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[2016] FCA 1203
plaintiff. The decision of the respondent made on 11 May 2016 be quashed. The matter be remitted to the respondent to re-determine according to law. The respondent pay the applicant's costs of the...
2 cited instruments linked from this judgment.
The Federal Court set aside the Minister's refusal to revoke the mandatory cancellation of a Fijian man's spouse visa. The man had raised a specific risk that the victim's family would seek revenge against him if he were returned to Fiji. The Minister acknowledged the point but said it did not need to be decided because the man could simply apply for a Protection visa later. The Court ruled this was a legal error. Protection visas only cover certain types of harm (persecution for a Convention reason or significant harm under the complementary protection provisions). The feared retribution included private revenge that would not qualify, yet the Minister never considered whether that remaining risk was itself 'another reason' to revoke the cancellation. Because the Minister acted on a misunderstanding of the law about what a Protection visa actually covers, his decision was affected by jurisdictional error and had to be made again.
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Munesh Goundar, a citizen of Fiji, was serving a sentence of imprisonment for manslaughter. On 17 December 2014 a delegate cancelled his Class BC Subclass 100 Spouse visa under the mandatory cancellation provision in s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test by reason of a substantial criminal record within the meaning of s 501(7)(c). The cancellation decision itself was not challenged.
Consistent with s 501CA(3), the Minister gave Mr Goundar written notice of the cancellation and invited him to make representations about revocation. Mr Goundar did so on 13 March 2015 in conformity with reg 2.52 of the Migration Regulations 1994 (Cth). Among those representations was the statement that both his brother and mother believed there was a risk of retribution against him from the victim's family and his ex-wife's family if he were returned to Fiji. The brother's affidavit said there was a "significant risk that there will be some form of retribution for his actions from the other families involved" if Mr Goundar returned with no family support. The mother's affidavit expressed worry that the victim's family would retaliate, noting that both the ex-wife and the victim's family remained "very angry".
The departmental submission to the Minister referred to this claim twice: once generally and once under the heading "International non-refoulement obligations". The submission advised that because Mr Goundar was not prevented by s 501E from applying for a Protection visa it was unnecessary to determine whether non-refoulement obligations were owed. The Minister's statement of reasons, dated 11 May 2016, listed the retribution claim at [12] among the reasons Mr Goundar had advanced for revocation. However, the only substantive treatment of the claim appeared at [17] under the heading "International non-refoulement obligations". The Minister repeated the departmental language almost verbatim: the claims "may give rise to international non-refoulement obligations" but because a Protection visa application remained open it was "unnecessary to determine whether non-refoulement obligations are owed".
No other paragraph of the Minister's reasons referred explicitly to the retribution claim. Mr Goundar had never held a Protection visa, had not applied for one, and had not framed his representations as a claim for non-refoulement protection. The representations raised a factual risk to his safety arising from personal anger and the desire for revenge.
Mr Goundar commenced judicial review proceedings in the Federal Court. The amended application contended that the Minister had made an error of law, alternatively had failed to consider a relevant consideration, because the possibility of a Protection visa did not answer the full scope of the harm feared. The harm feared included "non-PV Harm": harm motivated purely by personal revenge (not persecution for a reason in s 5J(1)(a)) and harm falling short of "significant harm" as defined in s 36(2A). Robertson J heard the matter on 4 October 2016 and delivered judgment on 12 October 2016.
Robertson J began by making clear findings about how the Minister had in fact reasoned. At [43]-[44] his Honour found that the Minister had recognised the retribution claim at [12] but had dealt with it exclusively at [17] on the basis that it might give rise to non-refoulement obligations which could be left for a future Protection visa application. The Minister had therefore assumed that the risk of retribution and risk to safety was coterminous with the risk that would engage Australia's non-refoulement obligations.
That assumption was legally incorrect. The harm claimed had a "private quality" and was not on its face Convention-related. It was not coterminous with the "significant harm" required for complementary protection. By proceeding on the basis that the entire representation could be met by the availability of a Protection visa application, the Minister had failed to consider the representation as to risk of harm independently of the non-refoulement framework. He had in substance treated non-PV harm as irrelevant to the exercise of the discretion under s 501CA(4)(b)(ii).
Robertson J accepted that in some cases the approach taken by the Minister might be unimpeachable, citing the authorities discussed in Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [41]-[65]. But those authorities concerned the legal consequences of visa cancellation where non-refoulement obligations might arise. They did not authorise the Minister to ignore a factual claim of harm that fell outside the non-refoulement criteria when that claim had been squarely raised in the s 501CA(3) representations.
