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[2019] FCA 216
plaintiff. The decision of the Respondent made on 25 June 2018 be quashed. The Respondent determine the Applicant's application for revocation of the decision to cancel his visa pursuant to s 501CA of the...
Mr Ezegbe, a Nigerian man who had served a prison sentence for a serious drug offence, faced automatic cancellation of his Australian visa. He told the Minister he would be targeted and harmed by both sides in the Biafra conflict if sent home. The Minister recognised Australia’s non-refoulement obligations but decided not to make any finding about them because Mr Ezegbe could apply for a protection visa. The Minister also said he had considered the harm claims ‘outside’ the non-refoulement framework. The Federal Court held this was not good enough. The Minister had only listed Mr Ezegbe’s fears and concerns rather than deciding whether those bad things were actually likely to happen. That failure to grapple with a central part of Mr Ezegbe’s case was a legal mistake. The court quashed the decision and sent it back to be decided again, properly weighing the risk of harm even if that harm fell short of what would justify a protection visa.
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1 cited instrument linked from this judgment.
Gabriel Ezegbe, a Nigerian citizen, arrived in Australia in 2007 holding a permanent visa. In 2013 he pleaded guilty to the federal offence of attempting to possess a marketable quantity of heroin contrary to s 307.6(1) of the Criminal Code (Cth). He received a six-year sentence with a four-year non-parole period, back-dated to his arrest on 19 October 2011. On 7 October 2015, while still in custody, a delegate cancelled his visa under the mandatory cancellation provision in s 501(3A) of the Migration Act 1958 (Cth). Upon release on parole on 18 October 2015 he was immediately taken into immigration detention under s 189.
As required by s 501CA(3)(b), Mr Ezegbe was invited to make representations about why the cancellation should be revoked. He did so on 17 October 2016. Among other matters he advanced a detailed claim that return to Nigeria would expose him to serious harm. He feared targeting by both pro- and anti-Biafra factions because of his perceived political opinions, threats made to his family by a man named Mr Eze, the risk of further imprisonment, inability to “pay his way out”, generalised violence, hunger, and inability to support his parents and child.
An initial refusal to revoke the cancellation was quashed by the Federal Court on 20 November 2017 and the matter remitted. On remittal the Minister personally decided on 25 June 2018 that there was no “another reason” under s 501CA(4)(b)(ii) to revoke the cancellation. At paragraphs [34]-[38] the Minister expressly acknowledged Australia’s non-refoulement obligations under the Convention against Torture (CAT) Art 3(1) and the International Covenant on Civil and Political Rights (ICCPR) Arts 2(1) and 7. He noted that Mr Ezegbe could still lodge a valid application for a protection visa under s 36 and that, by reason of Direction 75, a delegate would be required to assess the refugee and complementary protection criteria in s 36(2) before considering character grounds. The Minister considered it “highly likely” that a delegate would decide the application and therefore found it “unnecessary” to determine the non-refoulement question himself. He also addressed, but discounted as unlikely, the possibility that he might decide the protection visa application personally and depart from Direction 75.
At [39] the Minister stated that he had considered Mr Ezegbe’s claims of harm “outside of the concept of non-refoulement and the international obligations framework”. He listed a series of fears and concluded that the protection of the Australian community outweighed those matters and the best interests of Mr Ezegbe’s step-grandchildren ([128]). The reasons contained no findings about whether the feared events were objectively likely, no reference to country information, no assessment of relocation within Nigeria, and no express credibility findings.
Mr Ezegbe commenced judicial review proceedings. Perram J heard the application on 9 October 2018. Three grounds were advanced: (1) failure to treat the legal consequences (indefinite detention or refoulement) as mandatory relevant considerations; (2) illogicality in the Minister’s procedural reasoning; and (3) failure to give proper consideration to the harm claims independent of the protection visa criteria. Only the third ground succeeded. On 27 February 2019 the Court quashed the 25 June 2018 decision, ordered the Minister to reconsider the revocation application according to law, and awarded costs.
Perram J’s reasoning is structured around a close textual and contextual reading of s 501CA(4)(b)(ii) and the Minister’s actual reasons. The decisive proposition is that a claim of harm on return is capable of being “another reason” to revoke cancellation even if the harm does not rise to the level required by s 36(2)(aa). The Minister was therefore obliged to engage with that claim on its own terms.
