Federal Court of Australia

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of lump sum.

3.    In the absence of any agreement in accordance with Order 2, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

KENNY AND MORTIMER JJ:

1    The appellant has held a Global Special Humanitarian visa since 3 October 2005, having come to Australia from what was then the nation of Sudan. He is from a small ethnic group, which is traditionally located on both sides of the border between what is now Sudan and South Sudan. Due to the commission of a series of criminal offences, the appellant had his visa cancelled in September 2016, but that cancellation was subsequently revoked after the appellant made representations to the Minister. The appellant was convicted of further criminal offences on his release from prison in late 2017, and on 22 October 2018, a delegate of the Minister cancelled the appellant’s visa for a second time, pursuant to the mandatory cancellation provisions in s 501(3A) of the Migration Act 1958 (Cth). It is that decision which is the foundation for the issues arising before the primary judge, and on this appeal.

2    For the reasons set out below, the orders of the primary judge made on 7 August 2020 are not affected by the error identified by the appellant, and the appeal must be dismissed.

The Tribunal decision

3    The appellant sought revocation of the October 2018 visa cancellation decision, but revocation was refused by the Minister’s delegate on 17 July 2019. On 22 July 2019, the appellant applied for review of that refusal in the Administrative Appeals Tribunal.

4    The time in which the Tribunal must make a decision on such a review is affected by s 500(6L)(c) of the Migration Act, which provides that if a decision is not made within 84 days, the Tribunal is deemed to have affirmed the decision under review. In this case, the Tribunal made its decision on the last available day and gave reasons approximately two weeks later. A Full Court of this Court has found such a practice is lawful: see in Khalil v Minister for Home Affairs [2019] FCAFC 151; 271 FCR 326 at [48].

5    The Tribunal found the appellant had a “substantial criminal record” within the meaning of s 501(6)(a), read with s 501(7)(c) of the Act, as the appellant had been sentenced to a term of imprisonment of 12 months or more “on multiple occasions”, and accordingly the appellant did not pass the character test: WKMZ and Minister for Home Affairs (Migration) [2019] AATA 4381 at [22]-[23]. There was no challenge to that finding before the primary judge, nor on this appeal.

6    On the question whether there was “another reason” to revoke the visa cancellation, the Tribunal considered Ministerial Direction No 79 – “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. Direction 79 is made under s 499 of the Migration Act, which provides:

499 Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

(3)    The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)    Subsection (1) does not limit subsection 496(1A).

7    Having set out the relevant terms of the Direction, the Tribunal set out the evidence before it about the appellant, including his family history and his history of offending, the opinion of a psychiatrist, the evidence of the appellant’s mother and stepfather, and evidence from some of the appellant’s siblings. From [99]-[158] of its reasons the Tribunal then set out its reasoning on each of the factors listed in the Direction 79 as, first, “primary considerations”, and then from [159]-[302] as “other considerations”. At [303]-[309], the Tribunal expressed its conclusions on the review in the following terms:

The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a high risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant’s family that non-revocation would cause and the length of time that the Applicant has spent in Australia since he was a child.

The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of his six Australian child siblings, weighs significantly in favour of revocation of the cancellation decision.

The Tribunal has found that the consideration of Australia’s international non-refoulement obligations weighs moderately this in favour of revocation of the cancellation decision.

The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration.

In this case the Tribunal considers that there is a high likelihood that the Applicant will reoffend in Australia. The Applicant has been given multiple opportunities to reform his behaviour and has failed to do so. The Applicant has a serious problem with alcohol abuse and this, in combination with mental health issues and an apparent propensity for violence, have contributed to the Applicant repeatedly committing serious acts of violence against members of the Australian community. In these circumstances the Tribunal considers that the primary considerations of the protection and expectations of the Australian community weigh heavily against setting aside the decision not to revoke the cancellation of the Applicants visa. However, this is a difficult decision because all of the Applicant’s known relatives reside in Australia, including six child half-siblings. Their interests weigh moderately in favour of revoking the cancellation decision. In addition, unless granted a visa, the Applicant will return to a poor, war torn country where he is likely to suffer hardship and where there is a real possibility that he will be harmed. These matters also weigh heavily in the Applicant’s favour. There is also a possibility, however low, that the Applicant will be inadvertently returned to South Sudan in breach of Australia’s non-refoulement obligations. This consideration weighs moderately in the Applicant’s favour.

After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.

The Tribunal understands that this decision is a harsh one for the Applicant. However, there is a point at which the Australian community can no longer tolerate repeated acts of violence against members of the Australian community by a non-citizen, notwithstanding the potential harm or hardship to the non-citizen or those who care for them which may result from the removal of the non-citizen from Australia. That point has been reached in this case.

8    For these reasons, the Tribunal affirmed the delegate’s decision not to revoke the visa cancellation. The Tribunal’s reasoning about non-refoulement is considered at [137]-[146] below.

The primary judge’s decision

9    The appellant sought judicial review of the Tribunal’s decision in this Court. Two grounds of review were pressed, the first relating to the Tribunal’s reasoning about the risk that Australia might breach its non-refoulement obligations in relation to the appellant, and the second relating to the way the Tribunal treated the evidence of the appellant’s psychiatrist. The primary judge did not accept either ground, and dismissed the application for judicial review with costs.

10    For the purposes of determining the appeal, it is necessary only to describe his Honour’s approach to the first ground of review. His Honour’s rejection of the second ground does not form part of the grounds of appeal in this Court.

11    As in this Court, on the first ground the appellant contended there was an inconsistency between the absolute terms of s 197C of the Migration Act and the executive policy in para 14 of Part C of Direction 79, which the Tribunal had applied.

12    Section 197C is set out at [40] below. On its face it provides that the existence of non-refoulement obligations to a person is “irrelevant” to the removal of a person, and the duty of an officer under s 198 of the Migration Act to remove a person “as soon as reasonably practicable” arises irrespective of whether there has been an assessment whether Australia owes a person such obligations. Yet, having found the appellant was owed non-refoulement obligations by Australia, notwithstanding the presence and apparent effect of s 197C, the Tribunal found there was only a “low risk” Australia would breach those obligations.

13    At [10]-[12], the primary judge correctly identified this as the finding of the Tribunal which the appellant put in issue on judicial review.

14    After setting out the parties’ arguments, which in substance are the same as those advanced on the appeal, the primary judge’s own reasoning is contained at [32]-[33] of his Honour’s reasons:

In my view, statements as to Ministerial intention were factual matters for the Tribunal to evaluate, and it made no material error by taking them into account. In particular, it made no material error by relying on the policy statement against refoulement in the Direction to conclude that the applicant faced a low risk of refoulement.

It follows that ground one fails.

The appeal

15    The sole ground of appeal concerns the primary judge’s finding at [32] of his Honour’s reasons, in relation to the first ground of review before his Honour. The ground is expressed as follows:

The learned primary judge erred by failing to find that the decision of the Second Respondent was affected by jurisdictional error when the Second Respondent reasoned that ‘there is only a low risk that Australia will breach its non-refoulement obligations’ in respect of the Appellant, the learned primary judge having:

a.    misconstrued ss 197C and 198 of the Migration Act 1958 (Cth);

b.    wrongly found that Direction No. 79 was evidence before the Second Respondent of a lawful policy position of the First Respondent.

16    At the hearing of the appeal, and after a number of questions raised by the Court, the parties were granted leave to file supplementary written submissions on:

(a)    the proper construction of ss 197C and 198 of the Migration Act; and

(b)    the extent to which para 14 of Direction No 79 is consistent with the proper construction of those provisions, as submitted.

The appellant’s primary submissions in summary

17    The appellant submits that he contended before the Tribunal that there was a real risk to him of significant harm in South Sudan due to “ethnic tensions” there, and due to “the civil war and humanitarian crisis in South Sudan more generally”. He submits that the Minister “positively argued” before the Tribunal that even if Australia owed non-refoulement obligations, the duty to remove the appellant only arose if it was reasonably practicable to remove him, and that there were “other possibilities” than removal, such as the grant of a visa under s 195A, a favourable exercise of discretion under s 48B, a residence determination under Division 7, Subdivision B of Part 2 of the Act or resettlement in a third country. Despite these submissions, the appellant contends no evidence was led by the Minister about the likelihood that any of these “possibilities” might eventuate.

18    In this context, the appellant submits the Tribunal misunderstood the effect of ss 197C and 198, which require his refoulement, and that it was

impermissible speculation to suggest that some other device might be used to avoid refoulement.

19    Added to this, he submitted:

Direction 79 was not evidence of any lawful policy position that Australia ‘will not remove’ (cf 14.1(2)) a person in the circumstance of the Appellant given the clear terms of ss 197C and 198.

20    The appellant submits the primary judge made the same error, contending further that

there was nothing to permissibly support the finding that there was any likelihood that the Minister would ‘exercise a discretion to prevent a breach of Australia’s non-refoulement obligations’, such that the risk of refoulement could not be described as ‘low’.

21    The appellant further submitted that the decision in XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 was not similar to the present situation, and the primary judge erred in treating it as if it was. In the alternative, the appellant contends XFKR is wrongly decided.

22    The materiality of the Tribunal’s alleged error was, as we understood the thrust of the appellant’s contentions, that if the Tribunal correctly understood the likelihood the appellant would be removed to Sudan, or South Sudan, sooner rather than later, there was a real possibility it would have given much closer consideration to the circumstances he would face there, and it would have been open to the Tribunal to find those risks outweighed the risk to the Australian community if his visa were restored.

The Minister’s primary submissions in summary

23    The Minister contends the Tribunal was correct to identify the passages it did from the decision of BDQ19 v Minister for Home Affairs [2019] FCA 1630; 167 ALD 38, because that decision correctly construed the terms of the predecessor Ministerial Direction to Direction 79, which was Direction 65, and correctly decided that, in the Minister’s submission:

a decision-maker could proceed on the basis that it was being told (validly in his Honour’s view) that a person owed non-refoulement obligations ‘will not be removed to a country where those obligations will be violated because Australia will, by other means legally available to it, adhere to its international obligations not to return him or her to that country’ (at [69]).

24    The Minister further submitted:

The Tribunal correctly stated the effect of those decisions, being that s 197C would require return only once any protection visa process was complete and any consideration of the exercise of Ministerial powers had taken place.

25    How, or whether, Australia would comply with its non-refoulement obligations were matters for the executive, as the Tribunal had observed. Decisions of this Court support the proposition that a decision maker should not unduly speculate about future decisions on protection visa applications and Ministerial intervention. The Minister refers here to Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[34]. The Minister also contends the decision in XFKR is applicable, and correct (we infer that the Minister’s reference to “XFXR” is a typographical error):

The salient point recognised in XFXR and which transposes comfortably to the present case, is that contemporary statements of executive policy – here directed at an intention to give effect to non-refoulement obligations – form part of the legitimate decision-making landscape engaged by s 501CA(4) (and its analogues) and if correctly understood, are capable of informing decisions made in that environment. The trial judge was correct to dismiss the appellant’s attempts to distinguish XFXR from the present case for the reasons that he did: [27]-[31].

