CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-09-24|Before: Griffiths J

Time is extended under s 477A(2) of the Migration Act 1958 (Cth) for the applicant to rely on the amended originating application.
The respondent's decisions dated 13 August 2018 and 16 October 2019 be set aside.
The Minister is to take appropriate steps to ensure that the applicant is released immediately and forthwith from immigration detention and, without limitation thereto, such release must occur by no later than 5:00 pm today.
The respondent pay the applicant's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 By an amended originating application dated 21 August 2020, the applicant seeks time to be extended under s 477A(2) of the Migration Act 1958 (Cth) (the Act) to challenge two decisions by the respondent Minister. The first decision is dated 13 August 2018 by which the Minister cancelled the applicant's Class XB subclass 200 Refugee visa pursuant to s 501(3) of the Act. The second decision is dated 15 October 2019 by which the Minister decided under s 501C(4) not to revoke the previous cancellation decision. 2 In brief, the applicant is a citizen of South Sudan. He arrived in Australia on 27 November 2008 when he was aged 12. On 29 August 2016 he was sentenced in the Magistrates Court of Victoria to six months detention for offences of robbery. On 8 December 2017 he was sentenced in the same Court to 281 days imprisonment for offences of theft and sexual assault. The Minister's decision to cancel the visa under s 501(3) was based on the Minister's satisfaction that, the applicant not passing the character test, it was in the national interest to cancel his visa. This decision was made without the applicant being afforded natural justice, there being no such requirement in respect of the exercise of the power under s 501(3). In determining that there was a risk of further harm to the Australian community if the applicant committed further offences, the Minister considered the possibility that non-refoulement obligations were owed to the applicant. The Minister reasoned at [110] of his statement of reasons, however, that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant for the purpose of cancelling his decision: … as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application. 3 In both his written and oral submissions, the Minister drew the Court's attention to the fact that there is an appeal on foot in FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 in which the Minister challenges the correctness of Ali v Minister for Home Affairs [2020] FCAFC 109. Although no formal application for an adjournment was made, the Minister suggested that the Court might consider it preferable to defer the hearing and determination of this case until the outcome of that appeal was known. That suggestion was rejected, not the least because the applicant is in detention and the present state of the law is clear, as is reflected in the decisions referred to below, some of which are binding on me. Moreover, it is relevant to take into account that no hearing date has been set in respect of the appeal from FAK19. The applicant has been in immigration detention since 13 August 2018. It is highly desirable that his legal position be clarified as soon as practicable. 4 Similar considerations have caused me to deliver ex tempore reasons for judgment in this matter. Necessarily, therefore, those reasons may not be as comprehensive or elegant as ideally should be the case. The interests of justice require a prompt decision which establishes that the two relevant Ministerial decisions are invalid and that there is no basis for continuing the applicant's immigration detention.

Extension of time 5 In support of the application for time to be extended, the applicant provided two affidavits, the first dated 23 December 2019 and the second dated 21 August 2020. In the first of those affidavits, the applicant deposed that he had attempted to challenge the non-revocation decision in November 2019 but sent his documents to the wrong Court. The applicant deposed in his second affidavit that he did not have the assistance of a migration agent or a lawyer at any stage. He said that he did not know who to call or how to get in touch with anyone who could help him. He said that he commenced the proceeding as quickly as he could notwithstanding that he was in immigration detention. He further deposed that it was not until he was advised by the Court (presumably during the course of the original hearing conducted on 10 July 2020) and by his lawyers that he was aware that he could have challenged the original cancellation decision. 6 It is plain that the relevant delay from 13 August 2018, when the first decision was made, is lengthy. The delay in challenging the second decision is not as long, but it cannot be described as insignificant (noting, however, that the applicant did attempt to challenge that decision within the prescribed time but went to the wrong Court). The relevant issue under s 477A(2) of the Act is whether the Court is satisfied "that it is necessary in the interests of the administration of justice to make the order". 7 For the following reasons, and notwithstanding the Minister's opposition, I am satisfied that time should be extended. That opposition was based on two essential grounds. First, a claim that the applicant had not satisfactorily explained the delay and that it was not uncommon for persons in his position to not have legal representation and to be in immigration detention. The second ground is a claimed lack of merit in the grounds proposed to be raised by the applicant in the amended originating application should time be extended. 8 For the following reasons, I reject both these contentions by the Minister: (a) As a self-represented litigant in detention throughout the relevant period the applicant was plainly disadvantaged, not the least because of the complexity of the law relating not only to the cancellation decision but also in relation to the refusal to revoke that decision. It is evident from the materials before the Court that the applicant is not well educated and his literacy skills are poor. (b) The interests at stake also need to be taken into account, not the least being the fact that the applicant's life may potentially be at risk, as well as the important matter of the Commonwealth complying with its international obligations. (c) For reasons which will subsequently emerge, the proposed judicial review grounds are strong, particularly when regard is had to recent relevant caselaw, including Ali and Moshinsky J's decision in DGP20 v Minister for Home Affairs [2020] FCA 1055. (d) There is no prejudice to the Minister. (e) It may be inferred from the long and unexplained delay of approximately 12 months between the making of the cancellation decision and the refusal to revoke that decision that the Minister did not consider that there was any urgency in making a final determination of the applicant's immigration status. 9 For these reasons, time was extended under s 477A(2) to enable the applicant to pursue the grounds set out in the amended originating application. 10 I turn now to address the substance of the matter.

