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

The legal framework 11 The consequence of the cancellation of the applicant's visa was that he was an unlawful non-citizen within the meaning of s 13 and s 14 of the Act. As such, he was liable to be taken into immigration detention under s 189 of the Act and held there until he was (relevantly) removed from Australia: Act, s 196(1)(a). Section 198(2B) imposed a duty on immigration officers to remove an unlawful non-citizen "as soon as reasonably practicable" where conditions (present in this case) are met. 12 The Tribunal's power to review the non-revocation decision was conferred under s 500(1)(ba) of the Act. In conducting the review, the Tribunal exercised the same power under s 501CA(4) of the Act as that exercised by the Minister in making the non-revocation decision. Section 501CA(4) provided: (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. 13 Section 499(2A) of the Act required the Tribunal to comply with a direction made by the Minister under s 499(1) of the Act titled "Direction No 90 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction 90) in the exercise of that power. 14 Direction 90 set out matters that the Tribunal was to consider, where relevant, when assessing whether there was "another reason" why the cancellation decision should be revoked. They included "primary considerations" and "other considerations". The "other considerations" relevantly include "international non-refoulement obligations" and "extent of impediments if removed". Clause 9.1 required decision-makers to consider whether Australia owed non-refoulement obligations in relation to the individual. Clause 9.1 defined the expression "international non-refoulement obligations" as follows: 9.1 International non-refoulement obligations (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, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act. … (4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen ... in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case. … 15 As the Kiefel CJ, Keane, Gordon and Steward JJ explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417, that clause reflects the scheme of the Act in relation to Australia's non-refoulement obligations under international law. The obligations are enacted into domestic law to the extent provided for in the Act, specifically in provisions prescribing conditions for the grant of protection visas in s 36(2)(a), s 36(2)(aa) and elsewhere. To the extent that Australia's international non-refoulement obligations are not enacted into domestic law, they are not mandatory relevant considerations conditioning the exercise of the power under s 501CA(4), nor can they otherwise operate as a source of rights and obligations under domestic law: Plaintiff M1 (at [20]). 16 As cl 9.1(4) of Direction 90 makes plain, claims that Australia's international non-refoulement obligations are enlivened may be raised by a non-citizen in the material provided in response to an invitation given under s 501CA(3), or can otherwise be clear on the facts of the case. Whilst non-refoulement obligations are not to be characterised as a mandatory relevant consideration arising in all cases in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, there remains an obligation on the decision-maker to consider and understand the submissions and material provided by the non-citizen. As to the scope of that obligation, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403, the High Court emphasised (at [13] - [14]) that the evaluation of what is "another reason" is a matter for the Minister, Parliament having made no prescription of the reasons that might justify revocation of a cancellation decision and (at [14]): No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant … 17 And as the plurality said in Plaintiff M1: 23 It is, … improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered. 24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder. 25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. 18 Their Honours went on to emphasise (at [27]) that a decision-maker may commit jurisdictional error if he or she fails to address a "substantial, clearly articulated argument", citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (at [13], [105]) and Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389, Gummow and Callinan JJ (at [24] - [25]), Hayne J agreeing (at [95]). The principles were conveniently summarised by the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ): 58 The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. … 63 It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. … 19 Clause 9.2 of Direction 90 outlined matters to which the Tribunal was to have regard when assessing the impediments that might be faced by a review applicant if removed from Australia to his or her home country. It provided: 9.2 Extent of impediments if removed (1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) the non-citizen's age and health; b) whether there are substantial language or cultural barriers; and c) any social, medical and/or economic support available to them in that country.

