Federal Court of Australia

ECE21 v Minister for Home Affairs [2023] FCAFC 52

ORDERS

THE COURT ORDERS THAT:

1.    The time in which an appeal can be brought from the Court’s orders made on 22 November 2021 be extended to 8 February 2022.

2.    Leave be granted for the applicant to rely on the amended proposed notice of appeal annexed to the affidavit of Alice Louise Graziotti filed 26 September 2022.

3.    The appeal be allowed.

4.    Set aside the orders of the Court made on 22 November 2021 and, in lieu thereof, order:

(a)    The application for judicial review be allowed.

(b)    Set aside the decision of the respondent made on 23 March 2021.

(c)    Remit the applicant’s request for consideration of revocation of the visa cancellation decision made on 25 July 2018 to the respondent for further consideration according to law.

(d)    The respondent pay the applicant’s costs of the judicial review application, to be fixed by way of a lump sum.

(e)    In default of agreement between the parties on an appropriate lump sum, the question of an appropriate lump sum for the applicant’s costs be referred to a Registrar for determination.

5.    The respondent pay the applicant’s costs of the application for an extension of time and of the appeal, to be fixed by way of a lump sum.

6.    In default of agreement between the parties on an appropriate lump sum, the question of an appropriate lump sum for the applicant’s costs on the appeal 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

THE COURT:

1    The applicant is a citizen of South Sudan who was a child soldier. After a number of years he escaped the army and eventually came to Australia as a refugee at the age of 26. His criminal offending in Australia commenced a few years later. In 2013 he committed a particularly serious crime of violence. He pleaded guilty to the offence of unlawfully causing grievous bodily harm with intent to do so and was sentenced to a term of imprisonment of 6 years and 10 months. As required by s 501(3A) of the Migration Act 1958 (Cth), his visa was cancelled. The applicant made representations to the Minister seeking the revocation of the visa cancellation in the exercise of the power conferred by s 501CA(4). On 23 March 2021, the Minister personally decided not to revoke the cancellation.

2    The applicant sought judicial review in this Court. His application was dismissed: ECE21 v Minister for Home Affairs [2021] FCA 1447. He now seeks to bring an appeal. He needs an extension of time to do so. If an extension of time is granted, he seeks leave to amend the proposed notice of appeal to advance a single ground of appeal. It is to the effect that the Minister failed to consider the likelihood that the applicant would be detained indefinitely if the cancellation of his visa was not revoked.

3    The ground that the applicant seeks to raise was not advanced before the primary judge. Therefore, it seeks to allege what is sometimes described as constructive error.

4    The application for an extension of time and leave to amend to raise the new ground were considered at a hearing at which the submissions in support of the appeal ground and in opposition to the appeal were received against the possibility that the extension of time and leave to amend were both given. In the circumstances, we will refer to the parties as the applicant and the Minister and, for simplicity, to the proceedings themselves as an appeal.

The applicant's main contentions

5    The main contentions advanced by the applicant in support of the proposed appeal ground are:

(1)    the representations by the applicant to the Minister clearly articulated the likelihood of indefinite detention if his visa cancellation was not revoked or alternatively such likelihood clearly arose on the materials before the Minister; and

(2)    proper regard to the content of the Minister’s reasons for decision (Reasons) leads to the conclusion that those matters were ignored or overlooked by the Minister.

6    The submissions in support of those main contentions tended to criticise the Reasons as failing to fully and meaningfully engage with the representations as to the likelihood of indefinite detention in circumstances where it was a likely consequence based upon the Minister's own findings set out in the Reasons. Particular reliance was placed upon the reasoning in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 607. There may be difficulties with such an approach given the reasoning of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 and the criticism in those reasons of aspects of the reasoning in Omar (and other Full Court decisions of this Court).

7    Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister's reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

8    Hence when it was said in Plaintiff M1/2021 that 'a decision-maker must read, identify, understand and evaluate the representations' (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with.