Consideration and determination of the amended originating application 11 The amended originating application raises the following grounds: Cancellation Decision 1. In purporting to make the Cancellation Decision, and in purporting to exercise the discretion conferred on him by section 501(3) of the Act, the Minister misunderstood the Act or its operation, or reasoned irrationally. a. The Minister stated that "[r]ecognising that the power to cancel a visa under s501(3) is discretionary, I considered whether there were relevant considerations that might support a decision not to cancel [the applicant's] visa despite my satisfaction that it is in the national interest to do so" ([99]). b. One of the potentially "relevant considerations" that the Minister identified was "[i]nternational non-refoulement obligations" (heading to [106]). c. The Minister found that the applicant's circumstances, including his Christian religion and Dinka ethnicity, may give rise to "international non-refoulement obligations" ([107]). d. However, the Minister considered it "unnecessary" to determine whether non-refoulement obligations are owed in relation to the applicant "as [the applicant] is able to make a valid application for a Protection visa", in which case, in the "highly likely" circumstance that such an application is considered by a delegate, "non- refoulement obligations would be considered in the course of processing the application" ([110]). e. The Minister's reasoning was affected by multiple misunderstandings of the Act or its operation: i. First, the Minister understood that, in the event that the applicant applied for a protection visa, the existence of international "non-refoulement obligations" would be considered, when that is not the case. ii. Secondly, the Minister understood that, in the event that the applicant applied for a protection visa, the existence of international "non-refoulement obligations" (or alternatively the criteria for a protection visa set out in section 36(2) of the Act) would necessarily be considered, when that is not the case. iii. Thirdly, the Minister understood that, in the event that the applicant applied for a protection visa, any determination that international "non-refoulement obligations" exist would have equivalent significance as it would have if the Minister made that determination for the purpose of deciding whether to cancel the applicant's Refugee Visa under section 501(3), when that is not the case. f. Alternatively, if the Minister did not misunderstand the Act or its operation in any one or more the ways described above, then his reasons for deciding not to determine whether international "non-refoulement obligations" are owed in relation to the applicant were irrational. g. The Minister's misunderstandings, or irrationality, were material. That is because if, counterfactually, the Minister had not so misunderstood the Act or its operation or reasoned irrationally then there is a realistic possibility that: (a) the Minister would have decided to determine whether international non-refoulement obligations were owed in relation to the applicant; and (b) the Minister would have decided that such obligations were owed; and (c) the Minister would have taken that into account in the exercise of his discretion under section 501(3) and thereby decided not to cancel the applicant's Refugee Visa. h. For completeness, the applicant intends to rely on: i. the reasoning of the Full Court in Ali v Minister for Home Affairs [2020] FCAFC 109 (a judgment relating to a purported decision by the Minister under section 501CA of the Act); and ii. also, the reasoning of Moshinsky J in DGP20 v Minister for Home Affairs [2020] FCA 1055 (a judgment relating to a purported decision by the Minister under section 501(2) of the Act). i. Notably, with respect to DGP20: i. the Court held that the Minister misunderstood the Act or its operation as bearing on the exercise of a discretionary power under section 501(2) (as distinct from bearing on the consideration of "representations" as to a possible "reason" for revoking a cancellation decision under section 501CA); and ii. in particular, the Court recorded the Minister's submission that he "does not contend that if he misunderstands the Act or its operation in a way that materially bears on the exercise of the Minister's discretion under s 501(2), that would not amount to jurisdictional error" ([35]). Non-revocation decision 2. Because the Cancellation Decision is invalid, the Minister had no power to make a decision under section 501C, and therefore had no power to make the Non-revocation Decision. 12 At the heart of the applicant's challenge to the visa cancellation decision is the claim that the Minister misunderstood the Act or its operation in three respects (or, alternatively, adopted irrational reasoning in cancelling the visa). The applicant further contends that these errors were material and involved jurisdictional error because there is a realistic possibility that the Minister would not have exercised his power of cancellation under s 501(3) if he had properly understood the Act and its operation or avoided reasoning irrationally. 13 For the reasons that follow, I reject the Minister's submission that Ali is distinguishable. I consider that the Full Court's reasoning applies here notwithstanding that the cancellation decision here was made under s 501(3) and not s 501CA (as was the case in Ali). It is notable that the Minister did not seek special leave to appeal in respect of Ali (although he apparently intends to challenge the correctness of that decision in a separate appeal). 14 I also find that the applicant's case is supported by the reasoning of Moshinsky J in DGP20, notwithstanding that that judgment relates to a decision under s 501(2). It is notable that the Minister did not appeal this decision. 15 In my respectful view, the reasoning in both those decisions applies to the Minister's decision under s 501(3).

