GROUND 1
26 The first ground of review alleges that the Tribunal's decision was affected by jurisdictional error in that:
a. The Tribunal was required to give genuine consideration to, and to intellectually engage with, the 'reasons' for revocation advanced by the Applicant and which arose from on the facts.
b. The Applicant relied upon each of (a) the persecution and harm he would suffer if returned to Afghanistan, and (b) the desirability of Australia complying with its international obligations, and each of those issues arose on the facts.
c. The Tribunal found that Australia was bound by an international legal obligation not to refoule the Applicant to Afghanistan.
d. The Tribunal (at [101]-[103] and [127]-[128]) identified the risk of harm to the Applicant as a matter weighing in favour of revocation, but treated the subject of 'international non-refoulement obligations' as synonymous with that risk of harm to the Applicant, and erred in failing to consider, as a separate and distinct consideration weighing in favour of revocation, the risk that Australia would find itself in breach of its international non-refoulement legal obligation.
27 The Minister does not dispute that the applicant is a person in respect of whom Australia owed non-refoulement obligations under international law.
28 Four questions now arise.
29 The first is whether the Tribunal ought to have understood the applicant's representations to assert that a consequence of not revoking the cancellation decision would be that he must be returned to his home country in circumstances that would give rise to a breach by Australia of its non-refoulement obligations under international law.
30 The second question is whether the Tribunal treated the subject of Australia's non-refoulement obligations as synonymous with the applicant's fulfilment of the criterion for a protection visa. That is a question of fact turning upon the interpretation of the Tribunal's reasons.
31 The third question is whether by treating the concepts as synonymous the Tribunal failed to give genuine consideration to, and intellectually engage with, a reason advanced by the applicant for revoking the cancellation decision.
32 The fourth question is whether any such error was material and so properly characterised as jurisdictional.
33 Each of these questions is to be answered in the affirmative.
34 After judgment on this application was reserved, the Full Court delivered judgment on appeal from the decision of Steward J in Ali v Minister for Home Affairs [2019] FCA 1900 (Ali at first instance), which also concerned the exercise of the power conferred by s 501CA(4): see Ali v Minister for Home Affairs [2020] FCAFC 109 (Collier, Reeves and Derrington JJ).
35 On that appeal it was argued that the Minister committed jurisdictional error by concluding that the issue of Australia's non-refoulement obligations would be treated in the same way for the purposes of s 501CA(4) as it would be on an application for a protection visa under s 65, such that it was permissible to defer consideration of those obligations until any subsequent consideration of the protection visa application. In rejecting that ground, the primary judge had cited and applied the decision of Robertson J in DOB18.
36 On appeal it was also argued that the Minister had committed jurisdictional error by "failing to consider Australia's non-refoulement obligations and additionally or alternatively, wrongly assuming that they would be considered on an application for a protection visa".
37 The Full Court said that although s 501CA(4) did not expressly pre-condition the Minister's power with a requirement that the Minister consider the representations made by a former visa holder under s 501CA(3) of the Act, such a requirement arose by necessary implication (at [44]). That proposition finds support in a body of authority to which the Full Court referred (at [45] - [49]): GBV18 v Minister for Home Affairs [2020] FCAFC 17; Hernandez v Minister for Home Affairs [2020] FCA 415; DQM18 v Minister for Home Affairs [2020] FCAFC 110. See also Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [36(d)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).
38 It would follow, the Full Court said, that a failure to "consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind" pre-conditioning the exercise of the power (at [45]). See also Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [72] (Colvin J).
39 The Full Court considered in detail the same labyrinth of authority referred to in submissions before me: at [50] - [85]. See BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; Omar v Minister for Home Affairs [2019] FCA 279; DOB18; Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389; DGI19 v Minister for Home Affairs [2019] FCA 1867; GBV18; Hernandez; Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557.
40 The Full Court said (at [86]):
As the above authorities show, matters of this nature can be factually idiosyncratic such that it is essential to ascertain the nature and scope of the grounds advanced to the Minister in the representations made in response to the invitation given under s 501CA(3)(b).
41 The Full Court said that the prospect of Australia acting in breach of its non-refoulement obligations under several international treaties had undoubtedly been raised by Mr Ali as "another reason" to revoke the cancellation of his visa. The Court continued:
90 Recently, in BHL19(FC), Wigney J (albeit in dissent in the result) identified the source of Australia's non-refoulement obligations as follows at [224]:
Second, the Minister also accepted that because Australia owed the appellant protection obligations on account of his well-founded fear of persecution, Australia would breach its international non-refoulement obligations if the appellant was returned to Syria. Though the Minister did not explain exactly what those international non-refoulement obligations were, they are principally derived from a number of international conventions to which Australia is a party: the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia on 13 August 1980. One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly.
91 His Honour's comment in the last sentence emphasised that the consequence of non-compliance with Australia's treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia's reputation and standing in the global community. This point was also recognised by Charlesworth J in Hernandez (at [63]):
Had the Minister determined that Australia owed non-refoulement obligations to Mr Hernandez, that would be a factor capable of weighing in favour of revocation of the cancellation decision in the exercise of the discretionary power conferred by s 501CA(4). The existence of the obligation is clearly capable of furnishing 'another reason' why the cancellation decision should be revoked. At the very least, it would be open to the Minister to conclude that Australia's reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia's obligations under international law. Accordingly, meaningful consideration of the issue may have made a difference to the ultimate outcome.
92 It was also very properly acknowledged by Mr Hill for the Assistant Minister that Australia's international obligations of non-refoulement extend to a wider range of persons than those who are eligible for a protection visa by reason of s 36(2)(a) and (aa). That concession was consistent with the authorities which have been referred to above.
42 The Full Court extracted (at [93]) a passage from the Minister's reasons in which the Minister concluded that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant because he was able to make a valid application for a protection visa "in which case the existence or otherwise of non-refoulement obligations would be more fully considered in the course of processing the application".
43 The Full Court then turned to consider whether the Minister had failed to give real and genuine consideration and intellectual attention to the representations Mr Ali had made about Australia's non-refoulement obligations. The Full Court rejected the Minister's contention that the duty to consider the representations would be discharged if consideration were given to the factual claims giving rise to Mr Ali's claimed fear of harm. The Full Court declined to adopt the reasoning of Robertson J in DOB18, on the basis that his Honour's decision was "peculiar to the statutory framework," it being a case concerning the power conferred by s 501BA of the Act, and not the power conferred by s 501CA(4). In addition, the Full Court said, the applicant in DOB18 had not in fact raised the issue of Australia's non-compliance with its international treaty obligations as a discrete matter for the Minister's consideration (at [97] and [99]).
44 The Full Court went on to summarise and reject a submission advanced on behalf of the Minister in defence of the decision in Ali at first instance. It is convenient to extract that part of the Full Court's reasons for judgment in full:
100 The Minister also submitted that the consequence of not making the revocation decision is not necessarily the appellant's return to Ethiopia as there exists the opportunity for the appellant to make an application for a protection visa and for that reason there was no need to consider the issue under s 501CA(4). It was submitted that what the Assistant Minister was effectively saying in his reasons was that, 'My decision will not lead to a breach of international obligations. I predict that because there's a right to apply for a protection visa where these issues will be revisited.' This, it was said was 'not to ignore, but is to substantively respond to the claimed breach of international law.'
101 That submission involves a not insignificant degree of sophistry and an attempted reconstruction of the Assistant Minister's actual reasons. It should be rejected. In this case the appellant's partner visa had been cancelled and he had advanced, as a ground for the purposes of s 501CA(4)(b)(ii), the potential breach of Australia's non-refoulement obligations if the cancellation were not revoked. If the Assistant Minister formed a state of mind that this ground amounted to 'another reason' within that section, the power to revoke the cancellation of the partner visa would be enlivened. No question of the granting of a protection visa arose. Although the ground advanced in support of revocation contains some hypothetical elements to it, including what is likely to happen if the revocation decision is not made, it cannot be ignored. Nor can it be sidestepped by raising another hypothetical proposition that a protection visa application might be made and that the non-refoulement obligations and the consequences of non-compliance with them might be dealt with then. This issue is most acute in this case where the factual findings made by the Assistant Minister were, effectively, that the appellant would be persecuted and face serious physical harm and, perhaps, death if returned to Ethiopia. That conclusion heightened the likelihood that non-refoulement obligations would be owed in respect of him and therefore removed some of the conjecture around that issue. That is not to say that the Minister could not properly take into consideration a ground which involved a hypothetical scenario by assessing the likelihood of its occurrence. However, that was not done in this case and, in any event, a real and genuine consideration would require some degree of analysis of the probability of the occurrence of future events.
45 The Full Court concluded that the Minister's omissions constituted a failure to comply with the requirements of s 501CA(4), namely the requirement that the Minister form the state of satisfaction required by s 501CA(4)(b) lawfully. The lawful exercise of the power required that the Minister consider and engage with the submissions. The Minister was "not entitled to 'carve off' a consideration of them for possible examination at a later stage and his attempt to do so constituted a reviewable error" (at [103]).
46 Following the delivery of judgment on appeal in Ali, counsel for the Minister reverted to arguments based on the reasoning in DOB18 and Ali at first instance. Counsel advanced the following supplementary submission:
17. The Minister accepts that this alternative argument is contrary to the reasoning on ground 1 in Ali (FC): see [7] above. However, the Minister submits that the Full Court's reasons for distinguishing DOB18 (FC) are, with respect, wrongly decided.
17.1. Ali (FC) states that the issue of Australia's non-refoulement obligations was not raised in DOB18 (FC) (Ali (FC) at [71]), and therefore (it was said) DOB18 (FC) did not answer whether the Assistant Minister was required to consider non-refoulement obligations (Ali (FC) at [99]).
17.2. However, it is plain from the reasons set out by Robertson J in DOB18 (FC) at [106] (see especially paras 75-78 of those reasons) that the appellant had raised non-refoulement obligations, albeit in earlier stage of the decision-making process. Robertson J (with Logan J agreeing) held that it would have been an error for the Minister not to consider those claims: DOB18 (FC) at [184]. However, there was no jurisdictional error because the Minister had considered the underlying claims to fear harm: DOB18 (FC) at [193].
47 It is unclear what the Court (constituted as it is of a single judge) is invited to do with this submission. The Full Court in Ali distinguished DOB18. Whether it was wrong to do so is not for me to decide. I am bound to apply the principles of construction stated by the Full Court, subject to identifying anything in the statutory context that might justify a different course.
48 It is to be recalled that Ali was a judgment given on appeal from orders dismissing an application for judicial review of a decision that had been made personally by the Minister under s 501CA(4). The Tribunal has no power to review such a decision.
49 The decision presently under judicial review is a decision of the Tribunal made in the exercise of its powers of merits review under s 500 of the Act. As has been observed, in determining whether to affirm the delegate's decision not to revoke the cancellation decision under s 501CA(4), the same limitations on that power applied. I am satisfied that the reasoning in Ali applies to the present statutory context.
50 Apart from the obligation to consider representations made in response to the invitation given under s 501CA(3)(b), to my mind there are other lines of reasoning by which it might be said that the Tribunal was obliged to have regard to Australia's refoulement obligations under international law as a discrete consideration in the present case.
51 The Tribunal was required to engage with the representations that had been made to the delegate in 2018 and with the written and oral submissions that were advanced by the applicant in his statement of facts, issues and contentions. It might be said that the statement of facts, issues and contentions constituted further representations to the decision-maker for the purposes of s 501CA(3) of the Act and that they fell to be interpreted together with the submissions made in June 2018 as a single submission. However, in my view it is more correct to say that the Tribunal had an obligation to consider the statement of facts, issues and contentions and the oral submissions advanced by the applicant because the conduct of a hearing (at which the applicant was entitled to adduce evidence and make submissions) was an essential pre-condition to the exercise of the Tribunal's power to affirm the Minister's decision under s 43 of the AAT Act.
52 In addition, it seems to me that the obligation to consider Australia's international non-refoulement obligations arose because of the combined effect of s 499 and Direction 79. Together, they imposed an obligation that the Tribunal consider Australia's international law obligations "where relevant". The relevance of those obligations in the present case could not have been doubted. These alternative sources of the obligation to consider the issue of Australia's obligations under international law were not the subject of submissions before me and I express no concluded view about them. It is sufficient to say that the basis for identifying an obligation in the Tribunal to consider the issue in the present case appears to be even stronger than that identified in the statutory context of Ali, and that the principles stated in Ali resolve the questions of law arising on the first ground of appeal.
