Federal Court: In the context of s 501CA(4), AAT found it did not need to consider Applicant's claim that he feared harm if returned to Iraq as non-refoulement obligations would be assessed first if Applicant applied for protection visa, due to Direction 75. AAT wrote: "Although this Tribunal is inclined to believe that [the applicant] would be at some risk if returned to Iraq ..., it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access". Nevertheless, AAT found that such a claim weighed in favour of the Applicant. Did AAT make the error discussed by the FCAFC in Omar by not considering risk of harm outside the scope of non-refoulement obligations? Can it be said that such error was immaterial as AAT found there would be "some risk" of harm anyway? In other words, is the materiality test a binary exercise?
The relevant part of the Tribunal's reasons are as follows:
65. In his initial application to have his visa cancellation revoked, [the applicant] stated:
I dont (sic) want to go back to Iraq because I have no family there all my family is here in Australia and my dad was killed in Iraq and my sister was kidnaped (sic) because we are Chirstan (sic) and I done my time for my crim (sic) so if you send me back to Iraq I will get killed and I think thats (sic) extra punishment and its (sic) not fair for me because all my family is here in Australia
66. In his letter dated 20 July 2018, submitted to the Tribunal, [the applicant] writes:
We were persecuted because of our religion and it is because we were Christians that my father was murdered… I will most likely be killed in this country [Iraq] because of my religion. This is why my family fled Iraq in this (sic) first place… my life in Iraq was full of violence and persecution
67. In oral evidence, [the applicant] repeated these fears although conceding that he might not be killed but that, at the very least, he would suffer persecution and discrimination on the basis of his Christianity.
68. The Tribunal well understands these concerns.
69. A recent definitive study of the history of ISIS notes:
Christians do not fare much better. After capturing Mosul and other cities in Iraq and Syria, ISIS presented Christians in both countries with a stark choice: convert to Islam, pay a special tax (jizya), or get out immediately and be disinherited from everything you own. Recent evidence shows that despite paying the special tax, Christian girls and women have been victims of ISIS’s practice of systemic rape. In light of this ultimatum, the ISIS surge has triggered another wave of exodus by Christians, an exodus that began in earnest when its forerunner Al Qaeda in Mesopotamia, also commonly known as Al Qaeda in Iraq, forced 1 million of Iraq’s surviving 1.5 million Christians to flee the country between 2003 and 2010.
70. The Federal Court in BCR16 v Minister for Immigration and Border Protection made it clear
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.
71. [The applicant] has raised this issue before the Tribunal and it cannot be ignored. It is also not in dispute that, in the event that [the applicant’s] visa cancellation is not revoked, he will be entitled to make a separate claim for a protection visa or a bridging visa.
72. The fact that [the applicant] has raised this issue does not, however, mean that this Tribunal must make a specific determination in regard to it. Indeed, in the event that the visa cancellation is not revoked, while a claim to a protection visa remains on foot for [the applicant], it is recognised that this Tribunal could not “engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim”.
73. The Tribunal is also mindful of the fact that the Courts have made it clear that claims for a protection visa cannot be rejected on application of the character test alone, and that “consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality” must be considered.
74. This has now been clarified further by Ministerial Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b) issued on 5 September 2017. Part 2 of that Direction makes it clear that claims of serious potential harm and persecution must be assessed by decision-makers dealing with protection visas before other matters are considered.
75. Whether there is a genuinely meaningful option for [the applicant] must remain a matter of some speculation given the comment by Senior Member Taylor in Aciek to the effect that:
The undesirability of embarking on any assessment of Mr Aciek’s potential non-refoulement claims is not removed by apprehension that any application he might make for a Protection visa would be an exercise in futility, given his “substantial criminal record”
76. Although this Tribunal is inclined to believe that [the applicant] would be at some risk ifreturned to Iraq because of his ethnicity, his religious beliefs and his family history, it is not in a position to make any such definitive finding in the absence of more solid probative orevidentiary material to which it does not have access. The best that can be said is that:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.
93. Regarding Australia’s international non-refoulement obligations, in its previous discussion of [the applicant’s] claims that he faced the prospect of serious harm if returned to Iraq, the Tribunal believes it has discharged its obligations to consider this matter. Taken alone,and bearing in mind the strictures of BCR16, the Tribunal concludes that this consideration weighs in [the applicant’s] favour.
105. As explained, the considerations related to the protection of the Australian community and its expectations weigh against [the applicant]. Issues of [the applicant’s] fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on returnweigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.
The questions to the Federal Court (FCA) were as follows:
Question 1: Did the Tribunal make the error discussed by the FCAFC in Omar by not engaging in an active intellectual process with the Applicant's claim of fear of harm outside the scope of non-refoulement obligations?
Question 2: If the answer to Question 1 is "yes", can it be said that such error was immaterial as the Tribunal found that there would be "some risk" of harm anyway? In other words, is the materiality test a binary exercise?
Question 3: Did the Tribunal misinterpret the immediate consequences of a non-revocation decision, in light of the combined effect of ss 197C and 198 of the Migration Act 1958 (Cth), by stating at  of its reasons that, if the cancellation was not revoked, the Applicant could apply for a protection visa?
The FCA answered those questions as follows:
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