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[2018] FCAFC 198
Federal Court of Australia (Full Court)
2018-11-16
Smith JJ
Original judgment source is linked above.
THE COURT: 1 On 15 June 2017, the Assistant Minister for Immigration and Border Protection (the Minister) decided, under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke a decision to cancel the respondent's protection visa. The respondent applied to this Court for judicial review of the Minister's non-revocation decision. 2 On 18 April 2018, a single judge held that the decision was affected by jurisdictional error and ordered that a writ of certiorari and a writ of mandamus issue directed to the Minister. This is an appeal against that judgment. 3 The primary judge held that the Minister's finding that Australia did not owe non-refoulement obligations to the respondent was made without evidence or, alternatively, that the finding involved a failure to ask the right question. The Minister submits that his Honour erred in so holding. 4 It is necessary to begin by considering the circumstances that led to the decision, the material before the Minister concerning the issue of non-refoulement and the Minister's findings upon that issue.
Background 5 The respondent is a citizen of China who arrived in Australia in 2007 as the holder of a student visa. While in Australia, he had a child with his partner, another Chinese student. The respondent and his partner were both under 18 years of age. The respondent, his partner and their child each made an application for a protection visa. 6 In 2009, the Refugee Review Tribunal decided that the child was owed protection obligations. The precise basis for that decision is not apparent from the evidence. A delegate of the Minister for Immigration and Citizenship then made a decision to grant the child a protection visa. The delegate also decided that the respondent and his partner should be granted protection visas as members of the child's family unit. It was common ground in the appeal that no determination was made as to whether the respondent himself was owed protection obligations. 7 In 2016, the respondent assaulted his partner, including by choking her and plunging her hands into a pot of boiling water. He was sentenced to two years' imprisonment for two offences of assault occasioning bodily harm and lesser terms for related offences. 8 The effect of s 501(3A) of the Act is that the Minister must cancel a visa if the visa holder has been sentenced to a term of imprisonment of 12 months or more and is serving a full-time sentence in a custodial institution. A delegate of the Minister cancelled the appellant's visa under this provision on 1 February 2017. The respondent was notified of the cancellation decision in accordance with s 501CA(3) of the Act and invited to make representations about revocation of the cancellation decision. 9 Section 501CA of the Act provides, relevantly: (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 The respondent made submissions in response to the invitation. He did so by completing two forms supplied by the Department of Immigration and Border Protection. One was entitled "Request for Revocation of a Mandatory Visa Cancellation under s 501(3A)". The other was entitled "Personal Circumstances Form". He also provided a handwritten statement in which he emphasised the hardship that would be caused to his family. 11 Some of the questions in the Personal Circumstances Form were relevant to any claim that Australia's non-refoulement obligations were engaged. One question was, "Do you have any concerns or fears about what would happen to you on your return to your country of citizenship?". The respondent ticked the "Yes" box and described his concerns or fears as being: I will not be able to see my wife and two sons. As they are Australian Citizens. 12 The Personal Circumstances Form also asked, "Are there any other problems you would face if you have to return to your country of citizenship?". The respondent answered: I will not be able to be with my wife and two sons. 13 After the respondent had submitted the forms and his statement, the Department sent him a letter enclosing a record of the delegate's decision made in 2009 to grant the protection visas and inviting him to make representations about that document. The decision-record was given pursuant to s 501C(3) of the Act, apparently based on the view that it was "relevant information" within s 501C(2). The decision-record noted that the respondent had lodged his own application for a protection visa. It concluded that the respondent's child was owed protection obligations and satisfied the criteria for, and should be granted, a Protection (Class XA) Visa. The decision-record also concluded that the respondent was owed protection obligations as part of the child's family unit. It did not consider whether the respondent was owed protection obligations in his own right. 