DMH16 v Minister for Immigration and Border Protection

1. The decision of the respondent to refuse to grant the applicant a Protection (Class XA) visa made on 17 October 2016 is quashed.
2. The applicant's application for a Protection (Class XA) visa is remitted to the respondent to be determined according to law.
3. The respondent is to pay the applicant's costs of the application for review. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH ACJ: 1 At my invitation Chief Justice Kashim Zannah of the High Court of Justice of Borno State, Nigeria, and Justice Jody Kollapen of the North Gauteng High Court, South Africa, sat with me to observe the argument in this case. 2 The applicant has applied for judicial review of a decision made on 17 October 2016 by the respondent, the Minister for Immigration and Border Protection, to refuse to grant the applicant a Protection (Class XA) visa. 3 The applicant is a citizen of Syria. He was born in 1991 and came to Australia in 2005 holding a child visa. 4 On 27 May 2011, the applicant was sentenced to three years imprisonment for intentionally causing serious injury. As a result, on 2 October 2014, the Minister cancelled the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) ( the Act). 5 On 26 October 2014, the applicant applied for a Protection (Class XA) visa. On 7 May 2015, the Department of Immigration and Border Protection (the Department) found that Australia has non-refoulement obligations in respect of the applicant. 6 On 17 October 2016, the Minister refused to grant the applicant a protection visa. Section 501(1) of the Act allows the Minister to refuse to grant a person a visa if the person does not satisfy the Minister that the person passes the character test. There is no challenge to the Minister's view that the applicant does not pass the character test. That was established because the applicant has a substantial criminal record (s 501(6)(a)) as defined in s 501(7)(c) because he was sentenced to a term of imprisonment of 12 months or more. The challenge to the Minister's decision is based on other matters. 7 In the usual way, the Department provided the Minister with a written submission which attached a comprehensive issues paper outlining the matters the Department thought relevant to the Minister's consideration. The Minister indicated where provided in the submission that he had signed the draft reasons for refusing the visa application. He also indicated that he wished to consider alternative management options. 8 The Minister's reasons will be considered shortly. At present it is necessary to explain the Minister's indication that he would consider alternative management options. The submission referred to the matter as follows: 9. An International Treaties Obligations Assessment dated 2 May 2014 as part of the previous character cancellation process found that Australia did not owe [the applicant] non-refoulement obligations. Since that time [the applicant] was assessed on 7 May 2015 as part of the Protection Visa process, and found to be a Syrian refugee and a person to whom Australia has non-refoulement obligations. In the event that you refuse [the applicant's] application for a Protection (Class XA) visa, he cannot be returned to Syria and could face an indefinite period of detention. 10. The existence of a non-refoulement obligation does not preclude the refusal of a person's visa application. This is because Australia will not necessarily remove a person, as a consequence of refusing their visa, to the country in respect of which the non-refoulement obligation exists (notwithstanding s197C of the Act). Therefore, refusing [the applicant's] visa is not inconsistent with Australia's international obligations, even if he is owed protection and subject to the non-refoulement obligations in the Refugees Convention. 11. Should you refuse [the applicant's] application, as removal to Syria would not be possible, you may wish to consider alternative management options. As [the applicant] would remain in held detention, it would be open to you to consider intervening under s195A of the Act to grant a temporary visa or to make a residence determination under s197AB of the Act. If you indicate that you wish to consider alternative management options, a further submission will be referred for your consideration. 9 Section 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa, if the Minister thinks it is in the public interest to do so. The power must be exercised by the Minister personally (s 195A(5)). The Minister is not obliged to consider whether to exercise the power (s 195A(4)). 10 Section 197AB allows the Minister, if the Minister thinks it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration detention as defined by the Act. Again, the Minister is under no duty to consider making such a determination (s 197AE). The Minister is, however, obliged to exercise the power personally (s 197AF). 11 Turning now to the Minister's reasons for refusing to grant the protection visa, for the purpose of exercising his discretion, the Minister considered the nature of the applicant's criminal conduct, the risk to the Australian community, the best interests of minor children, the expectation of the Australian community, the impact on family members in Australia and some other matters. There is no contention about any of these matters. 12 The argument on this application for review concerns the way the Minister dealt with the international non-refoulement obligations of Australia in respect of the applicant. As to that matter, the Minister's reasons state: 41. [The applicant] is a Syrian citizen. [The applicant] has made claims in his application for Protection visa lodged on 5 November 2015. 