The Court first rejected the legal-consequences ground. It analysed the position under two hypotheses. If Mr Ezegbe did not meet the “danger to the Australian community” disqualifier in s 36(1C)(b), he would receive a protection visa and neither refoulement nor indefinite detention would arise. If he did meet that disqualifier, s 197C(1) made non-refoulement irrelevant to the removal obligation, but the Minister or a delegate retained the power under s 195A to grant a visa to avoid refoulement (citing DMH16 and AQM18). Because Direction 75 bound delegates to assess s 36(2)(aa) first, the prospect of refoulement remained contingent on a series of future administrative choices. Relying on Ayoub at [19] and DOB18 at [36]-[42], Perram J held that such speculative prospects are not mandatory relevant considerations even though legal consequences in general are (NBMZ at [17], [177]-[178]; BHA17 at [35]).
The illogicality ground was also rejected. The Minister had identified the procedural pathway, assessed the risk that non-refoulement issues might be bypassed as low, and expressly considered the remote possibility that he might decide the protection visa himself. That reasoning was not “extreme” illogicality capable of amounting to jurisdictional error (DAO16 at [30(5)]; SZRKT at [148]; SZMDS at [135]; CQG15 at [60]).
The successful ground was the Minister’s treatment of the harm claim “outside” the non-refoulement framework. Perram J accepted that, quite apart from non-refoulement, Mr Ezegbe had advanced a straightforward submission that he would be harmed if returned. That submission had to be weighed in the discretionary balance required by s 501CA(4). The Court examined [39] and [128] minutely. Both paragraphs speak of “hardship arising from his concerns”, “fears”, and “concerns of becoming a target”. They do not contain any finding that the feared events were, or were not, likely to occur. There is no discussion of the probability of being targeted by Biafra activists, the credibility of the threats from Mr Eze, the availability of internal relocation, or the weight to be given to country information. In short, the Minister had considered the psychological harm of living with fear rather than the risk of the feared physical harm itself.
This approach was held to disclose the absence of any “active intellectual process” (Sabharwal at [77]; Carrascalo at [46]). The Court emphasised that a decision-maker can accept that an applicant faces a risk of serious harm falling short of the s 36(2)(aa) threshold and still treat that risk as a powerful reason to revoke cancellation. By dealing with the claim only through the false lens of “fears”, the Minister had failed to exercise the power conferred by s 501CA(4). The principle in NABE at [58]-[59]—that failure to deal with a claim raised by the evidence or contentions that, if resolved favourably, would be dispositive, may constitute jurisdictional error—was applied directly to the s 501CA(4) context (Viane at [67]).
Perram J acknowledged that the obiter observation in BCR16 at [49] supported the applicant but did not rest the decision on that passage. Instead he treated the proposition as orthodox administrative law: the Minister must not overlook clearly articulated representations. Because the harm claim was material and had not been addressed on its merits, jurisdictional error was established.
Before Ezegbe the law was unsettled. In BCR16 the Full Court had held that a statement that non-refoulement obligations “would necessarily be considered” in a protection visa application was legally incorrect because, prior to Direction 75, a delegate could lawfully refuse on character grounds without ever reaching s 36(2)(aa). BHA17 reached a similar conclusion in relation to the PAM3 guidelines then in force. Both decisions left open whether a harm claim falling short of the complementary protection threshold could nevertheless constitute “another reason” under s 501CA(4).
Ezegbe clarifies three matters. First, Direction 75 has removed the uncertainty that existed for delegates: they must now assess s 36(2) before character. Second, the Minister personally remains free to decide solely on character grounds, but if he chooses to rely on the availability of a protection visa application he must accurately describe the process, including the remote possibility that he may decide it himself. Third, and most importantly, a claim of harm is an independent integer that must be weighed under s 501CA(4)(b)(ii) regardless of whether it meets the high threshold in s 36(2)(aa) or engages non-refoulement. The obligation is to assess the objective risk, not merely to record the existence of the applicant’s fears.
After Ezegbe, decision-makers must produce reasons that demonstrate an active intellectual process on any clearly articulated harm claim. A formulaic paragraph that simply repeats the applicant’s “concerns” or “fears” will be insufficient if it does not address probability, relocation, country information or credibility. The decision also confirms that speculative future pathways (refoulement after a protection visa refusal, indefinite detention) will rarely be mandatory considerations provided the Minister has identified the contingencies.
Paragraph [28]: “By simply refusing to deal with any of the issues about what would happen to Mr Ezegbe if he were returned to Nigeria the Minister had failed to exercise the power.”
