GBV18 v Minister for Home Affairs

1. The appeal be allowed.
2. The orders of the Court dated 29 July 2019 be set aside.
3. The decision dated 31 October 2018 of the Administrative Appeals Tribunal be set aside.
4. The application for review be remitted to the Administrative Appeals Tribunal for reconsideration according to law.
5. The first respondent to pay the appellant's cost of the proceeding below as well as of the appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellant appeals from the whole of the judgment of a Judge of the Court, which is reported as GBV18 v Minister for Home Affairs [2019] FCA 1132. The primary judge dismissed the appellant's application for judicial review of a decision dated 31 October 2018 of the Administrative Appeals Tribunal (AAT). The AAT affirmed a Ministerial delegate's decision under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the appellant's visa. 2 The key issues raised by the notice of appeal are as follows: (a) Whether the primary judge erred in not finding that the AAT had fallen into jurisdictional error because it failed to consider the appellant's representations and evidence in support of revocation by reference to the more generalised protection under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (grounds 1 and 2). (b) Whether the primary judge erred in not holding that the AAT had made a jurisdictional error by failing to consider various matters (including evidence), raised by the appellant in his representations made under s 501CA(3) as providing a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia's non-refoulement obligations (ground 3). (c) Whether the primary judge erred in finding that the AAT did not fail to carry out its statutory task by misunderstanding the Act or its operation, with particular reference to the AAT's reasoning at [127] of its reasons for decision where it said that, in the event that the appellant applied for a protection visa, his non-refoulement claims "must be comprehensively assessed". This ground raises the issue of whether Direction No. 75 reversed the effect of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 (ground 4). 3 For reasons which will shortly emerge, it is unnecessary to determine grounds 1, 2 and 4 because the appeal should be allowed on the basis of ground 3. In broad terms, this is consistent with the approach taken recently by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569. It should be emphasised that the primary judge here did not have the benefit of the Full Court's reasons for judgment in Omar when his Honour delivered his reasons for judgment in this matter on 29 July 2019.

Summary of background facts 4 The appellant is a national of South Sudan. He arrived in Australia on 15 December 2004 at the age of 12 holding a visa issued under Australia's "Special Humanitarian Programme". Before he came to Australia, the appellant lived for many years in several camps for internally-displaced people in South Sudan and then in a refugee camp in Kenya. He is now 28 years old. 5 The appellant's visa was cancelled on 28 November 2016 under s 501(3A) of the Act. The appellant does not dispute that he has a substantial criminal record within the meaning of the relevant statutory provisions. On 7 December 2016, the appellant asked that the visa cancellation decision be revoked. Over approximately the next 12 month period, various submissions were made on the appellant's behalf by two different legal representatives, who also provided material in support of his revocation request. We will elaborate upon the relevant parts of this material below, as they are central to ground 3. 6 On 7 August 2018, the Minister's delegate decided not to revoke the cancellation decision. 7 As noted, afterwards the appellant sought a review of that decision in the AAT and the AAT affirmed the delegate's decision on 31 October 2018. We elaborate upon relevant parts of the AAT's reasons below. 8 On 29 July 2019, the primary judge dismissed the appellant's amended originating application for judicial review of the AAT's decision.

(a) Appellant's representations concerning risk of harm in South Sudan summarised 9 The resolution of ground 3 turns in large measure on the extent to which the appellant raised his risk of harm if he were returned to South Sudan, independently of any non-refoulement obligations, as being "another reason" for revoking the visa cancellation decision and whether the AAT adequately addressed the issue in the relevant legal sense. The following matters relating to the material submitted by the appellant, or on his behalf, are relevant to assessing that issue (while acknowledging that a range of other matters were also raised by or on behalf of the appellant in support of his revocation request): (a) In his application dated 7 December 2016 seeking revocation of the mandatory cancellation decision the appellant wrote in his handwriting (without alteration): South Sudan is still in war and a huge violation of human rights abuse, e.g. torturing, raping, child suicides and killing of innocence people. The appellant added that he was scared of human rights abuses, such as "rape, kill, child soldiers and [illegible] assault". Moreover, he said that South Sudan was "extremely unsafe". (b) By a letter dated 17 January 2017, the applicant made various submissions in support of his request for revocation including a claim that, with South Sudan being a third world developing country, he believed that he would become destitute if he returned there and that there was "a real possibility of being targeted by rebel soldiers". (c) By a letter dated 7 April 2017, Victoria Legal Aid (VLA) (who were then acting for the appellant) made submissions to the Department in support of the revocation request. The submissions included the following material which is relevant to ground 3 (without footnotes but otherwise without alteration): International Non-Refoulment Obligations Under international treaties to which Australia is a party it is accepted that there is an obligation not to refoule a person to a country where they face a real chance of being seriously or significantly harmed for specific Convention reasons. Paragraph 14.1 of Direction 65 specifically requires that a decision maker consider the existence of any non-refoulement obligations in coming to a decision about an individual's revocation request. It is not necessary that the person positively raise non-refoulement where those claims are "clear from the facts of the case". The relevant legal test under Australian law as to whether the future risk of serious harm is well founded is whether there exists a "real chance" of persecution for a Convention related reason. A "real chance" is one that is not based on mere speculation or that is not remote, but rather, has a real and substantial basis. [The appellant] is a member of the Dinka ethnic groups, which is one of the indigenous