FEDERAL COURT OF AUSTRALIA

DFTD v Minister for Home Affairs [2020] FCA 859

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    The applicant is an Indonesian national. He hails from what is now Indonesia’s West Papua province. Prior to 2006, he was involved with the Organisasi Papua Merdeka (or “OPM”), more commonly known (at least throughout the western world) as the Free Papua Movement. Over the years, that movement has attracted the ire of the Indonesian military; so much so that its adherents have been subjected to at least a degree of violent repression. In January 2006, the applicant travelled by boat to Australia in order to escape that threat of violence. In March 2006, he was granted a temporary protection visa under the Migration Act 1958 (Cth) (hereafter, the “Act”). That visa expired in 2009 and, in November 2011, the applicant was granted a Class SD (Subclass 851) “Resolution of Status” visa (hereafter, the “Visa”). It was—and remains—uncontentious that the applicant is a person in respect of whom Australia owes obligations of non-refoulement.

2    By a notice issued on 14 October 2016 pursuant to s 501(3A) of the Act, a delegate of the first respondent (hereafter, the “Minister”) decided to cancel the applicant’s Visa. The catalyst for that decision (hereafter, the “Cancellation Decision”) was the applicant’s criminal history. On 7 April 2014, the applicant was convicted of rape, aggravated burglary, indecent assault and theft. He was sentenced to five years’ imprisonment. Those convictions followed convictions in December 2009 for (amongst other things) sexual assault, unlawful stalking and burglary, for which he was sentenced to a total of three-and-a-half years’ imprisonment.

3    In response to an invitation extended to him under s 501CA(3) of the Act, the applicant petitioned for the revocation of the Cancellation Decision. He accepted that he did not pass the “character test” for which s 501(6) of the Act provides; but maintained, nonetheless, that there were other reasons why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act.

4    On 13 December 2018, a delegate of the first respondent (hereafter, the “Minister”) decided that the Cancellation Decision should not be revoked. The applicant applied to the second respondent (hereafter, the “Tribunal”) for a review of that decision. That application also failed: on 7 March 2019, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of his Visa. Written reasons were published in support of that decision (hereafter, the “Tribunal’s Decision”), the relevant particulars of which are explored further below.

5    The applicant now applies to this court under s 476A of the Act for judicial review of—which is to say for prerogative relief directed at—the Tribunal’s Decision. He alleges that it was the product of jurisdictional error. Two grounds of review were advanced in that regard, namely:

1.    The [Tribunal] failed to consider the legal consequences of its decision, specifically the legal consequences arising under ss 197C and 198 of the [Act], having regard to the finding that the applicant is a person in respect of whom Australia owes obligations to other nations not to return the applicant to Indonesia.

2.    The Tribunal failed to consider relevant government policy, being that the Commonwealth will not remove a person to a country if that removal would be contrary to Australia’s non-refoul[e]ment obligations.

6    For the reasons that follow, I do not accept that the Tribunal’s Decision was tainted by jurisdictional error of the kinds that the applicant alleges. The application will be dismissed with costs.

The statutory framework

7    Section 501 of the Act stipulates circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it 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…

8    Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for a revocation of that decision. The provision relevantly provides as follows:

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.

9    Section 496 of the Act broadly permits the Minister to delegate Ministerial functions. It relevantly provides as follows:

496 Delegation

(1)    The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.

10    Section 500 of the Act is titled “Review of decision”, and relevantly provides as follows:

(1)    Applications may be made to the Administrative Appeals Tribunal for review of:

…

(ba)    decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa…

11    As should be clear from the factual summary that appears above, there was no contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act (hereafter, the “Revocation Submissions”). Likewise, the applicant accepted (and still accepts) that he did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Tribunal was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation Decision ought to have been revoked.

12    Section 499 of the Act confers upon the Minister a power to issue directions to people or bodies that exercise powers or functions under the Act as to how those powers or functions are to be exercised or performed. Such directions are binding. Relevant presently is a written direction issued by the Minister under s 499 of the Act in December 2018, entitled “Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. That direction (hereafter, “Direction 79”) serves as a guide as to how the power conferred by s 501CA(4) of the Act might be exercised. It requires that decision makers who are charged with considering the exercise of that power must take into account a suite of identified considerations.