The error was material. The satisfaction required by s 501CA(4) is a state of mind that must be formed on a correct understanding of the law (Wei v Minister for Immigration and Border Protection [2015] HCA 51; 90 ALJR 213 at [33]). Because the Minister had laboured under an incorrect understanding of the scope of Protection visa protection and had therefore not considered the full representation, the decision was affected by jurisdictional error. The decision was quashed and the matter remitted.
Robertson J expressly declined to decide whether the specific retribution claim was itself a mandatory relevant consideration. While representations as a whole are a mandatory relevant consideration, his Honour was not prepared to characterise every individual statement within them as mandatory. He distinguished both Picard v Minister for Immigration [2015] FCA 1430 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 on the basis that the statutory text and context were different. The application had not alleged breach of procedural fairness, so arguments based on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 were not reached.
Before Goundar, the law contained two overlapping but distinct streams. The first, represented by Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513, AZAFQ v Minister for Immigration [2016] FCAFC 105 and the Full Court discussion in Le, established that the Minister is not generally required to consider Australia's non-refoulement obligations in deciding whether to revoke a mandatory cancellation where the person remains free to apply for a Protection visa. The prospect of indefinite detention is not an immediate legal consequence of the cancellation decision itself. Ministerial Direction No 65 reinforced this approach by directing attention to international obligations only in defined circumstances.
The second stream, drawn from Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 and Htun, concerned the identification of mandatory relevant considerations. The applicant had sought to argue that any matter raised in s 501CA(3) representations becomes mandatory because the invitation must be "meaningful" (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [61]) and the power in s 501CA(4) is only enlivened once representations are made. Picard at [42] had said that information critical to an applicant's personal circumstances must be considered, but that observation was made in the context of procedural fairness.
Goundar clarified the intersection of these streams. Where a representation raises a risk of harm that is not limited to non-refoulement, the Minister cannot dispose of the representation simply by pointing to the availability of a Protection visa. To do so is to misunderstand the statutory task in s 501CA(4)(b)(ii), which requires the Minister to consider whether there is "another reason" the original decision should be revoked. The decision therefore stands as authority that the non-refoulement line of cases does not give the Minister licence to ignore harm claims falling outside that framework when those claims have been expressly advanced.
After Goundar, decision-makers exercising the s 501CA(4) power must ensure that any harm claim is considered according to its terms. If the claim is framed in factual terms of safety or retribution rather than in Convention or complementary protection language, the Minister cannot assume the claim is exhausted by the possibility of a Protection visa application. The case also confirms that the formation of the state of satisfaction under s 501CA(4) is conditioned by an implied requirement of a correct understanding of the law.
Paragraph [45]: "While this approach may be unimpeachable in particular cases, see the authorities discussed in Le at [41]-[65], it is to be noted that in the present case the applicant had never had a Protection visa, had not applied for a Protection visa, had not indicated he would so apply and had not in his representations … raised such an indication or contended that the Minister should revoke the original decision because Australia had obligations to him that would or might found an application for a Protection visa. The relevant representation was that there was a risk of retribution and a risk to the applicant's safety as a matter of fact and not as an engagement of Australia's legal obligations."
Plain English: The Minister's usual "you can apply for a Protection visa later" response works in some cases, but not here. Mr Goundar never framed his claim as a refugee claim. He simply said "I'll be in danger from these angry families." The Minister was required to engage with that factual claim on its own terms.
Paragraph [47]: "In my opinion, the reasons of the Minister, construed by reference to the language of those reasons and the context in which they were given, which included Ministerial Direction No. 65, show that the Minister did not consider the applicant's retribution claim except in the context of Australia's international non-refoulement obligations. The Minister did not consider that issue because, he said, the applicant was able to make a valid application for a Protection visa. In so doing, the Minister assumed that the risk of retribution, and the consequent risk of safety which the applicant had stated in his representation, was coterminous with the risk relevant to the issue of a Protection visa."
Plain English: Reading the Minister's reasons fairly, he only looked at the safety claim through the narrow lens of refugee law. He assumed the only harm that mattered was the kind that would trigger Australia's non-refoulement obligations. That assumption was wrong in law.
Paragraph [53]: "The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa. This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant's representations referred."
Plain English: The mistake was simple. The Minister shelved the retribution claim on the basis that a Protection visa application would fix everything. But a Protection visa only fixes certain kinds of harm. By assuming it fixed all the harm Mr Goundar feared, the Minister misunderstood what Protection visas actually do.
