KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: MORTIMER J DATE OF ORDER: 28 July 2020

1. The amended originating application be dismissed.
2. The applicant pay the first respondent's costs of the application, to be fixed by way of a lump sum.
3. On or before 4 pm on 11 August 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.
4. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction and summary 1 This is an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to revoke an earlier decision to cancel the applicant's visa. 2 The applicant was unrepresented when he filed an originating application on 23 December 2019. On 14 January 2020, the Court made a pro bono referral, which was accepted by junior counsel for the applicant. The applicant subsequently appointed Victoria Legal Aid to represent him in this proceeding. The Court expresses its gratitude to counsel for taking the referral, and to Victoria Legal Aid for representing the applicant. 3 On 2 June 2020, pursuant to consent orders made on 27 April 2020, the applicant filed an amended originating application. Relying on four grounds of review, the applicant seeks orders that the decision of the Tribunal be quashed and the matter remitted for determination according to law. 4 For the reasons that follow, the application should be dismissed.

background 5 There was conflicting evidence before the Tribunal about when and where the applicant was born. Having set out the conflicts, and assessed the evidence, the Tribunal found that the applicant was born in 1995 in Port Sudan, in the Republic of Sudan. The applicant's submissions in this Court proceeded on that basis, and the Minister did not contend otherwise. 6 In 2003, the applicant moved to Egypt with his mother and siblings, where he lived in a refugee camp for around two years. On 23 May 2005, the applicant and his family were granted Refugee and Humanitarian (Class XB) Subclass 202 - Global Special Humanitarian visas, and on 5 December 2005, the applicant and his family arrived in Australia. 7 On 15 October 2018, a delegate of the Minister cancelled the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth). The delegate was satisfied at the time of the cancellation of the visa in 2018 that the applicant was serving a sentence of full-time imprisonment at Ravenhall Correctional Centre in Victoria for a criminal conviction. The delegate was also satisfied that, on 11 November 2011, the applicant had been convicted of robbery and sentenced to 12 months' imprisonment. The combination of these two matters engaged the duty set out in s 501(3A) to cancel the applicant's visa, because he had a substantial criminal record and did not pass the character test in subs (6) of that section. There was no dispute before the Tribunal that the delegate was correct to understand the duty in s 501(3A) was engaged. 8 By a communication on 24 October 2018, as he was entitled to do, the applicant requested that the Minister revoke the cancellation decision under s 501CA(4) of the Migration Act. That subsection provides that the Minister may revoke a decision under s 501(3A) if the person requests that the decision be revoked and the Minister is satisfied either that the person passes the character test or that there is another reason why the original decision should be revoked. 9 On 3 September 2019, a delegate of the Minister decided not to revoke the cancellation decision. The applicant was notified of this decision on 5 September 2019. 10 On 7 September 2019, the applicant submitted an application to the Tribunal for review of the non-revocation decision. The Tribunal conducted a hearing on 14 and 15 November 2019. The applicant was represented by solicitors and counsel. The respondent was also represented. 11 On 28 November 2019, the Tribunal affirmed the delegate's non-revocation decision.

