The 'first misunderstanding' identified in BCR16 - grounds 1(b) and 3
61 Grounds 1(b) and 3 of the amended notice of appeal relate to the 'first misunderstanding' of the Assistant Minister identified by the majority in BCR16 (which the primary judge found to have been made by the Minister in this case, at [60]-[68] and [70] of the Reasons).
62 The Minister's submissions in relation to these grounds can be summarised as follows:
(1) This aspect of the appellant's argument in BCR16 was put, in part, on the basis of the state of the evidence in that case. The "assumption" held to involve error (namely, that non-refoulement obligations would be considered in the event that the appellant were to apply for a protection visa) was said to be both wrong in law and not to have been established as a matter of fact: BCR16 at [35].
(2) The error that the Minister was ultimately held to have made was an error as to the "likely" course of decision-making under the Act: see BCR16 at [67] and [70]. That is, the Minister had failed to appreciate that there was a "probability", described by the majority as "real", that any later decision as to the grant of a protection visa would be made on character grounds, considered ahead of other criteria: BCR16 at [52]. Returning to that issue at [75], the majority said that the state of the evidence in that case suggested a "probability" that any protection visa application would be decided on character grounds - and that there was no evidence that the Minister or delegate would consider the risk of harm to the appellant if he made a protection visa application.
(3) Understood in that context, the critical finding in BCR16 at [67]-[69] was a conclusion that the Minister failed to appreciate those matters; that is, the likely future practical operation of the Migration Act, in a particular set of existing factual circumstances, as found by the Court on the state of the evidence in that case. It was not merely an error as to the proper construction of the Act.
(4) In the present case, and in contrast to BCR16, there was additional evidentiary material as to the likely future course of decision-making in the form of the affidavit of Ms Lauman, affirmed on 30 June 2017, dealing with PAM3. That evidence indicated that decision-makers under the Migration Act were instructed to assess protection obligations in respect of all persons making applications for protection visas, even if that person was liable to be refused a protection visa for failure to satisfy other criteria (including character-related criteria). The rationale for that approach was also explained in Ms Lauman's affidavit: in cases where a protection visa could not be granted for failure to satisfy other criteria, the assessment of whether Australia's protection obligations were engaged was nevertheless said to be "important" because it "will assist with the appropriate management of the applicant's case following the decision on their application" (which might include, for example, consideration of the Minister's so-called "dispensing powers" or the making of a "residence determination" under Pt 2, Div 7, subdiv B of the Migration Act).
(5) It is true that, as the primary judge noted, PAM3 did not at the relevant time have the status of a direction made under s 499 of the Migration Act. (This is no longer the case - a direction in substantially similar terms was made under s 499 on 5 September 2017.) That does not detract from the Minister's argument. The very point of such non-binding guidelines and statements of government policy is that identified in the joint reasons in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [54] (dealing with a different aspect of PAM3): that is, they help to "promote consistency" in "high volume decision-making". As was also there noted, such an approach is both permissible and desirable because, amongst other things, it "assure[s]" the integrity of administrative decision-making by "diminishing the importance of individual predilection" and "the inconsistencies which might otherwise appear in a series of decisions" (see similarly Gageler J at [68]). In short, such guidelines and policies are designed to produce a measure of uniformity across the range of administrative decisions to which they apply. Unless one was to make an assumption (unsupported by any evidence in this case) that such a document would simply be ignored, the existence of such guidelines or statements of policy pointed inexorably to the conclusion that it was, as a practical matter, "likely" that the respondent's protection claims would be assessed, reflecting the uniformity of approach envisaged by PAM3.
(6) And that is so notwithstanding the fact that, as the primary judge also correctly observed, the Minister was likewise under no legal obligation to act in accordance with PAM3 were he or she to choose personally to exercise the powers conferred by ss 501(3) (or, perhaps, s 65). There is no basis to infer that (if in fact the Minister did engage in the exercise of those powers) he or she was "likely" to depart from such an approach, particularly given the "important" policy rationale identified in PAM3. Indeed, PAM3 states that Australia's protection obligations are to be considered in the context of a protection visa application prior to any referral for consideration of the exercise of the powers conferred by ss 501(1) and (3). Necessarily that meant that it was at least "likely" that any exercise of those powers would be preceded by an assessment of the respondent's protection claims.
