TNVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

TNVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 726

Appeal from: TNVP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5186

File number: NSD 43 of 2021

Judgment of: STEWART J

Date of judgment: 1 July 2021

Catchwords: MIGRATION – where applicant did not pass character test – whether there was "another reason" under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the cancellation of visa – application of Direction 79 – consideration of the impact on Australian business and victims – consideration of relocation within country of citizenship – whether COVID-19 representations properly considered by the Tribunal – consideration of non-revocation and non-refoulement obligations Legislation:

Migration Act 1958 (Cth) ss 501(3A), 501(6), 501(7)(c), 501CA(4), s 501CA(4)(b)(ii)

Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA Cases cited:

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6

CRI028 v Republic of Nauru [2018] HCA 24; 356 ALR 50

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379

DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 128

FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646

Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58

Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200

SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531

Date of hearing: 22 June 2021

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 67

Counsel for the Applicant: S Tully (pro bono)

Counsel for the First Respondent: N Laing

Solicitor for the First Respondent: HWL Ebsworth Lawyers

Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

ORDERS

NSD 43 of 2021 BETWEEN: TNVP Applicant AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

1 JULY 2021

THE COURT ORDERS THAT:

1. The proceeding be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

The applicant is a 36-year-old citizen of India. He has resided in Australia since February 2008. He held a Subclass 801 (Partner) visa prior to the visa cancellation which is the subject of the application before the Court. The applicant has been married to an Australian citizen since June 2010.

In May 2013, the applicant was convicted in the Local Court of NSW (Downing Centre) of assault with an act of indecency and was sentenced to a 12-month bond. He unsuccessfully appealed the conviction.

In April 2016, the applicant was convicted in the District Court of NSW of assault occasioning actual bodily harm, indecent assault and two counts of sexual intercourse without consent. He was sentenced to imprisonment for a period of eight years, with a non-parole period of five years and six months.

The applicant appealed the sentence to the NSW Court of Criminal Appeal and the period of imprisonment was reduced to seven years and five months with a non-parole period of five years. The non-parole period concluded in July 2020.

As the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution and failed the character test set out in s 501(6) of the Migration Act 1958 (Cth) on the basis that he had been sentenced to a term of imprisonment of more than 12 months (ss 501(6)(a) and 501(7)(c)), his visa was subject to mandatory cancellation under s 501(3A) of the Act.

The applicant was notified of the mandatory cancellation of his visa in March 2019 after which he made representations to the relevant Minister within the period prescribed seeking revocation of the cancellation decision under s 501CA(4) of the Act.

In October 2020, the applicant was notified of a decision of a delegate of the Minister not to revoke the visa cancellation decision.

The applicant then applied to the Administrative Appeals Tribunal for a review of the decision of the delegate.

By decision dated 23 December 2020, the Tribunal affirmed the decision of the delegate not to revoke the visa cancellation.

By originating application filed in January 2021 and subsequently amended, the applicant seeks judicial review of the Tribunal's decision, an order quashing the decision, and a writ of mandamus directing the Tribunal to determine the application according to law.

The statutory exercise

It was common ground that the applicant failed the character test. The exercise undertaken by the Tribunal was therefore to consider whether there was "another reason" why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. Direction 79

The Minister published Direction 79 as a direction under s 499 of the Act on 20 December 2018. The direction must be applied by all decision-makers, other than the Minister acting personally, under the Act in an administrative capacity, such as the Minister's delegates and the Tribunal.

Direction 79 constitutes guidance to decision-makers performing functions or exercising powers under s 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or under s 501CA of the Act to revoke a mandatory cancellation: cl 6.1(4). Direction 79 has three main parts. Relevant to the Tribunal's decision was Part C which identifies considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa.

Clause 13(1) of Direction 79 is in Part C. It provides that in deciding whether to revoke the mandatory cancellation of a non-citizen's visa, there are three primary considerations. They are, first, the protection of the Australian community from criminal or other serious conduct, secondly, the best interests of minor children in Australia, and, thirdly, the expectations of the Australian community. The remaining provisions of cl 13 deal with each of those primary considerations.