9    The second aspect of the statutory task that it is necessary to bear in mind is that the weight to be afforded particular representations was a matter for the Minister: Plaintiff M1/2021 at [24]. That includes forming the view that the representation, or a matter arising from the representation, should be afforded no weight. Even so, the Minister must first understand the purport of the representations, facts and materials. If it is shown that the Minister proceeded without being consciously aware of the purport of the representations, facts and materials (and matters which clearly arise on the materials) and their possible significance, such that the Minister proceeded without a proper awareness and understanding of what was being put forward and therefore without a proper appreciation of the matters that might bear upon the decision to be made, then jurisdictional error may be demonstrated. On the reasoning in Plaintiff M1/2021, if the decision-maker lacks such an understanding, they will not be in a position for themselves to 'sift' what has been put to them, and attribute the weight they consider appropriate to various matters.

10    Before turning to the relevant matters which the applicant says were put to the Minister and the relevant aspects of the Reasons, we address the legal position in relation to indefinite detention.

The prospect of indefinite detention

11    In cases where claims are made to the effect that a person will be subjected to indefinite detention if their visa remains cancelled, there is sometimes debate as to what is meant by the term, or more particularly what type of uncertainty in duration is needed before it is a matter that may have significance. For present purposes, indefinite detention may be taken to refer to detention of uncertain duration that is expected to be ongoing for a significant period because the required event necessary to bring it to an end (removal from Australia) is unlikely to be able to occur in the foreseeable future by reason of some circumstance other than the pursuit by the detained person of legal rights in respect of a visa application – noting that it is a term that is capable of a wider meaning that embraces any executive detention where the end point cannot be reasonably predicted or ascertained such that the person whose liberty has been lost has no way of ascertaining when the detention may come to an end: WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [123], [132] (Kenny and Mortimer JJ).

12    As matters stand, the prospect of indefinite detention that may arise as a consequence of a statutory regime that requires an unlawful non-citizen to be held for the purpose of arranging their removal as soon as reasonably practicable and until their removal is constitutional: Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [45], noting the observation in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [26]. It is, therefore, a legal possibility.

13    At the time of the Minister's decision in the present case, it had been held that a person in the position of the applicant could be refouled 'notwithstanding that Australia owed the appellant non-refoulement obligations': AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424 at [25] (Besanko and Thawley JJ). The reasoning in AQM18 was based upon the terms of s 197C which was introduced into the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). However, it must be observed that the Explanatory Memorandum for the Bill explained the purpose of the new provision in terms that indicated that Australia would continue to meet its non-refoulement obligations (paras 1131 to 1146). In particular the Explanatory Memorandum included the following statements:

In general terms, section 198 currently provides for the circumstances in which an unlawful non-citizen is subject to mandatory removal from Australia as soon as reasonably practicable.

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.

…

[After referring to decisions of the High Court and this Court] 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.

…

This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia's non-refoulement obligations in respect of the non- citizen.

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.

(Original emphasis.)

14    The terms in which s 197C were expressed at the time of the Minister's decision the subject of the present appeal were as follows:

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.

15    In a subsequent decision where issues relating to the possibility of indefinite detention had arisen, there was regard to executive policy statements to the effect that Australia will not remove a non-citizen to a country in respect of a non-refoulement obligation to support the possibility, even though the Migration Act provided that there could be removal even if it would result in a breach of Australia's non-refoulement obligations: MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; (2021) 283 FCR 525.

16    Further, the then executive policy (expressed in the terms of a direction under s 499 of the Migration Act) was consistent with the terms of the Explanatory Memorandum. This was explained by Kenny and Mortimer JJ in WKMZ at [135]-[136] (referring to the then direction as Direction 79):

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.

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 …

(Original emphasis.)

17    Indeed, giving effect to such policies has itself given rise to issues as to the lawfulness of the detention: AJL20 at [67] (addressed in more detail below).

18    Since the decision of the Minister under review in the present case and since MNLR, s 197C of the Migration Act has been amended. It now provides that there is no requirement or authority to remove an unlawful non-citizen whose visa has been cancelled under s 501(3A) if the person has made a valid application for a protection visa which has been finally determined and what is described as a 'protection finding' has been made: s 197C. Without going to the detail, a protection finding is a finding in the context of an application for a protection visa that protection obligations are owed to that person having regard to the relevant provisions of the Migration Act in that regard.

19    As will emerge, the position of the Minister in the present appeal was to the effect that at the time of the decision under review there was no prospect of a person who was required to be removed from Australia being indefinitely detained because they would be removed even if that was contrary to Australia's international obligations. Therefore, there could be no error in the Minister not considering that possibility.

