Federal Court of Australia

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1    I have had the advantage of reading in draft the reasons of SC Derrington J. I agree that the Court should make the orders her Honour proposes for the reasons her Honour has given.

Associate:

Dated:    16 March 2021

REASONS FOR JUDGMENT

WIGNEY J:

2    The ultimate question raised by this appeal is whether the Administrative Appeals Tribunal failed to give meaningful consideration to the appellant’s representation that the cancellation of his visa should be revoked because he otherwise faced the prospect of indefinite detention. The answer to that question hinges on the answers to two other questions: first, whether the Tribunal was obliged to consider whether there was any realistic prospect that the appellant would be granted another visa, in particular, a protection visa; and second, whether, if there was no realistic prospect of another visa being granted to the appellant, he would nonetheless not face the possibility of indefinite detention because he would be required to be returned to Iraq, his country of origin, despite the fact that in returning the appellant to Iraq, Australia would breach its non-refoulement obligations under international treaties to which it is a party.

3    The answer to these questions is complicated by a number of considerations, including: seemingly unequivocal policy statements made by the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, that Australia will not remove a non-citizen to the country in respect of which a non-refoulement obligation exists, which the Minister now says are either wrong or superseded; arguably inconsistent statements by judges in this Court about whether a decision-maker who is considering whether to revoke the cancellation of a non-citizen’s visa is required to consider the prospect of the applicant being granted another visa, at least where issues concerning non-refoulement obligations may otherwise arise; and the fact that many of the arguments advanced by the appellant in support of his appeal were not raised, or at least squarely raised, in either the Tribunal or before the primary judge.

Facts and procedural background

4    The facts and circumstances which are of particular significance in deciding the appeal may be summarised in short terms.

5    The appellant is a citizen of Iraq. He arrived in Australia with his family in May 2011. He was 17 years old at the time. He was granted a Class XB Subclass 202 Global Special Humanitarian visa. The other members of his family were presumably granted the same class of visa.

6    In May 2015, the appellant was convicted of committing an offence of aggravated sexual assault. He was sentenced to imprisonment for three years with a non-parole period of 18 months.

7    On 9 November 2016, shortly before he was eligible for release from imprisonment on parole, the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test and was, at that time, serving a full-time sentence of imprisonment.

8    In December 2016, the appellant made representations to the Minister in support of a request that the Minister revoke the cancellation of his visa pursuant to s 501CA(4)(a) of the Act. Those representations included a claim to the effect that the appellant and his family were members of a religious minority group in Iraq known as Sabean-Mandaeans and were subjected to persecution in Iraq on account of their religion and membership of that group. The appellant represented to the Minister that, when his family had resided in Iraq, his sister had been kidnapped, raped, tortured and killed and that other members of his family had been threatened with harm. That is why he and his family all fled Iraq. The appellant claimed that if he was forced to return to Iraq, he would be killed because he was a Sabean-Mandaean. It was submitted on the appellant’s behalf that Australia owed the appellant international treaty obligations not to return him to Iraq in those circumstances.

9    On 5 November 2018, a delegate of the Minister decided not to revoke the cancellation of the appellant’s visa.

10    The appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision in January 2019. That Tribunal decision, however, was subsequently set aside by order of this Court and the appellant’s review application was remitted to the Tribunal for redetermination according to law.

IN THE TRIBUNAL

11    There was no dispute in the Tribunal that the appellant did not pass the character test in s 501 of the Act by virtue of s 501(6)(a). The issue for the Tribunal was whether there was “another reason” why the cancellation decision should be revoked: s 501CA(4)(b)(ii) of the Act.

12    The Tribunal in due course conducted a hearing of the appellant’s review application. The Minister was represented by counsel at that hearing and opposed the revocation of the cancellation of the appellant’s visa.

13    The appellant and members of his family gave unchallenged evidence in the Tribunal concerning their persecution in Iraq, including the kidnap, rape, torture and murder of the appellant’s sister and their belief that the appellant would be harmed or even killed if he were to be forced to return to Iraq. It was submitted on the appellant’s behalf that the unchallenged evidence demonstrated that there was a real chance that the appellant would suffer serious harm if returned to Iraq on account of his race, religion or membership of a social group. It was also submitted that the appellant would be the victim of financially motivated criminal conduct.

14    Two other relevant submissions were made on the appellant’s behalf.

15    First, it was submitted that “the fact that returning [the appellant] to Iraq would breach Australia’s non refoulement obligations is a matter which weighs heavily in favour of revocation”. That was the full extent of the appellant’s submission on that topic.

16    Second, it was submitted that “[a]lternatively, the possibility that a failure to revoke the cancellation would lead to indefinite detention is also a factor which weighs heavily in favour of revocation”. That was the extent of the appellant’s submission concerning the possibility of indefinite detention.

17    The Minister’s submissions in response were similarly brief. The Minister submitted that the appellant’s claim with respect to indefinite detention was speculative given that there was a possibility that the appellant could apply for and be granted a protection visa or a visa under s 195A of the Act. It was also suggested that it was possible that the appellant could be resettled in a third country. No further detail was provided concerning the latter possibility. There was certainly no evidence that supported the possibility of resettlement in a third country.

18    The Minister’s primary submission in relation to Australia’s non-refoulement obligation was that Australia did not owe the appellant any such obligation. As will be seen, the Tribunal rejected that submission and found that there was a real risk that the appellant would be harmed if returned to Iraq and that Australia accordingly owed him non-refoulement obligations.

19    Aside from that unsuccessful submission, the Minister simply submitted that the appellant’s claim that he was owed non-refoulement obligations was speculative because the outcome of any protection visa application by the Minister was not known. It was not submitted, on the Minister’s behalf, that Australia would return the appellant to Iraq in contravention of any non-refoulement obligations if the appellant did not secure a protection visa, or a visa under s 195A of the Act, or if resettlement in a third country could not be arranged.

20    As has already been noted, the Tribunal found that “there is a real risk of harm if the [appellant] returns to Iraq and that the [appellant] is owed non-refoulement obligations”: MNLR v Minister for Home Affairs [2020] AATA 63 (6 January 2020) (Decision and Reasons for Decision dated 6 January 2020) at [68].

21    As for the appellant’s claims or submissions concerning indefinite detention and Australia’s non-refoulement obligations, the Tribunal concluded as follows (at Reasons [69]-[71]):

I now have regard to the legal consequences of a decision to not revoke the cancellation of the [appellant’s] visa, bearing in mind my determination that the [appellant] is a person in respect of whom non-refoulement obligations are owed. Specifically, the [appellant] will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur [Footnote: s 198 of the Act]. However, it is relevant also that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A of the Act. Further, the [appellant] would not be liable to be removed in the event he applied for, and was granted, a protection visa.

The [appellant] is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable his detention would not be indefinite [Footnote: See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 at [158]].

Given that the legal consequence is that the [appellant] would be returned to Iraq, subject to any successful Protection visa application, it is my assessment for the reasons set out above that there is a very real risk that the [appellant] will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation but I note that the [appellant] has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored. I accept that regardless of whether the [appellant’s] claims are such as to engage non-refoulement obligations, the [appellant] would face significant hardship including violence and a lack of support in the event that he were to return to Iraq.

22    It is clear from these passages from the Tribunal’s reasons that the Tribunal considered the appellant’s representation concerning indefinite detention, such as it was, and effectively rejected it. It found, in substance, that there was no possibility of the appellant being detained indefinitely because, even if he was not granted a protection visa or a visa pursuant to s 195A of the Act, he would be removed from Australia and returned to Iraq. That was because s 198 of the Act would require him to be removed from Australia as soon as reasonably practicable, even if that would breach Australia’s international non-refoulement obligations.

The judgment of the primary judge

23    The appellant relied on three grounds of review before the primary judge. Only one of them, ground one, is relevant to the appeal. That ground was in the following terms:

1.    The second respondent [the Tribunal] failed to take into account an integer or aspect of the [appellant’s] case, in that it failed to engage in an active intellectual process with the [appellant’s] case, and that failure went to jurisdiction.

1.1    An aspect of the [appellant’s] case was the hardship which the [appellant] would face if he remained in detention indefinitely.

1.2    The second respondent accepted that the [appellant] was owed protection obligations by Australia, and was at risk of being killed if he returned to Iraq, noted he could apply for a protection visa, noted that the Minister had power to grant a bridging visa in those circumstances, and noted that otherwise, the Act required that he be removed to Iraq as soon as practicable.

1.3    The second respondent failed to confront the fact that as a matter of practical reality and fact, the first respondent [the Minister] would not grant a bridging visa, and the second respondent’s choice was to accept refoulement, or experience a lengthy period of further detention while his protection visa was determined, with no certainty that the application would be granted, because the harm may not meet the Convention requirements, or he may be refused again on character grounds.

24    It can be seen that the essence of this review ground was that the Tribunal erred jurisdictionally because it failed to give genuine consideration to the appellant’s representation that, if his visa cancellation was not revoked, he was likely to be indefinitely detained. That was said to be because, as a matter of practical reality, he was unlikely to be granted a bridging visa and there was no certainty that he would be granted a protection visa. While the review ground did not say so in terms, it appeared to be implicit that the appellant’s case was that, if he was not granted a protection visa, he would remain in immigration detention because Australia would not return him to Iraq in breach of Australia’s non-refoulement obligations.

25    The primary judge found that this ground had not been made out and that the Tribunal had not erred as contended by the appellant: MNLR v Minister for Home Affairs [2020] FCA 948 (Judgment) at [44]-[72].

26    The primary judge gave three reasons for why there was no error in the Tribunal’s approach to the appellant’s representations or submissions concerning indefinite detention: Judgment at [62]-[66].

27    The first reason was that the Tribunal had engaged with the representations that the appellant had made in relation to Australia’s non-refoulement obligations: Judgment at [63]. Her Honour noted that the appellant had not criticised the Tribunal’s consideration of those representations and that in “that context the Tribunal considered the effect on the [appellant] of a decision not to revoke the Cancellation Decision, finding that it would lead to his continued detention”: Judgment at [63].

