Federal Court of Australia

RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time limit within which the present application ought to have been commenced be extended to the extent required to permit it to proceed.

2.    The application be dismissed.

3.    The applicant pay the 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 a citizen of Afghanistan and is of Hazara ethnicity. In or around 2005, he and his family moved to Pakistan, where they lived for approximately two years. The applicant then came to Australia on 26 July 2007, aged 10, as the holder of a Class XB subclass 202 Global Special Humanitarian visa issued pursuant to the Migration Act 1958 (Cth) (the “Act”).

2    The applicant has an extended criminal history dating back to June 2015. On 16 May 2019, he was convicted and sentenced to two years’ imprisonment for a series of dishonesty offences. Shortly afterwards, on 28 May 2019, he was sentenced to a further 30 days’ imprisonment for unlawful assault, intentionally damaging property, and possessing a controlled weapon without excuse. That offending arose out of a domestic violence incident involving the applicant and his then partner. In total, he has been convicted of around 50 offences and has been sentenced to serve a period of imprisonment on four occasions.

3    On 29 July 2019, the applicant’s visa was cancelled pursuant to s 501(3A) of the Act (the “Cancellation”). In accordance with s 501CA(3) of the Act, the applicant was invited to make representations as to why the Cancellation ought to be revoked. He did so on 29 August 2019 (by a submission to which I shall hereafter refer as the “Revocation Submission”). On 23 June 2020, a delegate of the first respondent (the “Minister”) made a decision not to revoke the Cancellation (the “Non-Revocation Decision”). On 25 June 2020, the applicant applied to the second respondent (the “Tribunal”) for a review of the Non-Revocation Decision. That application failed: on 15 September 2020 the Tribunal affirmed the Non-Revocation Decision and published reasons for doing so (“Tribunal’s Decision”).

4    The applicant now applies to this Court under s 476A of the Act for prerogative relief directed at the Tribunal’s Decision, which he claims was a product of jurisdictional error. Specifically, the applicant alleges that the Tribunal failed to consider certain legal and practical consequences of affirming the Non-Revocation Decision and/or failed to consider a claim that he advanced by means of his Revocation Submission.

5    For the reasons that follow, I do not accept that the Tribunal’s Decision was affected by jurisdictional error of the kind alleged. The application will be dismissed with the usual order as to costs.

Statutory framework

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

501     Refusal or cancellation of visa on character grounds

…

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

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

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

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

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

…

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

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

…

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

…

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

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

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

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

…

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

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

9    Section 189 of the Act is also relevant presently. It provides as follows:

189 Detention of unlawful non‑citizens

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

…

10    As set out in the factual summary above, it is not in contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act. 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 ought to have been revoked.

11    It is also not in contest that, as a consequence of the Cancellation, the applicant became an “unlawful non-citizen”. At the time of the hearing, the applicant was serving a term of imprisonment in respect of the offences described earlier in these reasons; but the hearing proceeded on the assumption that he would be detained pursuant to s 189 of the Act upon his release.

12    Section 501E(1) of the Act precludes a person whose visa has been cancelled under s 501 from applying for a new one. However, s 501E(2) provides that s 501E(1) does not prevent a person from making an application for, relevantly, a protection visa. Accordingly, it was uncontroversial before the Tribunal (and remains so now) that the applicant may apply for a protection visa.

Applicant’s submissions before the tribunal

13    By his submissions to the Tribunal (the “Tribunal Submissions”), the applicant stated that he arrived in Australia via Pakistan to escape the Taliban and other anti-Hazara elements in Afghanistan. The applicant’s father had arrived in Australia approximately seven years earlier, and sponsored the family’s migration.

14    The Tribunal Submissions acknowledged the seriousness of the applicant’s criminal record, but sought to place his offending in the context of “surrounding circumstances”, which included substance abuse issues, mental health issues, and his immaturity (amongst other matters). It was submitted to the Tribunal that the applicant was remorseful about his offending, had strong familial support (including from three young sisters, who expressed their desire for the applicant to remain in Australia), and was “committed to sustained behavioural change”. The Tribunal Submissions accepted that the expectations of the Australian community weighed against the applicant, as the Australian community “expects everyone to obey the law”, but submitted that those expectations should not “unduly amplify the adverse weight of the applicant’s criminality”.

15    The applicant made extensive claims about his fear of being harmed were he returned to Afghanistan owing to his Hazara ethnicity, his returnee profile (as a Shia Hazara returning from a Western country), and his ability to subsist there (given his limited language ability, the absence of any familial support, and the lack of work prospects). As a non-practising Muslim, the applicant also submitted that he faced the threat of being prosecuted for apostasy, which remains a prosecutable crime in Afghanistan. For those reasons, the applicant claimed to be a person in respect of whom Australia owes international non-refoulement obligations.

16    The Tribunal Submissions also noted the applicant’s concern that, if he were returned to Afghanistan “he would be returning to a country that is currently on a knife edge”, given the possibility of the Taliban entering into some form of “power sharing arrangement” with the Afghan government, leading to a “very real risk that the persecution of the Hazaras will continue unabated and may even become legitimised throughout Afghanistan”.

17    Having canvassed in some detail Australia’s non-refoulement obligations and the Australian government’s policy not to return a person to a place where he or she faces a well-founded fear of persecution, the Tribunal Submissions directly raised the prospect that, if the Tribunal did not set aside the Non-Revocation Decision, the applicant would be detained. Given their centrality to the application, it is prudent to replicate the relevant paragraphs of the Tribunal Submissions on this topic (errors original):

79.    If the visa is not reinstated, the applicant would remain in immigration detention until the Minister decided what to do with the applicant. Immigration detention is not discretionary. Despite the terms of the Act, it may only be pursued for strictly limited purposes; essentially to consider whether to allow a visa application to be made, to consider whether to grant a visa, or to remove.

80.    For so long as non-refoulement obligations are owed, removal will not be the purpose of detention.

81.    In these circumstances, the remaining available purposes are to allow the making of a visa application, or to grant a visa. So, what would be the purpose of the applicant’s detention? Well, for so long as the Minister was considering options that included the grant of a visa, detention would be authorised. If the Minister refused to allow a further visa application or to grant a visa, that would eliminate the remaining purposes. Absent a lawful purpose, the Constitution does not permit the Migration Act to authorise detention, and the applicant would have to be released into the community.

82.    If the Minister chose to allow a further visa application, if granted the applicant is released into the community. If it is refused, the analysis is back to the above point about the purpose for detention. The point applies in relation to a protection visa application. And the additional point to be made about any future visa application (whether protection or otherwise) is that in all likelihood the current policy in respect of character concern non-citizens means a future visa application would be refused on character grounds – the individual would not realistically be of any less character concern during the short time that it would take to process a fresh visa application.

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

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

18    The Tribunal Submissions also described the applicant’s ties to Australia, having arrived as a 10-year-old boy, and having been resident here ever since. In respect of his understanding of life in Afghanistan, it was submitted that the country was “[f]or all intents and purposes… entirely alien to him” and that he had not been there in 15 years.

The Tribunal’s Decision

19    As is explained earlier in these reasons, because the Tribunal accepted that the applicant did not pass the character test, its task was to determine whether there was “another reason” why the Cancellation ought to be revoked.

20    Most of the Tribunal’s Decision is directed towards matters that are of no relevance to the present application—namely, certain of the considerations required to be taken into account under what is known as “Ministerial Direction No. 79”.

21    Of significance presently are the parts of the Tribunal’s Decision that address the consequences that would flow from an affirmation of the Non-Revocation Decision; and, in particular, the prospect that the applicant would remain subject to immigration detention. The key passages of the Tribunal’s Decision are short in compass and it is convenient to replicate them in full (references omitted; emphasis in original):

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

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

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

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

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

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

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

(Emphasis added)

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

22    The Tribunal weighed the real risk of persecution and serious harm faced by the applicant if returned to Afghanistan against the expectations and protection of the Australian community in relation to the applicant’s repeat offending. In the result, it concluded that there was not “another reason” to revoke the Cancellation, and therefore affirmed the Non-Revocation Decision.

