldier. The Applicant's evidence that people were going around refugee camps telling people from South Sudan which stories to tell to get to Australia reinforced the Tribunal's concern about the truth of his claims. 72. The delegate did not consider Australia's international non-refoulement obligations because the Applicant is able to apply for a protection visa. The delegate referred to the Department's practice of considering protection-specific criteria first before other criteria, including character, and to Direction no. 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b). Consequently, no assessment of Australia's treaty obligations was obtained or available to the Tribunal 73. The Applicant has identified this consideration as "another reason" why the revocation of the visa should be cancelled. The Tribunal therefore considers the matter. 74. The evidence about what will happen to the Applicant if he returns to South Sudan and why, was limited. Following is a summary of the evidence. 75. The Applicant was a refugee from the civil war in Sudan. He was trained as a child soldier and was registered in Sudan. His father was a member of the Nuer tribe and his mother a member of the Dinka. There are tribal wars, including between the Dinka and the Nuer. There is a lot of corruption. He has made a statement against the government and "is pretty sure that it gets back to them". 76. His mother referred to fighting going on in South Sudan and that he has no relatives there to support him. She stated that the sound of guns is heard every now and then in Juba and people died from unknown gun men. She said that he has no idea of living there and would be "food of the jungle". 77. The Applicant listed, as an impediment to return, that he was depressed, has multiple stress disorder and was taking medication. 78. He claimed that he had no passport. 79. No country information was provided to the Tribunal by the Applicant or the Respondent. 80. The Respondent submitted that, in relation to s 501 of the Act, the Tribunal is not required to engage in the extensive assessment and determination of protection claims that the Migration Review Division of this Tribunal is required to, relying on Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (Ayoub) at [28]. 81. Further, the Respondent submitted that it was highly relevant to the Tribunal's "weighing" exercise that the Applicant is able to apply for a protection visa, when his claims would be determined before any consideration of character concerns.[3] Furthermore, if the application were refused, the Applicant could pursue merits and judicial review. 82. The Respondent submitted that the Tribunal follow the approach taken into PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961, at [86] - [88], relying on Ayoub. 83. The Applicant's claims were in relation to South Sudan. The claims before the Tribunal lack detail and probative evidence that would enable the Tribunal to be satisfied that Australia has protection obligations because the Applicant is a refugee, or because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to South Sudan, there is a real risk that he will suffer significant harm (s 36(2)(a) and (aa) of the Act). 84. The Applicant repeatedly said that he got no assistance in detention in relation to this proceeding. The Tribunal accepts that is so. The only evidence he put before the Tribunal in addition to his statement and the Personal Circumstances Form he provided to the department when he requested revocation of the cancellation decision, was a statement in Dinka from his mother, just two days before the hearing. The Respondent co-operated with the Tribunal in this case, and tendered the English translation of that statement that was provided on the second day of the hearing, avoiding the difficulties posed by s 500(6H) of the Act. 85. The Tribunal takes into account that the Applicant is able to apply for protection. 86. The Tribunal gives this consideration no weight. 13 After considering these matters, the Tribunal addressed the strength, nature and duration of the ties of the applicant to Australia, the impact on victims and the extent of the impediments facing the applicant if he is removed to South Sudan. The Tribunal concluded that, taking into account the above considerations, the considerations in favour of not revoking the cancellation of the visa strongly outweigh those factors in favour of revocation. Accordingly, it was not satisfied that there is another reason why the cancellation decision should be revoked.

The submissions 14 The applicant submits that the Tribunal did not properly consider the applicant's claims in relation to why he should not go back to South Sudan. Although the Tribunal concluded that he was not a person who was owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act, he submits that there was minimal reasoning given for these conclusions. He submits that while the Tribunal is not required expressly to refer to every piece of evidence and every detail raised by an applicant in its reasons for its decision, a failure to do so may give rise to the inference that relevant matters raised by the applicant were not properly considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALR 630 (French, Sackville and Hely JJ) at [46]-[47]. The applicant submits that such an inference should be drawn in the present case. Furthermore, citing Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Robertson J) at [54], the applicant contends that it is not open to decision-makers to proceed on the basis that they do not need to consider representations relating to risks of harm on the return to the applicant's country of nationality, simply because it remains open to an applicant to apply for a Protection Visa. In this regard, the applicant also cites BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (Bromberg, Davies and Mortimer JJ) at [36]-[47] and [90] which, the applicant submits, stands for the proposition that it is legally incorrect for decision-makers to proceed on the assumption that non-refoulement obligations would necessarily be considered if an applicant, whose visa had been cancelled pursuant to s 501 of the Act, made an application for a protection visa. The applicant submits that the Tribunal's findings at [85]-[86] indicate that it accepted the submissions made on behalf of the Minister and failed to correctly consider the existence of international non-refoulement obligations for the purposes of s 501 of the Act. 15 The Minister submits that the Tribunal properly took into account the relevant materials given to it for the purpose of its consideration of whether to exercise power under s 501CA(4), citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ) (Carrascalao) at [60]. He submits that the Tribunal did have proper regard to the submissions made and the evidence before it, and draws attention to Carrascalao at [48] where the Court observed that a conclusion that the decision-maker has not engaged in the intellectual process contemplated will not lightly be made and must be supported by clear evidence, bearing in mind that in the judicial review process, applicants carry the onus of proof. The alleged failure to give "active intellectual consideration" to claims or evidence is of the same nature as an alleged failure to give "proper, genuine and realistic consideration" to the claims or evidence. The Minister submits that the applicant inaccurately characterised the nature of the Tribunal's findings when asserting that the Tribunal gave no weight to the applicant's or his mother's claims. The Minister submits that, fairly read, the reasons given by the Tribunal for giving no weight to international non-refoulement obligations were first, that the applicant could make an application for a protection visa, and secondly, that there was an absence of evidence before the tribunal regarding the applicant's risks of harm in South Sudan. Further, the Minister submits that the Tribunal expressly considered the weight to give to non-refoulement obligations and recorded and took into account the information available to it relating to the risk of harm to the applicant in South Sudan.

