Federal Court of Australia

CPJ16 v Minister for Home Affairs [2020] FCA 1408

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for relief in relation to her allegations of “bad faith/misfeasance in office” in paragraph 9 of her amended originating application filed on 31 July 2020 be listed for case management, if necessary, at a date to be fixed.

2.    The applicant’s amended originating application filed on 31 July 2020 is otherwise dismissed.

3.    The Minister’s costs of the application to the date of these orders be reserved, pending resolution of the misfeasance claim.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application for review of a decision made personally by the Minister to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant’s application for a protection visa. For the reasons that follow, the applicant’s arguments should be rejected.

Background

2    There is a lengthy background to the current application. The applicant is a citizen of New Zealand who entered Australia in 2009 on a false passport. In 2010, once it was discovered that she had used a false passport to enter the country, a delegate of the Minister cancelled her visa and she was taken into immigration detention. A few days later she absconded and lived in the community until 2015, when she was located and taken back into immigration detention.

3    On 21 September 2015, she applied for a protection visa. The basis of her application was that an ex-partner, who had gang connections, had put out a contract to have her killed because he believed she had betrayed him to police. The applicant claimed she had moved to another part of New Zealand but was constantly afraid of being recognised, because of the country’s small population. She claimed she had not reported the alleged contract to the police because that would make it seem like she was in fact a police informant. She claimed that, in any event, the police would not be able to protect her.

4    On 16 December 2015, a delegate of the Minister refused the applicant’s protection visa application. The delegate found that the applicant did not satisfy s 36(2) of the Migration Act 1958 (Cth), which relevantly requires that an applicant for a protection visa be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations.

5    The applicant applied for review of the delegate’s decision in the Tribunal. On 4 August 2016, the Tribunal affirmed the delegate’s decision, but on 14 June 2017 the Federal Circuit Court ordered by consent that the decision be set aside and remitted the applicant’s application to the Tribunal.

6    On 18 December 2017, a differently constituted Tribunal set aside the delegate’s decision and remitted the application for reconsideration with the direction that the applicant satisfied s 36(2)(aa) of the Act on the basis that the applicant’s ex-partner had put out a contract to have her killed and that authorities in New Zealand would not be able to protect her.

7    On 7 September 2018, a different delegate again refused the applicant’s visa application, this time under s 501(1) of the Act, which provides that the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. The delegate found that the applicant did not pass the character test because there was a risk that she would engage in criminal conduct in Australia if she were allowed to remain in the country (see s 501(6)(d)(i)). That finding was based primarily on the applicant’s “extensive criminal history” and “other serious conduct”, which is discussed further below.

8    The applicant again applied for review of the delegate’s decision in the Tribunal. This was her third review application before the Tribunal. On 3 December 2018, the Tribunal affirmed the delegate’s decision, but on 25 February 2019 the Federal Court ordered by consent that the decision be set aside and remitted the applicant’s application to the Tribunal.

9    On 18 September 2019, a differently constituted (fourth) Tribunal set aside the delegate’s decision and remitted the application for reconsideration with a direction that the applicant was not to be refused the visa under s 501(1) of the Act. The Tribunal considered that, as the applicant had been found to be a person in respect of whom Australia has protection obligations, “good government” required that the discretion conferred by s 501 of the Act be exercised in favour of the applicant because (at [20]):

(a)    sending the applicant back to New Zealand would put Australia in breach of its international obligations;

(b)    the alternative to sending the applicant back to New Zealand – indefinite or prolonged detention – “would be open only to the criminal courts, not a member of the executive branch of government”; and

(c)    there were strong humanitarian reasons for exercising the discretion in the applicant’s favour.

10    The Tribunal was not satisfied there was a risk that the applicant would engage in criminal conduct if she were allowed to remain in Australia, primarily because she had compelling reasons not to engage in such conduct and she had not committed any offences since 2010 (at [52]). The Tribunal declined an invitation by the Minister’s representative during the review to consider in the alternative whether the applicant failed the character test because she was not of good character within the meaning of s 501(6)(c) of the Act.

11    The Minister and the applicant both sought review of the Tribunal’s decision in this Court, that being the third time the applicant was participating in a judicial review proceeding about her protection visa application. The Minister sought to have the Tribunal’s decision quashed, and the applicant sought declaratory relief and an order compelling the Minister to determine her visa application in accordance with the Tribunal’s second decision: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. The impetus for the application for declaratory relief was that the Minister had by this point given notice to the applicant that he was considering using his personal powers under s 501A(2) of the Act to set aside the Tribunal’s decision and refuse the applicant’s visa application. The question was whether this notice of intention operated to prevent the Minister or his delegate granting the applicant a visa under s 65(1) of the Act. On 25 November 2019, the Court dismissed the Minister’s application and granted the relief sought by the applicant, ordering the Minister to determine the applicant’s application on or before 6 December 2019.

12    On 6 December 2019, the last day for compliance with the Court’s orders, as foreshadowed in the Minister’s notification the subject of the Court’s declaratory relief in CPJ16 [2019] FCA 2033, the Minister purported to exercise his personal power under s 501A(2) of the Act to set aside the Tribunal’s decision, and refuse the applicant’s protection visa application.

13    Two weeks later, the Minister then appealed from this Court’s orders in CPJ16 [2019] FCA 2033. Given that the Minister had already purported to exercise his powers under s 501A(2) of the Act, the appeal was dismissed as moot: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87.

14    In exercising his personal power under s 501A(2) of the Act, the Minister found that the applicant did not pass the character test because she was not of good character within the meaning of s 501(6)(c) of the Act. In reaching this conclusion, the Minister referred to the applicant’s criminal history, her disregard for Australia’s immigration laws, her behaviour in detention, and information which suggested to the Minister the appellant had in the past “exposed her children to a risk to their health and wellbeing” (at [69]). The Minister found it was in the national interest to cancel the applicant’s visa on account of her criminal and other serious conduct, the risk that she would engage in such conduct in the future, and “the importance of preserving a positive and enduring bi-lateral relationship with New Zealand”, which in the Minister’s opinion would be compromised if Australia were to facilitate the applicant’s evasion of the New Zealand justice system by granting her a protection visa (at [119]). The Minister stated that, having found that the applicant did not pass the character test and that it was in the national interest to refuse her application for a protection visa, he considered whether to exercise his discretion to refuse her application and decided to do so taking into account the interests of her son, the expectations of the Australian community, Australia’s international non-refoulement obligations, and the strength, nature and duration of the applicant’s ties to Australia.