14 The respondent responded to the invitation to make representations by letter dated 1 June 2017. His letter said, relevantly: I am writing this letter in response to the correspondence I received from Natoinal Character Consideration Centre (NCCC). The information in this correspondence consists of: Protection (Class XA) Visa Decision Record dated 13 November 2009 Our son, ###, was born on ###. At that time, my partner and I were all under 18 yeras old. A fear that we could get the punishment if we were back to China led us to apply the Protection Visa in Australia. After a careful consideration, a delegate of the Minister for Immigration granted our son, ###, a subclass 866 (Protection) visa. My partner and I were also granted the same visa as members of the family unit. My family is so grateful to the Australian community for its compassion towards the vulnerable people in the world. The Protection visa let my family be able to live in this wonderful country, in which we are enjoying peacefully, happily and freely. (Errors in the original.) 15 The Department provided the Minister with a memorandum and a draft statement of reasons. The memorandum referred to the issue of non-refoulement in the following terms: The Refugee Review Tribunal found [the respondent's] son was owed protection obligations. [The respondent] was granted a Protection visa on 13 November 2009 as a member of the family unit…[The respondent] has not made non-refoulement claims as part of his request for revocation. 16 The memorandum attached the forms the respondent had completed, the 2009 decision-record, the Department's letter inviting the respondent to comment upon the decision-record and the respondent's reply. That was the extent of the material before the Minister touching upon refoulement. 17 On 15 June 2017, the Minister decided not to revoke the earlier decision of the delegate to cancel the respondent's protection visa and signed the statement of reasons. In his reasons, the Minister dealt with the issue of refoulement as follows: 21. I note that [the respondent] makes no submissions in relation to non-refoulement obligations. Nonetheless, given that [the respondent] holds a Protection visa, I have considered the extent to which he may be owed such obligations. 22. [The respondent] holds his Protection visa by virtue of s.36(2)(b), that is he is a member of the same family unit as a non-citizen to whom Australia owes protection. [The respondent] is not owed that protection himself but rather as a result of obligations owed to his son. 23. In light of the absence of any submissions from [the respondent] and the nature of his eligibility for his Protection visa, I do not consider that Australia owes any international non-refoulement obligations to [the respondent]. (Underling added). 18 The Minister has issued Direction No 65 which requires subordinate decision-makers to consider international non-refoulement obligations when making a decision pursuant to s 501CA(4). The Assistant Minister is not bound to comply with the Direction: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [4]; Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [79]. However, the statement of reasons made it clear that the Assistant Minister did consider international non-refoulement obligations in relation to the respondent.
The judgment of the primary judge 19 The primary judge found that the Minister's finding that Australia did not owe non-refoulement obligations to the respondent necessarily required a conclusion that the respondent did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act. In other words, the Minister must have found that there was no real risk that the respondent would suffer significant harm upon his return to China. His Honour considered that this involved an inquiry as to the risk of harm faced by the respondent if refouled to China given his actions of applying for, and obtaining, a protection visa in Australia. There was nothing before the Minister which said anything about the risk of harm to a protection visa holder on their return to China. Accordingly, there was no evidence for the Minister to find that Australia did not owe international non-refoulement obligations to the respondent. His Honour held that this was an error of law which amounted to jurisdictional error. 20 The primary judge held that, alternatively, the Minister failed to ask himself the right question. This was not whether Australia owed non-refoulement obligations as a result of the facts which grounded the respondent's earlier protection visa application (being a family member of an accepted refugee). Rather, the right question was whether such obligations arose on account of what would happen to him if returned to China (being a person who had applied for a protection visa in Australia). His Honour said that question could not be answered without considering the significance of the fact that the respondent had successfully applied for a protection visa which allowed him permanently to flee China. 21 His Honour granted the respondent an extension of time to bring his application and ordered that a writ of certiorari issue quashing the decision and that a writ of mandamus issue requiring the Minister to exercise the power in s 501CA(4) of the Act according to law.
