DFTD v Minister for Home Affairs

DFTD v Minister for Home Affairs - [2020] FCAFC 207 - FCAFC 2020 case summary — Zoe

BACKGROUND 3 The background facts were set out by the primary judge: [1] The applicant is an Indonesian national. He hails from what is now Indonesia's West Papua province. Prior to 2006, he was involved with the Organisasi Papua Merdeka (or "OPM"), more commonly known (at least throughout the western world) as the Free Papua Movement. Over the years, that movement has attracted the ire of the Indonesian military; so much so that its adherents have been subjected to at least a degree of violent repression. In January 2006, the applicant travelled by boat to Australia in order to escape that threat of violence. In March 2006, he was granted a temporary protection visa under the Migration Act 1958 (Cth) … That visa expired in 2009 and, in November 2011, the applicant was granted a Class SD (Subclass 851) "Resolution of Status" visa ["Visa"]. It was - and remains - uncontentious that the applicant is a person in respect of whom Australia owes obligations of non-refoulement. [2] By a notice issued on 14 October 2016 pursuant to s 501(3A) of the Act, a delegate of the [Minister] decided to cancel the applicant's Visa. The catalyst for that decision ["Cancellation Decision"] was the applicant's criminal history. On 7 April 2014, the applicant was convicted of rape, aggravated burglary, indecent assault and theft. He was sentenced to five years' imprisonment. Those convictions followed convictions in December 2009 for (amongst other things) sexual assault, unlawful stalking and burglary, for which he was sentenced to a total of three-and-a-half years' imprisonment. [3] In response to an invitation extended to him under s 501CA(3) of the Act, the applicant petitioned for the revocation of the Cancellation Decision. He accepted that he did not pass the "character test" for which s 501(6) of the Act provides; but maintained, nonetheless, that there were other reasons why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act. [4] On 13 December 2018, a delegate of the [Minister] decided that the Cancellation Decision should not be revoked. The applicant applied to the [Tribunal] for a review of that decision. That application also failed: on 7 March 2019, the Tribunal affirmed the delegate's decision not to revoke the cancellation of his Visa. … 4 Given the confined scope of this appeal, it is only necessary to refer to limited aspects of the Tribunal's decision. The Tribunal addressed and considered the 'primary considerations' and 'other considerations' provided for in Direction No 79 in a way which is not challenged except in respect of paragraph 14.1(2). The Tribunal correctly recognised that it must "comply" with Direction No 79 by reason of s 499(2A) of the Act: T[19]. 5 In the context of submissions on the primary consideration of "expectations of the Australian community", the appellant submitted to the Tribunal that "the potential consequences of the cancellation of his visa, namely the removal to Indonesia where his life was at risk or indefinite detention, are so significant and disproportionately punitive" that the Australian community would expect the visa cancellation to be revoked. 6 The Tribunal stated at T[84] to [86]: [84] The Tribunal finds that fair-minded Australians would afford any individual a second chance, however DFTD has already been given a second chance when he was granted his RoS Visa after his first term of imprisonment. The Tribunal finds that fair-minded Australians, apprised of all the facts, may not give a third chance to an individual who has repeatedly breached that trust, failed to learn their lessons and committed similar hideous offences. The Tribunal finds that the Australian community's tolerance would be stretched in these circumstances. [85] The Australian community would be concerned about the risk of sending an individual back to a country where his life is at risk or to indefinite detention, realising the abhorrent psychological consequences of this outcome. However, the community apprised of DFTD's repeat sexual offending would have a very low tolerance of offering him a third chance. [86] Accordingly, the Tribunal finds that the expectations of the Australian community weigh heavily in favour of affirming the decision [not] to revoke [the] cancellation [of] DFTD's visa under s 501CA(4) of the Act. 7 The Tribunal commenced its discussion of "international non-refoulement obligations" in the following way: Other considerations International non-refoulement obligations [87] Paragraph 14.1 of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm (para 14.1(1)). Paragraph 14.1 further provides: (1) A non-refoulement obligation is an obligation not to forcibly return, deport o[r] expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act[.] (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. (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled). (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked. (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer). (6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. 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 sections 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. 