Extension of time

23    The Tribunal’s Decision was handed down on 15 September 2020. Under s 477A(1) of the Act, the applicant had until 20 October 2020 to file an application in this court for judicial review of that decision. His originating application was filed on 16 November 2020, as was an affidavit that he made in support of it on that same date. By that affidavit, the applicant requested an extension of time within which to file an application to review the Tribunal Decision and provided a brief explanation for the delay.

24    The Minister did not oppose the granting of the extension that was sought, and the hearing proceeded on the basis that it would be granted. As is apparent, the delay was insubstantial (only 27 days); and the affidavit made by the applicant reveals that it was, at least in part, due to his being in prison. In the circumstances, I am satisfied that it is in the interests of the administration of justice to extend, by order under s 477A(2) of the Act, the 35-day time limit for which s 477A(1) provides.

The present application

25    The sole ground of the application before this court is that the Tribunal failed to consider the prospect that, unless the Cancellation is revoked, the applicant faces the prospect of prolonged or indefinite detention. That failure is said to bespeak jurisdictional error because that prospect was a matter that the Tribunal was obliged to consider. That obligation is said to arise in two ways: first, it is said to arise because the prospect that the applicant might face prolonged or indefinite detention was a legal consequence of affirming the Non-Revocation Decision, of which the Tribunal was obliged to take account; and, second, because that prospect was a matter that the applicant advanced as “another reason” why the Cancellation ought to have been revoked.

26    By his written outline of submissions, the applicant contended (references omitted):

18.    The Tribunal was obliged to give genuine and active intellectual consideration to the prospect of the Applicant being held in immigration detention in Australia for a prolonged if not indefinite period. That obligation arose in two ways: first, because the Tribunal was obliged to consider, in the relevant legal sense, a substantial and clearly articulated claim of the Applicant as to the consequences of non-revocation; and second, as an incident of the Tribunal’s obligation to consider the Act and its operation, irrespective of any express submission advanced on that point. The Tribunal did not consider or give weight to the prospect of the Applicant being subject to prolonged or indefinite detention.

19.    It is settled that a failure to consider a substantial and clearly articulated claim contained in representations about revocation made in accordance with the invitation under s 501CA(3)(b) may constitute a denial of procedural fairness or failure to carry out the statutory task amounting to jurisdictional error. There is no relevant distinction between the Tribunal’s obligation to consider a claim to face harm or persecution in a country of citizenship and a claim as to some other relevant consequence of a non-revocation decision.

20.    The content of a decision-maker’s obligation to consider a claim was clarified by the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) in Omar. The Court there affirmed that the obligation to consider, in the relevant legal sense, required the decision-maker to engage in an active intellectual process with a substantial clearly articulated claim. It was also said that in decisions surrounding visa cancellations, genuine consideration will often require honest confrontation of the human consequences of the decision. What is required is more than merely acknowledging or noting that a contention has been made. Depending on the nature and content of the representations, a decision-maker may be required to make specific findings of fact.

21.    The second relevant source of the Tribunal’s obligation to consider the prospect of the Applicant being detained was the Tribunal’s obligation to take into account the operation of the Act and the legal consequences of its decision, which are mandatory relevant considerations. A legal consequence arising by operation of the Act commonly said to bear significance to decisions under ss 501 and 501CA(4) is the prospect of indefinite detention. That consequence has been noticed to arise either as a direct result of non-refoulement obligations preventing Australia from removing a non-citizen to a country of citizenship, or more indirectly, where some practical consideration makes it likely that a person will not be removed from Australia and will be detained for so long as they do not have a visa. The obligation to take into account the legal consequences of a non-revocation decision arises independently of any specific representations made by visa-holder.

