The applicant's case
74 The applicant's submissions, advanced orally at the hearing, were difficult to follow, to say the least. His written submissions were no easier to follow. However, as I understand them, the substance of the applicant's submissions, presented at the hearing (both orally and in writing), were as follows.
75 The applicant submitted that it is unlikely that a future protection visa application by him will not be decided on character grounds, with the consequence that it is unlikely that the Minister or his delegate will consider whether Australia owes non-refoulement obligations to him. Therefore, according to the applicant, the Minister's assumption that Australia's non-refoulement obligations to him would be considered as part of any application he might make for a protection visa is wrong in fact and law. The applicant submitted that, in fact, the Minister should have assumed that, in the applicant's case, it is unlikely that non-refoulement obligations would be considered ahead of character considerations.
76 In support of this submission, the applicant relied on the Full Court's decision in BCR16, particularly on the majority reasons at [44], [48] - [49], [52], [60], and [67] - [69]. However, in almost the same breath, the applicant volunteered that his case was distinguishable from BCR16 given the application, in the present case, of Direction 75 (should the applicant apply for a protection visa and should that application be determined by a delegate of the Minister).
77 Direction 75 was made by the Minister to address the very concern raised by the majority in BCR16 (that non-refoulement considerations might not be considered ahead of character considerations in any subsequent application for a protection visa). Thus, the first matter to note when considering the applicant's submissions on this aspect of his case is that there is no dispute that his case is distinguishable from BCR16. The same point of distinction was recognised by Flick J in Ali. It is convenient to quote in full his Honour's analysis in this regard:
28 At the end of the day, the decision sought to be reviewed in the present proceeding is the decision made on 25 October 2017 to not exercise the power conferred by s 501CA(4) to revoke the original decision. That decision‐making process relevantly required a state of satisfaction to be formed - not as to whether a person satisfied the criteria prescribed by s 36(2) - but a state of satisfaction as to whether "there is another reason why the original decision should be revoked" for the purposes of s 501CA(4)(b)(ii).
29 To the extent that the Applicant raised claims for consideration in the submission made on 31 October 2016 - and, more specifically, the submission that he claimed to fear persecution and that his return to Afghanistan would be contrary to "Australia's obligations under the non‐refoulement principle" - that was a submission which was addressed when making the decision on 25 October 2017. The Assistant Minister considered it "unnecessary to determine whether non‐refoulement obligations are owed".
30 To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non‐refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75.
31 To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether:
• that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or
• the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia.
The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia's international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, "it is irrelevant whether Australia has non‐refoulement obligations in respect of an unlawful non‐citizen".
32 The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia's international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.
33 But these are all decisions to be made and - if necessary - reviewed at some point of time in the future. The prospect that future decision‐making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised - and was in fact exercised - by reference to the facts and circumstances then prevailing.
34 Of present concern is the fact that the reasoning process of the Assistant Minister in respect to the decision now under review exposes no misunderstanding as to the power then being exercised. That reasoning process exposes no misunderstanding as to:
• the sequence in which claims would be resolved in accordance with Direction No 75.
Nor does the reasoning process expose any misunderstanding, or even say anything with respect to:
• the manner in which any future applications may be resolved or the decisions which may be made by the Minister if called upon to do so.
78 As I have noted, this reasoning has been accepted and applied at first instance in Greene, Turay, BKS18, DOB18 and Sowa. I also note that similar reasoning was applied in FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 at [31] - [33], although reference was not made in that case to Ali or to the other cases that have followed it. In DOB18 (at first instance), Griffiths J expressed the view that the reasoning in Ali was "plainly correct".
79 In the present case the applicant advanced the converse proposition. He submitted that all these cases were "plainly wrong" and should not be followed.
80 I do not accept that submission. Importantly, the appeals in DOB18 and Sowa have now been heard and dismissed. As I have noted, in DOB18 (on appeal) Robertson J (at [193], with whom Logan J at ([38] expressed agreement) did not accept that it was a jurisdictional error in all circumstances for the Minister to reason that consideration of whether non-refoulement obligations are owed can be deferred for full consideration to another occasion - namely, in the course of processing a valid application for a protection visa. Of course, this finding was accompanied by a critical rider: even though it was not a jurisdictional error to defer consideration of whether Australia's non-refoulement obligations were engaged, completion of the Minister's statutory task still required the Minister to address the underlying claim of harm that the non-citizen had made.
81 This conclusion was expressed in respect of a decision under s 501BA, not s 501CA; but it seems to me that the same reasoning must apply when considering whether, under s 501CA(4)(b)(ii), there is "another reason" why the original cancellation decision should be revoked.
82 What is of particular importance is the fact that, in the present case, as in DOB18, the Minister did proceed to consider the applicant's claim to fear harm. The applicant does not contend that the Minister did not give meaningful consideration to this claim. The Minister accepted that, if returned to Sudan, the applicant would face hardship arising from war and instability, as well as other forms of hardship, which the Minister characterised as, cumulatively, "significant". What the Minister did not do was reach a view on the discrete question of whether the applicant's claims engaged Australia's non-refoulement obligations.