The Tribunal's decision 12 The Tribunal's reasons follow the structure of Direction No 79, a direction given by the Minister under s 499 of the Migration Act to guide exercises of power under s 501CA. The Direction instructs decision-makers that they must consider a number of matters, including protection of the Australian community, the best interests of minor children and expectations of the Australian community. The Tribunal considered these and found that while the best interests of minor children (the applicant's three step-brothers, nephew and niece) weighed in favour of revocation, the protection and expectations of the Australian community weighed against it. 13 The Tribunal also considered the question of the applicant's nationality, in order to determine to which country the applicant was likely to be returned. The applicant made submissions that Australia would breach its non-refoulement obligations if it removed him to South Sudan, and the Tribunal considered these matters. It also made some observations about the possibility that the applicant might apply for a protection visa. These matters are relevant to three of the four grounds of review in this Court. 14 The Tribunal's reasons indicate that the question of the applicant's nationality (or citizenship) was a live issue. The applicant was born before South Sudan gained independence from Sudan in July 2011. The Tribunal's reasons indicate that the applicant submitted he is a citizen of South Sudan, while the Minister submitted the applicant is a citizen of Sudan. 15 As I have noted, the Tribunal found that the applicant was born in 1995 in Port Sudan, in the Republic of Sudan. However, the Tribunal also found that the applicant is "a member of one of the indigenous ethnic communities of South Sudan" (namely, the Jur-Chol ethnic group, or the Luo people) and that both his parents were born in what is now South Sudan. 16 The Tribunal concluded that the applicant had acquired South Sudanese citizenship under s 8 of the South Sudanese Nationality Act 2011, subss (1), (2) and (3) of which provide (with my emphasis): (1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements - (a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or (b) such person belongs to one of the indigenous ethnic communities of South Sudan. (2) A person shall be considered a South Sudanese National by birth, if at the time of coming into force of this Act - (a) he or she has been domiciled in South Sudan since 1.1.1956; or (b) if any of his or her parents or grandparents have been domiciled in South Sudan since 1.1.1956. (3) A person born after the commencement of this Act, shall be a South Sudanese National by birth if his or her father or mother was a South Sudanese National by birth or naturalization at the time of the birth of such a person. 17 The Tribunal also referred to the Sudanese Nationality Act 1994, legislation of the Republic of Sudan. It did not reach any conclusions on the effect of that Act, but on its face it seems to provide that, if the applicant had acquired South Sudanese citizenship, his Sudanese citizenship had been automatically revoked. 18 With respect to Australia's non-refoulement obligations, the applicant submitted to the Tribunal that if he were returned to South Sudan he would face the prospect of persecution or serious harm and, therefore, Australia would breach its international obligations. 19 Paragraph 14 of Direction 79 provides that, in deciding whether to revoke the mandatory cancellation of a visa, where relevant a decision-maker must consider Australia's non-refoulement obligations. Paragraph 14.1 of Direction 79 provides: (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act. (2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled). (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked. (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer). (6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention. 20 By reference to paragraph 14.1, the Tribunal spent some time in its reasons on this consideration: see [114]-[134]. At [115], the Tribunal found, correctly, with respect (with my emphasis): The Direction states at paragraph 14.1(2) that the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa because Australia will not remove a non-citizen, as a consequence of the cancellation of the person's visa, to the country in respect of which the non-refoulement obligation exists. The Tribunal regards this particular paragraph as a commentary on what the Minister making the Direction is saying is Government policy of which a decision-maker should take note. 21 The Tribunal then referred to paragraph 14.1(4), and to the Full Court's decision in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, again correctly stating (at [117]): How paragraph 14.1(4) of the Direction should be properly interpreted by decision-makers has been affected by the decision of the Full Court of the Federal Court in Omar. The Court held that there was an obligation on the Minister (in that case the decision-maker) to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request (see particularly [36] to [40] of the judgment). 22 At [118], again correctly, the Tribunal described the approach to its task: The Tribunal considers, and notes, that the Respondent made submissions in support of this approach, that where relevant representations have been made (as they have in this case), they must be properly and actively considered. However, it is important to make the distinction that this addressing of relevant submissions made by parties is clearly done within the architecture of the task before the Tribunal, which is considering whether there is another reason, under section 501CA(4)(b)(ii) of the Act, why the mandatory cancellation of a visa on character grounds should be revoked, with reference to a Direction made under section 499 of the Act, which under section 499(2A) of the Act, must be followed. The Tribunal would lead itself into error if, in undertaking this necessarily responsive task, it engaged in an exercise of assessing whether or not an applicant meets the criteria for the grant of a protection visa. That is not a question for this Tribunal to determine. 23 At [121] the Tribunal again correctly rejected the approach taken in submissions filed on behalf of the applicant with the Tribunal, which framed the question for the Tribunal in terms suggesting it was engaged in deciding whether the applicant should be granted a protection visa. That was plainly the incorrect framework and the Tribunal rightly rejected it. 24 Then the Tribunal re-articulated what it saw as its task at [119]: So, the distinction in the Tribunal's task here is, consistent with the Direction, that it remains unnecessary for the Tribunal to determine whether non-refoulement obligations are owed to KYMM. It is, however, essential, as relevant representations have been made in this case, to determine whether a case is made out that such obligations may be owed to him. (Original emphasis.) 25 As counsel for the Minister accepted, this paragraph is somewhat difficult to follow. Counsel submitted that the Tribunal was accepting it had to look at what might in fact happen to the applicant on return to South Sudan (or Sudan) while stating it did not have to determine the legal question (or, I might add, perhaps mixed legal and factual question) whether Australia's non-refoulement obligations are engaged in relation to the applicant. 26 I accept the Minister's submissions. Read in context, especially with [118], and with the approach then taken by the Tribunal, I consider the Tribunal was instructing itself to attend to the correct question, which was whether it was satisfied on the evidence that returning the applicant to South Sudan (or Sudan) could, at a factual level, render him at risk of the kind of harm outlined in the Refugees Convention (Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)), the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)), or the ICCPR (International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)). 27 At [123], the Tribunal referred to a matter to which it returned later in the reasons and which is of some relevance to the grounds of review. It recorded a submission by the Minister that the applicant had not "articulated specific harms to which he would be exposed" if returned to South Sudan (or Sudan), but had made "general statements". The Tribunal appears to have accepted this submission, and at [133] it found: The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of KYMM's visa. Although there was a paucity of material which may assist with a better assessment linking the personal circumstances of KYMM as an individual with the generally fractured situation in South Sudan, such as his own oral evidence, should he be returned there, this consideration weighs relatively heavily in the Applicant's favour. 28 At [126], the Tribunal made a positive finding about the applicant's ethnicity as Jur-Chol and found there was "ample material before the Tribunal on the precarious nature of civil society in both Sudan and South Sudan". As the passage I have just extracted demonstrates, it went on, at [129]-[134], to accept that the applicant would face a real chance of persecution in South Sudan (or Sudan), and found that this factor weighed in favour of revocation of the cancellation. 29 The Tribunal then explained its consideration of "other factors" set out in Direction 79, which are not relevant to the grounds of review and need not be set out here. The main factors weighed in favour of the applicant, indeed "heavily" so, in relation to the impediments the Tribunal found he would face on return. 30 The Tribunal then drew its considerations of the various factors under Direction 79 together in a section entitled "Summary", commencing at [151] of its reasons. The last two paragraphs of this section feature in the applicant's grounds of review, but the whole of this section should be set out so that the proper context of the reasons can be demonstrated. 151. The Tribunal has found that two of the primary considerations, protection of the Australian community and the expectations of the Australian community, weigh against the Applicant. One primary consideration, the best interests of minor children in Australia affected by the decision, weighs in his favour, but given he is not in a parental role of any of these children, not heavily so. 152. Of the other considerations, two, the impact on Australian business interests and the impact on victims, are not engaged in this consideration and weigh neutrally. Three others, the strength, nature and duration of ties to Australia, the extent of impediments if removed and international non-refoulement obligations, weigh in favour of the Applicant, and two of them strongly so. 153. In undertaking the weighing exercise relating to the exercise of the discretion available under the Act, the Tribunal must take into account the totality of the Direction (see, relevantly, Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 261; 124 ALD 58, at [57]). In addition, the Full Court of the Federal Court has also made clear (Minister for Home Affairs v HSKJ [2018] FCAFC 297, at [35]) that the Tribunal would err if it concluded that an 'other consideration' was incapable of outweighing a primary consideration. I consider this is consistent with the Minister's explicit use of the word 'generally' in paragraph 8(4) of the Direction. 154. While the Tribunal has set out its conclusions above, especially about non-refoulement obligations and impediments facing KYMM if he is removed above, what became obvious in the hearing is that the Applicant takes almost no personal responsibility for his offending history, and exhibited scant remorse. 155. The judicial system has deployed a range of sanctions in an attempt to respond to his conduct, but this has been of little avail, in terms of him continuing to offend. He has consistently breached orders of the Court. When invited to tell the Tribunal what steps he would take to follow a new path, KYMM's responses were vague and regrettably unconvincing. The Tribunal was left with a melancholic inevitability about the risk of KYMM re-offending. 156. A recent Tribunal decision, QDWQ and Minister for Home Affairs [2019] AATA 4622 concerned a young male non-citizen from Afghanistan, like KYMM without children of his own, with an extensive record of criminal offending. Deputy President Britten-Jones said, at [127]-[128]: The most significant, in terms of weight, of the other considerations are the international non-refoulement obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan. The applicant has no links with Afghanistan because he has never lived there and has no remaining family there. As a Shi'a of Hazara ethnicity, he will face persecution and his life may well be endangered. I note that the applicant is a single man aged 23 years old and with no children. I also note that the outcome of being returned to Afghanistan is not certain, nor is it an immediate consequence of non-revocation, because the applicant still has the opportunity of applying for a Protection visa. I should not speculate as to what might or might not occur in future decision-making. In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations of the protection and expectations of the Australian community than on the other countervailing considerations. The dangers and difficulties that the applicant would meet upon his return to Afghanistan are real and serious but they do not outweigh the very real risk of harm to the Australian community if the applicant is not removed. The applicant has committed very serious crimes and has not shown appropriate remorse nor has he shown that he is rehabilitated. By cancelling the applicant's visa, the Government is exercising its commitment to protecting the Australian community from harm. Given the seriousness of the offending by the applicant and the very real risk that he will reoffend, the primary considerations of protection and expectations of the Australian community outweigh any claims with respect to the other considerations including non-refoulement and the extent of impediments if removed. The countervailing factors referred to above do not outweigh the factors in favour of non-revocation. In this regard, I note that primary considerations should generally be given greater weight than the other considerations. I see no reason not to apply this approach in this case. (Footnotes omitted.) 157. The Tribunal, with respect, agrees with the principles in the conclusions of the Deputy President set out above. 158. In this case there is a primary consideration which weighs somewhat in the Applicant's favour, the best interests of his half-brothers and niece and nephew. But the Tribunal is satisfied that the countervailing primary considerations weighing against revoking the cancellation of KYMM's visa outweigh those considerations weighing in the opposite direction. The conclusion of the Tribunal is that the exercise of the discretion is not enlivened in the sense of there being another reason why the original decision should be changed. 159. The Tribunal notes that it is open to KYMM to apply for a protection visa, where any claims he may make that Australia owes him protection would be assessed under section 36 of the Act (taking note that section 5M of the Act appears not to be, on the facts, relevant), and also notes the oral assurances given by the Respondent at the hearing that he would not be removed from Australia until he had the opportunity so to do. 160. The Tribunal also notes that a decision-maker, in considering a protection visa assessment, must first assess an applicant's refugee claims and any complementary protection claims before considering any character or security concerns (see Direction No. 75 - Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b), made by the then Minister for Immigration and Border Protection under section 499 of the Act). 31 The Tribunal therefore affirmed the decision under review.