15    On 9 December 2019, the applicant sought review of the Minister’s decision: see CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980. Excluding the Minister’s appeal to the Full Court, this was the fourth judicial review proceeding in relation to her protection visa application. The applicant did not challenge the Minister’s findings that she did not pass the character test. Instead, the applicant submitted that the Minister’s decision was affected by error: first, because in deciding whether to exercise his discretion to refuse the applicant’s application he had failed to engage properly with the consequences of his refusing her application; second, because in his consideration of the national interest criterion he had taken into account either or both of two irrelevant considerations; namely, the importance of preserving a positive relationship with New Zealand and the potential exploitation of Australia’s visa system by individuals seeking to evade the New Zealand justice system.

16    The Court accepted the applicant’s submissions on both grounds. The Court found that the Minister had failed to “squarely address that the actual consequence of his decision would be that there was a real risk that the applicant would be killed or seriously harmed after being refouled” (at [47]). The Court also found that the Minister’s consideration of the national interest criterion was flawed because it was premised on a false characterisation of the applicant: as merely a person trying to avoid New Zealand’s criminal justice system, rather than a person at real risk of being killed or seriously harmed. Consequently, on 9 July 2020, the Court set aside the Minister’s decision and ordered the Minister to determine the applicant’s application for a protection visa according to law on or before 23 July 2020.

17    This remitter meant that there would be an eighth decision on the merits of the applicant’s protection visa application, by either a delegate, the Tribunal or the Minister himself.

The decision under review

18    On 23 July 2020, again the last day for compliance with the Court’s orders, the Minister once more exercised his personal power adversely to the applicant, setting aside the Tribunal’s decision of 18 September 2019, and refusing to grant the applicant a protection visa. On this occasion, however, the Minister sought to exercise the power conferred on him by s 501A(3), which, unlike s 501A(2), is stated not to be subject to the rules of natural justice. In these reasons I will refer to the decision under s 501A(2) as the Minister’s first decision and the decision under s 501A(3) as the Minister’s second decision. In both cases, the nature of the power is one which authorises the Minister to “override” the conclusion reached by the Tribunal under a full merits review process. It is an extraordinary power in a system so heavily premised on merits review as that contained within the Migration Act.

19    It is apparent that large passages of the Minister’s second decision have been copied from the Minister’s first decision. Indeed, the only major changes are that the discussion about Australia’s bilateral relations with New Zealand (found by the Court to be extraneous) has been removed, and a few new paragraphs have been added about the harm the applicant is likely to face if she is sent back to New Zealand (also a matter the Court found affected the validity of the Minister’s first decision). There are a number of other editorial changes between the two documents, but a large portion of the substance of the reasons is the same, as if the drafter has taken the first decision as a template, addressed the matters said to be erroneous by this Court, and made some stylistic changes.

20    It is understandable, given this feature of the Minister’s reasons for the second decision, and given the history of her protection visa application, that the applicant contends that the Minister has “made the same decision”.

21    The Minister’s reasons are divided into three sections addressing: first, whether the applicant passed the character test; second, whether it was in the national interest to refuse the applicant’s visa application; third, whether to exercise his discretion to refuse the applicant’s visa application. It is convenient, for the purposes of the summary that follows, to use the same headings.

Character test

22    The focus of the Minister’s consideration of whether the applicant passed the character test was again on s 501(6)(c) of the Act. In this part of his reasons, the Minister began by listing the offences of which the applicant had been convicted in both Australia and New Zealand, which included driving offences, drug offences, shoplifting and assault. The last recorded offence was in 2010, immediately before the applicant was taken into immigration detention. The Minister acknowledged that the applicant had received only one custodial sense – 28 days for a drug offence – but he considered that the applicant’s offending could not “be said to be anything other than consistent and extensive” (at [47]) and that her offending had “escalated in seriousness” (at [48]).

23    The Minister referred to the applicant’s pending charges in New Zealand, including “supplying fantasy” (which appears to be another name for the drug GHB) and “failing to answer court bail” (at [50]). He stated that, although the applicant must be presumed innocent until proven guilty, he had taken into account that the applicant “continued to come to the attention of New Zealand police … with bail only being granted with the condition of the removal of her passport” (at [53]).

24    Next, the Minister addressed what he referred to as the applicant’s “dishonest conduct”. He found that the applicant had:

(a)    entered Australia on a false passport (at [55]);

(b)    lied on her incoming traveller card (at [60]);

(c)    absconded from immigration detention (at [58]);

(d)    made no attempts to regularise her immigration status (at [59]);

(e)    given a false name to police and a court when she was located in 2015 (at [59]); and

(f)    provided a fraudulent document to the Tribunal in 2017 (at [61]).

25    The Minister referred to the applicant’s submissions as to mitigating factors: namely, that she had a difficult childhood and absconded from immigration detention because she was afraid of being sent back to New Zealand. He concluded (at [64]), in a paragraph taken from the first decision:

I do not accept that [the applicant’s] explanations justified her pattern of dishonest conduct. In totality, I consider her interactions with immigration officials and her repeated failures to comply with Australia’s immigration and border rules, demonstrates a systematic and reckless pattern of behaviour, including a marked lack of respect for immigration laws. In reaching this conclusion, I consider the observance of immigration rules by non-citizens entering or residing in Australia, are of fundamental importance in protecting the borders from foreseeable security and criminal threats.

26    The Minister then turned to the applicant’s relationship with her children (an eight-year-old son in Australia and an adult son in New Zealand), which he considered it was necessary to take into account “to obtain a complete picture of [the applicant’s] character” (at [65]). The Minister stated that the applicant’s New Zealand son had been removed from her care: first temporarily, after she put her New Zealand son (then three) at serious risk of death by “fleeing the scene when he accidentally ingested a substance from her handbag” and “refusing to provide the bottle from which the child had ingested the substance to the hospital to assist them in their treatment” (at [66]); then permanently, after she was found intoxicated in a methamphetamine lab (at [68]). The Minister stated that the applicant’s Australian son had also been removed from her care, with the Children’s Court of New South Wales having sought and obtained an undertaking from the child’s father that he would not return the child to the applicant’s care (at [73]). The Minister referred to the applicant’s submissions that the New Zealand reports were based on false information (at [67]-[68]) and that she was a loving mother to her Australian son (at [72]), but he ultimately concluded that her actions in respect of her children reflected negatively on her character (at [74]).