(7) Against that background, the primary judge erred in his analysis of the Minister's statement of reasons at [63]-[65] and [70] of the Reasons. Nowhere did the Minister enunciate a view of the statute which departed from that discussed by the majority in BCR16 at [38]-[44], [66] and [68]-[69]. Indeed, as [52] of BCR16 makes clear, the view of the likely operation of the Act that was found to have been erroneously assumed by the Minister must be accepted to be at least a permissible one on the face of the statute: at issue was whether that possible and permissible application of the Act was likely on the evidence.
(8) Here, and unlike BCR16, it could not be concluded, on the state of the evidence, that any similar view taken by the Minister was one that failed to appreciate the likely practical operation of the Act. To the contrary, and consistent with any such view, the available evidence suggested such protection claims were likely to be considered, regardless of whether the visa was ultimately refused on character grounds (indeed, anterior to any question of character related criteria being considered).
(9) The primary judge rejected the Minister's arguments on those matters at [66]-[67] of the Reasons, essentially relying on the matters identified above (namely, that PAM3 was not binding upon delegates, let alone the Minister). That involved two distinct errors. First, the question was not whether there would, in all conceivable circumstances, be an assessment of any protection claims made by the respondent. That is because, as submitted above, the error in the Minister's understanding identified in BCR16 concerned the likely course of decision making.
(10) Secondly, in effect, the approach of the primary judge imposed a burden or onus upon the Minister to prove as a matter of fact that the course of decision-making on any future protection visa application would involve assessment of his non-refoulement claims, a burden or onus that his Honour found undischarged on the evidence. For the reasons just given, that proceeds on the basis of a misunderstanding of what was in fact held in BCR16. But, in any event, it is well established that it was for the respondent to establish every element of his case alleging jurisdictional error: Plaintiff M64/2015 at [24]. And such evidence as was adduced could not support any assertion made by the respondent that there was a real probability or likelihood that any protection claims made by the respondent would not be considered in the course of any protection visa application. Such evidence as there was rather suggested the opposite.
63 The Minister's submissions are premised on a particular reading of the judgment of Bromberg and Mortimer JJ in BCR16, namely that their Honours identified the 'first misunderstanding' of the Assistant Minister in that case as an assumption that non-refoulement claims were likely to be considered if the appellant applied for a protection visa. However, for the reasons that follow, we do not consider that to be a correct reading of their Honours' judgment. Rather, the substance of their Honours' reasoning (in relation to what was described as the 'first misunderstanding') was that the Assistant Minister had erroneously assumed that non-refoulement claims would necessarily be considered if the appellant applied for a protection visa.
64 Before referring in some detail to the reasons of Bromberg and Mortimer JJ in BCR16, it is convenient to set out the relevant paragraph of the Assistant Minister's reasons as considered in BCR16. This was paragraph [19] of the Assistant Minister's reasons, which was quoted in BCR16 at [16]:
[The appellant] has made claims that may give rise to international non-refoulement obligations. However [the appellant] is able to make a valid application for another visa. In particular I note that [the appellant] is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of this decision.
As can be seen, and as is common ground, the relevant paragraph of the Minister's statement of reasons in the present case (namely, [30], set out at [23] above) is in very similar terms.
65 We now consider the reasons of Bromberg and Mortimer JJ in BCR16. At [33]-[34] of their Honours' reasons, they outlined the appellant's contentions. The appellant contended that the Assistant Minister did not consider the reasons that had been advanced in the appellant's representations, and further contended that the Assistant Minister's reasons were "wrong in law and in fact". As set out in BCR16 at [34], the appellant submitted, among other things, that the Assistant Minister had proceeded on the basis that non-refoulement obligations "would necessarily be considered" if the appellant made an application for a protection visa. This was said to involve a misunderstanding of the Act and its operation.
66 At [35], their Honours referred to the appellant's oral submissions. It was noted that the appellant submitted that the use of the word "thus" in [19] of the Assistant Minister's reasons indicated a connection in the Assistant Minister's reasoning between the premise (that the appellant had capacity to apply for a protection visa) with the Assistant Minister's conclusion (that it was unnecessary to determine non-refoulement). Their Honours then stated: "That connection was said to be the assumption that non-refoulement obligations will be examined during the protection visa determination process. The appellant contends that is wrong as a matter of law and has not been proven as a matter of fact by the Minister" (emphasis added). These submissions of the appellant provide context for their Honour's reasons, as set out later in the judgment.
