CWGF v Minister for Home Affairs

Tribunal's decision 12 There is no dispute that, in reviewing the delegate's decision, the Tribunal was required by s 499(2A) of the Act to apply Ministerial Direction No 65 (Direction), issued on 22 December 2014. 13 From [19] of its decision record, the Tribunal set out relevant aspects of the Direction. From [25], the Tribunal addressed the "primary considerations" identified by the Direction, namely, protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia and the expectations of the Australian community. 14 The applicant does not challenge the Tribunal's conclusions in relation to these "primary considerations", which were: (1) There is a substantial risk that the applicant will engage in harmful behaviour if released into the community. Given the serious nature of his offending to date, and the trend in increasing seriousness, this is an unacceptable risk to the community and weighs heavily against any revocation of the cancellation decision ([65] of decision record). (2) The best interests of the applicant's minor children in Australia was a matter on which the Tribunal placed only slight weight in favour of the applicant ([80] of decision record). (3) Given the nature and seriousness of the offending, accompanied by the applicant's extensive drug and alcohol abuse, the Australian community would expect the visa to be cancelled ([89] of decision record). The Tribunal placed great weight on this consideration in favour of the Minister's contention that the cancellation decision should not be revoked. 15 At [90] of the decision record, the Tribunal identified other considerations which it was required to take into account by the Direction including, relevantly "[i]nternational non-refoulement obligations". From [92]-[103], the Tribunal addressed this issue. 16 At [92], the Tribunal stated that para 14.1 of the Direction "provides a list of factors to be considered in determining international non-refoulement obligations". More accurately, para 14.1 sets out matters relevant to considering international non-refoulement obligations for the purpose of deciding whether to revoke the mandatory cancellation of a visa. The Tribunal set out para 14.1 in full, including para 14.1(2) and para 14.1(6), which stated: 14.1(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. ... 14.1(6) … Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of section 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention. 17 Paragraphs [93]-[103] of the Tribunal's decision record are as follows: 93. It is conceded by the [Minister] that the Applicant is a person to whom Australia owes protection and that he is likely to suffer significant harm if returned to Iran. 94. The Applicant, in his 2013 application, has already been assessed as a person to whom Australia owes protection. However, this does not preclude the non-revocation of the mandatory visa cancellation. 95. It is therefore argued by the Applicant that where the Applicant is not returned to Iran, this would constitute refoulement [sic], as detention is likely to be indefinite given the Respondent has not made it clear how [the] Respondent plans to comply with the statutory obligations. The relevant statutory obligations are as follows: [The Tribunal set out s 197C and s 198(2A)] 96. Prior to the existence of s 197C of the Act, an unlawful non-citizen in respect of whom Australia owed non-refoulement obligations faced the prospect of indefinite detention. The Applicant argues that, following the introduction of s 197C of the Act, there is no power in the Act that permits indefinite detention, and therefore Direction 65 is inconsistent with the Act and should not be applied in so far as it says that the existence of non-refoulement obligations do not preclude non-revocation of the mandatory visa cancellation. The Applicant further submits that the prospect of indefinite detention should be properly considered as it is not good government and falls foul of international treaties. 97. The Respondent has, in short, submitted that the duty to remove a person from Australia only arises if it is reasonably practical [sic] to do so. The Tribunal agrees with this submission. The period of detention is fixed until it is reasonably practicable to remove a person and, even where removal appears unlikely to be achievable within a foreseeable period, it does not mean that the removal cannot be implemented at some time in the future. The Tribunal notes that in the Second Reading speech for the Bill introducing s 197C in 2014, the Minister stated 'The government…rather seeks to be able to effect removals in a timely manner once the assessment of the applicant's protection claims have been concluded'. 98. The Respondent further submits that the applicant may still be able to apply for a protection visa in the future pursuant to s 48B off the Act, may be the subject of a residence determination pursuant to s 197AA of the Act, or may be re-settled to a third country. Therefore, the Tribunal finds that the operation of ss 189 and 196 of the Act do not mean that if the mandatory visa cancellation is not revoked that the Applicant would necessarily face the prospect of indefinite detention. 99. In considering these other options, the Minister [sic - the Minister's delegate] has had regard to other management options in determining whether or not to affirm the mandatory visa cancellation. The Minister has also had regard to the consequence that the Applicant may be in immigration detention for an indefinite or indeterminate period of time. 100. The Tribunal has had regard to the existence of the non-refoulement obligation and has weighed this factor against the seriousness of the Applicant's criminal offending and other factors in making the decision. In particular, they include: (a) The nature and increasing seriousness of the Applicant's criminal offending, including abuse of drugs and alcohol when offending and generally; (b) The Applicant's disregard to Australian law generally, and orders of various courts including the contravention of the family violence intervention orders; (c) The Applicant's attitude towards police in the community, and his contention that the police fabricated evidence against him in his criminal charges; and (d) The Applicant's reported attitude towards authority whilst imprisoned and in immigration detention. Conclusion: Other Consideration 1 101. The Tribunal accepts that the Applicant and members of his family may be adversely affected if the Applicant is subjected to an indefinite or indeterminate period of detention. 102. While it is not in contention that the Applicant is a person to whom Australia has non-refoulement obligations, the Tribunal finds the risk to the Australian community outweighs the concerns he has expressed about returning to Iran. 103. Having regard to the whole of the evidence before the Tribunal, this is a consideration that should be given limited weight in the Applicant's favour, but not heavily so. The Tribunal finds this other consideration weighs slightly in favour of the revocation of the cancellation of the Applicant's visa, but is not [sic] outweighed by the primary considerations weighing heavily against revocation. 18 The Tribunal's reasons are not to be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30], but there are some obvious errors in the passage set out above. In particular: (1) Paragraph [95] appears to misstate the applicant's written contention that the Minister had acknowledged that the applicant could not be returned to Iran as this would constitute refoulement and that the applicant would very likely be subjected to indefinite detention if the cancellation decision was not revoked. (2) The parties agreed that, in the second sentence of [103], the Tribunal must have intended to state that "this other consideration weighs slightly in favour of the revocation of the cancellation of the Applicant's visa, but is … outweighed by the primary considerations weighing heavily against revocation".