Ali 16 In Ali, the relevant part of the Assistant Minister's reasons is set out at [6]. It is essentially the same as the Minister's reasons in the present case. 17 The Assistant Minister considered it "unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision, as he is able to make a valid 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 the application". 18 Also, the Assistant Minister stated that, in light of Direction 75, he was "confident that [the applicant] would have the opportunity to have his protection claims fully assessed in the course of an application for a Protection visa". 19 The Full Court held inter alia that the reasoning involved misunderstandings of the Act, or irrationality. In particular: (a) Australia's "non-refoulement obligations" differ from the criteria for a protection visa: the criteria for engagement of Australia's international non-refoulement obligations "are wider and more comprehensive" ([24(d)]). The Minister did not dispute that the s 36 criteria for a protection visa do not "accord[] a coverage of protection which [is] coterminous with that which Australia had covenanted to provide under the international treaties into which it had entered" ([28]). (b) The Assistant Minister "proceeded upon an erroneous assumption of the law as to the manner in which the issue of Australia's non-refoulement obligations would be considered in the different statutory processes" ([111]). The Minister's decision under s 501CA(4) involves an assessment which is "more diffuse and less categorical" than applying the criteria for a protection visa ([110]). "[I]t was an error to assume that it would be treated in the same manner in the two different processes" ([108]). (c) Further, the Assistant Minister erred in supposing that "whether Australia was in breach of its non-refoulement obligations" (or perhaps more precisely, whether Australia owed non-refoulement obligations in respect to the appellant) "would be considered or fully considered on an application for protection visa" ([113]). "[I]t is an error for a Minister … to assume that a consideration of a protection visa application … will effectively involve a consideration of all of Australia's non- refoulement obligations at international law" ([114], see also [115] as to the fact that Direction 75 "cannot remedy this error"). 20 The Full Court's reasons summarised above support the first and third misunderstandings identified in the amended originating application here. 21 I also accept the applicant's contention that the Minister erred because he adopted the second misunderstanding as identified in the amended originating application. (a) In Ali, the Full Court accepted that Direction 75 "only requires the delegate to consider the ineligibility criteria under s 36(1C) and 36(2C) after the protection grounds" and "[i]t will not prevent an applicant's visa application being rejected on health grounds (cl 866.223 - 866.224B of Sch 2 of the Regulations), the public interest criteria (cl 866.225 of Sch 2 of the Regulations) or the national interest criteria (cl 866.226 of Sch 2 of the Regulations) before the protection criteria are considered" ([58(b)]). Thus, Direction 75 does not require decision-makers to consider the "protection" criterion in sections 36(2)(a) and (aa) before all other criteria for a protection visa (only the "ineligibility" criteria and section 501). (b) It follows that, if the applicant applied for a protection visa, then his application might be refused on the basis that he fails to satisfy a "non-protection" criterion, and the decision-maker might never even consider s 36(2) of the Act. Indeed, given that the Minister personally has already assessed that it is not in the "national interest" that the applicant have a visa, it seems likely (if not inevitable) that a delegate or the Tribunal would not be satisfied that the applicant satisfied the "national interest" criterion. And, of course, if the delegate or the Tribunal considered this first, no occasion would arise for it it to consider the "protection" criteria in s 36(2). 22 I reject the Minister's contention that Ali is distinguishable because there were no "representations" by the applicant here that the Minister was required to consider or to form a state of satisfaction about under s 501(3). It is difficult to understand the logic of this contention in circumstances where no claim was made by the applicant prior to the making of the visa cancellation decision simply because the applicant was unaware that consideration was being given to the exercise of the s 501(3) power. Consistently with the terms of s 501(3), he was not provided with an opportunity to make any representations before the decision was made. That is not to say, however, that it was not open to the Minister in the exercise of his discretion to invite any representations which the applicant might wish to make on the issue of non-refoulement, as found by the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12. 23 It is evident from the Minister's statement of reasons that, even in the absence of any claim by the applicant, he did turn his mind to the issue of non-refoulement obligations and found in [107] of his statement of reasons that the applicant's circumstances, "including his Christian religion and Dinka ethnicity, may give rise to international non-refoulement obligations". Critically, however, the Minister then concluded at [110] that, in these circumstances (and the other matters identified in [108] and [109]), he considered it "unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa". This reasoning involves a fundamental misunderstanding of the Act and its operation, as held in Ali. 24 As foreshadowed above, I also consider that the applicant's judicial review grounds are supported by Moshinsky J's decision in DGP20. The case cannot be distinguished merely because it concerned a cancellation decision under s 501(2), rather than s 501(3). Justice Moshinsky held that the Minister proceeded on the basis of the same misunderstandings as to the Act and its operation in relation to non-refoulement obligations as was the case in Ali and Ibrahim (i.e., conflating Australia's international non-refoulement obligations with the protection visa criteria). Moshinsky J held that such misunderstandings infected the exercise of discretion under section 501(2). 