27    Finally, in this part of the Minister’s reasons, the Minister referred to the applicant’s conduct in immigration detention. He stated that she had been found in possession of contraband (primarily alcohol), had verbally and physically abused other detainees and staff, had made threats of self-harm, and had damaged property (at [75]). The Minister acknowledged that no charges had been brought against the applicant in relation to her conduct in immigration detention, and that the Tribunal was of the view that her conduct was a product of her frustration and anger at her situation (at [76]), but he did not accept this as justification for her behaviour (at [78]).

28    The Minister concluded that the matters he had referred to showed “an absence of good character and a lack of enduring moral quality” (at [79]) and found that the applicant was not of good character within the meaning of s 501(6)(c) of the Act (at [80]).

29    This entire section of the Minister’s reasons was substantially taken from the first decision.

National interest

30    In this part of his reasons, the Minister began by explaining his understanding of the concept of the national interest. He stated that it was largely a political question (at [83]) and that it had been entrusted to him by Parliament to determine according to his own (reasonably obtained) satisfaction whether it was in the national interest to refuse the applicant’s protection visa application. The Minister stated in this introductory passage that he had considered that Australia’s international non-refoulement obligations were relevant to the national interest (at [84]).

31    The Minister stated that he had taken into account, in his consideration of the national interest, the matters referred to in his consideration of the character test, and that he considered that the applicant’s “criminal conduct” and “other serious conduct” was “serious” (at [87]-[88]).

32    The Minister then addressed the risk that the applicant would reoffend or engage in other serious conduct if granted a visa. The Minister noted that the applicant submitted she would not reoffend or engage in other serious conduct because:

(a)    her past conduct, including her criminal conduct, could not be characterised as serious (at [96]);

(b)    she had had a difficult childhood but had turned her life around, completed various rehabilitation courses, and was now a practising Christian (at [98]-[100]);

(c)    she was determined not to reoffend so that she could raise her son and avoid being returned to immigration detention, which she abhorred (at [97] and [103]); and

(d)    if she is released into the community she will have the support of her husband and will be able to receive proper psychiatric treatment to help her overcome post-traumatic stress disorder, anxiety and depression (at [105]).

33    The Minister stated, however, that reports of incidents in 2016 and 2017 indicated that the applicant had sought to “possess and use” alcohol in immigration detention (at [107]) and that he remained concerned about the applicant’s “ability to refrain from problematic use of alcohol, and, potentially, the resumption of illicit drug use, in the community, when she is not subject to supervision” (at [111]). The Minister concluded on the basis of the applicant’s criminal history, flouting of Australia’s immigration laws, and conduct in immigration detention that there was a risk that she would reoffend or engage in other serious conduct and that such a risk was unacceptable to the Australian community (at [114]-[115]).

34    To this point, the reasons are substantially the same as the first decision, with minor changes such as the substitution of one case about the national interest for another.

35    The Minister stated that he had taken into account Australia’s international non-refoulement obligations and that he accepted the applicant is a person in respect of whom Australia has protection obligations (at [116]). He stated that he was aware that the government takes its international obligations seriously. He concluded, however, that, notwithstanding those obligations, it was in the national interest to refuse the applicant’s visa application (at [118]). This section of the reasons was rewritten to remove some of the text which led to one of the jurisdictional errors identified by this Court, and to include other text.

Discretion

36    In the final part of his reasons, the Minister considered whether to exercise the discretion which he found he had to refuse the applicant’s visa application.

37    The Minister first considered the best interests of the applicant’s eight-year-old son. The Minister stated that the son visits the applicant in detention approximately every two weeks (at [123]) and that, according to the child’s father, this makes the son’s life “a little bit easier” (at [124]). The Minister referred to the applicant’s submission that her adult son wishes to come to Australia to live with her if she is granted a visa, and it is in the interests of her eight-year-old son to spend time with his brother (at [138]). The Minister stated that he had treated the best interests of the applicant’s eight-year-old son as a primary consideration (at [139]) and found on balance (notwithstanding allegations of neglect) that it was in the son’s interests for the applicant to be granted a visa.

38    The Minister then considered the expectations of the Australian community. The Minister stated that the Australian community would expect that a person with an extensive criminal history and who had shown disregard for Australia’s immigration laws would not be granted a visa (at [146]).

39    To this point in this section, the reasons remain substantially the same as those for the first decision, with no more than stylistic alterations.

40    Next, the Minister considered Australia’s international non-refoulement obligations. The text of this part of the reasons has been expanded, at least in part I infer to address one of the errors identified by this Court. The Minister stated that he accepted the applicant would face significant harm if returned to New Zealand (at [158]), that there was no prospect of sending her to any other country, and that if Australia sent her back to New Zealand it would breach its international non-refoulement obligations (at [160]). In a passage taken without modification from the first decision, the Minister stated (at [162]):

I am aware that the statutory consequence of a decision to set aside the original decision and refuse to grant [the applicant’s] Protection visa is that, as an unlawful noncitizen, [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 non-refoulement obligations in respect of an unlawful non-citizen.

41    This appears to be tantamount to a statement that, subject to an exercise in her favour of the Minister’s non-compellable power in s 195A of the Act, unless the Minister’s decision is disturbed, the applicant will be sent back to New Zealand notwithstanding that it is accepted that this will be a breach of Australia’s international non-refoulement obligations. The Minister found that these considerations weighed in favour of non-refusal of her application.

42    The Minister noted that, unless she is granted a visa, the applicant will remain in detention until she is sent back to New Zealand. The Minister referred to the applicant’s claims that she is not safe in detention, which were accepted by the Tribunal, and he found that her continuing detention “would have a detrimental impact on her mental and physical health” (at [170]). The Minister found that this weighed in favour of non-refusal of her application. This paragraph was new text.

