Federal Court of Australia

RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    After its hearing, the determination of this application under s 476A of the Migration Act 1958 (Cth) (the Act) for the judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) was deferred until the determination of an appeal to the Full Court in a case which raised like issues, and the parties had had an opportunity to make such supplementary submissions as they might be advised arising from the Full Court’s judgment. That appeal to the Full Court has now been determined: WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ). The parties have each made consequential, supplementary submissions.

2    Such is the volume of cases which arise under the Act and, as a consequence, so dynamic is the state of jurisprudence concerning its construction that, after WKMZ, came the High Court’s judgment in Commonwealth v AJL20 (2021) 95 ALJR 567 (AJL20). This, in turn, dictated that the parties be given an opportunity to make submissions concerning the ramifications of that judgment for the present proceeding. In response, the parties each made consequential, further supplementary submissions.

3    The relevance of WKMZ and AJL20, the submissions made in light of them and their fate will be apparent from what now follows.

4    The applicant is a citizen of what was once known as the Islamic Republic of Afghanistan but presently as the Islamic Emirate of Afghanistan. Although a citizen of that country, he has never lived there. He was born in the neighbouring Islamic Republic of Iran, to which his parents and their respective families had fled in the 1980’s. His parents met and married in Iran. When the applicant was a young child, his father died there. In 2013, the applicant’s mother was granted a sub-class 204 Women at Risk Visa under the Act. The applicant was then a dependent juvenile. As a result, he, too, obtained the benefit of the grant of a visa of that class, as did his other siblings. They all entered Australia together lawfully on 11 March 2014 on the basis of these visas.

5    The following year, the applicant committed two offences of rape in Queensland. He was convicted in 2017 of each of these offences in the District Court of Queensland. Initially, and because of a mistaken understanding as to his date of birth, the applicant was sentenced on the basis that he was an adult at the time when he committed the offences. On each charge, he was sentenced to a six-year term of imprisonment, to be served concurrently. That error was not rectified until 2020, when he was re-sentenced by the District Court of Queensland to a term of two years on each charge, to be served concurrently, on the basis that he was actually a juvenile at the time of his offending.

6    In the interval between the applicant’s original sentencing and his re-sentencing, two consequential events arising in the course of the administration of the Act occurred.

7    One event was that, on 12 March 2019, the applicant’s visa was cancelled. That cancellation was not a matter of choice. Upon satisfaction that the holder of a visa has been sentenced to a term of imprisonment of 12 months or more, a Minister administering the Act (Minister), or a delegate, is obliged to cancel that person’s visa: s 501(3A)(a)(i), read with s 501(6)(a) and s 501(7)(c) of the Act. It is not necessary in the circumstances of the present case to consider what might be the effect of a later setting aside of the basis of satisfaction that engendered that perceived obligation. The length of the term of imprisonment imposed on re-sentencing was of itself sufficient to ground satisfaction obliging visa cancellation.

8    The other event which occurred in the interval was that the applicant applied, on 21 March 2019, for the revocation of the cancellation of his visa. On 14 October 2020, which was after the applicant had been re-sentenced, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the visa cancellation.

9    The applicant then sought the review by the Tribunal of the delegate’s decision not to revoke cancellation. On 7 January 2021, for reasons given in writing that day, the Tribunal decided to affirm the Minister’s delegate’s decision. It is that decision of the Tribunal which is the subject of the present judicial review proceeding. The Minister, as first respondent, is the only active party respondent. The Tribunal has, necessarily, also been named as a respondent (second respondent). As is appropriate in this type of case, the Tribunal has filed a submitting appearance.

10    The following grounds of review as pleaded in the originating application are:

1.    The Second Respondent’s decision dated 7 January 2021 is affected by jurisdictional error on the basis that the Second Respondent’s decision was founded on a misapprehension of the law relevant to the Applicant’s potential return to Afghanistan.

Particulars

A.    In deciding not to revoke the mandatory cancellation of the Applicant’s visa, the Second Respondent found that there was no risk of the Applicant being:

(a)    returned to his country of citizenship (Afghanistan); or

(b)    held in immigration detention indefinitely,

in the event that it made a non-revocation decision and in circumstances where it found that Australia owed the Applicant non-refoulement obligations.

B.    These findings by the Second Respondent are irreconcilable with the:

(a)    mandatory requirements of:

(i)    s 198 of the Act (as reiterated by s 197C) that an unlawful non-citizen be removed from Australia as soon as reasonably practicable notwithstanding the existence of non-refoulement; and

(ii)    s 196 of the Act that an unlawful non-citizen be detained until removed from Australia, deported or granted a visa; and

(b)    the specifically non-compellable power conferred on the First Respondent by s 195A of the Act.