ethnic communities of South Sudan. Thus he would be eligible to be grated South Sudanese Nationality. We note that since 2013 South Sudan has been experiencing civil war with widespread human rights violations accompanying that conflict. In the recent UN Human Rights Council 'Report of the Commission on Human Rights in South Sudan' covering the period July 2016 to February 2017 the following concerns were noted: • The conduct of all parties to the conflict suggested deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing). Including killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting. • The displacement of an estimated 1.5 million South Sudanese refugees to neighbouring counties, and a further 2 million internally displaced people within South Sudan. • Unprecedented levels of hunger, caused by the combination of disease, protracted instability, escalation of conflict and widespread destruction. Food insecurity was expected to reach massive proportions in 2017. It was expected that 5.5 million people (47% of the population) would become severely food insecure between February and April 2017. • A cholera outbreak for the third consecutive year. • Severe restrictions on the enjoyment of fundamental freedoms and civil liberties including reports of people who had been arbitrarily arrested, detained, tortured or subjected to inhuman or degrading treatment after having expressed criticism of the Government. … Other Harm It is submitted that the entirety of [the appellant's] circumstances could not be met by him applying for a protection visa. It is incumbent on the decision maker to consider the scope of harm and whether a future protection visa application would address his circumstances as a whole. While noting the decision of Li, it is submitted that the decision maker must consider the harm that [the appellant's] fears that cannot be dealt with by a protection visa. It is submitted that [the appellant] would suffer harm that would not be considered in any protection visa application, including separation from family, compounding of refugee trauma, the inability to access social, medical and economic support, the inability to find work and survive in a country that is currently experiencing instability, famine and violence. Further, we submit that the grief and trauma that his family members would experience would not be considered in any future protection visa application. This is particularly important given the young age of his children. … Extent of impediments if removed Given the available country information and the matters referred to above, we submit that the impediments [the appellant] will face if forcibly returned to South Sudan are self-evident. In contrast to the large number of family members he has in Australia, [the appellant] has had no contact with anyone in South Sudan (excluding one phone call with his father in 2015, whose current location and welfare are unknown) and would suffer from the lack of social, medical and economic support available. He has no reasonable prospect of integrating back into a community in which he has not lived in since he was 3-years-old. His capacity to find employment and sustain himself would be minimal. Compounding his lack of supports available, South Sudan is also currently suffering from ongoing civil war and extensive famine. [The appellant] has experienced significant trauma in his life. We submit that there is a real prospect that his mental and physical health would deteriorate if he was returned to South Sudan, including those related to hepatitis B, trauma and alcohol use. In support of the submission under the heading "Other Harm" that it was "incumbent on the decision-maker to consider the scope of harm and whether a future protection visa application would address his circumstances as a whole", explicit reference was made in footnote 40 to Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123. Goundar highlights the distinction between claims of harm related to non-refoulement obligations and claims of harm made independently of any such obligations. In particular, it highlights the decision-maker's duty in considering a request for revocation to give separate consideration to such a claim independently of any non-refoulement obligations. Although the VLA submissions made several references to, and summarised parts of, the UN Human Rights Council Report dated 6 March 2017 concerning South Sudan, a copy of that Report was not provided to the Department, nor was it put in evidence by any of the parties in the AAT proceeding or below. It might also be noted that a footnote to the first of the paragraphs to the VLA submissions under the heading "International Non-Refoulement Obligations" referred to the statutory definition in s 5 of the Act, which defined such obligations as, including but not being limited to, Australia's ratification of the Refugees Convention, the ICCPR and the CAT. (d) Before the appellant filed his statement of facts, issues and contentions dated 17 September 2018 (ASFIC) in the AAT, he changed his solicitors to Samuta McComber Lawyers. Relevantly, the ASFIC, stated the following concerning Australia's non-refoulement obligations and the extent of impediments if the appellant were removed to South Sudan (without footnotes but otherwise without alteration): Other Considerations … Australia's non-refoulement obligations 69. The Applicant accepts that, consistent with paragraph 14.1(4) of Direction [No.] 65, it is unnecessary for the Tribunal to determine whether non-refoulement obligations are owed to the Applicant for the purposes of determining whether the mandatory cancellation should be revoked. … Extent of impediments if removed 76. It is submitted that the Applicant would face significant detriments on his return to South Sudan, including: (a) lack of access to treatment for his diagnosed Hepatitis B; (b) a lack of social and economic support; and (c) a lack of cultural or experience living in South Sudan (given that the Applicant has never lived in South Sudan other than in the context of internally displaced persons camps and, even then, he has not lived in South Sudan since he was 3 years old). 77. It is accepted that paragraph 14.5 of [Direction No. 65] requires decision-makers to assess impediments relative to the living conditions generally available to other citizens of the country. In that sense, while the Applicant would experience a significant deterioration in living standards were he forced to return to South Sudan, that deterioration in living standards wouldn't appear to be a prescribed consideration under paragraph 14.5. 78. However, it is submitted that the deterioration in living standards the Applicant would face if forced to return to South Sudan is a relevant consideration, even if not a consideration prescribed by [Direction No. 65]. 