CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Extension of time 13 The applicant's application for review of the Tribunal's decision was 57 days out time. The applicant accordingly sought an extension of time. 14 The Minister accepted that he suffered no prejudice on account of the lateness of the application, and he consented to the extension of time. An order was accordingly made extending time to the day on which the application was filed, namely 8 November 2018.

The applicant's grounds of review 15 The applicant was initially unrepresented in this Court. Presumably on that account, his originating application stated grounds of review which are meaninglessly broad and un-particularised. The Court, however, issued a referral certificate under r 4.12 of the Federal Court Rules 2011 pursuant to which a registrar arranged for the provision of legal assistance for the applicant by a pro bono lawyer. 16 The Court is grateful to Ms Baw and, more recently assisting her, Mr Macdonald-Norman, both of counsel, for agreeing to accept the appointment to appear on the applicant's behalf. The preparedness of counsel to act in such circumstances is of considerable assistance to the Court and contributes significantly to the efficient and proper administration of justice. More importantly, it provides invaluable assistance to vulnerable people such as the applicant who do not otherwise have legal representation to assist them in obtaining justice in the complex administrative system under the Act. 17 Following the appointment of Ms Baw, the applicant sought to amend the originating application by specifying three particularised grounds of review. The Minister did not oppose the amendments which were accordingly effected with leave. 18 The result is that the following three grounds of review were then advanced on behalf of the applicant: Ground 1 asserted that the Tribunal failed to carry out its statutory task of review with respect to assessing Australia's international non-refoulement obligations. As detailed below, this ground was subsequently sought to be amended. Ground 2 asserted that the Tribunal erred in construing the "expectations of the Australian community" criteria in Ministerial Direction 65. As detailed below, this ground was subsequently abandoned. Ground 3 asserts that the Tribunal erred by failing to consider that the applicant may not be able to make an application for a protection visa due to the operation of ss 197C and 198 of the Act in assessing Australia's international non-refoulement obligations. 19 At the time of the hearing of this matter there were two cases pending before the Full Court that could have had a significant bearing on the issues in this case. Thereafter, on 24 October 2019, judgment was delivered in FYBR v Minister for Home Affairs [2019] FCAFC 185 dealing with the construction of Direction 65 and the meaning of "expectations of the Australian community". That is relevant to review ground 2. On 29 October 2019, judgment was delivered in Minister of Home Affairs v Omar [2019] FCAFC 188 dealing with the degree to which a decision-maker in considering whether to revoke a visa cancellation under s 501CA(4) of the Act is required to consider any submission that the cancellation would result in harm that would invoke Australia's non-refoulement obligations. That is relevant to review ground 1. 20 Following the judgments in FYBR and Omar, I gave the parties the opportunity to file further written submissions to deal with the implications of those judgments, and any other recent judgments, on this case. The parties availed themselves of that opportunity as a consequence of which the applicant abandoned review ground 2 as it could not succeed, at least not at first instance, in light of FYBR. 21 The applicant also sought leave to amend review ground 1 in light of Omar. This was opposed by the Minister on the basis that it is late and has little prospect of success. I will deal with this question when I deal with ground 1 below.

The legislative scheme 22 Section 501CA of the Act sets out the process for a possible revocation of a cancellation decision under s 501(3A). It applies if the Minister makes a decision under s 501(3A), such as in this case, to cancel a visa. It requires that as soon as practicable after making the original decision, the Minister must give the person a written notice that sets out the original decision and the reason for making the original decision (subsections (2) and (3)). 23 Relevantly, s 501CA includes the following subsections: 501CA Cancellation of visa - revocation of decision under subsection 501 (3A) (person serving sentence of imprisonment) … (4) 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. (5) If the Minister revokes the original decision, the original decision is taken not have been made. 24 Because of his conviction and sentence to a period of imprisonment exceeding 12 months, the initial cancellation of the applicant's visa was mandatory under s 501(3A) read with the definitions of "substantial criminal record" and "character test" in subsections (7) and (6) respectively. It was accepted by the applicant before the Tribunal, and before this Court, that he does not pass the character test. The question for the Tribunal was thus whether "there is another reason why the original decision should be revoked" as referred to in s 501CA(4)(b)(ii).

The Tribunal's decision 25 The Tribunal's reasons for its decision are careful and detailed, running to 114 paragraphs over 27 pages. The reasons set out the applicant's personal history, his criminal record, his record of conduct in prison and immigration detention, evidence of his attitude towards rehabilitative programs, details of his mental health assessments and identification of his underlying problems. It then goes on to identify that the issue before the Tribunal was whether under s 501CA(4)(b)(ii) of the Act, "there is another reason why the original decision should be revoked". 26 At paragraph [64] of its decision, the Tribunal states that, before turning to the specifics of Direction 65 and their application to the applicant, "the Tribunal believes that it should consider a precedent question". Omitting footnotes, it thereafter states the following, with paragraph [72] being the most pertinent for present purposes: [THE APPLICANT'S] FEAR OF HARM IF RETURNED TO IRAQ: CONSIDERATION OF BCR16 65. In his initial application to have his visa cancellation revoked, [the applicant] stated: I dont (sic) want to go back to Iraq because I have no family there all my family is here in Australia and my dad was killed in Iraq and my sister was kidnaped (sic) because we are Chirstan (sic) and I done my time for my crim (sic) so if you send me back to Iraq I will get killed and I think thats (sic) extra punishment and its (sic) not fair for me because all my family is here in Australia 66. In his letter dated 20 July 2018, submitted to the Tribunal, [the applicant] writes: We were persecuted because of our religion and it is because we were Christians that my father was murdered… I will most likely be killed in this country [Iraq] because of my religion. This is why my family fled Iraq in this (sic) first place… my life in Iraq was full of violence and persecution 67. In oral evidence, [the applicant] repeated these fears although conceding that he might not be killed but that, at the very least, he would suffer persecution and discrimination on the basis of his Christianity. 68. The Tribunal well understands these concerns. 69. A recent definitive study of the history of ISIS notes: Christians do not fare much better. After capturing Mosul and other cities in Iraq and Syria, ISIS presented Christians in both countries with a stark choice: convert to Islam, pay a special tax (jizya), or get out immediately and be disinherited from everything you own. Recent evidence shows that despite paying the special tax, Christian girls and women have been victims of ISIS's practice of systemic rape. In light of this ultimatum, the ISIS surge has triggered another wave of exodus by Christians, an exodus that began in earnest when its forerunner Al Qaeda in Mesopotamia, also commonly known as Al Qaeda in Iraq, forced 1 million of Iraq's surviving 1.5 million Christians to flee the country between 2003 and 2010. 70. The Federal Court in BCR16 v Minister for Immigration and Border Protection made it clear That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia's non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion. 71. [The applicant] has raised this issue before the Tribunal and it cannot be ignored. It is also not in dispute that, in the event that [the applicant's] visa cancellation is not revoked, he will be entitled to make a separate claim for a protection visa or a bridging visa. 72. The fact that [the applicant] has raised this issue does not, however, mean that this Tribunal must make a specific determination in regard to it. Indeed, in the event that the visa cancellation is not revoked, while a claim to a protection visa remains on foot for [the applicant], it is recognised that this Tribunal could not "engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim". 73. The Tribunal is also mindful of the fact that the Courts have made it clear that claims for a protection visa cannot be rejected on application of the character test alone, and that "consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality" must be considered. 74. This has now been clarified further by Ministerial Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b) issued on 5 September 2017. Part 2 of that Direction makes it clear that claims of serious potential harm and persecution must be assessed by decision-makers dealing with protection visas before other matters are considered. 75. Whether there is a genuinely meaningful option for [the applicant] must remain a matter of some speculation given the comment by Senior Member Taylor in Aciek to the effect that: The undesirability of embarking on any assessment of Mr Aciek's potential non-refoulement claims is not removed by apprehension that any application he might make for a Protection visa would be an exercise in futility, given his "substantial criminal record" 76. Although this Tribunal is inclined to believe that [the applicant] would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history, it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access. The best that can be said is that: The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. 27 The above paragraphs are the most relevant to the applicant's review grounds 1 and 3. Also, in the course of considering the various considerations, both 'primary' and 'other', identified in Direction 65, the Tribunal stated the following: 93. Regarding Australia's international non-refoulement obligations, in its previous discussion of [the applicant's] claims that he faced the prospect of serious harm if returned to Iraq, the Tribunal believes it has discharged its obligations to consider this matter. Taken alone, and bearing in mind the strictures of BCR16, the Tribunal concludes that this consideration weighs in [the applicant's] favour. 28 The ultimate reasoning of the Tribunal is recorded in its reasons at paragraphs [104] to [113]. Paragraph [105] deals with the issue of the harm that the applicant may face if returned to Iraq: 105. As explained, the considerations related to the protection of the Australian community and its expectations weigh against [the applicant]. Issues of [the applicant's] fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on return weigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.