8 The Tribunal recorded the appellant's submission that the Tribunal was obliged to consider non-refoulement obligations regardless of whether the appellant had the ability to apply for a protection visa: T[88]. 9 The Tribunal also recorded the Minister's submission that there was no obligation for the Tribunal to make a determination of whether non-refoulement obligations were owed, referring to paragraph 14.1(4): T[94]. 10 The Tribunal found it had a duty to consider non-refoulement regardless of the appellant's ability to apply for a protection visa, stating at T[96] to [98]: [96] The Tribunal is troubled by this factor as it finds that DFTD does have a genuine fear of reprisal should he be forced to return to Indonesia and that this fear is well placed. The Tribunal bases this on information provided about the current unstable situation in DFTD's homeland for those advocating for independence, the well published nature of his arrival in Australia and his previous experience in his homeland which had been recognised by the Australia government when DFTD had been granted a TPV which was later converted to a RoS Visa. [97] The Tribunal accepts that DFTD has been found to be owed international non-refoulement obligations and as such the Tribunal finds it has a duty to consider non-refoulement regardless of his ability to apply for a protection visa. However the Tribunal reasserts its view that it is in DFTD's best interests to lodge an application for a protection visa. [98] The Tribunal finds this factor should weigh in favour of the discretion being exercised to revoke the delegate's decision to cancel DFTD's visa under s 501CA(4) of the Act. 11 The Tribunal's conclusions, having considered all matters it considered relevant including those referred to in Direction No 79, were: [124] There are considerations that weigh in favour of revoking the mandatory cancellation of DFTD's visa. The foremost of these is the consideration of a non-refoulement obligation - an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm, which the Tribunal accepts DFTD will be exposed to. The Tribunal also notes the significant impediments DFTD will face upon return to Indonesia, namely his genuine fear for his safety and lack of housing, social and financial support, also weigh heavily in favour of revoking the mandatory cancellation of his visa. [125] Although there are considerations weighing in DFTD's favour, the Tribunal finds that these considerations do not outweigh the two primary considerations, being the protection of the Australian community and the expectations of the Australian community, both of which weigh in favour of not revoking the mandatory cancellation of DFTD's visa. DFTD's offending was of a sexual nature, against women and very serious. There remains an unacceptable risk of DFTD reoffending. If he were to offend further if he remained in the Australian community, the consequences for a victim would be serious and unacceptable to the Australian public. Furthermore, it is the expectation of the Australian community that someone who has repeatedly breached the trust of the Australian community, especially after they have been warned, should not be granted the privilege to remain in Australia. [126] Overall, the Tribunal finds that having regard to all of the primary and other relevant considerations required by the decision-maker to take into consideration under the Direction, the correct and preferable decision is to not revoke the mandatory cancellation of DFTD's visa.

[4]

THE APPEAL 12 The sole ground of appeal is that the primary judge should have accepted ground 2 of the application for judicial review, as ultimately formulated in the Further Amended Originating Application. Grounds 1 and 2, being all of the grounds of judicial review, were: 1. The [Tribunal] failed to consider the legal consequences of its decision, specifically the legal consequences arising under ss 197C and 198 of the Migration Act 1958 (Cth), having regard to the finding that the applicant is a person in respect of whom Australia owes obligations to other nations not to return the applicant to Indonesia. 2. The Tribunal failed to consider relevant government policy, being that the Commonwealth will not remove a person to a country if that removal would be contrary to Australia's non-refoul[e]ment obligations. 13 The primary judge rejected both grounds. Although the appellant only appeals in respect of ground 2, his Honour's reasons in relation to ground 1 assumed some relevance in the parties' submissions. His Honour stated: [50] In this case, prolonged immigration detention - leaving aside the uncertainty inherent in that phrase - is not a prospect that arises as a statutory or legal consequence of the Tribunal's Decision. Even if it were, it is not, on the strength of Le, a consequence to which the subject matter, scope and/or purpose of the Act required, by implication, that the Tribunal give consideration before making its decision under s 501CA(4) of the Act. The prospect of prolonged detention, if it exists at all, exists contingently upon circumstances unrelated to the Tribunal's Decision. [51] Chief amongst those circumstances is that the applicant may apply - or, at the time of the decision, could apply - for a protection visa. In the context of such an application (assuming one were made), regard would be had to the circumstances that