Clause 14(1) of Direction 79 provides that in deciding whether to revoke the mandatory cancellation of a visa "other considerations must be taken into account where relevant". Those considerations are identified to "include (but are not limited to):"

Clause 14.1 deals with international non-refoulement obligations, and cl 14.1(1) provides that, where relevant, decision-makers should follow the tests for non-refoulement obligations enunciated in the Act.

Clause 14.2 deals with the strength, nature and duration of ties. These considerations include how long the non-citizen has resided in Australia and their social or family links with Australian citizens and those who have an indefinite right to reside in Australia.

The provisions dealing with the impact on Australian business interests and on victims are as follows:

14.3 Impact on Australian business interests

(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

14.4 Impact on victims

(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

In CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [8] and [23] it was held that in cl 14.4(1) it is the impact of a decision to revoke a visa cancellation, not to not revoke a visa cancellation, on members of the Australian community including victims that must be considered. That stands to reason because the latter is dealt with in other provisions of Direction 79, such as cll 13.2 and 14.2, and it makes little sense to consider the impact on victims of a decision not to revoke a visa cancellation – it is a decision to revoke a visa cancellation that might have a negative impact on victims.

See also DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 at [36]-[38] where that approach was confirmed.

The Tribunal's decision

The following is a summary of the Tribunal's decision.

The Tribunal found that the applicant did not pass the character test set out in s 501(6) of the Act: at [9]. It found that the offending was "extremely serious", having regard to the nature of the offences committed against young women whilst the applicant was on a good behaviour bond, as well as the length of the sentence imposed: at [87]-[102]. It found that although the risk of reoffending was low, future offending would have very serious consequences for the community, and therefore gave this primary consideration "substantial weight against revocation": at [103]-[111].

The Tribunal observed that the applicant had no minor children in Australia and had identified no other minor children who may be impacted: at [112].

The Tribunal found that the Australian community would expect that the applicant's visa remain cancelled, and gave substantial weight to this consideration. In this regard, the Tribunal observed that the applicant was convicted of multiple sexual offences against women who were visitors to Australia and in vulnerable positions, including whilst the applicant was on a good behaviour bond. The Tribunal further noted that the applicant had been imprisoned for a significant part of the 12 years that he has lived in Australia. See [113]-[115].

The Tribunal accepted that the applicant had lived in Australia from 2008, since he was 22 years old, and had completed a number of courses and worked in Australia. The Tribunal found that there was no evidence that the applicant had developed particularly strong social or work networks prior to going to prison, but that he had subsequently developed strong church connections and ties with his wife's family. See [116]-[118].

The Tribunal accepted that that the applicant's wife's family was willing and able to provide strong support if the couple remained in Australia. The Tribunal also accepted that his wife, whom he had married in 2010, would experience significant difficulties if she went with him to India, considering (amongst other things) her serious mental health conditions and the evidence that a number of witnesses had given as to the problems that she may face. The Tribunal considered it "unlikely indeed" that she would be able to accompany the applicant to India, despite his support being important to her well-being. The Tribunal afforded the potential impact upon the applicant's wife, and the ties that the applicant had formed in Australia, substantial weight in favour of revocation. See [119]-[128].

The Tribunal accepted that there would be some impediments to the applicant returning to India, which it gave minimal to moderate weight in favour of revocation. The Tribunal observed that the applicant was unlikely to face significant language or cultural barriers, having lived in India previously. His skills were likely transferrable in gaining employment, and he had family in India with whom he was in contact. The Tribunal considered that he would have access to health care to the standard accessible to other citizens in India, although the Tribunal accepted that he might feel more comfortable engaging mental health care services in Australia. Whilst the Tribunal accepted that the applicant's conversion to Christianity might make it more difficult to live in some states in India, it considered that he would be unlikely to face serious difficulty if he moved to a city such as Delhi, where he has family, or Mumbai. The Tribunal did not consider it unreasonable for a bank to want repayment for loans made to the applicant, and did not consider there to be any clear evidence of any current threat to the applicant as a result of his debt obligations. See [129]-[139].

The Tribunal found that there was "insufficient evidence" that Australia's non-refoulement obligations would be engaged on account of the applicant's religion or debt. The Tribunal therefore placed limited or neutral weight on this consideration in favour of revocation. In this regard, the Tribunal relied on country information indicating that most Christians in India live day-to-day without social discrimination or violence. The Tribunal considered that there was "no objective evidence" of the applicant's family having rejected him after his conversion, and that there was no evidence that this would place him at risk of significant harm if it was the case. The Tribunal did not consider that a bank seeking lawful repayment of a loan would engage Australia's non-refoulement obligations and considered that there was no real evidence of other debts he might be expected to repay. The Tribunal also noted that it was possible for the applicant to apply for a protection visa, and that the immediate legal and factual consequences of non-revocation would not necessarily include removal from Australia or indefinite detention. See [140]-[149].

The Tribunal found that, having weighed all of the evidence, the considerations weighing in favour of revocation were not sufficient to outweigh the two primary considerations in favour of non-revocation, namely the protection of the Australian community and the expectations of the Australian community. Accordingly, the Tribunal affirmed the delegate's decision. See [150]-[152].

The grounds of review

After pro bono counsel accepted a referral by a registrar of the Court, in June 2021 the applicant filed an amended originating application which sets out the following four grounds of review:

1. The tribunal misapplied, misconstrued or failed to have regard to a relevant mandatory consideration required by Direction No 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 79). Particulars

(ii) It ought to be inferred from the tribunal's failure to assess these two relevant other considerations in its reasons for decision that it had failed to consider them.

2. In the context of assessing Australia's non-refoulement obligations, the tribunal erred when assessing the reasonableness of the applicant's relocation in India. Particulars 2A

(i) A real chance of persecution or real risk of significant harm can exist even though persecution or significant harm is unlikely to occur: eg Chan v MIEA (1989) 169 CLR 379 at 429.

(ii) By concluding that the applicant was "unlikely to face serious difficulty" if he was to relocate within India (decision, [137]), the tribunal misapplied or misconstrued the tests enunciated in the Migration Act 1958 (Cth). Particulars 2B

(i) Whether a person could reasonably be expected to relocate to another area in their country of nationality depends upon the person's particular circumstances, which may include the person's family situation: CRIO28 v Republic of Nauru [2018] HCA 24 at [26].

(ii) The tribunal failed to consider whether it was reasonable, in the sense of practicable, for the applicant to relocate in India if his wife remained in Australia or returned to India with him.

3. The tribunal failed to consider an express representation or claim made by the applicant. Particulars

(i) The applicant had represented or claimed that various impacts arising from COVID19 were considerations to be taken into account in deciding whether or not to revoke the visa cancellation decision.

(ii) It ought to be inferred from the tribunal's failure to refer to this representation or claim in its reasons for decision that it had failed to consider that representation or claim.

4. The tribunal erred when considering the immediate legal and factual consequences of non-revocation. Particulars

(i) The tribunal concluded that the applicant would not necessarily be removed from Australia or indefinitely detained because it was possible for him to apply for a protection visa (decision, [148]).

(ii) The tribunal failed to consider that:

(a) The applicant's claims concerning non-refoulement obligations may not be considered even if he applied for a protection visa; and/or

(b) The applicant may be refused a protection visa because he is excluded under relevant character provisions.

It is convenient to consider each ground in turn.

Ground 1: failure to consider the impact on business and victims

By this ground, the applicant contends that the Tribunal failed to consider mandatory considerations under Direction 79, being the impact of the non-revocation of the cancellation of his visa on business interests and on the victims of his crimes.

The applicant had stated in his statement of facts, issues and contentions (SFIC) before the Tribunal (at [124]) that he had studied and worked in Australia and that he would be able to contribute to a number of businesses in Australia especially in the warehousing, retail and hospitality industries. He also said that he has a job offer and is ready to contribute to Australian business and the community "from day one". Evidence of job offers that he had was also tendered.

With regard to the impact on victims, the applicant stated in his SFIC before the Tribunal (at [125]) that there is likely to be no negative impact on his victims if they were to become aware of the revocation of the cancellation of his visa and his residence in Australia. He said that this was because they were tourists in Australia and also because of the substantial time that had elapsed since the offences took place. There was otherwise no evidence about the impact that revocation would have on his victims, and he accepted that their whereabouts was unknown.

