Ground 1
44 By this ground, the applicant contends that the Tribunal failed to consider whether the applicant would face certain forms of harm in South Sudan (independently of whether the risk of harm was of such a kind that Australia owed non-refoulement obligations with respect to the applicant).
45 The applicant's submissions can be summarised as follows:
(a) The Tribunal was obliged by s 501CA of the Migration Act, in reviewing the delegate's decision, to consider representations made as to a claimed "reason" why the cancellation decision should be revoked. Such representations are mandatory relevant considerations: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [41].
(b) Accordingly, and as is now well-established, the Tribunal would be obliged to consider any representation to the effect that: (i) the applicant would face harm in his home country; and (ii) that was a "reason" to revoke the cancellation of his visa. That is so "[r]egardless of [a] non-refoulement claim": see, e.g., Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 (Ezegbe) at [27]-[28], applying BCR16 at [49], [70]-[72]. That is to say, that is so regardless of whether the applicant's claims would (if accepted) also be such as to engage Australia's non-refoulement obligations at international law.
(c) However, nowhere did the Tribunal consider whether the applicant would in fact (and regardless of the engagement or otherwise of Australia's non-refoulement obligations) be exposed to certain kinds of harm that he said he would be exposed to on return. These included (without limitation):
(a) exposure to discrimination and violence, as a Dinka (see the applicant's statement of issues, facts and contentions at [95]-[99]);
(b) exposure to destitution and famine (see the applicant's statement of issues, facts and contentions at [99] and [106]); and
(c) exposure to risk of crimes against the person and property, including "looting, indiscriminate attacks on civilians and the destruction of civilian property" (see the applicant's statement of issues, facts and contentions at [102]).
(d) The significance of the failure of the Tribunal to engage in any (let alone any detailed) consideration of these matters should also be assessed in light of the observations of Allsop CJ (with whom Markovic and Steward JJ agreed) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (Hands) at [3].
46 The Minister's submissions in response can be summarised as follows:
(a) The Minister accepts that the Tribunal is required to consider all of the integers of the claims put by the applicant: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[57]. However, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. For example, it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. It is necessary to consider the context in which claims are presented, especially (if an applicant is represented) the way that claims are framed in submissions to the Tribunal: AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 (AEG16) at [25]-[26]; see also AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18(d)].
(b) Here, the applicant's claims were framed in the submissions to the Tribunal by the applicant's representative, as explained by the applicant's written and oral evidence (summarised in the Reasons at [68]-[71] and [160]-[161]). Many of the applicant's claims were expressly and clearly considered by the Tribunal.
(c) The Tribunal was looking for claims dealing particularly with the applicant's personal circumstances: Reasons, [158]-[159]. There is no error in that approach. Paragraph 14.1(1) of Direction 79 states that "[t]he Act reflects Australia's interpretation of [non-refoulement] obligations and, where relevant, decision-makers should follow the tests enunciated in the Act". That means the Tribunal considers "non-refoulement obligations" as given effect by the Migration Act: GBV18 v Minister for Home Affairs [2019] FCA 1132 at [127]-[130], considering the equivalent paragraph in previous Direction 65. In the case of complementary protection, s 36(2B)(c) of the Migration Act excludes a risk that is faced by the population of the country generally and is not faced by the non-citizen personally.
(d) The Tribunal was therefore correct to state that any harm that is not "serious harm" or "significant harm" is unlikely to give rise to a non-refoulement obligation under ss 36(2)(aa) and 36(2A) (Reasons, [166]). The Tribunal was not saying that these claims did not need to be considered at all; merely that these claims did not need to be considered under "non-refoulement obligations". That is correct, for the reasons set out above. Instead, the Tribunal considered those non-Convention related aspects of the applicant's concerns under "Extent of impediments if removed" (Reasons, [175]).
(e) The applicant contends that there were several specific claims that were not considered. The first claim is exposure to discrimination and violence as a Dinka. Those claims were expressly made as claims that would attract non-refoulement obligations (applicant's statement of issues, facts and contentions, [95]-[98]), and were considered as such. The Tribunal expressly noted claims that the applicant would fear "ongoing violence and attacks" and being "unfairly prosecuted" because of his Dinka origins and accent at Reasons, [165]. The Tribunal noted DFAT's advice not to travel to South Sudan because of instability, ongoing conflict and a deterioration of law and order, and acknowledged the generally unstable situation in Sudan and South Sudan. However, the Tribunal found that the available evidence did not support submissions that the applicant was at risk of "death, persecution or other Convention-related harm within the meaning of the Act" irrespective of where he might be repatriated (Reasons, [174]-[175]).
(f) The applicant also refers to other claims of exposure to destitution and famine, and exposure to risks of crimes such as looting and indiscriminate attacks (applicant's statement of issues, facts and contentions at [99] and [102]). These claims were put as claims that could not solely be characterised as serious harm or significant harm: statement of issues, facts and contentions at [99]. These particular claims were not specific to the applicant's circumstances, and the Tribunal was therefore correct not to consider them under non-refoulement as given effect by the Migration Act.