The parties’ further submissions

The Minister

26    The Minister contended:

(a)    The effect of s 197C is that indefinite detention is no longer a legal consequence of visa refusal or visa cancellation because Australia has non-refoulement obligations in respect of the non-citizen.

(b)    Citing NATB v Minister for Immigration [2003] FCAFC 292; 133 FCR 506 at [53], the fact that removal would be in breach of Australia’s non-refoulement obligations does not prevent removal from being authorised and required under s 198. That is the effect of the majority analysis in AQM18 v Minister for Immigration [2019] FCAFC 27; 268 FCR 424.

(c)    Nevertheless, s 197C does not require removal of a person while the Minister is considering whether to exercise a non-compellable power, while an application for a protection visa is being determined.

(d)    The fact that events within (c) may result in “prolonged immigration detention” is not the immediate statutory or legal consequence of a non-revocation decision, therefore a decision maker exercising the power under s 501CA(4) of the Act is not required to take this prospect into account.

(e)    Notwithstanding that position, in the present case the Tribunal did in fact take the prospect of prolonged detention into account and gave it significant weight in favour of the appellant: see [302] of the Tribunal’s reasons.

(f)    Kerr J’s reasoning in BDQ19 (see below) in relation to para 14.1(2) of previous Direction 65 applies equally to para 14.1(2) of Direction 79, and informs a decision maker that the existence of a non-refoulement obligation does not preclude the non-revocation of the non-citizen’s visa, and a decision maker “need not speculate as to how those obligations will be met”. Paragraph 14.1(2) is consistent with the proper construction and operation of ss 197C and 198.

(g)    However to the extent that para 14.1(6) of the Direction suggests that the proper construction and operation of ss 197C and 198 allow for indefinite detention, such a statement is wrong. If the last sentence of para 14.1.6 is “excised” then there is no inconsistency between para 14 of Direction 79 and the terms of the Act. The Minister thus supports the approach taken in BDQ19 by Kerr J to this issue.

The appellant

27    The appellant contended that the Minister’s supplementary submissions failed to address two “crucial matters”, namely:

a.    whether ss 197C and 198 means that a person is to be removed regardless of the existence of non-refoulement obligations or whether there has been any assessment as to the existence of such obligations; and

b.    whether ss 197C and 198 together mean that the performance of the removal duty is subject to some opportunity for the person to apply for a protection visa.

28    The appellant submitted that the answer to the first question is “yes” and that “it follows that” the answer to the second question is “no”. The appellant argued that, reading s 198(2B) with s 197C has the “intractable” consequence that s 198(2B) requires the removal of a person whose visa has been mandatorily cancelled, and that cancellation not revoked, regardless of whether that person may be owed or has been determined to be owed non-refoulement obligations.

29    On the appellant’s construction, while a person subject to mandatory visa cancellation could make an application for a different visa, the duty in s 198(2B) to remove a person “as soon as reasonably practicable” does not include a requirement that the person be given the opportunity to apply for a visa. To understand s 198(2B) otherwise, as the appellant submits is the Minister’s contention, would bring the duty to remove in s 198(2B) out of conformity with ss 198(2) and 198(2A). Such an understanding would also render the period contemplated by the phrase “as soon as reasonably practicable” indeterminate, an outcome the appellant argued is inconsistent with the understanding in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 that that period must be capable of objective determination from time to time: at [29]. For reasons we explain below, we agree that “indeterminacy” of the length of detention is a consequence of this construction of ss 197C and 198. However, we do not accept the appellant’s contention that this has the result that this cannot be the correct construction of the legislative scheme.

30    The appellant contended that the Minister’s reliance on the decision in BDQ19 is answered by the facts in AJL20 v Commonwealth [2020] FCA 1305. We discuss both of these decisions below.

31    On the appellant’s approach, the last sentence of para 14.1(2) of Direction 79 (set out below at [49]) is in direct contradiction with the law, because “the direct ‘consequence of cancellation’ is refoulement”.

Resolution

32    Stepping back from the legal arguments for one moment, the curious feature of this appeal is that it is the appellant who is contending that if his visa cancellation is not revoked, the Migration Act requires him to be removed almost immediately from Australia to a place where he contends (and the Tribunal has found) he faces serious risks of harm. It is the Minister who is resisting that proposition and is insisting that despite non-revocation and all the findings against the appellant which have been made by the executive branch, an approach should be taken to review of the Tribunal’s decision-making which recognises the executive’s policy of adherence by Australia to its international non-refoulement obligations, while at the same time disclaiming the proposition that such a person can be indefinitely detained. These are the contortions produced by the application of the terms of s 197C and Direction 79 to the realities of the circumstances of individuals.

33    There was no debate between the parties on the appeal that the appellant made representations to the Minister’s delegate, and to the Tribunal, that “another reason” to revoke the visa cancellation was that a refusal to do so may place Australia in breach of its non-refoulement obligations under international law because s 198(2B), read with s 197C of the Migration Act, required his removal “as soon as reasonably practicable”, in circumstances where it was irrelevant to this requirement that Australia may have non-refoulement obligations in respect of the appellant.

34    Under the heading “Legal consequences of the decision”, the appellant’s legal representatives submitted to the Tribunal:

(a)    The Tribunal was required to take into consideration the legal consequences of its decision, citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1, and other authorities;

(b)    There is an inconsistency between para 10.1(2) of Direction 79 and s 197C since the former contemplates the prospect of indefinite detention and the latter appears to preclude it;

(c)    Citing the decision of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782, that those parts of the Direction are an incorrect statement of the law;

(d)    That therefore officers would be required to remove the appellant as soon as reasonably practicable, where the appellant accepted “reasonably practicable” could include giving him time to apply for a protection visa;

(e)    However the visa would likely be refused on character grounds, even if non-refoulement obligations were found to be owed;

(f)    The appellant might in any event be stateless (for reasons explained in the submissions but not relevant to the resolution of the appeal); and

(g)    Therefore the legal consequence of a decision not to revoke the visa cancellation is “likely to be refoulement or at least return to a country in which he faces a real risk of harm”.

35    For completeness, it appears the reference in the appellant’s submissions to the Tribunal to para 10.1(2) is erroneous. Para 10.1 appears in Part A of Direction 79, concerning discretionary visa cancellation. Revocation of cancellation is addressed in Part C. The terms of the paragraphs are, however, similar, and the difference is immaterial.

36    The submissions concluded, relevantly, at [176] with this contention:

The other considerations also weighing in [the appellant’s] favour, in particular Australia’s non-refoulement obligations and the ‘other’ types of harm which he would face if removed to South Sudan, together with his strong ties to the community, further demonstrate that the Tribunal ought to be satisfied that there is another reason why the cancellation decision should be revoked.

37    There was no submission made to the Tribunal of the kind to which we refer below; namely that an aspect of the possible, or likely, breach of Australia’s non-refoulement obligations by the removal of a person is a matter for a decision maker to weigh in terms of the effect it may have on Australia’s international reputation, as a nation State which takes its international obligations seriously. Instead, the submissions focussed (understandably) on the effect on the appellant of any such breach in terms of the likelihood he would suffer serious harm in South Sudan, in particular the consequences for him by reason of his mental health diagnoses.

Australia’s non-refoulement obligations

38    Relevantly, Australia’s “non-refoulement obligations” are to be found in art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); art 2 read with arts 6 and 7 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) and 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) (Refugees Convention).

39    Taking the obligation as expressed in the CAT as an example:

Article 3

1.    No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2.    For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The legislative provisions

40    Section 197C of the Migration Act provides:

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

41    Section 197C must be read and construed together with the primary duty imposed on an “officer” by s 198 of the Migration Act, the relevant parts of which, in the case of the appellant, provide:

(2B)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

Note:    The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

(3)    The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.

42    The inter-relationship between ss 197C and 198, and between the legislative provisions and the statement of policy contained in Direction 79 (or its predecessors), has been the subject of a number of decisions of this Court. The most relevant authorities to the parties’ arguments on this appeal are considered at [50]-[112] below.

Ministerial Direction 79

43    Direction 79 replaces Direction 65: see para 3 of Direction 79. Like its predecessor, it is made pursuant to s 499 of the Migration Act. By reason of the terms of s 499(2A) of the Act, and subject to questions of materiality, failure to understand what para 14.1 requires is likely to give rise to a decision maker exceeding her or his jurisdiction. See Dharma v Minister for Home Affairs [2020] FCA 550 at [7]; FTJ18 v Minister for Home Affairs [2019] FCA 1775 at [49].

44    After formalities, Direction 79 commences with a Preamble, which is described in para 5 as containing

the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

45    The Direction contains three substantive Parts, each directed at providing guidance to decision makers dealing with different visa consideration situations. Part A deals with discretionary cancellation of a visa. Part B deals with refusal of a visa. Part C deals with decisions whether to revoke mandatory cancellation of a visa. Part C is applicable to the appellant’s circumstances.

46    Relevantly, by para 7(b), a decision maker “must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”. Para 8(1) directs the decision maker to take into account the “the primary and other considerations relevant to the individual case”, advising decision makers at para 8(3)-(5) that:

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

47    Para 14 of Part C deals with “other considerations” for revocation requests. Para 14(1) provides:

(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.

48    Para 14.1 deals with the subject of international non-refoulement obligations. It explains what they are in para 14.1(1), which need not be set out.

49    Paragraphs 14.1(2)-14.1(6) of Direction 79 should be set out in full:

(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 s501CA 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.

Relevant authorities

50    In addition to AJL20, the principal authorities to which the parties referred are: DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576; BDQ19 and XFKR. To that list a number of additional authorities can be added. These are mentioned below.

51    We commence with AJL20 because it is the most recent of the decisions of single Judges of this Court, and encompasses discussion of some of the other cases.

AJL20

52    The applicant in this case was a citizen of Syria whose visa had been cancelled and who was detained under s 189 of the Migration Act. The Court was informed that the applicant in AJL20 was the same individual who was the applicant in DMH16, an earlier and frequently cited decision about the construction of s 197C in this Court. Bromberg J notes this fact at [97] of his decision. AJL20 was a person to whom it had been determined that Australia has protection and non-refoulement obligations. That determination had been made through an administrative process called an International Treaties Obligations Assessment (ITOA) by officers of the Department of Immigration and Border Protection. For the purposes of the proceeding before the Court, the Minister had accepted that determination. However, as Bromberg J described at [5]:

Despite that acceptance, the Minister has refused to grant the applicant a protection visa and, on or before 25 July 2019, the Minister declined to consider granting the applicant a visa under s 195A of the Act. It is accepted that by 26 July 2019, s 198(6) of the Act had been engaged and that from that time an officer of the Commonwealth was obliged to remove the applicant from Australia ‘as soon as reasonably practicable’.

