FEDERAL COURT OF AUSTRALIA CHJK v Minister for Home Affairs [2019] FCA 1330 Review from: Re CHJK and Minister for Home Affairs [2019] AATA 584 File number: NSD 650 of 2019 Judge: FLICK J Date of judgment: 23 August 2019 Catchwords: MIGRATION – failure to consider an international treaties obligations assessment – failure made out by absence of any reference in reasons to the assessment and an absence of any findings made as to the assessment Legislation: Migration Act 1958 (Cth) ss 499, 501, 501CA Federal Court Rules 2011 (Cth) r 4.12 Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 252 FCR 352 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Minister for Home Affairs v Buadromo [2018] FCAFC 151, (2018) 362 ALR 48 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 Oluwafemi v Minister for Home Affairs [2018] FCA 1389 Swift v SAS Trustee Corporation [2010] NSWCA 182, (2010) 6 ASTLR 339 Date of hearing: 7 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: Mr I Chatterjee Solicitor for the Applicant: Human Rights for All Pty Ltd Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 650 of 2019 BETWEEN: CHJK Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 23 AUGUST 2019 THE COURT ORDERS THAT: 1. The decision of the Second Respondent is set aside. 2. The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law. 3. The First Respondent is to pay the costs of the Applicant, either as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Applicant in the present proceeding is identified by the pseudonym CHJK. He is from South Sudan. 2 In June 2006, the Applicant arrived in Australia under a Global Special Humanitarian visa. His wife and two children were also granted this visa. But in November 2011 the Applicant's visa was cancelled. He had been convicted in 2010 of a number of offences, including domestic violence. He was again convicted in 2011 "for Stalk/intimidate intend fear of physical/mental harm" and contravening an "[apprehended violence order] (domestic)". The Applicant then applied and, in 2013, was granted a Protection visa. 3 In October 2015, he was convicted in the District Court of New South Wales of common assault and reckless wounding and was sentenced to 38 months imprisonment. His Protection visa was then mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the "Migration Act"). The Applicant made representations seeking the revocation of the visa cancellation pursuant to s 501CA of the Migration Act. In January 2019, a delegate of the Minister decided not to revoke the cancellation decision. Review of that decision was sought by the Administrative Appeals Tribunal (the "Tribunal"). In March 2019, that Tribunal affirmed the delegate's decision: Re CHJK and Minister for Home Affairs [2019] AATA 584. 4 In April 2019, an Originating Application was filed in this Court. Although the form of the Originating Application was somewhat difficult to read, it was evident that the Applicant was seeking review of the Tribunal's decision. 5 The matter first came before the Court on 4 June 2019. The Applicant was then unrepresented and sought "a court appointed lawyer". That application was understood to be an application for a referral for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). That application was declined. Other than the difficulties confronted by many unrepresented Applicants in this Court, there was nothing on the face of the materials then available to the Court to indicate that a referral was appropriate. 6 On 4 June 2019, an Order was made (inter alia) joining the Tribunal as a party to the proceeding as the Second Respondent. 7 The Applicant subsequently obtained legal representation and an adjournment of the hearing was sought and granted. 8 When the matter came on for hearing on 7 August 2019, the Applicant appeared represented by Counsel. The Respondent Minister appeared by Counsel. The Second Respondent filed a Submitting Notice save as to costs. 9 At the outset of the hearing leave was sought and granted to file an Amended Originating Application. The Respondent Minister did not oppose the leave being granted. As amended, the Grounds of Appeal upon which reliance was placed were expressed as follows: Ground 1: "The Tribunal committed jurisdictional error in failing to take into account mandatory relevant considerations". This ground was particularised, in part, as follows: "The Tribunal was required, by reason of section 499 of the Act and Part C of Direction No 79, to take into account inter alia" matters including, "any international non-refoulement obligations" and "any international treaty obligations assessment performed in respect of the applicant"; Ground 2: "In the alternative to ground one, the Tribunal failed to give proper, genuine and realistic consideration to certain mandatory relevant considerations that it was required to take into account", namely those matters relied upon in respect to Ground 1; Ground 3: "Further, and/or in the alternative to Ground 1, the Tribunal constructively failed to exercise its jurisdiction and thereby committed jurisdictional error", including a failure "to take into account certain matters and engage in a 'weighing' exercise to determine whether to exercise its discretion to revoke the mandatory cancellation" and further reliance upon some of those matters relied upon with respect to Ground 1; and Ground 4: "The Tribunal constructively failed to exercise its jurisdiction, in proceeding on an incorrect understanding of primary consideration 13.1(2)(c) in Direction No 79", including an incorrect understanding that non-revocation was required "in respect of persons convicted of certain violent crimes". Notwithstanding the plethora of Particulars provided in respect to Ground 1, Counsel on behalf of the Applicant properly confined his argument during the course of the hearing. 10 Ground 2 has been made out. It is unnecessary to resolve Grounds 1, 3 or 4. 