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

Federal Court of Australia|2021-03-23|Before: Anderson J

The application is dismissed.
The Applicant will pay the First Respondent's costs, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is an application for judicial review of a decision of the Second Respondent (Tribunal) made on 7 August 2020: see QKJY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2689 (Tribunal's Reasons). 2 The Tribunal affirmed a decision of a delegate of the First Respondent (Minister) not to exercise power under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to revoke the cancellation of the Applicant's Global Special Humanitarian (Class XB) visa. 3 At the hearing, the Applicant appeared in person by telephone. Mr Greg Johnson of counsel appeared on behalf of the Minister by way of Microsoft Teams. 4 For the reasons that follow, the application should be dismissed.

THE APPLICANT'S APPLICATION 11 The Applicant in his originating application filed in this Court on 11 September 2020 advances three generalised grounds. The originating application states: Details of relief sought 1 . An order that the decision of the AAT be quashed … Grounds of application 1. the AAT misapplied or misinterpreted the law 2. the AAT denied procedural fairness 3. the AAT failed to consider information or the claim I put forward[.] 12 The Applicant has not filed any written submissions explaining the errors he contends the Tribunal made.

The Applicant's oral submissions 13 While the Applicant did not file any written submissions, he did make oral submissions at the hearing of his application. Those oral submissions can be summarised as follows. 14 First, the Applicant submitted that he had "learnt [his] lesson" from his past criminal offending and he had served his time for that criminal offending. 15 Second, the Applicant submitted that there was a risk to the Applicant if the Applicant returned to Sudan. The Applicant said his life was in danger if he returned to Sudan. The Applicant submits that there was evidence to that effect presented to the Tribunal and the Tribunal did not take it into account or did not adequately take it into account. 16 Third, the Applicant submitted that he had not "committed any murder". The implication was that the gravity of the Applicant's offending was not so severe that it should have resulted in the Tribunal refusing to revoke the relevant cancellation decision. 17 Fourth, the Applicant submitted that his criminal offending was an "accident" in his "record". The implication was that the Applicant's offending represented mere mistakes which did not support the Tribunal's decision. 18 Fifth, the Applicant submitted that his record of behaviour in detention showed he had good character. In this respect, the Applicant noted that he had completed a drug and alcohol rehabilitation program. 19 Sixth, the Applicant submitted that he would not reoffend and his risk of reoffending was low.

The Minister's response to the Applicant's ORAL submissions 20 The Minister made a number of submissions in response to the Applicant's oral submissions. The Minister's responsive submissions can be summarised as follows. 21 First, the Minister submitted that the Tribunal conducted a detailed review of the Applicant's risk of reoffending. The Minister submitted that at [78]-[82] and [85]-[93] of the Tribunal's Reasons the Tribunal stated: The material discloses a letter from the Respondent dated 17 September 2009. There can be no denying that this document constitutes a "formal warning" pursuant to this sub-paragraph (h). The letter relevantly provided as follows: "… It has come to this department's attention that you have a criminal record. I am writing to make you aware of the operation of section 501 of the Migration Act 1958 (the Act). Subsection 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test. The character test is defined at subsection 501(6) of the Act, which sets out a number of different grounds under which a person may not pass the character test. A copy of section 501 of the Act is attached for your information. You should read this document carefully. At present, no consideration is being given to cancelling your visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia. The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia." … The abovementioned correspondence from the Respondent (at the third page) contains a self-serving acknowledgement to be signed and dated by the Applicant by way of confirmation of his understanding of the letter's nature and effect. It is apparent from the T-Documents that the third, or acknowledgement, page of this correspondence was signed by the Applicant and returned to the Respondent. The Applicant did not deny receipt of this letter. There is no contention that he did not understand its contents. Despite receiving this letter, the Applicant continued to offend. The only way to construe the Applicant's conduct after receipt of this letter is to find that he … totally ignored the warning contained within it. I have earlier outlined, in some measure of detail, the Applicant's offending post-17 September 2009. Suffice it to say that, for present purposes, this component of his offending history discloses the following: • The Applicant found himself before lawful authority for sentencing on 18 separate occasions; • These sentencing episodes dealt with the commission of 29 separate offences; and • Judicial sentencing officers imposed (1) head custodial terms of a cumulative period of eight months, (2) six fines, and (3) other sentences in the form of good behaviour bonds and/or wholly suspended custodial terms. The content and terms of the formal letter of warning issued by the Respondent to the Applicant on 17 September 2009 could not have been clearer. The Applicant's blatant disregard of this formal warning is palpable and beyond excuse. The reality that the Applicant has ignored a duly issued warning by the Respondent about the adverse impact that his continued