YQLH v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-03-27|Before: Stewart J

The applicant's interlocutory application for leave to further amend the amended originating application by introducing review ground 4 be dismissed.
The proceeding be dismissed.
The applicant pay the first respondent's costs. 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 Administrative Appeals Tribunal not to revoke the cancellation of the applicant's Class BS (subclass 801) partner via. The decision of the Tribunal not to revoke the cancellation was a decision made under s 501CA(4) of the Migration Act 1956 (Cth). Judicial review is sought under s 476A of the Act which requires the establishment of jurisdictional error.

The Tribunal's decision 6 It was common ground before the Tribunal, as it is before me, that the applicant fails the character test. The Tribunal accordingly recognised that it was required to decide whether there was "another reason" why the cancellation of the applicant's visa should be revoked. 7 The Tribunal recognised that it was required to make its decision within the guidance set by Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. After identifying relevant guiding principles extracted from the Direction, the Tribunal proceeded to consider each of the "primary" and "other" considerations identified in the Direction. 8 With respect to primary consideration 1, being protection of the Australian community from criminal or other serious conduct, the Tribunal found that given the applicant's very serious history of offending, he remains at "a real not insignificant risk" of reoffending. The Tribunal concluded that primary consideration 1 "weighs heavily against the revocation." 9 With respect to primary consideration 2, being whether the conduct engaged in constituted family violence, the Tribunal found that given the applicant's domestic violence convictions, primary consideration 2 "also weighs heavily against the revocation." 10 In respect of primary consideration 3, being the strength, nature and duration of ties to Australia, the Tribunal accepted that the applicant has strong and long-term links with Australia and that this consideration "weighs heavily in favour of revocation." 11 With respect to primary consideration 4, being the best interests of minor children in Australia, the Tribunal concluded that it is in the best interests of the applicant's two children if the cancellation is revoked and thus primary consideration 4 "weighs heavily in favour of the revocation." 12 In respect of primary consideration 5, being the expectations of the Australian community, the Tribunal concluded that given the seriousness and repeated nature of the applicant's conduct, primary consideration 5 would "weigh heavily against the revocation." 13 The Tribunal then turned to "other considerations", starting with the legal consequences of a decision not to revoke the cancellation of the applicant's visa. As will be seen, the Tribunal's treatment of this consideration is the focus of the judicial review application. 14 The Tribunal noted that the applicant states that as a Palestinian refugee he is not entitled to hold a Lebanese passport and would be considered stateless. It also noted the applicant's fear of harm and discrimination as a result of his status and the possibility of lengthy detention given that he would need to make an application for a visa to return to Lebanon. 15 The Tribunal then stated the following: 90. The Respondent notes that the Applicant may apply for a visa to travel to Lebanon but it is speculative that the visa may be granted. The other options available to end detention are whether the Applicant can be safely removed to another country, or if the bar on future applications is lifted. The Respondent acknowledges that if the cancellation is not revoked, the Applicant may be subject to ongoing detention. The Respondent acknowledges, by reference to the DFAT report on Lebanon, that the Lebanese authorities are reluctant for persons with the Applicant's profile to reside in Lebanon. 91. The Tribunal accepts that if the Applicant is not able to successfully obtain a visa to travel to another country, he may remain in Australia and is likely to remain in detention as an unlawful non-citizen. That is, there is a real prospect of the Applicant remaining in detention for a lengthy or even indefinite period. 16 The Tribunal also noted the applicant's poor mental health, and ultimately concluded in relation to the consideration of the legal consequences of the decision that it "weighs heavily" in favour of revocation. 17 Next, the Tribunal considered the extent of the impediments to the applicant if he were removed from Australia. After considering the difficulties that the applicant would likely face if he was removed to Lebanon, the Tribunal acknowledged that "there is not a high likelihood" of such removal given the applicant's status and the need for him to obtain a visa or residence permit before he could enter another country. However, accepting that the applicant would face significant hardship, if he was removed, particularly given his health issues and the length of time he has spent in Australia, the Tribunal concluded that these considerations "weigh heavily" in favour of revocation. 18 In reaching its ultimate conclusion not to revoke the decision to cancel the applicant's visa, the Tribunal summarised the various considerations including the weight that it had attached to each. It ultimately decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. It found that those considerations outweighed the other considerations. On that basis the delegate's non-revocation decision was affirmed.