11 The decision of the Tribunal is to be set aside. Ground 2 – a failure to consider or to properly consider 12 Although Grounds 1, 2 and 3 overlapped to a considerable extent, Ground 2 was expressed in terms of a failure on the part of the Tribunal to give "proper, genuine and realistic consideration" to a number of mandatory relevant considerations. That expression has its origins in the following observations of Gummow J (when sitting as a Judge of this Court) in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291: … [W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense… (citations omitted) Those observations have since been repeated in many decisions of this Court: e.g., NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [212], (2005) 147 FCR 51 at 92-93 per Madgwick J (Conti J agreeing at [227] to [230]). But, "taken out of context" that formulation of the need to consider matters in a "proper, genuine and realistic" manner is "apt to encourage a slide into impermissible merits review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], (2010) 6 ASTLR 339 at 351 per Basten JA. 13 Obvious care must be taken in both identifying those matters which it is said were not properly taken into account by the Tribunal and in identifying the importance of those matters to the decision-making task at hand. It should be noted that Direction No. 79, made pursuant to s 499 of the Migration Act, came into effect on 28 February 2019. This was prior to the Tribunal's decision but subsequent to the decision of the delegate. 14 In the present context with respect to revocation requests, Direction No. 79 relevantly provides that a decision-maker "must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked" (cl 7(1)(b)). The Direction further provides that decision-makers "must take into account the primary and other considerations relevant to the individual case" (cl 8(1)) and that "[p]rimary considerations should generally be given greater weight than the other considerations" (cl 8(4)). 15 In Part C, the Part dealing with revocation requests, the "primary considerations" are identified (at cl 13) as being: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Part C further identifies (at cl 14) the "other considerations" as including: international non-refoulement obligations; the strength, nature and duration of a person's ties to Australia; the impact on Australian business interests if a person is removed from Australia; the impact on victims if the person's visa cancellation is not revoked; and the extent of impediments faced by a person if removed to their home country. And, when addressing "[i]nternational non-refoulement obligations", it is further provided that in identified circumstances "decision-makers should seek an assessment of Australia's international treaty obligations" (cl 14.1(6)). 16 As confined by Counsel for the Applicant during the course of oral submissions, the two matters which it was submitted were not properly taken into account by the Tribunal in the present proceeding were: international non-refoulement obligations by reason of a failure to consider an International Treaties Obligations Assessment (the "Assessment") made with respect to the Applicant in September 2017; and the extent of the impediment which would be confronted by the Applicant by reason of an inability to obtain treatment for an accepted medical condition. It is sufficient for present purposes to focus attention upon the first of these considerations. 17 The case advanced on behalf of the Applicant, it was understood, accepted that consideration of an "other consideration" – being in this case the "international non-refoulement obligations" – could, in accordance with Direction No. 79, be given less weight than a "primary consideration" (cl 8(4)). But, so the argument ran, consideration of the "international non-refoulement obligations" could not properly be undertaken without consideration being given to the Assessment (cl 14.1(6)). Without "proper, genuine and realistic" consideration being given to the "Assessment" and hence the "international non-refoulement obligations", the Tribunal did not discharge the task imposed by Direction No. 79 to "take into account the primary and other considerations", a task which the Tribunal "must" do (cl 8.1). The task required to be undertaken imposed by Direction No. 79, it was contended, had not been undertaken. 18 That construction of Direction No. 79, it is concluded, prevails. 19 The case for the Respondent Minister was that on a proper reading of the Tribunal's reasons the required international non-refoulement obligations were taken into account, including a consideration of the Assessment. 20 The strength of that submission lies in the fact that the Tribunal: referred to the terms of cl 14.1: [2019] AATA 584 at [54] to [56]; accepted that the Applicant had been found "to be a genuine refugee": [2019] AATA 584 at [54]; and expressly found "that the factors in support of revocation presented by the applicant do not singularly or cumulatively outweigh the primary considerations contained in Direction No 79" ([2019] AATA 584 at [92]), that weighing of competing considerations presumably including such factors as necessarily followed from the finding that he was a "refugee". As put in oral submissions, Counsel for the Respondent Minister contended that because "the tribunal recognised the applicant to be a genuine refugee, [that] should be taken to encompass a reference to the outcome in that assessment…". 21 That submission is rejected. 22 With the greatest of respect to the Tribunal, what is missing from the Tribunal's reasons for decision is: any express reference at all to the Assessment; and/or any findings of facts made in respect to the Assessment made. Clause 14.1(6) of Direction No. 79 provides that in circumstances where a person is prevented from making an application for another visa (other than a bridging visa), such as is the case where a person has a Protection visa cancelled (cl 14.1(5)), "decision-makers should seek an assessment of Australia's international treaty obligations…". And, having obtained such an assessment, a decision-maker cannot thereafter simply place it to one side and not give active consideration to the assessments made. 23 Counsel for the Applicant submitted the assessment referred to in cl 14.1(6) was the Assessment made in September 2017. 