DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Ground 5 - failure to consider grounds 88 The appellant contends, in the failure to consider grounds that: (i) The primary judge erred in failing to finding that the Tribunal committed jurisdictional error by failing to consider claims made by the appellant's former wife in 2002 and 2008, that he may face persecution if returned to the Congo. (ii) The Tribunal erred by failing to give proper consideration to the appellant's claims of non-refoulement. 89 The failure to consider grounds fail for the reasons that follow. 90 In deciding whether there existed another reason to revoke the decision to cancel the appellant's visa, the Tribunal was under no obligation to have regard to the appellant's claims to be a person in respect of whom Australia owes non-refoulement obligations. Accordingly, any error by the Tribunal in its treatment of non-refoulement, such as conflating the criteria for granting a protection visa with the question of whether a person engages Australia's international non-refoulement obligations (which the Minister does not concede was made), was within its jurisdiction. 91 The High Court has reserved judgment in Plaintiff M1/2021, a case which may decide questions such as whether s 501CA(4) requires a decision-maker, in the exercise of jurisdiction, to have regard to non-refoulement (even where it has been raised) if the former visa holder is able to make a valid application for a protection visa and whether "misunderstandings of the Act" of the kind described in the following cases: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16); Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim); Ali v Minister for Home Affairs (2020) 278 FCR 627 (Ali); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153. The Minister submits that this Court should reserve judgment on this issue until after judgment has been delivered in Plaintiff M1/2021. We decline to do so because that issue does not arise on the facts of this case. The Tribunal did consider claims that could have given rise to non-refoulement obligations, and took that into account in making its decision even if it was not obliged to do so contrary to the impugned authority of the Full Court under challenge in the High Court, for the reasons that follow. 92 Neither ground 5(i) nor ground 5(ii) has merit. 93 As to ground 5(i), no error has been shown by the appellant in the primary judge's findings, at [81]-[82], that there was no failure by the Tribunal to consider the appellant's 2002 and 2008 protection visa applications. The Tribunal's reasons make plain that it had regard to the evidence put forward by the appellant in support of his claim to fear harm if returned to the Congo. The Tribunal expressly referred to the previous protection visa applications made by the appellant and his ex-wife, including in its dispositive findings at [276] of its reasons: … the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa. 94 In the circumstances, it can be inferred that the absence of any detailed reference to the claims that the appellant made in 2002 and 2008 is that they were not critical to the making of the Tribunal's findings on material questions of fact. 95 Those circumstances included that neither the interview conducted in 2002, nor the protection visa application the appellant made in 2008, had any bearing upon the appellant's fear of harm as at 2019. On each occasion the appellant's claims were in general terms. Further, the appellant did not state in his 2002 interview that he feared harm if returned to the Congo. Rather, the appellant stated that no immediate threats had been made to himself or his wife, and that he had not kept up-to-date with the circumstances of his wife's family. This is apparent from the transcript of the appellant's airport entry interview: Q: Is your brother in law under threat A: I would have to check that with my wife. Q: Why do you not know if he is under threat? A: I haven't kept up to date about my brother in laws situation Q: Have you or your wife received any immediate threats A: No 96 Further, the 2008 application had been made without the appellant's knowledge. Thus, it would be to read the Tribunal's reasons out of context to say that the claims that had been made in 2002 and 2008 were not considered by the Tribunal in deciding whether the appellant had a subjective fear of harm. The primary judge was correct in her Honour's findings at [81]-[82] of the Primary Judgement. In any event, even if they had been overlooked, the claims, which were then well-outdated (for example, the appellant had separated from his wife in 2005), were of insufficient importance such that they could affect the outcome of the review. 97 As to ground 5(ii), this ground misunderstands the Tribunal's findings on non-refoulement. It is clear from Tribunal's conclusion, at [289] of its reasons that the appellant's fear was not real, and did not meet the requisite threshold so as to engage Australia's international obligations: … there is only a very remote possibility that Australia will breach any non-refoulement obligations owed in respect of the [appellant]. 98 The Tribunal's findings at [265], [279], [286]-[287] and [289], seek to further illustrate this point: [T]he Tribunal considers that there is only a very remote possibility Australia will breach any non-refoulement obligations owed in respect of the [appellant]. It appears from the limited information before the Tribunal that the [appellant]'s refugee claims are particularly weak. … [T]he Tribunal does not consider that there is a real chance that the [appellant] will face serious harm or a real risk that [he] will suffer significant harm if he were to return to the Congo. … [T]here is no real chance that the [appellant] will suffer serious harm if returned to the Congo and there is no real risk that [he] will suffer significant harm if returned to the Congo. Thus, the Tribunal considers it likely that the [appellant] will not be found to meet the criteria for a [p]rotection visa in either section 36(2)(a) or section 36(2)(aa) of the Act as being a person in respect of whom Australia owes protection obligations, and that he will be refused a [p]rotection visa on that basis. If this is correct, the removal of the [appellant] from Australia will not result in any breach of Australia's international non-refoulement obligations. … [T]here is only a very remote possibility the non-revocation of the cancellation of the [appellant]'s visa may result in Australia breaching its international non-refoulement obligations. 