…

23.    A critical aspect of the Applicant’s case before the Tribunal was that as a member of the Hazara Shia minority he had a well-founded fear of persecution in Afghanistan giving rise to non-refoulement obligations. Non-refoulement obligations were expressly not relied upon because there was some realistic prospect of the Applicant being removed to Afghanistan where he might be harmed. On the contrary, the Applicant encouraged the Tribunal to accept as a factual matter that the Australian Government would not refoule the Applicant to Afghanistan. The consequence of this, said the Applicant, was that he would face a prolonged period of detention in Australia until he was either granted a visa or released by a court.

24.    The Applicant developed his submission as follows:

(a)    the Australian Government would not return the Applicant to Afghanistan, where he had a well-founded fear of persecution;

(b)    if the Tribunal affirmed the decision under review, the Applicant would remain in immigration detention until the Minister decided what to do with the Applicant;

(c)    any future Protection visa application would be likely to be refused on character grounds;

(d)    whether successful or not, the application for a Protection visa may take years to resolve, during which time the Applicant would remain in detention, at substantial public expense.

…

28.    The necessary flip side of the conclusion that the Applicant would not be (or would be unlikely to be) refouled was the consequence flowing from the operation of s 189 of the Act that he would be detained for so long as he did not hold a visa. The prospect that the Applicant could or would apply for a Protection visa did not diminish the real possibility that the Applicant would remain in detention for an extended period or even indefinitely. The Tribunal was obliged to consider, in the sense of directly confront the human consequences of, the real possibility that the Applicant would spend a substantial if not indefinite period in immigration detention in the event of a non-revocation decision.

27    For present purposes, the Minister accepts that prolonged or indefinite detention might, in some circumstances, be a legal consequence of a decision not to revoke the cancellation of a person’s visa, depending on the relevant factual findings. Were those circumstances to exist, the Minister appeared to concede that the Tribunal would be required to give consideration to the consequence that such a decision might result in that person facing a period of prolonged or indefinite detention. However, the Minister says that those circumstances were not engaged in the present application. Rather, he submitted that, in light of its finding that the applicant would be removed unless granted a visa, the Tribunal was not required to consider the prospect of any prolonged period of detention. That was said to be so irrespective of the existence of non-refoulement obligations (which the Tribunal found were owed to the applicant). Against that background, the Minister asserted that the Tribunal considered the submissions made by the applicant regarding indefinite detention and correctly rejected them.

28    By reference to the Tribunal’s Decision, the Minister’s written outline of submissions concluded as follows:

26.    With respect to the legal consequences, the Tribunal found that the legal consequence of its decision was removal, notwithstanding the existence of non-refoulement obligations...

27.    …the Tribunal was correct to observe that, absent the favourable exercise of any discretion, the Applicant was liable for removal to Afghanistan as soon as reasonably practicable, irrespective of the existence of non-refoulement obligations. In light of the Full Court’s reasoning in MNLR [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35], the Tribunal was not required to consider the prospect of any prolonged period of detention. Like in MNLR, the Tribunal considered the Applicant’s submissions concerning indefinite detention, but rejected them.

28.    The Tribunal was also correct to observe that the Applicant “is liable to be detained” following his release from prison, and that it is permissible to continue that detention while consideration is given to other options. In this passage, the Tribunal pays sufficient regard to the prospect of a period of detention that is indeterminate.

29.    The Tribunal noted that if the Applicant applied for a protection visa, a non-revocation decision does not necessarily result in removal or indefinite detention. The Tribunal expressly declined to speculate upon the outcome of any application for a protection visa, but noted that the currently available evidence was “not implausible”. This finding, together with the conclusion that the applicant is liable to be removed as soon as reasonably practicable notwithstanding non-refoulement obligations, makes this case substantially different to WKMZ [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55]. The Tribunal in this case was not required, in light of its findings, to consider the prospect of indefinite detention, because its finding was that removal would occur unless the Minister granted the Applicant a visa.