24 And when reference is made to that Assessment it emerges that the Assessment was that (inter alia): the Applicant, upon arrival in Juba, would have to travel "through conflict-affected areas" to reach the place of his ultimate destination; "State protection would not be available to [the Applicant]" and that "DFAT assesses that several areas in South Sudan are not adequately under effective state control"; and the Applicant "will quite likely face destitution if he relocates to Juba". In respect to the Assessment made as to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") and the International Covenant on Civil and Political Rights ("ICCPR"), the further Assessment was that (inter alia): "the harm claimed by the claimant is significant harm pursuant to subsection 36(2A) of the Act"; the Applicant "has a real chance of being subject to significant harm should they be returned to South Sudan"; and the Applicant "is a person in respect of whom Australia has non-refoulement obligations under the CAT and ICCPR". A "proper, genuine and realistic consideration" of the Applicant's claims, and a proper application of Direction No. 79, required the Tribunal to consider – and make findings with respect to – these matters. The importance of the matters and assessments made is such that a proper, genuine and realistic consideration of the submissions made by the Applicant could not realistically proceed without expressly taking them into account. 25 Contrary to the submission advanced on behalf of the Respondent Minister, it cannot be inferred from the Tribunal's reference to "non-refoulement", its finding that the Applicant was a refugee and its ultimate assessment of competing considerations that consideration was in fact given to the Assessment that was before it. 26 The absence of any express reference to the Assessment in the Tribunal's reasons and the absence of any express findings made by the Tribunal with respect to any of the assessments in fact made carries with it, with respect, the necessary inference that the Assessment was not in fact taken into account. The necessity to weigh the "primary considerations" and the "other considerations" (including considering the Assessment as part of addressing the "international non-refoulement obligations" as one of these "other considerations") was a part of the decision-making process of the Tribunal as mandated by cl 8 of Direction No. 79. 27 It is thus concluded that the Tribunal did not discharge the task mandated by Direction No. 79 and thereby fell into jurisdictional error. 28 Had it been necessary to resolve the Applicant's submission, with respect to Ground 2, as to a failure on the part of the Tribunal to consider the extent of the impediment to be faced by the Applicant by reason of its failure to make a finding of fact with respect to the submission that the Applicant would be unable to obtain medication he required in South Sudan, that argument would most probably have been rejected. The Tribunal addressed the medical difficulties confronting the Applicant. Its reasons included in relevant part as follows: [67] A Psychological Assessment Report prepared by STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) which was prepared in April 2012 refers to the fact that it would benefit the applicant if he was referred to a drug and alcohol counsellor to address his reported alcohol dependence. …The report states that the applicant felt generally dejected. The applicant claims that he has been prescribed medication for depression, which would not be available to him in the [Country 1]. Counsel for the Applicant submitted that the Assessment included an express finding which was relevant to the Tribunal's consideration of the extent of impediments if removed, namely, the finding that as "[a]s an internally displaced person with mental health issues including Post-Traumatic Stress Disorder and lacking familiarity with Juba… [the Applicant] would be particularly vulnerable to the high levels of criminality and insecurity in Juba". Although this was a finding that was not referred to by the Tribunal, it would most probably have been concluded that: although the Tribunal is required to "engage in an active intellectual process" in its consideration of relevant matters and contentions, it is not required to refer in its reasons to every piece of evidence or every contention advanced (cf. Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45], (2017) 252 FCR 352 at 363 to 364 per Griffiths, White and Bromwich JJ; Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [40] per Thawley J) – and, in the circumstances of the present case, there was no imperative upon the Tribunal to expressly refer to each and every finding made in the Assessment as to the Applicant's mental health or medication; and that such consideration as was given to the matters ([2019] AATA 584 at [67]) would most probably have been sufficient, the "claims" being made by the Applicant having been noted and not rejected: cf. Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [46], (2018) 362 ALR 48 at 59 per Besanko, Barker and Bromwich JJ. CONCLUSIONS 29 The Tribunal erred in failing to take into account the International Treaties Obligations Assessment. 30 The decision of the Tribunal should be set aside and the matter remitted to it for reconsideration in accordance with law. There is no necessity to grant a writ of prohibition prohibiting the Minister and his delegates, servants or agents from acting upon or giving effect to the Tribunal's decision. 31 It was agreed that costs should follow the event. THE ORDERS OF THE COURT ARE: 1. The decision of the Second Respondent is set aside. 2. The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law. 3. The First Respondent is to pay the costs of the Applicant, either as agreed or assessed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 23 August 2019