The notice of appeal and the submissions 22 The Minister's notice of appeal contains the following grounds: 1. The Court below erred in deciding that the appellant's decision...was affected by jurisdictional error on the basis that it involved a finding for which there was no evidence. 2. The court below should have held that there was no such error, in circumstances in which there was at least some evidence or other material before the appellant to justify the finding referred to in paragraph 1. 3. The Court below erred in deciding that the Decision was affected by jurisdictional error on the basis that the appellant asked himself the wrong question. 4. The Court below should have held that there was no such error, or that any such error was immaterial, given that: (a) There was no material before the appellant to suggest that the respondent had any subjective fear of being persecuted if removed to China for one of the reasons identified in s 5J(1 )(a) of the Act; (b) The respondent did not, in his representations made in response to the invitation made under s 501CA(3) of the Act, claim that he would, if removed to China, suffer "significant harm" in the sense referred to in ss 36(2)(aa) and (2A) of the Act, nor was there any material before the appellant that would have suggested that that was so. (References to the judgment omitted) 23 The Minister argues that the "no evidence" ground is a notoriously difficult ground of review. He submits that as long as there is some basis for an inference - in other words, the particular inference is reasonably open - there is no error of law. 24 The Minister submits that the engagement of non-refoulement obligations "depended upon the respondent establishing a threshold or prima facie case that a relevant risk existed". He submits that in response to specific questions and criteria, and in his letter of 1 June 2017, the respondent had not suggested that there was any risk of harm if he were removed to China. He submits that it was open to the Minister to infer from the respondent's silence on this matter that no relevant risk arose. Further, he submits that the respondent's silence was at least some evidence that he had no subjective fear so as to be a "refugee". He submits that accordingly, the primary judge erred in finding that there was no evidence for the decision. 25 The Minister submits that the overarching question posed by the statute is whether he was satisfied that there is "another reason" why the original decision should be revoked. He submits that in directing himself to the question of whether Australia owed the respondent non-refoulement obligations, he was addressing that broader question. He submits that he was not required to consider risks not identified by the respondent but, rather, was entitled to approach the issue on the basis that "the respondent bore the burden of establishing a 'threshold showing' that a relevant risk arose". As the respondent had not identified any relevant risk, the Minister was not required to speculate upon matters that may have or may not give rise to any risk. He submits that he committed no error in proceeding on the basis that Australia's non-refoulement obligations were not engaged in these circumstances. 26 The respondent essentially submits that the primary judge was correct to find that there was jurisdictional error for the reasons given by his Honour. Further, the respondent submits that there was sufficient material before the Minister, particularly his letter of 1 June 2017, to indicate that the respondent had identified a fear that he would be subjected to harm that might engage Australia's international non-refoulement obligations.
Consideration of the appeal 27 The question the Minister was required to address under s 501CA(4)(b)(ii) of the Act was whether he was satisfied that there was "another reason why the original decision should be revoked". In the course of addressing that question, the Minister said, "I do not consider that Australia owes any international non-refoulement obligations to [the respondent]". The primary judge understood the Minister to have made a finding that, "Australia did not owe non-refoulement obligations to the [respondent]" - an understanding that is not challenged in the appeal. It is his Honour's conclusion that there was no evidence to support that finding that is challenged. 28 There are two matters that should be considered before the grounds of appeal are directly addressed. The first is what the Minister meant by "international non-refoulement obligations". The second is the relevance of any such obligations to the decision that was made. 29 Australia's non-refoulement obligations stem from the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Article 33(1) states that: No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Australia's non-refoulement obligations also arise under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the International Covenant on Civil and Political Rights (1966). It was observed in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405 at [1] that the complementary protection regime in s 36(2)(aa) of the Act gives effect to these obligations. As s 36(2)(aa) expressly does not apply to refugees, the refugee criterion in s 36(2)(a) also gives effect to such obligations. 30 Section 36 of the Act provides, relevantly: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm 31 In Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [21], the Full Court observed at [21] that there is division in the authorities as to whether the use of the word "may" in s 501CA(4) denotes a residual discretion in the decision-maker. For present purposes, it is enough to note that in BCR16, Bromberg and Mortimer JJ said at [22] that, "in practical terms, the real discretionary considerations subsist in the terms of s 501CA(4)(b)(ii) - whether 'there is another reason why the original decision should be revoked'." Their Honours observed at [49] that the Minister's assessment of a risk of harm in the exercise of the discretionary power under s 501CA(4) is a quite different task to the assessment of such a risk under s 65 of the Act when considering a protection visa: In the task required by s 65, the Minister or his delegates are to be "satisfied" of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be "satisfied" to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls...the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65. 