25 At [35], Moshinsky J said: … I do not consider there to be any relevant distinction between s 501CA(4) and s 501(2) for the purposes of this ground. It was necessary for the Assistant Minister to have a correct understanding of the Migration Act when exercising the power in s 501(2) to cancel the applicant's visa. This principle applies, not only to the formation of a state of satisfaction, but also to the exercise of a statutory discretion: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [196] per Gummow and Hayne JJ (with whom Gleeson CJ agreed); Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [57], [68] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. See also Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11], [16] per Jagot J. There does not appear to be any dispute between the parties on this point. In his additional submission dated 23 March 2020, the Minister stated that he "does not contend that if he misunderstands the Act or its operation in a way that materially bears on the exercise of the Minister's discretion under s 501(2), that would not amount to jurisdictional error". 26 Underlying this reasoning is that the Parliament is to be understood as impliedly requiring that the Minister act on a correct understanding of the law (or act "according to law"). This implied statutory requirement that the Minister not misunderstand the Act or its operation stands independently of the existence of "representations" or submissions before him. 27 In Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1, to which Moshinsky J referred, the High Court relevantly stated at [57]: The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law … And the statutory discretion enlivened on the fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself". 28 Moreover, in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391, the High Court held that the Minister made a jurisdictional error by misunderstanding the operation of the Act in a way that bore on the exercise of the discretion to cancel the visa under section 501(3). As Gummow and Hayne JJ put it (at [196]): "she exercised her discretion under s 501(3) to cancel the prosecutor's transitional (permanent) visa on an erroneous footing". 29 As the applicant pointed out, there are others cases which support the proposition that misunderstanding the Act or its operation in purporting to exercise a discretion will vitiate the decision (subject to materiality). In particular, in Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [99], the Full Court held that a misunderstanding of the kind referred to in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 would vitiate the exercise of power under section 501(2). It is erroneous to approach the issue of harm on the basis that any applicant can apply for a protection visa and any harm will necessarily be considered as part of the consideration of the application for a protection visa. Therefore, the logic of that aspect of the reasoning in BCR16 applies to a decision under s 501. 30 I consider that the Minister's reliance on cases such as Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 and Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 to be misguided. Both those cases addressed the question whether non-refoulement obligations were a mandatory consideration in exercising the powers under s 501(2) and 501CA(4) of the Act respectively. As the applicant in the present case made repeatedly clear, he did not rely upon that particular head of judicial review. Neither of those decisions addresses the type of error relied upon by the applicant based upon decisions such as Ali, Ibrahim and DGP20. 31 It is necessary to now consider whether the Minister's misunderstandings were material so as to give rise to jurisdictional error. The parties were agreed that this raises the question whether there is a realistic possibility that the Minister may have come to a different conclusion regarding the exercise of the s 501(3) power if the misunderstandings had not occurred (see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [46]-[48]). For the following reasons, I consider that the misunderstandings were material and gave rise to jurisdictional error. 32 In Ali, the Full Court held that the Assistant Minister's errors were material. Had the Assistant Minister considered whether non-refoulement obligations were owed, it is possible that he would have found that they were, and it was then possible that the Assistant Minister would decide to give that decisive weight ([104] in relation to ground 1; the same point applied to grounds 2 ([111]) and 3 [118]). Further, approving the reasoning in Hernandez v Minister for Home Affairs [2020] FCA 415, the Full Court held at [117]: Whilst it may be that in any subsequent application for a protection visa, the issue of whether any non-refoulement obligations are owed will be partially ascertained by a consideration of whether the applicant satisfies the criteria in s 36(2), there will be no consideration of the impact of non-fulfilment of these obligations in relation to Australia's reputation or otherwise. 