79. It is noted that South Sudan has been in a state of civil war since 2013, resulting in: (a) ethnically motivated killings, abductions, unlawful detention and deprivation of liberty, rape and sexual violence, the burning of villages and looting; (b) the displacement of 3.5 million South Sudanese refugees; (c) unprecedented levels of hunger, with 5.5 million people being projected to be severely food insecure between February and April 2017; (d) three consecutive years of cholera outbreak; and (e) severe restrictions on the enjoyment of fundamental freedoms and civil liberties. As such, it is a foreseeable consequence of non-revocation that the Applicant would face severe hardship on his return to South Sudan. 80. In the premises, it is submitted that this consideration weighs heavily in favour of revocation. 10 The footnote to [79] of the ASFIC cited the same UN Human Rights Report which had been referred to in the earlier VLA submissions. 11 It may be noted that the various submissions made on behalf of the appellant, as well as the ASFIC, broadly adopted a similar structure to Direction No. 65 (which is entitled "Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA"). In its terms, Direction No. 65 provides general guidance for decision-makers and the principles that provide a framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation of a visa under s 501CA. It is common ground that Direction No. 65 was binding on both the Ministerial delegate and also the AAT (but not the Minister personally). 12 It is relevant to note that the pro forma application to request the revocation of a mandatory visa cancellation (which the appellant completed in this case) made express reference to Direction No. 65 and noted that any delegate must use Direction No. 65 as a guide to help them make a decision. Moreover, the pro forma stated that although the Minister did not have to use Direction No. 65, it provided "a broad indication of the types of issues he/she may take into account" and, accordingly, the person requesting revocation "may wish to address the elements of the Direction in your response". 13 Clause 14 of Direction No. 65, has a section dealing with "other considerations" (i.e. apart from "primary considerations") which must be taken into account where relevant. Clause 14(1) identified some "other considerations", including international non-refoulement obligations and the extent of impediments if removed, but it is made clear in that sub-clause that those considerations are not exhaustive. 14 In those circumstances, it is understandable that, in the AFSIC for example, the appellant's then legal representatives adopted the same structure as set out in Direction No. 65 and made submissions under headings which substantially reflected those in Direction No. 65, namely "International non-refoulement obligations" and "Extent of impediments if removed". 15 The primary judge noted at [22] of his reasons for judgment that the ASFIC was structured to address each of the relevant considerations listed in Direction No. 65.

(b) Relevant parts of the AAT's reasons for decisions summarised 16 Neither party disputed the primary judge's helpful summary of the AAT's reasons for decision at [24] to [33]. For convenience, that summary is repeated immediately below: 24. On 31 October 2018, the Tribunal affirmed the decision of the delegate not to revoke the cancellation of the applicant's Visa. 25. The Tribunal summarised the evidence before it at [26]-[79] of its reasons. Important to the Tribunal's decision was [53], in which the Tribunal recorded some of the bases on which the applicant feared returning to South Sudan: [The applicant] said he considered Australia to be his home. If returned to South Sudan he says there is nothing for him in a country he 'left when young' and which he says is 'uncivilised.' He continues to speak Dinka fluently, which is the language used by the major ethnic group of South Sudan, but has no recollection of what life is like there. He has no family or other social support, stating that he was unaware of the location of his biological father in South Sudan. Based on what [the applicant] had seen on television and what others told him, he feared any re-settlement in South Sudan. [The applicant] said he left high school in Australia during year 9 and therefore felt his prospects of getting a job if forced to leave Australia were very limited. In response to questions, [the applicant] confirmed he had never worked since arriving in Australia and had depended on social security payments like Youth Allowance and Newstart since arriving here. When asked what his fears of persecution or being forced to fight with the Army or militia in South Sudan were based on, [the applicant] said 'I have no evidence to back it up - it's what I've heard people saying.' He felt that if returned to South Sudan, people there would look at him in 'different ways - they think you have something you don't have and then you'll be killed.' In response to further questions about the basis of his fears, he said: 'being a target - this is the stuff I hear people speaking.' (Citations omitted.) 26. After setting out the relevant background and evidence, the Tribunal's reasons, like the VLA Submissions and the Applicant's Statement beforehand, followed the structure set out in Direction No. 65. The Tribunal acknowledged it was bound by Direction No. 65 (AAT Reasons at [15]), subject to any respect in which Direction No. 65 was inconsistent with the Act (AAT Reasons at [120]). 27. After considering the "primary considerations" set out in Direction No. 65, the Tribunal turned to the "other considerations" set out in that instrument. Relevant for current purposes, the Tribunal considered at [115]-[129] the relevance of Australia's international non-refoulement obligations. In doing so, the Tribunal first recognised at [115] that paragraph 14.1(1) of Direction No. 65 "refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm". The Tribunal then continued at [116]-[123] to outline the relevant material presented by the applicant, highlight the need for the Tribunal to consider Australia's non-refoulement obligations, and summarised that bases put by the applicant for his fear of harm. In particular, the Tribunal noted at [122] the matters that had been raised in paragraph 76 of the Applicant's Statement (as extracted above at [22]): OTHER CONSIDERATIONS International non-refoulement obligations … 122. [The applicant's] fears about harm arising from a possible return to South Sudan have more recently been advanced as: (a) Lack of access to treatment for his diagnosed Hepatitis B; (b) A lack of social and economic support; and (c) A lack of cultural or experience living in South Sudan (given that the Applicant has never lived in South Sudan other than in the context of internally displaced persons camps and, even then, he has not lived in South Sudan since he was 3 years old). 28. The Tribunal then considered at [125]-[129] the weight to be afforded to Australia's international non-refoulement obligations. These passages, which constitute the primary battleground between the parties in this Court, expressed the following: 125. The generally unstable situation in South Sudan is acknowledged. And, in the event that a person who has spent more than half of their life in Australia was returned there, they would undoubtedly encounter difficulties - even if they spoke Dinka as [the applicant] does. These impediments include accessing work, healthcare and other support services. Healthcare would not be of comparable quality or accessibility as services available in Australia. But general observations about the challenges confronting citizens in developing countries like South Sudan do not extend to a reliable finding about a number of the concerns expressed by [the applicant]. These include a fear of persecution, or being forcibly recruited into military or militia service and forced to fight. [The applicant's] current legal representative submitted in response to the Tribunal's questions, that there is 'some difficulty in establishing if [the applicant] is at risk of harm if returned to South Sudan,' with 'limited evidence about the precise risk of harm.' That follows from the fact [the applicant] left South Sudan at a very young age and migrated to Australia as a 12 year-old dependent of his sister. 126. It is considered [the applicant's] written and oral submissions tend to conflate potential fear of persecution with potential hardship. It is not possible on the evidence before me to identify why he might be targeted for 'human rights abuse' or persecution or torture or forced recruitment into the military or a militia. There is no evidence to support the fear he expresses for the safety of his family, who would remain in Australia. South Sudan is undoubtedly a dangerous place, but it is difficult to discern from the very general claims [the applicant] advances that specific harm in a non-refoulement sense applies to his personal circumstances. As Allsop CJ and Katzmann J held in NBMZ [v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [22], the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant: [22] The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual's personal circumstances. 127. The effect of section 501E(2) of the Act is that [the applicant] is not prevented from making a protection visa application under section 36 of the Act. Should he do so, his claims must be comprehensively assessed. Under Direction 75 a decision-maker is legally-bound to first assess any refugee claims with reference to section 36(2)(a) of the Act and any complementary protection claims with reference to section 36(2)(aa) of the Act, before considering any character or security concerns. I do not accept the submission of [the applicant's] legal representatives that 'a non-revocation decision is likely to mean that the Applicant will be permanently excluded from remaining in, or returning to Australia.' In DOB18 v Minister for Home Affairs [2018] FCA 1523], Griffiths J commented on the importance of acknowledging the different stages of decision-making under the Act. His Honour reflected with approval on recent court decisions in: Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) per Flick J; Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Greene) per Logan J and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 (Turay) per Farrell J. Griffiths J held at [35] that Ali, Greene and Turay were 'plainly correct' in properly recognising 'the need to avoid speculation as to what might or might not occur in future decision-making.' The submissions by [the applicant's] legal representatives that a 'likely' outcome of non-revocation by the Tribunal is that he is 'likely to be returned' or permanently excluded 'from remaining in, or returning to, Australia,' is premature and speculative. Such submissions assume outcomes of a protection visa claim that is yet to be submitted or determined. 128. [The applicant's] claims of harm lack specificity. He says that his fears are underpinned by what other people have told him and what he has seen on television. There is no evidence, however, about who these other people are, their specific knowledge of South Sudan, or expertise in relating risks of harm arising from [the applicant's] circumstances to Australia's non-refoulement obligations. There is no evidence, for example, why [the applicant] considers he would be forcibly recruited as a soldier, or subjected to human rights violations. 129. There is evidence before me that large numbers of South Sudanese have been displaced due to the extended civil war in that country. Although a peace agreement was recently signed between South Sudan's President Salva Kiir and main rebel leader Riek Machar, it remains to be seen whether it endures. Previous peace deals only held for a matter of months. What is clear is that South Sudan's population has relatively poor access to healthcare, which may make it difficult for [the applicant] to access the six-monthly checks for his Hepatitis B, or to access the anti-depressant recently prescribed for him, should it be considered necessary to take that medication in the longer term. The risk to [the applicant] arises in the context of South Sudan's under-developed status within the international system and potential for further conflict and societal disruption. This weighs somewhat in favour of revocation. (Citations omitted.) 29. Also relevantly, the Tribunal considered the extent of impediments to the applicant if he was removed to South Sudan at [138]-[141] of its reasons: Extent of impediments if removed 138. Paragraph 14.5(1) of the Direction states that: The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) The non-citizen's age and health; b) Whether there are substantial language or cultural barriers; and c) Any social, medical and/or economic support available to them in that country. 139. On the available country information, South Sudan's developing economy has been adversely affected by the prolonged civil war, resulting in the slow development of institutional structures, limited services and employment prospects for its citizens. It is highly probable that [the applicant] would face hardship if returned to South Sudan, potentially including homelessness, unemployment, lack of family or social support, and an inability to access depression medication if required, and the six-monthly checks required for his Hepatitis B. Although he speaks Dinka, the fact that he has lived in Australia since the age of 12 means he may also experience cultural barriers. His quality of life is likely to be substantially diminished. That said, [the applicant] is a relatively young man under 30 years of age and would have access to the services and opportunities generally available to other South Sudanese citizens. These would undoubtedly be of lesser quality than what he can access in Australia. He would also lose easy access to members of his family living in Australia, noting that [the applicant's] previous conduct and sentences of imprisonment have acted to limit that family access. 