53    Yet by 1 September 2020 the applicant had not in fact been removed. Therefore, and broadly, the proceeding concerned whether in these circumstances the applicant’s detention, even if initially lawful, continued to be lawful. The applicant’s contention (as recorded at [6]) was that his removal from Australia had

not been pursued or carried into effect as soon as reasonably practicable and it follows that the applicant’s detention since that time has not been for the purpose of his removal from Australia and unlawful.

54    The Commonwealth’s argument was summarised by his Honour at [7]:

The Commonwealth did not contest that since 26 July 2019 the purpose of the applicant’s detention has been his removal from Australia. The Commonwealth accepts that, from 26 July 2019, an officer of the Commonwealth was obliged by s 198 of the Act to remove the applicant from Australia as soon as reasonably practicable. The Commonwealth rejected that the duty to do so was a condition of the lawfulness of the applicant’s detention. The Commonwealth contended that s 196(1) of the Act rendered the applicant’s detention lawful “until” he is in fact removed from Australia irrespective of whether or not that removal is effectuated as soon as reasonably practicable. It contended that the applicant’s removal from Australia has been and is being effectuated as soon as reasonably practicable and, if that was not so, the only remedy available to the applicant is an order for mandamus requiring that the applicant be removed from Australia as soon as reasonably practicable.

55    Bromberg J rejected the Commonwealth’s argument and ordered the applicant’s release. At [10], his Honour summarised his conclusions, with our emphasis relevantly to the issues on this appeal:

In summary, I have accepted that the construction of the Act contended for the applicant is consistent with the preponderant weight of authority and should be accepted. I have held that since 26 July 2019, the removal of the applicant from Australia has not been undertaken or carried into effect as soon as reasonably practicable and that that was so principally because no steps at all have been taken to remove the applicant to Syria, the country of his nationality. Whilst that failure was based on a recognition of Australia’s obligation not to refoul the applicant to Syria, the terms of s 197C of the Act required that Australia’s non refoulement obligations in respect of the applicant be treated as irrelevant for the purpose of his removal from Australia as soon as reasonably practicable in accordance with s 198 of the Act. I have concluded that the applicant has, since 26 July 2019, been unlawfully detained by the Commonwealth and that an order directed to the Commonwealth should be made commanding it to release the applicant from detention forthwith.

56    At [123] his Honour had this to say about the evidence of the applicant’s removal being delayed by adherence to a departmental policy similar in substance to para 14.1(2) of Direction 79, and its interaction with s 197C:

There is therefore no error established by the Commonwealth which could serve to justify the inaction in question. That inaction was likely based on Commonwealth officers following Commonwealth policy. A policy of non-refoulement is morally justifiable. However, in relation to removal required by s 198 of the Act and in the light of s 197C, the pursuance of such a policy is not legally justifiable. As the applicant contended, by a submission to which the Commonwealth did not respond, the Commonwealth cannot act as though s 197C does not exist. If the policy was an obstacle to the applicant’s removal from Australia as soon as reasonably practicable, that obstacle was self-imposed by the Commonwealth, is contrary to the Act’s requirements, and cannot justify the inactivity in question.

57    At [126]-[128], his Honour concluded:

I would therefore conclude that, in the first period and in the context of the Act’s requirement that the applicant be removed from Australia as soon as reasonably practicable under s 198 irrespective of whether Australia has non-refoulement obligations in respect of him under s 197C, despite the availability of reasonably practicable step, no steps were taken to pursue the applicants removal to Syria, his country of nationality, and that, despite reasonably practicable steps being available to be taken in pursuit of the applicant’s removal to Lebanon, no such steps were taken.

Bearing in mind that a broad view of reasonableness may be taken, the failure to take any steps when reasonable and practicable steps for effectuating a detainee’s removal from Australia were available, serves to demonstrate that removal from Australia was not undertaken or carried into effect as soon as reasonably practicable.

It follows that, in the first period, the removal of the applicant from Australia was not undertaken or carried into effect as soon as reasonably practicable, that there was therefore a departure from the requisite removal purpose for the applicant’s detention throughout the course of that period and that, as a consequence, the applicant’s detention by the Commonwealth was unlawful during that period.

58    And at [170]:

There may well be room for debate as to what steps should be reasonably pursued in an endeavour to remove a detainee from Australia as soon as reasonably practicable. Accepting that a broad view should be taken about the reasonableness of a course of action adopted to pursue such a removal, I am nevertheless unable to conclude that, in the circumstances relevant to the applicant’s prospective removal from Australia since 26 July 2019 as demonstrated by the evidence, it may be said that the pursuance of a course for the applicant’s removal from Australia which excluded Syria as a prospective receiving country was a reasonable course for undertaking or carrying into effect the applicant’s removal from Australia as soon as reasonably practicable. Of course, in arriving at that conclusion, I have put aside, as the Commonwealth was required by the Act to do, the question of whether Australia has non-refoulement obligations in respect of the applicant.

59    The focus of the Court’s fact finding in AJL20 was on the applicant’s detention since July 2019, and the nature and quality of the steps taken during that time to attempt to remove him. It was in this context that his Honour did not accept that the Commonwealth’s delay and “inaction” could be justified, in the face of s 197C, simply by reference to an executive policy against refoulement. His Honour made no finding to contradict the propositions in the authorities to which we refer below that the terms of s 198 allow the executive some time to pursue alternative options to refoulement. Rather his Honour’s reasoning focussed on whether the Commonwealth’s failure to remove the applicant to either Syria or Lebanon (where he had rights to enter and reside), after a substantial period of time and in light of the evidence before the Court which his Honour described as “inaction”, could be reconciled with the terms of s 197C. His Honour concluded it could not, and accepted the applicant’s contention that purpose of his detention was no longer one which rendered his detention lawful.

60    Thus, the circumstances in AJL20, and the consideration given to both s 197C and to the executive’s policy of non-refoulement, were quite different from those in the present appeal.

61    An appeal from Bromberg J’s decision was filed by the Minister. Subsequently, the Attorney-General exercised his power under s 40 of the Judiciary Act 1903 (Cth) to apply to remove the appeal to the High Court. At the time of the hearing of the present appeal, the High Court had not heard the appeal in AJL20. As submitted by the appellant, CZCV v Commonwealth [2020] FCA 1864 raised similar issues to AJL20. In that case, however, after referring to AJL20 in summarising the applicant’s submissions, Rangiah J held that the Court had no power to order the release of the applicant “on an interlocutory basis where he is an unlawful non-citizen”: see CZCV at [18].

62    The remaining cases which we consider do not deal with the question of lawfulness of detention, and the role of s 197C in that question. Rather they deal more directly with the interaction between s 197C and executive policy as reflected in Ministerial Directions such as Direction 79, in the context of the refusal or cancellation of visas.

DMH16

63    In DMH16, the applicant challenged the Minister’s refusal to grant him a protection visa. One of the grounds for this challenge was that the Minister had misunderstood the effect of the refusal of the protection visa, demonstrated by the Minister considering the applicant might be detained indefinitely. That was said to be a misunderstanding because of the operation of s 197C, which required removal of the applicant and therefore avoided the prospect of any indefinite detention. North J accepted that argument, and held (at [26]):

The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. 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 Minster 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.

64    It is also appropriate to set out his Honour’s response to the Minister’s contention that if there was error, it was not material, because his Honour’s response indicates the view he took of the proper construction of s 197C, and its effect on the removal duties in s 198. His Honour stated (at [30]):

Had the Minister properly understood the consequence of the refusal of the protection visa at the time he made the decision there is a possibility that he would have granted the protection visa in order to avoid the consequence that the applicant would be returned to Syria in contravention of Australia’s non-refoulement obligations in respect of the applicant.

TCWY

65    TCWY v Minister for Immigration and Border Protection [2017] FCA 1276 concerned a challenge to the Tribunal’s decision to affirm the cancellation of the applicant’s visa. Included in the amended grounds of appeal for which the Court granted leave was a ground alleging that the predecessor Direction to Direction 79, Direction 65, did not “reflect the applicable law” because it did not “give consideration to the legal consequences of s 197C”, and parts of the Direction were “inconsistent with the applicable law”.

66    Robertson J rejected the amended ground. His Honour found (at [55]-[56]) that Direction 65 was not exhaustive, and did not “purport to prevent the decision-maker from taking into account, where relevant, s 197C and s 198”. The facts before him being that the applicant had been found not to engage Australia’s non-refoulement obligations, Robertson J expressly stated at [56]:

I do not concern myself presently with cases where a non-refoulement obligation exists.

67    However, at [71], Robertson J explained that there may be (and were in the case before his Honour) other possibilities about why a person might not be removed after she or he has exhausted the visa process. In TCWY, the factual possibility was that Iran might refuse to accept the appellant or issues such as statelessness may arise. Robertson J found s 197C is not directed at possibilities of that nature.

68    That is an important point for the present arguments. Once challenges to a visa refusal or cancellation are exhausted, the course that a particular individual’s case might take will be highly fact-dependent. As TCWY and other authorities in this Court illustrate, being a national of some States will not guarantee that State will accept a person Australia seeks to remove. In turn, such circumstances will contribute to whether or not removal is “reasonably practicable”. In other words, the operation of s 197C does not guarantee removal will occur immediately. It does not obviate the responsibility of a decision maker, in considering whether to revoke a visa cancellation, to engage with the legal and practical realities of the act of the removal. The nature of those realities may result in a person suffering further deprivation of liberty for an indefinite period of time.

FRH18

69    FRH18 v Minister for Home Affairs [2018] FCA 1769; 266 FCR 413 concerned the exercise of the personal “override” power conferred on the Minister by s 501A(2) of the Migration Act to cancel a person’s visa if she or he is satisfied that cancellation is in the national interest. The long history of the applicant’s visa status in Australia is summarised by Rares J at [1]-[5] of his Honour’s reasons for judgment. It was common ground the applicant did not pass the character test in s 501(6) but a delegate had decided not to refuse to grant the applicant a partner visa under s 501(1) of the Migration Act. The Minister exercised his personal power under s 501A(2) to set that decision aside and refused the grant of a visa to the applicant. In 2016 and prior to the Minister’s personal exercise of power, a delegate of the Minister had conducted an ITOA and found the applicant’s circumstances engaged Australia’s non-refoulement obligations.

70    At [7], Rares J summarised the issues in the judicial review:

The applicant challenged the Minister’s decision to cancel his partner visa on two grounds, namely that the Minister had failed to give proper, genuine and realistic consideration to:

(a)    Australia’s non-refoulement obligations owed to, or in respect of, the applicant; and

(b)    a mandatory relevant consideration for the exercise of his power under s 501A(2), namely, the real possibility that, as a consequence of cancelling the partner visa, the applicant would be held in immigration detention indefinitely.

