Another attempt to distinguish Ibrahim

Federal Court: The Full Court had decided in Ibrahim that the Minister had conflated Australia's non-refoulment obligations under international law with the protection obligations under the Migration Act 1958 (Cth). The Minister sought to distinguish Ibrahim on the basis that, here, he had accepted the findings made by an ITOA regarding non-refoulment obligations and had considered the Appellant's claim of harm "outside of the concept of non-refoulement", thus suggesting that there had been no conflation.

Summary

The Minister personally cancelled the Applicant's visa pursuant to s 501(3)(b) of the Migration Act 1958 (Cth) on the basis that the Applicant had failed the character test under s 501(7)(d).

The Applicant applied to the Federal Court (FCA) for judicial review of the Minister's decision and the matter was heard by the Full Court of the FCA (FCAFC). Ground 3 of the judicial review application stated as follows:

The Minister failed to act upon correct principle, correctly applied.

Particulars

The Minister assumed that if the applicant made an application for a protection visa, whether the applicant is owed “non-refoulement obligations” would be considered in that context. That is wrong because the scope of Australia’ non-refoulement obligations – as understood in Australian law (being as explained by the High Court and not as the Executive government or as Parliament might understand those obligations) – is not consonant with the “criteria” in s 36(2) of the Act.

In the FCAFC decision in Ibrahim, the Minister, who had cancelled a visa under s 501BA(2), said in the decision record that he needed not consider any claims of non-refoulment obligations as those claims would be assessed as part of a protection visa application should Mr Ibrahim decide to make such an application.

The FCAFC found in Ibrahim that the non-refoulment obligations were broader than the protection obligations arising under the Act. In other terms, a claim that might not engage Australia's protection obligations under the Act might nevertheless engage Australia's non-refoulment obligations. As the Minister had conflated non-refoulment obligations with the protection obligations under the Act, the FCAFC found that the Minister's decision was vitiated by error.

The question of whether such an error was jurisdictional was answered in Ibrahim by reference to whether it was material (i.e. whether a different outcome could have been reached had the error not been made), which in turn was answered by reference to the internal relocation principle.

Under the non-refoulment obligations, a person who only fears harm in a particular region of a given country will establish that they have a well-founded fear or persecution even if that fear does not extend to the person living in another part of that country, so long as it is not reasonable to relocate within that country. In contrast, the protection obligations under the Act are such that the person must have a well-founded fear of persecution in that entire country.

As Mr Ibrahim had claimed that he only feared harm in the north of Nigeria, had the Minister not misinterpreted the non-refoulment obligations with the protection obligations under the Act, the Minister would have come to the conclusion that the relocation principle, although irrelevant under the Act, was not irrelevant under the non-refoulment obligations. As a result, the Minister could have come to a different decision had he not conflated those concepts.

In the present case, the Applicant argued that Ibrahim should be followed. Further, the Applicant argued that the error was material not only by reason of the internal relocation principle, as in Ibrahim, but also for the following reason:

... He also argues that the criteria for a protection visa under s 36(2) of the Act includes a requirement of intentionality by the definitions set out in s 5(1), which require that “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” be intentionally inflicted, whereas the corresponding definitions under the relevant international treaties do not impose intentionality as a necessary feature of the treatment...

Although the facts of the present case were very similar to those in Ibrahim, the Minister sought to distinguish Ibrahim on the following basis:

... The Minister argues that he expressly recognised that an ITOA had been made which found that Australia owed non-refoulement obligations in respect of Mr Kio at the time of that assessment. On the Minister’s submissions, that recognition amounted to an adoption of the various findings in the ITOA which, in conjunction with the statement in the reasons that the Minister “had considered Mr Kio’s claims of harm upon return to Myanmar outside of the concept of non-refoulement and international obligations framework”, demonstrated that he had a correct understanding of the difference between Australia’s international non-refoulement obligations and any protection obligations under s 36(2) of the Act.

The FCAFC decided as follows:

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