The Tribunal's reasons 20 In its written reasons for its decision, the Tribunal gave consideration to whether Australia's non-refoulement obligations were engaged and concluded that they were not. It identified (correctly) that the obligation is one to not forcibly return a person to a place where he or she will be at risk of specified types of harm, including harm that threated a person's life or freedom, on account of certain characteristics, including membership of a social group. In that part of its reasons, the Tribunal dealt with and rejected an express claim by the applicant to fear harm if returned to Iran as contained in his statutory declaration made in May 2017. The applicant's claims were to the effect that he would be subject to relevant harm because he was no longer a follower of Shia Islam, because of political opinions that would be imputed to him by reason of his participation in a singing competition held in Turkey, because of his status as a failed asylum seeker and because of his social media commentary. 21 The Tribunal went on to observe that the consequence of not revoking the cancellation decision would be that the applicant would be liable to be removed from Australia as soon as possible in accordance with s 198 of the Act. It concluded that the applicant's forced removal from Australia would nonetheless be unlikely because he did not have an Iranian passport and the Iranian authorities were unlikely to issue him one to facilitate his involuntary return. On that topic, the Tribunal referred to country information prepared by the Department of Foreign Affairs and Trade which confirmed Iran's "global and longstanding policy of not accepting involuntary returns" and that Iran had historically refused to issue temporary travel documents to facilitate the involuntary return of its citizens. The Tribunal observed that a Memorandum of Understanding between Australia and Iran to facilitate the return of Iranian citizens did not apply to Iranian citizens who arrived in Australia before March 2018 (as in the case of the applicant). The Tribunal said that, given that the applicant would not voluntarily return to Iran, it was likely that that he would remain subject to prolonged detention in Australia. 22 The Tribunal's assessment of the impediments that the applicant might face if returned to Iran proceeded from an assumption that he may be forcibly returned there. It considered his family connections, age, cultural experience, employability, and access to economic support and health services. It concluded that whilst there were some impediments, including emotional distress, they weighed in favour or revocation of the cancellation decision but "only to a minimal extent". The Tribunal's reasons concerning this topic must be understood as dealing with an alternative and somewhat hypothetical factual scenario, the Tribunal having already concluded that the applicant's return to Iran in the reasonably foreseeable future was unlikely.

Grounds and submissions 23 The first ground of review is that the Tribunal "failed to make its decision according to law" in that it: 1. failed to consider whether Australia's non-refoulment [sic] obligations were enlivened by the Iranian authorities' refusal to permit his entry into Iran as an involuntary returnee, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iran; 24 Counsel submitted that the applicant was a member of a class of persons described as "involuntary returnees having departed Iran before March 2018". It was then submitted that the Tribunal had failed to consider a factual scenario that clearly arose on the materials before it, namely one in which the applicant would be removed from Australia but not accepted into Iran at the international receiving port. The scenario was one in which the applicant would be trapped in the liminal space, unable to leave the point of entry (assumed in oral submissions to be an airport) to integrate at all into Iranian society. It was submitted that the applicant would, in that scenario, be "confined at the point of arrival indefinitely and/or face arbitrary treatment by immigration authorities". It was submitted that those consequences would necessarily and foreseeably result in the applicant being denied his freedom by the actions of Iranian authorities such as to enliven Australia's non-refoulement obligations under international law. 25 The same factual scenario was employed in support of the second ground of review. It states that the Tribunal: 2. failed to consider the extent to which the Iranian authorities' refusal to permit his entry into Iran as an involuntary returnee was an impediment to the Applicant in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Iran). 26 It was submitted that the Tribunal's reasoning proceeded from an erroneous assumption that the applicant would be permitted entry into Iran, a factual outcome the Tribunal had already determined was unlikely to occur. 27 It was submitted that the Tribunal failed to have regard to the circumstance, specific to the applicant, that the applicant would be refused entry. His entrapment in the liminal space at the point of entry would, it was submitted, prevent him from enjoying basic living standards and that he would be unable to access and utilise social, medical and economic support. It was submitted that the Tribunal failed to have regard to the applicant's "likely refusal of entry" into Iran, and that failure amounted to a failure to comply with Direction 90 as it was required by law to do.