28    The second reason was that the Tribunal’s finding at [70] of its reasons had to be read in context: Judgment at [64]. As has already been noted, the Tribunal found, in [70] of its reasons, that the appellant was liable to be held in immigration detention until he was removed from Australia and that “[g]iven the obligation to remove as soon as reasonably practicable his detention would not be indefinite” (emphasis added). The primary judge noted that the context in which that finding should be considered was that the Tribunal had found, at [69] of its reasons, that the appellant’s detention would not be indefinite because it would come to an end in one of three ways: first, removal, as soon as that became reasonably practicable; second, the granting of a visa under s 195A of the Act; or third, the granting of a protection visa.

29    The primary judge concluded, in that context, that the Tribunal did not fail to give meaningful consideration to the appellant’s representations concerning indefinite detention. That was because the Tribunal had “made factual findings about the ways in which the [appellant’s] detention might ultimately come to an end”: Judgment at [65]. Her Honour reasoned that it did not matter that the Tribunal did not “opine on the length of the [appellant’s] detention while awaiting the outcome of any protection visa application” because his submissions “did no more than emphasise the factual consequence of a decision not to revoke the Cancellation Decision”; the appellant did not make any representation about the “effect of a lengthy period of detention on him”: Judgment at [65].

30    It appeared to be implicit in the primary judge’s finding that the Tribunal had given meaningful consideration to the appellant’s representations concerning indefinite detention that her Honour considered that the Tribunal’s “factual findings” about how the appellant’s detention might come to an end were correct, or at least not open to challenge. Those findings included that one of the ways the appellant’s detention might come to an end was his removal from Australia, to Iraq, as soon as that was reasonably practicable. That finding is directly challenged on appeal. It is, however, by no means clear that it was directly challenged before the primary judge. Indeed, it would appear that the appellant’s case before the primary judge was not that he could or would not be returned to Iraq, but that it was likely that he would remain in detention for a “significant and indeterminate period” because the “reality” was that there would be a “significant period of time” before he was either removed or granted a visa: see Judgment at [48].

31    The third reason given by the primary judge was that “the Tribunal was not, as part of its decision-making process, required to speculate on what might happen next and, in particular, on the course or outcome of any application for a protection visa, including the time it may take”: Judgment at [66]. Her Honour noted that the appellant had conceded that to be the case: see also Judgment at [48]. Her Honour referred, in this context, to the single judge decisions of this Court in FBW18 v Minister for Home Affairs [2019] FCA 1878 and Ali v Minister for Immigration and Border Protection [2018] FCA 650, which tended to support this finding and the appellant’s concession.

32    The primary judge concluded as follows (Judgment at [71]):

In the circumstances of this case, and in light of the representations made, the Tribunal was not required to consider the consequences or effect on the [appellant] of the period for which he would remain detained or the length of his detention, beyond the consideration which it gave to that issue. The course to be followed should the Cancellation Decision not be revoked and the length of time that course might take were not matters about which the Tribunal was required to speculate.

Appeal Grounds and submissions

33    The appellant pressed two grounds of appeal.

34    The first ground of appeal (ground 1) was in the following terms:

The Court below erred at [71] in not finding that the Second Respondent [the Tribunal] had failed to take into account an integer or aspect of the Appellant’s case, being the prospect of indefinite detention, when deciding to decline to revoke the cancellation of the Appellant’s visa.

35    The second ground pressed by the appellant (ground 3) was:

The Court below erred in not finding that the decision of the Second Respondent was afflicted by jurisdictional error in circumstances where the Second Respondent failed to give proper meaning and consideration to a matter it was required to consider (being international non refoulement obligations) by only considering the question of harm upon return rather than also the issue of Australia being placed in breach of its international obligations.

36    It would not be unfair to say that the appellant put his arguments concerning the first ground in a way which differed significantly from the way he had put his arguments concerning indefinite detention before the primary judge. The appellant’s submissions in relation to this ground also did not closely align with terms of the ground of appeal itself. As for ground three, the appellant conceded that he needed leave to raise this ground as it raised an argument which he had not put before the primary judge.

37    The main argument advanced by the appellant in support of ground 1 was that the Tribunal’s finding, at [70] of its Reasons, that the appellant’s detention would not be indefinite because he was liable to be removed from Australia as soon as reasonably practicable, was legally unreasonable or otherwise involved a constructive failure to exercise jurisdiction because the Tribunal ignored what was said to be “conclusive evidence” which established to the contrary. That conclusive evidence was said to be the unequivocal statements contained in Ministerial Direction No. 79, a direction issued by the Minister pursuant to s 499 of the Act on 20 December 2018.

38    The statements in Direction No. 79 which were relied on by the appellant appear in cl 14, which is in Part C of the Direction. Part C of Direction No. 79 identifies “the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa”: see cl 5 of Direction No. 79. Clause 14 identifies “other considerations [which] must be taken into account where relevant”. One of those “other considerations” is said to be “International non-refoulement obligations”. Clause 14.1 contains directions or information relevant to that consideration. Relevantly, cl 14.1(2) and (6) stated as follows:

(2)    The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

…

(6)    In these circumstances [cancellation of a Protection visa], decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

(Emphasis added.)

39    The appellant contended that the Tribunal was bound to, but did not, follow those statements, or that in ignoring or not following them the Tribunal failed to properly exercise its jurisdiction. In the appellant’s submission, the Tribunal’s finding that the appellant would be returned to Iraq in breach of Australia’s non-refoulement obligations was not open to it given the terms of cl 14.1(2) and (6) of Direction No. 79.

40    The Minister’s main submission in response was that s 197C of the Act makes it clear that, for the purposes of an officer’s duty to remove in s 198 of the Act, “it is irrelevant whether Australia has non-refoulement obligations”. It followed that indefinite detention was “not a possibility”. The Minister cited the decisions in AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27 at [25] (per Besanko and Thawley JJ); Uolilo v Minister for Home Affairs [2020] FCA 1135 at [91] and DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576; [2017] FCA 448 at [26]-[30] in support of that proposition.

41    The Minister’s submissions concerning Direction No. 79 were, however, curious in some respects. They included that the relevant statements in that Direction were “not entirely correct”, although it was not directly conceded that they were invalid, and that the Direction “might need some updating”. It was also submitted that “it’s no longer the case that the Minister won’t, in an appropriate case, seek to remove someone even though accepting their non-refoulement obligations”. That submission, however, was not supported by any evidence. There was certainly no evidence before the Tribunal that the Minister would return the appellant to Iraq in breach of Australia’s non-refoulement obligations if the decision to cancel the appellant’s visa was not revoked and no further visa was issued to him. The position taken by the Minister before the Tribunal was simply that Australia did not owe the appellant any non-refoulement obligations.

42    The second argument advanced by the appellant involved reliance on the decision of the Full Court in DQM18 v Minister for Home Affairs [2020] FCAFC 110. That judgment was handed down after the primary judge heard this matter. The reasoning in DQM18 demonstrated, so the appellant submitted, that the Tribunal failed to give meaningful consideration to the appellant’s claims concerning indefinite detention because it did not grapple with the reality of the appellant’s situation, which included that the prospect of him being granted another visa was “infinitesimal”. This was, or appeared to be, a challenge to the primary judge’s reliance on the single judge decisions in FBW18 and Ali as establishing that the Tribunal was not required to speculate about whether the appellant might be granted another visa.

43    The Minister contended, in response, that DQM18 was distinguishable because in that case the Minister gave no consideration whatsoever to the representation that had been made concerning the risk of indefinite detention. While the Minister did not go so far as to say that DQM18 was wrongly decided, he did effectively submit that it was somewhat difficult to reconcile with the authorities concerning the operation of s 197C of the Act. The Minister also submitted that this was not a case “where one can be overwhelmingly confident that any protection visa application would be refused on character grounds”. This was despite the fact that the Minister had vigorously opposed the revocation of the cancellation of the appellant’s visa on character grounds.

44    As for the appellant’s ground 3, it would not be unfair to say that this ground was not vigorously pursued by the appellant. It was primarily based on the judgment of Charlesworth J in Hernandez v Minister for Home Affairs [2020] 243 FCA 415, which the appellant contended supported the proposition that, in considering the appellant’s representations concerning Australia’s non-refoulement obligations, the Tribunal was required to consider the damage that would be caused to Australia’s international reputation and standing if he was returned to Iraq in breach of Australia’s non-refoulement obligations.

45    The appellant conceded that this argument was not advanced before the primary judge. He submitted, however, that he should be given leave to raise it on appeal because it was clearly related to his first ground of appeal. He also relied on the fact that the argument turned entirely on a question of law and relied only upon the material that was before the primary judge.

46    The Minister submitted that leave should be refused for the reasons given in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [92] and because the appellant had not explained why this argument had not been raised before the primary judge. The Minister also submitted that the appellant’s argument in support of ground 3 was, in any event, entirely unmeritorious. He submitted, in that regard, that the observations in Hernandez were made in a different context and that it is not authority for the proposition that Australia’s international standing was a mandatory consideration in addressing Australia’s international non-refoulement obligations in accordance with Direction No. 79.

APPEAL GROUND 1 – PROSPECT OF INDEFINITE DETENTION

47    Appeal ground 1, as framed in the appellant’s notice of appeal, is somewhat misconceived. There could be little doubt that the Tribunal “took into account” the appellant’s representation, such as it was, that there was a prospect or possibility that a failure to revoke the cancellation decision would lead to indefinite detention. The Tribunal considered that representation, but in effect rejected it. The essential reason given by the Tribunal for why the appellant would not be detained indefinitely was that the effect of s 198 of the Act was that, if the cancellation of his visa was not revoked, he was required, by operation of s 198 of the Act, to be removed from Australia as soon as reasonably practicable. The Tribunal also implicitly recognised that the appellant’s detention would otherwise come to an end if he were to be granted either a visa under s 195A of the Act or a protection visa.

48    That is certainly how the primary judge interpreted the Tribunal’s reasons. Her Honour concluded, in effect, that the Tribunal had given meaningful consideration to the appellant’s representation concerning the prospect of indefinite detention because it found that the appellant’s detention would come to an end either as a result of his removal from Australia or the grant of either a protection visa or a visa under s 195A of the Act: Judgment at [65]. While the primary judge did not give any consideration to whether there was any realistic prospect or possibility of the appellant being granted another visa, that was because the appellant had conceded that the Court was not required to speculate: Judgment at [66].

49    The real question raised by the submissions advanced by the appellant in support of ground 1 is whether the Tribunal erred, in a jurisdictional sense, in excluding any possibility of indefinite detention for the reasons it gave; that is, that the appellant’s detention would not be indefinite because he would be removed from Australia to Iraq, if not granted another visa. The answer to that question hinges on two further questions.

50    The first question is whether, instead of simply adverting to the possibility of the appellant applying for and being granted another visa, the Tribunal was effectively required to give genuine consideration to whether, in all the circumstances, that was a realistic possibility. The appellant contended that, had it done so, the Tribunal must have found that the possibility was “infinitesimal”. It followed, in the appellant’s submission, that his representation concerning indefinite detention was required to be determined on the basis that he would be highly unlikely to be released from detention as a result of being granted another visa.

51    The second question is whether, despite the terms of s 197C and s 198 of the Act, the Tribunal was effectively bound to find, on the basis of the statements in cl 14.1(2) and (6) of Direction No. 79, that Australia would not return the appellant to Iraq in breach of its international non-refoulement obligations. The appellant contended that the answer to this question is “yes” and that the Tribunal therefore erred in finding that the appellant would be returned to Iraq if he was not granted another visa.

52    As will be seen, the outcome of this ground of appeal ultimately turns on the operation of s 197C and s 198 of the Act. That is because, if those provisions operate as the Tribunal found that they did, the question whether there was any realistic possibility of the appellant being granted a protection visa would essentially become immaterial, at least in the circumstances of this case, in considering whether there was a possibility of the appellant being indefinitely detained. It is nevertheless desirable to address the question whether the Tribunal was obliged to give some consideration to whether there was any realistic possibility of the appellant being granted a protection visa, if only to address what would appear to be inconsistent authority in respect of that issue.

Was the Tribunal obliged to consider whether the grant of a protection visa or visa under s 195A was a realistic possibility?

53    It is clear that the Tribunal did not give any meaningful consideration to the question whether there was any realistic possibility, in all the circumstances, that if the cancellation of the appellant’s existing visa was not revoked, he might nevertheless be granted a protection visa, assuming that he applied for one. Had the Tribunal done so, it is difficult to see how it could have concluded that there was, in all the circumstances, any realistic prospect of the appellant being granted such a visa.

54    Had the Tribunal given any meaningful consideration to this issue, it would no doubt have noted that the Minister had a discretion to refuse to grant any visa to the appellant, including a protection visa, if the appellant did not satisfy the Minister that he passed the character test in s 501 of the Act. Since it was clear that the appellant did not pass the character test, he obviously would not be able to satisfy the Minister that he did and the discretion to refuse the visa would therefore be enlivened. The Tribunal would also no doubt have noted that an applicant for a protection visa must also satisfy Public Interest Criterion 4001 (PIC 4001): see r 866.225 in Sch 2 to the Migration Regulations 1994 (Cth). That criterion again effectively requires an applicant to satisfy the Minister that he or she passes the character test, though the Minister has a discretion to decide not to refuse to grant a visa despite not being satisfied that the applicant passes the character test.

55    Having regard to those provisions of the Act and Regulations, had the Tribunal given consideration to whether there was a realistic possibility that the appellant would be granted a protection visa, it would no doubt have been noted that it would be rather incongruous, if not somewhat bizarre, to think that there was a realistic possibility that the Minister would, on the one hand, vigorously oppose the revocation of the cancellation of the appellant’s visa on character grounds, as he did before the Tribunal, and yet on the other, decide not to exercise his discretion to refuse to grant the appellant another visa on character grounds, either under s 501 or in the context of PIC 4001. It would scarcely matter that the refusal of the other visa on character grounds could be made by a delegate of the Minister, which was subject to review by the Tribunal, particularly given the Minister’s power to set aside any favourable decision by his delegate or the Tribunal in that regard: see s 501A of the Act.

56    It is equally clear that the Tribunal did not give any meaningful consideration to the question whether the Minister was likely to grant the appellant a visa in the exercise of his power or discretion under s 195A of the Act. Had the Tribunal done so, it is again difficult to see how it could have found that there was any realistic possibility, in all the circumstances, that the Minister would exercise that power. The Minister had forcefully submitted to the Tribunal that it should not revoke the cancellation of the appellant’s visa. He contended in that context, amongst other things, that the appellant’s continued presence in Australia presented an unacceptable risk to the Australian community. It would, in those circumstances, be extremely incongruous, if not bizarre, that the Minister would again do an about-face and find that it was somehow in the public interest for the appellant to be granted a visa so he could be released from detention. It is also worth noting, in this context, that the Minister does not have any duty to consider whether to exercise his power to grant a visa under s 195A of the Act, whether he (or she) is requested to do so, or in any other circumstances.

57    The critical question, however, is whether the Tribunal was obliged, in the circumstances, to consider whether the grant of a protection visa, or a visa under s 195A of the Act, was a realistic possibility?

58    As the primary judge noted, the decisions in FBW18 and Ali tended to suggest that the Tribunal was not obliged to consider that matter. In Ali, which involved a challenge to the Minister’s decision not to revoke a visa cancellation on character grounds, Flick J (at [31]) referred to the difficulties that the Minister would have to confront if a person whose humanitarian visa had been cancelled on character grounds subsequently applied for a protection visa. His Honour noted that the Minister would then have to consider whether the application should be refused on character grounds under s 501 of the Act, in which case the Minister would have to confront the prospect that the applicant would have to be returned to the country where he was at risk of persecution or serious harm (Afghanistan) in breach of Australia’s international non-refoulement obligations. His Honour then said (at [33]):

But these are all decision[s] to be made and – if necessary – reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing.

59    This reasoning was referred to with approval by Yates J in FBW18 at [77]. Yates J also referred (at [78]) to a number of other single judge decisions of this Court which had approved the reasoning in Ali.

60    It is important to emphasise, however, that the main argument that was being addressed in both Ali and FBW18 was quite different to the argument being advanced in this case. The Minister or Assistant Minister in both of those cases had declined to directly address representations that had been made in relation to Australia’s international non-refoulement obligations on the basis that those obligations would be considered if, and when, the applicant applied for a protection visa. The argument was that, in declining to address the representations concerning Australia’s non-refoulement obligations on that basis, the Minister or Assistant Minister had constructively failed to exercise his jurisdiction and had proceeded on the basis of an incorrect understanding of the law. The relevant observations by Flick J in Ali, which were approved by Yates J in FBW18, must be considered in that context. They were not made in the context of an argument, like the one mounted by the appellant in this case, that the applicant faced a risk of indefinite detention. The applicant in FBW18 also contended that the Minister erred by failing to consider that he could face indefinite detention, though Yates J dealt with that contention separately and by reference to the operation of s 197C and s 198 of the Act.

61    It is also worth noting that the position adopted by the Minister in Ali in respect of Australia’s compliance with its international non-refoulement obligations was starkly inconsistent with the approach taken by the Minister in this case. In Ali, Flick J said (at [31]) that one “possibility to be raised only to be rejected” was that the applicant would be returned to Afghanistan in breach of Australia’s international obligations. It is perhaps not difficult to appreciate why Flick J was quick to dismiss the possibility that Australia would breach its international obligations. His Honour noted, in that context, that “[t]hat, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past” and “[n]or would such a possibility be lightly entertained”: Ali at [31]. In this case, however, counsel for the Minister suggested that much had changed since Ali and that the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there.

62    In DQM18, another case involving the Assistant Minister’s refusal to revoke a visa cancellation on character grounds, the Full Court considered an argument not entirely dissimilar to the argument raised by the appellant in this case. The appellant in DQM18 had represented that the likely consequence of a refusal to revoke the cancellation of his visa would be indefinite detention. The Assistant Minister did not directly address that representation in refusing to revoke the cancellation decision, though he did note that the appellant was legally entitled to apply for a protection visa and that would require the consideration of any non-refoulement obligations. The appellant argued that the Assistant Minister erred jurisdictionally by failing to address the representation concerning indefinite detention.

63    In the Full Court, the Minister acknowledged that the representation concerning indefinite detention had been made, but submitted that it was “legally incorrect” because, by reason of s 197C, the existence of non-refoulement obligations would not be relevant to the appellant’s removal from Australia and that indefinite detention would not be a consequence of the non-revocation decision given that the appellant could still apply for a protection visa: DQM18 at [102]. The Full Court rejected that argument and found that the Assistant Minister had made a jurisdictional error in not addressing the representation concerning indefinite detention. As for the submission that the appellant could still apply for a protection visa, Bromberg and Mortimer JJ noted (at [107]) that “it is only a successful visa application which is capable of avoiding removal or indefinite detention” (emphasis in original).

64    Perhaps more significantly, their Honours held (at [108]), in effect, that the appellant’s prospects of being granted a protection visa were “infinitesimal” given the Assistant Minister’s decision and the appellant’s criminal record. That was, their Honour’s reasoned, “to use the High Court’s phrases cited above in a different context, a ‘logical deduction grounded in the seeming improbability’ of the appellant, having had his visa cancelled twice on the principal basis that the protection of the Australian community requires that he not be permitted to remain, being granted a different visa so he can remain in the Australian community” (emphasis in original). Their Honours also noted that “[a]bsent such an improbability, that would leave either removal to Sudan or South Sudan, or indefinite detention”.