Further amended ground of review 29 It will be recalled that this ground asserted that the Tribunal failed to carry out its statutory task of review with respect to assessing Australia's international non-refoulement obligations. However, the applicant seeks leave to further amend the ground to say the following: The Tribunal failed to carry out its statutory task of review with respect to assessing Australia's international non-refoulement obligations if the applicant's representations on harm was 'another reason' for revoking the visa cancellation pursuant to s 501CA(4) of the Migration Act. 30 The particulars given in support of this ground are the following with only particular (f) being sought to be further amended in the respects indicated: (a) The applicant was the holder of an offshore humanitarian visa (Global Special Humanitarian Subclass 202) when he first arrived in Australia from Iraq in November 2007. That was the visa that was cancelled by the Department on the basis that he had a "substantial criminal record" pursuant to s 501(3A) of the Act. (b) The Tribunal, in its decision, started on a consideration of the applicant's claim that he feared harm if he returned to Iraq and found that it was "inclined to believe that [the applicant] would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history" at D[76]. (c) However, the Tribunal refused to "make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access" at D[76]. (d) The Tribunal reasoned that if the applicant's visa cancellation was not revoked, he would be able to make a separate claim for a protection visa or a bridging visa. (e) However, the Tribunal went on to find that "[w]hether this is a meaningful option for [the applicant] must remain a matter of some speculation" at D[75]. (f) Once the Tribunal embarked on a task which it recognised it was entitled to do, it should have fully carried it out. That is, rather than merely speculate on what may or may not happen if the applicant made a later claim for a protection visa, the Tribunal ought to have taken sufficient evidence and submissions from the applicant in order to make a clear finding on whether non-refoulement obligations are owed to the applicant made a clear and 'definitive' finding on whether the applicant's representations on harm was 'another reason' for revoking the visa cancellation pursuant to s 501CA(4) of the Migration Act. 31 Although the particulars to the ground of review have barely changed, the amendment to the ground itself is significant. A failure to assess Australia's international non-refoulement obligations is quite different from a failure to assess the applicant's submissions with regard to the harm that he may face if returned to Iraq even though the underlying facts would be much the same in both instances. It is also true that the amendment comes at a late stage, being after the end of the hearing. That said, the inspiration for the amendment is the subsequent decision of the Full Court in Omar although the further amended ground was available to the applicant even before that decision. 32 It is significant that the Minister does not identify any particular prejudice that he will face if the amendment is allowed, and bases his opposition to the amendment principally on his submission that the further amended ground of review has poor prospects of success. If the further amended ground of review is good, to deny the amendment would potentially result in very significant prejudice to the applicant. It goes to his status in Australia and his liberty. 33 In those circumstances, in my view the interests of justice are best served by me allowing the amendment and then considering and deciding the merits of the ground of review as further amended.

The submissions 34 Counsel for the applicant submitted, with reference to Omar, that in considering the applicant's case and whether there was another reason why the visa cancellation decision should be revoked, the Tribunal was obliged to deal with any clearly articulated case that the applicant would be harmed if he was returned to Iraq. It was submitted that whatever relevance that had to issues of non-refoulement, it was also a straightforward argument that he would be harmed if returned which was relevant to the function being performed under s 501CA(4). 35 It was submitted for the applicant that the Tribunal's error was in proceeding on the basis that the applicant's representations could, in their entirety, be met by the availability to the applicant of an application for a protection visa. It was submitted that as a result of that reasoning, the Tribunal treated the representations on harm as irrelevant to the exercise of its discretion under s 501CA(4). 36 On behalf of the Minister, it was submitted that the Tribunal engaged with, and accepted, the applicant's representations on his fear of harm in Iraq. It was submitted that the Tribunal did what the Minister did not do in Omar. 37 It was submitted on behalf of the Minister that the fact that the Tribunal observed (at [72]) that it was not required to "make a specific determination" in relation to his claimed risk of harm does not mean that there had not been active engagement with his representations; rather, the Tribunal, given its reference in that paragraph to Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] and [34], should be understood to be saying that it was not required to determine, as though it was exercising power under s 65(1) of the Act, whether the applicant was a person who satisfied the requirements of s 36(2), but that its task was to consider harm in reaching the state of satisfaction in s 501CA(4)(b)(ii). 38 It was submitted on behalf of the Minister that the Tribunal accepted that the applicant would be at "some risk" by reason of his ethnicity, religion and family history if he was returned to Iraq, but it could not take that matter any further given the dearth of material before it going to those questions.