The grounds of review 19 The applicant raises three grounds of review in his amended originating application, namely that the Tribunal: (1) Took into account an irrelevant consideration, failed to take into account a relevant consideration and/or failed to correctly understand the evidence before it; (2) Failed to consider relevant considerations and as such, failed to determine the legal consequences of affirming the decision under review to not to revoke the cancellation of the applicant's visa; and (3) Erred at law in finding that a legal consequence of the exercise of the Tribunal's discretion not to revoke the decision under s 501(3A) was that the applicant would be detained indefinitely or for a lengthy period, and in so erring committed jurisdictional error in that it failed to correctly take into account a mandatory relevant consideration, being the effect on the applicant of the legal consequences of the exercise of its discretion. 20 At the hearing, the applicant applied to further amend the amended originating application by adding a fourth ground of review, namely that the Tribunal: (4) Committed jurisdictional error in failing to deal with an expressly articulated claim based on substantive grounds, or which in the alternate arose on the facts, and which the Tribunal was obligated by reason of the Direction to deal with. 21 The Minister opposes the further amendment on the basis that the additional ground has insufficient prospects of success to be justified. Counsel for the Minister was able to deal with the ground in oral argument supplemented by a short note filed with leave after the hearing. There was thus no procedural prejudice in considering the amendment application with reference to its merits. It was agreed that I would deal with the ground on its merits and allow the amendment or not depending on my conclusion on the merits.

Grounds 1, 2 and 3: the likelihood of removal to Lebanon 22 Review grounds 1, 2 and 3 are interrelated. They are underpinned by the contentions that the Tribunal failed to consider: (1) the Danish Ministry of Immigration and Integration report on "Lebanon readmission of Palestinian refugees from Lebanon, Report based on a Fact Finding Mission to Beirut, Lebanon from 7 to 10 January 2020" (Danish report); and (2) the legal consequences of not revoking the cancellation of the applicant's visa, being the likelihood of indefinite detention. 23 It is convenient to address each in turn.

Did the Tribunal consider the Danish report? 24 The applicant submits that by not considering the Danish report at all, the Tribunal committed jurisdictional error by failing to take into account a relevant consideration and/or failing to correctly understand the evidence before it. That is on the basis that a failure to consider material that is cogent and centrally relevant can amount to jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (Robertson J) at [111]-[112]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 (Griffiths, Perry and Bromwich JJ) at [71]. 25 The applicant refers to the reference in the Tribunal's decision (at [90]) to the Minister's acknowledgment, "with reference to the DFAT report on Lebanon, that the Lebanese authorities are reluctant for persons with the Applicant's profile to reside in Lebanon" (emphasis added), as constituting evidence that the Tribunal did not refer to the Danish report which was before it but rather to some other DFAT report. 26 The Danish report "focuses on stateless Palestinian refugees from Lebanon (PRL) and their possibility to re-enter Lebanon from a third country in which their application for asylum has been rejected." The executive summary states that: Since the elections of May 2018, the Lebanese authorities have been reluctant to allow stateless Palestinian refugees from Lebanon (PRLs) residing abroad to return to Lebanon if they do not have a residence permit in the country in which they currently stay. This applies regardless of whether the return is to be carried out voluntarily or by force. The number of successful returns within this period has been highly limited. Applications for new or renewal of Palestinian travel documents from Lebanon as well as issuance of laissez-passer to such PRLs are being put on hold by the Lebanese Ministry of Foreign Affairs and Emigrants (MFA). The current practice is based on a political decision by the Lebanese MFA. (Emphasis added.) 27 It is of course correct that the Tribunal's reasons do not expressly mention the Danish report, but rather refer to a DFAT report. There are, however, a number of reasons which lead me to the conclusion that the Tribunal considered the Danish report and that the reference to "DFAT" was a simple error - the reference was intended to be to the Danish report. 28 First, there was no DFAT report in evidence before the Tribunal. On the applicant's case, the Tribunal must have been referring to a DFAT report on Lebanon that was not before it and which it accessed on its own initiative. The applicant tendered on the review hearing a DFAT "Country Information on Lebanon Report" dated 26 June 2023 that was current at the time of the Tribunal hearing and suggested that that is the report that the Tribunal might have been referring to. However, as I will come to, the Minister did not refer to that report and the Tribunal expressly referred to the report that had been referred to by the Minister. Also, the DFAT report does not deal with the subject that the Tribunal was dealing with, namely the attitude of the Lebanese authorities to allowing someone with the applicant's profile to return to Lebanon. It is thus likely that the reference to a "DFAT" report is an error and that the intention had been to refer to the Danish report. 29 Secondly, there is explicit reference to the Danish report, cited as "TB8", in the Minister's statement of facts, issues and contentions (SFIC) before the Tribunal. The report was referred to in the context of addressing the legal consequences of the decision not to revoke the cancellation of the applicant's visa, particularly that the applicant would face the possibility of continued detention unless and until he was able to successfully apply for a visa to return to Lebanon. The significance of this is that the Danish report was expressly drawn to the Tribunal's attention by the Minister, which the Tribunal acknowledged in its decision (at [90]). The Minister did not draw any other report to the Tribunal's attention. This supports a conclusion that the Tribunal most likely had regard to the Danish report. 30 Thirdly, the Tribunal employed the very language used in the report when addressing the legal consequences of its decision. By referring to the Lebanese authorities as being "reluctant" for persons with the applicant's profile, that is a PRL, to reside within Lebanon, the Tribunal utilised the same word as used in the executive summary of the Danish report - as quoted above. This cannot be dismissed as mere coincidence. The fact that the Minister's SFIC did not employ the word "reluctant" when addressing the report further suggests that the Tribunal directly considered the report itself. Also, the word "reluctant", although appearing in the DFAT report that was tendered, is not used in that context. 31 Thus, I am more than satisfied that the Tribunal considered the Danish report. Review ground 1 fails.