Paragraph [54]: "The harm claimed by the applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. … That error had a material effect on the Minister's decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the applicant's safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law."
Plain English: Family revenge is not the same as persecution for race, religion or political opinion, nor is it necessarily "significant harm" under the complementary protection test. Because the Minister's legal error stopped him from considering the claim at all, the error went to the heart of the decision and made it invalid.
Goundar is triggered whenever three elements coincide. First, the applicant must have made representations under s 501CA(3) that include a factual claim of risk to personal safety or risk of harm in the country of return. Second, that claim must encompass harm that is not limited to persecution for a Convention reason or significant harm within s 36(2A). Third, the Minister's reasons must show that the claim was dealt with only by reference to non-refoulement obligations and the availability of a Protection visa application.
Typical triggers include affidavits or submissions from family members asserting anger or desire for revenge by specific individuals or families; claims of "retribution", "retaliation" or "payback" without tying those fears to race, religion, nationality, political opinion or membership of a particular social group; and representations that emphasise lack of family support in the home country as increasing vulnerability to private violence. The precedent applies with particular force where the applicant has never framed the claim as a Protection visa claim and the Minister's reasons contain no separate assessment of the risk outside the non-refoulement heading.
The precedent does not apply where the representations themselves are expressly limited to Convention or complementary protection criteria, or where the Minister in fact engages with the claim on its factual merits and merely notes the additional availability of a Protection visa. It also has no direct application to discretionary cancellation decisions under s 501(1) or (2) or to decisions made by delegates bound by Ministerial Direction No 65 in its current form.
Although the present judgment is the source text, Robertson J's treatment of earlier authorities illuminates how Goundar itself sits within the developing jurisprudence. The Court applied the reasoning in MZYQU at [58] by analogy: just as it was jurisdictional error in a relocation assessment to treat non-serious harm as incapable of relevance, it is jurisdictional error in a s 501CA(4) decision to treat non-PV harm as irrelevant when it has been raised. The Court cited but did not follow the non-refoulement line in Ayoub, AZAFQ and Le, emphasising that those cases concerned the legal consequences of cancellation rather than the distinct task of considering "another reason" under s 501CA(4)(b)(ii).
The judgment distinguished Picard on the basis that Tracey J's statement at [42] was made in the context of procedural fairness, not as a proposition about mandatory relevant considerations under the statute. Similarly, Htun was distinguished because the statutory scheme there required consideration of "all claims" in a protection visa context, whereas s 501CA(4) contains no equivalent express obligation. The Court cited Peko-Wallsend for the general test of when a matter becomes mandatory but declined to apply it to individual statements within representations. Wei was cited for the proposition that the state of satisfaction must be formed on a correct understanding of the law, reinforcing the jurisdictional character of the error.
The structure of the reasons shows that the Court read the Minister's statement of reasons in light of the departmental submission and Ministerial Direction No 65 but refused to allow the Direction to do "too much work" where it was not binding on the Minister. This cautious approach to executive policy instruments has been influential in subsequent analyses of whether a particular matter is mandatory.
Robertson J expressly left open whether a specific representation such as the risk of retribution is itself a mandatory relevant consideration. His Honour accepted that representations as a whole are mandatory but was "not prepared to characterise any particular statement in the representations" as mandatory. The precise boundary between what is mandatory and what is merely a matter the Minister may consider therefore remains unresolved.
A further open question is the interaction between Goundar and the current form of Ministerial Direction No 65 (or its successors). The judgment notes that the Direction was not binding on the Minister and could not be used to infer that non-PV harm was irrelevant. Whether a future Direction that expressly addresses non-protection visa harm would alter the analysis was not decided.
The judgment does not explore the evidentiary threshold required before a claim of non-PV harm becomes one the Minister must address. The representations here were supported by two family affidavits but were described by the Minister as "brief" and lacking direct evidence from the applicant himself. Whether bare assertions would suffice, or whether some minimum level of "substantial, clearly articulated" material is required, remains for future cases.
Finally, the relationship between the obligation to consider representations under s 501CA(4) and the content of procedural fairness in the revocation context was left untouched. The applicant had not pleaded procedural fairness, so the Court did not decide whether the obligation to consider non-PV harm could also be framed as a denial of procedural fairness. That overlap continues to generate argument in subsequent litigation.