C.    The reasons of the Second Respondent indicate that it expected that either:

(a)    the First Respondent would not comply with the obligations imposed on him by ss 198 and 196; or

(b)    the First Respondent would be compelled to exercise the non-compellable power conferred by s 195A.

2.    The Second Respondent’s decision dated 7 January 2021 is affected by jurisdictional error as its assumption that the Applicant would at some point be returned to the Australian community was unreasonable in the legal sense.

Particulars

A.    For the reasons set out in particulars 1(A) and 1(B), it was unreasonable in the legal sense for the Second Respondent to proceed on the assumption that return to Afghanistan or indefinite detention were not realistic possibilities of a decision not to revoke the mandatory cancellation of the Applicant’s visa.

B.    Further, the Second Respondent’s finding that the Applicant might be granted a protection visa in the future was entirely inconsistent with its finding not to revoke the mandatory cancellation of the Applicant’s subclass 204 visa in circumstances where:

(a)    the First Respondent’s power to refuse the application for a protection visa under s 501(1) would clearly be enlivened;

(b)    the Second Respondent had, in its decision, already established that Australia owed the Applicant international non-refoulement obligations;

(c)    the discretionary power conferred by s 501(1), if exercised by a delegate of the First Respondent or the Second Respondent, is required to be exercised in a way substantially similar to the discretion conferred by s 501CA(4) to revoke a mandatory cancellation; and

(d)    it was unreasonable in the legal sense for the Second Respondent to proceed on the expectation that a different decision-maker might conclude that the Applicant’s application for a protection visa should not be refused under s 501(1) of the Act, notwithstanding that substantially the same matters would be required to be considered.

3.    Second Respondent’s decision dated 7 January 2021 is affected by jurisdictional error as its findings that the Applicant:

  (a)    had not taken excellent steps towards his rehabilitation;

(b)    had not taken real steps to allow himself to, eventually carry out a meaningful role in the Australian community;

   (c)    would not become a useful, contributing citizen;

   (d)    had not taken impressing steps while in custody,

were not within its jurisdiction.

Particulars

A.    The mandatory power conferred by s 501(3A) was enlivened on account the two six-year sentences of imprisonment imposed on the Applicant by the District Court at Brisbane on 7 December 2018.

B.    In deciding to sentence the Applicant to the two sentences of six years imprisonment (rather than a longer sentence of imprisonment), the sentencing Court had regard to the positive findings of fact reflected in the negative at 3(a) to 3(d) above.

C.    In deciding whether to revoke the mandatory cancellation of the Applicant’s visa, the Second Respondent did not have jurisdiction to question the factual basis on which his sentence of imprisonment was determined and imposed.

Ground 3

11    It is convenient first to consider ground 3.

12    The jurisdiction exercised by the Tribunal was that conferred by s 500(1)(ba) of the Act. That jurisdiction was to “review” the delegate’s decision under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. In conducting that review, the Tribunal’s function was to reach for itself the correct or preferable decision under that subsection, being invested for that purpose with all of the powers, discretions and statutory obligations of the delegate: s 43, Administrative Appeals Tribunal Act 1975 (Cth); Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. One of the Tribunal’s obligations was, by reason of s 499(2A) of the Act, to comply with such applicable directions, if any, as were made by the Minister pursuant to s 499(1) of the Act. Such a direction was applicable: Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (‘the Direction’).

13    There was nothing in the Direction, much less in the Act, which bound the Tribunal to make all of its findings about the applicant in conformity with findings concerning him made by the District Court, either when sentencing or re-sentencing him. In the review, the applicant’s conviction and the terms of imprisonment originally and ultimately imposed on him were givens, unable to be questioned by the Tribunal. However, a line of authorities helpfully collected and discussed by Bromberg J in HZCP v Minister for Immigration and Border Protection (2018) 78 AAR 325 (HZCP), draws a distinction between such a given on the one hand and the facts, matters and circumstances pertinent to whether or not, in the exercise of the Tribunal’s review jurisdiction, the visa cancellation should be revoked. An appeal from his Honour’s judgment in HZCP was, albeit by majority, subsequently dismissed by the Full Court on bases that uphold the correctness of this distinction: see HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.

14    It was not irrelevant for the Tribunal to take into account the assessment of the applicant made by the District Court when sentencing or re-sentencing the applicant. But that assessment did not bind the Tribunal. The Tribunal was obliged to reach its own conclusions about the applicant on the material before it and, in so doing, to address the subjects specified by the Minister in the Direction (or at least those raised on the material before the Tribunal). That might permissibly involve an assessment of the applicant’s involvement in the offending conduct and, related to that, the nature and extent of the risk of re-offending which he presented to the Australian community.