140. While I note the evidence about [the applicant's] telephone calls with his father in 2015, his father's current location and circumstances are unknown.114 Whether [the applicant] can reconnect with his father or any other relatives of friends in South Sudan also remains unknown, although his unchallenged submission is that he has no social or family ties to rely upon. I accept on the evidence that he has no meaningful relationship with his father or other relatives to rely upon if returned to South Sudan. The prospect of deterioration in [the applicant's] mental and physical health under such circumstances cannot be discounted. 141. I find that [the applicant] would have a diminished quality of life and likely face significant difficulties in making a new life for himself in South Sudan, which weighs strongly in favour of revoking the original decision to cancel his visa. (Citations omitted.) 30. After completing its consideration of the "other considerations" under Direction No. 65, the Tribunal summarised its conclusions at [143]-[148]. The Tribunal expressed at [144] that significant weight was to be placed on the "serious, violent and prolonged nature" of the applicant's offending. Moreover, the Tribunal observed in the same paragraph that the applicant has "demonstrated a persistent disregard for judicial orders and Australia's laws, committing further offences, including while on bail or probation". As a result, the Tribunal determined at [145] that "[t]he primary considerations of Protection of the Australian community and Expectations of the Australian community weigh strongly in favour of refusing to revoke the cancellation of [the applicant's] visa". 31. The Tribunal acknowledged, however, that some considerations weighed in favour of revocation. The Tribunal noted at [147] that Australia's international non-refoulement obligations and the impediments to be faced by the applicant if returned to South Sudan also pointed in favour of revocation: It is accepted that Australia's international non-refoulement obligations and the strength, nature and duration of [the applicant's] ties to Australia weigh somewhat in his favour. If he was required to return to South Sudan, [the applicant] would be confronted by significant impediments in establishing himself in a country that he last resided in as a very young child. That includes access to medical treatment, economic and social supports. He would also likely be socially isolated from his family in Australia. The impediments he would encounter weigh strongly in favour of revocation. 32. Despite this, the Tribunal concluded that, on balance, there was not "another reason" why the decision to cancel the applicant's visa should be revoked. The result of the Tribunal's weighing exercise was expressed at [148] of its reasons: I have placed all of these factors in the balance and conclude there is not 'another reason' why the decision to cancel [the applicant's] visa should be revoked. That is because the primary considerations of Protection of the Australian community and Expectations of the Australian community, outweigh the primary consideration of Best interests of minor children in Australia, and the other considerations which favour revocation. 33. The Tribunal accordingly affirmed the decision of the delegate not to revoke the mandatory cancellation of the applicant's Visa.

Relevant parts of the primary judgment summarised 17 The four grounds of appeal in the current proceeding substantially reflect the four grounds of judicial review raised by the appellant below in his amended originating application. Ground 3 argued below, which reflects ground 3 in the notice of appeal, was as follows: 3. The Tribunal failed to consider certain significant evidence or representations before it, including a recent UN report provided by the applicant, which referred inter alia to the ongoing incidence during the civil war of "deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing)", "killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting" in South Sudan. It should be noted that this ground included, but was not limited to, an alleged failure by the AAT to consider the UN Report. 18 In view of the determinative character of ground 3 in the appeal, it is unnecessary to summarise the primary judge's comprehensive reasons for rejecting grounds 1, 2 and 4. It is sufficient to focus on his Honour's reasons for rejecting ground 3 (which are set out at [141] to [165] of the reasons for judgment), to which we now turn. 19 The key relevant points which emerge from those passages relating to ground 3 below may be summarised as follows. 20 First, after noting that the AAT made no express reference to the UN Report in its reasons for decision, his Honour observed at [153] that it was necessary to compare the matters raised by the appellant with the substance of the AAT's reasoning to determine whether the AAT considered the relevant information in the UN Report, with particular regard to how the appellant said that the information should be used by the AAT. 21 Secondly, after noting that the VLA submissions dated 7 April 2017 referred to the UN Report in the context of Australia's international non-refoulement obligations, his Honour observed at [154] that it was not "precisely clear" how it was intended that the information in the UN Report be used. 22 Thirdly, after reviewing the VLA submissions, the primary judge concluded at [155] that the "probable inference" is that the aspect of the submissions where the UN Report was cited was "purporting to argue that there was a real risk that the applicant would face ethnic based targeting upon his return to South Sudan". 23 Fourthly, after noting that there was also a reference to the UN Report in the ASFIC, the primary judge noted at [156] that this was raised not in the context of Australia's international non-refoulement obligations, but in the context of the "[e]xtent of impediments" section of that document. The primary judge noted that the document included a statement that "it is a foreseeable consequence of non-revocation that the Applicant would face severe hardship on his return to South Sudan", which his Honour saw as the UN Report being used not to evidence "ethnic based targeting", but rather to evidence "severe hardship". 