The relevant representations to and material before the Minister

20    The applicant relied upon the following matters which formed part of the representations made and material provided to the Minister by the applicant.

21    Firstly, the applicant was a refugee who was entitled to protection under international law.

22    Secondly, it was said that at a number of points the representations referred to the prospect for the applicant of indefinite detention if his visa was cancelled. The particular parts of the materials relied upon were as follows.

23    In an email exchange between the applicant and those responsible for requests for revocation of visa cancellations, the applicant said (under the subject 'Some more evidences'):

I said this because she is my case manager and she has a right to ring the home affairs and ask them on how the process is going, how long it will take for a decision to be made. I also understand there is no set time-frame for the consideration and processing of requests for revocation. That mean I the detainee can do life in detention. I am happy that I got this information for my tale and the whole will read it.

…

I served 4 years and ten months in jail. I have been taken out of my will and put in detention without a time limit. At least the NCCC should think about the suffering of their own kind because at the end of the day, each of us will die and God will judge us of whatever we do on this earth.

24    At the end of an email concerning whether those who came to Australia as refugees and whose visas have been cancelled on character grounds should be free from detention, the applicant said:

Please I am not a risk to no one in the community because I have written two books in detention and I don't think an author is a risk to anyone. I am now working on my third book and since then I have no idea when I will get out from this concentration camp.

25    These and other parts of the materials relied upon by the applicant did complain about the length of detention, but those complaints related to detention whilst he was seeking revocation of the visa cancellation (and pursuing a previous application for review in this Court).

26    Thirdly, reliance was placed upon references by the applicant to a book that he had written whilst in prison and detention which was entitled 'Indefinite Cruelty'. Beyond the name, it was not suggested that the references to the book raised a particular claim concerning the prospect of indefinite detention if the applicant's visa cancellation was not revoked. However, reliance was placed upon a media report of the book which placed it in the context of a report about indefinite detention in Australia. It was said that by referring to that report the applicant adopted the context of that journalistic narrative.

27    In our view, these materials are, at best, a thin basis for the submission that the prospect of indefinite detention was a clearly articulated basis upon which the applicant claimed his visa cancellation should be revoked. They are principally directed to complaining about the fact that the applicant has been held in detention for a considerable time without a decision being made as to whether to revoke the decision to cancel his visa. We are unable to accept the submission that a claim that the applicant was likely to be subjected to indefinite detention if the cancellation of his visa was not revoked was expressly presented in a clearly articulated way as a substantial claim made by the applicant.

28    Therefore, it is the alternative claim by the applicant to the effect that such a consequence clearly arose on the materials that assumes significance for present purposes.

29    The applicant also sought to rely upon reasoning in WKMZ. In that case Kenny and Mortimer JJ dealt with what was described as 'an alternative argument' that the Tribunal (in considering an application to review a decision by a delegate of the Minister to refuse to revoke a decision to cancel a visa) failed to really grapple with the consequences of a refusal to revoke. Those consequences were said to be informed by the low risk that Australia would breach its non-refoulement obligations and the prospect that Australia would adhere to a publicly stated policy position that it would seek to avoid the consequences otherwise imposed by s 197C of the Migration Act which (at that time) required removal irrespective of whether it would breach Australia's non-refoulement obligations: at [154]-[155].

30    In that case, the Tribunal had found that there was a low risk that the appellant would be removed in contravention of Australia's international obligations. As was observed at [161], the mirror of that proposition was indefinite detention. Yet, that was not considered by the Tribunal. Counsel for the appellant disavowed any argument to the effect that there was reviewable jurisdictional error because the Tribunal had failed to consider the effect of that uncertainty when evaluating whether to affirm the decision by the delegate of the Minister.

31    There is no suggestion in the present case that the Minister found that there was a low risk of removal in breach of international obligations. Therefore, the reasoning process in WKMZ provides no support for the applicant.

The relevant parts of the Reasons

32    As required by s 501G, the Minister gave the applicant a written notice that (a) set out the decision; (b) specified s 501CA(4) as the provision under which the decision was made; and (c) set out the Reasons.