the applicant nominates as the source of the non-refoulement obligations by which he is covered: see Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J) (and, in particular, his Honour's consideration - at [18]-[19] - of Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J)). That being so, there is no warrant for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned, in this case, upon consideration of those obligations. Given that it is those obligations (and their interplay with government policy) that was said to create the prospect of prolonged immigration detention in this case, I cannot see (and was not alerted to) any reason for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned upon consideration of that prospect (whatever it might be). This is not the first time that this court has reasoned in that manner: see BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 176 [85] (Bromberg J). … [54] The prospect of the applicant's being subjected to prolonged immigration detention was not a consideration of which the subject matter, scope or purpose of the Act (or the relevant parts of it) required that the Tribunal take account before declining to exercise its power under s 501CA(4) of the Act. The Tribunal's failure to take that prospect into account en route to the making of its decision does not qualify as jurisdictional error. The applicant's first ground of review is not made out. 14 As to ground 2, the primary judge summarised the issues in the following way at J[55]: It was common ground between the parties that the policy of the Australian government is and was that unlawful non-citizens are not to be removed from Australia to places in respect of which they hold a well-founded fear of persecution. The applicant contends that the Tribunal was obliged to take account of that policy (hereafter, the "Non-Refoulement Policy") in forming its view as to whether or not to revoke the Cancellation Decision. He says that it did not do so and that that failure amounts to jurisdictional error. Two questions arise for the court's consideration: first, was the Tribunal obliged to take account of the Non-Refoulement Policy; and, second, did it do so? 15 As to the two questions, identified in the last sentence of the passage just set out, his Honour concluded that: (1) first, the Tribunal was not obliged to take account of the "Non-Refoulement Policy": J[60]; and (2) secondly, in any event, the Tribunal did not fail to take account of the "Non-Refoulement Policy", it expressly referring to Direction No 79 at T[87]: J[63]. 16 As to the first question, the appellant, referring to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, contended before the primary judge that the "Non-Refoulement Policy" was "directly relevant to a critical issue before the Tribunal" and that the Tribunal was, accordingly, obliged to consider it: J[56]. The primary judge stated: [59] There are obvious points of difference separating Gray from the present case. In Gray, the policy of which the Tribunal was bound to take account was one specifically aimed at the exercise of the power that was in issue in that case. It was one whose development and promulgation the legislature was presumed to have contemplated; and to which it was presumed to have intended that decision makers would give consideration in the course of exercising the power. Here, by contrast, the Non-Refoulement Policy exists as an incident of commitments that Australia has made to other nations. It exists independently of the power conferred by s 501CA(4) of the Act. [60] There is no general, wide-ranging obligation imposed upon the Tribunal (either expressly or as a matter of implication arising from the subject matter, scope or purpose of the legislation) to take account of executive policy when considering an exercise of power under s 501CA(4) of the Act. In the present case, I am unable to identify - and the applicant did not nominate - anything about the subject matter, scope or purpose of the relevant provisions that, by implication, conditions the exercise or non-exercise of power under s 501CA(4) of the Act upon consideration of the Non-Refoulement Policy. The Tribunal was not obliged to take account of that policy prior to making its decision. 17 Direction No 79 identifies what a non-refoulement obligation is and notes that Australia has such obligations: paragraph 14.1(1). Paragraph 14.1(2) of Direction No 79 states, in the second sentence, that the policy of the Commonwealth government is not to remove a person in contravention of its international non-refoulement obligations. However, the relevant direction with which the Tribunal must "comply" (s 499(2A)) is that, in making its decision on a matter to which Direction No 79 applies, "[t]he existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen's visa". The "direction" with which the Tribunal has to "comply" is stated in the first sentence of paragraph 14.1(2). The second sentence, which acknowledges the existence of the policy, explains why the "direction" in the first sentence has been given. The reason is that there are other steps which may be taken by other decision-makers in order to give effect to Australia's non-refoulement obligation, after consideration of whether to revoke a cancellation. These other steps would include consideration of the grant of a protection visa or the exercise of power by the Minister under s 195A. 18 Paragraph 14.1(2) of Direction No 79 does not require a decision-maker to take account of Australia's non-refoulement obligations. Where an applicant raises the existence of a non-refoulement obligation as relevant to whether a visa cancellation should be revoked, then Direction No 79 instructs that "[t]he existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa". That is not to say that the claimed or established existence of non-refoulement obligations, or the possibility of harm occurring on refoulement whether or not a non-refoulement obligation is owed, may not be a consideration which a decision-maker is required to take into account in a particular case, including because it is raised by the person whose visa has been cancelled as part of the representations made under s 501CA - see: Ali v Minister for Home Affairs (2020) 380 ALR 393; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; and GBV18 v Minister for Home Affairs [2020] FCAFC 17. The appellant's case on appeal was, in substance, confined to an argument that the Tribunal should not have entertained the possibility that the appellant would be refouled to West Papua because of the second sentence of paragraph 14.1(2). The appellant did not argue that the Tribunal erred in considering whether Australia owed non-refoulement obligations. Any discrepancy between paragraph 14.1(4) of Direction No 79 and the Full Court authorities just mentioned was not the subject of argument on this appeal for the reason that the Tribunal did consider and take into account the appellant's representations, a central aspect of which was that he was owed non-refoulement obligations. 19 The appellant did not submit that Australia's non-refoulement policy arose as a mandatory consideration outside of Direction No 79. It follows that the appellant has not established that the primary judge erred in concluding that the Tribunal did not have an obligation to take into account Australia's non-refoulement obligation in reaching a decision under s 501CA. 20 Before turning to the second of the questions identified by the primary judge, something should be said about paragraph 14.1(6). As noted earlier, the last sentence of that paragraph states: 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 sections 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. 21 The Minister accepted that he could not hold a person in immigration detention except for a lawful purpose. The Minister acknowledged that, since the introduction of s 197C into the Act, indefinite detention, in the sense of holding a person in detention for no lawful purpose and not refouling the person in breach of Australia's non-refoulement policy, was not a possible legal outcome - see: AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424. To the extent the last sentence of paragraph 14.1(6) is to be understood otherwise it cannot be correct. 22 As to the second matter, the primary judge stated: [62] An inference that a decision maker has failed to consider an issue is one that should not too readily be drawn in circumstances where the reasons for a given decision are comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ). The court requires clear evidence before such an inference might be drawn and it is the applicant who bears the evidential onus: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ). [63] In this case, it cannot safely be inferred that the Tribunal failed to take account of the Non-Refoulement Policy. The Tribunal was plainly alive to its existence: it is expressly referred to in Direction 79, which the Tribunal's Decision relevantly extracted (at [87]; above, [23]). The fact that the Tribunal's Decision does not identify the significance (if any) that the Non-Refoulement Policy assumed in this case is not a sufficient basis upon which to infer that it went unconsidered. The Tribunal was not obliged to say anything in particular about it. That it didn't do so is neither here nor there. Even assuming, contrary to my conclusion above, that the Tribunal was obliged to take account of the Non-Refoulement Policy, I do not infer that it failed to do so. 23 The Tribunal did take account of Australia's non-refoulement policy. Not only did it set out the terms of paragraph 14.1 of Direction No 79, but it stated at T[87] that the direction "refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm". It stated at T[97] that it had "a duty to consider non-refoulement regardless of [the appellant's] ability to apply for a protection visa". Whilst the reasons could have been better expressed, the preferable understanding of the Tribunal's decision is that the Tribunal took into account that, if the mandatory cancellation decision were not revoked, it was likely that the appellant would remain in detention whilst options were considered in light of Australia's non-refoulement policy. The Tribunal also recognised that a possible result of its decision was that the appellant might be refouled to West Papua in breach of Australia's non-refoulement obligations. The Tribunal was not obliged by paragraph 14.1(2) to proceed on the basis that this was not a possible outcome. It clearly was, by reason of s 197C.

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