13    As the applicant’s grounds (above, [5]) suggest, ss 197C and 198 of the Act also assume some present significance. Broadly speaking, s 198 of the Act mandates the removal of unlawful non-citizens from Australia. Section 197C provides 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.

14    “[N]on-refoulement obligations” is defined by s 5(1) of the Act as follows:

non-refoulement obligations includes, but is not limited to:

(a)    non-refoulement obligations that may arise because Australia is a party to:

(i)    the Refugees Convention; or

(ii)    the Covenant; or

(iii)    the Convention Against Torture; and

(b)    any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

15    It was not in contest that the applicant was an “unlawful non-citizen” following the cancellation of his Visa. He is presently—and, since October 2018, has been—detained in accordance with s 189 of the Act.

16    Section 501E(1) of the Act precludes a person whose visa has been cancelled under s 501 from applying for a new one. That prohibition is subject to an important qualification, namely s 501E(2), which relevantly provides as follows:

(2)     Subsection (1) does not prevent a person, at the application time, from making an application for:

(a) a protection visa; or

(b) a visa specified in the regulations for the purposes of this subsection.

17    The second of the applicant’s grounds concerns an issue of government policy. Again, it is not contentious that the policy of the Australian government is (and was) that it will (and would) not return unlawful non-citizens to places in respect of which they hold (or held) a well-founded fear of persecution. The source and nature of that policy is explored in more detail below.

The Tribunal’s Decision

18    In affirming the Cancellation Decision, the Tribunal had occasion to consider the terms of Direction 79 and the matters of which it required that account be taken for the purposes of exercising the revocation power that s 501CA(4) of the Act confers. The Tribunal summarised its task as follows (Tribunal’s Decision, [50]):

As the Tribunal has found that DFTD does not pass the character test, the sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked. The Federal Court stated in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...

19    The Tribunal then proceeded to consider each of the matters that Direction 79 required it to consider. Under the heading, “Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”, the Tribunal recorded as follows (Tribunal’s Decision, [58]):

Counsel for DFTD argued that his six year prison sentence and cancellation of his [Visa] resulting in the prospect of forcible removal to Indonesia, with dire consequences to his personal safety, were mitigating factors against any concern that he will reoffend and has significantly reduced his risk of reoffending.

20    Later, the Tribunal rejected that submission, holding (Tribunal’s Decision, [71]):

DFTD’s own fears of further jail time or deportation to Indonesia are also not mitigating factors as he was well aware they were the consequences of reoffending and he did so regardless.

21    Under the heading, “Expectations of the Australian community”, the Tribunal recorded (Tribunal’s Decision, [83]):

Counsel for DFTD argued strongly that the potential consequences of the cancellation of his visa, namely the removal to Indonesia where his life was at risk or indefinite detention, are so significant and disproportionally punitive that an informed and reasonable member of the community taking into account all the matters raised above would expect the visa cancellation to be revoked.

22    That submission was accepted as a factor weighing in favour of revocation of the Cancellation Decision. Nonetheless, the Tribunal held (Tribunal’s Decision, [84]-[86]—emphasis added):

The Tribunal finds that fair-minded Australians would afford any individual a second chance, however DFTD has already been given a second chance when he was granted his [Visa] after his first term of imprisonment. The Tribunal finds that fair-minded Australians, apprised of all the facts, may not give a third chance to an individual who has repeatedly breached that trust, failed to learn their lessons and committed similar hideous offences. The Tribunal finds that the Australian community’s tolerance would be stretched in these circumstances.

The Australian community would be concerned about the risk of sending an individual back to a country where his life is at risk or to indefinite detention, realising the abhorrent psychological consequences of this outcome. However, the community apprised of DFTD’s repeat sexual offending would have a very low tolerance of offering him a third chance.

Accordingly, the Tribunal finds that the expectations of the Australian community weigh heavily in favour of affirming the decision to revoke cancellation DFTD’s visa under s 501CA(4) of the Act.

23    The Tribunal then turned to other considerations by which the exercise of its power under s 501CA(4) of the Act should be informed. Under the heading “International non-refoulement obligations”, the Tribunal noted as follows (Tribunal’s Decision, [87]):

87.     Paragraph 14.1 of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm (para 14.1(1)). Paragraph 14.1 further provides:

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

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

(3)     Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under 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 501E 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.

24    After reciting the competing contentions as to the significance of Australia’s obligations of non-refoulement, the Tribunal observed (Tribunal’s Decision, [96]-[98]):

The Tribunal is troubled by this factor as it finds that DFTD does have a genuine fear of reprisal should he be forced to return to Indonesia and that this fear is well placed...

The Tribunal accepts that DFTD has been found to be owed international non-refoulement obligations and as such the Tribunal finds it has a duty to consider non-refoulement regardless of his ability to apply for a protection visa. However the Tribunal reasserts its view that it is in DFTD’s best interests to lodge an application for a protection visa.

The Tribunal finds this factor should weigh in favour of the discretion being exercised to revoke the delegate’s decision to cancel DFTD’s visa under s 501CA(4) of the Act.

25    Under the heading “Extent of impediments if removed”, the Tribunal surmised (Tribunal’s Decision, [123]) that the applicant would:

…suffer significant impediments if removed from Australia particularly his well-founded fears of persecution, his inability to access support from his family and loss of his strong support network in Australia. There was significant evidence before the Tribunal that he would struggle to establish himself back in West Papua to find housing, employment and security. This consideration weighs in favour of revoking the cancellation of DFTD’s visa under s 501CA(4) of the Act.

26    Having analysed the various considerations that weighed both against and in favour of revocation of the Cancellation Decision, the Tribunal then summarised its conclusions as follows (Tribunal’s Decision, [124]-[125]):

There are considerations that weigh in favour of revoking the mandatory cancellation of DFTD’s visa. The foremost of these is the consideration of a non-refoulement obligation – an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm, which the Tribunal accepts DFTD will be exposed to. The Tribunal also notes the significant impediments DFTD will face upon return to Indonesia, namely his genuine fear for his safety and lack of housing, social and financial support, also weigh heavily in favour of revoking the mandatory cancellation of his visa.

Although there are considerations weighing in DFTD’s favour, the Tribunal finds that these considerations do not outweigh the two primary considerations, being the protection of the Australian community and the expectations of the Australian community, both of which weigh in favour of not revoking the mandatory cancellation of DFTD’s visa. DFTD’s offending was of a sexual nature, against women and very serious. There remains an unacceptable risk of DFTD reoffending. If he were to offend further if he remained in the Australian community, the consequences for a victim would be serious and unacceptable to the Australian public. Furthermore, it is the expectation of the Australian community that someone who has repeatedly breached the trust of the Australian community, especially after they have been warned, should not be granted the privilege to remain in Australia.

27    On the strength of those conclusions, the Tribunal resolved to affirm the decision of the Minister’s delegate not to overturn the Cancellation Decision. In doing so, it must be understood to have agreed that there was not “another reason” to revoke that decision pursuant to s 501CA(4) of the Act.

The application to this court

28    Both of the applicant’s grounds (above, [5]) assert that, in deciding not to revoke the Cancellation Decision, the Tribunal failed to take account of a matter upon the consideration of which its jurisdiction was conditioned.

29    In the case of ground one, the consideration in question is what is said to have been (or to be) a legal consequence of the Tribunal’s Decision, namely that the applicant will languish in immigration detention for a prolonged period (initially, the applicant identified “indefinite detention” as the legal consequence of which the Tribunal had failed to take account but it is now accepted that indefinite detention will, in fact, not occur).

30    In the case of ground two, the consideration in question is the policy of the Commonwealth government not to return unlawful non-citizens to countries in breach of Australia’s international non-refoulement obligations.