33 For substantially the same reasons as in Ali, the Minister's misunderstandings of the Act in this case are material. But for the Minister's misunderstandings, there is a "realistic possibility" that he could have made a different decision. This is because, if the Minister had not wrongly assumed that non-refoulement obligations would be considered on an application for a protection visa, he might have chosen to consider them (including by seeking a proper assessment of them in the form of, for example, an updated ITOA specific to the applicant, which might have involved further information being obtained from the applicant) before making a cancellation decision. If such an assessment had been conducted, the possibility cannot be discounted that: (a) such obligations would be found to be owed; and (b) such a finding might have persuaded the Minister to make a different decision (including inter alia because of the reputational significance of Australia adhering to its non-refoulement obligations). 34 As noted above, the Minister did not have the benefit of representations or submissions from the applicant, including on the issue of non-refoulement obligations in respect of him personally. That is not to say, however, that there was no material before the Minister on this matter. The Minister made express reference at [107] of his statement of reasons to his consideration of a DFAT Country Information Report in relation to South Sudan. He noted that the political situation in South Sudan was unstable and that DFAT "assesses the humanitarian situation in South Sudan as dire". After noting DFAT's advice that there was ongoing political and ethnic conflict in South Sudan, the Minister then concluded [107] by stating that he had taken into account the applicant's circumstances, which included his Christian religion and Dinka ethnicity, and noted that these "may give rise to international non-refoulement obligations". 35 I reject the Minister's submission that the Minister's misunderstandings were not material because the Minister did in fact consider Australia's international non-refoulement obligations and accepted that they may arise in this case. The Minister contended that the DFAT Report was not specific to the applicant personally and that the information contained therein was expressed at a level of generality. He also emphasised that the Report, while identifying Dinkas as being most at risk, stated this to be the case in "conflict-affected areas". 36 The difficulty with this contention is that, as noted above and following Ibrahim, although the Minister was not required to request any information from the applicant, it was open to him to do so as a matter of discretion. If such information had been sought and provided (and/or an updated ITOA obtained), the Minister would have been able to assess the extent to which the DFAT report applied to the applicant personally. No such information was sought, presumably because the Minister simply took the view, as stated in [110] of his statement of reasons, that it was unnecessary for him at that time to determine whether non-refoulement obligations were owed in respect of the applicant because of his ability to apply for a Protection visa. This reasoning reveals the type of misunderstanding which was identified in Ali and other cases. 37 The Minister's own reasons illustrate why it is a "realistic possibility" that, if he had not misunderstood the Act or its operation or reasoned irrationally, he might have made a different decision. That is because the Minister's own reasons identify "international non-refoulement obligations" as a potentially "relevant consideration". It is entirely unsurprising, of course, that the Minister would think that Australia's international obligations matter (including if not only for reasons of Australia's international reputation). If the Minister had realised that, contrary to his reasons, international non-refoulement obligations would not (or at least may not) be assessed on any future protection visa application, it is realistic to suppose that he might have decided to assess them fully before cancelling the applicant's visa. 38 Having regard to my findings above, it is unnecessary to determine the alternative ground relied upon by the applicant, namely irrational reasoning on the part of the Minister.

Conclusion 39 Having regard to my findings that the visa cancellation decision was vitiated by jurisdictional error, that decision should be quashed. It necessarily follows that the non-revocation decision must also be quashed because that decision was predicated on the visa cancellation decision being a valid decision. 40 The quashing of the visa cancellation decision means that the applicant's refugee visa is automatically restored. Accordingly, he is no longer an unlawful non-citizen and cannot lawfully be kept in immigration detention. He must be released immediately from immigration detention. Appropriate orders will be made to give effect to these findings. To avoid any doubt or uncertainty, the order requiring the applicant's release from detention will stipulate that this must occur before 5:00 pm today. 41 There is no reason why costs should not follow the event. 42 Finally, the Court expresses its gratitude to counsel for both the parties. Their helpful written and oral submissions have enabled the Court to deliver an ex tempore judgment which is appropriate having regard to the fact that the applicant is in detention. The Court is particularly grateful to Mr Wood and his instructing solicitor who accepted a retainer to act for the applicant on a pro bono basis. This greatly assists the due and efficient administration of justice. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.

Migration Act 1958(Cth)ss 477A(2), 501(2), 501(3)

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