offending conduct would have on his migration status in this country is, to my mind, confirmatory of the very serious nature of his subsequent conduct. He has been given multiple opportunities (by both judicial sentencing officers, plus via this letter of warning) to modify and ameliorate his conduct. He has failed to do so after each such opportunity and, indeed, has persistently continued to offend after each such opportunity. This refusal to heed the Minister's very clear formal letter of warning is a factor that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, attaches a label of "very serious" to the nature of the Applicant's offending. … The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis: (a) paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending. The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct At the previous hearing before this Tribunal, the Applicant contended that the harm resulting from any future offending by him would be minimal to non-existent because his risk of recidivism was said to be low. The basis of this contention was that: "16. [The Applicant]'s previous offending was completely related to an alcohol dependency and being in the presence of friends he no longer associates with. It is therefore submitted that [the Applicant]'s risk of recidivism is low if he stays clear of alcohol and his former associates. By his own words, [the Applicant] has been away from alcohol for over 20 months by reason of his incarceration a [sic] feels that his life has improved because of it." In the instant hearing, the Applicant said in a written submission: "I have taken steps to recondition myself and find better things to introduce into my life in order to never find myself going down the road which has led me to finding myself in the circumstances I'm in at present. I have taken on many programs and courses to insure [sic] that I don't do anything that I have in the past."1 Alternatively, the Respondent contends that: "41. The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct of the kind in which he has previously engaged (particularly, violent assault and/or high-range drink driving) could range from serious physical and/or psychological injury to death." Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent's abovementioned submission is correct. Having regard to the consistent nature of the Applicant's criminal conduct across its eight year duration, there is much to suggest that, were he to re-offend if returned to the Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical or psychological harm to members of that community. Put simply, having regard to the preponderance of very serious offending in his history and the virtually perpetual superimposition of excessive alcohol consumption over almost the entirety of that conduct, it would be unsafe to find that, were he to resume his past offending, the nature of the harm to any victim would be somehow minimal or insignificant. Clearly, it would not. It is trite to suggest that the Applicant's history contains a number of less serious offences and, on that basis alone, a finding could be made that any future offending might be less serious than what he has done in the past. However, that, to my mind, is a fallacy. This is because, with the constant superimposition of the adverse effects of alcohol, the most serious and catastrophic harm can result from even the most mundane offending, such as, for example, exceeding the speed limit by the smallest possible kilometre per hour margin. I make the same point in this decision as I made in my earlier decision. The Applicant is a repeat offender with a very serious criminal history. As I will expand upon later in these Reasons, I am of the view that his problems with alcohol remain unresolved and untreated. Were he to re-offend in a similar manner - be it behind the wheel of a motor vehicle or in terms of direct physical interference with another person - I consider that he would pose a potentially grave risk to individuals in the Australian community. I therefore find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed, with potentially catastrophic physical or psychological harm being occasioned to members of the Australian community. (Bold and italicised text in the original; citations omitted.) 22 The Minister submitted that this passage and other passages in the Tribunal's Reasons shows: (a) the Tribunal considered the Applicant's offending; (b) the Minister told the Applicant in 2009 that the Applicant's criminal behaviour was a problem, and that further criminal behaviour might result in a cancellation; (c) the Tribunal had proper regard to the Applicant driving while intoxicated, which he has done on many occasions; (d) the Tribunal had appropriate regard to the Applicant's problems with alcohol and the Tribunal found that the Applicant has not properly dealt with this problem; (e) the Tribunal appropriately considered that it was quite fortuitous that the Applicant had not seriously harmed a member of the Australian community by way of his persistent driving whilst intoxicated; and (f) the Tribunal properly considered the nature of the harm that would be visited on the Australian community if further offending occurred, including by reason of the Applicant's unresolved problems with alcohol consumption posing a potentially grave risk to the Australian community. 23 The Minister submitted that these were all matters properly the subject of consideration in the Tribunal's assessment of the Applicant's risk to the Australian community under the relevant Direction, being "Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction). 24 Second, the Minister submitted that the Applicant's submission that he has learnt his lesson from past offending does not show that the Tribunal erred in its decision-making process. The Minister submitted that the Tribunal was properly concerned about the Applicant's offending and about his failure to address his alcohol-related offending. 