The matters raised by the applicant before the Tribunal in relation to business impacts of a decision not to revoke the cancellation of his visa included that he had studied, previously worked, been offered employment, and that he wanted to be a contributing member of society. The applicant did not raise anything more specific than that, and certainly did not give any evidence in support of him having an employment link in respect of which a non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia as contemplated by cl 14.3 of Direction 79. In that sense, the consideration of the impact on Australian business as provided for in cl 14.3 was barely enlivened. It would be far-fetched to suggest that there would be any appreciable deleterious impact on Australian business if the cancellation of the applicant's visa was not revoked.

The consideration of the impact on the victims of the applicant's crimes in the event that the cancellation of his decision was revoked was also barely enlivened. The consideration of the impact on victims could at best have been neutral for the applicant and would more likely have counted against the revocation of cancellation. As observed in DKN20 at [36]-[37], the impact on victims could only be considered in circumstances where the person concerned was allowed to remain in Australia.

The absence of an express finding in a Tribunal's reasons on matters referred to in a ministerial direction does not necessitate the conclusion that no finding was made. A decision-maker may not refer to a particular matter because it has been found to be immaterial, or of no real significance. There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no substantive submissions were made, and which were not the subject of relevant evidence. See Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646 at [107]-[108] (Derrington and Thawley JJ); Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 128 at [43] (Katzmann J).

I accept the submission on behalf of the Minister that in the present case, the most likely inference is that the Tribunal did not expressly refer in its reasoning to cll 14.3 and 14.4 because it did not consider that the considerations covered by these clauses were capable of affecting the outcome of its review. The considerations in question were only required to be taken into account by Direction 79 "where relevant". The most reasonable and probable inference is that the Tribunal did not regard them as relevant, as indeed objectively they are not, which it was entitled to do.

In the circumstances, review ground 1 must fail.

Ground 2: difficulties in relocating to India

In the context of assessing Australia's non-refoulement obligations, the applicant contends that, in two respects, the Tribunal erred when assessing the reasonableness of the applicant's relocation in India in order to avoid any persecution that he may face there. First, the applicant had claimed to fear persecution from family members, Hindu zealots and rogue loan recovery agents on return to India because of his Christian (Hillsong) conversion and student debt. He submitted country information in support of his submission that Christians are persecuted in India and with regard to the thuggish behaviour of debt collectors in India.

The Tribunal referred to these claims and accepted that the applicant may experience "some difficulties" when reintegrating into the Indian community: at [137]. However, the Tribunal found that the applicant was unlikely to face serious difficulty if he were to relocate within India to avoid these problems, and it would be likely that he would be able to integrate with a support network if he lived in a Christian community: at [137].

The applicant submits that by concluding that he was "unlikely to face serious difficulty" if he was to relocate within India, the Tribunal misapplied or misconstrued the tests enunciated in the Act. He submits, with reference to Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 429, that a real chance of persecution or real risk of significant harm can exist even though persecution or significant harm is unlikely to occur. On that basis, the applicant submits that the Tribunal erred by applying an incorrect test.

The Tribunal was considering Australia's non-refoulement obligations with respect to the applicant in order to decide whether there was "another reason" why the cancellation of his visa should be revoked. It was not undertaking the task under s 65 of the Act of deciding whether he qualified for a protection visa. In those circumstances, the Tribunal was not required to undertake the same analysis as is required if an application for a protection visa is made and s 36 is invoked: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [28]. There is no error in the approach taken by the Tribunal.

Secondly, the applicant submits that the Tribunal erred when assessing the reasonableness of relocation to another area within India. He submits that what is reasonable, in the sense of practicable, for an individual in relocating depends upon their particular circumstances and the impact upon that person of relocating within the country: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24].

In that regard, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. The practical realities must be carefully considered. The particular circumstances may include the person's family situation. See CRI028 v Republic of Nauru [2018] HCA 24; 356 ALR 50 at [26].

The applicant submits that the Tribunal failed to consider whether it was reasonable, in the sense of practicable, for the applicant to relocate within India if his wife remained in Australia or returned to India with him given the available evidence. He submits that the Tribunal did not expressly or impliedly consider all of the applicant's circumstances – being the effects on his family situation, namely his wife – should he relocate within India.

The applicant did not identify any further circumstances not already mentioned above with the Tribunal in support of a contention that it was unreasonable for him to have to relocate within India. There was a lot of attention given by the Tribunal to the difficulties of the applicant returning to India, and, in particular, the difficulties for his wife. It is apparent that the Tribunal was very much alive to the difficulties that the applicant's wife would face if she attempted to move to India with the applicant or stay in Australia.