31    In each case, it is said that the Tribunal was obliged to but did not take account of those considerations (and, in particular, whether either or both of them might amount to, or otherwise ground the existence of, “another reason” why the Cancellation Decision should be revoked under s 501CA(4) of the Act). I turn, then, to consider each ground.

Ground one: failure to take account of legal consequences

32    By his written submissions, the applicant contended (references omitted and emphasis original):

In conducting the balancing exercise required of it, the Tribunal was obliged to consider the “legal consequences” of its decision.

In this case, the legal consequence of the Tribunal’s decision is that an officer of the Commonwealth acting [pursuant to] s 198 of the Act must remove the applicant from Australia, as soon as is reasonably practicable, so as to comply with the Act (and in light of s 197C). In this case, the only apparent place to where the applicant could be returned is Indonesia, despite Australia having made binding commitments to other nations not to return him there as he would face a well-founded fear of persecution there.

A conundrum indeed.

The Tribunal needed to grapple with the legal consequence of its decision to affirm the decision under review, which was that the applicant now has to be removed from Australia (subject of course to the resolution of judicial review proceedings, which have not been regarded as a relevant interposition upon the need for administrative decision makers to consider legal consequences of their decisions), and that would seem to involve a breach of Australia’s commitments to other nations because Indonesia seems to be the only place to where the applicant could be returned. Yet, Australian government policy is that it will not return the applicant to Indonesia, despite the command of ss 197C and 198 of the Act.

Perhaps the Australian government will look for a country other than Indonesia to where it might remove him from Australia, and the applicant would sit in (potentially prolonged) administrative detention meanwhile. Perhaps no such country will be found and the applicant will remain in administrative detention indefinitely. The obvious potential for these scenarios had to be considered by the Tribunal.

Had the Tribunal considered these matters, it could realistically have affected the outcome. Non-refoul[e]ment obligations was plainly a topic that received great weight in the Tribunal’s consideration, and the possibility of detention as a result of the above may have led it to place even more weight on this factor, which might have outweighed the adverse considerations.

33    The Minister accepts that the Tribunal “…must correctly understand the legal consequences of its decision”. I have understood that as a concession that the Tribunal was obliged to take account of the legal consequences—or, at the very least, some of the legal consequences—that attached to the discretion that it declined to exercise (namely, to revoke the Cancellation Decision).

34    This court has repeatedly held that administrative decision makers who exercise similar discretionary powers—specifically, powers to refuse or cancel visas on character grounds under s 501 of the Act—must first consider the legal consequences that arise from their doing so: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ; hereafter, “NBMZ”); Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 (North, Kenny and Perry JJ; hereafter, “Cotterill”); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 (Kenny, Flick and Griffiths; hereafter, “Taulahi”). I was not alerted to any full court authority that expressly extends that principle directly into the realm of revocation under s 501CA(4), although there are some that certainly appear to accept that it applies in that context, at least to some extent: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 (Robertson, Moshinksy and Bromwich JJ; hereafter, “BHA17”); BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (Bromberg, Davies and Mortimer JJ); DLJ18 v Minister for Home Affairs [2019] FCAFC 236 (Flick, Bromberg and Snaden JJ). Taulahi (particularly at 168 [84]; Kenny, Flick and Griffiths JJ) would seem to suggest that the principle applies as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power.

35    The obligation imposed upon decision makers who exercise discretionary powers under the Act to consider the legal consequences of their doing so has been held to arise implicitly from the subject matter, scope and purpose of the applicable legislative scheme: see, for example, NBMZ, 4 [6] (Allsop CJ and Katzmann J). In other words, it has been held that there is something about the subject matter, scope and/or purpose of the Act—or the parts of it that confer or pertain to particular powers—that, by implication, requires that the exercise (or non-exercise) of those powers be conditioned upon consideration of the legal consequences that arise therefrom.

36    For obvious reasons, I have not embarked upon a close study of the authorities that recognise the implied obligation to which the parties agree (or appear to agree) that the Tribunal in this case was subject (namely, to take account of the legal consequences of its decision—or, perhaps, at least some of them). I proceed (as I must) upon the assumption that the proposition is sound: specifically, that the Tribunal was obliged to condition the exercise (or, in this case, the non-exercise) of its statutory power upon prior consideration of the statutory (or legal) consequences (or at least some of the statutory or legal consequences) to which that exercise would give rise.