43    The Minister then considered the strength, nature and duration of the applicant’s ties to Australia. This section was substantially unaltered from the first decision. The Minister accepted that the applicant “has some family and social ties to Australia”, in particular her eight-year-old son and husband (at [176]-[177]). He accepted that a consequence of his refusing the applicant’s visa application was that her immediate family would “suffer hardship” and her friends would be “disappointed” (at [181]-[182]). He also found that, while living in the community before her visa was cancelled in 2010, the applicant had made a “limited positive contribution to the community through her lawful employment for a short period of time” (at [184]).

44    The Minister concluded that these factors were outweighed by the risk of the applicant engaging in further criminal or other serious conduct and the expectations of the Australian community (at [185]-[191]). These passages had some minor stylistic changes and removed a reference to Australia’s relationship with New Zealand, but were otherwise in substance the same as the first decision. The Minister therefore decided to exercise his discretion to refuse the applicant’s visa application.

The current proceedings

45    The applicant filed the application the subject of the Court’s orders today on 24 July 2020. She amended the application with leave of the Court on 31 July 2020. In support of her application she filed an outline of submissions and a document described as a statement of claim, but which in substance also contained submissions. The Minister did not object to the document being treated as part of her submissions.

46    On 5 August 2020, the Court held a case management hearing to address the question of the applicant having no legal representation, and the timetable for a hearing. The Court explained to the applicant that it could make a referral for pro bono legal assistance. The applicant was initially hesitant but ultimately agreed with this course. As it turned out, when senior counsel and an instructing solicitor from a large law firm accepted the referral, the applicant indicated she proposed to decline their assistance.

47    Timetabling was complicated by the fact that while the applicant’s amended originating application is, in part, an application for judicial review of the Minister’s second decision, it also seeks other relief relating to allegations of false imprisonment and misfeasance in public office. At the case management hearing, the applicant emphasised that she wanted her proceeding dealt with as soon as possible, as she was finding immigration detention intolerable. The Court gave weight to her circumstances, but recognising that the applicant sought discovery and that the remainder of her allegations were likely to involve an evidentiary trial, the Court ordered that the applicant’s application for judicial review be heard separately from the balance of the amended application and listed that part of the proceeding for hearing on 10 September 2020. The applicant had requested that all her other allegations be dealt with on 10 September 2020, but the Court explained to her why that was not possible, given the nature and content of the remainder of her allegations. The Minister did not oppose the severance of the judicial review and the false imprisonment/misfeasance allegations.

48    A further case management hearing was held on 28 August 2020 to confirm the applicant’s position in relation to legal representation. It was at this point that the applicant confirmed that she intended to represent herself, having previously given an indication to the same effect in correspondence. At the case management hearing, the applicant sought to raise new substantive arguments about the lawfulness of her detention under the International Covenant on Civil and Political Rights and sought to have them dealt with immediately. Again, this seemed motivated by her difficulties in coping with immigration detention.

49    The Court informed her that those arguments would not be dealt with at the case management hearing. Leave was, however, granted to the applicant to raise those arguments at the hearing on 10 September 2020. Properly, the Minister did not object to such a course, and the Court was careful to emphasise that this new claim was a direct challenge to the lawfulness of the applicant’s detention in reliance – only – on the ICCPR. As I explain below, on the present state of the law that contention cannot succeed.

The amended application

50    The applicant does not in terms seek an order quashing the Minister’s second decision, but that is implicit in the relief she does seek, which is “relief in the form of a peremptory mandamus writ for the Minister to discharge the duty of section 65 of the Migration Act, and grant the Applicant’s Protection visa”.

51    The grounds on which the applicant indicated she wished to rely at the hearing on 10 September 2020 are as follows:

2.    The Minister’s decision in the National Interest is invalid, non-compliance with the previous Federal Court orders of Rares J, on the 9th of July, that set aside the National Interest decision. The Minister’s non-compliance/contempt of the recent Federal Court orders that required the Minister to make a decision on the Applicant’s Protection visa application according to law, is causing the Applicant’s continued unlawful detention, that is not a legitimate purpose as required by the Migration.

…

5.    The factual criterion has not been attained, where the Applicant has not been assessed as a person who has been convicted by final judgement of a particularly serious crime, and is not therefore assessed to be a danger to the community. This being the decision making threshold for Protection visa refusal/exclusion under Character grounds inter alia, section 501, for the stating satisfaction that must be attained reasonably, for the Minister to exercise his personal power, and refuse to grant a Protection visa application, in the National Interest.

52    The “National Interest decision” is not defined, but it is clear that it refers to the Minister’s first decision.

53    As it turned out, many of the applicant’s submissions as developed ostensibly in support of grounds 2 and 5 in reality involved the content of grounds 3, 4 and 7. Those grounds were in the following form:

3.    The Applicant alleges wrongful imprisonment/unlawful detention. Caused from invalid Protection visa refusal decisions under Character grounds, that do not meet the decision making criterion under Character grounds section 501, threshold for the exclusion of obtaining Australia’s Protection.

4.    The Applicant’s Protection visa is required to be granted under section 65, and should have been granted when the AAT, MR Tribunal made the findings that the Applicant is a person whom engages Australia’s International Protection obligations and non-refoulement applies, decision dated the 17th of December 2017.

…

7.    In these circumstances the detention of the Applicant is not authorized by the Migration Act, as the Protection visa refusal decision’s under Character grounds, are not lawfully made decisions that meet the decision making criterion as set out in the Migration Act.

54    There is, after the argument in writing and orally as it was presented by the applicant, and as the Minister responded to it, nothing left to say about grounds 3, 4 and 7. The references in these grounds to “wrongful imprisonment” and “unlawful detention” wholly revolve around the applicant’s arguments about why the second decision is affected by jurisdictional error, in the sense (as I understand what she contends) that she has a legal entitlement to a protection visa. My conclusions about the content of those grounds are subsumed in my conclusions about grounds 2 and 5. I am satisfied those parts of the amended originating application should also be dismissed, as should the applicant’s new allegation of unlawful detention based on the ICCPR.

55    What is left, and not determined, as the applicant agreed at the hearing, is her allegation of misfeasance in public office. As I understand it, that claim is a separate attack on the decision-making process around her protection visa application.