These open questions mean that practitioners must still advise clients that the safest course is to ensure representations clearly distinguish between protection visa criteria and other forms of harm, and to invite the Minister to consider all forms of harm expressly. The precise metes and bounds of the obligation Goundar recognised will continue to be worked out case by case.
Introduction 1 By his amended application for judicial review dated 16 September 2016 the applicant, who is a citizen of Fiji, applied to the Court to review the decision of the respondent made on 11 May 2016 not to revoke the visa cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth). 2 The applicant's Class BC Subclass 100 Spouse visa was cancelled under that provision on 17 December 2014 by a delegate who was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) on the basis he had a substantial criminal record as defined by s 501(7)(c). 3 The relevant notice of cancellation of the visa under s 501(3A) was dated 2 March 2015. The notice set out the grounds for mandatory cancellation of the applicant's visa, the particulars of the relevant information and invited the applicant to make representations about possible revocation of the mandatory visa cancellation decision. On the present application, there was no challenge to the decision of the delegate under s 501(3A). 4 Consistently with s 501CA(3), the Minister gave the applicant a written notice setting out the original decision and particulars of the relevant information, as defined, and, as required by that provision, invited the applicant to make representations to the Minister about revocation of the original decision. The applicant made such representations as set out more fully later in these reasons. 5 Under s 501CA(4), on 11 May 2016 the Minister decided not to revoke the original decision and it is this decision not to revoke which is the subject of the application for judicial review.
The statutory provision 6 Section 501CA was in the following terms, so far as relevant: 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. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (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. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (4) to not revoke, see section 501G.
The application 7 The application for judicial review claimed that there had been legal error in the conclusion of the Minister under s 501CA(4)(b)(ii) that he was not satisfied that there was another reason why the original decision should be revoked. 8 The amended application, to which there was no procedural objection on the part of the Minister, was in the following terms: 1. In deciding not to revoke the cancellation of the applicant's visa pursuant to s 501CA(4) Migration Act 1958 (Cth) (Act), the respondent made an error of law, or further and alternatively failed to consider a relevant consideration. Particulars (a) On 17 December 2014 the applicant's Class BC Spouse Visa (visa) was cancelled under s 501(3A) of the Act. The visa was cancelled because the applicant had been convicted of manslaughter and was serving a sentence of imprisonment as a result. (b) Pursuant to s 501CA(3) of the Act, the applicant was invited to, and did, make representations to the respondent about why the decision to cancel his visa should be revoked. (c) As part of those representations. the applicant gave as a reason supporting revocation of his visa the risk to his safety in Fiji arising from retribution from members of the victim's family. See Court Book (CB) page 151. (d) The departmental submission to the respondent noted that this submission had been made: CB page 10 [28], page 12 [42]-[43]. (e) The respondent found that he did not need to consider the risk from relatives because the applicant was free to apply for a protection visa: p 29 [17]. (f) The respondent made an error of law, because the possibility that the applicant could apply for a protection visa did not protect him from all forms of harm from relatives. In particular, a protection visa would not protect the applicant against harm that: (i) was motivated for reasons of personal revenge only (and so was not persecution for any of the reasons identified in s 5J(1)(a) necessary to found a refugee claim); and (ii) fell short of the definition of "significant harm" in s 36(2A) of the Act. (non-PV Harm) (g) Further and alternatively, the Minister made an error of law by treating nonPV Harm as irrelevant. (h) Further and alternatively, the Minister failed to consider whether he should revoke the cancellation because of the risk of non-PV Harm from relatives of the victim. This was a mandatory consideration under s 501CA(4) because it had been given as a reason by the applicant in response to an invitation under s 501CA(3) .