33    The Reasons addressed whether the Minister was satisfied that there is another reason why the visa cancellation decision should be revoked. They contained the following general statement (para 11):

In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered [the applicant's] representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

34    There followed a summary of the reasons articulated by the applicant in his 'representations/documents' as to why the original decision to cancel his visa should be revoked. It included the following (para 12):

If returned to South Sudan he could be killed by his father's enemies, by relatives of the victim he injured in the 2013 assault, by rebels if he refused to join them, and by other tribes because of his Dinka ethnicity. He will be exposed to genocide and will die there.

35    There was no reference to the prospect of indefinite detention at that point.

36    After referring to the strength, nature and duration of the applicant's ties to Australia, the Reasons turned to 'International non-refoulement obligations'. Under that heading, the Reasons began by referring to the applicant's submission 'that he will face serious harm if returned to South Sudan and that this enlivens Australia's international non-refoulement obligations' (para 20). They referred to a submission that the applicant 'cannot be returned to his homeland because he will face serious harm' and that Australia has non-refoulement obligations under international treaties (para 21).

37    The Reasons then recorded the following as to the refusal of an application by the applicant for a protection visa (para 22):

The grounds for refusal were that [the applicant] was ineligible for grant of a Protection visa under s36(2C)(b) of the Act. However, I note that the delegate also found that, notwithstanding the decision to refuse the Protection visa on other grounds, Australia has international non-refoulement obligations towards [the applicant], because there is a real risk that he would be targeted for serious harm in South Sudan.

38    Although the Reasons then go on to conclude that the Minister was unable to make a finding as to a number of the bases upon which the applicant claimed to be owed non-refoulement obligations, it was accepted that he was owed non-refoulement obligations for some of the reasons he raised (paras 50ff). The Minister also accepted (para 54) the appellant could not be returned to any other country except South Sudan as his country of citizenship, and that he could not safely relocate from there to any other East African Community block country. This part of the Reasons led to the following conclusions which we set out in full due to their significance for the applicant's case (paras 55 to 59):

I have accepted the conclusion drawn by the Department that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations, with the country of reference being South Sudan. This means that his removal to South Sudan would breach these obligations. I also accept that there is currently no known prospect of removing him to any other country.

I am aware that the statutory consequence of a decision to not revoke [the applicant's] visa cancellation is that, as an unlawful non-citizen, [the applicant] 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 international non-refoulement obligations in respect of an unlawful non-citizen.

… I am aware that, as a result of a non-revocation, there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the applicant] will be prevented by s48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless I determine, under s48B, that s48A of the Act does not apply to him). Any application for visa other than a Protection visa will be subject to s501E of the Act, which will apply to [the applicant] as a result of my non-revocation decision under s501CA. This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation.

I am mindful that even if I do not revoke the cancellation of [the applicant's] Class XB Subclass 202 Global Special Humanitarian visa, I have a personal non-compellable power in s195A of the Act to grant a visa to him if I think it is in the public interest to do so. I also have a personal non-compellable power in s197AB to make a residence determination if I think it is in the public interest to do so. Such a determination would enable [the applicant] to leave held detention and instead be detained at a specified place in the community, subject to appropriate conditions.

I have considered that any removal of [the applicant] in breach of Australia's non-refoulement obligations would have serious implications not only for [the applicant] as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation. I have found that these considerations weigh in favour of revocation of the cancellation of [the applicant's visa].

39    Significantly for present purposes, the above conclusions expose the legal circumstances that the applicant would face despite the acceptance that he was owed non-refoulement obligations. The emphasis in the reasoning is upon the possibilities that the applicant might be granted a visa or be refouled in breach of Australia's international obligations. It appears to be those possibilities rather than the possibility of indefinite detention that the Minister has in view if the decision to cancel the visa was not revoked.

40    Two observations may be made about the reasoning as disclosed by the conclusion. Firstly, it refers to s 197C but not in terms that manifest a view that it requires refoulement. Rather, the language used reflects the terminology of the Explanatory Memorandum when s 197C was introduced, namely for the purposes of s 198 (the requirement for removal) non-refoulement is irrelevant. It also reflects the (then) executive policy in directions made under s 499 of the Migration Act, consistently with the structure of the Minister’s reasons, even if the directions did not bind him. This is not to say that the Australian executive expects to refoul people contrary to its international obligations. Rather, it prefers to address those obligations through other executive processes under the Migration Act. Therefore, the reference at this point of the Reasons to s 197C should not be read as embracing some view that the Migration Act would operate, in reality, so as to allow for the refoulement of those who have been found to be owed protection obligations.