Grounds of review 32 By his amended originating application, the applicant advances four grounds of review: 1. The Tribunal took into account the mandatorily irrelevant consideration that the Applicant could apply for a protection visa, or failed to carry out its statutory task because it misunderstood the Act by reason of not understanding the limitations of the bare ability to apply for a protection visa in considering the exercise of the discretionary power in s 501CA(4). 2. The Tribunal misunderstood or did not consider the legal consequence of its decision that the Applicant would be removed from Australia without being given an opportunity to apply for a protection visa. Particulars a. The Tribunal erred in accepting the Minister's 'oral assurances' that the Applicant 'would not be removed from Australia until he had the opportunity' to apply for a protection visa, because any such 'oral assurance' was: i. not supported by any evidence; and/or ii. inconsistent with the statutory duty in s 198(2B) of the Act, when read with s 197C, for an officer to remove the Applicant from Australia as soon as reasonably practicable. 3. The Tribunal failed to consider the Applicant's claim that he was de facto stateless. Particulars a. The Applicant advanced as another reason for revoking his visa cancellation that he was de facto stateless. b. The extent of the Tribunal's consideration of statelessness did not go further than the making of findings as to whether the Applicant was de jure stateless, and did not include any findings as to whether the Applicant was de facto stateless. 4. The Tribunal failed to consider the Applicant's claim to fear harm because of the risk that he might be conscripted upon return. Particulars a. The claim was identified in the delegate's reasons at [11] (CB B15), [55] (CB B22) and [58] (CB B23). b. The Tribunal's reasons do not make any reference to the claim. 33 At the hearing, the applicant read an affidavit of Gregory Hanson affirmed on 2 June 2020. That affidavit annexed a copy of the transcript of day 2 of the hearing before the Tribunal. There was no objection to this evidence and it was admitted.