25 Third, as to the Applicant's submission that the Tribunal failed to have adequate regard to the Applicant's sister's evidence (to the effect that the Applicant was at risk if he returned to Sudan), the Minister referred to [193]-[198] of the Tribunal's Reasons. The Tribunal relevantly stated: When one has regard to the evidence of both the Applicant, his sister and his mother, certain difficulties, misgivings and inconsistencies militates against the sustainability of these claims. First, while the Applicant initially contended, in very broad terms, that "…there are many chances that I will be killed…", the basis on which that fear was articulated seemed to evolve with the progression of his oral evidence. He seemed to primarily fear being called up to serve in the army reserve. There was nothing in his evidence about fearing political or other persecution as a member of a particular tribe. His main concern seemed to arise from being drafted into the army and being compelled to fight a war somewhere else or to otherwise be put at risk as a result of being drafted. His evidence was silent about being fearful of any form of political persecution as a member of any tribal denomination and that his main fear arose from being forced into army service and compelled to participate in apparently dangerous combat scenarios. Second, the Applicant speaks of "my father and my cousins" apparently having been killed. He makes no mention of his brother having been killed in Sudan or elsewhere. His sister (Witness NY) says that "…my father has passed away, so has my older brother." When pressed about why she thinks her brother (i.e. the Applicant) will be killed if removed to Sudan, Witness NY's evidence goes no higher than saying "I have a cousin whose gone through the process…So, yes, I would not like to see my brother going through the same process." When pressed about how she knew about this "cousin" who had gone through the same process, the highest her evidence went was for her to say "he was taken back to the military base, from stories I heard." Further, Witness NY said "Well, I don't know exactly the process he went through, whether he went to a military base or not, but we heard that he got killed." Third, the Applicant's evidence does not rise to even hearing about a specific person's death in Sudan. He makes the bald assertion that "all my close relatives are not there anymore because they were killed. There are many chances that I will be killed also." Fourth, the Applicant's second sister, Witness MY, made no mention of the risk of any physical harm being occasioned to the Applicant either in her written evidence or her oral evidence to this Tribunal. Nor did she say anything more broadly about anyone experiencing harm in Sudan. Fifth, the Applicant's mother said that she lost her husband in the Sudanese Civil War in 1995 and that she lost her eldest son in 1999, "…just because they were members of the Nuba tribe." She spoke of contemporary "…fighting and attacks. People are dying of daily aerial bombardment and hunger among other things. Tens of thousands are killed and hundreds of thousands are forced from their homes, I fear that if [the Applicant] is deported he's going to face the same fate as his father and brother." She apparently knew about this state of affairs because she "…heard these things through the news, news tv, or through the video…also, some people calling her from Sudan." She provided no detail about those media extracts from which she obtained this knowledge, nor any detail about which people apparently called her from Sudan and told her what she now purports to know. I have had regard to the totality of the Applicant's evidence and that of his two sisters and his mother. I am not satisfied that the Applicant has expressed any well-based or properly articulated fear(s) of harm resulting from his return to Sudan arising from (1) his being drafted into the army; (2) persecution as a returnee as a member of a given tribal denomination; and (3) persecution on the basis that other family members have apparently been killed or harmed. (Underlining and italics in the original; citations omitted.) 26 The Minister submitted that this passage shows that the Tribunal properly had regard to the totality of the Applicant's evidence before the Tribunal and, in doing so, properly concluded that there was not a clear and significant or substantial risk of harm put forward. The Minister submitted that the Tribunal was concerned that the evidence was not presented in a particularly consistent manner, and it was open to the Tribunal to come to the conclusion that it did. The Minister submitted that it was open to the Tribunal to find that there was not a clearly expressed, articulated basis for the harm that the Applicant had claimed that he feared. 27 The Minister further submitted that, in this respect, there was no denial of procedural fairness. The Minister submitted that the Applicant attended the hearing before the tribunal and there is no reason to find or suspect that the Applicant was not fully partaking in the hearing when his sisters and his mother were cross-examined about their evidence, or given the opportunity to elaborate upon their evidence. 28 The Minister submitted that matters as to risk of harm upon return were put before the Tribunal, the Tribunal properly assessed those matters, and the Tribunal made findings which were open to it. The Minister submitted that there is no error in the Tribunal's Reasons in this respect. 29 As to the Applicant's submission that he has served his time for the relevant criminal offending, the Minister submitted that the Applicant's failure to pass the character test was by reason of a number of periods of imprisonment which, cumulatively, exceeded 12 months. The Minister submitted that the Tribunal was aware of that, and summarised the Applicant's criminal offending (as set out above). The Minister submitted that, as a result, there was no misapprehension by the Tribunal concerning the Applicant's criminal offending.