24 Fifthly, because of their importance in the appeal, it is desirable to set out the primary judge's reasons at [160] to [162] (without alteration): 160. It may readily be accepted that "ethnically motivated killings, abductions, unlawful detention and deprivation of liberty, rape and sexual violence, the burning of villages and looting" are of a different quality of risk than, for example, the risk of insufficient access to medication, a matter that was also of concern to the applicant. The former class of risks clearly include matters to which Australia's non-refoulement obligations are acutely concerned. However, to the extent that the finding in the UN Report was used to support the existence of ethnic based targeting, it was insufficient for the applicant to simply observe that such ethnically motivated conduct has historically occurred in the receiving country. The risk of such conduct needed to be linked to the applicant personally. 161. Considered alone, the references to ethnic violence in the UN Report only established was that such violence had occurred in South Sudan during the prolonged civil war. Although the Tribunal did not specifically reference this violence, it was clear that the Tribunal appreciated the civil war in South Sudan and the "unstable situation" it had created in that country. However, without further evidence from the applicant establishing the link between this background information and how the applicant would himself be at risk of such violence, the Tribunal could not have been expected to accentuate the ethnic violence to a greater degree in its reasons. Given that the Tribunal highlighted the absence of such evidence at [126] and [128] of its reasons, there was no compulsion for it to dwell further on the historical ethnic violence. 162. The Tribunal's statement at [128] of its reasons - that "[t]here is no evidence … why [the applicant] considers he would be forcibly recruited as a soldier, or subjected to human rights violations" - should be understood in this light. Read in context, what the Tribunal was expressing was that there was no evidence supporting the conclusion, in respect of the applicant personally, that the applicant would be forcibly recruited as a soldier, or subjected to human rights violations. The UN Report may have provided reputable evidence as to the situation in South Sudan generally, but it was open to the Tribunal to conclude that it alone did not provide sufficient foundation for concluding that the relevant risks of harm were faced by the applicant personally. This reasonably explains the absence of specific reference to the ethnic based violence by the Tribunal. 25 Sixthly, the primary judge's conclusion in rejecting ground 3 is set out at [164]: 164. To summarise, the failure of the Tribunal to specifically reference the particular finding of the UN Report - that the civil war in South Sudan had led to "ethnically motivated killings, abductions, unlawful detention and deprivation of liberty, rape and sexual violence, the burning of villages and looting" - did not constitute a jurisdictional error by the Tribunal. In all the relevant circumstances of the case, including the manner in which that information in the UN Report was put to the Tribunal, and the fact that the Tribunal made separate reference to matters raised by in the UN Report, the cogency of that information did not render it sufficiently important such that failure by the Tribunal to specifically refer to it would lead the Tribunal into error.

The notice of appeal 26 The four grounds of appeal are as follows (without alteration): 1. The primary judge erred in failing to conclude that the Tribunal's decision is affected by jurisdictional error, on the basis that the Tribunal did not consider whether, based on the information and representations before it, a "reason" for revoking the cancellation decision was that the appellant was owned non-refoulement obligations under the International Covenant on Civil and Political Rights or the Convention against Torture. In particular, the primary judge: a. erred by holding that "Australia's international non-refoulement obligations" are "expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act" ([105]); b. erred by concluding, based on statements by the delegate in the decision under review, or by Direction 75, that it was "highly likely" that Australia's international obligations would be considered in the event that the appellant applied for a protection visa, and that this was a basis for rejecting the ground ([105]-[106]); c. erred by concluding that, by reason of the matters outlined in b. above, the Tribunal was "entitled to decline consideration of" "claims advanced by the applicant [that] asserted that he would experience a risk of harm in South Sudan of a character that may engage the criteria in ss 36(2)(a) and (2)(aa) of the Act" ([107]); d. erred by concluding that the Tribunal failed to consider "the bases for a complementary protection claim" ([110]-[117]); and e. erred by concluding that the Tribunal did not err by stating that the appellant was required to identify why he would be "targeted personally", that the appellant was required to identify a risk of "specific harm in a non-refoulement sense", and that the appellant's representations "tend to conflate potential fear of persecution with potential hardship" ([113], [133]-[139]). 2. The primary judge erred in failing to conclude that the Tribunal's decision is affected by jurisdictional error, on the basis that the Tribunal did not fail to carry out its statutory task by misunderstanding the nature and scope of Australia's non-refoulement obligations, and that those obligations differ from the "protection" obligations to which s 36(2) of the Act refers. 3. The primary judge erred in failing to conclude that the Tribunal's decision is affected by jurisdictional error, on the basis that the Tribunal did not fail to consider significant evidence or representations before it, including a recent UN report which referred, inter alia, to the ongoing incidence during the civil war of "deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing)", "killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting" in South Sudan. 4. The primary judge erred in finding the Tribunal did not fail to carry out its statutory task by misunderstanding the Act or its operation, as evinced by the Tribunal's reasoning at paragraph [127] of its decision that in the event the applicant applied for a protection visa, his non-refoulement claims "must be comprehensively assessed". In particular, the primary judge erred by concluding that "decision-makers do not fall into error by relying on Direction No 75 to defer consideration of Australia's international non-refoulement obligations until such time as a protection visa application is made" ([182], see also [67]-[73]). 27 As explained above, it is unnecessary to address and determine grounds 1, 2 and 4 because ground 3 provides a sufficient basis for allowing the appeal. We will now explain why ground 3 should be upheld.

Consideration and determination of ground 3 28 It is desirable to set out the terms of ss 501CA(1), (3) and (4) of the Act before briefly summarising the relevant legal principles guiding the determination of ground 3, and then apply those principles to the facts and circumstances here.