53 Turning now to questions of fact, I am satisfied that the applicant in this case did articulate the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision, in addition to, and as distinct from, his underlying claimed fear of harm. The applicant and the Minister were both represented in the proceedings before the Tribunal. As can be seen from the extracts at [22] and [23] above, the content of the Tribunal's obligation to consider and decide questions concerning Australia's international obligations was the subject of some contest in the submissions before it. The applicant's representations went beyond a claim to fear harm or to fulfil the criteria for a protection visa. He expressly submitted that a consequence of the non-revocation decision would be his removal to Afghanistan in breach of those obligations. By his lawyers, the applicant complained that the Minister's delegate had not engaged with that question. He specifically drew the Tribunal's attention to the authorities (as they then stood) concerning the nature and extent of the Tribunals' obligation to genuinely engage with the question, to decide it and to weigh its conclusions about it in the final balance.
54 On this appeal, the Minister did not contend that the applicant's submissions to the Tribunal concerning the prospect of indefinite detention could be a proper basis for concluding that the applicant had made no submission to the effect that Australia would be in breach of its international law obligations if he were to be removed in accordance with s 198 of the Act.
55 It remains to consider whether the Tribunal failed to consider "as a separate and distinct consideration weighing in favour of revocation, the risk that Australia would find itself in breach of its international non-refoulement legal obligation" as alleged at [1(d)] of the amended originating application and whether any such error was material. It is necessary to set out the relevant portions of the Tribunal's reasons in full:
83. The concerns raised that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm. In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant, including the impact of harm which does not engage Australia's non-refoulement obligations.
International non-refoulement obligations
84. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
85. The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was 'another reason' why the original decision should be revoked. I am required to properly consider the claims being made and the factual material being relied upon by the applicant.
86. The applicant contends that he would face harm if returned to Afghanistan and that the Tribunal needs to consider Australia's international non-refoulement obligations.
…
89. Whilst I am satisfied that I do not fall into jurisdictional error by deferring the consideration on non-refoulement obligations until the determination of any application for a protection visa, the recent decision in Minister for Home Affairs v Omar means that I must give consideration to such claims raised by the applicant. I note and adopt the respondent's submission that the appropriate course is for the Tribunal to consider whether the existence of non-refoulement obligations is 'another reason' for revoking the cancellation decision. In any event, I am not released from 'considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia's non-refoulement obligations".
…
91. The applicant has made a number of claims in expressing fear of harm if returned to Afghanistan.
92. First, the applicant and his family migrated to Australian through the Humanitarian Program. To be eligible for that program, the primary applicant (ie the applicant's father) had to demonstrate that he was subject to substantial discrimination, amounting to gross violation of human rights in his home country and is living in a country other than his home country. These claims were accepted and the applicant submits that they extend to him.
93. Second, the applicant expressed a fear of persecution upon return to Afghanistan on the basis that he is a Shi'a Muslim of Hazara ethnicity.
94. Third, the applicant also expressed fear of harm as a returnee. The applicant claims that the fact he has been living in a western country places a target on his back. He says he will not fit into the Afghan society and that people would be able to see this. He says that because he did not grow up in Afghanistan he has a different accent which would identify him. He has a specific fear of being harmed by those who harmed his father.
95. In evidence, the applicant said he fears the Taliban if returned to Afghanistan because his father was stabbed, assaulted and persecuted when he had returned there. He said he fears persecution on the basis that it is not a safe place, he has no connections or family/friends there, he does not know where he can go to live, he has never resided in Afghanistan, and he would be easily identified due to his accent.
96. The applicant was not cross examined with respect to these claims and I have no reason to doubt them. The general claims are supported by the most recent DFAT Country Information Report on Afghanistan dated 27 June 2019 (DFAT report).
…
100. I accept that the applicant is owed non-refoulement obligations and that there is a real risk of harm if the applicant returns to Afghanistan.
101. I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant's visa, bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur: s 198 of the Act. However, it is relevant also that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A of the Act. Further, the applicant would not be liable to be removed in the event he applied for, and was granted, a protection visa.
…
103. Given that the legal consequence is that the applicant would be returned to Afghanistan, subject to any successful Protection visa application, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation but I note that the applicant has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored. I accept that regardless of whether the applicant's claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and poverty in the event that he were to return to Afghanistan.
…
127. The most significant, in terms of weight, of the other considerations are the international non-refoulement obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan. The applicant has no links with Afghanistan because he has never lived there and has no remaining family there. As a Shi'a of Hazara ethnicity, he will face persecution and his life may well be endangered. I note that the applicant is a single man aged 23 years old and with no children. I also note that the outcome of being returned to Afghanistan is not certain, nor is it an immediate consequence of non-revocation, because the applicant still has the opportunity of applying for a Protection visa. I should not speculate as to what might or might not occur in future decision-making.