37    That invites consideration of three related questions: first, was the prospect of prolonged immigration detention one that can properly be described as a legal consequence of the Tribunal’s Decision; second, if it was, was it a consequence of the kind of which the Tribunal was obliged to take account; and third, if it were, did the Tribunal take account of that prospect in the course of making its decision?

38    I do not accept that the prospect that the applicant might be subjected to prolonged immigration detention can fairly be described as a legal consequence of the Tribunal’s Decision. Plainly, the applicant’s efforts to persuade the Tribunal (and, initially, the Minister’s delegate) to revoke the Cancellation Decision were designed to secure for him, by means of the Visa, an ongoing entitlement to remain in Australia as a lawful non-citizen. Nonetheless, it was not by reason of the Tribunal’s Decision that the applicant lost that entitlement. That was a consequence of the Cancellation Decision, which, of course, involved the mandatory exercise of statutory power under s 501(3A) of the Act. The legal consequences of the Tribunal’s Decision not to revoke that cancellation was that it remained undisturbed, as did the applicant’s status as an unlawful non-citizen (within the statutory meaning attributed to that phrase). I confess some difficulty in understanding how a state of affairs (here, the applicant’s becoming an unlawful non-citizen who was liable to be detained, possibly for a “prolonged” period) the existence of which pre-dates the making of a particular decision (here, the Tribunal’s Decision) might, nonetheless, amount to a consequence of that later decision.

39    But even assuming—as some authorities, including NBMZ, Cotterill and Taulahi, have found in the context of other statutory powers—that the legal consequences of the applicant remaining an unlawful non-citizen should properly be understood as legal consequences of the Tribunal’s Decision not to revoke the Cancellation Decision, those consequences do not include the prospect that the applicant might be subjected to prolonged immigration detention.

40    The primary legal consequence attaching to the applicant’s status as an unlawful non-citizen is that he must be removed from Australia as soon as might reasonably be practicable: the Act, s 198. The fact that the applicant is, as the Tribunal found (and as the Minister accepts), a person in respect of whom Australia owes obligations of non-refoulement has no bearing upon that requirement: the Act, s 197C (above, [13]).

41    The prospect, if there is one, that the applicant might languish for a prolonged period in immigration detention arises (at least in large part) because it is the policy of the Australian government that unlawful non-citizens in respect of whom there exist obligations of non-refoulement will not be returned to the countries within which they properly fear that they will be persecuted. In order that the applicant might be removed from Australia, there must first be somewhere to which he might be removed. His homeland, Indonesia, is not an option in that respect because taking him there would offend government policy. Thus, removal “as soon as reasonably practicable” might take longer in the case of the applicant than would otherwise be the case; but that is not so because of anything in the Act.

42    To observe that removal might take longer in the applicant’s case is to invite speculation as to what might be in store for the applicant following the Tribunal’s Decision. There are a number of avenues by which the applicant’s time in immigration detention might be brought to an end (and that do not involve him being sent to Indonesia). Perhaps the most obvious is that he might apply for and obtain a protection visa: a possibility that the Tribunal itself urged the applicant to explore (Tribunal’s Decision, [97]; above, [24]). The mere possibility of prolonged immigration detention is not a circumstance of which the subject matter, scope and/or purpose of the legislative scheme require, by implication, that a decision maker take account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act.