The Tribunal accepted the evidence of the various witnesses who had given evidence regarding the problems that she may face living in India: at [126]. That evidence included the circumstances which would face the couple if they had to relocate within India because of any difficulties that they faced on account of their religious beliefs or their debts. The Tribunal considered these challenges to be so great that they were likely to be insurmountable and for this reason considered it "most unlikely indeed" that she would be able to return to India with him: at [126].

The Tribunal accepted evidence that the applicant's wife would be "significantly impacted in an adverse way if he is not able to remain in Australia." The Tribunal was not required to itemise the evidence that had been given regarding the consequences for the applicant's wife if she remained in Australia and he returned to India: Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [36].

In circumstances where the Tribunal accepted, on what it characterised as "strong evidence", that the impact upon the applicant's wife would be "significantly" adverse if the applicant were removed from Australia and that that consideration was given "substantial weight in favour of revocation of the delegate's decision" (at [127]-[128]), the submission that the Tribunal overlooked the evidence, or failed to give it sufficient consideration, or failed to give consideration to the impact on the applicant's wife sufficient weight, must be rejected.

In the circumstances, review ground 2 must fail.

Ground 3: failure to consider COVID 19 representations

By ground 3, the applicant contends that the Tribunal failed to consider various impacts arising from COVID-19, being the worldwide pandemic caused by the SARS-CoV-2 virus, in the event that the cancellation of his visa is not revoked and he were returned to India. In that regard, he had said the following in his SFIC before the Tribunal:

(1) Addressing the topic of the expectations of the Australian community, the applicant said that the expectation of the Australian community would have much more tolerance towards his offences "particularly regarding the global pandemic the world is currently going through"; "[w]ith border closed many families were/are separated because of this and the governments all over the world are working to join those families and not separate them" [sic]: at [76].

(2) Addressing the topic of the extent of impediments if removed, the applicant said that he does not believe his employment prospects in India are strengthened by his two tertiary qualifications "as current unemployment rate in India is remarkably high, especially after the devastating effects of COVID 19 on the economy": at [131].

(3) Addressing the topic of the couple's ability to ever have children in the event of non-revocation, the applicant said that he would like the Tribunal to consider the effect of the COVID-19 pandemic as follows: in the event of non-revocation, the applicant faces prolonged/indefinite detention before his removal from Australia as international borders from Australia are closed to Australian citizens, particularly for a country like India which is severely impacted by the pandemic: at [144]. This point is obviously addressed to the circumstance of the applicant being returned to India and his wife remaining in Australia.

The Tribunal did not mention COVID-19 or the pandemic. It did, however, consider what access the applicant would have to the Indian healthcare system (at [134]) and that non-revocation would not necessarily include removal from Australia or indefinite detention: at [148].

The Tribunal also considered the expectations of the Australian community, which did not relevantly include surmising as to the expectations of the Australian community with regard to whether or to what extent the fact of COVID-19 might mean that the community is more tolerant of someone like the applicant returning to the community rather than having their visa cancelled. As to the narrowness of the relevant expectations of the Australian community as expressed in Direction 79 such as to exclude such an approach, see FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [69], [71] and [75] (Charlesworth J) and [100]-[103] (Stewart J). The applicant's submissions with regard to COVID-19 and the expectations of the Australian community can accordingly be put to one side.

The Tribunal expressly addressed (at [131]) the applicant's employment prospects in India, although it did not mention COVID-19 in doing so. However, the Tribunal was not required to articulate every matter that it considered, and no evidence of the impact of COVID-19 on the applicant's employment prospects in India was adduced before it. Even if the bare assertion that COVID-19 has had devastating effects on the Indian economy was accepted at face value, that does not say anything relevant about the applicant's prospects of employment in India – different parts of the economy are doubtless affected differently and it may be that COVID-19 has had no negative impact on the applicant's employment prospects in India. That is an unknown that the Tribunal was not required to speculate about.

The Tribunal expressly addressed the impact of the applicant and his wife being separated in the event that the cancellation of his visa was not revoked. That covers the circumstances that he raised in relation to COVID-19, namely the applicant's wife not being able to travel to India for the foreseeable future.