67 At [36], their Honours set out further aspects of the appellant's legal contentions. The appellant submitted that there was, at the time of the Assistant Minister's decision, nothing in the Migration Act or in the Migration Regulations that governed the manner in which the Minister (or the Minister's delegates) were required to consider whether the criteria for a protection visa were satisfied, for the purposes of the task in s 65 of the Act. There was, the appellant submitted, nothing to govern the order in which the criteria needed to be considered. The logical consequence, the appellant submitted, was that the Minister and the Minister's delegates were free to decide the manner in which a protection visa application would be considered, the steps taken in that consideration, and the order in which criteria for a protection visa would be evaluated. At [37], their Honours said that those submissions should be accepted. Their Honours explained why this was so in the paragraphs that followed ([37]-[47]). Their Honours explained, for example, at [44], that the appellant's protection visa application could therefore be refused under s 65 purely on character grounds pursuant to public interest criteria 4001(a) or (b), and the Minister or the Minister's delegate would, lawfully, never reach active consideration of the criteria in s 36(2)(a) and (aa), nor would the s 501(1) discretion ever have been engaged.
68 At [48], their Honours stated that they also accepted the appellant's submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. This was explained at [48]-[52] of their Honours' reasons. It was in this context that their Honours said, at [52]: "In our opinion, given the Assistant Minister's existing, personal findings about the appellant, the probability that the Minister, or the Minister's delegate, may refuse a protection visa to the appellant on character grounds, and that the scenario submitted by the appellant will come to fruition, is real."
69 At [59], their Honours stated that [19] of the Assistant Minister's reasons revealed jurisdictional error. In the following passage of the reasons, their Honours essentially rely on two reasons for this conclusion. The first was a misunderstanding by the Assistant Minister as to the operation of the Migration Act. The second was a misunderstanding by the Assistant Minister as to the scope of the representations that had been put forward by the appellant. Their Honours stated at [60]:
By the appellant's representations, which we have set out at [6]-[10] above, a "reason" has been put to the Assistant Minister for the purposes of the exercise of her revocation power under s 501CA(4). The Assistant Minister states it is "unnecessary to determine" whether non-refoulement obligations are owed, because the appellant can make a protection visa application. It is the Assistant Minister's linkage between her refusal to consider the "reason" put to her by the appellant, and the way the Act will operate if a protection visa application is made, which reveals the error. The Assistant Minister's expression of her understanding about the operation of the Migration Act and the consideration of risks of harm to the appellant during consideration of a protection visa application is incorrect, or at least incomplete. Further, the Assistant Minister's characterisation of the "reason" as "international non-refoulement obligations" is also incorrect, and an incomplete and inaccurate description of what the appellant was putting forward as a "reason" for the purposes of the exercise of the power in s 501CA(4).
(Bold emphasis added.)
70 At [61]-[63], their Honours said that the jurisdictional error was not a failure to take into account a mandatory relevant consideration, but rather a denial of procedural fairness or a failure to carry out the task required under s 501CA(4). After setting out a passage from Goundar, their Honours said:
66 The appellant in this appeal relied on the part of the passage [from Goundar] we have emphasised in the extract above. He submitted in the appellant's case, the Assistant Minister had misunderstood the course of any consideration of a protection visa application made by the appellant, and that issues concerning risk of harm might never be reached. In his written submissions, putting to one side the argument about s 197C which we do not propose to determine, the appellant identified two misunderstandings of the law. The first was that the "Minister considered that non-refoulement obligations would 'necessarily' be considered in the event that the appellant was to make an application for a protection visa", when this was not the case. The second was that "the Minister considered that the subject of the appellant's representation could, in their entirety, be met by the availability to the appellant, on application, of a protection visa", when this was not the case.
67 The first misunderstanding - identified as a misunderstanding of the likely course of decision-making under the Migration Act - is one that we accept is made out, for the reasons we have expressed at [42]-[52] above, together with what we set out below.
68 The language at [58] of the briefing note to the Assistant Minister (which we have set out at [14] above) is materially identical to the passage at [19] in the Assistant Minister's reasons, which we have extracted at [16] above. Therefore, even on the assumption that the Assistant Minister read and agreed with the statements in the briefing note, her reasoning relevantly goes no further than what is at [19] of her reasons. There is no evidence of consideration of the course of decision-making on a protection visa application made by a person in the appellant's position: that is, a person whose visa had been cancelled under the mandatory terms of s 501(3A), and a person whom the Assistant Minister had personally decided should not be subject to a favourable revocation decision under s 501CA, because of the risk of harm he posed to the Australian community. The Assistant Minister's reasons do not advert to the character criteria for a grant of a protection visa. Her reasons disclose no consciousness that the appellant's protection visa application may be required to be refused because of non-satisfaction of character criteria, so that considerations of risk of harm might never be reached.