30.    In other words, the Tribunal asked itself “what then?”, and answered: removal, absent the Applicant being granted a visa. In light of that answer, the Tribunal was prepared to give significant weight to this consideration…

31.    The Tribunal then said it was “satisfied that concerns about refoulement are minimised by the Australian Government’s express policy commitment not to do so”. Here, the Tribunal was not concluding that the prospect of refouling the Applicant was eliminated – only minimised. That reasoning has been upheld by the Full Court in XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167, at [63]-[68].

32.    Therefore, contrary to the Applicant’s submissions and unlike WKMZ, the Tribunal’s reasons do not disclose an acceptance that the Australian Government would not (or would not be likely to) refoule the Applicant to Afghanistan. Instead, the Tribunal’s reasoning was substantially the same as in MLNR. That is, the Tribunal was aware that s 197C had the effect that the existence of non-refoulement obligations were irrelevant to a duty to remove the Applicant to Afghanistan. However, it noted that there remained a possibility that the Applicant might not be removed to Afghanistan (because of the possible grant of a protection visa, or the exercise of a Ministerial discretion), but that this possibility only “minimised” the Tribunal’s concerns surrounding refoulement. The Tribunal expressly recognised the possibility of the Applicant’s detention continuing while those possibilities were explored. But the Tribunal’s conclusion was essentially that, absent any of these possibilities, the Applicant would be returned to Afghanistan. And the Tribunal’s ultimate conclusion was that the Applicant is likely to confront significant hardship and potential harm if returned to Afghanistan, and that “very substantial weight” should be placed on the consideration.

Obligation to consider the prospect of prolonged detention

29    This court has held on numerous occasions that administrative decision makers who exercise discretionary powers similar to what is presently in focus—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”). There is full court authority that appears to accept that that principle extends, at least to some extent, to revocation under s 501CA(4) of the Act: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 (Robertson, Moshinksy and Bromwich JJ); 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.

30    Applied to the circumstances of the present application, it was uncontroversial that the Tribunal was potentially obliged to condition the exercise (or non-exercise) of its statutory power upon prior consideration of the legal consequences that would flow therefrom. The question that arises for consideration is whether the prospect of prolonged immigration detention was one that can properly be described as a legal consequence of the Tribunal’s Decision. If it was, then further questions follow: was it a consequence of the kind of which the Tribunal was obliged to take account; and, if so, did the Tribunal take account of it in the course of making its decision?

31    During the hearing, counsel for the parties referred to the recent full court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (“WKMZ”). There, Kenny and Mortimer JJ (Abraham J agreeing in the result) held that the prospect of an extended period of immigration detention qualifies as a legal consequence of a decision to refuse the revocation of a visa cancellation. Relevantly, their Honours said:

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

…

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

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

…

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

32    A similar issue arose (albeit in a different statutory context) in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 (Allsop CJ, Griffiths and Wigney JJ; “Le”). There, the court 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. In that case, 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.

33    The court embarked upon a thorough examination of relevant full court authorities on the topic, including NBMZ, Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Flick, Griffiths and Perry JJ), COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148 (North, Collier and Flick JJ), and Cotterill, and offered the following non-exhaustive summary of some of the relevant principles (at 70 [61]):

(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.

34    In DFTD v Minister for Home Affairs [2020] FCA 859, I had occasion to consider the application of the principles enumerated in Le in the context of a decision under s 501CA(4) of the Act. For reasons that will shortly become apparent, it is not necessary that I should recite in detail the conclusions to which I was there drawn. It suffices to note that I expressed some doubt as to whether prolonged detention could properly be described as a legal consequence of a decision under s 501CA(4) of the Act upon the proper consideration of which the valid exercise of power under that section is conditioned. Those doubts were not the subject of correction on appeal: DFTD v Minister for Home Affairs & Anor (2020) 281 FCR 209 (Markovic, Derrington and Thawley JJ).

35    It might be said, then, that there exists some tension in the authorities on this point. The applicant accepted that the line of authority culminating in Le could not be reconciled with the decision in WKMZ (I note, in passing and for what it might be worth, that Le appears not to have been brought to the attention of the court in WKMZ), and that Le (and the authorities referred to therein) operated against the contention that he sought to advance.