41    Secondly, the final paragraph is addressing the possible consequences if the applicant was to be removed in breach of Australia's international obligations. It is not expressing the view that such an outcome is likely or that it is required by s 197C. Indeed it would be odd if it did given the purpose of the provision and the references in the Reasons to the possible exercise of the non-compellable powers.

42    For present purposes it is significant that the Minister reasons that the serious implications for the applicant of any such removal and the consequences for Australia's international standing and reputation weigh in favour of revocation of the cancellation of the visa. Notwithstanding the terms of s 197C, the Minister does not simply treat removal in breach of those obligations as legally required. In short, the focus is upon why non-refoulement obligations favour revocation of the cancellation decision. The conclusion that they do favour revocation does not mean that the Minister has otherwise formed a view as to what will occur in terms of removal if the cancellation decision is not revoked. Indeed, as we have noted, the reference to the possible exercise of the non-compellable powers of the Minister to grant a visa even if the visa cancellation decision is not revoked indicate to the contrary.

43    The Reasons then dealt with the applicant's criminal conduct and an assessment of the risk to the Australian community if his visa cancellation was revoked. The Minister concluded that there is an ongoing risk that the applicant will reoffend and further offending of a violent nature 'could result in physical and psychological harm to members of the Australian community' (para 97).

44    The Reasons then set out the Minister's 'Conclusion' (paras 101 to 105). Again by reason of its importance we set out the relevant paragraphs in full:

In considering, in light of [the applicant's] representations, whether I was satisfied that there is another reason why the original decision should be revoked, I have considered the length of time [the applicant] has made a positive contribution to the Australian community (11 years) and/or the consequences of non-revocation of the original decision for his family members.

On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the violent crime committed by [the applicant] in 2013, added to by the seriousness of his later violent offence whilst in prison.

Further, I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion involving violence. I could not rule out the possibility of further offending by [the applicant].

I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by [the applicant] than I otherwise would, because he has lived in Australia for most of his life.

In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his period of residence and ties, his employment, and familial to Australia, the hardship [the applicant's] family and his social networks will endure in the event the original decision is not revoked, that he is owed non-refoulement obligations, and the severity for him on a return to South Sudan.

45    It may be observed that despite the earlier reasoning concerning non-refoulement and the available power to return the applicant to South Sudan in breach of international obligations, that prospect is not addressed expressly in the conclusion. In short, it is not suggested by the terms of the conclusion that the Minister contemplates that a consequence of the decision will be refoulement in breach of Australia's international obligations.

46    Thereafter, the ultimate decision was expressed in the final paragraph of the Reasons in terms of the power to revoke not being enlivened with the consequence that the applicant's visa remains cancelled (para 106).

The Minister's position on the appeal

47    Counsel for the Minister submitted that indefinite detention was plainly not the legal consequence of the decision. In part, that was because the only powers that might be exercised in the case of the applicant if his visa cancellation was not revoked were the non-compellable powers of the Minister as referred to in the Reasons. It was submitted that consideration of their exercise (apparently unfavourably to the applicant, as the submission was expressed) would not be likely to result in a long period of delay. If, after consideration, a decision was made not to exercise the powers, then it was said, in effect and without reference to any probative material, that removal would follow soon after. But principally, the Minister's position was based upon a submission that the character of the decision made by the Minister was that the applicant would definitely be refouled to South Sudan because the state of the law at the time was that this could occur, even though that would involve a breach of Australia's international obligations.

48    No evidence beyond the terms of the Reasons was relied upon to support the submission. It depends upon a construction of the Reasons that would attribute a commitment to such a course to the Minister.

49    Two days after the Minister made the decision the subject of the appeal in the present case, the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) was introduced into Parliament. It proposed an amendment to s 197C(1) to provide that s 198 does not require or authorise removal of a person deemed to be an unlawful non-citizen in respect of whom a protection finding had been made through the protection visa process.