Submissions

The applicant’s submissions

56    The applicant’s submissions were wide-ranging and addressed some matters that are not relevant to her judicial review application or her arguments about the lawfulness of her detention under the ICCPR. The following summary concentrates on the applicant’s submissions that did appear to me to be relevant to her grounds of review.

57    First, as I have noted, the applicant submits that the Minister’s second decision is in substance the same as the Minister’s first decision. Her argument appears to be that because the first decision was unlawful, the second decision – being in substance the same – must also be unlawful. She submits that, for the reasons given by this Court on review of the Minister’s first decision, the Minister failed to engage properly with Australia’s international non-refoulement obligations in his second decision.

58    The applicant submits that she satisfies the criteria for the grant of a protection visa and that, consequently, she must be granted the visa pursuant to s 65 of the Act. In making this submission, the applicant appears to submit that the power conferred by s 501A(3) was not available in the circumstances of her case, irrespective of whether she failed the character test or whether it was in the national interest to refuse her visa application.

59    In the alternative, the applicant submits that it was “determined” by the decision of the Tribunal on 18 September 2019 that she does not fail the character test and that, accordingly, the Minister’s discretion to refuse her visa was not enlivened. The applicant referred to this as an “objective condition precedent or jurisdictional fact”, but in substance I understood her submission to be that it was not possible for the Minister, acting reasonably, to be satisfied that she failed the character test, when the Tribunal had found she did not. The applicant makes submissions about the seriousness of her conduct and the risk of reoffending which again appear to impugn the reasonableness of the Minister’s state of satisfaction. Similar submissions are made in relation to the Minister’s finding that it was in the national interest to refuse her visa application.

60    The applicant refers to s 36(1C) of the Act, which provides:

A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

61    The applicant appears to submit that s 501A(3) must be read conformably with s 36(1C) and that it follows that if a person satisfies the criterion in s 36(1C) she or he cannot be taken to fail the character test by reference to any of the provisions which deal with less serious actual or apprehended criminal or other conduct, and it cannot be in the national interest to refuse to grant a visa to that person. In her statement of claim, the applicant advanced a similar argument in relation to s 36(2C), but in the hearing the focus was on s 36(1C).

62    The applicant also submits that her detention is unlawful under Art 9 of the ICCPR. She submits that, under Art 9, any detention must be authorised by law, and she submits that her detention is not and has not been authorised by law because the various decisions to refuse her protection visa application were not made in compliance with the requirements of the Act. She submits that she is being detained by the government as a punishment for entering Australia illegally, and she submits that this too is unlawful.

The Minister’s submissions

63    The Minister submits that the fact the Tribunal found the applicant satisfied the criteria for the grant of a protection visa did not preclude the Minister from exercising the power in s 501A(3) to refuse to grant such a visa. In support of this, the Minister refers to recent decisions of the Full Court of this Court (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 [2020] FCAFC 121) which found that BAL19 v Minister for Home Affairs [2019] FCA 2189, which might otherwise have supported the applicant’s contention, was wrongly decided.

64    The Minister submits that, so far as the applicant submits she does not fail the character test because she has not been sentenced to a term of imprisonment of more than 12 months, she has failed to properly construe s 501(6) (which provides that being sentenced to such a term of imprisonment is just one of several ways a person can fail the character test) or is contesting the merits of the Minister’s decision.

65    The Minister submits that, contrary to the applicant’s overarching submission, the Minister’s second decision is “markedly different” from the Minister’s first decision. The Minister therefore submits that acknowledgement of the fact that this Court set aside the Minister’s first decision does not advance matters.

66    As to the applicant’s submission that her detention is unlawful under the ICCPR, the Minister submits that Australia’s international obligations are not directly enforceable and if her detention is incompatible with the ICCPR (which appears not to be admitted) s 189 and s 196 of the Act provide clear authority for that detention.

Resolution

The argument that the second decision is the same as the first decision

67    As I have described above, the Minister’s reasons for decision contain a great deal of material taken verbatim from the reasons for his decision that was set aside by this Court. Small parts have been added, and some wording changed, but most parts, and much of the reasoning, remain the same.

68    I do not accept the Minister’s description of the decision under review as “markedly different” from the Minister’s first decision. I find the reasons for the first decision have been used by the drafter as a template for the second decision, with modifications then made to address the two errors identified by the Court, and also to include some stylistic changes and a few minor matters of substance (such as changing a case which is relied upon). However, in the absence of any arguments in the nature of apprehended bias or prejudgment, I do not consider that feature spells invalidity.

69    The Court’s orders of 9 July 2020 required the Minister to determine the applicant’s protection visa according to law. As understood in its context, the order that this be done “according to law” referred to the law as declared by the Court in its reasons for judgment, and the omissions or errors made in the first decision. The order could also fairly be read as a direction to the Minister more generally to act in accordance with law, which on one view should be superfluous although it is a common form of order. I find properly construed this part of the Court’s order is directed at the errors or other matters identified in the Court’s reasons, those matters now forming part of Australian law.

70    Although it was left (for the second time) until the very last day for compliance, the Minister did make a further determination of the applicant’s protection visa application. He did not have to rely on the power in s 501A. He could have chosen to leave the matter to a delegate. He could have afforded the applicant natural justice. It can be inferred from the choice he made to exercise the personal power under s 501A that he did not wish the Tribunal’s decision to have any effect. The Parliament has made a legislative choice that the responsible Minister should be able to do that, provided of course she or he does so in accordance with law. Section 501A was an available power.

71    In the absence of any arguments in the nature of apprehended bias or prejudgment, or perhaps legal unreasonableness, the applicant has not identified any legal prohibition on the Minister making the “same” decision again; that is, in reaching the same outcome of refusing of the applicant’s protection visa application, based on essentially the same reasoning.

The character provisions argument

72    In finding that the applicant did not pass the character test, the Minister relied on the terms of s 501(6)(c), which provides:

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

…

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character …

73    Subject to the matters to which I refer below at [80]-[82] the Minister was entitled to rely on this provision. It was but one of the several available circumstances in s 501(6) which could provide a factual basis for the Minister to be satisfied a person does not pass the character test.

74    It does appear, as the Minister submitted, that the applicant has misunderstood the operation of the character test in s 501(6) and (7). As a self-represented litigant, she is not to be criticised for that. However, her argument that the Minister’s decision is affected by jurisdictional error because he relied on s 501(6)(c) must be rejected.