65    In those circumstances, Bromberg and Mortimer JJ concluded (at [109]) that the Assistant Minister was not “entitled to ignore the realities of the appellant’s circumstances” by ignoring the representation concerning indefinite detention. That was because “the prospect of indefinite detention was real”. As for the fact that the Assistant Minister had addressed the appellant’s legal entitlement to apply for a protection visa, their Honours stated (at [109]):

However, this did not grapple with the realities of the appellant’s situation. The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant’s indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur. If the situation in whichever of Sudan or South Sudan the appellant could be returned to was such that Australia’s international obligations might preclude removal, albeit that the appellant has no visa, then the reality for him would be indefinite detention. The Assistant Minister was required to confront this and deal with it in his reasons.

66    There is an obvious tension, if not an inconsistency, between the reasoning of Flick J in Ali and the reasoning of the Full Court in DQM18. There is no indication that the judgment of Flick J in Ali was drawn to the attention of the Full Court in DQM18. It should be reiterated, in this context, that the relevant observations by Flick J in Ali were not made in the context of an argument or issue about whether the relevant decision-maker had considered representations concerning the possibility of indefinite detention. The same can be said of Yates J’s approval of those observations in FBW18. The same cannot be said of the reasoning of Bromberg and Mortimer JJ in DQM18, which directly addressed that very issue.

67    There is also an apparent tension between the reasoning of Bromberg and Mortimer JJ in DQM18 and other authorities in relation to the operation of s 197C and s 198 of the Act. Those authorities will be discussed later. It suffices, at this point, to note that some of those authorities indicate that indefinite detention of an unlawful non-citizen who is owed non-refoulement obligations is “not a possibility”, or “no longer arises”, given the terms of s 197C of the Act. If that is correct, it is somewhat difficult to see why, in considering a representation concerning the prospect of indefinite detention, it would be necessary to consider whether there was a realistic possibility of the unlawful non-citizen being granted a protection visa, or visa under s 195A of the Act.

68    It is, in this context, important to note a potentially significant distinguishing feature of DQM18 which might explain this apparent tension. It would appear that there was an issue in DQM18 concerning the appellant’s nationality and whether Sudan or South Sudan would accept him. That may have resulted in practical difficulties in removing the appellant pursuant to s 198 of the Act. The appellant in this case did not represent to the Minister that there were, or were likely to be, any significant practical difficulties in returning him to Iraq, or that Iraq may not accept him.

69    This distinguishing feature is potentially significant because it would follow that if there was no realistic possibility of the appellant in DQM18 being granted a protection visa, or visa under s 195A of the Act, there was a prospect that he would continue to be detained, perhaps indefinitely, not necessarily because Australia owed him non-refoulement obligations, but because it was not reasonably practicable to return him to Sudan, South Sudan, or any other country. That was not a feature of this case. The appellant’s arguments in this case, at least on appeal, were based entirely on the proposition that, if he was refused a protection visa, or a visa under s 195A of the Act, he faced indefinite detention because Australia owed him non-refoulement obligations.

70    There is also another distinguishing feature of the decision in DQM18 which is of some relevance. In DQM18, the Assistant Minister did not address the appellant’s submission concerning indefinite detention at all. That was the decisive consideration for Snaden J, who reasoned as follows (at [166]):

In answer to that submission [that the Assistant Minister failed to consider the submission concerning indefinite detention], the Assistant Minister invested some time in explaining why, in truth, indefinite detention was not in prospect. Respectfully, it wouldn’t matter if it wasn’t. At issue presently is whether the Assistant Minister considered what the appellant advanced. Had he done so by correctly dismissing the prospect of indefinite detention (if, indeed, that be the correct analysis), then he would have discharged his obligation to consider the submissions upon which the appellant relied. But he was not relieved of that obligation merely because the circumstance to which the appellant adverted was, in truth, not one that was in prospect: DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 681 [184], 681-682 [188]-[189] (Robertson J, with whom Logan J agreed; Rares J dissenting but not on that point).

71    In this case, the Tribunal considered, but rejected, the possibility of indefinite detention, primarily on the basis of the operation of s 198 of the Act.

72    Despite the distinguishing features in DQM18, the reasoning of Bromberg and Mortimer JJ provides significant support for the appellant’s contention that the Tribunal erred in the way it considered his representation concerning the possibility of indefinite detention. In considering the legal consequences of a decision not to revoke the cancellation of the appellant’s visa, the Tribunal simply adverted to the fact that the appellant could apply for a protection visa and that the Minister could grant a visa under s 195A of the Act. The Tribunal did not, however, “grapple with the realities of the appellant’s situation”: cf DQM18 at [109]. Had it done so, it would most likely have concluded that the prospects of the appellant being granted either a protection visa or a visa under s 195A of the Act was “infinitesimal”, essentially for reasons that mirror those referred to by Bromberg and Mortimer JJ in DQM18. In short, having urged upon the Tribunal that the cancellation of the appellant’s visa on character grounds should not be revoked, including because he presented an unacceptable risk to the Australian community, it is hardly likely that the Minister would do a complete about-face and grant the appellant another visa, be it a protection visa or a visa under s 195A of the Act.

73    The Minister’s submission that the Tribunal was not required to consider and assess whether there was any prospect of the appellant being granted a protection visa, or a visa under s 195A of the Act, because that would amount to speculation about the future course of decision-making, was supported, to an extent, by the reasoning of Flick J in Ali. It should nonetheless be rejected. The reasoning of Bromberg and Mortimer JJ in DQM18 is, with respect, compelling and is to be preferred. The assessment of whether there was any realistic prospect of the appellant being granted such a visa in the future does not involve speculation. Rather, it involves a deduction or inference having regard to the undisputed or ineluctable circumstances; the reality of the position that the appellant was in. In contrast, the Minister’s submission in this case that a different decision-maker may take a different approach to any future protection visa application made by the appellant appeared to involve mere speculation or conjecture. It was not based on any undisputed or ineluctable facts.

74    It does not follow, however, that the appellant has made out ground 1 of his appeal. The finding that the Tribunal should have, but had not, considered and assessed whether there was, in all the circumstances, any realistic prospect that the appellant would or might be granted a protection visa, or a visa under s 195A of the Act, at some point in the future, does not necessarily constitute or amount to a jurisdictional error. Nor does it mean that the appeal should be resolved in the appellant’s favour. That is so for at least two reasons.

75    First, as has already been noted, the judgment in DQM18 was handed down after the primary judge heard this matter. That perhaps explains why, as noted earlier in these reasons, the appellant conceded before the primary judge that the Tribunal was not required to speculate about whether the appellant might be granted a protection visa: Judgment at [48] and [66]. Having made that concession, the argument the appellant appears to have put to the primary judge was not so much that he would be subject to indefinite detention, but rather that he would most likely be detained for a lengthy period of time while his protection visa application was decided. That perhaps explains why the primary judge’s crucial finding was couched in terms of whether the Tribunal was “required to consider the consequences or effect on the [appellant] of the period for which he would remain detained or the length of his detention”: Judgment at [71]. It should also be noted that it does not appear that the parties drew the primary judge’s attention to the Full Court’s judgment in DQM18 prior to her Honour handing down her judgment.

76    To succeed in respect of this aspect of his appeal, the appellant would effectively have to be permitted to resile from or withdraw the concession that he made before the primary judge, the effect of which was that the Minister was not obliged to consider whether he might be granted a protection visa if he applied for one in the future. The argument advanced by the appellant based on the decision in DQM18 was essentially a new argument.

77    Second, and more fundamentally, the Tribunal’s main reason for rejecting the appellant’s representation that he might face indefinite detention was that, subject to him being granted a protection visa, or perhaps a visa under s 195A of the Act, the appellant would be removed from Australia as soon as reasonably practicable by reason of s 198 of the Act. Therefore, the Tribunal concluded, “his detention would not be indefinite”: Reasons at [70]. That was said to be the case even though the Tribunal had found that Australia owed the appellant non-refoulement obligations: Reasons at [69].

78    If the Tribunal’s conclusion concerning the application of s 198 of the Act to the circumstances of the appellant’s case is right, the question whether there was any realistic prospect of the appellant being granted a protection visa, or a visa under s 195A of the Act, was arguably immaterial to the question whether he faced the prospect of indefinite detention. That is so particularly in the circumstances of this case where, unlike the situation in DQM18, no meaningful or cogent representations had been made as to why it would not be “reasonably practicable” to return the appellant to Iraq. Even if the Tribunal had considered the prospects of the appellant being granted a protection visa, or a visa under s 195A of the Act, and found that the prospects were infinitesimal, it is highly unlikely that that would have altered the Tribunal’s finding that the appellant’s detention would not be indefinite. That is because the Tribunal would more than likely have found, in any event, that the appellant would be released from detention when he was removed from Australia and returned to Iraq.

79    It would also follow that, in the particular circumstances of this case, any error by the Tribunal in failing to consider whether there was any realistic prospect of the appellant being granted a protection visa could not be said to constitute a jurisdictional error. That is because any such error could not be said to be material; the Tribunal’s consideration of that issue could not “realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].

80    It is therefore necessary to consider the operation of s 198 of the Act and the appellant’s arguments for why, in the particular circumstances of this case, the Tribunal erred in concluding that, despite being owed non-refoulement obligations, he would be removed from Australia as soon as reasonably practicable and therefore did not face the prospect of indefinite detention. That involves the consideration of cl 14.1(2) and (6) of Direction No. 79.

Did the Tribunal err in concluding that the appellant would be returned to Iraq irrespective of Australia’s non-refoulement obligations?

81    The appellant’s submissions raised two separate but ultimately related questions.

82    The first question is whether, if the cancellation of his visa was not revoked and he was refused any new visa, the combined effect or operation of s 197C and s 198 of the Act was to require the removal of the appellant from Australia to Iraq, his country of origin, as soon as reasonably practicable, despite, or irrespective of, Australia’s international non-refoulement obligations. If the answer to that question is “yes”, it would follow that the appellant would remain in immigration detention for a finite period: if no further visa was granted, the appellant would only remain in detention until it became reasonably practicable to return him to Iraq. The period of detention may not necessarily be short, but it could not be said to be indefinite, at least in the absence of any suggestion that it was not, or would not in the foreseeable future, be reasonably practicable to return the appellant to Iraq.

