ZMBZ v Minister for Home Affairs

The ground of review 7 The Amended Originating Application identified the sole Ground upon which relief was sought as a failure on the part of the Tribunal "to consider the extent of the impediment if the Applicant were removed from Australia and thereby committed jurisdictional error either in the application of Direction No. 65 or, in the alternative, by constructively failing to exercise its jurisdiction as required by Direction No. 65". A series of Particulars of this ground were provided. 8 It was common ground that the Tribunal, when undertaking its review, was to apply Direction No 65, namely a direction given by the Minister under s 499 of the Migration Act. The preamble of Direction No 65 included "general guidance" for decision-makers when making decisions under s 501 of the Migration Act. 9 Section 501 of the Migration Act provides (in part) as follows: (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … Character Test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; … Section 501(1) is the provision which confers the discretion. 10 Direction No 65 provides "general guidance" in respect to both the cancellation of a visa (in Pt A) and "general guidance" in respect to the refusal of a visa (in Pt B). Within Pt A, the Direction states in part as follows: 10 Other considerations - visa holders (1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): a) International non-refoulement obligations; b) Strength, nature and duration of ties; c) Impact on Australian Business interests; d) Impact on victims; e) Extent of impediments if removed. Clause 10 goes on to further provide in part as follows: 10.1 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 reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act. (2) The existence of a non-refoulement obligation does not preclude cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. Within Part B, Direction No 65 states in part as follows (without alteration): 12. Other considerations - visa applicants (1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): a) International non-refoulement obligations; b) Impact on family members; c) Impact on victims; d) Impact on Australian Business interests. That which is not referred to in cl 12, unlike cl 10(1)(e), is an express reference to the "extent of impediments if removed". 11 The sole Ground of Review now relied upon by the Applicant, in very summary form, contends that: the Tribunal was obliged to comply with Direction No 65 and that required it, even when considering the refusal of a visa, to consider the "extent of impediments if removed"; and the Tribunal failed to do so; and that: the Tribunal thereby deprived itself of findings relevant to the exercise of the discretion conferred by s 501 to refuse a visa notwithstanding an accepted failure to meet the character test by reason of s 501(6)(a). 12 Separate from any consideration as to the nature of the harm that would be faced by the Applicant if Australia was to fail to meet its non-refoulement obligations, Counsel on behalf of the Applicant contended that a consideration of the "extent of impediments if removed" was required, in the present matter this being a consideration of: the harm that would be faced by the Applicant if he was removed from Australia, albeit a harm or "impediment" which may fall short of the harm - or a harm or an "impediment" different in character - necessary to attract the non-refoulement obligations; and a consideration of the harm to be faced arising by reason of not only his being an HIV positive person but also a person returning to Myanmar (or a third country) who was a Rohingya and a Sunni Muslim. 13 It may be accepted that relevant to an exercise of the discretion conferred by s 501 are the "impediments" or "harm" that may be suffered by a person if removed, albeit a "harm" that would not attract Australia's non-refoulement obligations. In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, (2017) 248 FCR 456 ("BCR16") the Appellant's visa had been cancelled under s 501 of the Migration Act and the Assistant Minister had refused, pursuant to s 501CA, to revoke the cancellation. In a joint judgment Bromberg and Mortimer JJ relevantly observed (at 467 to 468): [48] We also accept the appellant's submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia's non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion. [49] In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be "satisfied" of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be "satisfied" to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, …the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65. Their Honours returned to this difference (at 472) as follows: [72] Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to "non-refoulement". It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister's reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia's international non-refoulement obligations. Whether or not the harm the appellant feared had a "private quality" as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia's international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a "reason" the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task. [73] We reject the Minister's submission that it is enough to avoid error on the part of the Assistant Minister that there was a "real possibility" the risk of serious or significant harm to the appellant might be addressed during consideration of any protection visa application he made. There are several reasons for this. First, as we have noted above, the kind of harm identified by the appellant was not restricted to harm as that concept is understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations. Second, as we have noted above, the role of the consideration of whether serious or significant harm might befall the appellant in Lebanon (for Convention or non-Convention related reasons) has a quite different place in a discretionary decision about revocation, to the place it may have, if reached, in a protection visa assessment. In the former, it need not have any particular quality to affect the exercise of discretion - the weight of the prospect of harm is a matter for the Assistant Minister rather than part of any fixed visa criterion. That is in stark contrast to the role these matters play under s 65 of the Act. Justice Davies dissented. 14 Both in a written Outline of Submissions filed in this Court and in oral submissions, Counsel for the Applicant contended that there had been a like failure committed in the present case, namely that there had been a failure to consider "impediments" he would face if removed from Australia or a failure to consider harm or an "impediment" of a kind different in character to that which would attract non-refoulement obligations. The alleged failure to resolve that argument, so it was submitted, constituted jurisdictional error on the part of the Tribunal. 15 The argument is rejected for either of two reasons, namely: the argument was not an argument clearly advanced for consideration by the Tribunal and was, most probably, an argument that may have been "flirted with" but abandoned during the course of the Tribunal hearing; and/or the findings of fact made by the Tribunal most probably precluded the Applicant from having any greater prospect of success even had the argument been advanced differently. Each of these two reasons should be more fully set forth. The second of the two reasons, however, is one reached with greater reservation than the former. Given these two reasons, it is unnecessary to resolve any separate questions arising out of distinctions between the facts in BCR16 and the task of a decision-maker bound to apply Direction 65 and the distinctions between an exercise of power under s 501 as opposed to s 501CA: cf. Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213 at [94] to [99] per White, Moshinsky and Colvin JJ.

An argument not clearly advanced - or abandoned 16 A submission that the Tribunal fell into jurisdictional error by not resolving an argument that was raised before it for resolution necessarily requires an identification of the basis upon which an application for review was conducted and the arguments raised for resolution: cf. Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 at [5] per Gordon, Robertson and Griffiths JJ. A specific claim for complementary protection in that proceeding, their Honours there concluded, "did not clearly emerge from the materials before the Tribunal". Although jurisdictional error may emerge where a decision-maker fails to make a finding on a "substantial, clearly articulated argument relying upon established facts" (cf. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] to [25], (2003) 77 ALJR 1088 at 1092 per Gummow and Callinan JJ (Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [55], (2004) 144 FCR 1 at 17 to 18 per Black CJ, French and Selway JJ), no error is exposed in not resolving an argument not advanced. 17 The "protection claims" as made before the Tribunal in the present case were claims again made on the same basis that had been advanced in May 2016. So much is apparent from the following observations made by the Tribunal in the course of its Reasons for Decision: Protection Claims [53] The applicant arrived in Australia on 19 August 2013 as an irregular maritime arrival. On 5 May 2016, he lodged the Safe Haven Enterprise (Class XE) visa. The applicant's claims for protection included being of Rohingya ethnicity, stateless, a Sunni Muslim, being also HIV positive, Departmental data breach, his uncle's killing due to being a supporter of the National League for Democracy (NLD), and being of adverse interest to the Burmese authorities. Those claims, it will be noted, went beyond a claim to suffer harm solely by reason of his being HIV positive. 