71    His Honour rejected an argument made on behalf of the Minister that the Minister did not have to consider matters personal to the visa holder in the exercise of his power under s 501A(2): see [46]. His Honour went on to find (at [49]):

In the applicant’s case, the Minister’s reasons revealed what he understood that he was deciding and why he had decided to delay considering how Australia’s non-refoulement obligations could be addressed. However wide the scope of the Minister’s discretion to consider what is in the national interest, the question whether to make a decision that would have the prima facie effect of putting Australia in breach of its non-refoulement obligations owed in public law to other nations party to treaties with Australia whence those obligations derive, suggests that this factor must be considered (and not put to one side) by the Minister in exercising the power under s 501A(2) (cf: Graham 347 ALR at 363-364 [57], [59]).

72    As to the effect of s 197C, and also as to the realistic options to avoid the consequences of that provision, Rares J held at [50]-[51]:

Moreover, the presence of s 197C made it necessary for the Minister to consider the existence and impact of Australia’s non-refoulement obligations in relation to the applicant at the time the Minister was considering the cancellation of the applicant’s visa under s 501A(2). The Minister was bound to have regard to Australia’s non-refoulement obligations because of the subject-matter, scope and purpose of the discretion that s 501A(2) confers on the Minister to cancel a visa. That is because, if the decision is adverse for the visa holder, the exercise of the discretion will cause that person detriment. The Minister was bound to evaluate the existing non-refoulement obligations reasonably in deciding whether to cancel the applicant’s partner visa, including if it would be possible to meet those obligations in the way he suggested in [106] of his reasons, in light of a finding that any risk of the applicant reoffending required the cancellation of his visa.

No reasonable person in the Minister’s position could have found any potential for using his discretion to grant another visa under s 195A or his other non-compellable powers as an “alternative management option” to meet Australia’s non-refoulement obligations would remain available to him if, as he found, the national interest required cancellation of the partner visa because of the risk of a mere possibility that the applicant would reoffend: Graham 347 ALR at 363-364 [57], [59].

73    His Honour also found:

(a)    Section 197C “precludes an officer from having regard to Australia’s non-refoulement obligations in complying with his or her duty to remove an unlawful non-citizen as soon as reasonably practicable in accordance with s 198(2A)” (at [55]);

(b)    Once “the Minister cancelled the applicant’s visa, s 197C would entail that the applicant be removed to Pakistan as soon as reasonably practicable” (at [57]);

(c)    Such a removal would occur unless the Minister “continued the applicant’s detention solely for the purpose of considering the exercise of his non-compellable powers to grant other visas or to make a residence determination under ss 48B, 195A or 197AB” (at [57]); and

(d)    There was no “likelihood that the Minister would use the ‘alternative management options’ to grant a visa to, or make a residence determination for, the applicant”, given the Minister’s existing views, as revealed in his reasons for decision (at [57]).

74    In this case, the applicant had earlier been refused a protection visa so he had no right to apply for another one, hence Rares J’s reference to s 48B and the non-compellable discretion to permit a further protection visa application. Accordingly, Rares J concluded at [61] that the Minister had no power to hold the applicant in immigration detention “indefinitely”, referring to DMH16 at [26]. His Honour did not expand on what consequence, if any, flowed from the lack of power.

AQM18 (at first instance and in the Full Court)

75    Like FRH18, this proceeding concerned the review of a decision by the Minister to exercise the personal “override” power in s 501A(2) of the Migration Act, to set aside a favourable decision of the Tribunal and to refuse to grant the appellant a visa; in this case, a protection visa. The primary judge had upheld a contention that the Minister erroneously understood the appellant would not be removed under s 198 of the Act in breach of Australia’s non-refoulement obligations: AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; 162 ALD 449 at [82]. The primary judge had adopted the construction of ss 197C and 198 set out by North J in DHM16. At [81], the primary judge said:

It was not submitted on behalf of the Minister in the present case that DMH16 was wrongly decided or that the above passage does not accurately describe the effect of ss 198 and 197C. Counsel for the Minister accepted that: the effect of s 197C is that international non-refoulement obligations are no longer relevant to the obligation to remove a person under s 198; and the consequence is that, subject to the Minister considering alternative management options such as s 195A, the person must be removed as soon as reasonably practicable notwithstanding that Australia may have non-refoulement obligations in respect of the person (T66).

76    The primary judge’s conclusion at [82] proceeded from his Honour’s understanding of the meaning of the Minister’s reasons. His Honour concluded at [82] (with our emphasis):

The sentence is expressed in definite terms – Australia “will” continue to meet its international non-refoulement obligations. In other words, the sentence expresses an understanding that non-citizens would not be refouled under s 198 in breach of Australia’s international non-refoulement obligations. However, as outlined above, the true position was that, subject to consideration of alternative management options such as s 195A, a person in the position of the applicant would be removed as soon as practicable, irrespective of whether Australia had international non-refoulement obligations in respect of the person.

77    Ultimately, the primary judge did not uphold the judicial review application, so the applicant appealed, and the Minister cross-appealed in respect of the primary judge’s finding at [82]. Relevantly for present purposes, the Full Court agreed that the cross appeal should be upheld.

78    In their joint reasons, Besanko and Thawley JJ took a different view to the primary judge about the correct understanding of the Minister’s reasons, and found that the Minister understood that the consequence of his decision was that the appellant would be removed from Australia: see [17]. Their Honours found (at [21]) that each statement in two of the impugned paragraphs of the Minister’s reasons was a “correct statement of fact”. Those two paragraphs of the Minister’s reasons stated:

86.    I am aware that the statutory consequence of a decision to refuse [the appellant]’s application for a Protection visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, detention under s189. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

87.    I am also mindful that at the time of the insertion of s197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s198. These mechanisms included the use of the Minister’s personal non-compellable powers in the Act, including the power in s195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s195A in order to meet Australia’s international non-refoulement obligations is pertinent to [the appellant]’s case and this potential is encompassed in my consideration of alternative management options in relation to her.

79    Their Honours referred to other passages of the Minister’s reasons which supported the conclusion they had reached. They then further found (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-refoulment obligations.

(Emphasis added.)

80    There is a tension between this approach and the terms of para 14.1(6) of Direction 79, which state that Australia “will not return a person” to a country where that would amount to refoulement, and a consequence of that policy may be indefinite detention. The Minister is not bound by Direction 79 when exercising personal powers, but it would be surprising, to say the least, for the Minister to be departing from what is recognised as Australia’s position in promulgated executive policy.

81    In AQM18 at [28], Besanko and Thawley JJ characterised the Minister’s reasoning process in the following way:

[T]he reason for the delay in making the decision under s 501A(2) substantially revolved around a desire to find a solution to deal with the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576. In that case, North ACJ held that the Minister had misunderstood the operation of s 197C. The Minister’s actions in the present case were aimed at refouling the appellant notwithstanding that the First Tribunal had concluded that Australia owed the appellant non-refoulement obligations and to do so in a manner which made it clear that he understood the operation of s 197C.

82    The third member of the Full Court, White J, also found the primary judge had erred in finding the Minister had misunderstood the combined effect of ss 197C and 198. At [119], White J said:

In this context, the Minister’s reasons are to be understood as indicating his appreciation that the effect of his refusal to grant a Protection visa would be that the appellant would become subject to removal from Australia despite the non refoulement obligations and even though the Government had previously stated that Australia would comply with its non refoulement obligations either by the grant of a Protection visa or by the exercise of the Minister’s non-compellable powers. When read with the Minister’s conclusion in [101], I consider that the Minister should be understood as concluding that, despite Australia’s international non-refoulement obligations and despite the Government’s previous commitment, a Protection visa should not be granted to the appellant.

83    However, White J went on to find that the Minister’s reasons appeared to disclose that despite deciding to refuse the appellant a protection visa in such circumstances, the Minister had not completed his consideration of alternative options for the appellant. His Honour explained at [129] one reason why he drew that conclusion:

Another consideration is that the Minister’s reasons and the associated documents do not include any express statement that, despite Australia’s international non-refoulement obligations and despite the apparent commitment given to the Parliament in 2014, the appellant should be refouled to [redacted] (this being the only available course in the absence of an alternative management option). A conclusion to that effect, while open to the Minister, is obviously a serious one having regard to Australia’s international reputation, the commitment the Minister had given to the Parliament on behalf of the Government, and the impact on the appellant. Had the Minister intended that that be the result, it is natural to expect that he would have said so in express terms. The fact that he has not done so, taken in conjunction with the two matters just mentioned, adds to the impression that the Minister has not concluded his consideration of the appellant’s circumstances.

84    With respect, the approach taken by White J does reconcile the intent of promulgated executive policy and the Minister’s refusal of a protection visa despite that apparent executive policy. His Honour does so by drawing on the fact that other options may be available to avoid refoulement, besides the grant of a protection visa. We respectfully agree, as we explain below. On any view however, AQM18 confirms a construction of ss 197C and 198 that appears consistent with DHM16, BDQ19 and AJL20. White J’s reasons also indirectly assist in reconciling Direction 79 with the operation of ss 197C and 198.

85    Rares J’s reasoning in FRH18 was distinguished on the facts in AQM18. Besanko and Thawley JJ said at [29]:

After the hearing of this appeal, the decision of the primary judge was referred to by Rares J in FRH18 v Minister for Home Affairs [2018] FCA 1769. Rares J concluded on the facts of the case before him (like the primary judge in this case) that the Minister had misunderstood, and therefore failed to take into account, the legal consequences of his decision. For the reasons set out earlier, we are of the view that the Minister in this case did not misunderstand the legal consequences of his decision. If he had, then the primary judge’s decision would have been correct. It follows that FRH18 is of no particular assistance.

86    However the approach taken by Rares J on the law is consistent with the other authorities to which we have referred.

BDQ19

87    Like this appeal, BDQ19 concerned a decision of the Tribunal not to revoke a visa cancellation. One difference was that there was no need for the Tribunal to decide if Australia had non-refoulement obligations in respect of BDQ19, because several years prior to the Tribunal decision the federal executive had conducted an ITOA and found that BDQ19 had a well-founded fear of persecution for the purposes of art 1A of the Refugees Convention and was at real risk of suffering significant harm were he to be returned to Afghanistan. At the time of its decision, the Tribunal was bound to conduct its review in accordance with Direction 65. The terms of paras 14.1(2) and 14.1(6) of Direction 65 were relevantly the same as those in Direction 79. The Tribunal “omitted” them from its consideration, based on an earlier decision of a Deputy President of the Tribunal, which had found those clauses contradicted the operation of s 197C, relying on DMH16. The Tribunal in BDQ19 agreed with the view taken by the earlier Tribunal and took the same approach. The applicant challenged that approach before this Court.

88    At [35], Kerr J found that the alleged inconsistency between para 14 and s 197C was actually between the Act and

an express premise stated by the Minister which then forms the foundation upon which a number of the terms of Ministerial Direction No 65 binding on the decision maker are stated.

89    His Honour then held (at [47]):

Both the Minister, represented by Mr Brown of counsel, and BDQ19, represented by Mr Ciolek of counsel, agree, and the Court accepts, that having regard to the terms of s 197C of the Migration Act, the statement in cl 14.1(6) of Ministerial Direction No 65 that refers to the operation of ss 189 and 196 as permitting the indefinite detention of an unlawful non-citizen to whom non-refoulement obligations are owed is wrong in law. That statement is inconsistent with the terms of the Act where the conditions of s 198(6)(a)–(d) have been met: the circumstances of the present case, assuming the Tribunal’s decision is not set aside.

90    His Honour later concluded (at [67]) that the part of para 14.1(6) concerning indefinite detention must be severed from the remainder of the Direction by reason of that inconsistency.

91    His Honour described the approach taken by the previous Tribunal member to the equivalent to para 14.1(2) and found (at [57]) that this clause was not inconsistent with s 197C, and was not “wrong in law”, contrary to the decision of the previous Tribunal, and therefore the previous Tribunal (and the Tribunal in the case before his Honour) erred in “omitting” or severing the equivalent clause to para 14.1(2). His Honour treated the statement in para 14.1(2) as a statement of executive policy. At [68]-[69]:

To construe the relevant clauses in that way leaves the decision maker to proceed on the basis 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. It is a direction to the decision maker to proceed in that manner because Australia ultimately will not refoule such a person.

I reject Mr Ciolek’s submission that such a reading places a decision maker in a position where he or she is subject to inconsistent direction. On the reading the Court gives to Ministerial Direction No 65 the decision maker is simply made aware that for so long as the subject of a visa revocation decision remains owed non-refoulement obligations by Australia he or she will not be removed to a country where those obligations will be violated because Australia will, by other means legally available to it, adhere to its international obligations not to return him or her to that country.

92    His Honour at [74] found that where a person’s visa cancellation was not revoked, but that person is someone to whom non-refoulement obligations are owed

the decision maker need not speculate as to how those obligations will be met. It is uncontentious that there are available legal means as can secure that outcome. The unavailability of indefinite detention as one of those means, which the Minister by his counsel accepts is the law, does not alter that position.

93    This conclusion appears to be sourced in his Honour’s view of the second sentence in para 14.1(2) as a statement of general executive policy. No party made specific submissions about what his Honour should be understood to be saying in the last sentence of this extract, however it would seem to flow from his Honour’s view of the role of s 197C read with s 198, being akin to that of North J in DHM16. His Honour accepted that “available legal means” to avoid the non-refoulement did not include or extend to indefinite detention.

94    With respect, and putting to one side the reasoning and circumstances in AJL20 (which was decided well after BDQ19 and has a quite different legal foundation), we are uncertain why it is said (including by the Minister on the current appeal) that indefinite detention is not “available”, in light of reasoning of a majority of the High Court in Al Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [33]-[35], [48] (per McHugh J), [267]-[268] (per Hayne J); Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at [124]-[126]; and the reasoning of the Full Court in ASP15 v Commonwealth of Australia [2016] FCAFC 145; 248 FCR 372 at [32]. That is particularly so when, as noted in DQM18 at [109] and in TCWY at [71], the question of refoulement may not be the only reason a person cannot be removed relatively quickly after the exhaustion of all visa processes. As we explain below, it may depend on what is meant by the term “indefinite” in the phrase “indefinite detention”.

CWGF

95    In CWGF v Minister for Home Affairs [2019] FCA 1802, Gleeson J was dealing with a person whose protection visa had been cancelled, so there was no right to apply for a further protection visa. Her Honour applied DMH16, and a number of other cases which had followed it (NKWF v Minister for Home Affairs [2018] FCA 409 at [41]; BKS18 v Minister for Home Affairs [2018] FCA 1731 at [98]; DGBK v Minister for Home Affairs [2019] FCA 1479 at [23], and HVLC v Minister for Home Affairs [2019] FCA 616 at [23]). Relying on the latter case, Gleeson J found that “indefinite detention” referred to detention limited only by the time taken for the Minister to consider “alternative management options” or until removal is “reasonably practicable”. Her Honour appeared to conclude this was a result of the operation of s 197C on the duties in s 198. Her Honour’s approach is in substance one with which we respectfully agree, as we explain below.

96    The contention of the applicant was that the Tribunal had failed to give realistic consideration to the legal consequences for the applicant of a refusal to revoke the cancellation of his visa; namely possible removal to Iran or indefinite detention. Her Honour upheld the argument, finding at [37]-[39]:

However, the Tribunal did not squarely identify the legal consequence of its decision that the applicant would be required to be removed ‘as soon as reasonably practicable’. Instead, the Tribunal found that the applicant would only be removed ‘if it is reasonably practical to do so’. The Tribunal’s reasons do not address the implications of this finding in relation to Australia’s non-refoulement obligations; they do not address the meaning of the phrase ‘as soon as reasonably practicable’ or what practical considerations might affect whether or not it would become ‘reasonably practicable’ to remove the applicant. In particular, the Tribunal’s reasons do not address the applicant’s submission, recorded at [95] of its decision record, that the Minister’s plans for compliance with the duty to remove were unclear.

Although the Tribunal refers (at [97]) to the aim of effecting removals “in a timely manner”, the decision record does not reveal how this aim affected its consideration of the legal consequence of its decision.

Although the Tribunal implicitly contemplates at [100] and [102] that the applicant might be returned to Iran in breach of Australia’s non-refoulement obligations as a consequence of its decision, its decision record does not directly refer to that potential breach or consider its significance (generally or in relation to the applicant specifically), referring only to the “existence of the non-refoulement obligation” and to the fact that the applicant is a person “to whom Australia has non-refoulement obligations”.

XFKR (Full Court)

97    Relevantly to the issues in the present appeal, the Full Court in XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167 upheld the analysis of the primary judge (Wheelahan J) in relation to an argument that the Tribunal had “misunderstood the course of decision-making” under the Migration Act by considering three possibilities if the visa cancellation was not revoked – removal, indefinite detention and the prospect that the appellant might be granted a visa. Both the primary judge and the Full Court found there was no error in the Tribunal considering those to be the three possibilities.

98    In XFKR, the Tribunal had also found that Australia was likely to owe the appellant non-refoulement obligations, in respect of Myanmar. The Full Court agreed with the summary by the primary judge of the approach the Tribunal had taken, and agreed it was not erroneous. It is appropriate to reproduce the primary judge’s summary of the Tribunal’s approach (from [45] of the primary judge’s reasons):

The Tribunal found at [117] that any concern that arose in relation to the deportation of the applicant if the decision to cancel his visa was not revoked was minimised by a clear commitment from the Australian government not to refoule anyone who is owed protection once that need for protection is properly assessed. The Tribunal relied on four matters in support of this finding –

(1)    the Tribunal referred at [109] of its written statement to Direction No 75 (see [34] above), and its requirement that any protection claims are to be addressed first;

(2)    the following statements in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which related to the addition of s 197C of the Act –

1132.    The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.

...

1144.    The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so... In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.

(3)    a passage in the applicant’s statement of facts, issues and contentions before the Tribunal, which referred to one of the principles in Direction No 75 (see [33] above) –

Section 197C notwithstanding, the Ministerial Direction stipulates in terms 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’, a commitment that is also reflected in the Explanatory Memorandum relating to the enactment of s 197C itself.

(4)    confirmation by counsel for the Minister in oral submissions that it was not the Minister’s intention to breach Australia’s treaty obligations and to refoule someone in circumstances where they have been identified as being at risk of harm if returned to their country of origin.

99     The Full Court found at [67]:

The primary judge was correct to find at [93] of the primary judgment that there was no material error by the Tribunal in finding, at [141] of the Tribunal’s Reasons, that any risk of harm to the appellant, if he was deported, was minimised by the fact that he could apply for a protection visa, and would not be refouled if he was found to be owed protection. As the primary judge correctly identified, the Tribunal’s Reasons at [141] are fairly to be understood as picking up its earlier path of reasoning at [122]-[129]. As the primary judge went on to consider, the risk of harm to which the Tribunal referred was considered by the Tribunal for the purposes of evaluating the extent of impediments if the appellant was removed to Myanmar in addition to the consideration of non-refoulement obligations. As to that risk of harm, the primary judge identified that the Tribunal accepted that non-refoulement obligations were owed. The Tribunal did not state that the risk would be eliminated by the fact that the appellant could apply for a protection visa, but only that it would be minimised.

100    There is no reference in either the primary judge’s reasons or the reasons of the Full Court to the relationship between s 197C and the removal duties in s 198, nor the proper construction of those provisions. Nor was there any consideration of the lawfulness of the executive policy to which both the primary judge and the Full Court referred. Rather that executive policy was accepted, or assumed, to operate compatibly within the legislative scheme as it exists, including s 197C: see also DFTD v Minister for Home Affairs [2020] FCAFC 207 on appeal from DFDT v Minister for Home Affairs [2020] FCA 859.

MNLR (Full Court)

101    Like this appeal and BDQ19, MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 related to a decision of the Tribunal not to revoke a visa cancellation decision. In the Tribunal, the appellant claimed that there was a real chance that he would suffer serious harm if returned to Iraq on account of his membership of a religious minority. The appellant submitted that “the fact that returning [him] to Iraq would breach Australia’s non refoulement obligations is a matter which weighs heavily in favour of revocation”; and 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”: MNLR at [15]-[16]. 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 at [20]. The Tribunal also found that the appellant would not be detained indefinitely because, if he were not granted a protection visa or a visa pursuant to s 195A, by reason of s 198 of the Migration Act, he would be returned to Iraq: MNLR at [22]. Perram, Wigney and SC Derrington JJ upheld the decision of the primary judge (Markovic J). Relevantly here, their Honours rejected the appellant’s contention that the Tribunal failed to take into account the prospect of indefinite detention: at [34] and [137]. SC Derrington J (Perram J agreeing) relied on DMH15 in support of the proposition, which her Honour stated at [157], that:

In reaching its conclusion that his detention would not be indefinite … 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 as assessment, according to law, of Australia’s non-refoulement obligations.

102    Her Honour went on to observe at [158] that AQM18 did not cast any doubt on the correctness of DMH15, adding at [159]:

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.

…

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]).

103    In separate reasons, Wigney J also held that it was open to the Tribunal to conclude that the appellant would be returned to Iraq if he were not granted another visa and thus he would not be subject to indefinite detention. His Honour held that the Tribunal was not required to comply with cl 14.1(2) or (6) of Direction No 79 “to the extent 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 obligation”: MNLR at [108], [114].

104    In addressing this part of the appellant’s case, Wigney J also considered the notion of “indefinite detention”, observing at [93]-[94]:

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 [v Minister for Home Affairs [2020] FCA 1135] 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.

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).

105    His Honour did not, however, consider that the issue of “indefinite detention” arose in this case as the appellant’s representations to the Tribunal did not include any substantive claim that it would not be reasonably practicable to return the appellant to Iraq in the foreseeable future: MNLR at [95]. Rather, so his Honour held, the appellant’s submission that the non-revocation of his visa cancellation would lead to indefinite detention was said to be due entirely to the fact removal would involve a breach of Australia’s international non-refoulement obligations (and it was open for the Tribunal to reject this submission on the basis of ss 197C and 198: MNLR at [95]-[97].

106    For completeness, it should be noted that s 197C was, indirectly, considered as part of an appeal by the High Court in 2020: see Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194. However, nothing in that decision bears on the issue on this appeal.

Conclusion on the authorities

107    The approach adopted in the decisions to date is that after the final conclusion of any visa refusal or cancellation process, ss 197C and 198 do not preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia (or other options such as admission to a safe third country). Nevertheless, the Court has also consistently held that the insertion of s 197C into the legislative scheme clarifies Parliament’s intention that a person should not be detained beyond the time required for any such genuine consideration, and should instead be removed from Australia. That is the case even if removal is to a country where there are serious risks of harm to that person, whether expressed in the terms of the non-refoulement provisions of the Refugees Convention, or of the CAT or the ICCPR.

108    This would appear to be why some of the authorities go as far as to contend that there is no longer any basis in the legislative scheme of the Migration Act for the “indefinite detention” of an individual. As we explain, if that is the logical consequence of some of the reasoning, in our respectful opinion the situation may not be quite as clear cut as might be thought, and indeed this approach is not consistent with the authorities set out in [94] above. Rather, much may depend on the particular difficulties in removing a particular individual, as well as what is meant by “indefinite” detention. Apart from Wigney J’s discussion in MNLR to which reference has been made, some of the discussion in the other authorities may indicate that the term “indefinite” was there understood as something akin to “permanent”. As we explain below, we do not see the concept as that absolute.

109    Whether or not s 197C is being acted on in practice is a matter upon which there was no evidence before the Tribunal in the present case. Certainly it would appear that Bromberg J in AJL20 formed the view the executive was not acting on the now consistently promulgated construction of ss 197C and 198, but rather was continuing to detain the applicant beyond a point in time at which any lawful purpose could be said to be operating. In the subsequent decision in CZCV, the Commonwealth accepted that

the applicant has demonstrated a prima facie case that the respondent has not complied with its obligation under s 198 to remove the applicant from Australia as soon as reasonably practicable.

This concession is consistent with the approach taken by Bromberg J in AJL20.

110    It is important to bear in mind that AJL20 was a case about the lawfulness of an individual’s detention, the lawful purpose for the detention having allegedly ceased. Section 197C is relevant to that analysis insofar as it informs the Court’s views about the purpose argument.

111    In contrast, the remainder of the authorities discussed above deal with how the operation and effect of s 197C may affect an earlier stage of the process resolving a person’s migration status in Australia; namely, the executive’s consideration of whether to grant or refuse a visa, or revoke a visa cancellation. In those circumstances, the existence of s 197C and any executive policy about its operation may be relevant considerations, but the application of executive policy to the individual concerned is still a matter for the future, and the visa decision maker must engage with the range of possible executive actions to which a person may be subject if a visa is refused or remains cancelled.

112    Despite the considerable number of authorities discussed above, it is necessary to say a little more about the operation of ss 197C and 198 in relation to visa decision making such as that by the Tribunal in this case.

The operation of ss 197C and 198 in relation to visa decision making

113    As both parties accepted, ss 197C and 198 do not preclude the continued detention of a person while the Minister considers the exercise of the personal powers conferred by ss 48B, 195A or 417 of the Act: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180. In SZSSJ at [16] the Court said:

Other standard departmental instructions set out in the Procedures Advice Manual concern removal of unlawful non-citizens in immigration detention. One of those instructions is that a person who is the subject of an ongoing ITOA is not to be considered available for removal from Australia until the ITOA process is complete unless the person requests removal. No party to either appeal suggests that s 197C prevents an officer from giving effect to that instruction. For the purposes of the appeals, no further consideration need be given to the operation of that section.

114    See also the Full Court’s decision on this point: SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1 at [48] and [52].

115    It is important to note that the duties in s 198 are imposed on an “officer”, a term of wide definition by reason of s 5 of the Migration Act. In contrast, the proposition in SZSSJ is directed to either Ministerial statutory powers, or other executive powers. These differences in the repositories of the powers and obligations should be read as allowing the executive to, in effect, communicate to an officer that the time has not yet come to perform the duties imposed by s 198 unless and until the executive has considered other available options (statutory and non-statutory), in order that it might adhere to its non-refoulement obligations in relation to a person. An individual officer responsible for a person’s detention may not be able to postpone removal in that way because of the terms of s 197C, but the nature of the removal power and its context suggest she or he may be given directions about, amongst other matters, the time for the performance of that duty: see, generally, CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37]-[38], [130]-[131], [222], [289]-[293], [361] and [423]. The use of the statutory phrase “as soon as reasonably practicable” in s 198 is to be understood as allowing for the duties in s 198 to remove a person to be performed in a way which accommodates other aspects of the statutory scheme of the Migration Act, and – for that matter – other relevant and non-statutory exercises of executive power, such as inquiries about whether there is a third country which may be willing to accept a person removed from Australia, or negotiations about an assertion of statelessness, or a denial of nationality by a putative receiving state.

116    However, the composite statutory phrase in s 198 has two aspects – “as soon as” and “reasonably practicable”, both of which indicate that the executive is not afforded unlimited time to consider alternative options but rather is to act promptly, and is obliged to act reasonably in the way it considers those alternative options. See Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [35]; SZSSJ (FC) at [48]-[52] and Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 at [28].

117    In NATB at [42] the Full Court said of the removal duty in s 198(6):

Once the conditions specified in paras (a), (b), (c) and (d) of subs (6) are satisfied, the duty to remove as soon as reasonably practicable arises. However, unless removal is already reasonably practicable, there is not an immediate and absolute duty actually to effect the removal; the duty to remove becomes absolute only once removal becomes reasonably practicable.

118    And at [48]:

In M38, the Full Court discussed the meaning of the expression “reasonably practicable”, and, in particular, the meaning of the word “reasonably” in that expression (at [65]-[69]). Subject to one qualification, we agree with their Honours’ observations. The qualification concerns their statement at [66] that “[i]n the context of 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses”. As the word “feasible” in both of the dictionary definitions suggests, at least some element of reasonableness is inherent in the notion of “practicable”. We find it difficult to accept, for example, that removal would be regarded as practicable, even without the qualifier “reasonably”, where no country was willing to admit the unlawful non-citizen.

119    The presence and intent of s 197C will affect the length of time that steps and action by the executive can be justified as consistent with an officer’s duty to remove a person “as soon as reasonably practicable”.

120    There was also no debate that a Tribunal member, like the Minister’s delegates, is required to take into account, and engage with, the legal consequences of the decision she or he is making: see NBMZ at [8]-[10], [17]; Taulahi v Minister for Immigration & Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]-[88]. The Minister appeared to accept this may include consequences for which the Migration Act provides, such as removal from Australia, including removal in circumstances contemplated by s 197C. That is the effect of the above authorities. Indefinite detention was a legal consequence because, as the majority in Al Kateb accepted, it was a consequence arising from the legal effect of the provisions of the Act. That basic proposition was not disturbed by a majority of the Court in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 nor in Plaintiff M76.

121    The explanatory memorandum to the introduction of s 197C into the Migration Act described the purpose of the provision as addressing decisions of this Court, and the High Court, which had found that the removal power in s 198 should be construed in light of Australia’s international obligations. Those cases included Plaintiff M61, Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144, and Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505. At [1137], [1140] and [1142] the explanatory memorandum states:

In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.

….

The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances as set out in section 198 of the Migration Act.

….

Australia will continue to meet 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.

122    After the introduction of s 197C (which occurred after Al Kateb, Plaintiff M47/2012 and Plaintiff M76), whether indefinite detention remains a possible legal consequence of a non-revocation decision may also depend on what precisely is meant by the term “indefinite detention”. In our respectful opinion, while on one reading the presence of s 197C in the statutory scheme suggests a prolonged period of detention should not occur after all challenges to visa decision making have been exhausted, much depends on the interaction between executive policy as evidenced by Direction 79 (and perhaps by other policies as well), and the operation of the Migration Act in the case of a particular individual, as well as the factual circumstances of the individual concerned. That includes factual matters such as the attitude of what is said to be the receiving country for a person. These matters may or may not concern questions of non-refoulement. They may concern other matters such as acceptance of a person’s asserted nationality. There may be a myriad of factual reasons why it is not objectively “reasonably practicable” to remove a person at a particular point in time. All these are matters in the first instance for executive policy, although there may come a time where they become matters for a Court, as Al Kateb and like cases, and AJL20 demonstrate.

123    If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label “indefinite” is attached to it, as Wigney J also recognised in MNLR at [93]-[94]. The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.

124    It has been accepted that s 197C also does not preclude the executive ensuring that sufficient time is given to an individual who is the subject of an unfavourable non-revocation decision, and who is entitled to make a protection visa application, to do so. However, as Rares J’s reasons in FRH18 made clear, it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community, and in situations such as AQM18 and FRH18, where it has been determined to be against the “national interest”. Nevertheless, the scheme permits a visa application in some circumstances, and it has been accepted that the duties in s 198, read with s 197C, should be read as accommodating time for such an application, fruitless as it might appear to be.

Direction 79 can be reconciled with this approach

125    As some of the above authorities demonstrate, it is the interaction between the executive policy evinced in para 14 of Direction 79 and the apparent intention of s 197C which creates difficulties for visa decision makers who must grapple with the different directions in which these two features pull. The practical explanation may be that executive policy seeks to avoid the very result which s 197C appears to contemplate in unqualified terms.

126    Somewhat surprisingly, the Minister sought to resolve the difficulties by accepting that a portion of para 14.1(6) of Direction 79 was unlawful and of no effect pursuant to s 499(2) of the Migration Act, by reason of its inconsistency with s 197C. This was the conclusion reached by Kerr J in BDQ19 about the same paragraph in Direction 65, and was also the conclusion reached by at least two members of the Tribunal, in the two different reviews referred to in BDQ19.

127    In our opinion, and with respect to others who hold different views, there is no necessary inconsistency between the terms of para 14.1(6) and s 197C. Paragraph 14.1(6) can and should be applied on its terms by visa decision makers, subject to an understanding of the width of the concept of “indefinite detention”: see [123] above and [132] below.

128    The purpose of the guidance given to decision makers by Direction 79 is explained in para 6.2(1):

The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

129    The use of the word “unacceptable” indicates that the policy intends to direct decision makers to qualitatively assess the need to protect the Australian community by refusing to permit an individual to remain in the community with a visa, and to measure this against the consequences for the individual, and for others (such as affected children) if the individual is not permitted to remain in the community with a visa. It is in the context of this weighing and balancing task that decision makers are advised by paras 14.1(2)-(4) that if a person’s circumstances might engage Australia’s non-refoulement obligations, the executive will address this outside the cancellation or refusal process, unless the visa under consideration is a protection visa. If the visa under consideration is a protection visa, then it is in these circumstances that paras 14.1(5) and (6) apply.

130    The second sentence in para 14.1(2) is clearly a statement of executive policy, set out for the purposes of guiding decision makers. It conveys to them that as a matter of executive policy, Australia intends to respect and observe the international obligations it has undertaken. How (and, indeed, whether) the executive gives effect to that policy in respect of a particular individual is an event likely to occur after the conclusion of the visa refusal or cancellation process. This approach is consistent with Kerr J’s observations in BDQ19.

131    The last sentence in para 14.1(6) takes the existence of this executive policy as its premise, in situations where the visa under consideration is a protection visa – “[g]iven that Australia will not return a person….”. It describes one potential outcome of the application of that executive policy as being “indefinite immigration detention”. With respect to others who take a different view, we would not see this statement as necessarily “wrong in law”. First, it acknowledges that where the visa under consideration is a protection visa, the person concerned has no legal right to apply again for a protection visa and to raise claims at some later stage about the prospect of serious harm on removal. Paras 14.1(5) and (6) recognise that one future avenue the executive otherwise advises (in paras 14.1(2)-(4)) is available to address non-refoulement obligations, is not available for protection visa applicants or holders whose visa is refused or cancelled. That is consistent with the scheme of the Migration Act and it is an important issue to draw to the attention of visa decision makers.

132    Second, whether the reference to such a person facing “indefinite detention” is legally problematic depends on what is meant by the adjective “indefinite”. If, when applied to executive detention, the adjective means detention without a chronologically fixed endpoint, the existence of the executive policy set out in para 14.1(2) makes this a correct statement. Having failed in all challenges to a protection visa refusal or cancellation, to avoid refoulement affected individuals will then depend on the implementation of the executive policy set out in para 14.1(2) through the favourable exercise of one of the non-compellable discretions in the Act, or other avenues such as a successful third country resettlement process. Otherwise, their detention may continue, unless and until the executive abandons its policy of adherence to Australia’s international obligations in respect of that particular individual, or is compelled by a Court to remove a person (one of the options canvassed in AJL20). The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly: see [83] above.

133    As the facts of AJL20 demonstrate, in reality these administrative steps and inquiries may take a very long time, and not have any clear outcome, despite the presence of s 197C. In the case of the individual who is AJL20, his detention continued notwithstanding an express judicial determination in 2017 about the effect of s 197C. In our opinion such circumstances fit comfortably within a general concept of executive detention that can be characterised as “indefinite”.

134    In our respectful opinion, read fairly and in context there is no inconsistency between para 14.1(6) and the terms of the Act, although in a literal sense the terms of s 197C and the intention of executive policy may pull in different directions. Executive policy and s 197C operate on different repositories of power, with different functions within the legislative scheme, and outside it. They are not necessarily inconsistent, although where a person is found to engage Australia’s non-refoulement obligations, any executive policy or executive action which intends to postpone or control the performance of the duty in s 198 could only do so in circumstances which fit within the concept of “as soon as reasonably practicable” as affected by s 197C. Otherwise, mandamus may be available to enforce the duty in s 198, and the lawfulness questions to which AJL20 is directed may also arise.

135    While paras 14.1(5) and (6) of Direction 79 may seek to confine active consideration of indefinite detention to situations where the visa under consideration is a protection visa, in our opinion the prospect of indefinite detention (as we have described it) may be more generally relevant to a task such as that under s 501CA, whatever the nature of the visa under consideration. Australia’s executive policy is reflected in all three parts of Direction 79: see paras 10.1 in Part A, 12.1 in Part B and 14.1 in Part C.

136    No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy concerning non-refoulement that reflects Australia’s international obligations, indeed it would be remarkable if that were to be suggested. As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”. A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38]-[41], followed in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [30].

The Tribunal’s reasoning on these matters

137    The Tribunal found that consideration of Australia’s international non-refoulement obligations “weighs moderately in favour of revocation of the cancellation decision”, but that the risk that Australia would breach its non-refoulement obligations was “low”.

138    The Tribunal’s reasoning is to be found at [240]-[269]. The Tribunal found (at [240], and repeated at [243]) there was a real chance the appellant would face serious harm, and a real risk he might suffer significant harm because of his ethnicity. It made its factual findings on the basis of the then most recent DFAT report about South Sudan and expressly did so in the context of addressing the criteria for protection under the Refugees Convention and complementary protection.

139    However, the Tribunal found (at [245]-[246] and [250]) the appellant was excluded from the operation of art 33(1) of the Refugees Convention because he had been “convicted by a final judgment of a particularly serious crime” and the Tribunal considered him to be a “danger to the security of the country” within the meaning of that phrase in art 33(2). Given the similarity of the terms of the criterion in s 36(1C) for the grant of a protection visa, the Tribunal also found (at [254]) that the appellant was unlikely to satisfy that criterion. We note that in this Court, no argument was directed to whether the Tribunal correctly understood the criterion in s 36(1C), or correctly applied it to the facts as the Tribunal found them to be, notwithstanding that at [254] the Tribunal used a different phrase to that contained in s 36(1C), namely “danger to the Australian community”.

140    Nevertheless, the Tribunal found (at [256]-[261]) that, despite the fact the appellant would likely be refused a protection visa on the basis of s 36(1C):

(a)    it is likely that Australia owes international non-refoulement obligations to the applicant under the ICCPR and the CAT; and

(b)    that is because there is a real risk that the applicant will suffer significant harm if he is returned to South Sudan.

141    Relying on the decisions of DMH16 and BDQ19, and noting the existence of the non-compellable discretions reposed in the Minister by the Migration Act, the Tribunal found (at [263]) that:

section 197C of the Act does not have the effect that the Applicant will be removed from Australia immediately notwithstanding Australia’s international non-refoulement obligations.

142    That is a correct statement. While the Tribunal expressed its views in qualified terms, it appeared confident the executive would adhere to its promulgated policy about non-refoulement (at [268]-[269]):

It is also possible that the Minister may decide not to consider the exercise of one of the non-compellable discretions the exercise of which would prevent a breach of Australia’s non-refoulement obligations. Although the Tribunal considers that these outcomes are unlikely, the Tribunal still considers that there is a risk that the Applicant will be unwittingly returned to South Sudan, in breach of Australia’s non-refoulement obligations.

As this risk remains, the Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa. As the Tribunal considers that there is only a low risk that Australia will breach its non-refoulement obligations in respect of the Applicant, the Tribunal places only moderate weight on this consideration in the Applicant’s favour.

(Emphasis added.)

143    The Tribunal also found (at [271]) that it was

very difficult to determine what weight to attribute to the consideration and how to balance it against the other considerations. The Direction provides very little assistance in this regard. We know from the Direction that consideration of Australia’s international non-refoulement obligations is not a primary consideration. But we also know that in the appropriate case one or more ‘other considerations’ may outweigh primary considerations. In addition, we know from the Direction the government’s stated intention that it will not breach its international non-refoulement obligations.

144    Consistently with earlier parts of its reasons, the Tribunal considered the prospect of Australia breaching its non-refoulement obligations if the appellant were removed, and what steps might be taken to avoid that situation, were matters for the executive and not the Tribunal: see [273]-[274].

145    At [296], the Tribunal addressed what it called the likely “prolonged” detention of the appellant:

The Tribunal has also considered that there is a possibility that the Applicant may remain in detention for a prolonged period. The Applicant is almost certain to lodge a Protection visa application and is likely to remain in detention pending the ultimate determination of that application. If the Applicant is unsuccessful with a protection visa application, which the Tribunal has found is likely, he is likely to remain in detention pending the possible consideration of the exercise of Ministerial discretion.

146    For the reasons we have explained above, but subject to what we say at [155] below, the Tribunal was correct to consider the appellant would continue to be deprived of his liberty. Under the general rubric of “hardship and harm to the applicant”, the Tribunal gave this “significant weight” in the applicant’s favour, and at [305] the Tribunal found:

consideration of Australia’s international non-refoulement obligations weighs moderately [this] in favour of revocation of the cancellation decision.

(Error in original.)

There was a lawful basis for the Tribunal’s fact finding

147    The appellant is correct to identify the policy promulgated in of para 14.1(6) of Direction 79 as the only probative basis in the evidence before the Tribunal for its fact finding (at [268]) that it was “unlikely” the Minister might not consider the exercise of one of the non-compellable discretions which would prevent a breach of Australia’s non-refoulement obligations.

148    There was otherwise no evidence before the Tribunal which suggested the Minister had considered whether or not to exercise any relevant statutory powers to avoid the appellant in fact being removed to South Sudan. However there was what exists in the statutory scheme, read with para 14.1(6) of the Direction.

149    In our opinion, read fairly, all the Tribunal was saying in its finding at [268] was that it took the statement of executive policy at face value: namely 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. As between one branch of the executive and another, especially where the Direction had binding force on the Tribunal, that could not be said to be an inappropriate position for the Tribunal to take. The appellant took no additional forensic or procedural steps in the Tribunal to obtain any further evidence to put before the Tribunal about how his particular case was being approached at executive level, or whether there was evidence that in other cases Australia was not adhering to that executive policy.

150    The absence of any other evidence of contraventions of Australia’s non-refoulement obligations, or any evidence about what was planned for the appellant, combined with the policy expressed in para 14.1(2) and (6), was what led the Tribunal to find at [269] that the risk of any breach of those obligations was “low”. The qualitative assessment did not lead the Tribunal to ignore or set at naught, a scenario where the appellant might be returned to South Sudan. It considered at a factual level what this would involve, and concluded it would involve considerable hardship for the appellant. It weighed those factors as “significant” in favour of revocation.

151    Contrary to the appellant’s submissions, the Tribunal did not misunderstand the effect of s 197C, and it did not act on an executive policy which was inconsistent with s 197C. As we have explained, and as authorities of this Court have found, the operation of s 198 read with s 197C allows for the executive to have time, and to take active and genuine steps, to consider whether there are other alternatives to refoulement: the exercise of personal powers, the grant of other visas or third country resettlement. That list may not be exhaustive. Particularly in the absence of any evidence to the contrary (such as evidence about individuals being removed to South Sudan or other nations despite engaging Australia’s non-refoulement obligations) the Tribunal was entitled to take the approach that the executive would do what its policy says it would do. As we have also sought to emphasise, by the use of the term “as soon as reasonably practicable” the legislative scheme contemplates the executive must act genuinely, promptly and with reasonable diligence to implement a person’s removal. The presence of s 197C, at the very least, indicates that the Parliament intends non-performance of the duty to remove for a prolonged period of time cannot be justified only by reference to an executive policy of adhering to Australia’s non-refoulement obligations. However, after all visa processes are exhausted, the concept of “reasonably practicable” can allow for the timely and genuine exploration of options which might avoid breach of Australia’s non-refoulement obligations. The Tribunal’s reasons demonstrate it understood this to be the case. Further, in the absence of evidence to the contrary, as between different parts of the executive it was entitled to expect the policy evinced in paras 14.1(2) and (6) would be applied to the appellant’s benefit.

152    For the reasons we have explained, there is no necessary inconsistency between the executive policy as revealed in Direction 79 and s 198, read with s 197C when it is recalled that Direction 79 is applied by decision makers in the circumstances of considering whether to grant, refuse or restore a visa, and not at any later stage of decision making in relation to what might happen to an individual. It is that later stage with which AJL20 is concerned. Paras 14.1(2) and (6) of the Direction are not unlawful, and the Tribunal did not err in its approach to the matters in para 14 of the Direction.

153    Further, as we have explained, what is contained in para 14.1(6) is also a correct statement of the legal and practical position for any person whose challenges to visa cancellation or refusal are exhausted, but is found to engage Australia’s non-refoulement obligations. Such a person may well suffer “indefinite” detention, as we have described it. That position is not limited to those persons where the visa refused or cancelled is a protection visa. The resolution and exhaustion of all executive options which are capable of avoiding refoulement may take a very long time. There are many examples from decided cases where individuals have been detained after the exhaustion of their legal challenges for a period with no chronological endpoint and in circumstances where they cannot ascertain when their detention might end. That is indefinite detention. The law as pronounced in Al Kateb by a majority of the High Court renders that situation lawful, subject to the individualised purpose arguments which found favour with Bromberg J in AJL20 and are now before the High Court.

An alternative argument about the Tribunal’s reasoning

154    There remains a question whether the Tribunal really grappled with the prospect that the appellant could be detained for an indefinite period. That was the most probable consequence of its own findings, especially the impugned finding that there was only a “low risk” that Australia would breach its non-refoulement obligations, together with the Tribunal’s view that the appellant would not be granted any other visa. The appellant’s detention for a “prolonged” period was actively considered by the Tribunal at [296], but in our respectful opinion the Tribunal there only contemplated a protection visa application and the consideration and exercise of any personal Ministerial discretions. The Tribunal had already found, for itself, the appellant was unlikely to be granted a protection visa. A finding well open to it, in accordance with Rares J’s reasoning in FRH18. The subsequent exercise of any personal discretion to grant the appellant another kind of visa suffered from the same improbabilities and incompatibilities.

155    Nevertheless, what the Tribunal did not really engage with was – what then? If Australia was to adhere to its executive policy as pronounced, and seek to avoid the consequence otherwise imposed by s 197C, there was no evidence before the Tribunal about what might then happen to the appellant. These were not matters for inference from the statutory scheme of the Act. These were all matters extraneous to the Act – such as third country resettlement, or even whether the appellant would be accepted by South Sudan. The Tribunal could not speculate on these matters without evidence. It was these matters which might well consign the appellant to indefinite detention. They were matters the Tribunal did not grapple with.

156    Counsel for the appellant resisted this as an arguable error when it was put to him:

KENNY J: In due course, are you going to also take into account the detention provisions, section 189 and section 190? My reason for saying that is that it seems to me one of the more likely outcomes for the appellant was that, if he were to fail in his protection visa applications and other favourable exercises of discretion, he would be held in detention perhaps for a very long time. And it might be said in your favour that what the tribunal should have considered was the effect of indefinite detention on him and whether it wished to make a decision which had that possibly probable consequence.

MR GUO: Yes. I can see why your Honours suggest that to me, and to be candid, it was not how the case was put below. But perhaps the more significant difficulty with that argument with me or with the appellant ever putting that argument, is that we know that indefinite detention is not permissible. And indeed, the direction at paragraph 14.16, which is not so much the focus of this appeal but 14.16 – in fact, can I take your Honour to that just to be clear on that point. So this is item 14 and your Honour will see in subparagraph 6,

In these circumstances,

That is in circumstances where there’s going to be consideration of non-revocation where protection claims or non-refoulement claims rest,

The decision-maker should seek an assessment of treaty obligations

And then there’s the next sentence, the final sentence is the important one,

Given that Australia will not return a person to the country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operations of sections 189

Being one of the two your Honour put to me

Means that if the protection visa remains cancelled, they will face the prospect of indefinite detention.

Now, the – in BDQ19, Justice Kerr said that that statement is wrong as a matter of law, because indefinite detention is not permissible. I think it was also in DMH16 that Justice North said something similar. We also know that from first principles, following on from ... and so forth

157    And a little later, when developing why, in the context of the findings in AJL20, the “removal purpose” had been exhausted and s 197C was to be given its operation:

And the closest of the three potential reasons that could have been applicable is holding me for the purposes of removal. Now, the removal duty has to be carried out as soon as reasonably practicable. We know that from the terms of 198. But in circumstances where you, the Commonwealth, are not returning me and not returning me because you say you owe me non-refoulement obligations, you can’t square that with section 197C, you are not carrying out for removal as soon as reasonably practicable, because section 197C says it is irrelevant to the removal purpose that you owe non-refoulement obligations, therefore you are holding me unlawfully. And Justice Bromberg accepted that and found that there was liability for false imprisonment.

158    Counsel repeated this position when pressed again about it a little later in the hearing:

KENNY J: I understand what you’re saying, but it does trouble me, though, because on one view, particularly having regard to clause 14.6 – 14.16, one may well say that the more likely outcome in real terms – practical terms – whether or not it turns out to be lawful, but from the Commonwealth’s point of view, at the time of the tribunal decision, the more likely outcome for this appellant, if he failed in his protection visa application and if he failed to persuade the Minister to exercise his discretion favourably to him from one of the nominated provisions was that he would be held in protection until the Commonwealth formed the view that it was reasonably practicable to remove him, either to his country of origin or to some unnamed third country who might agree to receive him, and that, it would appear, could take a very long time to settle.

You might well say that a tribunal faced with that practical reality should have faced it, and said, well, notwithstanding all that might be said because of the view I take about the Australian community’s expectation and protection and the like, I’m – as part of my decision, I face up to the fact that this particular person will be held in immigration detention for an indefinite period.

MR GUO: Yes. Can I say two things about that, your Honour. One really is to repeat the point I’ve already made, which is I say DMH16 suggests that claim could not be made. The second empirical – well, I shouldn’t describe it as empirical. The second point is this, and with respect it is extraordinary. AQM18 v Minister for Immigration, medium neutral (2019) FCAFC 27 – that’s a case which concerns a Minister – the Minister’s personal decision to set aside a favourable tribunal’s decision and use his personal power in section 501A to refuse the grant of a protection visa. So, yes, that’s a difference, but if your Honour would bear with me. What happened in that case was that the – was that AQM18 said that the Minister misunderstood the effect of section 197C and section when he said in his reasons for his decision that Australia – well, that there was the potential for using section 195A to avoid breaching non-refoulement obligations. That was the argument run at first instance.

Moshinsky J upheld that argument. The Minister cross-appealed and succeeded on the cross-appeal, and Besanko and Thawley JJ said, in short, no, the Minister did not misunderstand: he was well aware that despite the reference to section 195A – he was well aware that 197C meant that removal was to occur and that refoulement was to occur. What I - - -

MORTIMER J: Yes. I was going to ask you about this case. So do you say that that’s what their Honours upheld as the correct construction of the relationship between those provisions?

MR GUO: Yes. And why I say it’s extraordinary is – and I can’t do this in any other way – why I say that is extraordinary is that is the holding, I say, of Besanko and Thawley JJ, and yet – and we know this because proceedings have been instituted late last year. Some 18 months on, the Minister – the Commonwealth still has not removed AQM18, citing the existence of non-refoulement obligations, even though a majority of the Full Court said the Minister was well aware that non-refoulement obligations could not stand in the way of removal.

So the court has said one thing. The Minister, with respect, continues to implement something the opposite of what the court has said, and so we’re in this truly remarkable position where the issue still remains to be resolved once and for all. What that all means, if I could bring it back to your Honour, Justice Kenny’s question, is there were multiple minefields for a submission to have been raised in the way your Honour suggests – suggested to me. The legal correctness of that submission – me having heard everything that your Honour has put to me, the legal correctness of that submission, in my submission, is still doubtful.

159    In this passage, we understood counsel to be relating from his own experience the fact that the individual who is called AQM18 remains in Australia 18 months after the Full Court’s decision, despite the majority in that case finding no error in the Minister’s approach, which in substance reasoned that the individual would be removed from Australia because of s 197C. That is why, as we understand it, counsel described the position as “remarkable”.

160    As we have sought to explain, if ss 198 and 197C are read together, the point at which the duty imposed on an individual officer by s 198(2A) arises may be postponed (expressly or implicitly) for a considerable time if the executive seeks to adhere to its policy of non-refoulement. The deprivation of liberty may then well become “indefinite”. Whether it becomes unlawful is a matter before the High Court in AJL20, and need not be addressed on this appeal.

161    The Tribunal in this case did not consider what is in substance the mirror proposition to its finding that there was a low risk the appellant would be removed in contravention of Australia’s international obligations. The mirror was indefinite detention.

162    The appellant’s counsel expressly disclaimed reliance on any such argument, noting it had not been put to the primary judge. No leave was sought to amend the grounds of appeal. Therefore there is no occasion to consider the potential consequences of the Tribunal’s failure to grapple with the prospect of indefinite detention for the appellant. The Minister contended the Tribunal was not required to consider this as a prospect, because it is not a legal consequence of the exercise of power under s 501CA(4). We have rejected that submission at a general level for reasons explained above, but the fact remains this argument is not pressed by the appellant on the appeal.

Conclusion

163    In those circumstances, the appeal must be dismissed because the appellant has not made out his ground of appeal as it was expressed. The orders of the primary judge are not affected by error of the kind alleged.

164    There is no basis for anything but the usual order as to the costs of the appeal.

Associate:

Dated:    19 April 2021

REASONS FOR JUDGMENT

ABRAHAM J:

165    I have read the draft reasons of Kenny and Mortimer JJ, and agree with the orders proposed. I agree with the reasons at [147]-[152] which address the ground of review raised in this case. Those reasons are sufficient to dispose of this matter. The appellant has not established the ground of appeal. However, as reflected in the joint reasons there is no ground of review directed to indeterminate detention or that the Tribunal failed to address such a consideration. In those circumstances, which had the consequence that the parties did not address what amounts to indeterminate detention, and did not have an opportunity to provide submissions in relation to MNLR which was delivered after the hearing in this matter, it is unnecessary to express a view, and I prefer not to do so.

Associate:

Dated:    19 April 2021