83    The second question is whether, if the answer to the first question is “yes”, the Tribunal was nonetheless obliged to “comply” with those parts of cl 14.1(2) and (6) of Direction No. 79 which appeared to suggest that Australia would not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations. It is uncontroversial that, while the Tribunal referred to and considered itself bound to follow other parts of Direction No. 79, it did not refer at all to cl 14.1(2) or (6) in its reasons.

84    There was no issue, in this appeal, concerning the meaning or concept of non-refoulement obligations. It should nevertheless be noted that the expression “non-refoulement obligations” is defined in s 5 of the Act and that the concept was considered by the Full Court in Ali v Minister for Home Affairs (2020) 380 ALR 393; [2020] FCAFC 109 at [24], citing Ibrahim v Minister for Home Affairs (2019) 270 FCR 12; [2019] FCAFC 89 at [100]-[113]. In short, the term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) which provides that: “[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, or membership of a particular social group or political opinion”.

85    It has been accepted that Australia’s non-refoulement obligations under international law are wider and more extensive than the protection obligations which are given domestic force by s 36(2) of the Act, which deals with protection visas: Ibrahim at [103]-[104].

The effect and operation of s 197C and s 198 of the Act

86    The operation of s 197C and s 198 should be considered in the context of the provisions in the Act which deal with the detention of non-citizens. Subsection 189(1) provides that “[i]f an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person”. Subsection 196(1) of the Act relevantly provides that “[a]n unlawful non-citizen detained under section 189 must be kept in immigration detention until (a) he or she is removed from Australia under section 198 or 199; or … (c) he or she is granted a visa”.

87    It is uncontentious that, upon the cancellation of his visa, the appellant was required to be detained under s 189 of the Act and that his detention was to continue until, relevantly, he was either granted a visa or he was removed from Australia under s 198 of the Act.

88    Subsection 198(1) of the Act provides that in certain specified circumstances an “officer” must remove “as soon as reasonably practicable” an “unlawful non-citizen”. An “unlawful non-citizen” is, in general terms, a non-citizen who does not hold a visa: ss 13 and 14 of the Act. An “officer” is broadly defined in s 5 of the Act. One of the specified circumstances in s 198 is the circumstance where a non-citizen’s visa has been cancelled under s 501(3A) and the Minister has decided not to revoke the delegate’s decision: s 198(2B) of the Act. Another circumstance is where a non-citizen who is a detainee has made a valid application for a visa, that application has been refused and the non-citizen has not made another valid application that can be granted while the applicant was in the migration zone: s 198(6) of the Act. Both of those circumstances applied, or potentially applied, to the appellant’s case.

89    It follows that the effect of a refusal to revoke the cancellation of the appellant’s visa was that an officer was required to remove the appellant from Australia as soon as reasonably practicable. Likewise, if, before he was removed, the appellant applied for and was refused a protection visa, an officer was required to remove the appellant as soon as reasonably practicable. There is no suggestion that the appellant was able to apply for any other visa that could be granted while he was in Australia.

90    Section 197C provides that, “[f]or the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”. The clear effect of s 197C is that an officer is required to remove a non-citizen pursuant to s 198 of the Act even if the removal would breach non-refoulement obligations that Australia owed to the non-citizen. If, for example, the only place to which the non-citizen could be removed was their country of origin, the fact that removal to that country would result in a breach of Australia’s non-refoulement obligations would not prevent or preclude the removal of the non-citizen to that country. Indeed, subject to one qualification, an officer would be compelled by s 198 to remove the non-citizen to that country, despite the fact that removal in those circumstances would result in Australia breaching its non-refoulement obligations.

91    This interpretation of the effect of s 197C and s 198 of the Act has been confirmed in a number of decisions in this Court. In DMH16, North ACJ (at [27]) construed s 197C as having the effect of abrogating, “for the purposes of Australia’s domestic laws, Australia’s non-refoulement obligations assumed under international law”. Similarly, in AQM18, Thawley and Besanko JJ accepted (at [25]) the Minister’s submission that “the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non-refoulement obligations” and that the appellant “was to be refouled in breach of Austalia’s non-refoulement obligations”.

92    The reasoning in DMH16 was also followed in NKWF v Minister for Immigration and Border Protection [2018] FCA 409. In that case, Siopis J found that the Tribunal erred jurisdictionally because it failed to appreciate that the consequence of it refusing to grant the applicant a safe haven visa was that, by reason of s 197C and s 198 of the Act, the applicant would as soon as practicable be removed from Australia to his country of origin, notwithstanding that removal of the applicant to that country would put Australia in breach of non-refoulement obligations: NKWF at [34]-[35]. In FBW18, Yates J referred (at [85]), with apparent approval, to the decisions in DMH16, NKWF and AQM18.

93    It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.

94    There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).

95    The question whether it is reasonably practicable to remove an unlawful non-citizen from Australia is, however, separate and distinct from the issues that may arise from the fact that Australia owes that person non-refoulement obligations. As has already been noted, the appellant’s representations to the Tribunal did not include any substantive claim that it was not, and was not in the foreseeable future, likely to be reasonably practicable to return him to Iraq. They were largely silent on that topic, though there was a fleeting reference in the appellant’s statement of facts, issues and contentions to the “difficulty” of returning the appellant to Iraq involuntarily. No particulars of that suggested difficulty were provided. The appellant’s representation that a failure or refusal to revoke the cancellation of his visa would lead to indefinite detention was, or appeared to be, linked entirely to the fact that his removal to Iraq would involve a breach of Australia’s international non-refoulement obligations.

96    The short answer to that representation is that the existence of non-refoulement obligations does not, or cannot, alone give rise to indefinite detention. That is because the effect of s 197C of the Act is that an officer’s duty to remove an unlawful non-citizen from Australia arises irrespective of, or despite the existence of, any such obligations. That is, in effect, what the Tribunal found in [69] and [70] of its Reasons. The Tribunal found, in substance, that if the cancellation decision was not revoked and the appellant was not granted another visa, his detention would not be indefinite because he would only remain in detention until he was removed from Australia under s 198 of the Act, which would occur as soon as that was reasonably practicable. That removal would occur irrespective of Australia’s international non-refoulement obligations.

97    It follows that, subject to the appellant’s contentions concerning the effect and operation of cl 14.1(2) and (6) of Direction No. 79, the Tribunal was correct to approach the appellant’s representations concerning indefinite detention on the basis that, if the cancellation of his visa was not revoked and he was not subsequently granted either a protection visa or a visa under s 195A of the Act, s 198 of the Act would operate so as to require the removal of the appellant from Australia to Iraq, his country of origin, as soon as reasonably practicable, despite or irrespective of Australia’s international non-refoulement obligations.

The effect and operation of cl 14.1(2) and (6) of Direction No. 79

98    The next question is whether cl 14.1(2) and (6) of Direction No. 79 effectively precluded the Tribunal from finding that, if the cancellation of the appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia to Iraq and his detention would thereby come to an end. The short answer to that question is “no”, essentially because the Tribunal is not required to comply with any direction given by the Minister pursuant to s 499(1) of the Act if the direction is inconsistent with, or misconstrues, a provision in the Act. At least parts of cl 14.1(2) and (6) of Direction No. 79, if construed or read in the way that the appellant contended they should be, would be inconsistent with s 197C and s 198 of the Act.

99    The genesis of cl 14.1(2) and (6) would appear to be a paragraph in the Explanatory Memorandum to the Bill which inserted s 197C into the Act: Migration and Maritime Powers Leglisation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). Paragraph 1142 of the Explanatory Memorandum, which appeared to be directed at assuaging any concern that may have existed about the apparent implications of s 197C, being that Australia would breach its non-refoulement obligations, stated as follows:

Australia will continue to meets its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

100    The predecessor to Ministerial Direction No. 79, Ministerial Direction No. 65, which contained clauses in the same terms of cl 14.1(2) and (6), was issued very shortly after s 197C was inserted in the Act.

101    The clear import of this paragraph of the Explanatory Memorandum was that Australia would not breach its non-refoulement obligations because, if it came to it, the Minister would exercise other powers in the Act, such as issuing a visa under s 195A of the Act, instead of returning an unlawful non-citizen to a country where they would be subjected to persecution or serious harm. It was not suggested that Australia would avoid breaching its non-refoulement obligations by simply declining to remove, and thereby effectively indefinitely detaining, an unlawful non-citizen who was owed non-refoulement obligations, despite the clear obligation in s 198 of the Act.

102    The difficulty with cl 14.1(2) and (6) of Direction No. 79, however, is that they contain seemingly unequivocal statements to the effect that Australia will not breach its non-refoulement obligations without any indication as to how that will be achieved given the terms of s 197C and s 198 of the Act. Clause 14.1(2) simply says that “Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists”. Clause 14.1(6), which relates to the cancellation of protection visas, simply states that “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations”. Perhaps more significantly, the clause goes on to state that in those circumstances “the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention”.

103    In BDQ19 v Minister for Home Affairs (2019) 167 ALD 38; [2019] FCA 1630, Kerr J concluded (at [47], [54] and [67]) that the statement in cl 14.1(6) (in the predecessor to Direction No. 79) to the effect that s 189 and s 196 permitted the indefinite detention of an unlawful non-citizen to whom non-refoulement obligations were owed was inconsistent with the Act, wrong in law and should be severed. It is to be noted, in that context, that s 499(2) of the Act provides that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.

104    Kerr J did not, however, accept that the statement in the equivalent clause to cl 14.1(2) was inconsistent with the Act or wrong in law. His Honour reasoned (at [58]) that that would only be so “if that obligation were required to be understood as being inherently tied to a particular means of securing the posited outcome: namely, indefinite detention”. His Honour then noted that, as the Explanatory Memorandum explained, “it remains open to Australia to continue to meet its non-refoulement obligations through mechanisms other than the removal powers in s 198 of the Migration Act” (emphasis in original). At [68], his Honour construed cl 14.1(2) as meaning, in effect, that “the existence of a non-refoulement obligation will not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa even in circumstances where, absent non-compellable Ministerial intervention, that cancellation would necessitate their removal to a country in respect of which a non-refoulement obligation exists” (emphasis in original).