Consideration 16 A statutory appeal from the Tribunal on a question of law is not available in relation to a Tribunal decision on a migration matter: s 43C(c) of the Administrative Appeals Tribunal Act 1975 (Cth). Rather, the present application is in respect of a privative clause decision of the Tribunal under s 500 and is therefore in the original jurisdiction of this Court: s 476A(1)(b) of the Migration Act. The jurisdiction in such cases is the same as that of "the High Court under paragraph 75(v) of the Constitution": s 476A(2). So, for present purposes, the applicant must demonstrate jurisdictional error. 17 The ground advanced in support of the application is that the Tribunal failed to conduct a review in respect of the Minister's decision not to revoke the cancellation decision. The premise of the particulars relied upon in support is that the Tribunal did not give any active, intellectual consideration to the applicant and his mother's claims regarding why the applicant could not return to South Sudan. Whilst the applicant accepts (in Particular (a)) that the claims raised by the applicant and his mother are recorded in the Tribunal's reasons at [75] and [76], the applicant contends (in Particular (b)) that the Tribunal gave their claims no weight, and in doing so, incorrectly relied on Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513, and the fact that the applicant was able to apply for a protection visa. However, in my view these matters do not correctly characterise the reasons given by the Tribunal. 18 The Tribunal records (at [72]) that the delegate did not consider Australia's international non-refoulement obligations because the applicant is able to apply for a protection visa. However, the Tribunal goes on to say that the applicant has identified it as "another reason" why the revocation of the visa should be cancelled, and then goes on to consider the matter, being the non-refoulement obligations. The Tribunal then proceeds to summarise the totality of the evidence in support of the proposition that Australia owes the applicant non-refoulement obligations, which is set out at [75] and [76]. At [79], the Tribunal records that no country information was provided to the Tribunal. 19 The Tribunal at [83] then records that the claims made in respect of the non-refoulement obligations lack detail and probative evidence that would enable it to be satisfied that Australia owes those obligations because the applicant is a refugee, or because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Sudan, there is a real risk that he will suffer significant harm (ss 36(2)(a) and (aa) of the Act). 20 The obligation of the Tribunal to give active, intellectual consideration to the claims advanced by the applicant requires the Tribunal, with appropriate care and attention, to engage in an active intellectual process in reviewing relevant materials placed before it to assist in the discharge of its statutory function; Carrascalao at [60]. 21 In determining whether there has been an active and intellectual process, the Court is required to "conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case": Carrascalao at [47]. Although each case will necessarily turn on its own facts, other authorities provide guidance as to what constitutes active intellectual consideration. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Perram, Murphy and Lee JJ) at [77], the Court considered the fact that the Minister had summarised salient parts of a psychologist's report to be evidence of an "active intellectual process" of the kind envisaged in Carrascalao. In Minister for Home Affairs v Buadromo [2018] FCAFC 151 (Besanko, Barker and Bromwich JJ) at [60], the Court considered that although the decision-maker (the Parliamentary Secretary in that case) had not made express findings as to certain aspects of the applicant's application, the decision-maker had "considered the representations in a meaningful way" and had engaged in the requisite active intellectual exercise. 22 In the present case, the applicant was able to point to little in the way of evidence before the Tribunal that supported his non-refoulement claim. The Minister directed attention in the materials before the Tribunal to a hand-written statement by the applicant that "Sudan is currently at war and has been for 40 years. I have no family left in Sudan. They have been killed due to the war. My two brothers and mother are in Australia". A later statement says "I lived in Sudan through a civil war and witnessed horrific events. As a result of this, I was fortunate with the help of the Australia Government and the UNHCR, received a Child refugee on a humanitarian visa [sic]". I was informed that during the course of the Tribunal hearing, the applicant gave oral evidence. However, the transcript of evidence was not available in the Court Book in the current application. Nevertheless, there is no suggestion by the applicant that at [75] the Tribunal failed accurately to summarise the evidence given by the applicant. Nor is there any suggestion that at [76] the Tribunal failed correctly to summarise the written statement given by the applicant's mother. 23 Having thus turned its attention to, considered, and summarised the effect of the evidence before it, the Tribunal reached its conclusion that it was not satisfied that Australia owed non-refoulement obligations to the applicant. In my view, the reasoning of the Tribunal does reflect proper, genuine and realistic consideration of the merits of the claim so advanced. At [83] the Tribunal weighed the evidence and considered that it was insufficient to satisfy the international non-refoulement obligations owed by Australia. 24 I am also unable to accept the applicant's further submission that the Tribunal did not properly consider his claims in relation to why he could not go back to South Sudan because an inference may be said to arise from a failure of the Tribunal to refer to relevant matters raised by the applicant; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5]-[10], [69], [87]-[97]. As I have noted, the applicant accepts that the Tribunal accurately summarised his and his mother's evidence in relation to non-refoulement. The basis for any inference that relevant matters raised by the applicant were not considered has not been established. 25 Accordingly the applicant has not made out his case for jurisdictional error on the part of the Tribunal. The application must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.