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

Key legislative provisions 6 Although the decision that is the subject of this proceeding was made under s 501BA, ss 501(3A) and 501CA are also relevant by way of background and context. 7 Section 501 of the Migration Act relevantly provides: (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 8 That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide as follows: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 9 Section 501CA provides in part: (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. 10 Section 501BA provides: 501BA Cancellation of visa - setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister - natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable under Part 5 or 7 (5) A decision under subsection (2) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (2), see section 501G.

Background facts 11 The following summary of the background facts is based on the material in the Amended Court Book, supplemented by the material annexed to an affidavit of Carina Ford, the solicitor acting for the applicant, dated 15 April 2020. That affidavit annexed a copy of the Departmental submission to the Minister dated 6 August 2019 in relation to the exercise of the power in s 501BA in respect of the applicant. 12 The applicant first arrived in Australia in 1974, at seven years of age. He departed later in 1974, and returned in 1981, at approximately 15 years of age. As at the time of the decision under review, he had been ordinarily resident in Australia for approximately 38 years. 13 On 25 October 2004, the applicant murdered his wife, who was aged 36 years old at the time. The couple had been married for 14 years and had two daughters. The daughters were both home at the time the applicant committed his offence. Details of the offence are set out in the Minister's statement of reasons at [26]-[38]. 14 On 18 July 2008, the Supreme Court of Victoria convicted the applicant of murder, and sentenced him to 17 years imprisonment. The remarks of the sentencing judge are summarised in the Minister's statement of reasons. 15 On 4 April 2018, the applicant's visa, which was a Class BB Subclass 155 Return (Residence) visa, was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act (the April 2018 cancellation decision). 16 The applicant made a request for revocation of the April 2018 cancellation decision, and made representations in support of that request. 17 On 11 December 2018, a delegate of the Minister made a decision under s 501CA not to revoke the April 2018 cancellation decision (the delegate's decision). 18 The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate's decision. 19 On 5 March 2019, the Tribunal decided (in substitution for the delegate's decision) that the cancellation of the applicant's visa should be revoked pursuant to s 501CA(4). As a consequence, the Department reinstated the applicant's Class BB Subclass 155 Return (Residence) visa.

The Minister's decision 20 On 15 August 2019, the Minister decided to cancel the applicant's visa, relying on the power in s 501BA of the Migration Act. The Minister was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a), on the basis of s 501(7)(c). The Minister was also satisfied that cancellation of the applicant's visa was in the national interest. In these circumstances, he decided to exercise his discretion under s 501BA to cancel the applicant's visa. 21 The Minister also signed a statement of reasons on the same day, 15 August 2019. The reasons are lengthy, comprising 175 paragraphs over 24 pages. 22 At [9] of the statement of reasons, the Minister noted that under s 501BA(3), the rules of natural justice did not apply to a decision under s 501BA(2). At [10], the Minister stated that in the present case he chose to proceed without giving the applicant an opportunity to be heard before making his decision. The Minister stated, at [11], that he had given consideration to the applicant's representations seeking revocation of the April 2018 cancellation decision and his representations in the Tribunal proceeding. 23 The Minister stated, at [16], that he was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a), as defined by s 501(7)(c). There is no issue in this proceeding regarding this aspect of the Minister's decision. 24 The Minister then considered whether cancellation of the applicant's visa was in the national interest. After considering the applicant's criminal conduct and the risk to the Australian community, the Minister concluded at [99] that it was in the national interest to cancel the applicant's visa. No issue is raised in this proceeding in relation to this aspect of the decision. 25 The balance of the Minister's statement of reasons concerned discretionary considerations. As explained in [100], the Minister considered whether there were relevant considerations that might support not cancelling the applicant's visa despite the Minister's satisfaction that the applicant did not pass the character test and being satisfied that the cancellation of the applicant's visa was in the national interest. This part of the Minister's reasons was structured under the following headings: Best interests of minor children; Expectations of the Australian community; International obligations; The strength, nature and duration of ties to Australia; Impact on victims; Extent of impediments if removed. 