Grounds of review 19 The applicant did not press ground 3, which complained of a failure on the part of the Tribunal to give adequate reasons.

Grounds 1 and 2 20 The applicant contended that the Tribunal made a jurisdictional error in failing to give proper, genuine and realistic consideration to the real possibilities that, as a consequence of the Tribunal's refusal to exercise its discretion in the applicant's favour, the applicant faced either: (1) indefinite detention (ground 1); or (2) refoulement to Iran (ground 2).

Applicant's submissions 21 The applicant argued that the Tribunal's reasons fail to acknowledge the tension between s 197C and s 198 and the Direction and in particular, the absence of a power of detention in the face of the duty of removal. The applicant complained that the Tribunal did not make findings "either that the applicant would be refouled in breach of Australia's international obligations, or that the applicant would be indefinitely detained". The applicant submitted that, on the evidence, these were the only possible outcomes likely to result from the cancellation of the applicant's visa. 22 The applicant contended that the closest the Tribunal came to considering the issue that the applicant was at real risk of being refouled to Iran and giving that matter proper, genuine and realistic consideration appears in the Tribunal's finding at [102], set out at [17] above. That finding was said to misstate the issue which was the non-refoulement obligations owed to the applicant rather than the applicant's concerns. 23 The applicant further argued that a proper consideration of the issue would be expected to contain some discussion of the risks of harm contended for by the applicant and an appreciation of the actual harms he might suffer, relying on Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Ezegbe) at [34], where Perram J stated: I find that the Minister did not consider Mr Ezegbe's case based on harm outside the protection visa context. By dealing with the matter through the false lens of Mr Ezegbe's fears, the Minister has avoided any actual consideration of the issues he was bound to consider which were about harm not fear. There was simply no active intellectual process brought to bear on the question: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [77]; Carrascalo v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at 364 [46]. 24 The applicant next argued that the Tribunal entirely failed to consider that the removal of the applicant would result in Australia breaching its international obligations. As Mortimer J observed in Omar v Minister for Home Affairs [2019] FCA 279 at [64]-[66], considering the risks of harm to an applicant if he was required to return to his country of origin is not the same as an assessment of whether Australia's international obligations to a person should be respected, or are outweighed by risk posed by that person to the Australian community, or that the likely compromise is indefinite detention. 25 The applicant argued that, if he was not to be removed to Iran, the only alternative that he faced was indefinite detention. There was no material before the Tribunal on which it could be satisfied that there was a third alternative (although the Tribunal noted other possibilities). The applicant complained that the Tribunal had made no finding as to the basis of any "indefinite or indeterminate period of detention" referred to at [101] of its decision record, or of the possible duration of the applicant's detention. 26 Finally, the applicant complained that the Tribunal found only that the applicant and his family members "may be adversely affected" by the applicant's indefinite or indeterminate detention, without identifying any actual effects. The Tribunal then did not offer any reasons for the conclusion that international non-refoulement obligations weighed only "slightly" in favour of revocation of the visa cancellation.

Minister's submissions 27 The Minister noted that the statutory task for the Tribunal, pursuant to s 499 of the Act and the Direction, was to consider a reason for revocation raised by the applicant, namely, international non-refoulement obligations. 28 The Minister accepted that the Tribunal was required to engage in an "active intellectual process" to give proper, genuine and realistic consideration to the matter of international non-refoulement obligations in this case: He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [51]. 29 The Minister submitted that the Tribunal met this requirement in its decision record, as evidenced by its recognition that the applicant was owed "protection" [93] and [94], was a person to whom Australia had non-refoulement obligations [102], and by referring to the Minister's concession that the applicant was likely to suffer significant harm if returned to Iran [93]. The Minister acknowledged that it was not entirely clear what the Tribunal understood to be the relevant obligations (that, is whether arising under the Convention relating to the Status of Refugees 1951 or whether they were "complementary protection" obligations) but said that any difference was immaterial. 30 The Minister disputed that Ezegbe supported a conclusion that the Tribunal was required to set out "some discussion of the risks of harm" that would follow from the applicant's return to Iran. In Ezegbe, the Court found (at [28] and [32]) that the Minister did not consider Mr Ezegbe's case that if he were deported to Nigeria he would be harmed, and had thereby failed to exercise the relevant power. This conclusion was based upon the absence of consideration in the Minister's reasons of whether the harms feared by Mr Ezegbe were likely to eventuate and the consideration of Mr Ezegbe's fears of tension and violence, threats and further imprisonment, instead of the actual harm. 31 In contrast, the Tribunal in this case clearly acknowledged the risk of harm upon which the applicant relied. 32 The Minister contended that the Tribunal proceeded on this basis, having regard to the likely risk of harm in a way that was favourable to the applicant. In particular: (1) The Tribunal addressed the risk of refoulement, by quoting para 14.1(6) of the Direction and by considering the effect of the obligation imposed by s 198 in the light of s 197C at [95]-[97] of the Tribunal's decision record. The Minister referred again to the Tribunals' acknowledgement of the Minister's concession that, if returned to Iran, the applicant is likely to suffer significant harm. (2) The Tribunal addressed the risk of indefinite detention by considering that possibility in light of alternative management options that may be available at [98]-[99] of the Tribunal's decision record.