The applicant submits, which can be accepted, that a state of satisfaction that is formed with respect to s 501CA(4) of the Act without considering representations on significant matters, being those that may with other matters carry significant weight or significance such as to satisfy the Minister to revoke the cancellation, is not a state of satisfaction of the kind that the Act requires: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [67]-[68] (Colvin J); Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [34(i)]. The Minister is obliged to "engage in an active intellectual process with significant and clearly expressed representations" made in support of a revocation request: Omar at [37].

The applicant relies in particular on Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58 in which Burley J upheld a challenge to a Tribunal's decision on the basis that it had not considered a claim by the applicant in that case to fear harm due to the COVID-19 pandemic. Kwatra, however, can be distinguished from the present case. There, the applicant had a long list of serious health issues which made him particularly susceptible to COVID-19 and he specifically raised the argument that it would be unsafe for him to return to India because of the spread of the virus in India and his underlying medical conditions, especially diabetes: at [27]. It was found that the claim was both significant or substantial and clearly raised, and it was not addressed in the Tribunal's reasons which left open the inference that the claim was not considered by the Tribunal: at [40]. In the present case, the applicant raised COVID-19 only in passing in relation to other issues which were then considered by the Tribunal.

In the circumstances, I do not consider that the most reasonable and probable inference to draw is that the applicant's submissions about the effects of COVID-19 in relation to the matters in respect of which they were relevantly raised were overlooked. Even if they were overlooked I do not see that they were raised as clearly articulated and substantial or significant representations or how them being overlooked could have been material to the decision. That is because the factors in respect of which COVID-19 was relevantly raised were considered and they were given weight in favour of revocation.

Ground 3 accordingly fails.

Ground 4: non-revocation and refoulement

By this ground, the applicant says that the Tribunal erred when considering the immediate legal and factual consequences of non-revocation. Relevantly, by failing to consider that the applicant's claims concerning non-refoulement obligations may not be considered even if he applied for a protection visa and that the applicant may be refused a protection visa because he is excluded under relevant character provisions. The applicant relies in particular on what the Tribunal said as follows:

148. I note further that it is possible for the applicant to apply for a protection visa, as sections 48A and 501E of the Act do not prevent the applicant from lodging an application for a protection visa. Given that it remains open for the applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation do not necessarily include removal from Australia or indefinite detention.

149. Accordingly, on the evidence provided, I am not satisfied that the circumstances are likely to engage Australia's non-refoulement obligations for the reasons of the applicant's Christian religion or debt pursual. Accordingly, there is insufficient evidence to be satisfied that non-refoulement obligations are engaged in this case and I place limited or neutral weight on this consideration in favour of revocation of the delegate's decision.

The applicant relies on BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [52] (Bromberg and Mortimer JJ), to submit that the probability that the Minister, or the Minister's delegates, may refuse a protection visa to the applicant on character grounds is real. In that case the Assistant Minister was held to have erred in finding that it was unnecessary to consider whether non-refoulement obligations were owed because the applicant was able to make a protection visa application.

I accept the Minister's submission that the present case is very different from BCR16. The Tribunal in this case did not defer consideration of the applicant's claim to be owed non-refoulement obligations simply because it was open to the applicant to apply for a protection visa. The Tribunal, whilst noting that the applicant could apply for a protection visa, actively considered the applicant's claim to be owed non-refoulement obligations. The Tribunal did not accept that such obligations were owed because it considered that there was "insufficient evidence" that Australia's non-refoulement obligations would be engaged. The Tribunal reached this conclusion after assessing the evidence including independent country information with regard to the persecution of Christians in India, in circumstances where the country is experiencing a surge in Hindu nationalism, and evidence of any harassment that the applicant might face on account of his debts.

In the circumstances, there was no error by the Tribunal.

Ground 4 accordingly fails.

Disposition

The proceeding must accordingly be dismissed. No submission was made as to why the costs should not follow the event.

Finally, the Court acknowledges the assistance of pro bono counsel who volunteered to appear on behalf of the applicant. Such public-spirited conduct of members of the Bar is always of great assistance to the Court and an important contribution to the administration of justice.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:

Dated: 1 July 2021