26 The part of the statement of reasons that is the focus of the applicant's ground of review is the part headed "International obligations". Given its centrality to the applicant's ground, I set it out in full: 108. I have considered the claims regarding international obligations made on [the applicant's] behalf in the context of his request for revocation of the mandatory cancellation decision under s501(3A). Among other things, the representations point to Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR), with particular reference to Article 7 which provides (in part) that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'. It is claimed that removing [the applicant] from Australia will amount to cruel and inhuman treatment, in that 'he will be forced to live in a country where he will struggle to subsist' and where 'he will not have a means of physical support, nor will he have a social network vital for a normal life'. It is further claimed that it 'will also be cruel and inhuman treatment on his Australian citizen family members' in that 'his parents will never see him again, and will be denied his care'. 109. I do not accept that the lawful removal of [the applicant] from Australia under the Migration Act would, of itself, amount to cruel or inhuman treatment under Article 7 of the ICCPR. Nor do I accept that a lawful removal of [the applicant] would amount to or lead to cruel or inhuman treatment of his family members who remained in Australia. 110. Moreover, I do not accept that his living conditions in the United Kingdom, on his return, are matters that engage Australia's obligation under Article 11 of the International Covenant on Economic, Social and Cultural Rights. 111. Further, since the removal of a non-citizen from Australia is not a criminal penalty, it does not enliven Articles 14 and 15 of the ICCPR, which appear to be the provisions alluded to by [the applicant] in his previous representations in this regard. 112. [The applicant] has also referred to 'human rights obligations' that 'enshrine protection of the family', noting that his removal would mean that 'his parents will never see him again, and will be denied his care'. [The applicant] has not mentioned any specific obligation that he considered to be enlivened in this regard. However I am aware of the following provisions of the ICCPR, which refer to protection of the family: • Article 17.1: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. • Article 23.1: The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 113. I do not accept that the consequences of the removal of [the applicant] to the United Kingdom are such that the above provisions of the ICCPR would be contravened. 114. Insofar as it is being claimed that removing [the applicant] to the United Kingdom would be a breach of Australia's implied non-refoulement obligation under Article 7 of the ICCPR, in that it would result in him suffering cruel or inhuman treatment in the United Kingdom, I do not accept that would be the case. I note, however, that [the applicant] is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country, including claims that they will suffer harm of the kind specified in Article 7 of the ICCPR (ss36(2)(aa) and (2A) refer). Any claim by [the applicant] that he would experience economic or other hardship in the United Kingdom to a degree amounting to harm of the kind referred to in Article 7 could be fully considered through the making of a Protection visa application. 115. Further, I am aware that the Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, the Minister has given a direction under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring the application for consideration under s501 of the Act. 116. I have also considered and taken into account the possibility that it may be the case that the Minister at that time personal considers [the applicant's] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequences of my decision, albeit an unlikely one. 117. Moreover, I am mindful that Australia's international non-refoulement obligations, which may potentially be engaged in the case of [the applicant], may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2). I am also mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s501BA, is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion. 118. Further, I am cognisant of the possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. (Emphasis added.) 27 It is convenient to note at this point that the applicant relies, in particular, on the last sentence in [114], while the respondent relies, in particular, on the first sentence of [117]. 