32 One commonality between s 65 and s 501CA(4) is that the operation of each provision depends upon the Minister's state of satisfaction. In this case, the Minister positively found that Australia does not owe any international non-refoulement obligations to the respondent. This finding involved a conclusion, not merely that the Minister was not satisfied that the respondent did not satisfy the requirements of s 36(2)(a) or (aa), but that the respondent did not in fact satisfy those requirements. 33 The second matter that should be considered concerns the relevance of Australia's non-refoulement obligations to the Minister's decision in the context of this case. Sections 501CA(3) and (4) envisage that, ordinarily, any reason why the original decision should be revoked will be found in the representations made to the Minister. However, it is open to the Minister to take into account a reason not raised in the representations. That was the approach that the Minister asserted he was taking in the present case. It is relevant, however, to examine the Minister's opinion that the respondent "makes no submissions in relation to non-refoulement obligations". That is because the Minister submits in the appeal that the respondent's failure to make such submissions amounted to evidence that he was not owed any non-refoulement obligations. 34 The Minister correctly submits that in the forms and the statement initially submitted, the respondent did not raise any issue which suggested that Australia's non-refoulement obligations might be enlivened. In fact, the answers he gave to the question about concerns and fears about what might happen on return to his country of citizenship implied that he had no such concerns or fears. However, the Department then provided the 2009 decision-record concerning the grant of the protection visa to the respondent on the basis that it might be taken into account when making the revocation decision. It may be noted that this was consistent with Direction No 65 which states that claims which give rise to international non-refoulement obligations "can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled)". 35 The respondent's letter of 1 June 2017 in reply explained that, "A fear that we could get the punishment if we were back to China led us to apply the Protection Visa in Australia". The Minister's submissions fasten upon the use of the past tense. The Minister submits that this indicates, "the only fear there referred to was one that subsisted at the time of the making of the application for a protection visa". The submission continues that there was no indication that the respondent presently fears persecution. However, that submission ignores the next passage in the letter which indicates, principally in the present tense, that, "The Protection visa let my family be able to live in this wonderful country, in which we are enjoying peacefully, happily and freely." The obvious corollary is that they could not do so in China. It is not a sound approach for the Minister to base his case upon parsing the grammar of a person whose first language is not English. That is all the more so where the submission fails to consider the relevant passage as part of a whole. As was said in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [17]: The courts frequently warn of the need to consider a particular part of a decision-maker's reasons in the context of the whole of the reasons. The same admonition must apply to representations that are made to the Minister. 36 The Department's letter to the respondent envisaged that the circumstance that the respondent had applied for and been granted a protection visa for, might be relevant to the decision under s 501CA(4). The respondent's manifest intention in his reply was to rely upon his elaboration of that circumstance and, by doing so, to influence the decision in his favour. Understood in that context, and read as a whole, the letter does assert that the respondent fears persecution if returned to China. The letter asserts that he fears punishment in China as he and his partner had a child when they were under 18 years of age. The fact that the respondent's child has been found to be owed protection obligations, apparently on the basis of his parents' age and marital status, suggests that the respondent may also be owed such obligations. In the context of a protection visa, the letter must be understood as raising a fear of persecution based upon membership of a particular social group. 37 The grounds of appeal can now be addressed directly. The first, second and fourth grounds of appeal assert that the primary judge erred in holding that there was no evidence to support the Minister's finding that Australia does not owe the respondent international non-refoulement obligations when, in fact, there was evidence for that finding. 38 The Minister found that Australia does not owe any non-refoulement obligations to the respondent for two reasons. First, he referred to the "absence of any submissions" from the respondent that might enliven Australia's non-refoulement obligations. Second, he referred to "the nature of his eligibility for his Protection visa", by which he was alluding to the respondent's eligibility as a member of his child's family unit, rather than being found to be owed protection obligations in his own right. 39 The primary judge held that there was nothing before the Minister that said anything about the risk of harm to a protection visa holder upon their return to China. His Honour held that, accordingly, there was no evidence for the Minister's finding that Australia did not owe international non-refoulement obligations to the respondent. 