(a) Sub-sections 501CA(1), (3) and (4) 29 The relevant provisions of 501CA of the Act were as follows: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. …

(b) Some relevant legal principles summarised 30 The relevant legal principles were summarised in Omar at [34] to [41]. To avoid unnecessary duplication, these reasons for judgment should be read as incorporating those paragraphs here. 31 The key relevant principles with reference to ground 3 may be summarised as follows: (a) Representations in response to an invitation under s 501CA(3)(b) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described (see, for example, Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523 at [139] per Robertson, Moshinsky and Bromwich JJ). (b) In DOB18 v Minister for Home Affairs [2019] FCAFC 63, the majority (Robertson J, with whom Logan J agreed) said at [185]-[186] (emphasis added): … In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand. In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2). To similar effect, see Goundar at [53]-[54] per Robertson J (noting again that specific reference was made to Goundar in the VLA submissions dated 7 April 2017). (c) The representations play a central role in the relevant statutory regime, whether the decision-maker be the Minister, a delegate or the AAT. The statutory power to revoke (and therefore "undo") the mandatory cancellation of a person's visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the decision-maker's determination of whether he or she is satisfied that there is "another reason" why the cancellation should be revoked. As Colvin J said in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561 at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material presented in the representations. The same applies to a case where the AAT is conducting a review of a Ministerial delegate's decision under s 501CA(4). (d) The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. (e) In determining whether or not there is "another reason" why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii), while the decision-maker has a degree of "decisional freedom" as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin, constitutes "another reason" (see BCR16 at [70]-[73] per Bromberg and Mortimer JJ). (f) While it may have been open to the AAT in Omar ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not "another reason" for revoking the visa cancellation, the AAT was nevertheless obliged to give meaningful consideration to the representations on this issue. As Colvin J stated in Viane at [67]-[68] in the context of the Minister's statutory task under s 501CA(4) (which also applied to the AAT): 67. In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is 'another reason' to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires. 68. Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend. 32 Omar also provides helpful guidance on what is meant by the obligation of a decision-maker to "consider" a matter in the context of a judicial review (see at [35]-[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows. (a) Even though there is no explicit statutory duty on the Minister under s 501CA(4) to "consider" representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court's approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ). (b) Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence. (c) The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister's statements of reasons in the two cases there stated that he had "given full consideration to all of the information before me" and that the reasons contained numerous statements by the Minister that he had "considered", "noted", "accepted", "recognised" or "had regard to" various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive. (d) The decision-maker's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added): By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. (e) Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia's non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker "may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law". (f) The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to "another reason" for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error. (g) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases. (h) Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker's ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

(c) Application of the principles to the circumstances here 33 Applying those principles to the circumstances here, there can be no doubt that the issue of the risk of being physically harmed if the appellant were returned to South Sudan in the context of the ongoing civil war was raised as "another reason" for revoking the visa cancellation. The issue was raised independently of the appellant's claims concerning Australia non-refoulement obligations. As the materials referred to at [9] above illustrate, that issue was explicitly raised in: (a) the application dated 7 December 2016 seeking revocation of the mandatory cancellation; (b) the applicant's letter dated 17 January 2017; (c) the VLA submissions dated 7 April 2017; and (d) at [79] of the ASFIC. The last two of those submissions made explicit reference to the UN Report in support of a claim that the appellant would be at risk of physical harm if he was returned to South Sudan. The claim of risk of harm relied in part on the history of ethnic cleansing in South Sudan and the fact that the appellant was Dinka, but the claim went beyond that and referred to violence in the civil war generally. 34 Although a copy of the UN Report was not in evidence before the AAT, the primary judge inferred that, when the AAT referred at [129] of its reasons to the displacement of large numbers of South Sudanese due to the extended civil war there, this was a reference to the UN Report (see [157] of the primary judge's reasons). 35 In explaining why he rejected ground 3 of the judicial review application below, the primary judge observed at [160] that it was insufficient for the appellant simply to observe that historically there had been ethnically motivated conduct in South Sudan (as indicated by the UN Report), because the appellant had to link the risk of such conduct to himself personally. The primary judge added at [162] that this was the approach taken by the AAT, as was reflected at [128] of its reasons for decision. This led the primary judge to conclude at [164] that the AAT's failure to make specific reference to the particular findings in the UN Report did not give rise to jurisdictional error (the full terms of [164] are set out at [25] above). Thus ground 3 was rejected. 36 It is evident from the primary judge's reasons for judgment that the central focus of his Honour's consideration and rejection of ground 3 was on the question whether or not the AAT failed to consider the UN Report in the context of the appellant's reference to ethnic cleansing. At [143] of the reasons for judgment, the primary judge described the UN Report as "the sole focus of this ground of review at the hearing". The basis for that observation is unclear. The terms of ground 3 below (as set out at [17] above) made reference to the UN Report and ethnic cleansing, but ground 3 was broader than that. It raised the question of whether the AAT had failed to consider certain significant evidence or representations before the AAT, including (but not limited to) the UN Report, and in relation to violence generally in South Sudan as a result of the civil war, not confined to ethnic cleansing. 