Ground 1 34 It can be seen from the extract above that ground 1 has two parts: an irrelevant considerations argument and an argument about the Tribunal misunderstanding an aspect of its task. At the hearing the applicant informed the Court the first aspect of ground 1 was not pressed, but the second aspect was. On this aspect the applicant sought to rely on the reasoning in Omar v Minister for Home Affairs [2019] FCA 279 at [40]-[44]. At [27] of his written submission, he contended: the Tribunal elided the important differences between the ability to apply for a protection visa and whether to restore his cancelled visa, when purporting to answer the question of whether there is 'another reason' to revoke the cancellation. The Tribunal's reference to the bare ability to apply for a protection visa demonstrated that it misunderstood the limitations of any grant of such a visa (and therefore misunderstood the Act), and thereby failed to carry out its statutory task.

Ground 2 35 There is some overlap in subject matter at least between ground 1 and ground 2. The subject of ground 2 is the penultimate paragraph of the Tribunal's reasons extracted at [30] above: specifically, the Tribunal's statement that the Minister had given "oral assurances" that the applicant would not be removed from Australia until he had been given an opportunity to apply for a protection visa. The applicant makes two points. 36 First, the applicant submits that no such assurance was given: at most the Minister's representative stated it was her understanding in the absence of specific instructions that the applicant would be given an opportunity to apply for a protection visa. 37 Second, the applicant submits that any assurance is inconsistent with the obligation imposed on officers by s 198(2B) to remove unlawful non-citizens as soon as reasonably practicable. The applicant submits that the true legal position is that he is liable to be removed without being given an opportunity to apply for a protection visa. Therefore, the Tribunal failed to appreciate the true legal consequences of its decision.

Ground 3 38 Under ground 3, the applicant submits that the Tribunal failed to consider a submission that he is de facto stateless, because although he has a theoretical right to South Sudanese citizenship he cannot satisfy the evidentiary requirements for gaining it. The applicant submits that the Tribunal only considered his de jure nationality (finding that he had acquired South Sudanese citizenship).

Ground 4 39 Under ground 4, the applicant submits that the Tribunal failed to consider a submission that he will be at risk of being forcibly conscripted if he is returned to South Sudan. The applicant submits that the conscription issue was significant to his case and was distinct from the issue of harm due to instability and ethnic violence in South Sudan more generally (which was considered by the Tribunal). The applicant therefore submits that the Tribunal was required to engage with the issue and make findings about it.

Ground 1 40 With respect to the applicant's reliance on the first-instance decision Omar, the Minister submits that any error (if there was one, which he contends there was not) was immaterial. In the alternative, the Minister submits that Omar is wrong in that, although the Minister is required to consider any representations as to Australia's non-refoulement obligations under s 501CA, the Minister is not required to determine whether Australia's non-refoulement obligations are engaged. 41 During oral argument, counsel for the Minister informed the Court that a relevant decision of the Full Court (Ali v Minister for Home Affairs [2020] FCAFC 109) about, amongst other matters, the correctness of Omar on this matter, was to be handed down in less than a week. The Court granted the parties leave to file supplementary written submissions after the Full Court decision was handed down. The applicant also referred to the then forthcoming Full Court decision in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108, which was due to be handed down later on the same day as the oral hearing in this proceeding. The Court granted leave for the parties to include in their supplementary submissions any arguments they wished to make about the relevance of KDSP to the grounds of review in this proceeding.

Ground 2 42 In response to ground 2, the Minister submits that, on the proper construction of the Act (in particular s 501E and s 198(5A)), the applicant is able to apply for a protection visa before being removed. The Minister submits that, that being so, the Tribunal did not err in finding that the applicant would have that opportunity.

Ground 3 43 In response to ground 3, the Minister submits that, while the applicant submitted to the Department that he was de facto stateless, he did not advance that submission before the Tribunal. Instead, the applicant changed his case before the Tribunal and submitted that, on the basis of a statutory declaration of the applicant's mother, it was "unequivocal" that the applicant's country of reference is South Sudan and that because of his ethnic ties to that country he "will be considered 'a South Sudanese national by birth'". The Minister submits that the Tribunal cannot have erred by failing to consider a contention that was not advanced before it.

Ground 4 44 In response to ground 4, the Minister submits that, insofar as the applicant advanced submissions about the risk of conscription before the Tribunal, that risk "was rolled up with others", including "death, arbitrary detention [and] torture". The Minister submits that the Tribunal dealt with the risk of persecution in the context of militia activities, and by reason of his ethnicity as the Tribunal accepted it to be, and submits it was not necessary for the Tribunal to address "in a line-by-line fashion" each particular kind of harm the applicant might face if returned to South Sudan.