…
70 If contrary to the opinion we have expressed above, there was no misunderstanding by the Assistant Minister of the course any application for a protection visa by the appellant could be likely to take, we would in any event accept the appellant's alternative submission that an error of the kind identified by Robertson J in Goundar is present in the Assistant Minister's reasoning process.
(Emphasis added.)
71 The Minister in the present appeal places great emphasis on the use of the word "likely" in [67] and [70] of the above passage. But the reasons need to be read as a whole, and the words that we have emphasised in [66] and [68] suggest that the 'first misunderstanding' of the Assistant Minister was considered to be, as submitted by the appellant in BCR16, an assumption that non-refoulement obligations would necessarily be considered in the event that the appellant made a protection visa application. This suggestion is reinforced by [90] and [96] of their Honours' reasons. In distinguishing other cases, their Honours stated at [90]:
The courts in these cases were simply not asked to grapple with the argument now put to this Court: namely that the legislative scheme which centres on s 65 does not require the s 36(2)(a) and (aa) criteria to be addressed in considering a protection visa application if a decision-maker elects to consider other criteria first, and finds other criteria not satisfied. At that point the duty to refuse crystallises, and may do so without s 36(2)(a) and (aa) having been addressed at all, or without having addressed in particular what might be comprehended by the phrase "Australia's non-refoulement obligations", itself a difficult phrase within the scheme of Act as it now exists, including s 197C.
(Emphasis added.)
72 Further, at [96], their Honours stated:
Although his Honour recognises in that paragraph the appellant might be refused a protection visa on character grounds, this is after his Honour has said "However, it is difficult to see how the applicant could be refused a protection visa without there being an assessment of his non-refoulement claims". As we have attempted to show, there is nothing in the legislative scheme which compels assessment or decision on the appellant's claims to fear harm in Lebanon before he is refused a protection visa.
73 When the reasons of Bromberg and Mortimer JJ in BCR16 are read as a whole, we consider that the substance of their Honours' reasoning in relation to what was described as the 'first misunderstanding' was that the Assistant Minister had erred in assuming that non-refoulement obligations would necessarily be considered if the appellant made a protection visa application, rather than (as contended by the Minister in the present appeal) that the Assistant Minister had erred in assuming that non-refoulement obligations were likely to be considered in that event. It is true that the word "likely" was used at [67] and [70] of their Honours' reasons. But we consider that this was merely used as a label or descriptor, and does not convey the substance of their Honours' reasoning. Further, the reference in [52] (see also [75]) to a "probability" was expressed in a different context.
74 Once it is accepted that Bromberg and Mortimer JJ identified the first misunderstanding of the Assistant Minister in that case as an assumption that non-refoulement obligations would necessarily be considered in the event that the appellant made a protection visa application, it follows that the submissions of the Minister in the present case must be rejected. The premise of those submissions, and the basis upon which it is contended that the present circumstances are distinguishable from those in BCR16, is that Bromberg and Mortimer JJ held that the erroneous assumption was as to the likely course of decision-making. For the reasons given above, that premise and basis are rejected.
75 Further, we do not accept the Minister's contention (raised by ground 3) that the primary judge erred in imposing a burden of proof or onus upon the Minister to prove as a matter of fact that the course of decision-making in any future protection visa application by the respondent would involve assessment of his non-refoulement claims. Once it is accepted that the majority in BCR16 considered the 'first misunderstanding' of the Assistant Minister to be an assumption that the appellant's non-refoulement claims would necessarily be considered if he made a protection visa application, and that a similar assumption was made by the Minister in the present case, the primary judge correctly considered whether or not that assumption was correct.
76 We consider that the primary judge was correct to conclude that the 'first misunderstanding' identified by the majority in BCR16 was also present here. The relevant passage of the reasons for decision is virtually identical in both cases. The reasons of the majority in BCR16, insofar as their Honours relied on the 'first misunderstanding', are equally applicable in the present case. The Minister assumed that the respondent's non-refoulement claims would necessarily be considered in the event that he made an application for a protection visa. That assumption was incorrect. The additional evidentiary material that was relied on by the Minister in the present case did not establish that the respondent's non-refoulement claims would be considered in the event that he made a protection visa application, so as to support the assumption made that this would necessarily occur. Therefore that material did not provide a basis for distinguishing BCR16.
77 For these reasons, grounds 1(b) and 3 of the amended notice of appeal are rejected.