105    The difficulty with Kerr J’s rather beneficial construction of the equivalent to cl 14.1(2) of Direction No. 79 is that the clause itself says nothing whatsoever about “other mechanisms” by which Australia could avoid breaching its international non-refoulement obligations given the terms of s 197C and s 198 of the Act. Nor does it say anything about “non-compellable Ministerial intervention” as being the basis upon which it was said that Australia would be able to avoid removing a non-citizen to the country in respect of which a non-refoulement obligation exists. It simply states, in unequivocal terms, that Australia will not remove a non-citizen to a country in respect of which a non-refoulement obligation exists.

106    It is unnecessary to reach a concluded view as to whether Kerr J’s construction of the equivalent to cl 14.1(2) of Direction No. 79 is correct or not. The issues concerning severance which appeared to concern Kerr J in BDQ19 did not arise in this case. The more significant point is that, on any view, the Tribunal was not required to comply with the directions in cl 14.1(2) and (6) to the extent that they could be read as directing the Tribunal to proceed on the basis that an officer could decline to comply with s 198 of the Act simply because the removal of the unlawful non-citizen would result in Australia breaching its non-refoulement obligations. Read in that way, the clauses would be inconsistent with the Act and wrong in law.

107    The Tribunal concluded that the “legal consequence” of a refusal to revoke the cancellation of the appellant’s visa was that the appellant “would be returned to Iraq, subject to any successful Protection visa application”: Reasons at [71]. The Tribunal also adverted to “alternative management options, such as the possibility of granting a visa under s 195A of the Act”: Reasons at [69]. While the Tribunal may have adverted to the possibility of the appellant being granted a protection visa, or a visa under s 195A of the Act, it is tolerably clear that the main basis of the Tribunal’s conclusion that the appellant’s detention would not be indefinite was that, if he was not granted another visa, he would, by reason of s 198 of the Act, be removed to Iraq as soon as reasonably practicable: Reasons at [70].

108    It was open to the Tribunal to conclude that, absent the grant of a protection visa, or a visa under s 195A of the Act, the appellant would be returned to Iraq. The Tribunal was not required to comply with the directions in cl 14.1(2) or (6) of Direction No. 79 to the extent that they could be read as meaning that, irrespective of the terms of s 197C and s 198 of the Act, Australia would not remove the appellant from Australia to Iraq because he was owed non-refoulement obligations. The Tribunal was clearly obliged to disregard the statement concerning indefinite detention in the last sentence of cl 14.1(6) because it was wrong in law: BDQ19 at [47], [54] and [67]. It is, in any event, questionable whether the Tribunal was required to comply with cl 14.1(6) given that, when read in the context of cl 14.1(5), it is clear that cl 14.1(6) only applies to cases involving the cancellation of a protection visa.

109    As events transpired, the Tribunal did not refer at all to cl 14.1(2) or (6) of Direction No. 79. It is essentially immaterial whether that was by design or otherwise. Either way, the Tribunal was not compelled by any direction contained in those subclauses to find that the appellant could not, or would not under any circumstances, be removed to Iraq because to do so would breach Australia’s non-refoulement obligations. There is also no basis for the appellant’s contention that the relevant statements in cl 14.1(2) and (6) of Direction No. 79 constituted “conclusive evidence” that the appellant would on no account be removed to Iraq as a result of a decision to not revoke the cancellation of his visa.

110    It follows that the appellant’s contention that it was not open to the Tribunal to conclude that the appellant would be returned to Iraq if another visa was not granted must be rejected. So too must the appellant’s contention that the Tribunal thereby failed to address his representations concerning the possibility or prospect for indefinite detention.

Conclusions in relation to appeal ground 1

111    The appellant has failed to make out his contention that the primary judge erred in finding that the Tribunal “failed to take into account an integer or aspect of [his] case, being the prospect of indefinite detention, when deciding to decline to revoke the cancellation of [his] visa”. The primary judge was correct in finding that the Tribunal did not fail to give meaningful consideration to the appellant’s representations, such as they were, concerning indefinite detention. That is particularly the case given the way the appellant put his arguments to the primary judge, which appeared to differ substantially from the arguments the appellant advanced on appeal.

112    As for the appellant’s arguments in support of this appeal ground, there may be some merit in the submission, based on the reasoning of Bromberg and Mortimer JJ in DQM18, that in some circumstances the Tribunal must, in addressing a representation to the effect that the cancellation of a non-citizen’s visa should be revoked because otherwise the non-citizen may face indefinite detention, give some consideration to the question whether there is any realistic prospect that another visa may be granted to the non-citizen whose visa was cancelled. That is not a matter of speculation. That is particularly the case where the circumstances of the cancellation make it extremely unlikely that the Minister would be likely to grant another visa and there may be significant issues concerning the removal of the non-citizen in accordance with s 198 of the Act.

113    In the appellant’s case, however, any error arising from the fact that the Tribunal did not consider whether there was any realistic possibility of the appellant being granted another visa was not a material error and therefore was not jurisdictional in nature. That is because the only issue or difficulty concerning removal that he advanced in his representations was the fact that he was owed non-refoulement obligations. The existence of non-refoulement obligations alone, however, does not preclude removal under s 198 having regard to the terms of s 197C of the Act.

114    It was also open to the Tribunal to conclude, as it did, that the appellant would be removed to Iraq if he was not granted another visa. The Tribunal was not required to follow or comply with cl 14.1(2) and (6) of Direction No. 79 to the extent that those subclauses could be read as indicating that an unlawful non-citizen was not liable to be removed from Australia under s 198 of the Act because Australia owed them non-refoulement obligations.

APPEAL GROUND 3 – NON-REFOULEMENT AND AUSTRALIA’S INTERNATIONAL STANDING

115    As was noted earlier, the essence of the appellant’s argument in support of appeal ground 3 was that, in considering the appellant’s representations concerning Australia’s non-refoulement obligations, the Tribunal was required to consider the damage that would be caused to Australia’s international reputation and standing if he was returned to Iraq in breach of Australia’s non-refoulement obligations. He contended that that proposition was supported by the decision in Hernandez.

116    There was, and is, no dispute that this argument was not advanced before the primary judge. The appellant acknowledged that he was required to seek the Court’s leave to raise this ground of appeal: cf Sun at [88].

117    In the absence of reason to do so, a court will not allow an appellant to depart from the basis upon which a case had been conducted at first instance: Sun at [89] and the cases there cited; see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]-[48]. There are, however, “circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial”: Park v Brothers (2005) 222 ALR 421; [2005] HCA 73 at [34]. No such circumstances exist in this case. The appellant advanced no reasonable or rational explanation for why the argument he now wishes to raise in ground 3 of his notice of appeal was not advanced before the primary judge. It may be noted, in that regard, that the appellant was represented by experienced counsel before the primary judge.

118    The appellant contended that leave was appropriate because the new argument relied entirely on material that had been before the Court below. It also could not have been met by evidence had it been raised in the Court below. It followed, in the appellant’s submission, that there could be no prejudice to the Minister if the appellant was permitted to advance the argument for the first time on appeal. The appellant also argued that the new argument was closely related to the arguments that he did advance below, that the law in this area is progressing rapidly and that the outcome of the proceeding, relating as it does to the question whether the Tribunal erred jurisdictionally in deciding not to revoke the cancellation of his visa, was obviously “grave” as far as his interests were concerned. Those are all no doubt relevant considerations, but it is questionable whether they outweigh the simple fact that there was no explanation whatsoever for why the argument was not advanced before the primary judge.

119    It is, however, unnecessary to reach a concluded view on that issue. That is because the argument itself has insufficient apparent merit to warrant the grant of leave in any event.

120    Hernandez is not authority for the proposition that a decision-maker who is considering a representation that a failure to revoke the cancellation of a non-citizen’s visa may result in the removal of the non-citizen to his or her country of origin in breach of Australia’s non-refoulement obligations must give consideration to the damage to Australia’s international reputation and standing that would occur in those circumstances. The applicant in Hernandez had made representations, in support of the revocation of the cancellation of his visa, which included an assertion that he was a person to whom non-refoulement obligations were owed. The Minister, however, considered that it was unnecessary to consider whether Australia in fact owed the applicant non-refoulement obligations because the applicant was, in any event, able to apply for a protection visa and the question whether non-refoulement obligations were owed would be considered in that context.

121    Charlesworth J in Hernandez held (at [63]) that the Minister erred in a jurisdictional sense in not considering the applicant’s assertion that the fact that he was owed non-refoulement obligations was “another reason” why the cancellation of his visa should be revoked. Part of her Honour’s reasoning in that regard was that there was a material difference between a case where non-refoulement obligations are identified in the course of exercising the power conferred by s 501CA(4) of the Act and a case where such obligations are identified in the context of an application for a protection visa. Her Honour reasoned, in that regard, that the existence of non-refoulement obligations would be “capable” of furnishing another reason why the cancellation should be revoked because, “[a]t the very least, it would be open to the Minister to conclude that Australia’s reputational interests may be adversely affected by a decision resulting in the deportation of a person in contravention of Australia’s obligations under international law”: Herndandez at [63].

122    The fact that it would be “open” to the Minister to reach such a conclusion does not mean that Australia’s “reputational interests” are a mandatory consideration, or must be considered whenever a person who is seeking the revocation of the cancellation of his or her visa asserts that they are owed non-refoulement obligations. Nor does it necessarily follow that a decision-maker who does not consider Australia’s reputational interests when considering a representation concerning Australia’s non-refoulement obligations thereby fails to give meaningful consideration to that representation. One might reasonably expect a decision-maker to give some consideration to Australia’s reputational interests in that context, but a failure to do so does not necessarily bespeak jurisdictional error.