Ground 1: risks of harm if returned 45 This ground of review can be resolved without entering into some of what the Minister's counsel accepted were the more "complex" questions about how a decision-maker in the position of the Tribunal should approach a merits review of a refusal to revoke a visa cancellation where there are contentions made by an applicant about the harm she or he might face on return to her or his country of nationality, or about whether Australia's non-refoulement obligations are engaged. Some of those matters have been addressed by the Full Court in Ali. I deal with Ali below, but only to the extent necessary to resolve this application. 46 The short answer to this ground is that the Tribunal did not misunderstand its task. It had the benefit of the Full Court decision in Omar, and it plainly understood that it was required to give active intellectual consideration to any representations made to it on behalf of the applicant relating to the harm he might suffer if returned to South Sudan, or Sudan. Although the Tribunal made findings in substance agreeing with the position put by the applicant that the appropriate country of reference was South Sudan, and so considered the harm the applicant might suffer if returned to South Sudan, it made similar findings in relation to Sudan (being the Minister's case). It did so, as the passages I have extracted above indicate, by considering at a factual level what would happen to the applicant on his return, and by reference to country information and other material to which the applicant referred. 47 It recognised some limits on its fact-finding, because of the general nature of the representations made by the applicant: see [27] above. That it did so is a further indication that it understood its task was a fact-finding one.