18 The fundamental difficulty confronted by the Applicant, however, was not encountered at that stage where he was identifying the basis upon which he claimed to face harm; the difficulty was in the identification of a clearly articulated argument or submission calling upon the Tribunal to make findings that he would face harm: separate and distinct from his status as a person being HIV positive; and/or that was different to what he would face if Australia acted contrary to its non-refoulement obligations and removed him from Australia. 19 The uncertainty as to the findings of fact that the Applicant was asking the Tribunal to make has its origins in the statement of Facts and Contentions filed with the Tribunal. That statement: outlined facts relevant to "International non-refoulement obligations" and did so by reference to the submission of an application "on the basis that the applicant was a Sunni Muslim, Rohingya, who was from Myanmar and who was HIV positive" and that he was "stateless". So expressed, the Applicant was expressly stating that he was advancing claims going beyond his status as a person being HIV positive. But the contention being advanced was confined to the making of findings of relevance to "non-refoulement obligations". The statement of Facts and Contentions, however, went on to address: "Non-specified consideration - Potential consequences for the applicant if his visa is refused (and breaches of International obligations that would follow)". So expressed, the potential emerged of the Applicant thereby urging the Tribunal to make findings of fact relevant to the harm he would face if removed from Australia, being a harm different in character to that which could invoke non-refoulement obligations. But that potential is short lived. In expanding upon the "Non-specified consideration" the statement of Facts and Contentions thereafter confined attention to the prospects of the "harm" faced by the Applicant if he were to be detained indefinitely in Australia or sent to a "third country" and not Myanmar. 20 No part of the Applicant's statement of Facts and Contentions filed with the Tribunal expressly urged upon the Tribunal the necessity to make the findings of the kind identified in the submissions to this Court. 21 Further uncertainty as to what the Tribunal was being asked to do - and the submissions in need of resolution and the findings to be made - emerges when attention is directed to the manner in which the Applicant advanced oral submissions to the Tribunal. Before the Tribunal, the Applicant was represented by his present Counsel's instructing solicitor (Mr Parwani). 22 The part of the oral submissions made to the Tribunal of present relevance was within a limited compass. Part of the limited exchange between Mr Parwani and the Tribunal member was as follows (without alteration): MR PARWANI: Now, the delegate has made some findings after that and said that the applicant won't face persecution for that reason and we are saying that the delegate has made that finding in relation to non-refoulment obligations, so it's been conceded that there are non-refoulment obligations owed based on the authority's decision. However, as another consideration, we are asking the Administrative Appeals Tribunal to consider that the applicant is a Rohingyan and that he has --- SENIOR MEMBER: For me to make those findings, I would have to go through the assessment of his old protection claims and, given the concession that's been made, I can't make on the evidence before me - all that I am prepared to do at this stage is to accept the IAA's findings that the applicant has been found to be owed Australia's protection on the basis of him suffering from HIV and Hepatitis C. For me to make findings about any other claim by the applicant, I cannot do that on the evidence before me which means I would have to reassess all of his protection claims and given that he doesn't want to answer any questions, we have got problems then. Mr Hutton. MR PARWANI: I won't press that. MR HUTTON: Yes, there is authority about appropriateness of reviewing non-refoulment obligations from scratch in this particular decision. MR PARWANI: Yes, I won't press that. SENIOR MEMBER: Yes. You can see why. MR HUTTON: There is … SEENIOR MEMBER: In fact, there would be a risk. If I start assessing the applicant's protection claims, potentially there is risk that I may find - I may make very different findings to the IAA in relation to its assessment of the applicant's real chance of persecution on the basis of HIV. So, perhaps - I mean if you want me to, I will list the matter for another hearing and I will go through all of his protection claims. MR PARWANI: No, I won't press that. Counsel for the Applicant and for the Respondent Minister were at odds before this Court as to what was being referred to when Mr Parwani said: "I won't press that". On the Applicant's behalf, what was not being pressed was any submission as to the level of harm in need of consideration being the same as that required upon a non-refoulement analysis. What was being pressed, on his account, was the need to consider the harm to be faced by the Applicant, albeit harm falling short of non-refoulement. On the Minister's account, the "that" being referred to was the reference to "another consideration", namely it was the claims founded upon the Applicant being a Rohingya and being a Sunni Muslim that were not being pressed. 