123    In this case, the appellant’s representations concerning Australia’s non-refoulement obligations were very brief. He did not expressly represent or submit that the Tribunal should consider Australia’s reputational interests in that context. The Tribunal accepted that Australia owed the appellant non-refoulement obligations but found, in effect, that if the cancellation of the appellant’s visa was not revoked and he was not granted another visa, an officer would be required by s 198 of the Act to remove the appellant from Australia to Iraq irrespective of the fact that removing the appellant to Iraq would breach Australia’s non-refoulement obligations. For the reasons already given, that finding was open to the Tribunal.

124    While it would have been open to the Tribunal to reason, in that context, that the damage to Australia’s international reputation which would, or might, result from the removal of the appellant to Iraq in those circumstances weighed in favour of revoking the cancellation of the appellant’s visa, it was not required to do so. Nothing in cl 14 of Direction No. 79 suggests that the Tribunal was required to consider, in the context of considering Australia’s non-refoulement obligations, the damage to Australia’s international standing or reputation if Australia did breach its non-refoulement obligations.

125    The Tribunal considered the appellant’s representations concerning Australia owing him non-refoulement obligations by considering the appellant’s underlying claims concerning the harm that he would suffer if he was returned to Iraq. The Tribunal found, in that context, that the appellant “will face the most severe impediments including risk of death if forced back to Iraq”: Reasons at [87]. That was not, however, enough to persuade the Tribunal that there was another reason to revoke the cancellation of the appellant’s visa. The appellant does not complain that the Tribunal’s ultimate conclusion in that regard was irrational or legally unreasonable.

126    There is, in all the circumstances, no basis for the appellant’s contention that the Tribunal failed to consider the fact that Australia would or may breach its non-refoulement obligations. It accepted that Australia owed the appellant non-refoulement obligations and accepted that, if the appellant was not granted another visa, he would be returned to Iraq in breach of those obligations. While it may have been open to the Tribunal to find that the damage to Australia’s reputation that may have resulted from the breach of its international obligations constituted, or may have constituted, another reason to revoke the cancellation of the appellant’s visa, it was not required to consider that issue, particularly in the absence of any apparent representation to that effect.

127    It should finally be noted, for completeness, that it has been held that the Minister, when considering the “national interest” in the context of whether to exercise his power under s 501A(2) of the Act to set aside a decision made by a delegate or the Tribunal not to refuse to grant a visa, or not to cancel a visa, under s 501(1) and (2) of the Act respectively, must give some consideration to the fact that the decision would put Australia in breach of its non-refoulement obligations: see FRH18 v Minister for Home Affairs (2018) 266 FCR 413; [2018] FCA 1769 at [49]; CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980 at [52]; CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 at [132]. The reasoning in those cases, however, largely turns on the breadth of the concept of the “national interest”. It is not difficult to see how Australia’s international standing and reputation may fall within that concept. Subsection 501CA(4) of the Act does not, however, involve any consideration of the national interest.

128    Given that the appellant’s arguments in relation to appeal ground 3 have been considered and found to be wanting, albeit at a fairly impressionistic level (cf MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]) it seems somewhat pointless to refuse the appellant leave to rely on those arguments. It would equally be open to grant leave and reject the appeal ground. Nevertheless, it is appropriate to refuse leave given the absence of any reasonable explanation for why the arguments were not put to the primary judge. Appellants should be given no encouragement to raise new arguments on appeal in such circumstances.

DISPOSITION

129    The appellant has failed to demonstrate any error on the part of the primary judge. The appeal must accordingly be dismissed with costs.

Associate:

Dated:    16 March 2021

REASONS FOR JUDGMENT

S C DERRINGTON J:

Introduction

130    The appellant appeals from a judgment of a single judge of this Court delivered on 8 July 2020, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal, reasons for which were delivered on 6 January 2020 (Tribunal’s Reasons). The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the Minister), under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke a Cancellation Decision of the Appellant’s Class XB Subclass 202 Global Special Humanitarian visa.

131    In May 2015, the appellant was convicted of committing one count of aggravated sexual assault and, on 23 October 2015, he was sentenced to three years imprisonment with a non-parole period of 18 months.

132    On 9 November 2016, a delegate of the Minister cancelled the appellant’s visa as required by s 501(3A) of the Migration Act. On 5 November 2018, the appellant sought revocation of the Cancellation Decision under s 501CA(4) of the Act which was refused (Revocation Decision).

133    The Tribunal affirmed the Revocation Decision on 25 January 2019 but the matter was subsequently remitted, by consent, to the Tribunal for redetermination. On 6 January 2020, the Tribunal, differently constituted, affirmed the Revocation Decision (the Second Revocation Decision).

134    Before the primary judge, the appellant pressed three grounds for judicial review of the Second Revocation Decision. The first ground contended that the Tribunal failed to consider an integer of the appellant’s claim in that it failed to consider the consequences for him of non-revocation of the Cancellation decision, namely that he would be faced with indefinite detention. The second ground contended that the Tribunal’s decision and exercise of its discretion was unreasonable given that the Tribunal accepted that the appellant was owed protection obligations and accepted that he was at risk of being killed, or otherwise seriously harmed, if he returned to Iraq. The third ground challenged the Tribunal’s application of Direction 79 in relation to its obligation to consider the best interests of any minor children affected by the decision. The primary judge dismissed all three grounds (Reasons [98]).

135    The Notice of Appeal advances three grounds of appeal, but only Grounds 1 and 3 are pressed:

1.    The Court below erred at [71] in not finding that the Second Respondent had failed to take into account and integer or aspect of the Appellant’s case, being the prospect of indefinite detention, when deciding to decline to revoke the cancellation of the Appellant’s visa.

...

3. The Court below erred in not finding that the decision of the Second Respondent was afflicted by jurisdictional error in circumstances where the Second Respondent failed to give proper meaning and consideration to a matter it was required to consider (being international non-refoulement obligations) by only considering the question of harm upon return rather than also the issue of Australia being placed in breach of its international obligations.

136    Ground 3 was not raised before the primary judge and the appellant concedes that leave is required to press this ground.

137    For the reasons that follow, Ground 1 should be rejected. Leave to amend to raise the new Ground 3 should be refused and the appeal should be dismissed.

Legislative provisions

138    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

. . .; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

139    Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that the appellant did not pass the character test in s 501(3A)(a)(i) of the Migration Act, because of the operation of subs (6)(a) on the basis of subs (7)(c).

140    Section 501CA of the Migration Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

141    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction No 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79), which came into force on 28 February 2019, and which applied to the Second Revocation Decision.

142    Paragraph 14 of Direction 79 provides:

14.    Other considerations – revocation requests

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a) International non-refoulement obligations;

    b) Strength, nature and duration of ties;

    c) Impact on Australian business interests;

    d) Impact on victims;

    e) Extent of impediments if removed.

143    In relation to international non-refoulement obligations in particular, paragraph 14.1 of Direction 79 provides:

14.1     International non-refoulement obligations

(1)     A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Convention on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)     Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5)    If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 50IE of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

144    The force and effect of Direction 79 made under s 499(1) of the Migration Act, albeit concerning its predecessor, Direction 65, was explained by the Full Court in Matthews v Minister for Home Affairs [2020] FCAFC 146. The Court said, at [45]:

…it is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case. Thus, as Perram J held by analogy in SZTMD [v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34](in a passage also approved in [Minister for Home Affairs v] HSKJ [[2018] FCAFC 217; (2018) 266 FCR 591] at [44]):

20.    Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 [of Ministerial Direction 56 made under s 499 of the Act] and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court.

Ground 1 of the notice of appeal

145    The appellant submits that Ground One raises two issues: first, whether the Tribunal fell into jurisdictional error by making a positive finding of fact not open on the evidence, being that the appellant did not face the prospect of indefinite detention because he would in fact be removed to Iraq if refused another visa; secondly, whether in so doing, the Tribunal failed to take into account and consider a reason for the revocation of the cancellation decision that had been squarely advanced, being that the appellant did face a real prospect of indefinite detention in circumstances where, (a) the Minister actively opposed the revocation of the cancellation of his visa in proceedings before the Tribunal, while (b) the material before the Tribunal established unequivocally that Australia does not remove persons to whom it owes international non-refoulement obligations to harm.

146    The primary judge held that there was no error in the Tribunal’s approach (Reasons [62]) and that the Tribunal was not required to consider the consequences or effect on the appellant of the period for which he would remain detained or the length of his detention beyond the consideration which it gave to that issue (Reasons [71]).

147    The primary judge articulated three reasons for this conclusion. The first concerned the Tribunal’s active engagement with the appellant’s representations as to whether he was owed non-refoulement obligations and whether there was “another reason” why the Cancellation Decision should be revoked and its findings of fact about the harm the appellant would suffer if returned to his home country. In that context, the primary judge found that the Tribunal did not simply note that representations had been made but engaged with those representations by making findings of fact as necessary. The Tribunal considered the effect on the appellant of a decision not to revoke the Cancellation Decision finding that it would lead to his continued detention (Reasons [63]).

148    Secondly, the Tribunal addressed the appellant’s contention in his Statement of Facts, Issues and Contentions about the possibility of indefinite detention and made factual findings about the ways in which the appellant’s detention might ultimately come to an end. Specifically, the Tribunal found:

70.    The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligations to remove as soon as reasonably practicable his detention would not be indefinite. [see DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 at [158]].    

149    The fact that the Tribunal did not opine on the length of the appellant’s detention while awaiting the outcome of any protection visa application made by him did not mean that the Tribunal failed to give meaningful consideration to the appellant’s representations (Reasons [65]).

150    Thirdly, as had been conceded by the appellant, the Tribunal was not obliged to speculate on what might happen next and, in particular, on the course or outcome of any application for a protection visa, including the time it might take (Reasons [66]). As was observed by Flick J in in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [33] (and see FBW18 v Minister for Home Affairs [2019] FCA 1878 at [77] per Yates J):

The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister … for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised … by reference to the facts and circumstances then prevailing.