Ali and GBV18 48 It is necessary now to address the effect of Ali, as well as the Full Court decision in GBV18 v Minister for Home Affairs [2020] FCAFC 17, which the Full Court in Ali referred to and adopted. 49 Ali concerned a personal decision by the Assistant Minister under s 501CA(4) of the Act, rather than a decision by the Tribunal. However no party suggested anything turned on that fact, in terms of its application to ground 1. 50 As the Full Court explained at [64], by reference to Moshinsky J's decision in DGI19 v Minister for Home Affairs [2019] FCA 1867 at [59], what was in issue in Omar at first instance, and what was not dealt with by the Full Court in that case, was (quoting Omar (first instance) at [43]) the different role that consideration of non-refoulement obligations might play in the exercise of a discretionary power (such as s 501CA(4)), compared to their role as, in effect, incidents of one criterion (the "protection criterion") in the requirements for the grant of a protection visa". 51 It is that issue which GBV18 and Ali have addressed, and settled. Despite statements in the Minister's supplementary submissions, whether or not the Minister considers the decision correct (a not unusual position for a party whose arguments have not been accepted), the law is as pronounced by the Full Court. 52 In Ali at [71] (and elsewhere) the Full Court distinguished Robertson J's decision in DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636, upon which the Minister placed some reliance in this application. The Full Court confined that decision to its own circumstances and stated the decision should not be seen as standing "for a more general proposition that Direction 75 necessarily remedies the "first misunderstanding" identified in BCR16". In his supplementary submissions the Minister fairly recognised he could not advance submissions based on DOB18 in quite the way he had done, given what the Full Court said in Ali. It is not necessary to say anything further about DOB18, but I should not be taken as suggesting there is anything erroneous about Robertson J's approach in that case; it is not clear to me that the Full Court went that far either. 53 Ali was a case where the applicant had expressly advanced, as a reason for revocation, that returning him to Ethiopia would place Australia in breach of its non-refoulement obligations, because he would face persecution on the basis of his Oromo ethnicity: at [5]-[6]. As quoted in Ali at [6], the Assistant Minister expressly stated: I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision, as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non­refoulement obligations would be fully considered in the course of processing the application. 54 The primary judge rejected a challenge to this finding, but the appeal in Ali challenged this rejection by three different grounds of appeal: Ali at [15]. As the Court observed in Ali, a different error entirely (and not one raised here or in Ali) may be non-compliance with the terms of Direction 75, insofar as it requires decision-makers who are bound by the Direction to give consideration to matters dealing with non-refoulement. 55 After noting some authorities concerning the nature and scope of non-refoulement obligations, and the terms of s 36, the Full Court in Ali stated at [28]: Ultimately, it was not contended on behalf of the Minister that s 36(2) of the Act accorded a coverage of protection which was coterminous with that which Australia had covenanted to provide under the international treaties into which it had entered. The necessary consequence is that its international obligations of non-refoulement extend to refraining from relocating a class of persons which is wider than those to whom protection visas might be granted under the Act. 56 As the Full Court in Sowa v Minister for Home Affairs [2019] FCAFC 111; 369 ALR 389 observed at [43], a passage cited with approval in Ali at [73], much depends on the terms of the original representations made to the decision-maker about whether there is "another reason" to revoke the cancellation decision. In that decision, by reference to BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456, the Full Court explained there was a difference between "claiming to fear harm if required to return to a place and non-refoulement obligations". 57 With respect, it is certainly the case that there may be a difference between those two matters. However, in some circumstances, the distinction, at a fact-finding level, may be somewhat illusory. That is because at its heart the non-refoulement obligation (whichever international instrument is identified) concerns not returning a person to a place where there are serious risks of certain kinds of harm, or harm for certain reasons. It is about the factual situation likely to face a person in the country to which she or he is proposed to be returned. So much is apparent from part of the Full Court's summary of principles in GBV18 at [32(e)], by reference to the Full Court in Omar: 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". (Original emphasis.) 58 Thus, the distinction is not binary. That said, there may of course be circumstances where a person makes representations about kinds of harm which would not on any view engage Australia's non-refoulement obligations. Or there may be other features of a representation that returning an individual to her or his country of nationality would contravene Australia's non-refoulement obligations, as the Full Court's reasons in Ali illustrate. 59 Aside from its endorsement of the distinction explained in Omar at first instance and set out at [50] above, one significance of Ali is the identification by the Full Court at [91] of another feature or consequence of apprehended non-compliance by Australia with its non-refoulement obligations. Having referred to observations by Wigney J in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [224] ("One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly") the Full Court said (at [91]): His Honour's comment in the last sentence emphasised that the consequence of non-compliance with Australia's treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia's reputation and standing in the global community. 60 The Full Court noted and extracted a similar observation by Charlesworth J in Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]. 61 The outcome of the Full Court's consideration of previous authorities, and its observations at [91], was that the statement by the Assistant Minister (extracted at [53] above) was found to constitute an error going to the jurisdiction of the Assistant Minister because (at [99]): at no stage was there any consideration of which, if any, non-refoulement obligation was owed in respect of him by reason of s 36(2) of the Act or any wider obligation, and nor was there any consideration of the consequences of returning the appellant to Ethiopia in breach of Australia's treaty obligations. 62 And at [103]: The necessary consequence is that the Assistant Minister did not consider the clearly articulated ground advanced by the appellant. He did not consider whether Australia owed non-refoulement obligations to the appellant, whether they arose under s 36(2) of the Act, the Convention or otherwise. He did not consider whether in returning the appellant to Ethiopia those obligations would be breached, and he did not consider the consequences for Australia of that breach. In light of the recent authorities, in particular the decision of the Full Court in GBV18(FC) and Charlesworth J in Hernandez, those omissions constituted a failure by the Assistant Minister to comply with the requirements of s 501CA(4) for the purposes of ascertaining whether he formed the required state of satisfaction. He was not entitled to "carve off" a consideration of them for possible examination at a later stage and his attempt to do so constituted a reviewable error. 63 And then, as to the second way the alleged error was framed, at [108]: Here it is important to keep in mind that an antecedent error by the Assistant Minister was the misunderstanding of the nature of the ground raised. It can be inferred from his approach that he did not appreciate that the appellant's ground concerned the entirety of Australia's non-refoulement obligations as well as the consequences of not complying with them. It is apparent that he equated the issue of Australia's non-refoulement obligations with the appellant's entitlement to a protection visa. It is pellucid from the terms of cl 14.1(4) of Direction 65 that this erroneous approach is one which is ingrained in the Department's processes. Despite that, regardless of whether the Assistant Minister accurately appreciated the nature of the ground raised, it was an error to assume that it would be treated in the same manner in the two different processes. 64 Finally, as to the third way the alleged error was framed, at [117]: In relation to the error which the appellant pursued on appeal, as was the case in Hernandez, the real issue in relation to Australia's non-refoulement obligations concerned the fact of and the consequence of Australia's non-compliance with them. Whilst it may be that in any subsequent application for a protection visa, the issue of whether any non-refoulement obligations are owed will be partially ascertained by a consideration of whether the applicant satisfies the criteria in s 36(2), there will be no consideration of the impact of non-fulfilment of these obligations in relation to Australia's reputation or otherwise. 65 It would appear that the Full Court's decision in Ali, although plainly drawing on a number of previous authorities, goes further than those authorities in a number of respects. It is a decision by which a single judge is bound. The same is true of GBV18. Therefore, I must apply it to the way the applicant in this case has developed his argument under ground 1. It was not contended by the applicant, as I understood the supplementary submissions, to be relevant to any of the other grounds of review. 66 In applying both Ali and GBV18, what was said by the Full Court in Ali at [86] should be recalled, echoing what was said earlier at [51]: As the above authorities show, matters of this nature can be factually idiosyncratic such that it is essential to ascertain the nature and scope of the grounds advanced to the Minister in the representations made in response to the invitation given under s 501CA(3)(b). 67 The Minister is correct to submit that, in the present case, the Tribunal did not make a statement of the kind made by the Assistant Minister in Ali. Ground 1 instead focuses on the Tribunal's statements at [159]-[160]: see [30] above. As I find below, those statements are factually and legally correct. In my opinion they are couched in the terms they are because of the (erroneous) focus by the applicant's representative before the Tribunal on whether the applicant met the criteria for a protection visa. 68 The Minister is also correct to submit that, unlike Ali, where the Assistant Minister dismissed the applicant's representation about non-refoulement obligations, here the Tribunal engaged with that representation from [114] onwards, and did so in terms articulated by the Full Court in Omar. The Full Court in Ali does not suggest, even remotely, that it would be impermissible for a decision-maker to take the approach outlined by the Full Court in Omar. Of course, no generalisations can be made and all depends on how the particular representations are actually explained, and what the factual circumstances of an individual, as put forward to the decision-maker, are. In this case, the Tribunal engaged actively with the task and the evidence before it, as Omar required it to do. 69 The distinction made by the Tribunal in its reasons at [119] (between "are" and "may", extracted at [24] above) is not sufficient, in the context of the Tribunal's reasoning read fairly and as a whole, to persuade me that the Tribunal misunderstood how it was required to deal with the non-refoulement representation made on behalf of the applicant. In circumstances where it engaged with the representation, the distinction it sought to draw did not affect the substance of its consideration of the applicant's representation. That is especially so when regard is had to the Tribunal's inquiry of the Minister's representative during the hearing, and the assurance the Tribunal was given that he would be able to apply for a protection visa, which the Tribunal records at [159]. 70 In summary, the Full Court's decision in Ali does not alter my conclusion that ground 1 is not made out on the terms of the Tribunal's reasons in this case, and on the terms of the representations and argument as presented on behalf of the applicant to the Tribunal.