37 Similarly, ground 3 in the appeal is not confined to the UN Report alone. It substantially mirrors the wording of ground 3 of the judicial review application below. The Minister did not contend in the appeal that ground 3 of the notice of appeal was inconsistent with the way in which the case was presented below. Rather, the Minister submitted in the appeal that the issue of harm to the appellant posed by the risk of violence was adequately addressed by the AAT. When the Minister's counsel was asked to identify where in the AAT's reasons for decision it had engaged with the specific claim that the appellant was at risk of harm because of violence in a civil war country, he responded by referring to [124], [125], [129], [139] and [141] of those reasons. 38 Apart from [124], the other paragraphs in the AAT's reasons relied upon by the Minister in answer to ground 3 are set out at [16] above. Paragraph 124 is as follows (footnotes omitted and without alteration): I note that in relation to Sudan, the Department of Foreign Affairs and Trade's (DFAT's) latest advice dated 16 January 2018 recommends that Australians should 'reconsider your need to travel' due to the possibility of violent unrest and the threat of terrorist attack - particularly in the southern border area within 15km of the border with Eritrea and Ethiopia. In relation to South Sudan, DFAT's latest advice recommends that Australians 'do not travel,' because of instability, ongoing conflict and a deterioration of law and order. 39 For the following reasons, we do not consider that these paragraphs indicate that the AAT meaningfully engaged with the appellant's claim regarding harm, bearing in mind the relevant principles outlined above. 40 First, as is evident from its terms, [124] of the AAT's reasons refers to DFAT's advice which was directed to Australian tourists or travellers to South Sudan. It falls far short of adequately engaging with the claim made by the appellant with reference to his own circumstances as a returning South Sudanese. 41 Secondly, the reference by the AAT in [125] to the "generally unstable situation in South Sudan" does not constitute an active intellectual engagement with the claim relating to harm by way of physical violence. This is highlighted by what appears subsequently in that paragraph, where the AAT refers to a person who has spent more than half of their life in Australian undoubtedly encountering "difficulties" if returned to South Sudan. It is plain that the AAT had in mind impediments such as accessing work, health care and other support services. The AAT then proceeded in that paragraph to address what it described as a number of concerns raised by the appellant, including a fear of persecution, being forcibly recruited into the military or militia service and forced to fight. Again, that does not address the specific claim as to harm by way of physical violence given the ongoing civil war in that country. The AAT noted towards the end of [125] that the appellant's legal representative submitted at the AAT hearing that there is "some difficulty in establishing if [the appellant] is at risk of harm if returned to South Sudan", with "limited evidence about the precise risk of harm", which reflected the fact that the appellant had lived in Australia since he was 12 years old. That did not excuse the AAT, however, from making specific findings of fact in relation to the claim of harm which was squarely raised, and with reference to the information set out in the submissions made by or on behalf of the appellant as to civil war violence which included, but was not confined to, ethnic cleansing. 42 Thirdly, we reject the Minister's submission that the AAT's reference in [129] to a large number of South Sudanese having been "displaced due to the extended civil war in that country" shows that the AAT meaningfully engaged with the issue of harm by way of physical violence. Displacement is one thing, physical harm is quite another. Similarly, contrary to the Minister's submission, what the AAT said at [139] of its reasons for decision takes the matter no further. There, as is evident from the AAT's language, the AAT was addressing the issue of "extent of impediments if removed" as described in cl 14.5(1) of Direction No. 65. This focusses on hardship or deprivation by reference to the person's age and health, language or cultural barriers and social, medical and/or economic support which would be available to the person. The AAT effectively adopted too rigid an approach by seeking to structure its reasons for decision so as to reflect the particular headings in Direction No. 65. This caused it to overlook the fact that the appellant had also raised as "another reason" for revocation the risk of harm from physical violence which he faced if he were returned to South Sudan independently of any other "impediments" which he would face. 43 Fourthly, the AAT's findings at [141] are also directed to the subject of "impediments" within the meaning of cl 14.5(1) of Direction No. 65 and not the appellant's claim of harm by way of physical violence. 44 Fifthly, although the AAT addressed the appellant's claims concerning ethnic violence (as explained by the primary judge), it did not address the appellant's broader claim of risk of physical harm by reason of the ongoing civil war in South Sudan. 45 For all these reasons, and with great respect to the primary judge, we consider that the AAT failed to address and/or have a meaningful engagement with the appellant's claim that he was at risk of harm by physical violence if he returned to South Sudan having regard to the ongoing civil war there. 46 For completeness, it might be noted that the Minister's counsel did not emphasise [126] or [128] of the AAT's reasons as evidencing that the AAT had meaningfully engaged with the appellant's claim as to harm by way of physical violence. That may well be because, as the contents of both those paragraphs reveal, the AAT's consideration of "specific harm" in those paragraphs is in the context of harm in a non-refoulement sense, as opposed to harm independently of any non-refoulement obligations. Those paragraphs simply serve to highlight the distinction which is drawn in cases such as Goundar, upon which the appellant expressly relied. 47 Finally, we should make it clear that it will be a matter for the AAT in reconsidering the appellant's application for review to come to its own view whether this particular claim, together with other claims advanced by the appellant in support of revocation, outweigh other considerations which favour non-revocation. The ultimate decision is one for the AAT, as long as it acts according to law.

Conclusion 48 For these reasons, the appeal should be allowed, with costs. The orders of the Court made on 29 July 2019 should be set aside. The first respondent should pay the appellant's costs of and incidental to the proceeding below, as well as the appeal. The AAT's decision dated 31 October 2018 should be set aside. The appellant's application for review should be remitted to the AAT for reconsideration according to law. It is a matter for the President of the AAT to determine whether the tribunal should be constituted differently for the purposes of the reconsideration. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Griffiths and Moshinsky.