43    That last observation, it must be conceded, is difficult to reconcile with the conclusion of the full court in Cotterill. That case involved the discretionary cancellation of a visa on character grounds under s 501(2) of the Act. The appellant, Mr Cotterill, was in poor health and it was unlikely that he would be able to travel at the point that his visa was cancelled. On appeal (although not before the primary judge), he contended that the cancellation of his visa and his likely inability to leave Australia meant that he faced the prospect of indefinite detention. That, he said, was a legal consequence of the Minister’s decision to cancel his visa, which the Minister was obliged to (but did not) consider in the exercise of his discretion. Kenny and Perry JJ, accepting that submission, concluded (at 52-53 [133]) that the Minister was obliged:

…to take into account that indefinite detention is in prospect as a legal consequence of his proposed decision… [because the material before the Minister] indicated that there was a real possibility that the appellant’s removal would not be reasonably practicable on account of his ill-health and that, if this were the case, the appellant would face indefinite detention…

44    Their Honours recognised (also at 52-53 [133]) a factual distinction separating Cotterill from NBMZ: whereas indefinite detention was “virtually certain” in NBMZ, it was merely a “real possibility” or “in prospect” in Cotterill. Nonetheless, their Honours accepted that the Minister’s exercise of the power in question was subject to the obligation identified. North J came to an equivalent conclusion (at 48 [107]).

45    Those observations sat somewhat in contrast with observations made (albeit in obiter) a year earlier in Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Flick, Griffiths and Perry JJ; hereafter, “Ayoub”). Ayoub was also a visa cancellation case. The appellant, as in NBMZ and Cotterill, contended that the discretionary cancellation of his visa visited upon him a risk of indefinite detention because of legitimate fears that he held about being returned to his native Lebanon. He submitted that the Minister was obliged to, but did not, consider that prospect when making his decision. The court concluded (at 519 [17]) that the Minister, in fact, did consider that possibility. It went on, in any event, to observe in obiter (at 519 [19]):

NBMZ…is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.

46    Similar reasoning was adopted in COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148 (North, Collier and Flick JJ). That case involved an appeal from a judgment of the Federal Circuit Court of Australia, by which that court dismissed the appellant’s application for judicial review of a tribunal’s decision to cancel his visa. That visa, importantly, was not a protection visa. The appellant submitted that the tribunal’s decision was the product of jurisdictional error in that it had declined to consider his claim that he could not safely return to his native Afghanistan. The tribunal was, instead, satisfied that any such claims could be addressed in the context of a subsequent protection visa application (in the event that the appellant was minded to make one). This court, referring to Ayoub, dismissed the appellant’s contention (at 157 [38]):

The same reasoning is applicable in the circumstances of the present case. That reasoning is reflected in the decision of the Tribunal. The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.

47    In Minister for Immigration and Broder Protection v Le (2016) 244 FCR 56 (“Le”; Allsop CJ, Griffiths and Wigney JJ), the court again had occasion to consider whether the prospect of indefinite detention was a mandatory consideration that conditioned the exercise of the Minister’s discretion to cancel a visa under s 501(2) of the Act. The appellant had successfully contended before the primary judge that, because he was a person in respect of whom Australia owed obligations of non-refoulement, the cancellation of his visa would inflict upon him the prospect of indefinite immigration detention, which was a consequence arising from that decision of which the Minister had wrongly failed to take account. The Minister submitted that it was open to the appellant to make an application for a protection visa, and that any concerns about non-refoulement obligations or the prospect of indefinite detention could be resolved at that juncture.

48    In overturning the primary decision, the court embarked upon a thorough examination of the relevant full court authorities, including NBMZ, Ayoub, COT15 and Cotterill. As to the latter, it was observed (at 69 [58]—emphasis original) that the court in that case was not understood:

…to suggest that, in exercising the power under s 501(2), the Minister must in every such case take into account the prospect of indefinite detention as an aspect of the legal consequences of such a decision. In our view, it is significant that NBMZ involved a refusal to grant a protection visa on character grounds. It may be inferred that the appellant there was prevented by s 48A from making a fresh visa application in Australia and there was a finding by Allsop CJ and Katzmann J that the possibility of the appellant obtaining a visa under s 195A was simply a matter of speculation. The facts in Cotterill do not suggest that there was any factual basis for the appellant in that case to make an application for a protection visa in Australia or elsewhere. The prospect of his indefinite detention in Australia related to his ill-health and not to Australia’s non-refoulement obligations.