Ground 2: removal prior to protection visa application 71 Ground 2 should be rejected for the reasons advanced by the Minister. While I do not accept the Minister's attempt to sever the passages at [159]-[160] from the rest of the Tribunal's reasoning, I do accept that what the Tribunal meant in these passages was no more than an acknowledgement that the applicant had an opportunity to apply for a protection visa. As the Minister contended, the scheme of the Act makes that clear by s 501E and s 198(5A). 72 This observation by the Tribunal flows from the following exchange during the hearing, on which the applicant relied: SENIOR MEMBER: I see. I see what you're saying. But in terms of the - well, I suppose I'll put it directly to the Minister. In terms of will the applicant potentially have the ability to apply for a protection visa before he's - if the tribunal affirms the decision under review? MS NORONHA: My understanding is yes, Senior Member, but I don't have any specific instructions. 73 I consider it is correct to see [159]-[160] as the Tribunal's attempt, as part of its reasoning process, to make it plain that this is its understanding of the opportunity the applicant has. 74 Its understanding is correct on the scheme of the Act, and the applicant has been able to apply for a protection visa since, at least, the date of the Tribunal's decision. To say as much does not diminish the importance of the matters to which the Full Courts in GBV17 and Ali referred. Rather, it recognises the way the legislative scheme operates, no more. It also says nothing about the likelihood the applicant would be granted such a visa: cf DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [108]. There were no specific representations made to the Tribunal to the effect that it was a futile exercise for the appellant to apply for a protection visa because it would inevitably be refused, and so did not provide any real opportunity for protection from the harm he feared. 75 It may well be correct, as the applicant submitted, that the terms of the removal duty in s 198 contemplate that duty may be engaged notwithstanding a person is entitled apply for a protection visa: see s 198(3). As counsel pointed out, subs (3) does not expressly pick up s 198(2B) (being the applicable removal duty); however, that is not a curiosity that needs to be addressed given the conclusions I have reached. I do not see that state of affairs as impugning the observations made by the Tribunal at [159]-[160], which remain factually and legally correct, in the context in which they were made.

Ground 3: whether de facto stateless 76 The Tribunal conducts a merits review of the delegate's decision, in order "to arrive at the correct or preferable decision in the case before it according to the material before it": see Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 425, quoted in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10]; Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 93 ALJR 629 at [14] Subject to the qualifications identified by the High Court in Frugtniet at [15], that review function gives an applicant some freedom to frame her or his case and arguments and, if she or he chooses to do so, to introduce new matters or abandon old ones. The flexibility inherent in a fresh consideration by the Tribunal means that, subject to questions of procedural fairness arising from the approach taken by the delegate (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [35]-[37]), it is important for the Tribunal to bring its independent mind to bear on how the applicant puts matters to it, not how they were put to the delegate. 77 What the Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 sought to emphasise at [56]-[68] was that a proper discharge of this function requires the Tribunal to address claims or arguments relevant to the outcome of the review, where those claims or arguments are either raised expressly or arise "fairly" or "squarely" (or some such other descriptor) on the material. The reason for the qualifier is to distinguish claims or arguments which a fair performance of the merits review task, even accepting its inquisitorial nature, does not require. The gravity of the failure to address a claim or argument must be sufficient to justify a conclusion that the jurisdiction of the Tribunal has not been lawfully exercised. 78 That is why it may well be the case that claims or arguments are "shaped" by how a matter is in fact put to the Tribunal, and this may affect whether the Tribunal can be said to have exceeded its jurisdiction or not: see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [65], [71]. 79 There is no doubt the applicant made a clear argument before the delegate that he may well be rendered stateless because of his inability to provide the necessary proof to satisfy the authorities he was entitled to South Sudanese nationality. In turn, the delegate dealt with this issue. 80 However, I accept the Minister's submission that the applicant changed his positon before the Tribunal. He did so, it would appear, as part of the forensic decision-making by his then legal representatives, counsel and solicitors. Before the Tribunal, as it records in its reasons, the applicant's case was that he was a citizen of South Sudan, and that he could establish this by reason of the statutory declaration given by his mother, which was before the Tribunal. 81 Part of this change of position was for the applicant to move from reliance on a claim of having Dinka ethnicity to being of Jur-Chol ethnicity (his father's ethnicity and perhaps also his mother's ethnicity through her mother, and to which she deposed in her statutory declaration before the Tribunal), being proof of an ethnicity which would bring him within the terms of the South Sudanese citizenship legislation. There is no suggestion this change was anything other than a genuine one, on discovering further information through his mother. Ethnicity, including proof of ethnicity, might often be a complicated factual issue. This change was confirmed by counsel before the Tribunal during argument: The applicant's position is that he is South Sudanese of the Jurchol ethnicity and the respondent's position is that he is Sudanese. 82 The Tribunal also stated at [122]: The Tribunal also records, for completeness, that in the course of the hearing, counsel for the Applicant withdrew the submission that KYMM is of Dinka ethnicity, and asked the Tribunal to strike that part of the Applicant's submissions out. Ms Gang said that KYMM would maintain that he is of Jur-Chol ethnicity, and Ms Noronha, on behalf of the Respondent, submitted they agreed with that particular submission. 83 The Tribunal was not required to consider any previous contentions of the applicant that he may be stateless. It was entitled to take his position on his nationality as it was clearly outlined on merits review before the Tribunal. That position was that he was able to prove (as the Tribunal accepted by way of positive findings at [49]-[50] and [134]), through his mother's evidence, that he was of Jur-Chol ethnicity and so should be considered a citizen of South Sudan.