42. I accept that the department has found that Australia has non-refoulement obligations towards [the applicant]. 43. The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists. I understand that if I decide to refuse his visa application, in light of the above considerations [the applicant] will be unable to apply for any other visa. If I decide to refuse his application for a Protection visa, [the applicant] will be prevented by s 501E of the Migration Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.1A of the Migration Regulations). Also, in terms of a Protection visa, [the applicant] will be prevented by s48A of the Migration Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determines that s48A of the Migration Act does not apply to him - s48A and s48B of the Migration Act refer). 44. The statutory effect of a decision to refuse the visa application is also removal of [the applicant] from Australia as soon as practicable, and in the meantime, detention. In making my decision I am aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding s197C of the Act), he may face the prospect of indefinite immigration detention because of the operation of s189 and s 196 of the Migration Act. I acknowledge that this is likely to have adverse impacts on his psychological and physical health. 45. I accept that indefinite detention is likely to have an ongoing adverse effect on [the applicant]. 46. I am aware of and have had regard to the existence of a non-refoulement obligation in this case and I have carefully weighed this factor against the seriousness of [the applicant's] criminal offending in the making of my decision whether to refuse [the applicant's] visa application. [Emphasis added.] 13 The submission provided by the Department to the Minister provided advice which mirrored the Minister's reasons. The submission provided additional advice which was not directly reflected in the Minister's reasons as follows: 73. You should further note that s197C does not abrogate, for the purposes of Australia's domestic laws, Australia's non-refoulement obligations assumed under international law by subscription to the Refugees Convention. In general terms, as noted in the explanatory memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, s197C was inserted into the Migration Act with the intention of making it clear that the removal powers under s198 are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia's non-refoulement obligations. 14 Section 198(2A) of the Act which applied to the circumstances of this case relevantly provided that "an officer must remove as soon as reasonably practicable an unlawful non-citizen". 15 Section 197C of the Act provided: (1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. (2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen. 16 Section 189(1) of the Act provides: (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. 17 In SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1, [2015] FCAFC 125 (SZSSJ), the Full Court (Rares, Perram and Griffiths JJ) held that s 197C did not prevent an officer referred to in s 198 from detaining a person whilst the Minister considers, inter alia, whether to exercise the power in s 195A to grant a person in detention a visa of a specific type. That decision was appealed to the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653, [2016] HCA 29, (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). The appeal against orders made by the Full Court was allowed but in respect of this aspect the High Court said at [16]: No party to either appeal suggests that s 197C prevents an officer from giving effect to that instruction [relevantly, that no person shall be considered for removal until the assessment of Australia's protection obligations in respect of the person have been concluded]. For the purposes of the appeals, no further consideration need be given to the operation of that section. 18 Mr Wood, who appeared as counsel for the applicant, argued that the Minister had fallen into jurisdictional error because he misunderstood the legal consequences of the exercise of his power. 19 It was common ground that if the Minister did misunderstand those consequences, and that misunderstanding materially affected his decision, then his misunderstanding would constitute jurisdictional error. 20 Mr Wood relied on two arguments. One argument was based on SZSSJ having been correctly decided by the Full Court, and the other argument contended that SZSSJ was not binding and was wrongly decided. 21 On the view I have reached it is not necessary to consider the second argument. 22 On the first argument, Mr Wood contended that there was no information before the Minister that it was not reasonably practicable to remove the applicant to Syria. The existence of non-refoulement obligations in respect of the applicant did not mean that it was not reasonably practicable to remove him. In view of s 197C he could no longer be detained. That is to say because of s 197C he could not be detained indefinitely. Rather, he had to be returned to Syria. That was the legal consequence of the Minister's decision to refuse to grant a protection visa. Immediately after rejecting the application for a protection visa the Minister agreed to consider alternative management options. In accordance with SZSSJ the applicant could be detained until the Minister completed that consideration. However, once the Minister refused to consider, or did consider and rejected, the exercise of power under s 195A, then s 197C required that the applicant be removed to Syria, notwithstanding the fact that Australia had been found to owe non-refoulement obligations in respect of him. 23 Mr Wood said that the introduction of s 197C was directed to overcoming the reasoning in cases such as Plaintiff M70/2001 v Minister for Immigration and Citizenship [2011] HCA 32 and Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 which held that Australia could not remove an unlawful non-citizen to a country in breach of its non-refoulement obligations. Such persons could be lawfully detained for the purpose of removal even if it was uncertain when or if that result would occur. Such detention was described as indefinite. 