The Applicant's oral submissions 30 As to the matters raised by the Applicant's oral submissions, I have set out above the Minister's response to those oral submissions. The Minister's responsive submissions should be accepted. 31 First, as shown in the extracts from the Tribunal's Reasons set out above, the Tribunal had full and proper regard to the Applicant's criminal offending. The Applicant has not shown that the Tribunal's consideration of the Applicant's criminal offending resulted in the Tribunal falling into error. 32 By way of example, at [35]-[49] of the Tribunal's Reasons, the Tribunal gave detailed consideration to the Applicant's criminal offending. The Tribunal concluded at [48]-[49]: I find that the Applicant's conduct to date has been extremely serious. I therefore have little difficulty in agreeing with the Minister's delegate in finding that the totality and repetitive nature of this Applicant's offending can be viewed seriously in terms of its overall impact on the community. Consequently, [the relevant] factor [in the Direction] weighs heavily in favour of exercising the discretion to cancel his visa. 33 At [60] of the Tribunal's Reasons, the Tribunal stated: Taken cumulatively, there can be no finding other than that the sentences imposed by the courts for the crimes of the Applicant clearly militate in favour of the allocation of a significant measure of weight in favour of a finding that his offending in this country has been very serious. 34 At [66] of the Tribunal's Reasons, the Tribunal stated: … both the frequency of his offending, as well as (at least) its consistency, but, more likely, its increasing level of severity, must attract a finding that this Applicant's offending has been of a very serious nature. 35 At [73]-[75] of the Tribunal's Reasons, the Tribunal stated: For present purposes, the best evidence before the Tribunal is that the Applicant has consistently lacked any measure of judgment in terms of his consumption of alcohol … The other, and to my mind very significant, cumulative effect of the Applicant's offending involves the astonishing number of instances where he has failed to develop any measure of respect for the lawful authority governing the community into which he now seeks re-admission. His criminal history discloses some 26 separate instances of offending aimed squarely at lawful authority. This offending involved him (1) failing to appear in accordance with duly provided undertakings, (2) breaches of probation orders, (3) a refusal to provide requested details to law enforcement officers, (4) contravening a lawful direction or requirement of law enforcement officers, (5) breaches of other orders, (6) breaches of bail, (7) evading applicable fares for using public transport, and (8) a breach of a community service order. Allied to this cumulative effect of his offending are numerous instances of him failing to respect the property rights of others, including but not limited to offences described as (1) unauthorised dealing with shop goods, (2) receiving stolen property, and (3) trespass. The cumulative effect of the nature and extent of the Applicant's repeated offending clearly attracts application of this sub-paragraph (f) [of the Direction] in favour of a finding that his offending has been of a very serious nature. 36 The Tribunal stated at [84] and [93] of the Tribunal's Reasons: Having regard to the totality of the evidence to which the abovementioned relevant sub paragraphs (a), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction, I am of the view that the Applicant's conduct is readily capable of characterisation as "very serious". … I … find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed, with potentially catastrophic physical or psychological harm being occasioned to members of the Australian community. 37 That reasoning, which is illustrative of the Tribunal's Reasons generally, was well within the bounds of the Tribunal's role. I am not satisfied that the Tribunal's detailed consideration of the Applicant's criminal offending reveals any relevant error, and none has been adequately identified (even in a general way) by the Applicant in this proceeding. 38 Second, as to the Applicant's oral submission that he was at risk if he returned to Sudan, I deal with this submission below. 39 Third, to the extent the Applicant submitted that he had reformed and that such reform was a relevant consideration, the Applicant failed to show how that matter was put before the Tribunal or, in any event, how that matter demonstrated that the Tribunal fell into error. Indeed, at [113]-[114] of the Tribunal's Reasons, after reviewing the relevant evidence, the Tribunal stated: There seems an insurmountable gap in the evidence with regard to the Applicant's failure to fulsomely engage in any clinically verifiable treatment methodology, such as to lessen his risk of recidivism. For present purposes, it is simply not safe to ground a finding of a low risk of recidivism on the Applicant's own self-reporting that he has overcome his predisposition to abuse alcohol. Likewise, the