23 It is the Minister's construction of this exchange which is preferred. It is reasonably apparent that the issue being debated was whether the Applicant was content to proceed upon the basis that the Authority's assessment based upon the status as an HIV positive person was to remain unchallenged; if the Applicant was seeking review of that assessment and urging the Tribunal to make its own assessment based upon the claim as more broadly expressed, the Applicant ran the risk of "losing" what was at that stage an assessment in his favour. Mr Parwani, it is considered, did not "press" the claim as to fear of harm on any more broadly expressed basis. 24 The exchange between Mr Parwani and the Tribunal continued on immediately thereafter as follows (without alteration): SENIOR MEMBER: But he would have to give evidence. MR PARWANI: Yes. SENIOR MEMBER: Do you understand? MR PARWANI: Yes. I don't seek to press that. SENIOR MEMBER: Okay. Mr Hutton, is there anything else you want to say about that? MR HUTTON: No, only that there wouldn't be appropriate contrary information on things like that before you to be able to assess those claims. SENIOR MEMBER: Not at this stage. My expertise is in protection, but it's not what I want - it would be inappropriate for the Administrative Appeals Tribunal under the circumstances in fact to entertain a reassessment of the protection claims because that decision stands. The IAA's findings stand, they haven't been appealed by the Minister, and the Minister is accepting that the applicant is owed protection on that basis. MR PARWANI: And what I was going with initially, Member, was that I am not asking the Administrative Appels Tribunal to consider those claims in relation to any non-refoulment obligations or the fact that he was found to be a refugee on other accounts. SENIOR MEMBER: Sure. MR PARWANI: It was just another consideration that I was asking the Administrative Appeals Tribunal to consider, that he is Rohingyan and he is Muslin, and that he faces risk of being returned to Burma. That is all. SENIOR MEMBER: Again, I need to think very carefully about that but again, I reiterate without entertaining a full assessment of the protection claims, I see it as being inappropriate of me. I take note of your submissions though. MR PARWANI: Okay. This latter part of the exchange also is far from certain. It does not, with respect, lead to any different conclusion as to what the Tribunal was being asked to do. On the Applicant's account, Mr Parwani was urging upon the Tribunal the need to give consideration to and make findings of fact as to the "impediments" the Applicant would face if returned to Myanmar - being findings as to the harm he would face separate from any consideration as to the harm he would face by reason of being a person who was HIV positive. The Tribunal was certainly then of the view that it would be "inappropriate" to entertain "a full assessment of the protection claims". On any view of this exchange there was certainly no express identification of the findings of fact which Mr Parwani was seeking to have made. 25 Confronted with: the claims being made; the facts and contentions advanced for resolution; and the oral submissions the Tribunal was thus of the view that it was not being called upon to go beyond the findings made by the Authority. The Tribunal, in its reasons for decision, thus said: [56] Although initially the applicant's representative submitted that the Tribunal should also take into consideration other aspects of the applicant's claims in assessing the refusal such as his ethnicity and Sunni faith, the respondent's representative contended that this was not necessary given the uncontested findings of the IAA. The respondent has accepted the findings of the IAA and the Tribunal accepts those findings … 26 Although there is uncertainty as to the basis upon which the Applicant was seeking to conduct his case before the Tribunal, it is concluded that: any argument was most probably abandoned during the course of oral submissions that the Applicant faced harm by reason of his being a Rohingya and a Sunni Muslim. The argument was most probably confined during oral submissions to the basis upon which the Authority had proceeded, namely that he faced harm by reason of his being HIV positive. It is separately concluded that, even if this conclusion be erroneous: there was no clearly articulated argument advanced before the Tribunal that it was being called upon to consider any claim as to fear of harm other than by reason of the Applicant being a person who was HIV positive. And, further, there was no clearly articulated argument that the Tribunal was being called upon to consider and make findings of fact as to the harm the Applicant would face, albeit harm of a different character to that which may attract Australia's non-refoulement obligations. 27 That conclusion, it is respectfully considered, is sufficient to dispose of the present proceeding.