Plain English: The Minister ignored the core argument that Mr Ezegbe would be physically harmed in Nigeria. That was not a side issue; it went to the heart of whether there was “another reason” to let him stay. Ignoring it meant the Minister never properly did the job Parliament gave him.
Paragraph [32]: “The reasons contain no consideration of whether the harms feared by Mr Ezegbe are likely to eventuate. … It considers instead a quite different harm that Mr Ezegbe did not in fact advance, namely, the harm consisting of being returned to Nigeria with the fears that he held (he would ‘face hardship arising from his concerns’).”
Plain English: The Minister wrote about how stressful it would be for Mr Ezegbe to worry about bad things. But Mr Ezegbe’s actual claim was that the bad things would actually happen. The two are not the same. Without deciding whether the bad things were likely, the Minister had not answered the claim put to him.
Paragraph [34]: “There was simply no active intellectual process brought to bear on the question.”
Plain English: The Minister listed the fears but did not analyse them. He did not ask “How likely is this?”, “Can he move somewhere safer inside Nigeria?”, or “Does the country information support this?” That absence of real thinking is what makes the decision legally invalid.
Paragraph [37]: “NABE … has been applied to the making of submissions under s 501CA(4): Viane … (‘the Minister must not overlook the representations’).”
Plain English: If an applicant clearly says “I will be hurt if you send me back”, the Minister cannot file that away under “non-refoulement” and pretend it has been dealt with. The claim must be weighed on its own merits in the revocation decision.
Ezegbe will be engaged whenever an applicant for revocation under s 501CA(4) has clearly articulated a risk of harm on return that does not obviously satisfy the complementary protection criteria or where the Minister seeks to deal with the claim solely by reference to a future protection visa application. Typical triggers include:
The precedent will not be triggered by bare assertions of harm that are not clearly articulated or where the reasons contain explicit findings that the feared events are unlikely, not credible, or that relocation is reasonably practicable.
Although the judgment is only from February 2019, subsequent authorities have treated the core holding as orthodox. In DOB18 (delivered after the hearing but before judgment in Ezegbe), Griffiths J had already emphasised the speculative nature of future protection visa outcomes; Perram J cited that reasoning with approval. Later Full Court decisions have cited Ezegbe for the proposition that harm claims must be considered independently (see, for example, the treatment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] FCAFC 11 at [30]-[32] which, while reversing on other grounds, did not doubt the obligation to consider clearly articulated harm submissions).
Single judges have applied the distinction between considering “fears” and considering “risk of harm”. In several unreported revocation matters, judges have set aside decisions that contained only formulaic “I have considered the applicant’s concerns” language without engaging with objective probability. The case has also been cited for the narrower proposition that, post-Direction 75, the Minister’s description of the protection visa pathway is less vulnerable to attack than it was in BCR16 and BHA17, provided the remote personal decision-making possibility is acknowledged.
No court has yet doubted the central holding that a harm claim falling short of s 36(2)(aa) can still be “another reason”. On the contrary, later decisions have expanded the obligation to consider “cumulative” or “composite” claims that include both protection and non-protection elements.
Several questions remain unresolved after Ezegbe. First, how detailed must the assessment of a sub-threshold harm claim be? Perram J did not prescribe a checklist, but the absence of any discussion of likelihood, relocation or country information was fatal. Whether a short, explicit finding that “I accept the applicant faces a moderate risk of serious harm but I give greater weight to community protection” would suffice is untested.
Second, the interaction with s 501CA(4) representations that are expressed only in protection-visa language remains unclear. If an applicant frames every claim as satisfying s 36(2)(aa), does the Minister still have an obligation to consider whether the same facts constitute a lesser risk that is relevant to revocation? Ezegbe suggests the answer is yes, but the point was not squarely before the Court.
Third, the scope of the Minister’s personal power to decide a protection visa application without regard to Direction 75 continues to generate difficulty. While Ezegbe holds that the Minister must “wrestle with” that possibility, it does not decide what weight must be given to the remote chance that non-refoulement issues will never be reached.
Fourth, the precise boundary between “speculative” and “certain” legal consequences is still fluid. Ezegbe confirms that the prospect of refoulement after a character-based refusal is speculative, but leaves open whether a different statutory scheme (for example, one that removed all discretion under s 195A) might produce a different result.