24 Mr Wood contended that where the Minister stated in [44] of his reasons that the effect of the refusal of the protection visa was that the applicant may face the prospect of indefinite detention, the Minister failed to understand that the effect of the refusal of the protection visa would allow the applicant to be detained, but only until the Minister decided whether to consider exercising his power under s 195A. If he decided not to do so, s 197C operated so that the applicant had to be removed to Syria. That did not expose the applicant to the risk of indefinite detention. The detention was limited to a time within the control of the Minister to consider whether to exercise his power under s 195A. The reference to indefinite detention was an erroneous reference to the situation as it would have existed before the introduction of s 197C. 25 Mr Hill, who appeared a counsel for the Minister, contended that the Minister's reference to indefinite detention had to be read in context. First, Mr Hill contended that the Minister's statement at [44] that the applicant "will not be removed from Australia if his visa application is refused" should be read as a statement of intent from a policy perspective, rather than a statement relating to legal power. However, that contention does not deal with the Minister's statement that the applicant may face the prospect of indefinite detention. Regarding that point, Mr Hill submitted that the relevant context of that statement was that the Minister had determined to consider the alternative management option. Consequently, by indefinite detention the Minister meant detention for the period necessary to consider those alternative management options. 26 The argument for the Minister only needs to be stated to expose its weakness. The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister's reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria. 27 That view of the Minister's reasons is supported by the advice provided in the submission to the Minister at [73], which erroneously stated that s 197C does not abrogate, for the purposes of Australia's domestic laws, Australia's non-refoulement obligations assumed under international law. That is an incorrect understanding of the operation of s 197C in conjunction with an officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198. The submission was signed by the Minister personally and a decision was made that the Minister would personally consider the case being presented. At [7] of his reasons, the Minister stated, "…having assessed the information set out in the Issues Paper and attachments…" Thus, it can be inferred that the Minister considered the submission: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at 49. 28 Mr Hill then submitted that, even if the Minister misunderstood the effect of the refusal of the protection visa, the misunderstanding could not have materially affected his decision. The question was whether the error could have deprived the applicant of the possibility of a successful outcome. 29 Mr Hill contended that the applicant was not deprived of the possibility of a successful outcome because even if the Minister had correctly understood the consequence of his decision, he would have nevertheless made the same decision. Thus, the contention is that because the Minister was prepared to countenance indefinite detention, he would have been prepared to countenance detention for the period until he considered whether to exercise power under s 195A, because detention for the lesser period was less prejudicial to the applicant. 30 That argument should not be accepted. It relies upon the assumption that the only relevant consequence of the refusal decision was that the applicant would be detained for a short period before a decision was made in relation to the s 195A power. However, there is no reference in the reasons of the Minister to his decision to consider alternative management options. That decision was independent of the decision to refuse the protection visa. The response of the Minister recorded on the submission from the Department shows that the decision to consider alternative management options was made after the protection visa application had been rejected. Thus, at the time of refusal decision, the consequence of the decision was not a short period of detention, but rather the removal of the applicant to Syria. Had the Minister properly understood the consequence of the refusal of the protection visa at the time he made the decision there is a possibility that he would have granted the protection visa in order to avoid the consequence that the applicant would be returned to Syria in contravention of Australia's non-refoulement obligations in respect of the applicant. 31 It follows from these reasons for judgment that the decision of the Minister to refuse to grant the applicant a protection visa is quashed and the Minister is to determine the applicant's application for a protection visa in accordance with law. The Minister must pay the applicant's costs of this review. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.