83 As regards Sowa, I repeat my earlier observations that the expression of the Assistant Minister's reasons in that case is very similar to the expression of the Minister's reasons, on the same subject, in the present case. Further, the grounds of judicial review raised in Sowa in respect of the Assistant Minister's treatment of claims of non-refoulement reflect, substantially, the grounds agitated by the applicant here. The Full Court did not find error in Griffith J's reasoning and conclusions, and otherwise distinguished Mortimer J's decision at first instance in Omar.
84 For completeness, I record that, in conjunction with this ground of review, the applicant also submitted that it was a jurisdictional error for the Minister to fail to consider expressly the operation of s 189 of the Act (which requires the detention of an unlawful non-citizen who is in the migration zone) and s 196 of the Act (which requires that a person be kept in immigration detention until removed from Australia or granted a visa). The applicant submitted that the combined operation of these provisions meant that the applicant could face indefinite immigration detention under the Act. The applicant also submitted that it was a jurisdictional error for the Minister to fail to consider expressly the operation of s 198 of the Act (which would require the applicant to be removed from Australia as soon as practicable) given the effect of s 197C of the Act (which provides that, for the purposes of s 198 of the Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen).
85 The applicant did not venture to suggest how, in the present case, these two submissions can stand side-by-side. Moreover, for the reasons given by Barker J in BKS18 at [97] - [101], the argument that the applicant could face indefinite detention is flawed because, now, s 197C operates to require an unlawful non-citizen to be removed from Australia, subject only to the Minister considering "alternative management options": DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576; NKWF v Minister for Immigration and Border Protection [2018] FCA 409; AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. It is not necessary, however, for me to dwell further on this facet of the appellant's submissions because the significance, if any, of these provisions is a matter for consideration at a later stage of decision-making, as explained in the passages from Ali which I have quoted at [77] above.
86 In his additional written submissions filed pursuant to the Court's invitation after the appeal judgments in DOB18 and Sowa had been given, the applicant submitted that the outcomes in DOB18, Sowa and Omar depended on each case's individual and legal circumstances, particularly in relation to the representations made by each applicant. The applicant submitted that in his representations to the Minister he specifically stated that, if returned to Sudan, he would be at risk of being forced into a rebels' faction militia. The applicant submitted that, having regard to the fact that he made his representations without legal assistance, this particular representation should be understood as raising the question of Australia's non-refoulement obligations to him in relation to potential harm he might suffer as a member of a particular social group. I note in this connection that the applicant also made an explicit claim for asylum: see [18] above.
87 The applicant submitted that Mortimer J's decision in Omar should be followed in the present case because of the similarity in the way in which the Minister's/Assistant Minister's reasons had been expressed in both cases; that the judgment of the Full Court in Sowa is not directly applicable because the nature and scope of the representations made by the appellant in that case were different to those made by the applicant here; and that the majority reasons in DOB18 are not directly applicable because, in that case, a different statutory provision was under consideration. The applicant submitted further that, in DOB18, Robertson J erred at [169] when addressing the evidential onus borne by an applicant seeking to challenge the likely course of decision-making by the Minister personally (as opposed to one of the Minister's delegates) on the question of non-refoulement: see [40] above. The obvious difficulty with this particular submission is that it is directed to challenging, as it happens, a majority finding in the appellate jurisdiction of the Court. Quite apart from that, in the present case the Minister takes no such evidential point in any event. This particular submission can, therefore, be put to one side.
88 In response, the Minister submitted that, contrary to the applicant's position, the approach of the Minister to Australia's non-refoulement obligations in the present case was in materially identical terms to the approach of the Assistant Minister in Sowa. The Minister submitted that the present case is, for the reasons expressed by the Full Court in Sowa, distinguishable from Omar. The Minister submitted further that, in the present case, the applicant is trying to recast the representations he actually made in response to the invitation given by the Minister under s 501CA(3)(b) of the Act, as the applicant in Sowa had attempted to do, and that this should not be permitted. He characterised the present case as being "on all fours" with Sowa, or at least "materially indistinguishable" from Sowa, and distinguishable from Omar.
89 It is true that, in his representations to the Minister, the applicant did not explicitly raise the issue of non-refoulement obligations, as the applicant in Omar had done. It is also true, as I have previously said, that the Minister in the present case expressed his reasons in terms closely similar to the terms expressed by the Assistant Minister in Sowa. Indeed, I would accept that, in relevant respects, the reasoning in each case is "materially indistinguishable", as the Minister has submitted. Nonetheless, in the present case the Minister clearly understood that the applicant was making a claim that Australia owed him non-refoulement obligations. If this were not so, it is difficult to understand why the Minister specifically directed his attention to international non-refoulement obligations in [13] - [17] of his reasons, and why, in [18] of his reasons, he directed his attention to the applicant's claims of harm "outside of the concept of non-refoulement and the international obligations framework". Thus, although there are factual differences between the present case and Omar, the fact remains that, in each case, it was accepted that representations were made that Australia owed the applicant in question non-refoulement obligations. However, the same was also true in DOB18 and in Ali and the other cases which followed it. In Sowa, the Assistant Minister appears to have taken on board the possibility that Australia's non-refoulement obligations might be engaged, in light of the representations that were made. The appeal in Omar was dismissed without deciding whether the primary judge erred in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application. The other cases were decided on the basis that it was not necessarily a jurisdictional error for the Minister or Assistant Minister to defer consideration of that question to that other time. At the appellate level, this is most clearly seen in DOB18, although it is also the case in Sowa. As I have said, I propose to follow the majority reasoning in DOB18.