Finally, the decision assumes that the Tribunal, when reviewing a protection visa refusal, will necessarily make clear findings on harm. In practice, the Tribunal sometimes affirms on character grounds without making alternative findings on s 36(2)(aa). Whether that practical reality affects the Minister’s obligation under s 501CA(4) remains for future cases.
Practitioners should therefore continue to draft revocation submissions with separate, clearly articulated sections addressing both protection criteria and independent harm risks, and should scrutinise ministerial reasons for any failure to move beyond recitation of “fears” and “concerns”. The case stands as a reminder that administrative decision-makers cannot discharge their statutory duty by simply acknowledging that an applicant is worried; they must decide whether the worry is justified.
Counsel for the Applicant: Mr AM Hochroth (Pro Bono)
Solicitor for the Respondent: Australian Government Solicitor
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent
JUDGE: PERRAM J DATE OF ORDER: 27 February 2019
PERRAM J: 1 Mr Ezegbe is a citizen of Nigeria. He arrived in Australia from Nigeria in 2007 and, until the events the subject matter of this litigation, held a valid permanent visa. On 6 June 2013, having pleaded guilty, he was convicted of the federal offence of attempting to possess a marketable quantity of a border controlled drug, namely heroin. This was an offence against s 307.6(1) of the Criminal Code (Cth) and carried a maximum penalty of 25 years' imprisonment. Judge Tupman of the District Court of New South Wales sentenced him to imprisonment for a term of six years with a non-parole period of four years. This sentence her Honour then backdated to the date of his arrest which was 19 October 2011. The earliest he could be released from custody was, therefore, 18 October 2015. 2 He was released on parole on that day. On 7 October 2015, shortly before that occurred, a delegate of the Minister responsible for the administration of the Migration Act 1958 (Cth) ('the Act') cancelled his permanent visa pursuant to s 501(3A) of the Act. The delegate was required to cancel his visa because Mr Ezegbe was, in fact, in custody and had been sentenced to a period of imprisonment in excess of 12 months which were together matters that automatically enlivened s 501(3A). The effect of the cancellation was that upon his release on parole he was immediately taken into immigration detention as a non-citizen without a visa as mandated by s 189. 3 As is required under s 501CA(3)(b) of the Act, Mr Ezegbe was then invited by the Minister to make representations as to why the automatic cancellation of his visa should be revoked. He made such representations on 17 October 2016. The Minister's discretionary power to revoke the automatic cancellation is found in s 501CA(4). In this case, after Mr Ezegbe made representations, the Minister's power would be enlivened only if he thought that Mr Ezegbe passed what is called the 'character test' (there is no controversy that he did not pass that test) or that there was 'another reason why the original decision should be revoked'. On 17 October 2016, the Assistant Minister for Immigration and Border Protection determined not to revoke the decision. Mr Ezegbe subsequently sought judicial review of that decision. On 20 November 2017, this Court quashed the Assistant Minister's decision and ordered that the matter be remitted for determination according to law. On remitter, on 25 June 2018, the Minister concluded that no such reason presented itself and refused to revoke the earlier cancellation decision. Mr Ezegbe now seeks to quash the Minister's decision. 4 Part of Mr Ezegbe's representations to the Minister included a contention that if he were to be returned to Nigeria he would be targeted by both sides of a conflict existing in that country concerned with the right of the region of Biafra to autonomous self-rule. It is that claim which generates the issues in this case. 5 Australia is subject to an obligation under Art 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT') not to return persons to places where they may be, loosely speaking, killed or tortured. It provides: 'Article 3 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.' 6 For the reasons given by the High Court in CRI026 v The Republic of Nauru [2018] HCA 19 at [24] per Kiefel CJ, Gageler and Nettle JJ, a similar obligation arises from Arts 2(1) and 7 of the International Covenant on Civil and Political Rights ('ICCPR') to which Australia has also acceded. It is not necessary to set those articles out. 7 Both sets of obligations are known as non-refoulement obligations. A significant feature of those obligations is that they are non-derogable in the sense that they do not admit of any circumstance in which they may be disregarded. Relevantly, they do not admit of an exception where the person has committed serious criminal offences in the State contemplating deportation. 8 The obligations are matters of public international law and, in themselves, have no effect in Australian domestic law. The responsibility for the observance of Australia's international obligations lies primarily with the other two branches of government, not this Court. 9 In this case, however, the Minister exhibited an awareness of the existence of these obligations but nevertheless resolved not to reach a view about them. His reasoning on this was as follows: '34. I am aware that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501. 35. I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75. 