The legal consequences of non-revocation: statelessness and indefinite detention 32 The applicant submits that even if the Court were to find that the Tribunal's reference to the DFAT report is in fact a reference to the Danish report, the Tribunal did not give the report due or adequate consideration in a manner which amounts to jurisdictional error. In that regard, the Tribunal was obliged to "read, identify, understand and evaluate the representations" made by the applicant: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24]. 33 The applicant submits that the only available conclusion on the evidence or material before the Tribunal - being principally the Danish report on this question - was that the applicant would not be able to be removed to any other country (T11:9-13). Instead, the Tribunal found (at [90]) that the applicant would likely be detained for a lengthy or even indefinite period, as he may not be able to leave Australia. 34 The report, however, is equivocal. It does not dismiss the possibility that a person in the applicant's position could return to Lebanon. The introduction itself points to there being a "possibility" of stateless PRLs re-entering Lebanon from a third country in which their application for asylum has been rejected. Whilst the report points to the "number of successful returns within this period" as being "highly limited", the term "highly limited" implies that it is not impossible for someone in the applicant's position to successfully return. In drawing on its diplomatic source to highlight trends since May 2018 of the successful return of rejected PRL asylum seekers to Lebanon, the source refers only to European countries. That leaves the position of a failed asylum seeker in Australia open. 35 Furthermore, much of the language employed in the report avoids unequivocal or definitive statements. The report tracks the "tendency" of the Lebanese Ministry of Foreign Affairs which suggests that the policy against issuing travel documents is not absolute. Even in its outline of the political context, referring to comments made by the former Minister of Foreign Affairs and Emigrants that Lebanon had enough refugees and did not receive sufficient support from the international community in support of an order stipulating that no return of refugees from abroad should be approved, it does not state a definitive prohibition. 36 Thus, the Tribunal's acceptance that the Lebanese authorities are reluctant for people with the applicant's profile to reside in Lebanon and its implicit finding that there is a possibility of the applicant returning to Lebanon were based on an available reading of the Danish report and do not amount to jurisdictional error. The findings were available on the material before the Tribunal - it cannot be said that there was no evidence or material on which to base the findings. See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [17]. 37 The applicant seizes on the Tribunal's language of there being "not a high likelihood" of him being removed to Lebanon because of his stateless status (at [100]) to submit that the Tribunal regarded there to be some likelihood of his removal for which there was no evidence. Although it is true that to say there is "not a high likelihood" of something occurring ordinarily carries with it the implication that there is some likelihood of it occurring, the statement cannot be read in isolation. It is trite that the Tribunal's reasons must not be construed minutely and finely with an eye keenly attuned to the perception of error; the reasons of the Tribunal are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. 38 A fair reading of the Tribunal's reasons as a whole reveals that the Tribunal appreciated that it was speculative whether the applicant would be granted a visa (at [90]), the Lebanese authorities are reluctant to grant someone in the applicant's position a visa (at [90]) and there is a real prospect of the applicant remaining in detention for a lengthy or even indefinite time (at [91]). In that context, the Tribunal's statement that there "is not a high likelihood" of the applicant being removed to Lebanon cannot be understood to mean that there is a likelihood that he will be removed. Rather, the Tribunal was saying that it is not likely that he will be removed. 