Consideration 28 Both grounds must be rejected for the reasons given below. 29 I do not accept that the factual scenario upon which the grounds of review were based was one expressly claimed by the applicant to realistically arise. Nor do I accept that any real likelihood of the factual scenario clearly arose on the material upon which the applicant relied. 30 It was of course plain on the material that the Iranian authorities were unlikely to permit the applicant's involuntary entry into Iran. However, it does not follow from that circumstance that Australian authorities would remove the applicant from Australia to be left at a point of entry where he would languish, removed from Australia but unable to enter his home country. The Tribunal's conclusion that the applicant would likely be held in immigration detention in Australia for a prolonged period was not subject to challenge on this application. The finding is to the effect that it would not in all likelihood be "reasonably practicable" to return the applicant to Iran in the reasonably foreseeable future for the purposes of s 198(2B) of the Act and therefore he would likely remain in immigration detention pursuant to s 196(1) of the Act. Whether another country is willing to issue travel documents to facilitate the involuntary return of its citizens plainly bears on the assessment of that reasonable practicability. As the High Court said in Al-Kateb v Godwin (2004) 219 CLR 562: 218 ... Detention comes to an end upon removal or deportation or the granting of a visa. Removal or deportation may occur only when the non-citizen's attempts to obtain permission to remain in Australia have come to an end. To that extent the period of detention is under the control of the non-citizen. He or she will be available for removal or deportation as soon as he or she wishes to be available. But what more recent events, concerning some non-citizens who have asked to be removed, have revealed is that removal to a country requires the co-operation of the receiving country, and of any countries through which the person concerned must pass to arrive at that destination. That co-operation is not always freely made available. In such a case the period of detention will come to an end only upon the relevant authorities, in one or more countries other than Australia, agreeing to receive the person being removed, or, where it is necessary, agreeing to allow that person to travel through their territory. Australia can seek that cooperation; it cannot demand it. Detention will continue until that cooperation is provided. … 226 The period of detention is fixed by reference to the occurrence of any of three specified events. Detention must continue 'until' one of those events occurs. The event described as being 'removed from Australia under section 198' is an event the occurrence of which is affected by the imposition of a duty, by s 198, to bring about that event 'as soon as reasonably practicable'. That compound temporal expression recognises that the time by which the event is to occur is affected by considerations of what is '[c]apable of being put into practice, carried out in action, effected, accomplished, or done'. In particular, the expression recognises that the co-operation of persons, other than the non-citizen and the officer, will often (indeed usually) be necessary before the removal can occur. The duty to remove must be performed within that time. And so long as the time for performance of that duty has not expired, s 196 in terms provides that the non-citizen must be detained. (footnote omitted, original emphasis) 31 See also M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 and NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506. 32 To the extent that the applicant's submissions proceeded from an assumption that s 198B(2B) obliged Australian authorities to deliver the applicant to the tarmac of an airport in Iran where he would languish in the manner contended for, the submission is wrong in law. 33 It has not otherwise been shown that there was anything in the material before the Tribunal to clearly indicate that Australian authorities would (or even might) remove the applicant from Australia in circumstances where it was known that he would not be permitted actual entry to his home country. The applicant's factual claims to fear harm and to suffer impediments were all premised on an assumption that he would be forcibly returned in fact to Iran and permitted entry there. 34 In addition, the applicant's submissions did not adequately address the question as to whether the precincts of an Iranian international airport could be regarded as the applicant's "home country" within the meaning of Direction 90 or the Act itself. The applicant has not discharged his onus with respect to that important aspect of the argument underpinning both grounds for review. The Minister submitted that Direction 90 should be construed so as to refer to scenarios in which the non-citizen claims to fear harm or to face impediments in his or her own country. I accept that submission. 35 Further in relation to Ground 1, for the purposes of the provisions of the Act enacting into domestic law Australia's international non-refoulement obligations, persecution "must involve systematic and discriminatory conduct": Act, s 5J(4)(c). Conduct will not meet that description if it is engaged in in pursuance of a law of general application: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 (at [21]). The feared persecution alleged on this application would result from the application to the applicant of a policy under which Iran does not permit the involuntary return of its citizens. 36 Further in relation to Ground 2, the Tribunal grappled with claims that the applicant made as to the impediments he would face if returned to Iran. Those claims were themselves founded on an assumed factual scenario of the applicant's return into Iran proper. It could not constitute jurisdictional error for the Tribunal to consider that claim based on the very assumption upon which the claims themselves rested: return to Iran proper. The Tribunal had already concluded that in the reasonably foreseeable future the applicant could not be returned to Iran and so would likely be held in immigration detention for a prolonged period. 37 In summary, whilst it was obvious on the materials that Iran would not accept the applicant as an involuntary returnee, it did not obviously follow that the applicant would be removed from Australia and left to languish in an Iranian airport. It could not constitute jurisdictional error for the Tribunal to fail to consider a scenario that was not expressly raised and that did not otherwise clearly arise on the materials before it. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.