36. In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of Mr EZEGBE for the purposes of the present 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. 37. I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers Mr EZEGBE's Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of Mr EZEGBE. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one. 38. I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr EZEGBE 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.' 10 As the Minister correctly observed, Mr Ezegbe is entitled to apply for a protection visa under s 36. The basic criteria for the grant of such a visa are that the Minister should be satisfied that the person is a refugee (s 36(2)(a)) - not suggested here to be material - or, that the Minister is satisfied that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm (s 36(2)(aa)). It may be assumed for present purposes that this second criterion accurately reflects the matters which would trigger Australia's non-refoulement obligations under the ICCPR and the CAT. 11 However, s 36 has disqualifying criteria as well and one of them - lurking for the unwary in s 36(1C)(b) - is that the applicant should not be a person whom the Minister regards on reasonable grounds as a person who, 'having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community'. A 'particularly serious crime' includes 'a serious Australian offence' (s 5M(a)) which, in turn, includes an offence which is a 'serious drug offence' punishable by imprisonment for a fixed term of not less than three years (s 5). I do not doubt that Mr Ezegbe has therefore committed a 'particularly serious crime' and the only remaining issue under s 36(1C)(b) is whether the Minister now regards him as being a danger to the Australian community. On this topic, the Minister's views are already known. At [126]-[127] of the decision the subject of this proceeding he said this: '126. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crime committed by Mr EZEGBE. 127. Further, I find that the Australian community could be exposed to great harm should Mr EZEGBE reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr EZEGBE.' 12 Mr Hochroth of counsel, who appeared for Mr Ezegbe, first submitted that the Minister had fallen into jurisdictional error by failing to take into account a mandatory relevant consideration, namely, the legal consequence of his decision. This consequence was submitted to be either indefinite detention or refoulement to Nigeria. 13 I do not accept the submission that the consequence of the Minister's decision is that Mr Ezegbe will be permanently held in immigration detention. The hypothesis upon which this question must be asked is that the delegate who makes the decision accepts that Mr Ezegbe does face a risk of the kind of harm referred to in s 36(2)(aa). That assumption must be made because it is only when such a risk of harm exists that there can be any question of refoulement which takes as its point of departure that such a risk exists. On that hypothesis, Mr Ezegbe's argument requires consideration of two distinct cases. These are that: (a) he does not pose a danger to the Australian community; or (b) he does pose such a risk. 14 On supposition (a), he will be entitled a protection visa because he satisfies s 36(2)(aa) and he will not lose that entitlement because he does not satisfy the disqualifying criterion in s 36(1C)(b). Being entitled to a visa, he will neither face a risk of refoulement nor indefinite detention. On supposition (a), therefore, Mr Ezegbe's submission fails. 15 It also fails under supposition (b). Under this supposition he meets the qualifying criterion in s 36(2)(aa) because he faces a risk of the relevant kind but is not entitled to a protection visa because he satisfied the disqualifying criterion in s 36(1C)(b). Consequently, he will be barred from applying for another protection visa under s 48A(1) (because of his unsuccessful protection visa application) or for any other kind of visa by s 501E(1) (because his permanent visa was cancelled under s 501). He must therefore be held in immigration detention so as to be removed from Australia as soon as practicable: ss 196 and 198. In the performance of that function the existence of any non-refoulement obligations is an explicitly irrelevant consideration: s 197C(1) ('For the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen'). He will not therefore remain in immigration detention but will instead either be refouled to Nigeria (on this hypothesis, contrary to both the CAT and the ICCPR) or, assuming the power is available (cf Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 at 7 per Gaven Duffy CJ and Dixon J), be granted a discretionary visa under s 195A to avoid that outcome: DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 at 581 [26] per North ACJ; AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [81] per Moshinsky J. So Mr Ezegbe is not going to be subject to indefinite immigration detention. What then of refoulement? 16 The same reasoning shows that there is certainly a risk that Mr Ezegbe will be refouled to Nigeria contrary to the CAT and the ICCPR. But this is only a risk not a certainty. There are a number of ways in which the putative application for the protection visa might be handled which do not lead to this outcome. For example, the Tribunal on review may decide that he does not pose a danger to the Australian community (i.e. he does not meet the disqualifying criteria in s 36(1C)(b)) and that the risks of harm to him if returned to Nigeria are sufficiently serious to enliven s 36(2)(aa). On that hypothesis, he will be granted a protection visa. In the same vein, other options include the eventual decision maker concluding that the risk of harm does not exist, or rises insufficiently high, to satisfy the requirements of s 36(2)(aa). In each of those cases there will be no non-refoulement obligations. Griffiths J reached similar conclusions about the speculative nature of seeking to ascertain how protection visa applications might be handled in DOB18 v Minister for Home Affairs [2018] FCA 1523 ('DOB18') at [36]-[37], [40]-[42]. 17 What is involved therefore on Mr Hochroth's argument is not that the legal consequence of the decision is that Mr Ezegbe will be refouled or even that this will be its practical consequence. Rather, it is but an argument that there is a risk that he will be refouled. Such a risk is not a mandatory relevant consideration. It is true that the legal consequences of a decision are mandatory relevant considerations: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at 6 [17] per Allsop CJ and Katzmann J, 39 [177]-[178] per Buchanan J. This has been applied in the context of s 501CA(4): BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 ('BHA17') at [35] per Griffiths J; Martin v Minister for Immigration and Border Protection [2017] FCA 1 at [24] per Katzmann J; Isley v Minister for Immigration and Border Protection [2018] FCA 632 at [84] per Kerr J. But this does not entail that speculative prospects are mandatory relevant considerations: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 ('Ayoub') at 519 [19] per Flick, Griffiths and Perry JJ; DOB18 at [40]-[42] per Griffiths J. Mr Hochroth sought to distinguish Ayoub on the basis that it was concerned with s 501 rather than s 501CA. This is not, however, a plausible basis for distinguishing it. 18 It will rarely be possible to discern from the subject matter, purpose and scope of the relevant statute that matters of speculation are mandatorily to be taken into account: cf Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 39-40 per Mason J. Of course, a particular statute may explicitly invite speculation but that is not the case here. Consequently, I reject this argument. It is not necessary in that circumstance to determine the correctness of Mr Herzfeld's submission that the Minister had taken into account the submission about indefinite detention because he had referred to it at [26]. 19 Mr Hochroth also submitted that it was illogical for the Minister to reason as he had. In effect the point was that under the guise of appearing to adopt a procedure in which the non-refoulement issues would be considered he had created the circumstance where they quite possibly would not; or, to put it another way, it was illogical to make Mr Ezegbe apply for a visa which was certain to be refused. I do not accept this argument. It is not certain that this will be the outcome as I have endeavoured to show. The Minister has addressed himself to how the matter is going to proceed procedurally. Risks are identified in that process but are assessed as low. I do not think I can describe this reasoning as lacking logic. Even if it could be so described, the illogicality would not be 'extreme' so as to establish jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at 184 [30(5)] per Kenny, Kerr and Perry JJ; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] per Robertson J; SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 at [135] per Moore J; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517-518 [60] per McKerracher, Griffiths and Rangiah JJ. 20 Mr Hochroth next submitted that paragraph [38] of the Minister's reasons (set out above at [9]) involved a jurisdictional error. The error was said to lie in the Minister's statement that it was unnecessary to determine whether any non-refoulement obligations were owed because these would be fully considered when the protection visa application was assessed. This was said to be an incorrect statement because it was possible that the Minister might decide the application for himself and, if he did, he was not bound as a matter of law to consider whether any non-refoulement obligations were owed. 21 It is certainly true that if the Minister decides the protection visa application for himself it will be open to him not to consider the non-refoulement matters in s 36(2)(aa) if he has already concluded that Mr Ezegbe is not eligible for a protection visa because he has committed a particularly serious crime and poses a danger to the Australian community: s 36(1C)(b). Whilst delegates of the Minister are bound by Direction 75 to decide the issues in s 36(2)(aa) before embarking upon those in s 36(1C)(b), the Minister is not so bound. In that sense, Mr Hochroth was right to submit that the Minister's statement that it is unnecessary to consider those matters because they will be dealt with in the protection visa application is not literally correct. 22 However, to read [38] that way is to ignore the passage immediately preceding it in [37] which engages with the proposition that the Minister might decide the matter himself and depart from Direction 75. It is explicitly taken into account although assessed as being an unlikely outcome. 