28 In the section headed "Extent of impediments if removed", the Minister considered the impediments that the applicant would face if removed from Australia to his home country "in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the United Kingdom" (see [153]). At [158], the Minister noted that the applicant submitted that poor employment prospects and difficulties securing accommodation "may result in economic destitution" and that this would have "a deleterious impact on his mental and physical health". This part of the statement of reasons included: 160. I accept [the applicant] has physical and mental health issues that will require ongoing medication, management, and treatment, and that he will need to find new health providers if he returns to the United Kingdom. I consider this may cause [the applicant] some distress and anxiety, particularly given his mental health issues. I note the AAT cite they had no evidence of the availability of social services in the United Kingdom. However, I am satisfied [the applicant] will have the opportunity to access health services, including specialist mental health services, commensurate with other British citizens in a similar situation. … 164. I acknowledge [the applicant] fears not being able to find employment and the AAT stated they had no evidence of his employment prospects in the United Kingdom. However, I also take into account that [the applicant] has a strong employment history and academic background as an engineer, has undertaken a wide variety of vocational training while imprisoned, and intends to work in the vocational sector on his release. [The applicant] has expressed confidence in his ability to secure work and contribute to the Australian community on his release. I consider that [the applicant's] academic history, vocational training, confidence in obtaining employment, and plan to work in the vocational sector are all transferable to the United Kingdom, although I take into account that his health issues, if not managed or treated, [may] impede these prospects. 165. I acknowledge [the applicant] also holds fears of not finding accommodation and being destitute. I note that [the applicant] also submitted that his parents have the financial means to support him in Australia, and I consider that they may be able to assist him with some financial support in the United Kingdom at least for a period of time. I also consider that [the applicant] has the opportunity to access social support services commensurate with other British citizens in similar situations. 166. In summary, I find that [the applicant] is likely to experience some logistical and financial difficulties in the United Kingdom, and that his mental and physical health issues may impede him in finding employment and otherwise adjusting to living in the United Kingdom. Further, [the applicant's] emotional difficulties are likely to be a long-term issue. I find that although [the applicant] is likely to have the opportunity to access some social support services and that this may assist him maintaining basic living standards and access to services commensurate with what is available to other British citizens, I also consider that his lack of family support and being unable to see his parents, and his lack of other family and friends in the United Kingdom, will cause him significant hardship and further exacerbate his health issues, and greatly impede his ability to adjust to life in the United Kingdom. 29 The statement of reasons contained a concluding section at [167]-[175]. The Minister stated at [169] that the applicant had committed a very serious violent crime, namely murder; and that non-citizens who commit such offences should not generally expect to be permitted to remain in Australia. The Minister stated at [170] that: the Australian community could be exposed to significant harm should the applicant re-offend in a similar fashion; the Minister could not rule out the possibility of further criminal conduct by the applicant; and the Australian community should not tolerate any risk of further harm. The Minister also took into account the impact that a decision not to cancel the applicant's visa would have on victims: at [171]. The Minister then stated at [172]: I found the above considerations outweighed the countervailing considerations in [the applicant's] case including impact on his family members who support him, particularly his parents and brother. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community and hardship to be endured by his family who support him, in particular his parents, brother and other family members. I have particularly taken into account that [the applicant's] parents will likely be unable to see him again due to their inability to travel and this will be emotionally distressing to them. I have also considered the impediments he will face upon return to his home country, noting [the applicant] requires ongoing psychiatric care and mediation and will not have the support of family members or friends. 30 Ultimately, the Minister concluded that the considerations favouring non-cancellation, in particular the applicant's ties to Australia and the hardship that his return to the United Kingdom would cause him and his family members, were outweighed by the national interest considerations: at [175]. Accordingly, the Minister decided to exercise the power in s 501BA to set aside the Tribunal decision, and to cancel the applicant's visa.

The application for judicial review 31 The applicant has applied to this Court for judicial review of the Minister's decision. The applicant relies on a single ground, which has been set out above. Although the respondent to the proceeding as commenced was the Minister for Home Affairs, it is common ground that the name should be amended to read: "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs". I will therefore make an order to this effect.