151    The tenor of the appellant’s submissions before this Court are substantially different from those that the primary judge was asked to consider. The appellant contends that the Tribunal fell into jurisdictional error by making a positive finding of fact not open on the evidence, being that the appellant did not face the prospect of indefinite detention because he would in fact be removed to Iraq if refused another visa. It is contended further that the Tribunal failed to take into account and consider the appellant’s submission that he did face a real prospect of indefinite detention in circumstances where the Minister actively opposed the revocation and while the material, being Direction 79, established unequivocally that Australia does not remove persons to whom it owes international non-refoulement obligations. Contrary to the appellant’s submissions, the Tribunal did not make a positive finding that it would be “reasonably practicable” to remove the appellant to Iraq, and no representation to the contrary had been put to the Tribunal beyond a passing reference to the “difficulty of returning [the appellant] to Iraq involuntarily” (SFIC [51]).

152    The appellant submits that the Tribunal’s finding in para [70] was not open on the evidence because it is premised on a basis that is directly contrary to Direction 79 and so reveals that there was no proper consideration of the prospect that the appellant would be indefinitely detained if his visa cancellation were not to be revoked.

153    It was argued that cll 14.1(2) and (6) of Direction 79 bind a decision-maker to proceed on the basis of the Executive policy expressed in those sub-clauses, respectively, that “Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists” (14.1(2)) and “Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention” (14.1(6)).

154    Consequently, it was argued, the Tribunal was bound to proceed on the basis that the appellant would not be returned to Iraq in breach of Australia’s international non-refoulement obligations and therefore would be indefinitely detained.

155    In oral submissions, senior counsel for the appellant conceded that the matter had not been raised in these express terms, either before the Tribunal or the primary judge, but nevertheless submitted the issue was squarely before the Tribunal. The appellant’s written submissions to the Tribunal submitted that “the possibility that a failure to revoke the cancellation would lead to indefinite detention is also a factor which weighs heavily in favour of revocation” (SFIC [115]). The appellant had also “spell[ed]…out; it is necessary for the Tribunal to determine; (i) whether there are non-refoulement obligations; (ii) whether, regardless of whether there are non-refoulement obligations, the applicant is at risk of serious harm on return to Iraq; AND (iii) the impact of ongoing detention, if he is unable to be returned” (SFIC [92]).

156    After recording its finding that the appellant is owed non-refoulement obligations (Tribunal’s Reasons [68]), the Tribunal considered the legal consequences of a decision not to revoke the cancellation of the appellant’s visa, specifically that he will be liable, pursuant to s 198, to be removed from Australia as soon as it is reasonably practicable for that occur. The Tribunal also observed that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A, and that the appellant would not be liable to removal should he be successful in an application for a Protection visa (Tribunal’s Reasons [69]).

157    In reaching its conclusion that his detention would not be indefinite (Tribunal’s Reasons [70]), the Tribunal was cognizant that s 197C provides that, for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. An officer’s duty is to remove an unlawful citizen as soon as reasonably practicable irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations. In the decision of the Federal Court of Australia referred to by the Tribunal, DMH16 (Tribunal’s Reasons [70]), North ACJ held that the Minister had misunderstood that if the applicant’s application for a protection visa was refused, the applicant could be detained in Australia for an indefinite period. His Honour said, at [26]-[27]:

In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.

That view of the Minister’s reasons is supported by the advice provided in the submission to the Minister at [73], which erroneously stated that s 197C does not abrogate, for the purposes of Australia’s domestic laws, Australia’s non-refoulement obligations assumed under international law. That is an incorrect understanding of the operation of s 197C in conjunction with an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198.

158    No doubt was cast on the correctness of this decision by the Full Court’s decision in AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424 at [28]. In circumstances where the Minister’s actions, subsequent to the decision in DMH16, were aimed at refouling the applicant in a manner that made it clear that he understood the operation of s 197C, Besanko and Thawley JJ said, at [25]:

The Minister’s reasons for decision do not mention indefinite detention as a possibility. This is because it was not a possibility. It was not a possibility because, as the Minister noted at D[86], the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non-refoulement obligations. It was not contemplated that the appellant would be kept in indefinite detention. She was to be refouled in breach of Australia’s non-refoulement obligations. (emphasis added)

159    As the primary judge observed, the Tribunal addressed the appellant’s contention in his SFIC about the possibility of indefinite detention. The Tribunal was correct, as a matter of law, to conclude that his detention would not be indefinite. Clauses 14.1(2) and (6) of Direction 79 cannot bind a decision-maker to proceed on a basis contrary to the express terms of the statute. As was held in in BDQ19 v Minister for Home Affairs [2019] FCA 1630; (2019) 167 ALD 38 at [47], and as had been accepted by both counsel for the applicant and counsel for the Minister, having regard to the terms of s 197C of the Migration Act, the statement in cl 14.1(6) of the precursor to Direction 79 (and which, relevantly, was in the same terms) that refers to the operation of s 189 and s 196 as permitting the indefinite detention of an unlawful non-citizen to whom non-refoulement obligations are owed is wrong in law.

160    Further, in relation to cl 14.1(2), Kerr J held, at [72]:

The decision maker therefore is not inconsistently told by Ministerial Direction 65 to proceed both on the basis that an unlawful non-citizen owed non-refoulement obligations will be removed, and that he or she will not be removed. The decision maker is simply told to assess the case before him or her on the basis that the existence of a non-refoulement obligation does not preclude the revocation of the non-citizen’s visa.

161    The Tribunal correctly identified the relevant parts of Direction 79 to guide its decision-making in relation to whether or not to revoke the cancellation of the appellant’s visa. In so doing, it considered the appellant’s representation that he faced the real prospect of indefinite detention but rejected that prospect, having regard to the express terms of the statute in s 197C of the Migration Act (DMH16 at [26]; AQM18 at [25]).

162    The primary judge was correct to hold that there was no error in the Tribunal’s approach to its finding that the appellant would not be subject to indefinite detention. Ground 1 of the Notice of Appeal must be rejected.

Ground 3 of the Notice of Appeal

163    The second ground of appeal, being Ground 3 of the Notice of Appeal, contends that the primary judge erred in not finding that the decision of the Tribunal was afflicted by jurisdictional error in circumstances where the Tribunal failed to give proper meaning and consideration to the issue of Australia being placed in breach of its international obligations.

164    This ground was not raised before the primary judge. The appellant does not explain why the argument was not raised below in circumstances where he was represented by counsel at first instance, nor does he explain why an appellate court should usurp the role of hearing at first instance: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [90]. Nevertheless, the appellant contends that leave ought be granted to advance this ground for the following reasons:

(a)    The ground could not have been met through evidence if it was advanced below and there is no prejudice or procedural unfairness to the Minister;

(b)    The ground relies only upon material that was before the Court below;

(c)    The ground is closely related to a ground that was advanced below and many of the issues it poses were the subject of the decision below;

(d)    The subject matter of the proceeding is grave and relates to the cancellation of the visa of a person to whom international non-refoulement obligations are owed;

(e)    The ground relates to an area of the law that has been progressing rapidly, with a high volume of decisions.

165    The appellant’s written submissions contended that the Tribunal was required, but failed, to consider: what aspects of Australia’s international non-refoulement obligations were enlivened; that the question of the existence or otherwise of international non-refoulement obligations was not simply a question of risk of harm to the appellant but was a matter relating to Australia’s reputational interests and standing; and that international non-refoulement obligations would not be considered as part of a future protection visa application.

166    The Tribunal recorded the appellant’s contention that he would face harm if returned to Iraq and that the Tribunal needs to consider Australia’s international non-refoulement obligations (Tribunal’s Reasons [60]).

167    The Tribunal properly had regard to para 14.1 of Direction 79 and, in particular, para 14.1(4). It was uncontentious that the appellant has the right to apply for a Protection visa.

168    The Tribunal found:

[63]    Whilst I am satisfied that I do not fall into jurisdictional error by deferring the consideration of non-refoulement obligations until the determination of any application for a protection visa, the recent decision in Minister for Home Affairs v Omar means that I must give consideration to such claims raised by the applicant. The appropriate course is for the Tribunal to consider whether the existence of non-refoulement obligations is ‘another reason’ for revoking the cancellation decision. In any event, I am not released from “considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations”.

[64]    In making an assessment as to the existence of non-refoulement obligations, I bear in mind the following:

(a)     there is no legal impediment to the applicant applying for a Protection visa in the future, and Ministerial Direction 75 provides that when considering a Protection visa application, a delegate must first assess a person’s refugee and protection claim before considering ineligibility grounds;

(b)    I am not required to carry out the same level of analysis as would be expected in the assessment of a Protection visa application;

(c)    It is open to me to give greater weight to the primary considerations in Direction 79 than to this ‘other consideration’.

169    The Tribunal accepted that there is a real risk of harm if the appellant is returned to Iraq and that he is owed non-refoulement obligations (Tribunal’s Reasons [68]). There is nothing in Direction 79 that requires a Tribunal to identify precisely the source or nature of the particular non-refoulement obligations it considered, particularly in the absence of any submission or representation to that effect on behalf of the appellant. In oral submissions, senior counsel did not press the issue of whether the Tribunal had failed to identify the particular sources of the international non-refoulement obligations owed to the appellant in this case considering the observations of the Full Court in Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 380 ALR 393 at [89].

170    Similarly, no representation was made regarding the “reputational interests and standing” of Australia should it breach its non-refoulement obligations, nor is that a matter required by Direction 79 to be considered by a decision-maker. In circumstances where the Tribunal has meaningfully engaged with the appellant’s submissions concerning Australia’s non-refoulement obligations and relating to the risk of harm to the appellant if he were returned to Iraq, including that the appellant will be at risk of being killed, but has nevertheless determined that “the primary considerations of the protection and expectations of the Australian community outweigh the countervailing considerations” (Tribunal’s Reasons [90]), no jurisdictional error is revealed: XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167 at [102]-[109]. There is no challenge to this assessment on the ground of legal unreasonableness.

171    There is no substance to this ground and leave should be refused.

Disposition

172    The appeal should be dismissed with costs.

Associates:

Dated:    16 March 2021