Consideration 33 In considering whether to revoke the cancellation of the applicant's visa, the Tribunal had an obligation to take into account the legal consequences of its decision by reason of its knowledge that Australia had currently existing non-refoulement obligations in respect of the applicant: cf. FRH18 v Minister for Home Affairs [2018] FCA 1769 at [44]. 34 As the Full Court observed in Le [2016] FCAFC 120 at [60]: [T]he operation of s 197C of the Migration Act … makes plain that Australia's non-refoulement obligations are not a relevant consideration when an officer comes to discharge the statutory duty imposed by s 198 to remove an unlawful non-citizen as soon as reasonably practicable. Necessarily, therefore, to the extent that that issue is material it must be addressed at an earlier stage in the decision-making process. 35 As earlier noted, in the absence of any decision to consider "alternative management options" at the time of refusal to revoke the visa cancellation, a decision by the Tribunal adverse to the applicant would enliven the duty to remove the applicant under s 198. 36 The Tribunal's reasons at least partially reflect the written argument put on behalf of the applicant, which started with the proposition that the Minister acknowledged that the applicant could not be returned to Iran and then focussed on the likelihood of indefinite detention. 37 However, the Tribunal did not squarely identify the legal consequence of its decision that the applicant would be required to be removed "as soon as reasonably practicable". Instead, the Tribunal found that the applicant would only be removed "if it is reasonably practical to do so". The Tribunal's reasons do not address the implications of this finding in relation to Australia's non-refoulement obligations; they do not address the meaning of the phrase "as soon as reasonably practicable" or what practical considerations might affect whether or not it would become "reasonably practicable" to remove the applicant. In particular, the Tribunal's reasons do not address the applicant's submission, recorded at [95] of its decision record, that the Minister's plans for compliance with the duty to remove were unclear. 38 Although the Tribunal refers (at [97]) to the aim of effecting removals "in a timely manner", the decision record does not reveal how this aim affected its consideration of the legal consequence of its decision. 39 Although the Tribunal implicitly contemplates at [100] and [102] that the applicant might be returned to Iran in breach of Australia's non-refoulement obligations as a consequence of its decision, its decision record does not directly refer to that potential breach or consider its significance (generally or in relation to the applicant specifically), referring only to the "existence of the non-refoulement obligation" and to the fact that the applicant is a person "to whom Australia has non-refoulement obligations". 40 Further, the decision record does not record any consideration of the likely significant harms that were conceded to follow from the applicant's removal to Iran, as opposed to the fact of the Minister's concession. The Tribunal's finding at [102], balancing only the applicant's expressed concerns against the risk posed by the applicant to the Australian community, strongly suggests that the Tribunal did not give active consideration to the likely significant harms. That suggestion is reinforced by the absence of reference to those harms in considering the extent of impediments that the applicant may face if removed to Iran. 41 Having regard to these aspects of the Tribunal's decision record, I conclude that the Tribunal did not address the legal consequence of its decision, namely, the duty to remove the applicant as soon as practicable, for Australia's international non-refoulement obligations in a proper, genuine and realistic way. 42 As to the prospect of indefinite detention, having regard to the authorities referred to above, I do not accept that this was a consequence of the Tribunal's decision except in the limited sense referred to at [9] above. Rather, as the Tribunal recognised at [97] of its decision record, if the cancellation of the applicant's visa was not revoked, the applicant would be subject to a fixed period of detention until it was reasonably practicable to remove him (or unless "alternative management options" were exercised in the applicant's favour). Accordingly, I do not accept that the Tribunal failed to give proper, genuine and realistic consideration to the prospect of indefinite detention. 43 Accordingly, ground 2 of the application is made out. Ground 1 is not made out.

Ground 4 44 Ground 4 is that the Minister's finding that Australia's international non-refoulement obligations weighed "slightly" in favour of the revocation of the cancellation of the applicant's visa was legally unreasonable. The applicant provided the following particulars in support of this ground: (1) On the material before the Tribunal, the only real possibilities facing the applicant as a consequence of its refusal to exercise its discretion in favour of the applicant were indefinite detention, or his refoulement to Iran. (2) Indefinite detention constitutes a significant detriment. (3) The applicant was likely to suffer significant harm if returned to Iran.