99 It is clear that the Tribunal undertook a consideration of what a contravention of Australia's non-refoulement obligations would entail at [273]-[287] and [315], [318] of its reasons. The Tribunal did not equivocate on this. This was not a case where the Tribunal concluded that the appellant was a person in respect of whom non-refoulement obligations were owed, but found that the evidence before it was such that it could not properly assess the degree and nature of the harm that he might encounter in his home country. Rather, the appellant was found not to be a person in respect of whom Australia owes such obligations because the chance of his being harmed was "very remote" at [289] of the Tribunal's reasons. Nevertheless, to account for that very remote chance of contravention by Australia of its international obligations, the Tribunal determined to give non-refoulement "slight weight in favour of revocation": Tribunal's reasons at [290]. 100 The appellant's contention that the Tribunal failed to properly "evaluate the information available to [it] about the circumstances in [the appellant's] place of return", "to determine what, as a matter of fact, those circumstances meant for [the appellant] on his return" and then to incorporate those findings into the resulting weighing exercise is not correct: DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2012) 278 FCR 529. Moreover the appellant's reliance on Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Ali), that this failure was compounded, or caused, by a broader failure on the part of the Tribunal (equivalent to that in Ali) to recognise the distinction between the appellant's potential eligibility for a protection visa and whether he was owed non-refoulement obligations is misplaced for the reasons that follow. 101 Unlike in Ali this was not a case where the Tribunal hived off non-refoulement to a later decision-making process. 102 Unlike in Ali, the Tribunal did not fail to appreciate the differences between the role of non-refoulement in the exercise of the discretionary power in s 501CA(4) and its place in the protection visa regime: Tribunal reasons at [239]-[244] and [288]. 103 Unlike in Ali, the Tribunal did not conflate Australia's international non-refoulement obligations with the criteria for the granting of a protection visa. On the contrary, the Tribunal was careful to appreciate the differences between Australia's obligations under international law and the criteria for the grant of a protection visa: Tribunal reasons at [226]-[233], and [253]-[258]. The Tribunal understood that "it is quite possible that a person may not meet the criteria for the grant of a [p]rotection visa notwithstanding that Australia may owe non-refoulement obligations in respect of the person": Tribunal reasons at [253]. No such statements appear in Ali, FAK19 or DGI19. Read in the context of its discussion of Australia's international obligations, the references to ss 36(2)(a) and (aa) of the Act at Tribunal reasons [278]-[279] and [287] were merely shorthand for Australia's international obligations under, respectively, the Refugees Convention and other international human rights instruments (such as the International Covenant on Civil and Political Rights and the Convention Against Torture) as enacted in municipal law. Such reasoning was entirely orthodox, as Australia's unenacted obligations under international law "are not mandatory relevant considerations attracting judicial review for jurisdictional error"; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [101] per McHugh and Gummow JJ; cited by Nettle, Gordon and Edelman JJ in Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 94 ALJR 897 (Applicant S270/2019) at [35]. As Keane J observed in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, in a passage cited by the majority in Applicant S270/2019 (2020) 94 ALJR 897 at [35] per Nettle, Gordon and Edelman JJ: [i]n point of constitutional principle, an international treaty made by the Executive Government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the Parliament. 104 In particular, the Tribunal did not err at [287] of its reasons. All that the Tribunal there said was that the failure by the appellant to meet the criteria in ss 36(2)(a) and (aa) meant that Australia would not breach its international non-refoulement obligations in the event that he is removed from Australia. That was not to equate non-refoulement with the criteria for the grant of a protection visa. Rather it was to recognise that the international instruments referred to in the previous paragraph are a source of rights and obligations under domestic law to the extent that ss 36(2)(a) and (aa) incorporate Australia's obligations under those instruments. That the Tribunal did not conflate the two processes is reinforced not only by the absence of any reference in its dispositive findings to ss 5H-5LA or ss 36(1A)-(1C) and (2A)-(7) of the Act but also its acknowledgment, at [288] of its reasons, that a decision-maker on any application for a protection visa would not be bound by the findings made for the purpose of exercising the power in s 501CA(4). 105 It is difficult to see how the Tribunal was required to have regard, in the appellant's submission, to the impact (if any) of a contravention of Australia's international non-refoulement obligations on its "international reputation and standing", when, first, it concluded that the appellant was not owed such obligations at [286]-[287] of its reasons. Secondly, the executive dimension of non-refoulement never featured in the appellant's submissions to the Tribunal; and thirdly, the slight chance that such obligations might be owed was taken into account in any event. Particularly where the point was never taken by the appellant, the exercise of the power in s 501CA(4) did not require a decision-maker to have regard to the damage to Australia's international standing or reputation in the event that it contravened its international non-refoulement obligations. 106 For these reasons, the failure to consider grounds will fail.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)

Cited By (3)