Consideration 39 Ground 1 essentially turns on the proper understanding of what was decided in Omar and the application of that to the facts of this case. It is hence to Omar that I turn. 40 The point decided by the Full Court in Omar (at [29]) was that the Assistant Minister (being the relevant decision-maker in that case) had made a jurisdictional error by failing to consider matters raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether those matters engaged any of Australia's non-refoulement obligations. The primary judge in that case had concluded that the Assistant Minister had adequately considered those representations, being harm that the respondent feared if he was returned to his receiving country. 41 In reaching its conclusion, the Full Court held (at [36]-[37]) that the Assistant Minister had an obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request. The Full Court stated (at [39]) that giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia's non-refoulement obligations requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Further (also at [39]), depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law. 42 Returning to the present case, in paragraph [72] the Tribunal stated that the fact that the applicant had raised the issue of his fear of harm if returned to Iraq did not mean that the Tribunal must make a specific determination in regard to it. The paragraph is quoted at [26] above, but the footnotes are omitted. In the original, there is a footnote at the end of the first sentence of paragraph [72] which references, as referred to in the Minister's submissions summarised above, Ali at [28] and [34]. The Minister submits that that reference shows that what the Tribunal was really saying is that it is not required to determine the issue as though it was exercising power under s 65(1) of the Act. That is the power to grant or refuse a visa, as opposed to the power presently relevant which is to revoke a cancellation of a visa upon having the state of satisfaction referred to in s 501CA(4)(b)(ii), i.e. that there is another reason why the original decision should be revoked. 43 I do not accept that submission. Ali was concerned with the Assistant Minister's treatment of submissions that if the cancellation of the visa in that case was not revoked the applicant would be returned to Afghanistan which, so it was submitted, would be contrary to "Australia's obligations under the non-refoulement principle". The Assistant Minister had considered it "unnecessary to determine whether non-refoulement obligations are owed". (See Ali at [29].) 44 It was in that context that the Court drew a distinction between the state of satisfaction required to be reached under s 501CA(4)(b)(ii) and the finding that the criteria prescribed by s 36(2) had been satisfied. The present case is quite different. The applicant made submissions with regard to the harm that he would face if returned to Iraq as a reason to revoke the cancellation of his visa under s 501CA(4)(b)(ii). That is distinct from, although obviously overlapping with, the harm that might enliven Australia's non-refoulement obligations. 45 The Tribunal, in paragraph [72], explicitly considered that it did not need to make "a specific determination" in regard to those submissions. That is directly in conflict with the judgment of the Full Court in Omar; the submissions were "clearly expressed relevant representations made in support of a revocation request", as recognised by the Tribunal at [65]-[69], such that the Tribunal was required "to engage in an active intellectual process" with them. It was required to "consider" those submissions by "having regard to what is said in the representations, to bring [its] mind to bear upon the facts stated in them and the argument or opinions put forward and to appreciate who is making them": Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 495 and Omar at [36(c)]. See also BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [48]-[49] and [63] and Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [53]-[54]. 46 That the Tribunal merely put the applicant's stated fear of harm to one side without deciding it is further demonstrated by its paragraph [93] (quoted at [27] above). That paragraph reveals that the Tribunal regarded the harm feared by the applicant as being synonymous with circumstances that might or would give rise to Australia's international non-refoulement obligations and for that reason had "discharged its obligations to consider [that] matter" by saying (in paragraph [72]) that it need not make a specific determination in regard to it. 47 Further, in the reasoning section of the Tribunal's decision, there is no assessment or quantification of the applicant's stated fears of harm. In paragraph [105], quoted at [28] above, the Tribunal merely says that the applicant's "fears of harm" as an "issue" weighs "in his favour" in making the decision. It had also been said at [93] that "this consideration weighs in [the applicant's] favour". However, there is no engagement with the relevant submissions or evidence in support of them; there is no weighing of the evidence, and there is no assessment of the likelihood or severity of the harm. In the absence of that, it is impossible to attach any particular weight, small or large, to that consideration in order to perform the balancing exercise required by Direction 65. 48 I do not regard the Tribunal's paragraph [76] (quoted at [26] above) to count against the above analysis. Having said only four paragraphs earlier that there was no need to make a specific determination with respect to the applicant's fear of harm if he is returned to Iraq, it is insignificant that the Tribunal said that it is "not in a position to make a definitive finding in the absence of more solid probative or evidentiary material to which it does not have access". The Tribunal was required to actually engage with the evidence that there was and make a finding. After all, the Tribunal was satisfied that the applicant "would be at some risk if returned to Iraq" and it stated that it "well understands" his fears. If there was sufficient evidence to reach those conclusions, it should have engaged with that evidence and sought to quantify the type of harm and the extent of the risk so that that harm could properly be brought into account in deciding whether there was "another reason why the original decision should be revoked". Saying that it was not in a position to make a finding was simply to neglect the task. 49 In the circumstances, in my view the Tribunal was in error. The error was with respect to a fundamental aspect of its task, and it was material in the sense that if it had properly engaged with the issue it might realistically have reached a different conclusion with regard to the revocation of the cancellation of the visa. It was therefore a jurisdictional error. The decision must accordingly be set aside and the matter must be remitted to the Tribunal for reconsideration. 50 Out of completeness, and in case I am wrong with regard to ground 1, I now go on to consider ground 3.