75    The concept of “good character” as used in s 501(6) is a broad one. In Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; 141 FCR 552 at [34]-[35] Madgwick, Lander and Crennan JJ said:

His Honour’s consideration of the matter was, in our respectful opinion, correct and constitutes a valuable guide for decision-makers. It bears repetition at length here. The learned primary judge said:

Subsection 501(6) acknowledges that it is a limited discretion in that it provides that a person “passes the character test” unless paragraph 501(6)(a), (b), (c), or (d) applies to that person. In so far as s 501(1) requires a visa applicant to “satisfy” the Minister that he or she “passes the character test” it imposes no separate onus on that person. It is s 501(6) that governs the operation of s 501(1). [Emphasis added.]

…

The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501. Section 501(6) defines the limits of the discretion Parliament has conferred on the Minister. As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred. Section 501(6)(c) requires the Minister to have regard to the visa applicant’s past and present criminal conduct and/or past and present general conduct and then determine as a fact whether that person is not of good character.

Unless such a finding of fact is made by the Minister the visa applicant “passes the character test” and thereby satisfies the Minister under s 501(1). If the Minister finds that the visa applicant is “not of good character” that person “does not pass the character test” and accordingly does not satisfy the Minister under s 501(1). It is a finding of fact in which the meaning of the words “not of good character” is all important.

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).

A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).

The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions. (See: 4 Bl. Com. 5; Shorter Oxford English Dictionary at 456 — “crime”, “criminal”).

…

For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at 194-195).

Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

The foregoing is not a mechanical exercise and although expressed in different terms from those considered in Irving and Baker the task to be performed differs very little from that under the Act and regulations as they stood before amendment.

His Honour continued:

The next ground relied upon by counsel for the applicant was that the Minister restricted himself to consideration of past conduct of the applicant in purporting to determine whether the applicant was now a person not of good character. Counsel relied upon the recollected reasons of the Minister to support that submission …

The question the Minister had to determine was whether the applicant was at the time of the decision, a person not of good character. In making that determination the Minister had to have regard to not only past conduct, general or criminal, but present or recent conduct, whether general or criminal, and to circumstances relevant to the ascertainment of qualities of character to determine whether the applicant lacked such moral qualities so that it could be found as a fact that he was a person of not good character.

With regard to the criminal conduct considered, the whole of that conduct was past. There was no recent criminal conduct evidenced by a recorded conviction to which the Minister could give regard. In the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available. (See: Baker at 194).

In having regard to the criminal conduct of the applicant the Minister had to assess the extent to which the particular offences showed moral turpitude and then have regard to the absence of such conduct thereafter and the extent to which it showed that lesser weight was attachable to past offences as indicators of moral worth.

…

Other matters identified under the heading “Character Test” in the recollected reasons that may be said to be elements of past and present general conduct, were matters that may have provided some information as to the existence of enduring moral qualities but a determination that the applicant was a person not of good character required more than mere reference to those events. The Minister had to look at the totality of the applicant’s circumstances and assess whether the events relating to visa applications he had made, illuminated the true character of the applicant. (See: Powell v Administrative Appeals Tribunal (1998) 98 FCR 1 per French J at [15]). The defaults required closer analysis than the Minister appeared to give them if a finding of fact was to be made that the applicant was a person not of good character.

…

The applicant is now of advancing years — as noted at the commencement of these reasons, he is now 67. It may be assumed that he has practiced [sic] as a professional person, a qualified accountant, for most of his working life. Obviously there will be much to be put into the balance to determine whether at this time in his life there is to be a statement to the world that he is not a person of good character. More than a snapshot of the applicant’s activities would be required to ground that determination.

A provision such as 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the Minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person. (See: Powell per French J at [14]-[15]).

As noted above the recollected reasons [of the Minister] are limited in their worth in respect of the reliance that may be placed upon them. But the reasons as constructed do not show that the Minister applied his mind to the threshold question required to be determined under s 501(6)(c), namely, whether he could find as a fact that the applicant was a person not of good character. The absence of any reasoning process relating to that determination and of the identification of any findings of fact in that regard, show that the Minister misunderstood what the Act required. It should be accepted that the recollected reasons confirm that when the decision was made by the Minister in November 2002 it was equally affected by that misunderstanding of the law.

That conclusion is further confirmed by the terms of the decision made by the Minister by his endorsement of the Issues Paper. The Minister’s decision was expressed as follows:

I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he has passed the Character Test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) TO REFUSE THE VISA so I hereby refuse the visa.

Plainly the terms of that recorded decision were inconsistent with the requirement of s 501(6)(c) that the Minister make a finding of fact that the applicant was a person not of good character and for that reason, did not pass the character test and, therefore, failed to satisfy the Minister that he passed the character test. If the Minister had followed the requirements of subs 501(6)(c) the terms of the decision could not have been expressed as they were.

76    The Minister expressly relied on this decision in his reasons, and there was no error in him doing so. In Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [54], Rangiah J reiterated that as the correct approach:

Paragraph (c) of s 501(6) requires an assessment to be made of a person’s past and present criminal conduct, or general conduct, or both, to determine whether that conduct shows a lack of enduring moral quality: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at [56] per Lee J, approved on appeal at Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 at [34].

77    The applicant’s arguments about the Minister finding she did not pass the character test must be rejected.

The argument that the Minister is required to grant a protection visa

78    As I have noted, the applicant’s argument appears to be (see eg [84] of her reply submissions) that her circumstances have been found by the Tribunal to engage Australia’s non-refoulement obligations, to meet the criterion in s 36(2)(aa) of the Act, and not to engage s 36(1C) of the Act: see [60] above. Therefore, she contends, having accepted these matters in his reasons for decision, the Minister was obliged to grant her a protection visa. Insofar as the applicant relies on s 36(2C), there is no relevant difference.

79    There is no debate that the Minister was not satisfied that s 36(1C) was engaged in respect of the applicant. If it was, the Minister (or his delegate) would have been required to refuse the protection visa application on that basis and no question of discretion would have arisen. In those circumstances, the applicant’s contention that, because she satisfied the core criteria for a protection visa, and was not disqualified by the terms of s 36(1C), the Minister was obliged to grant her a protection visa has at least some commonalities with the qualification expressed by the Full Court in BFW20 at [131]:

There was no call in this case to consider the consequences of this overlap, in particular in the manner of approach to the exercise of discretion in s 501 in circumstances where s 36 is otherwise satisfied: cf Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41-42; and R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.