The relevant facts 9 The facts may be shortly stated since the Court is not concerned with the merits of the Minister's decision under s 501CA(4). 10 The applicant made representations in response to the invitation from the Minister dated 2 March 2015. 11 It was accepted by the respondent Minister that these representations were made in conformity with reg 2.52 of the Migration Regulations 1994 (Cth). 12 One of the representations made on 13 March 2015 was as follows: The evidence of both the Applicant's brother and mother state that they believe that there is a risk of retribution against the Applicant from the victim and his ex-wife's family if he is returned to Fiji. It is submitted that [t]he existence of the risk to his safety is a strong factor against the cancellation of the visa. 13 The evidence referred to was first in an affidavit apparently dated 30 October 2014 by the applicant's older brother stating: I believe that if he is returned to Fiji with no family to support him there is a significant risk that there will be some form of retribution for his actions from the other families involved. 14 The other evidence referred to was that of the applicant's mother who stated in an affidavit also apparently dated 30 October 2014 (as written): I am very worried that the victim's family will retaliate against my son if he is returned to Fiji. I've heard from others that both my sons ex-wife and the victim's family are still very angry about what happened. If my son is return to Fiji he has no family to assist or support him. 15 The submission by the Department to the Minister referred to one of the applicant's representations being that "there is a risk of retribution against him from the victim's family as well as from his former wife's family." 16 Two pages later, the submission by the Department to the Minister again referred to the same representation by the applicant but this time under the heading "International non-refoulement obligations". 17 In that context, in the following paragraph the submission by the Department to the Minister said: Mr GOUNDAR has made claims that may give rise to international non-refoulement obligations. However Mr GOUNDAR is able to make a valid application for another visa. In particular I note that Mr GOUNDAR is not prevented by s501E of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr GOUNDAR for the purposes of determining whether or not to revoke the mandatory visa cancellation decision. 18 The submission by the Department to the Minister does not otherwise refer explicitly to the applicant's risk of retribution claim. 19 In the Minister's statement of reasons for his decision not to exercise his discretion to revoke the mandatory cancellation visa decision he stated, at [11], that he had assessed all of the information set out in the Issues Paper (the Departmental submission) and attachments. The Minister said that, in particular, he had considered the applicant's representations and the documents he had submitted in support of his representations regarding why the original decision should be revoked. The statement of reasons continued: 12. In the representations/documents submitted by or on his behalf, Mr GOUNDAR has articulated reasons why the original decision should be revoked, which include: the best interests of minor children; his strong ties to Australia; his positive contributions to the community; his support from family and friends; the hardship that he would suffer due to his having 'no economic or family support' in Fiji and there is a risk of retribution against him from the victim's family as well as from his former wife's family. He also stated that he does not pose an unacceptable risk to the Australian community in terms of re-offending. 20 Later in the Minister's statement of reasons, at [17], the following subheading and paragraph appear: International non-refoulement obligations 17. Mr GOUNDAR has made claims that may give rise to international non-refoulement obligations. However Mr GOUNDAR is able to make a valid application for another visa. In particular I note that Mr GOUNDAR is not prevented by s 501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr GOUNDAR for the purposes of this decision. 21 No other part of the statement of reasons refers explicitly to the applicant's risk of retribution representation. The respondent Minister accepted in his written submissions to the Court that the Minister found that it was unnecessary to consider whether the cancellation of the applicant's visa gave rise to any issue concerning Australia's international non-refoulement obligations. This was because it remained open for the applicant to make an application for a protection visa and the Minister's consideration of non-refoulement obligations was in response to the claim raised by the applicant fearing retribution.
The parties' submissions 22 The applicant submitted it was not open to the Minister to dispose of the retribution claim on the basis that he did. As a matter of law, the possibility of a Protection visa was not a complete answer to the retribution claim. Australia will have international non-refoulement obligations to a person if the person has a well-founded fear of persecution for one of the reasons identified in the Refugees Convention and reproduced in s 5J(1)(a) of the Migration Act. Additionally, Australia will have international non-refoulement obligations to a person under other international instruments if there is a real risk that the person will suffer significant harm as defined in s 36(2A) of the Migration Act. However, the applicant submitted, there were many forms of harm that do not give rise to international non-refoulement obligations. They include, relevantly: (a) harm motivated for reasons of personal revenge only (and so was not persecution for any of the reasons identified in s 5J(1)(a) necessary to found a refugee claim); and (b) harm that falls short of the definition of "significant harm" in s 36(2A) of the Act, (together, non-PV Harm). 