Applicant's submissions 45 The applicant identified the following relevant principles from Minister for Immigration v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42]-[47]: (1) It is a presumption of law that Parliament intends an exercise of power to be reasonable. (2) A decision that is legally unreasonable has "the character of a choice that is arbitrary, capricious or without 'common sense'" and in these circumstances, the "exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". (3) A finding of legal unreasonableness is "invariably fact dependent" and requires "careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence". (4) Where there are reasons given for the exercise of a power, a supervising court should look at those reasons in order to understand why the power was exercised as it was. 46 The applicant argued: 38. The applicant faced a real possibility of being removed to Iran in breach of Australia's non-refoulement obligations. It was conceded that it was likely that he would face significant harm. The only finding as to an alternative outcome available to the Tribunal (though no legal basis for this existed) was that the applicant would face indefinite administrative detention. 39. Either of those outcomes represented a significantly adverse - and potentially the most serious possible outcomes - that could occur to the applicant. The former would also necessarily involve Australia breaching its international obligations. 40. Cumulatively, it was necessarily a weighty factor in the applicant's favour. At the very least, and as a matter of common sense, it was a factor that weighed more than "slightly" in the applicant's favour. 41. The finding that it only weighed "slightly" was materially relevant to the Tribunal's ultimate conclusion, and thereby affected its Decision. 42. In so finding, the Tribunal thereby engaged in a reasoning process that was legally unreasonable.

Minister's submissions 47 The Minister argued that the applicant's premise, that there were only two legal consequences of a decision not to revoke the visa cancellation, is not correct. The Minister referred to the Tribunal's identification of other possible alternatives which, the Minister contended, appropriately informed the Tribunal's evaluation of the non-refoulement obligation consideration. The Minister acknowledged that there was no duty for the Minister to consider the exercise of the powers in s 48B and s 197AA of the Act but referred to the Tribunal's finding that the Minister's delegate had regard to those options. The Minister referred to the following statement by the delegate: I am aware that the potential for the Minister to personally exercise his s 195A power in order to meet Australia's international non-refoulement obligations is pertinent to [the applicant's] case and this potential could be encompassed in a consideration by the Minister of alternative management options in relation to [the applicant]. 48 In AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 at [128], Thawley J construed a similar sentence (in a decision by the Minister) to suggest strongly that the Minister would be considering alternative management options. 49 The Minister submitted that the Tribunal's evaluation must be considered in the context of the decision as a whole. Relevantly, the non-refoulement obligation consideration formed one of the "other considerations" required by the Direction. The Minister noted that para 8(4) of the Direction expressly provided that the primary considerations should generally be given greater weight than the "other considerations". It follows, according to the Minister, that the scaling of weight given to the various considerations was not carried out in a vacuum but as part of the broader evaluation of the ultimate issue to be decided: whether the mandatory cancellation of the applicant's visa should be revoked. 50 Accordingly, the Minister submitted that the weight given to the non-refoulement obligations and related matters appropriately fell within the boundaries of decisional freedom within which the Tribunal had a genuinely free discretion, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (French CJ) and [66] (Hayne, Kiefel and Bell JJ).

Consideration 51 I do not accept that the applicant faced indefinite detention as a result of the Tribunal's decision except in the limited sense identified earlier in my reasons. 52 The Tribunal's reasons are sparse. They do not disclose the basis upon which the Tribunal found that indefinite or indeterminate detention "may" have an adverse effect on the applicant and his family members. In particular, the reasons do not reveal whether the Tribunal contemplated any actual or probable adverse effects of indefinite or indeterminate detention in this case. 53 Further, the Tribunal's reasons do not disclose the basis upon which it concluded that non-refoulement obligations weighed "slightly" in the applicant's favour and, consequently, it is difficult to discern whether that conclusion is affected by legal error. Ultimately, I accept that the assessment of weight fell within the scope of the Tribunal's decisional freedom and the applicant has not demonstrated that the assessment lacked legal reasonableness.

Conclusion 54 As I have concluded that the Tribunal's decision was infected by jurisdictional error, the Tribunal's decision will be set aside and the matter remitted for determination according to law. Costs should follow the event. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.