s 501CA(4): Minister required to consider consequences of non-revocation?

Federal Court: In NBMZ, FCAFC held: Minister had to consider legal consequences of s 501 cancellation;  lack of reference to them led to inference they were ignored. In Taulahi, FCAFC held: NBMZ was about direct & immediate consequences (whether or not obvious) and applied to any statutory power. Did Cotterill broaden the principle in NBMZ & Taulahi to include the "real possibilities" of what might flow from a decision? Do those cases  apply to s 501CA? If so, was Minister required to consider mere possibility that Applicant was stateless and thus subject to indefinite detention? Should we infer Minister knew the way Act operates as he acknowledged Applicant could apply for protection visa and issued Direction 65, which contemplated indefinite detention? We respectfully disagree with an aspect of this decision.

The Applicant's representations seeking revocation of the mandatory cancellation of the Applicant's visa made under s 501(3A) included the following passage:

Treatment of Returnees

The treatment of returnees to South Sudan is of serious concern and would place [the applicant] at risk of significant harm if he were to return. IRIN reported in 2013 that:

Tensions have arisen over access to the area’s scant basic services and land, and are particularly acute between new returnees and those who have been back home a little longer, or those who never left.

“A returnee is like a visitor who cannot get access,” said Mogga.

In Aru and the surrounding communities, returnees lack basic services such as medical care, education and even clean water from the community borehole. While there has been no open fighting, new returnees have simply had to do without, he said.

Through the International Rescue Committee (IRC) CPC project, Mogga has been lobbying the local government to improve the returnees’ situation - so far without success.

The returnees “are ... depending on their own efforts,” he said.

According to IRC's South Sudan country director Wendy Taeuber, the situation in Aru is not unique. Resentment over resources between the host communities and returnees, she said, can be a “big source of conflict.”

Since the CPA was signed, at least 2.5 million people have returned to what is now South Sudan, according to the International Organization for Migration (IOM). But they have returned to poor or non-existent services and a variety of reintegration challenges.

IOM visited 30 counties that have seen high rates of return and asked the new arrivals about access to services. What they found was a strong perception of a lack of the basics, with 87 percent of people unhappy with water services in their new homes, and nearly 70 percent lacking easy access to a health facility.

[The applicant] instructs that he fears that if he is returned to South Sudan, he will suffer serious harm or possibly death due to the volatile situation in the country. Further, [the applicant] has no family in South Sudan, nor any connection with any other person living there. [The applicant] also lacks understanding of local customs and traditions.

We submit that returning [the applicant] to a country where he faces the prospect of persecution and serious harm would be inconsistent with [Australia’s] non-refoulement obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

The Minister's reasons for declining under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's visa made under s 501(3A) included the following passages:

27.    I am aware that my Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration 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 makers who 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 s 501.

28.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

29.    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 present decision 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.

30.    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.

The questions to the Federal Court (FCA) were as follows:

Question 1: Did Cotterill broaden the principle in NBMZ & Taulahi to include the "real possibilities" of what might flow from a decision?

Question 2: Do NBMZ, Taulahi and Cotterill apply to s 501CA?

Question 3: If the answer to Question 2 is "yes", was the Minister required to consider the mere (as opposed to "real") possibility that the Applicant was stateless, which would lead to indefinite detention in the event that the visa cancellation was not revoked? In other words, do NBMZ or Taulahi "stand for the proposition that the Minister must have regard to every conceivable legal consequence flowing from all possible factual outcomes"?

Question 4: Should it be inferred that the Minister knew the way the Act operated because he explicitly acknowledged in his decision that the Applicant could apply for a protection visa and because he (or his predecessor) had issued Direction No 65, which expressly contemplated the possibility of indefinite detention?

Question 5: Can it be said that although Omar (first instance) should not be followed due to the existence of Direction No 75, the Minister here made a jurisdictional error of the kind alluded to in DOB18 in that he failed to have regard to the risk of harm the Applicant claimed he would suffer outside of the scope of non-refoulement obligations?

Question 6: Could it be be said that, by writing in his reasons that the "length of sentence does not change the nature or [seriousness] of the offending", the Minister "did not understand that in Victoria the gravity of an offence should be reflected in the length of the sentence imposed"?

Question 7: Could it be be said that, as it were the "offences" which the sentencing judge referred to as "serious" and as the Minister instead referred to the seriousness of the "offending" (see Question 6), the Minister "misunderstood, the distinction between the seriousness of an offence, as a legal proposition, and the serious of the particular offending here"?

Question 8: Did the fact that the Minister decided to personally make a decision under s 501CA(4) support the conclusion that his decision was affected by apprehended bias?

Question 9: In answering Question 8, should the FCA draw a Jones v Dunkel inference against the Minister from his failure to call a member of his staff as a witness to give evidence as to his real reason for personally exercising the power under s 501CA(4)?

The FCA answered those questions as follows:

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