The applicant's submissions 32 In his outline of submissions, the applicant submitted that: he made a claim that he is a person who engages Australia's non-refoulement obligations because his removal would contravene the implied obligation under Art 7 of the ICCPR not to forcibly return people to places where they may suffer irreparable harm (see s 5 of the Migration Act); the claim was based on the applicant's inability to subsist if returned to the United Kingdom. In the applicant's reply submissions, he stated that the reference to "claim" had the capacity to misdirect attention, and a better expression was the "protection issue". 33 The applicant relies on a submission prepared by Haydn Brand, the applicant's former representative, on behalf of the applicant. It appears that the submission was provided to the Department in support of the applicant's request for revocation of the April 2018 cancellation decision. The submission dealt with Australia's international obligations at pp 42-46. This section included the following: The ICCPR provides that human rights are unalienable. That means all individuals within the territory and jurisdiction are protected by these rights, without discrimination. The non-citizen's conviction does not reduce his entitlement to the same human rights protections as the rest of the community. Therefore, it is submitted, that [the applicant] is entitled to the same protection against (briefly): - "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Relevant here, is that the non-citizen's only source of support, only network of family and friends, are within Australia. He has no life outside Australia. It appears that removing him from Australia will amount to cruel and inhuman treatment. If his visa is not re-instated, he will be forced to live in a country where he will struggle to subsist. He will not have a means of physical support, nor will he have a social network vital for a normal life. As he has lived the majority of his life in Australia, and in light of him not being a risk to the Australian community, it would be cruel to the non-citizen to remove him. (Emphasis in original; footnotes omitted.) 34 In the applicant's outline of submissions, he accepted that the Minister correctly observed that the bare fact of removal, of itself, would not amount to a breach of Art 7 of the ICCPR (see [109] of the statement of reasons). The applicant submitted that the Minister then responded to the substance of Arts 11, 14, 15, 17.1 and 23.1 of the ICCPR and found that they were not engaged in the applicant's case, and that "[s]o much may be accepted". 35 The applicant submits that the Minister failed to engage with the balance of the applicant's claim based on Art 7 of the ICCPR, namely the contention that he would "be forced to live in a country where he will struggle to subsist" and that he "will not have a means of physical support, nor will he have a social network vital for a normal life". The applicant submits that the Court should find that the reason why the Minister did not engage with the substance of the claim was because he thought that the claim "could be fully considered through the making of a Protection visa application" ([114] of the Minister's statement of reasons). 36 In oral submissions, the applicant's counsel confirmed that he was not relying on a "failure to consider" argument; the applicant's contention was that the Minister's state of mind was affected by a misunderstanding of the law (T4). 37 The applicant submits that the Minister's decision is affected by jurisdictional error because it is based upon a wrong understanding of the law: see Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 at [54] per Robertson J. The applicant submits that his claim by reference to Art 7 of the ICCPR would not be "fully" considered in the context of a protection visa application because the criteria in the Migration Act require an applicant to satisfy the Minister of the existence of an "intention" in respect of the claimed harm, whereas this is not required under the ICCPR: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362. In oral submissions, the applicant's counsel relied on the judgment of the Full Court of this Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim). He submitted that the applicant's contention was similar to the argument accepted in that case. 38 The applicant submits that [114] and [117] of the statement of reasons are contradictory, in that [117] states that the Minister understood that the applicant's claims "may not be fully encompassed" by the protection obligations reflected in the visa criteria in s 36(2). The applicant submits that the Minister's choice of action (in not considering the subsistence claim) was motivated by what he stated at [114]. The applicant submits that, while he cannot be precise about the error, an error must have been made: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