23 In that circumstance, I would not be disposed to read [38] in the narrow fashion Mr Hochroth urged. The reasons are to be read as whole (Minister for Immigration v Tran [2015] FCA 546; 232 FCR 540 at 547-548 [24] per Jagot J) and not with an eye keenly attuned to the perception of error (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ). Together [37] and [38] constitute a correct statement of the process that it is to be undertaken. This case is therefore distinguishable from cases such as BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 ('BCR16') and BHA17. In the former case the Minister had stated that it was unnecessary for him to consider whether the appellant was owed a non-refoulement obligation because those issues would necessarily be considered in the course of dealing with the protection visa application. But it was possible at that time, which was before the making of Direction 75, for a delegate to decide such an application solely on the basis of the disqualification criteria in s 36(1C)(b) and not to consider the issues in s 36(2)(aa) at all. Consequently that statement was not legally correct. The Full Court held that to approach the matter on such a legal misunderstanding of the process was a jurisdictional error: at [72]. That is not the current situation. 24 The same was true in BHA17 because whilst the PAM3 guideline under consideration in that case suggested that delegates dealing with protection visa applications consider the non-refoulement issues even if the applicant was disqualified under the character requirement in s 36(1C)(b), this was not obligatory. In this case, the uncertainties in BCR16 and BHA17 have been removed by Direction 75. There remains the possibility that the Minister might decide the application himself and, since he is not bound by Direction 75, might decide the application purely on the character ground without recourse to the non-refoulement issues. But the Minister's decision explicitly wrestles with that possibility. I do not think that BCR16 or BHA17 provide any guidance in the current circumstance. 25 Mr Hochroth also submitted at the hearing that the Minister's reasons do not disclose an awareness on his part that any application for a protection visa faced a real risk of being refused on character grounds under s 36(1C)(b). I accept that this is so but not that that failing involves a jurisdictional error. Mr Hochroth relies on passages in BCR15 (at [68]) and BHA17 (at [65]) to establish that this constituted a jurisdictional error. But these were concerned with decisions made prior to Direction 75 and the passages in question are directed at showing that the Minister in those cases had failed to grasp that the non-refoulement claims did not necessarily have to be examined in a protection visa application. Now they do because of Direction 75. It was only because the non-refoulement issues did not necessarily have to be examined in those cases which made relevant the Minister's failure to be aware that the protection visa application would or might be refused so that the claims would not be considered. Once Direction 75 is in place a failure by the Minister to be aware that the protection visa application may be refused no longer connects to the mainspring of the argument, namely, that the Minister misdescribed the process. 26 Be that as it may, I would accept that if Mr Ezegbe's application for a protection visa were bound to be refused because of his criminal record then the Minister would be required to take that into account as a mandatory relevant consideration. But that outcome is not a certainty (as I have explained above) and the possibility that it might be so cannot be a mandatory consideration for the reasons I have already given. 27 Mr Hochroth then submitted that the issue before the Minister was whether there was 'another reason why the original decision should be set aside' which is certainly what s 501CA(4)(b) says. The Minister's obligations in making a decision under that provision included, so it was said, an obligation to give proper, genuine and realistic consideration to the case that Mr Ezegbe was putting to him as to why there was such a reason. Part of his case for why his visa should not be cancelled was that the fact that he would be harmed if returned to Nigeria, as distinct from the issue of non-refoulement. That case needed to be weighed in the balance in considering whether there was some other reason why the cancellation decision should be revoked. Mr Ezegbe's various submissions to the Minister referred only to his risk of harm if returned. It was the Minister who had decided to deal with that issue as one involving non-refoulement. 28 I accept this argument. Regardless of the non-refoulement claim (which required demonstration of a risk of harm at quite a high standard), the Minister still had to consider Mr Ezegbe's case that if he were deported to Nigeria he would be harmed. It had to be weighed in the balance against the factors favouring his deportation. For example, a decision-maker could accept that Mr Ezegbe faced a risk of some serious harm falling short of the kind of harm which might enliven s 36(2)(aa) and nevertheless still use that as a consideration under s 501CA(4). By simply refusing to deal with any of the issues about what would happen to Mr Ezegbe if he were returned to Nigeria the Minister had failed to exercise the power. The existence of such an argument was adverted to by the Full Court in BCR16 at 468 [49], 472 [70]-[72]. 29 On the other hand, as Mr Herzfeld pointed out, the Minister's reasons do apparently deal with this argument. At [39] the Minister said this: '39. I have also considered Mr EZEGBE's claims of harm upon return to Nigeria outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr EZEGBE's claims are such as to engage non-refoulement obligations, Mr EZEGBE would face hardship arising from his concerns of becoming a target of Biafra activists were he to return to Nigeria, his fear of the tensions and violence throughout the different areas within Nigeria, the threats to kill him made to his family in Nigeria by Mr Eze, his fear that he will face a further term of imprisonment in Nigeria and will not have the means to 'pay his way out' and his expressed concerns about how he will care for his parents' health and provide a good education to his child, as well as his fears he will not be able to fulfil his dream of being a responsible parent, his fear of hunger and poor societal values and his fear of losing his good life in Australia.' 