39 Another aspect to the applicant's submission about the Tribunal failing to consider the legal consequences of the Tribunal's non-revocation decision relates to the applicant's status as a stateless person. The applicant submits that the partner visa that allowed him to live in Australia was the only legal right that he had to live anywhere. When that visa was cancelled, as a stateless person he then had no right to live anywhere, or there is nowhere that he has a right to live. That is a consequence that flows from the non-revocation decision which, the applicant submits, was not considered by the Tribunal. 40 This submission fails for two reasons. First, the representation regarding the specific legal consequence of a non-revocation decision arising from the applicant's status as a statelessness person being the loss of the applicant's only right to live anywhere was not put to the Tribunal. The applicant's case to the Tribunal about the legal consequences for him of a non-revocation decision were that he would be deported which would cause significant harm (CB126) or he was at a high risk of prolonged indefinite immigration detention because of what was described as Australia's inadequate mechanisms for resolving the status of stateless people (CB143). The Tribunal was only required to engage with the applicant's representations to a degree commensurate with how they were made: Plaintiff M1/2021 at [25]. 41 Secondly, the Tribunal referred to the applicant's statelessness and accepted that before he could return, or be returned, to Lebanon he would require a visa (at [89], [91] and [100]). Although the Tribunal did not expressly identify that a non-revocation decision would result in the applicant having no right to live anywhere, it appreciated his stateless status and that he had no right to live in any other country without a visa. That was the basis for its consideration of the prospects of him being able to return to Lebanon and of "remaining in detention for a lengthy or even indefinite period" (at [91]). 42 Finally, the applicant submits that the Tribunal erred in law in concluding that he may be detained for a lengthy or even indefinite period because, since the Tribunal's decision, the High Court has held that indefinite immigration detention is unconstitutional: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005. That is to say, if there was no real prospect of removal of the applicant becoming practical in the reasonably foreseeable future then the Act would not authorise the continuation of the applicant's detention. Rather, the Tribunal proceeded on the then understanding of the constitutional position on the basis of Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, which was overruled by NZYQ, that the applicant might be subjected to lengthy or even indefinite detention. 43 Leaving other complexities to one side, the fundamental difficulty with that submission is that being released from immigration detention is less of an imposition on a person than being held in immigration detention, even in circumstances of statelessness and the considerable insecurity that that necessarily brings. The result is that if the Tribunal had considered the legal consequences of a non-revocation decision consistent with NZYQ rather than with Al-Kateb, that could not possibly have caused the Tribunal to give greater weight in favour of revocation than what was ultimately decided. The applicant's position would thus not have been any better. The error, if it was one, was consequently immaterial and therefore does not give rise to jurisdictional error: Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [33]. 44 Considerations of statelessness and potential detention without end were evident in the Tribunal's reasoning and consideration that the applicant had nowhere else to go. I am satisfied that grounds 2 and 3 therefore fail.