40 The Minister submits that the absence of any submissions from the respondent concerning non-refoulement provided the Minister with some evidence that Australia does not owe any international non-refoulement obligations to the respondent. That is because in the absence of a claim that the respondent feared persecution or harm in China, it was open to infer that the respondent had no subjective fear of persecution or harm. It may be accepted that this method of inferential reasoning is open in an appropriate case. 41 In this case, it was the Department which (quite properly) raised the claim for protection with the respondent. We have found that the respondent's reply raised his fear of persecution if returned to China as a reason for revocation of the cancellation decision. As the respondent did make a submission which raised Australia's non-refoulement obligations, the inferential reasoning said to have been engaged in by the Minister was not open in this case. 42 We do not suggest that our disagreement with the Minister's opinion that the respondent had made no submissions in relation to non-refoulement demonstrates jurisdictional error of itself. No such argument was advanced: cf NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]. That may be because the Minister did ultimately consider non-refoulement, so that the error was not material to the outcome and was therefore not jurisdictional: cf Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31]. Rather, our purpose is to demonstrate that the respondent was not, contrary to the Minister's opinion, silent upon the issue of non-refoulement. The question of whether there was any evidence to support the finding that Australia did not owe international non-refoulement obligations to the respondent cannot be determined by the Minister's subjective interpretation of the representations, but must be determined on an objective basis. The Minister's submission is that the absence of submissions concerning non-refoulement from the respondent was evidence that Australia does not owe any international non-refoulement obligations to the respondent. The premise of the submission, and therefore the submission itself, cannot be accepted. 43 The second reason given by the Minister for his finding that Australia does not owe any international non-refoulement obligations was "the nature of [the respondent's] eligibility for his Protection visa". The Minister was referring to the 2009 decision that the respondent was eligible as a member of his child's family unit. However, that was not evidence that the respondent was not owed any non-refoulement obligations. The respondent had claimed to be owed protection obligations in his own right and, as was common ground, that claim had never been decided. The Minister gave no consideration to the respondent's personal claim for protection when deciding that he was not owed any non-refoulement obligations. 44 It follows that neither of the two reasons relied on by the Minister supported his conclusion that Australia does not owe any international non-refoulement obligations to the respondent. The primary judge reasoned that reaching that conclusion required an inquiry, in accordance with s 36(2)(aa) of the Act, as to the risk of harm faced by the respondent if refouled to China given his actions of applying for, and obtaining, a protection visa in Australia. His Honour considered that as there was nothing before the Minister which said anything about the risk of harm to a protection visa holder on their return to China, there was no evidence for the Minister's finding that Australia did not owe non-refoulement obligations to the respondent. 45 There is some difficulty with this aspect of the primary judge's reasoning. Although the respondent's representations raised his fear of persecution because of his membership of a particular social group, he did not claim to fear harm based on his status as a person who had applied for and been granted a protection visa in Australia. In our opinion, the Minister was entitled to proceed on the basis that he was not required to consider a claim that had not been raised: see Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [139]; Viane at [17]. However, there is another, more obvious, justification for his Honour's conclusion. The Minister's finding that Australia does not owe any international non-refoulement obligations to the respondent involved a conclusion that the respondent is not a "refugee" within s 36(2)(a) of the Act. There was some evidence before the Minister supporting the respondent's claim to be owed protection obligations as a refugee. There was nothing before the Minister contradicting that evidence. Therefore, there was no evidence to support the Minister's finding that Australia does not owe any international non-refoulement obligations to the respondent. 46 A tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91]. The primary judge held that the error of law went to the core of the Minister's decision and was jurisdictional. We respectfully agree. Therefore, the appeal cannot succeed. 47 The Minister's third ground of appeal, that the primary judge erred in holding that the Minister asked the wrong question, can be dealt with shortly. There was only one question that the Minister ultimately had to answer under s 501CA(4)(b)(ii) of the Act. It was whether he was satisfied that there was another reason why the original decision should be revoked. In the course of answering that question, the Minister was required to consider the representations as a whole as a mandatory relevant consideration: see Buadromo at [41]. If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the Minister may commit jurisdictional error: Viane at [30]. However, even though he considered that no submission had raised such obligations, the Minister did consider whether Australia owes any international non-refoulement obligations to the respondent. The primary judge held that "the right question" was whether non-refoulement obligations arose on account of what would happen to the respondent (being a person who had applied for a protection visa in Australia) if he were returned to China. As we have held, that claim was not raised in the representations and the Minister was not required to consider it. There was no error as a result of the Minister's failure to answer that question. However, in view of our conclusion as to the no evidence issue, the error of the primary judge in this respect makes no difference to the outcome of the appeal. 48 The appeal must be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot, Rangiah and Banks-Smith.
Minister for Immigration and Border Protection
DRP17
(2017) 248 FCR 456
(2017) 250 FCR 209
(2010) 241 CLR 390
(2004) 144 FCR 1
(2017) 347 ALR 405