Consideration 39 Given the overlap between the applicant's contention in the present case and the argument accepted by the Full Court in Ibrahim (in relation to ground 3 in that case), it is convenient to start by outlining the relevant part of the Full Court's judgment in Ibrahim. As in the present case, Ibrahim concerned a decision under s 501BA(2) of the Migration Act. In the Assistant Minister's statement of reasons in Ibrahim, he stated that he considered it "unnecessary to determine" whether non-refoulement obligations were owed in respect of Mr Ibrahim because he was able to make a valid application for a protection visa, "in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application" (see Ibrahim at [67]). The Full Court held, in summary, that the Assistant Minister had fallen into error by conflating Australia's non-refoulement obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 with the protection obligations to which the Migration Act refers and which are considered on an application for a protection visa: at [100]-[116]. 40 Although in Ibrahim the relevant divergence between intentional non-refoulement obligations and the protection visa criteria concerned the "internal relocation principle", as I noted in DGI19 v Minister for Home Affairs [2019] FCA 1867 at [84], another example of such divergence is Parliament's decision to require an applicant to satisfy the decision-maker that a person has a specific "intention" to cause the applicant certain kinds of harm in order to satisfy the visa criterion in s 36(2)(aa): SZTAL at [4]-[5]. 41 There are, however, substantial differences between the Minister's statement of reasons in the present case and the Assistant Minister's reasons in Ibrahim. 42 First, in the present case, the Minister did in fact consider a substantial part (at least) of the applicant's submissions concerning international obligations (unlike Ibrahim where the Assistant Minister stated that it was "unnecessary to determine" whether non-refoulement obligations were owed). At [109], the Minister stated that he did not accept that the lawful removal of the applicant from Australia would, of itself, amount to cruel or inhuman treatment under Art 7 of the ICCPR; nor did the Minister accept that the lawful removal of the applicant would amount to or lead to cruel or inhuman treatment of the applicant's family members who remained in Australia. At [110], the Minister stated that he did not accept that the applicant's living conditions in the United Kingdom, on his return, would engage Australia's obligations under Art 11 of the International Covenant on Economic, Social and Cultural Rights. The Minister also found, at [111], that the removal of the non-citizen from Australia is not a criminal penalty, and therefore did not enliven Arts 14 and 15 of the ICCPR. The Minister also concluded, at [113], that he did not accept that the consequences of the removal of the applicant to the United Kingdom were such that Art 17.1 or Art 23.1 would be contravened. Finally, at [114], the Minister stated that, insofar as it was claimed that removing the applicant to the United Kingdom would breach Australia's implied non-refoulement obligation under Art 7 of the ICCPR, in that it would result in him suffering cruel or inhuman treatment in the United Kingdom, "I do not accept that would be the case". Thus, in the present case the Minister rejected the applicant's submissions that returning him to the United Kingdom would breach Australia's non-refoulement obligations. 43 Secondly, unlike the reasons of the Assistant Minister in Ibrahim, the Minister's reasons in the present case included a statement that the Minister was mindful that Australia's international non-refoulement obligations "may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2)" (see the statement of reasons at [117]). This statement indicates that the Minister had a correct understanding of the relevant aspect of the Migration Act. 44 To the extent that the last sentence of [114] may create a doubt about whether the Minister appreciated that Australia's international non-refoulement obligations may not be fully encompassed by the protection criteria in s 36(2), the sentence needs to be read in context. In the penultimate sentence of [114], the Minister referred specifically to s 36(2)(aa) and (2A), after referring to claims that a person will suffer harms of the kind specified in Art 7. Section 36(2)(aa) refers to "significant harm" and s 36(2A) provides that a non-citizen will suffer significant harm if (among other things) the non-citizen will be subjected to "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". In the context of the penultimate sentence of [114], and the reasons as a whole, the last sentence may be intended to say no more than that, insofar as the applicant was claiming that he would be subjected to "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" if returned to the United Kingdom, claims of this type were capable of being raised in the context of an application for a protection visa. 45 Having regard to the above matters, in particular the statement in [117] of the statement of reasons, I am not satisfied that the Minister failed to act on a correct understanding of the law, in that he wrongly thought that the applicant's protection claims would be "fully" considered through a protection visa application. While the last sentence of [114] provides some support for the applicant's contention, that sentence needs to be read in the context of the statement of reasons as a whole. When so read, the sentence does not establish that the Minister proceeded on the basis of a misunderstanding of the Migration Act or its operation. 46 For these reasons, the applicant's ground of review is not made out.

Conclusion 47 It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the applicant pay the respondent's costs, to be fixed by way of a lump sum. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.