Applicant cannot rely on his removal from the Australian community as a means of suggesting that this has prevented him from engaging in clinical treatment. The Applicant's engagement with the rehabilitative process thus far falls well short of the necessary expert and independent clinical support needed to demonstrate that his predisposition to abuse alcohol is the subject of any program of effective remedial treatment, management and control, such that it can be reliably found that the Applicant's risk of re-offending is low. The state of the evidence goes nowhere near reaching the necessary threshold whereby this Tribunal can safely find that, were this Applicant to again find himself in the general community, and be confronted with the requirements and exigencies of daily life, he would not again resort to abusing alcohol as a means of navigating his way through life. 40 The Tribunal further stated at [118]-[121] of the Tribunal's Reasons: The Applicant's persistent pattern of offending and resulting eight year criminal history clearly demonstrates he has been afforded multiple sentencing opportunities to modify and ameliorate his conduct. He has received the benefit of fines, bonds, parole and suspended sentences in lieu of custodial sentences. He has failed to grasp those opportunities to alter his offending behaviour and, instead, continued to offend, and very seriously so. The state of the clinical evidence goes nowhere near convincing this Tribunal that the Applicant has engaged, or is likely to engage, with a clinical process involving effective treatment and/or other intervention-based therapies necessary to demonstrate that his risk of re-offending can now reliably be found to be low, or, put another way, any different to his risk of re-offending immediately prior to his removal from the Australian community in November 2014. I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that (1) the nature of the Applicant's offending conduct to date is very serious and (2) there is an unacceptably strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community. In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non revocation. 41 In these circumstances, the Tribunal's Reasons in fact specifically dealt with the issue of the Applicant's risk of recidivism. The Tribunal's Reasons had regard to the relevant factors and its conclusions were well-supported by the evidence. It should not be accepted that the Tribunal failed to have regard to whether the Applicant had reformed, or the Applicant's prospects of reform. It should not be accepted that the Tribunal's Reasons reveal error in this respect.

First Ground 42 As to the first ground, the Applicant contends that the Tribunal misapplied or misinterpreted the law. This ground is not made out for the following reasons. 43 The Tribunal recognised the task it was required to perform pursuant to its statutory duty to conduct a review. By way of example, at [16]-[19] of the Tribunal's Reasons, the Tribunal correctly stated: Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that: (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. There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant's visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia's observations in Minister for Home Affairs v Buadromo: "…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word 'may' in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…" There are therefore two issues presently before the Tribunal: • whether the Applicant passes the character test; and • whether there is another reason why the decision to cancel the Applicant's visa should be revoked. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant's visa must be revoked. I will address each of these grounds in turn. (Citations omitted.) 44 After setting out this test, it is tolerably clear that the Tribunal had proper regard to the relevant issues under s 501CA(4) of the Act: that is, whether the Applicant passed the character test, and whether there was another reason why the Applicant's visa cancellation should be revoked: see, for example, Tribunal's Reasons at [20]-[31]. The Tribunal recognised that it was bound to comply with the Direction. At [26] of the Tribunal's Reasons, the Tribunal stated: In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA ("the Direction") has application. 45 The remainder of the Tribunal's Reasons demonstrate clearly that the Tribunal adhered to the considerations it was required to consider under the Direction, having appropriate regard to the evidence before it. Indeed, the Tribunal's Reasons logically set out, and considered in detail, each matter which requires assessment under the Direction. The Tribunal's Reasons in this respect do not disclose any jurisdictional error. 46 Even considering the Applicant's application for its substance rather than its form, the Applicant's application, as articulated in the Applicant's oral submissions at the hearing of this matter, failed to demonstrate that the Tribunal misapplied or misinterpreted the law. 47 This ground lacks any merit and must be rejected.