50    The Explanatory Memorandum presented with the Bill described its purpose in the following terms:

The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia's obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

(Original emphasis.)

51    It went on to state (para 18): 'The purpose of the amendments to section 197C is to restore its intended effect'. Later, as to the introduction of s 197C(3), the Explanatory Memorandum stated:

The purpose of subsection 197C(3) is to clarify that section 198 does not require or authorise an officer to remove an UNC to a country if the person made a valid application for a protection visa that has been finally determined, and in the course of considering the application, the Minister (or the Minister's delegate), made a protection finding (within the meaning of new subsections 197C(4)(5), (6) and (7) as described below) with respect to a country.

52    The statement of compatibility with human rights for the Bill said that the amendment would ensure that the removal powers do not require or authorise removal of persons for whom a protection finding had been made in circumstances where, to do so, would be inconsistent with Australia's non-refoulement obligations (p 12).

53    On 29 April 2021, the Parliamentary Committee on Joint Human Rights published a report on the Bill, Report 5 of 2021 [2021] AUPJCHR 43. In the report, the Committee made the following findings:

The measure appears to support Australia's ability to adhere to its non-refoulement obligations to the extent that it would provide a statutory protection to ensure that an unlawful non-citizen to whom Australia owes protection obligations will not be removed from Australia, even where they are ineligible for the grant of a protection visa.

…

Under the Migration Act, the consequence of a visa refusal or cancellation is mandatory immigration detention. This consequence is of particular concern in relation to individuals who have been found to engage Australia's non-refoulement obligations because, as clarified by the proposed amendments to section 197C in this bill, such individuals cannot be removed from Australia to the country in respect of which there has been a protection finding. This may give rise to the prospect of prolonged or indefinite immigration detention. The UN Human Rights Committee has made clear that '[t]he inability of a state to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention'.

…

While the minister's discretionary powers may provide some flexibility to treat individual cases differently, it is not apparent that they would necessarily serve as an effective safeguard in practice. This is because the minister is not under a duty to consider whether to exercise these discretionary powers; the threshold for exercising the discretionary powers is a broad public interest test; the powers are non-reviewable and non-compellable; and the powers do not attract the requirements of procedural fairness.

…

This measure may result in a significant interference with human rights as there is a risk that where a person is owed protection obligations and therefore cannot be removed from Australia, but is ineligible for a grant of a visa, they may be subject to ongoing immigration detention while they await removal. The statement of compatibility notes that removal may occur where the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations or a safe third country is willing to accept the person. However, without any legislative maximum period of detention and an absence of effective safeguards to protect against arbitrary detention, there is a real risk that detention may become indefinite, particularly where the circumstances in the relevant country are unlikely to improve in the reasonably foreseeable future. Where the measure results in the indefinite detention of certain persons, it does not appear to be proportionate to the aims of the measure.

(Footnotes omitted.)

54    Accordingly, the approach of the Minister in the present appeal which is to focus upon the terms of s 197C (and the reasoning in AQM18) as part of the context for the Reasons is to present an incomplete picture of the legislative and executive circumstances pertaining at the time of the decision. Further, it is evident that the changes proposed to s 197C (which were subsequently passed) were to 'clarify' that removal was not to occur in breach of Australia's international obligations as to non-refoulement (at least not contrary to findings that had been made to the effect that a person was owed protection). This is consistent with the terms of the Explanatory Memorandum at the time that s 197C was introduced (quoted above) which stated that, despite its introduction, Australia's international obligations were to be met. It is also consistent with executive policy promulgated at the time, as discussed in WKMZ.

55    In our view, the Reasons should be considered in that more fulsome context. Therefore, when the Minister referred to the 'serious implications … for Australia in terms of its international standing and reputation' the Minister should not be taken to have contemplated that the applicant indeed would be removed in breach of Australia's obligations if the visa cancellation decision was not revoked. That would be contrary to executive policy in existence at the time. That aspect of the Reasons is properly understood to recognise the seriousness involved if Australia were to remove the applicant given the non-refoulement obligations that he had be found to be owed. It is therefore a reason why the visa cancellation decision may be revoked. However, if it is not revoked then other provisions of the Migration Act come into play. The Reasons do not address how those events may unfold.