Ground 4: conscription 84 This ground must also be rejected. The Tribunal did not exceed its jurisdiction by failing to address specifically in its fact-finding whether it accepted the applicant may be subjected to forcible recruitment (or conscription) by various armed factions in South Sudan. It is clear that such a submission was put to the Tribunal (at [67] and [70] of the applicant's reply to the Minister's statement of facts, issues and contentions): [In] 2018, Human Rights Watch highlighted patterns of torture and arbitrary arrest of ethnic Luo men and reported that young men continue to face forcible recruitment by armed forces: Witnesses also reported that rebels in Wad Alel during June and July forcibly recruited young men and looted civilian properties. One young man from Wad Alel said that rebels searching for "strong youth" took two of his friends by force. … Soldiers arbitrarily detained ethnic Fertit men suspected of being rebels in two military facilities, Grinti and Jebel Akhdar, without charge or access to legal assistance. Former detainees said that they were harshly beaten and otherwise tortured while in detention. This is similar to other patterns of arbitrary detention and torture of ethnic Fertit and Luo men in Wau that Human Rights watch documented in early 2016. … The reports above demonstrate the high-risk that the Applicant will be harmed if he is returned to South Sudan on account of his ethnicity. As a young male, he is also at increased risk of forcible recruitment and/or arbitrary detention from armed forces. (Original emphasis; footnote omitted.) 85 However, the context in which this was put was that this was one of several forms of harm that might befall the applicant if he were forced to return to South Sudan. Other forms of harm mentioned in the submissions were violence, shootings, killings, arbitrary detention, abductions and abuse. 86 The Tribunal accepted the applicant's contentions on these matters. It did so at [129] as part of an express finding that the applicant's ethnicity will "directly increase the harm the Respondent acknowledged he would face". 87 At [133], the Tribunal found this "consideration weighs relatively heavily in the Applicant's favour". However it did so while also finding there was a paucity of material linking the applicant's personal circumstances with the situation in South Sudan. Had there, for example, been more factual material specifically about what would happen to the applicant by way of forcible recruitment, and had the Tribunal overlooked this, there may have been an argument to be had about jurisdictional error. However, that is not this case. 88 Contrary to my understanding of the Minister's submissions, it is not the case the Tribunal found there was a real chance the applicant would be killed if he were returned to South Sudan. At [130], the Tribunal rejected a contention put on the applicant's behalf which pitched this risk as "certain". Otherwise, as far as I can see, the Tribunal made no finding about the level of harm rising to this absolute level. If it had, as I observed during oral argument, the Court would have expected to see considerably more reasoning about how such a prospect could be outweighed by even a high risk of reoffending in the Australian community. It would be an extraordinary situation where protection of the Australian community could be said to justify forcing a person to face a likelihood of death in another country. 89 Ground 4 fails.

Concluding observations 90 At the conclusion of the Minister's submissions, the Court raised a matter about the way the review was conducted on behalf of the Minister before the Tribunal, as a systemic issue, although also one applicable to this review. As these reasons have demonstrated, a considerable amount of time in the Tribunal review was occupied with questions about whether the applicant was a citizen of Sudan or South Sudan, and questions about what the factual circumstances would be on his return. 91 It is difficult to believe that those advising the Minister, and those within his Department, are not well aware of what, in reality, happens to Sudanese and South Sudanese people who are removed from Australia. It is difficult to believe there have not been actual removals of individuals which have given the Department, and those who advise the Minister, a factual foundation to understand - for example - what kind of evidence is required to establish citizenship, how likely or readily citizenship is accepted, and the conditions to which individuals are in fact returned. All of this must, by 2020, be part of the lived and learned experience of the removal of individuals under the Migration Act to Sudan and South Sudan. DFAT, for example, must be involved to some extent and could be asked to supply information as it is asked to supply much other information for these reviews. 92 As I said to the Minister's counsel, this is not necessarily a matter against the Minister's interests in the Tribunal, or otherwise. It is a matter of ensuring the Tribunal, as the merits review body, has the most clear, relevant, factually accurate material before it. It is a matter of ensuring the Tribunal (and those who appear before it) does not get bogged down in arid legal debates about nationality when the reality of how nationality laws are administered by a given country may be well known to those advising the Minister, and to his Department. It is about introducing levels of clarity and certainty in matters which come to the Tribunal for review, on the vital issue about the realistic fate of individuals if they are removed. 93 Those who advise the Minister, and his Department, should be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised.

Conclusion 94 The application must be dismissed. I did not understand the applicant to resist the usual principle that costs should follow the event. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.