Second Ground 48 In relation to the second ground, the Applicant's complaint is a denial of procedural fairness by the Tribunal. 49 The Minister accepts that the Tribunal had an obligation of procedural fairness to the Applicant in conducting its review. In Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (Picard), at [31] Tracey J stated: There can be no doubt that the Minister [and, it can be interpolated, the Tribunal], as an administrative decision-maker, was bound to accord procedural fairness … when dealing with [an] application under s 501CA(4) of the Act. The question for determination, as both parties acknowledged, was "what is required in order to ensure that the decision [was] made fairly in the circumstances having regard to the legal framework within which the decision [was] to be made": see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ). 50 In Picard at [37]-[38], Tracey J relevantly stated: The purpose served by the imposition, on decision-makers, of an obligation to accord procedural fairness to those who may be affected by their decisions is the avoidance of "practical injustice": see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point). Judgments about practical justice and fairness fall to be made in the circumstances of individual cases. As Weinberg J said in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 at [54]: "Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance." 51 Justice Tracey further stated at [42]: It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant's circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision. 52 In this case, the Applicant was invited to appear before the Tribunal at a hearing where he gave oral evidence and had the opportunity to make submissions in support of his case. The Tribunal took oral evidence from witnesses nominated by the Applicant. There was nothing in the Applicant's application or in the Applicant's oral submissions which provided a basis to suggest that the Applicant was denied procedural fairness in the Tribunal. 53 In all of the circumstances, there is no merit to the Applicant's contention that he was denied procedural fairness. This ground does not identify error in the Tribunal's decision, and must be rejected.

Third Ground 54 By the third ground, the Applicant asserts that the Tribunal failed to consider information or claims that he put forward. 55 The Minister accepts that the Tribunal will have failed to conduct its review in accordance with its statutory duty if it overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act. 56 In Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492, Jagot, Rangiah and Banks-Smith stated at [47]: … 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 v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531] at [30]. 57 Notwithstanding the Tribunal's obligation to consider 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), it nevertheless remains for the Applicant to advance the representations that he or she wishes the Minister to consider. In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643, Rares and Robertson JJ stated at [48]: It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made. In the present case, in our opinion, the Minister was not required to give more extensive consideration to the representations put, such as investigating and making further findings, in particular findings as to how the respondent "would be able to manage those practical changes" as the primary judge appears to have held at [34]. The Minister found that there would be hardship for the respondent but that it would not be insurmountable. (Emphasis added.) 58 In GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202, Flick, Griffiths and Moshinsky JJ (at [32(d)]) referred to "[t]he decision-maker's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) …". 59 In a related context, the Full Court stated that the "the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials": Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47, [69] (Bromwich and Wheelahan JJ). 60 In AXT19 v Minister for Home Affairs [2020] FCAFC 32, the Full Court stated at [56]: Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits - and not judicial - review. (Emphasis added.) 61 It is therefore important to examine the representations the Applicant did advance in support of his request for revocation. 62 As to the Applicant's representations concerning his fear of harm if returned to Sudan, those representations were advanced in the Tribunal as follows: (a) First, that he no longer had any family in Sudan, and that there was a war in Sudan: Tribunal's Reasons, [182], [183] and [192]; (b) Second, the Applicant had not participated in the "reserve army" as he was supposed to, and that he may be forced to fight a war: Tribunal's Reasons, [182]. (c) Third, the Applicant might be killed in relation to his non-participation in the reserve army: Tribunal's Reasons, [182]-[185]. (d) Fourth, the Applicant was at risk of harm as a member of the Nuba tribe: Tribunal's Reasons, [184]. 