56    Later in the Reasons, when the Minister reaches his conclusion, there is reference to the non-refoulement obligations owed to the applicant, but not to whether he would be removed if the visa cancellation decision was not revoked.

57    In all the circumstances, the Reasons do not indicate an expectation on the part of the Minister that the applicant will necessarily be removed (in breach of Australia's international obligations) if the cancellation is not revoked, let alone promptly removed. They do no more than identify that the seriousness of that circumstance is a matter that weighs in favour of revocation. Otherwise, they leave uncertain what will occur in consequence of the decision not to revoke.

58    One possibility referred to in the Reasons is that the Minister may consider the exercise of the non-compellable powers. Despite the submission that was made, there was no basis for reaching a conclusion as to how long the Minister might take in deliberating about whether to exercise those powers. There was no evidence about the likely outcome of that consideration, nor could there be. Another possibility in the circumstances at the time was that the applicant may become subject to the amended terms of s 197C. Another possibility was that a view may be taken that it is reasonable to keep the applicant in detention notwithstanding the terms of s 197C because it is not reasonably practicable to remove him in order to conform to international obligations. It is apparent from the reasons of Kiefel CJ, Gageler, Keane and Steward JJ in AJL20 at [67] that such a course had been followed at about that time (albeit that it was found by their Honours in that case that it was to be distracted by an irrelevant consideration from the duty under s 198 to arrange removal). Of course, the decision in AJL20 was delivered long after the Minister made the decision the subject of the present appeal.

59    For all those reasons, once the Minister reached the conclusion that he did as to the existence of non-refoulement obligations and had in view the seriousness for Australia's interests if the applicant was removed then, irrespective of whether the issue had been raised by the applicant, the prospect of indefinite detention was squarely in view as a likely consequence of a decision not to revoke the visa cancellation decision. Yet there is no mention of that prospect in the Reasons.

60    Further, this is a case where it is not possible to infer from the Reasons that the failure to address the significance of indefinite detention may be explained on the basis that the Minister formed the view that it was a matter that was to be afforded little or no weight. A view of that kind would indicate a misunderstanding of the significance of the prospect of indefinite detention. Exposure to indefinite detention would be a most serious interference with a basic human right, especially where it would arise in circumstances where there was no apparent pathway by which the applicant might secure release at some future time (assuming the non-compellable powers were not exercised so as to grant him a visa).

61    It follows, in our view, that this is a case where the Minister has failed to identify, understand or engage with a very significant consequence which clearly arose on the materials (at least once the non-refoulement obligation was accepted). It is a case where the failure to refer to the significance of indefinite detention as a likely consequence supports the inference that the Minister has overlooked or misunderstood that consequence which, in all likelihood, would flow from a refusal to revoke the cancellation decision.

62    For those reasons, subject to being satisfied that there should be an extension of time and leave to advance the new ground, we would uphold the appeal ground.

Extension of time and leave to advance new ground

63    The position of the Minister was that the proposed appeal ground did not have any prospect of success and for that reason, the application for an extension of time should be refused. For reasons we have given, we do not accept that submission. It was also said that there was no explanation as to why the applicant did not take action himself to file his appeal within time. The extension of time that is sought is relatively short. The delay in filing has been explained by the affidavits filed and there is no articulated prejudice to the Minister. The point that is sought to be raised, though not advanced before the primary judge, is a short point of law.

64    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interest of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319. As was emphasised by Allsop CJ in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [2]:

The ultimate question is the interests of justice, which extend to the potential vindication of a just outcome, to which is relevant the seriousness of the consequences of the decision … [C]are is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules.

65    Generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where, as in the present case, the new point turns on a question of law: Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Griffiths and Perry JJ) at [20]. Further, when it comes to considering the interests of justice, there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ).

66    We are persuaded that in the circumstances of the present case especially having regard to the focussed nature of the ground and the consequences for the applicant that there should be leave to advance the new appeal ground.

Conclusion and orders

67    For reasons that we have given, there should be an order for an extension of time in which to appeal, leave to amend the proposed notice of appeal to advance the new ground as the only appeal ground and an order that the appeal be allowed with costs.

Associate:

Dated:    28 March 2023