(g) The general position in Sudan and South Sudan was instead considered under "Extent of impediments if removed". The Tribunal referred to DFAT country information that the economies of Sudan and South Sudan have been adversely affected by prolonged conflict (Reasons, [187]). The Tribunal found that the applicant's quality of life is likely to be "substantially diminished", and that he would likely experience "significant hardship" if returned (Reasons, [188]). These statements should be read together with the Tribunal's earlier recognition of the generally unstable situation in Sudan and South Sudan (Reasons, [175]). The Tribunal also referred specifically to difficulties with the applicant's medical treatment in Sudan or South Sudan (Reasons, [189]). Crucially, the Tribunal found that the extent of impediments "weighed strongly" in favour of revocation (Reasons, [190]). That is, it was not necessary for the Tribunal to develop its reasons any further, because it accepted the substance of the applicant's claims on this point. This case is therefore very different from Hands, where there was no probative basis for a central finding that sought to minimise the difficulties that a person would face on return.
47 For the reasons that follow, I consider that the Tribunal failed to give genuine consideration to the three claims or representations relied on by the applicant in relation to ground 1, namely:
(a) exposure to discrimination and violence, as a Dinka (see the applicant's statement of issues, facts and contentions at [95]-[99]);
(b) exposure to destitution and famine (see the applicant's statement of issues, facts and contentions at [99] and [106]); and
(c) exposure to risk of crimes against the person and property, including "looting, indiscriminate attacks on civilians and the destruction of civilian property" (see the applicant's statement of issues, facts and contentions at [102]).
48 The key portions of the Reasons are [165]-[167], [172]-[176] and [187]-[190], which have been set out above.
49 At [165]-[167] and [172]-[176], the Tribunal considered the applicant's claims only through the lens of Australia's non-refoulement obligations, as implemented by the Migration Act. That the Tribunal considered the claims in this way is apparent from the emphasised portions of [165]-[167] and [172]-[176] (as set out earlier in these reasons) including, for example, the reference to "serious or significant Convention-related harm" in the last sentence of [165], and the references to "complementary protection" and "serious or significant harm within the meaning of the Act" in the last sentence of [167]. In these passages, the Tribunal did not, therefore, consider the applicant's claims irrespective of whether they engaged Australia's non-refoulement obligations (as implemented by the Migration Act). It is, however, clear that the applicant's claims were put on this (wider) basis. This was emphasised in the applicant's statement of issues, facts and contentions, in particular at [68] and [99]. In those paragraphs, the applicant explicitly acknowledged that some of the harms he would face could not solely be characterised as "serious" or "significant" harm, and submitted that the Tribunal was required to consider all of the levels and types of harm he would face.
50 In [166], the Tribunal noted the applicant's submissions that his fears of harm could not solely be characterised as "serious harm" or "significant harm". The Tribunal then stated that any harm not characterised as "serious" or "significant" was "unlikely" to give rise to a non-refoulement obligation under ss 36(2)(aa) and 36(2A). Having noted the applicant's submission, and having made that observation, the Tribunal did not, however, go on to consider the matters referred to in [47] above irrespective of whether they qualified as "serious harm" or "significant harm".
51 Contrary to the Minister's submissions, I do not consider that the claims referred to in [47] above were subsumed by findings or conclusions of greater generality. This follows from the fact that, in [165]-[167] and [172]-[176], the Tribunal considered the applicant's claims solely through the lens of Australia's non-refoulement obligations (as implemented by the Migration Act), and the fact that the applicant's claims were put on a wider basis.
52 Further, the Tribunal did not consider the three claims referred to in [47] above in the section of the Reasons dealing with the "Extent of impediments if removed". The Tribunal here dealt with the matters identified in paragraph 14.5(1) of Direction 79, including access to healthcare, employment prospects and cultural barriers. These matters were of a different nature to the three claims referred to in [47] above.
53 It follows from the preceding paragraphs that the Tribunal did not deal with the applicant's claims set out in [47] above other than through the lens of Australia's non-refoulement obligations (as implemented by the Migration Act). The error in the present case is similar to that discussed by Perram J in Ezegbe at [27]-[28]. The claims referred to in [47] above were significant and clearly expressed representations. There is no issue between the parties that the Tribunal was required to consider all of the integers of the claims put by the applicant. For the reasons set out above, the Tribunal failed to do so. Had the Tribunal considered these claims, it may have affected its conclusion. Had the Tribunal considered, for example, the representation regarding "destitution and famine", it may have concluded that this was a factor weighing in favour of revocation. This could have affected its ultimate conclusion. The failure to deal with the applicant's claims constituted a jurisdictional error. It follows that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for determination according to law.
54 In light of this conclusion, it is not strictly necessary to consider the remaining grounds. However, for completeness, I will set out my views in relation to these grounds.