Ground 4: Non-refoulement 45 Review ground 4 has at its heart the complaint that the Tribunal failed to consider the applicant's non-refoulement claim, ie that Australia owes the applicant protection obligations not to return him to Lebanon. 46 The applicant submits that the Tribunal erred in failing to consider non-refoulement obligations which it was obliged to consider, either because it is what he describes as a clearly articulated claim or by reason of cl 9.1 of the Direction. 47 The basis for the Tribunal's obligation to consider non-refoulement obligations in a particular case where it is exercising review jurisdiction in respect of a decision under s 501CA(4) of the Act is the representations made by the person seeking revocation of the visa cancellation: Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 at [33]-[36]. 48 Consistent with that analysis of the Act's requirements, cll 9.1(3) and 9.1.2(1) of the Direction state that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim. 49 The applicant submits that the issue of non-refoulement was "agitated" by him before the Tribunal. The following is the relevant evidence in that regard. 50 In his written submissions to the delegate, the applicant submitted that any deportation of him would contravene Australia's non-refoulement international obligations. No further detail was given. 51 In the reasons of the delegate, that submission of the applicant was recorded. The delegate concluded that no basis on which non-refoulement obligations might be engaged had been identified beyond the scope of the protection obligations considered in the applicant's protection visa assessment and review process. The delegate accepted the conclusions of the protection visa assessment and review process and found that Australia's protection obligations were not engaged. 52 The applicant's submissions to the delegate also included reference to a previous case in the Tribunal where non-refoulement obligations had been considered, although no submission was made based on that decision. In the applicant's concluding submissions to the delegate where various substantive submissions were summarised, no mention was made of reliance on protection obligations or non-refoulement. 53 The applicant also refers to further submissions made on his behalf to the delegate where it was said that the applicant is a stateless person and that "his situation is especially precarious as it has been found that Australia has 'inadequate mechanisms for resolving the status of stateless people' and this inadequacy 'places this group at particular high risk of prolonged indefinite immigration detention'." It is, however, to be noted that there is no mention there about the applicant's position in some other country, such as Lebanon - the focus is on the applicant's position in Australia. Thus, that passage raises nothing about protection obligations. The same is true of a later passage in the same submissions that the applicant refers to. 54 In addition, the Minister's SFIC before the Tribunal identified that the applicant made representations about international non-refoulement obligations. The SFIC noted that the applicant had previously made an application for a protection visa in which he claimed to fear harm from Hezbollah on return to Lebanon. It noted, however, that the applicant did not appear to rely on that claim in the proceedings before the Tribunal. 55 The difficulty with this ground of review is that scant detail was provided by the applicant as to the nature of harm that he might face on returning to Lebanon. As was made clear in Applicant S270/2019 at [30], non-refoulement obligations are concerned with the applicant's current fear of harm. For the requirement to consider non-refoulement obligations to arise, it is necessary to identify the basis for such obligations - it is not enough to merely say that they exist. The Tribunal acknowledged the non-refoulement claim (at [89]), but in the absence of any detail it was under no obligation to consider it any further. 56 In his further submissions to the Court, the applicant submits that the report referred to in the Tribunal decision expressly identified that Palestinians living in Lebanon "remain excluded from key aspects of social, political and economic life", that they are unable to access key state services, are highly dependent and face a strong risk of societal discrimination. Those matters were acknowledged by the Tribunal (at [99]) in considering the impediments that the applicant would face if he was removed to Lebanon. 57 However, insofar as those matters might be thought to support a non-refoulement claim, a few points should be made. First, it was not submitted to the Tribunal that the type of harm that would be faced by the applicant as a stateless Palestinian in Lebanon is such as to give rise to non-refoulement obligations. In the absence of such a submission having been put to the Tribunal, the Tribunal cannot be faulted for not addressing it. Secondly, it was also not explained to the Court on what basis that type of harm enlivens non-refoulement obligations. 58 In summary, the applicant failed to provide the requisite detail as to the nature of harm that he says might befall him upon returning to Lebanon such as to enliven a non-refoulement claim. Review ground 4 must consequently also fail. There is therefore no basis for the amendment that sought to introduce this ground. The application for leave to amend should be dismissed.

Disposition 59 In the circumstances, the application for judicial review must be dismissed. There is no apparent basis why the costs should not follow the result. I certify that the preceding fifty-seven (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Migration Act 1956(Cth)

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