63 The Tribunal's Reasons (fairly read) properly acknowledged the above claims having been advanced by the Applicant: see Tribunal's Reasons, [192]. The Tribunal gave a number of reasons for its conclusion that the Applicant had not advanced any clearly articulated, substantial or significant representations of risk of harm: Tribunal's Reasons, [193]-[198] (which are set out above). In particular, the Tribunal noted that there were inconsistencies in the risks of harm referred to by the Applicant and his witnesses (his mother, and two sisters). The Tribunal had concerns about the evidence given by one of his sisters and the basis upon which she had heard that a cousin who had "gone through the process" had been killed. On this basis, the Tribunal concluded at [198] of the Tribunal's Reasons: I have had regard to the totality of the Applicant's evidence and that of his two sisters and his mother. I am not satisfied that the Applicant has expressed any well-based or properly articulated fear(s) of harm resulting from his return to Sudan arising from (1) his being drafted into the army; (2) persecution as a returnee as a member of a given tribal denomination; and (3) persecution on the basis that other family members have apparently been killed or harmed. 64 There is no basis upon which that conclusion can be called into question in this Court, without entering into impermissible merits review. There is no material referred to, or submission advanced, by the Applicant in this Court which reveals error in the Tribunal's decision in this regard. 65 Moreover, the Tribunal considered that, even if it accepted that the Applicant belonged to the Nuba tribe, the Applicant had not advanced a clear representation about fearing harm for this reason. The Tribunal stated at [200]-[201] of the Tribunal's Reasons: In circumstances where (1) the Applicant makes no reference to belonging to the Nuba (or any other) tribe, (2) this particular representation was actually made by his sister (Witness NY), and (3) the evidence does not refer to any properly detailed claim in relation to the harm the Applicant may face if returned to Sudan, it is very difficult to find that this particular claim of the Applicant rises to the threshold of a "clearly articulated and substantial or significant representation of risk of harm." Accordingly, I do not consider that any of the Applicant's contentions engage any non-refoulement obligations this country may otherwise owe him. Consequently, I am not satisfied that the Applicant is a person in respect of whom Australia has non-refoulement obligations. To the extent that this Other Consideration (a) may weigh in favour of revocation, it is of minimal weight only. It is determinatively outweighed by the weight I have attributed to the Primary Considerations A and C, and that I may attribute to the relevant Other Considerations 66 In this respect, the Tribunal had regard to country information concerning the risk of persecution and discrimination of certain ethnic groups in Sudan and South Sudan, including the Nuba: see Tribunal's Reasons, [199]. 67 In these circumstances, the Tribunal's Reasons reveal that the Tribunal accurately identified the representations advanced by the Applicant regarding potential non-refoulement obligations. The Tribunal's Reasons demonstrate that the Tribunal had proper regard to those matters in its decision-making process. The Applicant's oral submissions have not identified how the Tribunal fell into any error. The Applicant has not identified, even in a general way, how the Tribunal failed to properly evaluate the evidence as to the Applicant's asserted risk of harm if returned to Sudan. In the circumstances, there is no basis to find, and I am not satisfied, that the Tribunal's Reasons contain an error which could be categorised as a jurisdictional error. 68 In addition, the circumstances of a particular case are important. In Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194, Nettle, Gordon and Edelman JJ stated at [33]-[36]: Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim. That conclusion is reinforced by the fact that non-refoulement is addressed separately in the Act in provisions concerning the grant of protection visas (being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently with its non-refoulement obligations under international law) and in the context of removal. Given those express provisions, it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised. It is unnecessary to decide, however, whether consideration of that matter can be deferred where a non-refoulement claim is made in a revocation request. Put in different terms, it is through express provisions in the Act that Australia's non-refoulement obligations under international law have been implemented in Australian domestic law; and, if a non-citizen affected by cancellation seeks to have the Minister consider non-refoulement and remains free to apply under those express provisions for a protection visa, the Minister is not required to consider non-refoulement unless a claim for a protection visa is made. It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non-refoulement claim is made - as in this case - non-refoulement does not need to be considered in the abstract. In those circumstances, it would only need to be considered at a later time, if the applicant applied for a protection visa. The appellant has not done so. (Citations omitted; emphasis in the original.) 69 On a fair reading of the Tribunal's Reasons, it is apparent that the Tribunal properly identified and considered the representations advanced by the Applicant. It was not satisfied that the representations were sufficient to give rise to non-refoulement obligations. There was no material referred to, or submission advanced, by the Applicant which might indicate, even in a general way, that the Tribunal's reasoning as to any non-refoulement obligation entailed jurisdictional error. Having reviewed the Tribunal's Reasons, I am not satisfied that the Tribunal's reasoning entailed jurisdictional error. Accordingly, this ground must fail.

DISPOSITION 70 For the reasons given, the application will be dismissed with costs. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)

Cited By (2)