The necessity to consider impediments 28 The second of the two reasons for rejecting the Applicant's argument is that the findings made by the Tribunal most probably precluded the Applicant having any greater prospects of success even had his claims been advanced differently and even had he urged upon the Tribunal to make the more specific findings of fact now identified with greater precision in this Court. 29 This reason, however, is one reached with greater diffidence. 30 No difficulty is experienced in rejecting any submission that a different outcome would have been achieved even had the Tribunal entertained submissions as to the harm to be suffered by the Applicant by reason of his being Rohingya and a Sunni Muslim. The reasons of the Tribunal expose the fact that, for the purposes of considering Australia's non-refoulment obligations, it considered the entirety of the claims being made. So much, it is considered, follows from the following findings made by the Tribunal in the course of its reasons, namely: [56] …. The Tribunal is satisfied that there are non-refoulement obligations irrespective of the grounds. Nevertheless, the Tribunal further accepts that the applicant is a Rohingya and that he is a Sunni Muslim…. … [58] Looking at the claims cumulatively, the Tribunal is satisfied that the applicant is a refugee and therefore there are non-refoulement obligations. …. [65] … Although the Tribunal recognises that the Minister could intervene to honour Australia's non-refoulement obligations, the Minister's powers are non-reviewable and non-compellable. This means that potentially the applicant could remain in detention indefinitely. Although detention and removal are arguably lawful consequences of the legislation, they are nevertheless serious consequences and weigh in favour of the applicant. … [67] The Tribunal is satisfied that the non-refoulement obligations weigh in favour of the applicant and the Tribunal has given this consideration significant weight. … [76] The Tribunal has carefully considered relevant matters in Direction No. 65. The aspect that weighs heavily in favour of the applicant relates to the non-refoulment obligations and the Tribunal has given this aspect significant weight. Those obligations are not primary obligations and in accordance with the Direction, they fall under Other Considerations. … [78] A decision that involves non-refoulement obligations is a significant decision for the Tribunal and weighs heavily on the Tribunal personally. … [79] The Tribunal recognises that the Primary Considerations should generally be given greater weight than the Other Considerations, but this does not mean that non-refoulement obligations are not significant. … 31 The reservation is in further concluding that these findings necessarily addressed any claim that may have been made that the Applicant faced a lesser form or character of harm. The argument for the Respondent Minister was, in summary form, that the findings made by the Tribunal as to the extent of the harm faced by reason of the Applicant's status as an HIV person necessarily subsumed any lesser degree of harm or any other "impediment" that he would face if returned to Myanmar. Any failure to make additional findings, so the Minister's argument ran, would not have affected the ultimate outcome: cf. Hossain v Minister for Immigration and Border Protection [2018] HCA 34, (2018) 92 ALJR 78. Kiefel CJ, Gageler and Keane JJ there observed: [30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made. (citations omitted) 32 As was made apparent in BCR16, the harm or impediment that a person may face when s 501 is under consideration may well be different to the harm that may support a claim to refugee status pursuant to s 36 of the Migration Act. And findings of fact relevant to an exercise of the discretion conferred by s 501(1) could potentially be (for example) an "impediment" far different from something going to persecution or an "impediment" faced for a reason other than being HIV positive, Rohingya or a Sunni Muslim. 33 Although there is thus room to contend in an appropriate case that a Tribunal may be required to make findings as to the "impediments" faced by a claimant that are different to those that may be relevant to an analysis of non-refoulement obligations, such is not the present case. Separate from any consideration as to whether a submission was advanced calling upon the Tribunal to make any such finding, of present relevance is the fact that there has been no identification on behalf of the Applicant as to the findings of fact which may have assumed relevance and certainly no identification of the evidence which would unquestionably have called for different findings of fact to have been made. Recourse, for example, to country information was - at best - equivocal. Where there is a certain evidential foundation which may well call out for further consideration or evidence that (at least initially) may with some degree of likelihood lead to different facts being found, there may remain some room to contend that the findings made by the Tribunal in that case would not subsume any different findings of fact. But such is not the present case. 34 In such circumstances, the only remaining prospect of any finding of fact being made as to any "impediment" that the Applicant may confront if removed from Australia was a finding subsumed by the findings made in respect to the non-refoulement analysis. If those findings did not dictate a favourable exercise of the discretion conferred by s 501, any lesser finding would have led to no different conclusion.

CONCLUSIONS 35 No error has been exposed in the reasons of the Tribunal. 36 The Tribunal resolved the claims and arguments advanced before it for consideration. The arguments now being urged upon this Court are tantamount to an argument that the Tribunal erred in not resolving a claim and not making findings of fact which the Tribunal was never invited to consider. 37 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The proceeding is dismissed.
2. The Applicant is to pay the costs of the First Respondent, either as assessed or agreed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.