80    As the Minister contended, given the other findings in BFW20, and also in KDSP, these observations cannot be said to qualify either the availability of the power in s 501A or the availability of one or more paragraphs within s 501(6) in the exercise of the power under s 501A.

81    Rather, the observations in BFW20 at [131] are directed at the matters which might be relevant to the exercise of any discretion to refuse a protection visa under s 501, and in my opinion are equally applicable to the “override” refusal power in s 501A.

82    Therefore, to the extent that the applicant contends these circumstances required the Minister to grant her a protection visa, she is incorrect. The effect of BFW20 and KDSP is that the suite of powers in ss 501, 501A, 501B, 501BA and 501F (and for that matter, s 501C and s 501CA, which are beneficial provisions) are available in respect of protection visas. That necessarily renders the “character test” in s 501(6) applicable to the exercise of those powers. The Minister is able to (and indeed must, as a necessary component of exercising any of these powers) consider whether she or he is satisfied the person does not pass the character test, by reason of any of the matters set out in s 501(6), not only whether a person has a “substantial criminal record” as defined in s 501(7).

83    However, to the extent the applicant’s argument involves a contention that the matters I have set out in [80]-[82] were critical factors in the exercise of the discretion conferred by s 501A, in my opinion she is correct.

84    As senior counsel for the Minister properly recognised, in circumstances such as the applicant’s one way in which the overlap between the two sets of provisions may need to be reconciled and addressed is for a decision-maker to take into account (that is, actively engage with) the fact that the applicant is accepted to meet the core criterion for a protection visa, and falls outside the mandatory “character” refusal terms of s 36(1C). These may well be important factors which weigh against discretionary refusal of a protection visa, given the objects and purposes of such a visa. Indeed they are likely to be “a fundamental element” (see R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327 at 333) in the exercise of any discretion to refuse a protection visa.

85    If that be the correct analysis, then, in the circumstances of this particular decision and after careful reflection, I am prepared to accept the Minister’s submissions that in his reasons the Minister did engage with these issues, and did recognise that some weight should be attached to these facts, even if he did not do so in terms.

86    At [158]-[160], as part of his reasoning under the heading “Discretion”, the Minister stated:

I accept the AAT’s finding that there is a real risk that [the applicant] will face significant harm in the nature of that as outlined by the AAT, that being she is at risk of being targeted for revenge by her ex-partner.

I have found that the above considerations weigh in favour of non-refusal of [the applicant’s] permanent protection visa application.

I have also accepted the conclusion drawn in the 18 December 2017 AAT decision that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations, with country of reference being New Zealand. This means that her removal to New Zealand would breach these obligations. I also accept that there is currently no known prospect of removing [the applicant] to any other country.

87    These passages address the omissions in the Minister’s previous decision-making which were found to constitute jurisdictional error in the previous decision of this Court: see CPJ16 [2020] FCA 980 at [38]-[49]. That may explain why they are principally couched in terms of consideration of Australia’s non-refoulement obligations, rather than in positive terms to the effect that the applicant can be accepted to meet the criterion in s 36(2)(aa) of the Act.

88    The applicant was considered to meet, if anything, the criteria in s 36(2)(aa) not s 36(2)(a) of the Act. Non-refoulement obligations implicitly arose therefore under Art 2 of the ICCPR: see CRI026 v Republic of Nauru [2018] HCA 19; 92 ALJR 529 at [24]. Those obligations arose and existed independently of any decision whether to grant a person permission to remain and reside in a signatory state. They concern limitations assumed at international law by a nation state about the circumstances in which a person can be expelled from its territory: see Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [94] and CRI026 at [32].

89    In this part of his reasons, the Minister engaged in some detail with the risk of harm that would be faced by the applicant if she were removed to New Zealand. Reading [148]-[157] of the Minister’s reasons with [158]-[160], it is clear the Minister found the harm to which there was a risk the applicant would be exposed was very serious – a “hit” on her life by criminal gang members, torture, beatings, the use of “brute force” and the risk of “violent retribution” against her, as a suspected police informant.

90    I should add, as I raised with senior counsel for the Minister during the hearing, that the need for a decision-maker in the position of the Minister to “confront” and “grapple with” the nature and extent of the harm a person risks facing in her or his country of nationality has been emphasised in recent decisions of this Court: see Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [39] and Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3]. Senior counsel submitted the Minister had done just that in these passages.

91    Recalling that what must be confronted is the “risk” of harm, and at least on the findings in this case not necessarily the occurrence of harm as a matter of certainty, I accept the Minister did confront this matter. In substance, the Minister accepted there was a “real risk” (the language of s 36(2)(aa)) the applicant may be tortured, beaten, or the victim of “violent retribution”. His findings appeared to include, as senior counsel accepted, a finding there was a “real risk” the applicant would be killed. To repeat, the Minister accepted there was a real risk the applicant would lose her life if returned to New Zealand. He accepted this risk weighed in favour of not refusing a protection visa but simply was not moved to allow that risk (or the other considerations which two Tribunals had accepted) to guide the exercise of his discretion.

92    In her amended application, the applicant did not advance a ground of legal unreasonableness. She had consciously refused the assistance of senior counsel and a large firm of instructing solicitors. She is more familiar with judicial review than most self-represented litigants in this jurisdiction, and is also familiar with the presentation of legal argument, having represented herself before and having previously refused legal assistance. English is her first language, and the evidence indicates she has more than passing familiarity with both the New Zealand and Australian legal systems. Her written and oral submissions show her to be intelligent and articulate. She chose her own grounds of review and when she sought to add to them (ie the ICCPR argument) she was permitted to do so. In those circumstances, and unlike other less well equipped self-represented applicants, I consider it is not unfair for the Court to hold her to the grounds she has raised.

93    Therefore, whether any Minister, acting reasonably, could have refused to grant the applicant a protection visa is not a matter for this Court to determine: cf KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069 at [88].