Amended ground of review 51 The third amended ground of review asserts that the Tribunal erred by failing to consider that the applicant may not be able to make an application for a protection visa due to the operation of ss 197C and 198 of the Act in assessing Australia's international non-refoulement obligations. The particulars given in support of this ground include the following: (a) Section 197C of the Migration Act specifically requires performance of the duty to remove an unlawful non-citizen from Australia under s 198 of the Act, regardless of whether they are owed non-refoulement obligations as soon as reasonably practicable. (b) The Tribunal failed to take into account that the applicant may not be able to make a later protection visa application. (c) The Tribunal failed to take into account that the applicant would be subject to substantial discrimination amounting to a gross violation of his human rights if returned to Iraq based upon the grant of his Global Humanitarian Visa in 2007 by the Department.

The submissions 52 It was submitted on behalf of the applicant that the Tribunal's error is revealed in paragraph [71] of its decision, quoted at [26] above, where it was stated that in the event that the applicant's visa cancellation is not revoked, he will be entitled to make a separate claim for a protection visa or a bridging visa. The same statement is made in paragraph [72]. 53 It was submitted on behalf of the applicant that the combined effect of ss 197C and 198 is that on the refusal of the request to revoke the cancellation of his visa the applicant will be subject to immediate removal to Iraq regardless of whether he can apply for a protection visa. 54 On behalf of the Minister, it was accepted that the Tribunal was under a duty to have regard to the immediate legal consequences of its decision. However, it was submitted that it was not a consequence of the Tribunal's decision that the applicant would be removed from Australia pursuant to ss 198(2B) or (5) of the Act. It was said that that is because it is open to the applicant to make an application for a protection visa by force of s 501E(2). 55 The Minister placed reliance on AFAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [70] where it was said that the significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant's visa do not necessarily include removal from Australia or indefinite detention. 56 It was submitted on behalf the Minister that the cases relied on by the applicant, namely NKWF v Minister for Immigration and Border Protection [2018] FCA 409, AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449 and DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 are distinguishable ("not apt") because unlike the applicants in those cases, the applicant in the present case is able to make a valid application for a protection visa. Reference was made to DOB18 v Minister for Home Affairs [2018] FCA 1523 at [42] in support of the proposition that the applicant has not reached the end-point of the decision-making process under the Act.

Consideration 57 The Minister is correct in submitting that the cases relied on by the applicant are distinguishable from the present case on the basis that in each of them the relevant applicant or appellant's claim for a protection visa had already been considered or was the subject of the case. In the present case, the applicant has not applied for a protection visa, and he can still do that. 58 As referred to by the Minister, s 501E(2) of the Act makes it plain that a person in the position of the applicant who has had a non-protection visa cancelled under s 501 is not prevented from making an application for a protection visa. Thus, it would not be the consequence of the Tribunal's decision not to revoke the cancellation of the applicant's visa that he would be subject to imminent removal from Australia pursuant to ss 197C and 198 of the Act such that his claim to protection by way of an application for a protection visa would not be considered. 59 In that regard, AZAFQ is apposite. In circumstances where it was open to the appellant to apply for a protection visa (because of the effect of s 501E(2)(a) of the Act as explained above) it was held that the legal and factual consequences of the cancellation of the appellant's visa did not necessarily include removal from Australia or indefinite detention. DOB18 at [42] is to similar effect. The appeal against that decision was dismissed: DOB18 v Minister for Home Affairs [2019] FCAFC 63. 60 In the circumstances, review ground 3 fails.

Conclusion 61 For the above reasons, the review succeeds; the decision of the Tribunal must be set aside and the matter remitted to it for reconsideration. There is no reason why the Minister should not pay the applicant's costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.