30 He summarised the same matter this way at [128]: '128. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr EZEGBE represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his step-grandchildren, as a primary consideration, and any other considerations as described above. These include his length of residence and bonds, claims of hardship, employment, volunteer/charity activities and familial ties to Australia, and the hardship Mr EZEGBE, his family in Australia and in Nigeria and social networks will endure in the event the original decision is not revoked.' 31 The Minister also relied upon [72], [121] and [124]-[129] (which includes [128]) but I do not think these rise any higher than the two passages I have just set out. 32 Mr Herzfeld submitted that this material showed that the claims and 'quality' of harm outside the protection visa context had been considered. I do not agree, however. The reasons contain no consideration of whether the harms feared by Mr Ezegbe are likely to eventuate. The statement at [39] is not a statement about the harms which may befall Mr Ezegbe on his return to Nigeria. It considers instead a quite different harm that Mr Ezegbe did not in fact advance, namely, the harm consisting of being returned to Nigeria with the fears that he held (he would 'face hardship arising from his concerns'). The harm considered by the Minister was his fears of tension and violence, threats and further imprisonment. 33 Mr Herzfeld submitted that one should not read [39] looking for mistakes. I agree. Decisions such as Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 establish that. However, if [39] really did contain the findings with which the Minister now seeks to saddle it, one would expect to find some discussion of the risks. But there is no such discussion. One cannot tell if the Minister accepted that Mr Ezegbe's fear of the risk of harm correlated with any actual risk of any actual harm. Consequently, one cannot discern if the Minister accepted the risks existed. Even assuming he did not (which is completely unclear) nothing is known about how that decision was reached. Was it because the Minister did not believe Mr Ezegbe? Was it because Mr Ezegbe could be relocated within Nigeria? Was it because Mr Ezegbe's claims were inconsistent with country information the Minister possessed? The absence of any such discussion is inconsistent with [39] being something other than that which it appears to be. 34 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]. 35 Mr Herzfeld then submitted that even so, BCR16 was not authority for the proposition that jurisdictional error was committed by failing to consider the aspect of the claim which did not relate to the protection visa issues. In that respect, I think he is right. There is an obiter passage in BCR16 at 468 [49] which strongly supports the argument but it is only obiter. 36 But regardless of whether BCR16 supports Mr Hochroth's submission or not, his argument is orthodox. In considering Mr Ezegbe's case under s 501CA(4) and whether there was another reason why the visa cancellation decision should be revoked, the Minister was obliged to deal with any clearly articulated case that he would be harmed if he was returned to Nigeria. Whatever relevance that had to issues of non-refoulement, it was also a straightforward argument that he would be harmed if returned which was relevant to the function being performed under s 501CA(4). In the discretionary decision which was to be made, this was a material submission. 37 In this case, one immediately obvious consequence of what the Minister has done is to prevent himself considering any kind of harm likely to be suffered by Mr Ezegbe which is below the threshold of seriousness required by s 36(2)(aa). As the Full Court has observed, not to deal with a claim raised by the evidence or the contentions actually made before him which, if resolved in one way, would be dispositive of the application, can constitute a failure of procedural fairness or a failure to conduct a review: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at 18-19 [58]-[59] per Black CJ, French and Selway JJ. That principle has been applied to the making of submissions under s 501CA(4): Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [67] per Colvin J ('the Minister must not overlook the representations'). For completeness, I do not accept that Mr Ezegbe's claims were impossible to assess. The Tribunal constantly assesses such claims. 38 Consequently, the Minister failed to consider those aspects of the submission which were made to him and were not related to claims which might be made for a protection visa. For the reasons given, that involved a jurisdictional error. 39 The Minister's decision will be quashed and must pay Mr Ezegbe's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.
Ezegbe
Minister for Immigration and Border Protection
(1993) 43 FCR 280
The decision of the Respondent made on 25 June 2018 be quashed. The Respondent determine the Applicant's application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law. The Respondent pay the Applicant's costs as taxed or agreed.