(footnotes omitted)
56 When read in isolation, some of the above passages tend to indicate that the Tribunal appreciated that there was a conceptual difference between the factual claims giving rise to the applicant's fear of harm and the international law obligations that may be breached in the event that the factual claims were accepted but the applicant nonetheless returned to Afghanistan. However, when read as a whole, and having particular regard to [103], the Tribunal's reasoning compels the conclusion that it failed to properly distinguish between the two concepts in the way it was required to do in the circumstances of the present case. The consequence of that error is that the Tribunal failed to grapple with and decide the question of whether breach by Australia of its international law obligation was a reason to revoke the cancellation decision in the discretionary exercise of the power conferred by s 501CA(4). The Tribunal avoided the question because it assumed (erroneously) that a breach by Australia of its international law obligations might be avoided by the decision-maker on a future protection visa application, such that the applicant would be in no worse position than he otherwise would be if the Tribunal decided for itself the existence of the obligation and the consequences for Australia of its breach. That is what the Tribunal should be understood to mean when it said that Australia's non-refoulement obligations would be "more fully explored" in the event that the applicant applied for a protection visa. It is also what it should be understood to mean when it said that removal of the applicant to Afghanistan in breach of Australia's international law obligations would not be an "immediate" consequence of its decision.
57 The Tribunal's reasoning was wrong-footed for at least four related reasons.
58 First, whilst it is true that the factual claims of feared harm could be more fully explored on a protection visa application, as has been explained earlier in these reasons, there is no reason for a decision-maker under s 65 to "fully explore" the question of whether or not Australia owes non-refoulement obligations (as that term is defined in the Act) to the visa applicant. The visa application process does not call for a full exploration of Australia's international obligations under international law. Rather, it calls for a binary assessment of whether the visa criteria are or are not met.
59 Second, even if the question were to be "fully explored" by another decision-maker on a protection visa application, the nature of the power conferred by s 65 of the Act is such that the existence of non-refoulement obligations (as defined) could make no difference to the outcome. On a protection visa application, the applicant would either fulfil every one of the visa criteria (not being limited to the criteria in s 36(2)) or he would not. If not, then the mandated consequence would be a decision under s 65(1)(b) to refuse to grant the protection visa irrespective of whether the applicant is a person in respect of whom Australia owes international law obligations. In that mandated event, the removal of the applicant to Afghanistan would also be mandated, irrespective of the existence of the obligation: Act, s 197C. All of that is to be contrasted with the evaluative exercise to be performed under s 501CA(4), being a statutory context in which the prospect of Australia being in breach of its obligations under international law may be considered as a factor weighing in favour of the exercise of the power in the applicant's favour.
60 Third, to the extent that the Tribunal appreciated that the removal of the applicant to Afghanistan might occur in breach of Australia's obligations under international law, the Tribunal's focus was on the consequence of that breach for the applicant. No consideration is given to the consequences of the breach for Australia as a discrete reason for revoking the cancellation decision, further evidencing some confusion between the concepts on the Tribunal's part.
61 Fourth, it was not to the point that removal of the applicant to Afghanistan would not be an "immediate consequence" of the decision under s 501CA(4) merely because the applicant could apply for a protection visa. The consequences of the breach (both for the applicant and for Australia) are the same, whether they arise immediately or following after another course of decision-making. Given the Tribunal's factual findings both as to the risk and nature of harm feared by the applicant and the seriousness of his criminal offending, the deferral of the question of international law obligations could not be justified by shirking any "speculation" as to how any protection visa application might play out. That is because (as explained above) the protection visa application must be refused if s 501 of the Act would prevent the grant: Act, s 65(1)(a)(iii), s 65(1)(b). It is difficult to comprehend how s 501 of the Act would not prevent the grant of a protection visa, given that any such visa must be cancelled in the mandatory exercise of the power under s 501(3A).
62 The Minister did not submit on this application that the factor (if raised for consideration) was irrelevant, nor was it submitted that proper consideration of it by the Tribunal could not possibly have affected the outcome of the exercise of the power in question, namely that conferred by s 501CA(4). The errors are material and so properly characterised as jurisdictional: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] (Kiefel CJ, Gageler and Keane JJ).
63 The application for judicial review will be allowed on this basis.