36    Fortunately, it doesn’t much matter. Whether it was a relevant legal consequence or not, the Tribunal was obliged to consider the prospect of the applicant’s being held in indefinite or prolonged detention regardless because, as the Minister freely (and properly) concedes, that was a circumstance that he advanced as “another reason” why the Cancellation ought to be revoked.

37    In Nguyen v Minister for Home Affairs [2021] FCA 155, I made the following observations (at [34]) about the Tribunal’s obligation to consider a claim advanced by an applicant seeking to revoke the cancellation of his or her visa:

[34]    There is no doubt that the Tribunal was obliged to consider the submissions that the applicant advanced in support of revocation of the Cancellation: Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-604 [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110, [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (“Buadromo”), 332 [42] (Besanko, Barker and Bromwich JJ). Doing so required engagement in an active intellectual process directed at the representations that were advanced: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 (“CAR15”), 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 332 [42]-[43] (Besanko, Barker and Bromwich JJ).

38    It is not controversial that that same principles apply in the present context. Before the Tribunal, the applicant contended that, absent revocation of the Cancellation, he would remain in immigration detention “until the Minister decided what to do” with him. It was suggested that that could take a long time (see above, [17]). On any view, the Tribunal was required to give those submissions proper consideration en route to making its decision.

39    The question, then, is: did it do so?

40    There can be no doubt that the Tribunal was alive to the prospect that the applicant was likely to experience a period of immigration detention in the event that his Visa remained cancelled. It said as much in its written reasons (above, [21]). Nonetheless, the applicant contended that:

29.    The Tribunal observed that the Applicant “is liable to be detained under s 189 of the Act following release from prison”, but took its consideration no further than that. It expressly declined to “speculate on the potential cost of immigration detention that is yet to occur, or future applications that are yet to be made”. Nowhere did the Tribunal expressly advert to the possibility that the Applicant would be detained for an extended period. Nowhere did the Tribunal consider the effect of prolonged or indefinite detention on the Applicant, either in light of the opinion of Ms Cidoni that the Applicant, owing to his mental illnesses, would experience hardship while incarcerated, or by reference to ordinary human experience (which did not need to be the subject of evidence) that confinement (for instance in immigration detention) for any extended period of time is by its nature a burden on the individual. The factor, having not been considered in any real sense, was not ascribed weight in the balancing exercise conducted by the Tribunal.

30.    It should be concluded that by refusing to confront the human consequences of the Applicant spending an extended or indefinite period in immigration detention, the Tribunal failed to consider, in the relevant legal sense, both the Applicant’s substantial and clearly articulated claim and the legal consequences of its decision. It was no excuse that the resolution of the claim involved a degree of speculation: the Tribunal had no difficulty engaging in the necessary speculation to reach a conclusion that the Applicant faced a real chance of persecution on return to Afghanistan. The Tribunal’s omission amounted to a jurisdictional error.

41    The Minister submitted that, by recognising that the applicant “is liable to be detained” following his release from prison, and that that detention would continue while consideration was given to other options (including the potential grant of a protection visa, the removal to a third country, or ministerial intervention), the Tribunal gave sufficient regard to the prospect that the applicant faced a period of detention that is indeterminate, in the sense that it had no fixed chronological end point.

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

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

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

45    Those realities acknowledged, I do not accept that the Tribunal can fairly be said to have made its decision without first considering what the applicant advanced. A finding that a minister “…has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); see also CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ), GBV18 v Minister for Home Affairs (2020) 274 FCR 202, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 166, [15] (McKerracher, Kerr and Wigney JJ). In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) that an:

…inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

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

47    The Tribunal’s reasoning process was thorough and clear. It was alive to the propositions that the applicant advanced. It understood what he put as “another reason” why the Cancellation ought to have been revoked. It did not accept that any of what he advanced rose to that standard. It did not lack jurisdiction to make its decision on that basis.

Disposition

48    The applicant’s challenge to the Tribunal’s Decision cannot succeed. The application must (and will) be dismissed with the usual order as to costs.

Associate:

Dated:    21 October 2021