23 The applicant submitted the Minister's error was that he did not consider whether the threat of non-PV Harm was a reason to revoke the cancellation of the applicant's visa. 24 The jurisdictional character of the error, the applicant submitted, could be put in a number of ways. 25 First, the Minister made an error of law and, as a result, he mistakenly failed to appreciate the relevance of relevant evidence. The error was the same as that identified by MZYQU v Minister for Immigration & Citizenship [2012] FCA 1032; 206 FCR 191 by Dodds-Streeton J at [58] (MZYQU) (a case about the relevance of harm to relocation in a refugee claim): [T]he IMR [Independent Merits Reviewer] erred in that he treated any harm which was not "serious harm as required by s 91R(1)(b)" as incapable of relevance to the reasonableness of relocation. 26 Secondly, the Minister failed to have regard, or proper regard, to a mandatory consideration. The retribution claim was a mandatory consideration for the Minister under s 501CA(4) because it had been given as a reason by the applicant in response to an invitation under s 501CA(3). The applicant accepted that s 501CA did not expressly state that the Minister must consider the reasons provided in response to an invitation under s 501CA(3). However, this conclusion was implicit from the proper construction of s 501CA. 27 The applicant submitted the principles for determining whether a consideration is a mandatory consideration were well known: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] (Htun). 28 The applicant submitted that s 501CA had two critical features which made good his submission. 29 First, s 501CA(3)(b) required that the applicant be invited to make representations. The Parliament must have intended that the invitation be a meaningful invitation: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [61]. An invitation to make representations would only be meaningful if the applicant's representations were actually considered. Otherwise, the invitation was an empty gesture; which the Parliament could not be presumed to have intended, and which the explanatory memorandum makes clear was not intended: Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 at [92]. 30 Secondly, the applicant submitted that the power to revoke in s 501CA(4) was only enlivened if representations were actually made. This demonstrated a close and deliberate connection between the provision of the representation and the exercise of the power. It evinced an objective intention of the Parliament that the Minister must consider the reasons given by the applicant. 31 The applicant submitted that this reasoning was supported by the decision of Tracey J in Picard v Minister for Immigration [2015] FCA 1430 at [42] (Picard). His Honour said: If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it. 32 The applicant submitted that in BCR16 v Minister for Immigration [2016] FCA 965 (BCR16), Moshinsky J referred to Tracey J's judgment in Picard without apparent criticism at [48]. His Honour further held, at [73], that the power under s 501CA(4) would be fettered by constraints similar to those governing the cancellation power in s 501(1). 33 However the error was characterised, the applicant submitted that the Minister had failed to properly deal with the applicant's retribution claim in the manner contemplated by s 501CA. The error went to jurisdiction and the decision should be quashed. 34 The Minister submitted that the applicant's attempt to apply the statement of Dodds-Streeton J in MZYQU at [54] was misplaced as it was made in the context of a relocation finding in consideration of a refugee claim. Her Honour held there that in considering the question of whether it was reasonable for a Protection visa applicant to relocate within their home country, a decision-maker could not treat as irrelevant harm that was not capable of amounting to persecution. The error in MZYQU arose because the "internal relocation principle" was an essential aspect of the definition of a refugee: see Minister for Immigration v SZSCA [2014] HCA 45; 254 CLR 317 at [21]-[30]. The inquiry as to whether internal relocation is reasonable (or practicable) is not limited to the question of whether the person would face a risk of harm of a type recognised for the purposes of international non-refoulement obligations. Thus, the decision-maker in MZYQU was obliged to consider the reasonableness of relocation and could not ignore for this purpose "non-PV harm". 35 The Minister submitted that the position in this case was different because here the Minister had a broad discretion to revoke a mandatory visa cancellation decision. Unlike the test for refugee protection considered in MZYQU, the Minister was not required to apply any particular legal test when considering whether or not to revoke a cancellation decision. 36 The Minister also submitted that he was not required to consider the risk of harm faced by the applicant (whether or not that harm could satisfy the criteria for a Protection visa). The Minister submitted that the proposition that the applicant's claimed fear of retribution in Fiji was a mandatory consideration was contrary to authority. 37 The Minister in making a decision to revoke a cancellation decision may have to consider the legal consequences of that decision. However, at least where it remained open for a person to make a Protection visa application, the Minister was not required to consider Australia's non-refoulement obligations (as the prospect of indefinite detention was not an immediate consequence of the visa cancellation): see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [19]; AZAFQ v Minister for Immigration [2016] FCAFC 105 at [70]; see generally Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [42]-[60] (Le). The Minister submitted that these authorities confirmed that there was no general requirement upon the Minister to consider a risk of harm capable of engaging Australia's non-refoulement obligations. That being so, the Minister submitted, there was no reason why the Minister should be required to consider other, less serious, types of harm. The discretion conferred by s 501CA(4) was broad and unfettered in its terms: BCR16 at [73]. Given the nature of the power, it was not appropriate to seek to imply from the statute an obligation upon the Minister to consider "specific factors" that are "personal to the visa holder": Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [74]. 