49    Noting that it would be “…unwise to be overly prescriptive in summarising the relevant legal principles”, their Honours offered (at 70 [61]):

…the following non-exhaustive summary of some of the relevant principles:

(a)     in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;

(b)     those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;

(c)     the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or s 501(2), there is at least a real possibility that the person’s removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act;

(d)     the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably — for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person’s health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;

(e)     in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;

(f)     this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or s 501(2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and

(g)     the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or s 501(2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances.

50    In this case, prolonged immigration detention—leaving aside the uncertainty inherent in that phrase—is not a prospect that arises as a statutory or legal consequence of the Tribunal’s Decision. Even if it were, it is not, on the strength of Le, a consequence to which the subject matter, scope and/or purpose of the Act required, by implication, that the Tribunal give consideration before making its decision under s 501CA(4) of the Act. The prospect of prolonged detention, if it exists at all, exists contingently upon circumstances unrelated to the Tribunal’s Decision.

51    Chief amongst those circumstances is that the applicant may apply—or, at the time of the decision, could apply—for a protection visa. In the context of such an application (assuming one were made), regard would be had to the circumstances that the applicant nominates as the source of the non-refoulement obligations by which he is covered: see Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J) (and, in particular, his Honour’s consideration—at [18]-[19]—of Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J)). That being so, there is no warrant for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned, in this case, upon consideration of those obligations. Given that it is those obligations (and their interplay with government policy) that was said to create the prospect of prolonged immigration detention in this case, I cannot see (and was not alerted to) any reason for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned upon consideration of that prospect (whatever it might be). This is not the first time that this court has reasoned in that manner: see BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 176 [85] (Bromberg J).

52    I should return to tackle the indefinite nature of “prolonged detention”. Counsel for the applicant described the concept as detention “…without a known end date” and “…until a solution is found”. Respectfully (and appreciating, as I do, the predicament in which counsel found himself, having accepted that “indefinite” detention was not in prospect), “detention without a known end date” is another way of saying “indefinite detention”. Detention “until a solution is found” is only slightly more helpful. The reference to a “solution”, in the present context, is a reference to the realisation of a state of affairs by which the applicant, having failed to have the Cancellation Decision revoked, might be removed from immigration detention. In most cases, that occurs by means of removal to the former visa holder’s country of origin. Sometimes, it occurs after the exhaustion of judicial review processes (including appeals), many months—and sometimes much longer—after the non-revocation decision is made. In this case, the applicant’s removal from immigration detention could result from the applicant’s removal to a country other than Indonesia or from the granting to him of a protection visa. If circumstances permit (or, perhaps more accurately, change), it might result from his return to Indonesia (unlikely though that presently seems). It could, of course, result from a beneficial re-exercise of the power under s 501CA(4) of the Act, were the Tribunal’s Decision to be set aside.

53    Howsoever a “solution” manifests in any given case, there is always a period following the non-exercise of the power conferred by s 501CA(4) of the Act during which the non-citizen will remain subject to immigration detention. Where (as occurs frequently) review or appeal rights are engaged, that period can be more than trivial. There is nothing about the subject matter, scope or purpose of the relevant legislative provisions that, by implication, conditions the non-exercise of the power conferred by s 501CA(4) of the Act upon prior consideration of the likelihood that a former visa holder will be detained for a lengthy period whilst those processes play out. It is not apparent to me why the subject matter, scope or purpose of the provisions should be thought to condition, by implication, the non-exercise of the power upon prior consideration of that prospect (lengthy detention) inasmuch as it might arise in any other way (including, for example, as a consequence of executive policy and its interplay, in a given case, with accepted non-refoulement obligations). The applicant did not advance any submissions in that regard.

54    The prospect of the applicant’s being subjected to prolonged immigration detention was not a consideration of which the subject matter, scope or purpose of the Act (or the relevant parts of it) required that the Tribunal take account before declining to exercise its power under s 501CA(4) of the Act. The Tribunal’s failure to take that prospect into account en route to the making of its decision does not qualify as jurisdictional error. The applicant’s first ground of review is not made out.