The ICCPR argument

94    The Minister submitted:

The ICCPR was ratified by Australia on 13 August 1980. However, the act of ratification does not make the ICCPR part of Australian domestic law or a direct source of individual rights and obligations under that law. While a statutory provision should be construed consistently with international law and international legal obligations existing at the time of its enactment, appeals to Australia’s international obligations must give way to the text of a statutory provision if it is clear. Here, the terms of ss 189 and 198 are intractable and operate to render the applicant’s detention lawful for as long as she is, or is reasonably suspected to be, an unlawful non-citizen.

95    As authorities for the propositions in this submission, the Minister refers to Polites v Commonwealth [1945] HCA 3; 70 CLR 60 at 68-69, 77 and 81; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286-287; Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 at [97]; Maloney v The Queen [2013] HCA 28; 252 CLR 168 at [134] and CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [8] and [462].

96    Although “intractable” is a strong word, in terms of its application to the applicant’s circumstances, I accept it is appropriate. There is not, and never has been, any debate that the applicant is a citizen of New Zealand, is not a citizen of Australia, and does not have a visa.

97    Section 13(1) provides:

A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.

98    The applicant does not fall within the terms of s 13(1) and does fall within the terms of s 14(1) of the Act:

A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.

99    Section 189(1) of the Act provides:

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

100    Subject to any arguments denying the existence of a reasonable suspicion about her status as an unlawful non-citizen (which would not appear available on the material before the Court), the applicant is liable to be detained under s 189. By s 196 she is required to be kept in detention until either she is granted a visa, or removed from Australia under s 198, unless any of the discretionary powers in the Act to release her are exercised. Further, she is not a person to whom the principles set out by Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305 could apply, because there has been active and continuing consideration of her protection visa application, albeit through a long and contorted process.

101    The law is well established and clear, as the Minister submits. The applicant’s contentions about the ICCPR must be rejected as a matter of Australian domestic law. Although it is understandable that a lay person in the position of the applicant might look to the terms of the ICCPR, and the Guidelines issued under it, to ascertain how Australia, as a signatory to the ICCPR, might establish and maintain any system of executive detention, the fact is that Parliament has made different, and harsher, choices in s 189 and s 196 of the Act.

Other matters

102    The submissions filed on behalf of the applicant, both in chief and in response, travel well beyond grounds 2 and 5 of the originating application, even if those grounds are read fairly and generously to the applicant as a self-represented litigant. An example are the several submissions about the effect of the Minister’s decision on the applicant’s child. Some of the content might be seen as relevant to her contentions about the ICCPR, but as I have explained, those contentions cannot be accepted in terms of affecting the lawfulness of her detention.

103    However, there is one matter which should be addressed because, if not squarely within grounds 2 and 5, it is close to them. The applicant submitted orally and in writing that the Minister had not taken into account that she would be indefinitely detained, because it had been accepted that to return her to New Zealand would breach Australia’s international obligations of non-refoulement.

104    It is correct that the Minister did not consider whether the prospect of the applicant being indefinitely detained meant as a matter of discretion he should not adhere to the view he had otherwise formed to refuse to grant her a protection visa. The passages to which I have referred above, at [158]-[164] of his reasons, demonstrate that the Minister did not consider the prospect of indefinite detention because it appears he believed the applicant would be removed to New Zealand.

105    Senior counsel for the Minister accepted the Minister’s reasoning appeared to be: there was no apparent difficulty in removing a non-citizen to New Zealand, therefore the removal would occur, and because of the terms of s 197C (to which the Minister expressly referred in his reasons) this is what was required to occur. Senior counsel accepted that in the light of s 197C, no executive policy could override, or prevent, the performance of the duty in s 198. In relation to the effect of s 197C, see DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 at [24]-[27]. As the applicant pointed out in her oral reply submissions, the Minister’s reasoning appears to be that he accepts Australia may contravene its international obligations by returning her to New Zealand, but that is the course the executive proposes to take.

106    Accordingly insofar as the applicant contended the Minister’s decision was affected by jurisdictional error because he did not consider the prospect of her indefinite detention, I reject that submission. The Minister’s reasoning makes it plain that as a matter of fact there was no basis for him to consider that she might be indefinitely detained because he assumed there was no real difficulty in removing the applicant to New Zealand in accordance with s 198 of the Act.

107    There are some other submissions by the applicant which are framed around the theme that the decision-making concerning her protection visa application is being undertaken to punish her. Of course, if that were the purpose for the exercise of the visa refusal power, it would be an unlawful and extraneous one. However, it seems to me that the applicant’s submissions stem from a misunderstanding about the breadth of the powers conferred on the Minister under the Act. As I explained to the applicant during the hearing, the Act confers a number of extraordinary and unusual powers on the Minister – to make personal, non-compellable decisions, to do so without affording a visa applicant natural justice; and to override a decision of the Tribunal, after a fully contested merits review process. The applicant has been the object of the exercise of all these extraordinary powers, so it is little wonder she apprehends she is being victimised and/or punished. Whether this apprehension forms part of her misfeasance allegations remains to be seen. On her judicial review grounds, her submissions to this effect are not relevant.

108    Other aspects of the applicant’s submissions were clearly more directed at her allegations of misfeasance in public office. The Court is not dealing with those allegations in this decision, and those allegations will need to be addressed separately; first, by way of a case management listing.

Disposition

109    The Minister submitted that the appropriate disposition of the matters which are the subject of this decision would be to list the applicant’s misfeasance allegations for case management, and otherwise to dismiss her application, including those components of it asserting that her detention is unlawful. I explained this aspect of the Minister’s submissions to the applicant towards the end of the hearing and she did not disagree. However, on 30 September 2020, after the Court notified the parties that judgment would be handed down on 2 October 2020, the applicant copied the Court on an email to the Minister’s representatives stating:

I … do not intend to persue the other grounds of my application this will be Her Honour’s final judgement on my application. I will be advised Honourable Justice Mortimer on the 2 of October.

110    The applicant has not yet formally abandoned the remaining grounds of her application. In the circumstances, I consider that it remains appropriate for the matter to be listed for a case management hearing. This can be vacated if the parties agree that it is not necessary.

111    I will reserve the Minister’s costs to date, pending the completion of the proceeding.

Associate:

Dated:    2 October 2020