Federal Court: In considering non-refoulement obligations in the context of a decision under s 501CA(4) and Direction 65, did Minister "[misunderstand] that the applicant’s claims would 'necessarily' be considered in the event that the applicant was to make an application for a protection visa"? Minister said it was "unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the present decision as he is able to make a valid application for a Protection visa". Is it implicit that Minister understood that such obligations would be considered in the same way in the context of an application for a protection visa? Did Minister fail to give genuine consideration to matters raised by the Applicant outside of the concept of non-refoulement obligations?
In determining under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) that there was no "another reason" to revoke the mandatory cancellation of the Applicant's visa pursuant to s 501(3A), the Minister wrote as follows (emphasis added):
24. As part of his representations seeking revocation of the original decision to cancel his visa, [the applicant] submits that he will face harm if returned to Sierra Leone. The representations indicate that [the applicant] is concerned for his safety in Sierra Leone, both in relation to the spread of the Ebola virus in that country and his fears that he may be killed or harmed by rebels.His legal representatives submit that [the applicant’s] removal to Sierra Leone would breach Australia’s international treaties. It was submitted in April 2016 that due to civil unrest and health concerns, commercial flights in and out of Sierra Leone were cancelled.
25. Additionally, [the applicant’s] legal representatives state that landslides in August 2017 inFreetown resulted in deaths and displacement, which the government of Sierra Leone does not have the infrastructure to manage. The result is a significantly increased risk of infectious disease in Sierra Leone.
26. I am aware that my Department’s practice in processing Protection visa applications isto consider the application of the protection-specific criteria before proceeding with anyconsideration of other criteria, including character-related criteria. To reinforce this practice,I have given a direction under s499 of the Act (Direction 75) requiring that decision makerswho are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.
27. I consider it highly likely that any Protection visa application will be considered by adelegate, and I note that such a delegate will be bound by the terms of Direction 75.
28. In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [the applicant] for the purposes of the presentdecision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.
29. I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the applicant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the applicant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.
30. I have also considered [the applicant’s] claims of harm upon return to Sierra Leone outsideof the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant’s] claims are such as to engage non-refoulementobligations, [the applicant] would face hardship arising from his concerns for his safety were he to return to Sierra Leone.
...
51. [The applicant] has advised that his father was killed by rebels in Sierra Leone and his sister kidnapped by rebels. In a letter submitted to the Department on 24 April 2013, [the applicant] states that he witnessed the death of his father, sister, uncle and cousins when he was eight years of age.He states that his grandfather was beaten and his grandmother raped. In addition, he states that he was stabbed. He states that genocide is real there, and Ebola is going through his home town. He believes he will be homeless if removed from Australia, and that his chances of survival in Sierra Leone are slim. Concerns about his safety in Sierra Leone are reiterated by his mother, de facto partner and the Sierra Leone Descendants Association of Queensland Inc.
At [58], the Minister stated: “I acknowledge [the applicant’s] fears for his safety in Sierra Leone as a result of infection from Ebola and other infectious diseases”.
The questions to the FCA were as follows:
Question 1: Did the Minister "[misunderstand] that the applicant’s claims would 'necessarily' be considered in the event that the applicant was to make an application for a protection visa"?
Question 2: Is it implicit in paragraph [28] of the Minister's reasons that the Minister "understood that such obligations would be considered in the same way in the context of an application for a protection visa"?
Question 3: Did the Minister fail to give genuine consideration to matters raised by the Applicant, outside of the concept of non-refoulement obligations, as potential consequences of not revoking the cancellation decision (including that he may die if removed to Sierra Leone)?
The FCA answered those questions as follows: