Federal Court of Australia

RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

THE COURT:

Background

1    This is an appeal from a decision of the primary judge dismissing an application for review of a decision of the second respondent (“the Tribunal”) not to revoke the decision made by a delegate of the first respondent (“the Minister”) to cancel the appellant’s Class XB subclass 202 Global Special Humanitarian visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

2    The appellant’s visa was cancelled on 29 July 2019. On 20 August 2019, the appellant made representations to the Minister as to why the cancellation should be revoked. However, on 23 June 2020, a delegate of the Minister made a decision (“the non-revocation decision”) not to revoke the cancellation. On 15 September 2020 that decision was affirmed by the Tribunal.

3    The appellant is a citizen of Afghanistan and is of Hazara ethnicity. He has an extensive criminal history and has been convicted of numerous offences for which he has been sentenced to periods of imprisonment. It is common ground that he does not pass the character test for the purposes of s 501(3A) of the Act. It is also common ground that, as a result of the cancellation of his visa, the appellant is an “unlawful non-citizen” within the meaning of s 14 of the Act to whom s 189(1) of the Act applies.

4    Before the primary judge the appellant submitted that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider, in the relevant legal sense, the legal and practical consequences that would follow if the Minister’s decision not to revoke the cancellation of the appellant’s visa was affirmed. This submission was rejected by the primary judge who, after granting the appellant an extension of time under s 477A(2) of the Act, dismissed the application.

The Issue in the Appeal

5    The sole issue in this appeal is whether the Tribunal, in holding that there was not “another reason” why the cancellation of the appellant’s visa should be revoked, gave consideration, in the relevant legal sense, to the appellant’s submission that there was a real possibility that he would experience prolonged or indefinite immigration detention as a legal consequence of any decision to affirm the non-revocation decision. The primary judge is said by the appellant to have erred in holding that the Tribunal gave this matter proper, in the sense of legally sufficient, consideration.

Relevant Statutory Provisions

6    Section 501 of the Act sets out the circumstances in which the Minister may cancel a visa on character grounds. It relevantly provides as follows:

501     Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

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

…

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7))…

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more…

7    Section 501CA of the Act provides that a non-citizen whose visa has been cancelled pursuant to s 501(3A) of the Act may apply for a revocation of that decision. It relevantly provides:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

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

…

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

8    Section 501CA(4)(b)(ii) requires that the relevant decision-maker be satisfied that “there is another reason” to revoke the original decision to cancel the visa-holder’s visa if not satisfied that the visa-holder passes the character test.

9    At all relevant times, ss 189(1), 197C and 198(2B) provided:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

197C    Australia’s non refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(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.

198    Removal from Australia of unlawful non-citizens

…

(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).

10    Section 496(1) of the Act permits the Minister to delegate his or her powers under the Act. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of a decision of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

The Tribunal’s Decision

11    The Tribunal’s decision was accompanied by lengthy and detailed reasons (“the Tribunal’s Reasons”). Many of the matters considered in the Tribunal’s Reasons have no relevance to the issue arising in this appeal. The matters considered included the primary and other considerations referred to in the relevant direction issued by the Minister pursuant to s 499(1) of the Act (Direction No 79).

12    The Tribunal stated at [178]-[180]:

178.    In terms of the legal implications of an adverse decision in this matter, the mandatory cancellation of the Applicant’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of a non-revocation decision, he is liable to be detained under s 189 of the Act following release from prison and is liable for removal as soon as reasonably practicable, irrespective of Australia’s non-refoulement obligations: ss 197C and 198 of the Act. It is permissible to continue a person’s detention while consideration is given to the possible exercise of a non-compellable discretion at [sic] s 195A of the Act to grant a visa, or to make a residence determination under s 197AB. There is no evidence, however, that any exercise of such discretion is currently in prospect. There is also no evidence that removal to any other country may be in prospect.

179.    If the Applicant applied for a Protection Visa, which seems a logical inference from the fears of harm he expresses, a non-revocation decision does not necessarily result in removal or indefinite detention. While the results of a Protection Visa application cannot be speculated upon, the currently available evidence suggests his prospects are not implausible. The Tribunal notes the Minister’s Department is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (“Direction 75”). Direction 75 requires that when considering an application for a Protection Visa, an assessment must first be made about whether refugee and complementary protection criteria are met before considering ineligibility criteria.

180.    The Tribunal is satisfied that concerns about refoulement are minimised by the Australian Government’s express policy commitment not to do so. Were he to be refouled contrary to that policy commitment, negative consequences arise for Australia’s international reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law.

13    The Tribunal then turned to consider some submissions made by the appellant based on the decision of Bromberg J in AJL20 v Commonwealth of Australia (2020) 279 FCR 549 (“AJL20”). Subsequent to the decision of the Tribunal in this matter, an appeal against the decision in AJL20 was allowed by the High Court: see Commonwealth of Australia v AJL20 (2021) 391 ALR 562. That case was concerned with the power of the Commonwealth to detain an unlawful non-citizen pursuant to s 189(1) of the Act in circumstances where non-refoulement obligations are owed in respect of that person and where, as found by the primary judge in that case, the Commonwealth had failed to remove him “as soon as reasonably practicable” as required by s 198. The submission made to the Tribunal in the present case was that given the existence of non-refoulement obligations owed in respect of the appellant, it was inevitable that the appellant would eventually be released into the community and that this weighed in favour of revocation of the decision to cancel the appellant’s visa.

14    The Tribunal said at [181]-[183]:

181.    In relation to the Applicant’s submissions about AJL20, the Tribunal considers it is clearly distinguishable on the facts. Moreover, speculating about the potential course of future decision-making does not assist resolution of the question currently before the Tribunal, which is whether there is ‘another reason’ to set aside the non-revocation decision. Non-refoulement is only one consideration to be weighed. The Tribunal stands in the shoes of the decision-maker who made the non-revocation decision, not future decision-makers. Nor should the Tribunal speculate on the potential cost of immigration detention that is yet to occur, or future applications that are yet to be made. As Flick J noted in Ali v Minister for Immigration and Border Protection [[2018] FCA 650] (“Ali”) at [33]:

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

182.    In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:

…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...

(Emphasis added)

183.    The Tribunal finds that the Applicant is owed non-refoulement obligations. He is also likely to confront significant hardship and potential harm from generalised violence and a lack of support if returned. Very substantial weight is placed on this consideration in favour of revocation.

(References omitted, emphasis in original)

15    As we have mentioned, the High Court’s judgment in AJL20 was delivered after the Tribunal made its decision in this case. In any event, the Tribunal considered that the decision at first instance in AJL20 was distinguishable. In that regard, the Tribunal was plainly right because the appellant in AJL20, whose visa had been cancelled on character grounds under s 501(2) of the Act, subsequently made a number of applications for a protection visa all of which were refused, as well as an application for a visa under s 195A, which was also refused.

16    Paragraphs [181] and [182] of the Tribunal’s reasons are important in that they disclose and explain the Tribunal’s unwillingness to speculate about the course of future decision-making and the potential costs of immigration detention that is yet to occur. The reference to the costs of immigration detention was made in response to a specific submission made by the appellant in relation to that matter which we refer to later in these reasons.

17    The Tribunal made various observations concerning the appellant’s relationship with his family and the community, his repeat offending, and misconduct while imprisoned. The Tribunal stated at [224] that “[w]hen his past conduct is considered in conjunction with the expert and other evidence, the Applicant’s risk of recidivism is unacceptable.” Plainly, these were matters that the Tribunal considered weighed against revocation of the cancellation decision.

18    The Tribunal then referred to various “countervailing considerations” and said at [226]-[228]:

226.    The Tribunal has identified several countervailing considerations. The most significant of these in terms of weight, is non-refoulement obligations and the extent of impediments if removed. Afghanistan remains a dangerous place and the Applicant has well-founded fears of persecution and other serious harm. Obstacles confronting him include language, ethnic and religious issues, an absence of support, and the challenge of re-establishing himself in a country he left as a seven-year-old.

227.    There is a real risk of persecution and serious harm confronting the Applicant if returned to Afghanistan. There is also an unacceptable risk of harm to the Australian community arising from his recidivism risk. Having considered the totality of the evidence, the Tribunal concludes that more weight should be placed on the primary considerations over the other considerations.

228.    Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason to revoke the cancellation of the Applicant’s visa. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ outweigh the other primary consideration ‘Best interests of minor children,’ and the relevant other considerations in this matter.

The Primary Judge’s Decision

19    The primary judge’s reasons refer to various authorities concerning the obligation of the Tribunal to consider the prospect of a person who had a visa refused, or cancelled on character grounds under s 501 of the Act, being the subject of prolonged or indefinite detention. His Honour’s discussion of that obligation, and the circumstances in which it may arise, ultimately had no bearing on the outcome of the case because his Honour accepted that the Tribunal was required to give consideration to the appellant’s claim that, unless the cancellation was revoked, he would remain in detention, in counsel for the appellant’s words, until the Minister decided what to do with him, which could take a very long time, possibly years.

20    Relevant extracts from the appellant’s submissions to the Tribunal are reproduced at [17] of the primary judge’s reasons. The appellant’s written submissions to the Tribunal included the following:

83.    So, in practical terms, if non-refoulement obligations are owed in respect of the application, unless those obligations cease to be owed (which is not realistic in the case of Hazaras from Afghanistan), the application will have to be released into the community eventually.

84.    These processes can take some time. It might be years. All the while the applicant sits in detention, costing the taxpayer dearly; more than $300,000 per year. One might thus ask, what is the point of keeping the applicant in detention throughout this period, at a very substantial cost to the taxpayer (equivalent to about 10 JobKeeper payments per month)? Is the risk that the applicant poses worth $300,000+ per year in tax-payers’ money, when he will probably be released into the community anyway, some years into the future.

21    As the primary judge noted, the appellant’s submissions to the Tribunal in relation to indefinite detention were predicated on two assumptions, first, that the appellant would not be returned to Afghanistan and, second, that he would not be granted a protection visa.

22    The primary judge said at [42]-[46]:

[42]    The applicant’s submissions to the Tribunal regarding indefinite detention were predicated on the assumption that the applicant would not be returned to Afghanistan, and that he would not be granted a protection visa. In other words, those two factual propositions underpinned the applicant’s submission that he faced the prospect of indefinite detention. On that footing, the thrust of the submissions was that it would be futile for the applicant to remain in detention for an indefinite period at significant public cost. But, as the Tribunal recognised, there were other possibilities: the applicant could be removed to a third country, or the applicant could request or make an application for ministerial intervention under s 195A or s 197AB of the Act. The Tribunal’s Decision engaged with each of those eventualities and the reality that the applicant would be detained while they were being explored.

[43]    Contrary to what the applicant urged upon it, the Tribunal found that the applicant’s prospects of being granted a protection visa were “not implausible”. It did not accept the factual proposition that the applicant would not be returned to Afghanistan. Instead, it observed that the applicant’s “concerns about refoulement are minimised by the Australian Government’s express policy commitment not to do so”. The Tribunal also noted that there was no evidence “that any exercise of [ministerial] discretion is currently in prospect”, and that “[t]here is also no evidence that removal to any other country may be in prospect”.

[44]    Critically, the Tribunal acknowledged that, “[i]n the event of a non-revocation decision, [the applicant] is liable to be detained under s 189 of the Act following release from prison and is liable for removal as soon as reasonably practicable” and that it “is permissible to continue a person’s detention” while consideration is given to ministerial intervention. In other words, the Tribunal engaged with the fact that the applicant would enter immigration detention following his release from prison, and would remain there while available options (of which the Tribunal noted there were several) were explored. The Tribunal also declined to speculate about the potential course of future decision making, and the potential cost of immigration detention yet to occur, which matters were central to the applicant’s submission that his ongoing detention would be futile.

[45]    Those realities acknowledged, I do not accept that the Tribunal can fairly be said to have made its decision without first considering what the applicant advanced. A finding that a minister “…has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: …

[46]    At its core, the applicant’s complaint is that the Tribunal did not, in terms, record what is obvious: namely, that the period for which the applicant might remain in immigration detention will be a function of multiple variables, many (and probably most, if not all) of which do not permit of anything more than bald conjecture. Plainly, he might remain in immigration detention for a lengthy period of time whilst those variables play themselves out. He might not: it might be years; it might be weeks. Regardless, it cannot be said that the Tribunal was not alive to—that is to say, failed to consider—that detention would remain in play for so long as those processes took to resolve. Engagement in a process of active intellectual consideration is one thing; engagement in a process of speculation is something else entirely.

The appellant’s submissions

23    The appellant did not point to any particular error which he said had been made by the primary judge either in relation to the relevant facts or law and he did not seek to identify any particular error in his Honour’s reasoning process. However, the appellant submitted that the primary judge’s ultimate conclusion that the Tribunal gave active intellectual consideration to the appellant’s representations concerning the possibility of him being detained for a prolonged or indefinite period of time was incorrect.

24    The appellant accepted that the Tribunal’s analysis of the relevant statutory provisions and their operation was correct. However, he submitted that it did not follow that the Tribunal had given consideration, in the relevant legal sense, to the possibility that those provisions would, given the appellant’s particular circumstances, operate to keep him in prolonged or indefinite detention. The appellant submitted that, while the Tribunal gave consideration to the possibility that he would be returned to Afghanistan, it did not give adequate consideration to the other possibility, which he contended was the more likely of the two, that he would not be returned with the consequence that he would remain in detention for some years until his status was resolved. It was submitted that the Tribunal did not grapple with the reality of that possibility. The appellant submitted that the Tribunal neither attempted to assess the chance that the appellant would spend a substantial, if not indefinite, period in immigration detention or the human consequences of that occurring.

25    The appellant referred to what the Tribunal said at [183] of its reasons which indicates that it gave substantial weight to the possibility of the appellant suffering significant hardship and potential harm if he was returned to Afghanistan. He also referred to what the Tribunal said at [226] and [227] and the fact that there was no mention made in either of those paragraphs of any risk that the appellant might experience prolonged or indefinite detention resulting from the Tribunal’s finding that non-refoulement obligations were owed with respect to the appellant. This was a matter that the appellant submitted was not considered in any real sense and not given any weight in the balancing exercise conducted by the Tribunal. The appellant submitted that it should therefore be concluded that the Tribunal did not engage in an active intellectual process in considering the appellant’s representation that he was at risk of experiencing prolonged or indefinite detention if he were not returned to Afghanistan and that, as a result, the Tribunal failed to consider, in the relevant legal sense, the appellant’s claim, and the legal consequences of its own decision.

26    The appellant placed considerable reliance upon the judgment of Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55. In that case the appellant’s visa had been cancelled pursuant to s 501(3A) of the Act. Revocation of that decision was refused by a delegate whose decision was affirmed by the Tribunal. The Tribunal made two findings relevant to the arguments advanced by the appellant in the present case. The first was that the appellant was unlikely to be granted a protection visa. The second was that there was “only a low risk” that Australia would breach its non-refoulement obligations in respect of the appellant. Their Honours said at [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.

Their Honours also said at [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.

27    Their Honours noted that these matters were not relied on by the appellant and were outside the scope of the grounds of appeal. On that basis their Honours dismissed the appeal. The third member of the Full Court, Abraham J, agreed that the appeal should be dismissed but expressed no view as to the correctness of what was said by Kenny and Mortimer JJ in the passages of their judgment to which we have referred.

Consideration

28    In Minister for Home Affairs v Omar (2019) 272 FCR 589 (“Omar”) the Full Court said at [36]:

… even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in [Tickner v Chapman (1995) 57 FCR 451] (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

29    In Tickner v Chapman (1995) 57 FCR 451 Kiefel J (as her Honour then was) referred at 495 to the need for a decision-maker who is required to “consider representations” made to bring the mind to bear upon the facts stated in them and the arguments or opinions put forward. In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court said at [89]:

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall “on the wrong side of the line”, to quote [Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha at [45] per Rares and Robertson JJ.

30    In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 the Full Court (Griffiths, White and Bromwich JJ) said at [48] that “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made”. These remarks were endorsed in CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 at [76] per Allsop CJ, Kenny and Snaden JJ. One issue raised which had been before the Tribunal in CAR15 was whether the appellant would, as she claimed, be rendered homeless if she were to relocate to a particular locality within her country of nationality. The Full Court noted at [76] that the Tribunal when considering that claim was not required to record, in explicit terms, whether or not the appellant would be rendered homeless if returned there, but that the Tribunal was required to “undertake an active intellectual process directed to that claim”.

31    In the present case it is clear that the Tribunal gave consideration to the appellant’s representations concerning the possibility that he could experience indefinite detention in the event that he was not returned to Afghanistan. The Tribunal’s consideration of that matter did not lead it to make any finding in relation to the likelihood of that occurring. Rather, the Tribunal reasoned that whether or not the appellant faced the prospect of indefinite detention depended upon a number of possibilities including the outcome of any application made by the appellant for a protection visa. The Tribunal said that the outcome of any such application could not be speculated upon, but that the appellant’s prospects of being granted a protection visa “were not implausible”.

32    As is apparent from the extracts from the reasons previously set out, the Tribunal referred expressly to the decisions in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (“Ali”) and DOB18 v Minister for Home Affairs [2018] FCA 1523 (“DOB18”). In DOB18 Griffiths J referred to a number of other cases in which Flick J’s reasoning in Ali has been adopted and applied. Those decisions show that the course followed by the Tribunal in this case was open to it and that it was not required to speculate about future possibilities with respect to future visa applications or the duration of any detention to which the appellant may be subjected.

33    Flick J’s observations in Ali at [33] were referred to with approval by the Full Court in BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 (Thawley, Stewart and Cheeseman JJ) at [15]-[16]. In that case the primary judge held that the fact that the Tribunal did not attempt to assess the likelihood that an application for a protection visa by the appellant would be granted, did not reveal any failure by the Tribunal to give proper consideration to the appellant’s claim that he would suffer serious harm if forcibly returned to Iraq or that he would be indefinitely detained if he was not. The Full Court held that this conclusion was correct.

34    In the present case the appellant placed considerable emphasis in his submissions on the Tribunal’s statement that it gave substantial weight to the fact that the appellant would suffer significant harm if he were returned to Afghanistan, but that the Tribunal did not make any finding about the likelihood of the appellant suffering such harm if he was not returned to Afghanistan and was indefinitely detained. It seems to us that there are two reasons why the Tribunal is likely to have expressed itself in this way.

35    First, in his oral evidence to the Tribunal the appellant said that his greatest fear was being returned to Afghanistan. In those circumstances it was natural for the Tribunal to focus on the possibility of the appellant being returned to Afghanistan notwithstanding any non-refoulement obligations owed in respect of him.

36    Secondly, the fact that the Tribunal did not express itself in terms of the “weight” it placed on the possibility of the appellant being indefinitely detained is explained by the fact that the Tribunal was not willing to speculate about the prospect of the appellant being granted a protection visa. Given that approach, it was not in any position to attribute any specific weight (eg. substantial or slight) to this consideration.

37    What is clear is that the Tribunal came to its ultimate conclusion having taken into account, and actively engaged with, the appellant’s representation that he would experience prolonged or indefinite detention if not returned to Afghanistan. The Tribunal was not required, in considering the appellant’s representations, to make any specific finding as to the likelihood that the appellant would experience prolonged or indefinite detention, any more than it was required to make any specific finding as to the likelihood that the appellant would be granted a protection visa in the future.

38    As to the Full Court’s decision in WKMZ, as we have already noted, the observations of Kenny and Mortimer JJ referred to at [26] above were unnecessary to the decision in that case and the matter to which those observations were directed (ie. the failure of the Tribunal to grapple with the prospect that the appellant could be detained indefinitely) was not the subject of submissions: see Abraham J at [165]. DOB18 is not referred to in the reasons for judgment. There is a mention of Ali at [25] in the reasons of Kenny and Mortimer JJ when referring to the Minister’s submissions, but there is nothing said in that case that casts doubt on the correctness of that decision. In any event, the facts in WKMZ are clearly distinguishable from the facts in this case. In WKMZ Kenny and Mortimer JJ considered that detention for an indefinite period was the most probable consequence of the Tribunal’s finding that the appellant was unlikely to be granted a protection visa and that the Tribunal had not given consideration to that prospect. No such conclusion can be drawn in the present case, nor did the Tribunal make such a finding.

Disposition

39    The appeal will be dismissed.

40    The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    4 March 2022