38 The Minister responded to the applicant's submission that any particular matter became a mandatory relevant consideration if it was included in the representations received by the Minister pursuant to s 501(CA)(4)(a) by contending that this submission misconstrued the purpose of the representations. The Minister submitted that the receipt of representations under s 501CA(4)(a) operated as a condition precedent to the exercise of the Minister's power to revoke the cancellation decision. Those representations did not fetter the Minister's discretion. If it were otherwise, a decision of the Minister not to revoke the visa would be invalid unless it involved a line-by-line refutation of the matters raised in any such representations. This would be so even if the matters raised in the representations were of little or no importance to the revocation decision. The Minister submitted that it was unlikely that Parliament intended such a result: cf Wei v Minister for Immigration and Border Protection [2015] HCA 51; 90 ALJR 213 at [26]-[27] (Wei). 39 The Minister submitted that contrary to the applicant's submissions, the statement of Tracey J in Picard at [42] did not support the contention that the representations made to the Minister become mandatory relevant considerations. As Moshinsky J explained in BCR16 at [76], the observations of Tracey J related to the Minister's obligations of procedural fairness, rather than any implied statutory requirement to have regard to a particular issue. 40 The Minister submitted that once it was appreciated that the real question was whether procedural fairness required the Minister to consider the matters raised in the submissions, it was clear that the Minister made no error. The Minister's statement of reasons specifically referred to the retribution claim (at [12]). The Minister found it unnecessary to deal with the claim because of the applicant's eligibility to apply for a Protection visa (at [17]). The Minister therefore had regard to the representations made about the risk of retribution generally. In so doing, the Minister submitted, it could not be inferred that he limited his consideration to harm that did not engage Australia's international non-refoulement obligations. In Ministerial Direction No. 65 the Minister set out matters he considered relevant to the exercise of the discretion in s 501CA. The Direction explained the relevance of harm that might engage Australia's international obligations. The statement of reasons in this case closely followed the structure of that Direction. The proper inference in this case was not that the Minister failed to consider the applicant's representation, but that the Minister had determined that a risk of non-PV harm was not material to the exercise of his discretion. This was not surprising given harm that is not "serious harm" for the purposes of s 5J(4)(b) of the Migration Act, and which does not amount to "significant harm" for the purposes of s 36(2)(aa) of the Migration Act, is unlikely to be as objectively serious as harm that does engage Australia's non-refoulement obligations. 41 In any event, the Minister submitted, procedural fairness did not require him to separately assess the prospect that the applicant might face a risk of non-PV harm. The representations made in respect of the risk of retribution (set out above) were brief. They were contained within extensive written submissions dealing with other matters. They were unsupported by evidence other than the assertions of the applicant's mother and brother. The applicant himself expressed no subjective fear of retribution. Importantly, neither these representations nor the evidence before the Minister drew any distinction between non-PV harm and harm that could satisfy the criteria of a Protection visa. The risk of non-PV harm was, therefore, not a substantial, clearly articulated argument relying upon established facts that procedural fairness required the Minister to address: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24].
Consideration 42 The first necessary step is to make findings as to the basis on which the Minister decided not to revoke the original decision to cancel the applicant's visa. 43 In my opinion, it is clear that the Minister recognised that one of the applicant's representations was that there was a risk of retribution against him from the victim's family as well as from his former wife's family if he returned to Fiji. This was stated in the Minister's reasons at [12]. 44 It is also clear from [17] of those reasons that the Minister dealt with that representation by reasoning that it was unnecessary to deal with it in considering the question of revocation of the original decision because that representation might give rise to non-refoulement obligations owed to the applicant but that the applicant was able to make a valid application for a Protection visa. 45 While this approach may be unimpeachable in particular cases, see the authorities discussed in Le at [41]-[65], it is to be noted that in the present case the applicant had never had a Protection visa, had not applied for a Protection visa, had not indicated he would so apply and had not in his representations in accordance with the Minister's invitation raised such an indication or contended that the Minister should revoke the original decision because Australia had obligations to him that would or might found an application for a Protection visa. The relevant representation was that there was a risk of retribution and a risk to the applicant's safety as a matter of fact and not as an engagement of Australia's legal obligations. 46 I do not accept the Minister's submission, at [22] of his written submissions, that it cannot be inferred that the Minister limited his consideration to harm that did engage Australia's international non-refoulement obligations and that the proper inference in this case was not that the Minister failed to consider the applicant's representation but that he had determined that a risk of non-PV harm was not material to the exercise of his discretion. Consistently with that written argument, it was put in oral submissions on behalf of the Minister that the Minister was entitled to take into account the matters which he considered relevant and the appropriate characterisation of what the Minister had done was that the submission made by the applicant could or may give rise to questions of non-refoulement but the Minister otherwise considered that issues that did not raise such obligations were not relevant to his decision. In my opinion, that submission requires Ministerial Direction No. 65 made under s 499 of the Migration Act to do too much work by reference to what it does not say and in circumstances where it was not binding on the Minister. Further, the applicant's representation said nothing at all about any distinction between categories of harm. It was the officer of the Department and subsequently the Minister who introduced such a distinction. In addition, the Minister did not say in his reasons for decision that any non-PV harm would be treated by him as irrelevant to the question of revocation and it is not easy to see why the Minister would so reason. 