Ground two: failure to take account of government policy

55    It was common ground between the parties that the policy of the Australian government is and was that unlawful non-citizens are not to be removed from Australia to places in respect of which they hold a well-founded fear of persecution. The applicant contends that the Tribunal was obliged to take account of that policy (hereafter, the “Non-Refoulement Policy”) in forming its view as to whether or not to revoke the Cancellation Decision. He says that it did not do so and that that failure amounts to jurisdictional error. Two questions arise for the court’s consideration: first, was the Tribunal obliged to take account of the Non-Refoulement Policy; and, second, did it do so?

56    As to the first of those two questions, the applicant contended that the Non-Refoulement Policy was “directly relevant to a critical issue before the Tribunal” and that, that being so, the Tribunal was obliged to consider it. He cited Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (“Gray”; Neaves, French and Drummond JJ) as authority for that proposition.

57    Gray concerned a deportation order made under what was then s 55 of the Act. The power conferred thereunder had been the subject of a formal policy, developed several years earlier, concerning the deportation of certain non-citizens. That policy had been communicated to the Commonwealth Parliament by the then Minister for Immigration and Ethnic Affairs. Amongst other things, it stipulated some guidelines as to when deportation might occur. The respondent had succeeded at first instance in quashing a decision of the Tribunal that affirmed the making of an order that he be deported. The Tribunal had considered the stipulations contained in the policy; but the respondent contended (and the court, both at first instance and by majority on appeal, agreed) that it had materially misunderstood it.

58    Before addressing the central issue in Gray (namely, whether the Tribunal had materially misunderstood the nature or import of the relevant executive policy), the majority (French and Drummond JJ) considered the circumstances in which administrative decision making might be conditioned upon consideration of government policy. Their Honours observed (at 206):

The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application…

…

…Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case.

59    There are obvious points of difference separating Gray from the present case. In Gray, the policy of which the Tribunal was bound to take account was one specifically aimed at the exercise of the power that was in issue in that case. It was one whose development and promulgation the legislature was presumed to have contemplated; and to which it was presumed to have intended that decision makers would give consideration in the course of exercising the power. Here, by contrast, the Non-Refoulement Policy exists as an incident of commitments that Australia has made to other nations. It exists independently of the power conferred by s 501CA(4) of the Act.

60    There is no general, wide-ranging obligation imposed upon the Tribunal (either expressly or as a matter of implication arising from the subject matter, scope or purpose of the legislation) to take account of executive policy when considering an exercise of power under s 501CA(4) of the Act. In the present case, I am unable to identify—and the applicant did not nominate—anything about the subject matter, scope or purpose of the relevant provisions that, by implication, conditions the exercise or non-exercise of power under s 501CA(4) of the Act upon consideration of the Non-Refoulement Policy. The Tribunal was not obliged to take account of that policy prior to making its decision.

61    In any event, I do not accept that it failed to do so. Whether a decision maker has failed to take account of a particular consideration is a question of fact. Absent direct evidence from a decision maker as to what was or was not taken into account for the purposes of a given decision, a failure to take account of a particular consideration must be established as a matter of inference.

62    An inference that a decision maker has failed to consider an issue is one that should not too readily be drawn in circumstances where the reasons for a given decision are comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ). The court requires clear evidence before such an inference might be drawn and it is the applicant who bears the evidential onus: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ).

63    In this case, it cannot safely be inferred that the Tribunal failed to take account of the Non-Refoulement Policy. The Tribunal was plainly alive to its existence: it is expressly referred to in Direction 79, which the Tribunal’s Decision relevantly extracted (at [87]; above, [23]). The fact that the Tribunal’s Decision does not identify the significance (if any) that the Non-Refoulement Policy assumed in this case is not a sufficient basis upon which to infer that it went unconsidered. The Tribunal was not obliged to say anything in particular about it. That it didn’t do so is neither here nor there. Even assuming, contrary to my conclusion above, that the Tribunal was obliged to take account of the Non-Refoulement Policy, I do not infer that it failed to do so.

64    The applicant’s second ground of review is not made out.

Conclusion

65    Neither of the applicant’s grounds of review is made out. The application must (and will) be dismissed with costs.

Associate:

Dated:    23 June 2020