47 In my opinion, the reasons of the Minister, construed by reference to the language of those reasons and the context in which they were given, which included Ministerial Direction No. 65, show that the Minister did not consider the applicant's retribution claim except in the context of Australia's international non-refoulement obligations. The Minister did not consider that issue because, he said, the applicant was able to make a valid application for a Protection visa. In so doing, the Minister assumed that the risk of retribution, and the consequent risk of safety which the applicant had stated in his representation, was coterminous with the risk relevant to the issue of a Protection visa. 48 I do not accept the Minister's submission, at [21] of his written submissions, that the real question is whether procedural fairness required the Minister to consider the matters raised in the applicant's representations. The applicant's application does not allege any breach of procedural fairness. 49 I also do not accept the Minister's submission, at [23] of his written submissions, that in any event procedural fairness did not require the Minister to separately assess the prospect that the applicant might face a risk of non-PV harm on the basis that that risk was not a substantial, clearly articulated argument relying upon established facts that procedural fairness required the Minister to address. As I have said, the application does not invoke a denial of procedural fairness. More importantly, I find that the representation to the Minister did clearly articulate the risk of retribution and the consequent risk of safety to the applicant and did so by reference to affidavits which also form part of the representation. 50 I do accept the Minister's submission, at [21] of his written submissions, that he found it unnecessary to deal with the applicant's retribution claim because of the applicant's eligibility to apply for a Protection visa, but I do not regard as relevant to the present issue what appears to be put as the corollary, that as a matter of procedural fairness the Minister therefore had regard to the representation made about the risk of retribution generally. As I have said, the application does not raise an issue of procedural fairness. 51 The second question is whether the reasoning by the Minister discloses jurisdictional error. 52 The answer is not provided directly by MZYQU at [58] but that decision does provide an analogy. The point being made in that case was that it was a jurisdictional error to treat any harm which was not serious harm within s 91R as incapable of relevance to the reasonableness of relocation. 53 The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa. This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant's representations referred. The Minister did not presently consider the applicant's representation as to the claimed risk of retribution and risk to his safety because of the view the Minister took or the assumption the Minister made. The error was in proceeding on the basis that the circumstances the subject of the applicant's representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4). 54 The harm claimed by the applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. The Minister proceeded on the basis that he did not need to consider the representation of risk of harm because of the line of authority summarised in Le at [41]-[65]. That error had a material effect on the Minister's decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the applicant's safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law: see Wei at [33] and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ. That is an implied condition of the valid exercise of that power. Here there was an incorrect understanding of the law. The case is one of jurisdictional error. 55 It is not necessary to determine the issue of whether the applicant's representation as to the risk of retribution was a mandatory relevant consideration. That conclusion does not follow from Picard. It is correct to say that in that case the learned judge stated at [42] that if, in making representations, the applicant provided information to the Minister, relating to his or her personal circumstances, and that information was critical and relevant to the applicant's case the Minister was bound to consider it. As noted in BCR16 at [76], those observations in Picard were made in the context of procedural fairness obligations owed by the Minister under s 501CA(4). In any event I do not read Picard at [42] as standing for the proposition that each statement in the representation is a mandatory relevant consideration. 56 As stated by the Full Court in Price v Elder [2000] FCA 133; 97 FCR 218 at [13], where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;162 CLR 24 at 39-40. While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised. As presently advised, I would distinguish Htun at [42] on the basis that both the text and context of the statutory provisions are quite different.
Conclusion 57 The application for judicial review succeeds. The Minister's decision should be set aside and the matter re-determined by the Minister according to law. The Minister should pay the applicant's costs, as taxed if not agreed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
Goundar
Minister for Immigration and Border Protection
The decision of the respondent made on 11 May 2016 be quashed. The matter be remitted to the respondent to re-determine according to law. The respondent pay the applicant's costs of the application, as taxed if not agreed.