15    The following statement by the Tribunal in its reasons accurately summarises the effect in the circumstances of the present case of HZCP and the authorities discussed therein:

49.    In applying these principles there is clearly a restraint on the findings I can make in relation to the 2015 offences. I cannot, contrary to the rape convictions and the express findings of the sentencing judge, find that the victim did consent to the sexual intercourse she had with the applicant and that she communicated that consent to him.

50.    Equally, I must accept that the applicant was a minor when he committed the offence as that was the basis on which he was ultimately sentenced.

51.    The sentencing remarks also include statements about the applicant’s likelihood of offending again in the future and the sentencing judge made comments consistent with a view that re-offending was unlikely and complete rehabilitation could be expected. I do not consider myself bound by those remarks. For me to be bound by them they must amount to the essential factual basis of the conviction (or sentence, as the case may be) which underpins the decision to cancel. The opinions expressed by the sentencing judge are not in any sense findings of fact. They are an attempt to predict the future based on the evidence available to the judge. There is no principle of law which would require me to adopt those opinions. Indeed, because the applicant’s likelihood of re-offending is an issue which I must determine based on the evidence before me, it would be inappropriate to simply adopt the views expressed in earlier proceedings based on different evidence.

[emphasis in original - footnote references omitted]

16    Ground 3 is predicated upon a misunderstanding of the effect of HZCP and the authorities discussed therein. It has no merit.

Grounds 1 and 2

17    These grounds may conveniently be considered together.

18    The Tribunal’s reasons reveal that, as the Minister envisaged in the Direction was necessary, it engaged in a multi-factorial, balancing exercise in which, in this case, factors told either way in terms of whether to revoke cancellation. The Tribunal pithily summarised the essence of that exercise and those factors at the commencement of its reasons (at [11] and [12]):

11.    The decision to be made is a difficult one. On the one hand the applicant has committed very serious offences very soon after arriving in Australia. On the other, if his visa is cancelled he may at some point be sent to Afghanistan – a country which he has never lived in, where he has no family or friendship connections and where he will be exposed to risks associated with the civil unrest which plagues that country.

12.    I have made this decision because of the very serious nature of the applicant’s offending. I am satisfied that there is a risk that the applicant will re-offend in a similar way. These conclusions carry very significant weight. …

19    In effect, grounds 1 and 2 assert that the Tribunal’s more detailed reasoning in relation to its conclusion that the applicant “may at some point be sent to Afghanistan” reveals the jurisdictional errors pleaded.

20    One of the considerations specified (at [14]) in a non-exhaustive way in the Direction was “international non-refoulement obligations”. Before the Tribunal, it was controversial as between the applicant and the Minister as to whether Australia was subject to any such obligation in respect of the applicant. For reasons it detailed, the Tribunal was satisfied that such obligations were owed to the applicant but added (at [142]), the “question arises as to what significance that finding carries” (later re-iterated at [169]).

21    The Tribunal correctly identified (at [180]) that, in the circumstances of the present case, the source of Australia’s non-refoulement obligation in international law was Article 33 of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (the Refugee Convention), which provides:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

22    The Tribunal was satisfied (at [181] and [182]) that, in respect of the applicant, Australia was subject to a non-refoulement obligation because:

(a)    he is a Shia Muslim, a group which is the subject of targeted violence in Afghanistan, on delivery to Afghanistan his life would be threatened on account of his religion; and

(b)    as a person who has grown up outside of Afghanistan and who knows English and has connections with Australia, he will be targeted by criminal gangs such that his freedom will be threatened on account of his membership of a particular social group.

23    Against this background, s 197C and s 198 of the Act, as they stood at the time when the Tribunal made its decision, should now be set out:

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

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

198    Removal from Australia of unlawful non-citizens

Removal on request

(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

Removal of transitory persons brought to Australia for a temporary purpose

(1A)    In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

Note 1:    Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).

Note 2:    Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).

(1B)    Subsection (1C) applies if:

(a)    an unlawful non-citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B or repealed section 198C for a temporary purpose; and

(b)    the non-citizen gives birth to a child while the non-citizen is in Australia; and

(c)    the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1).

(1C)    An officer must remove the non-citizen and the child as soon as reasonably practicable after the non-citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).

Removal of unlawful non-citizens in other circumstances

(2)    An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a)    who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

   (b)    who has not subsequently been immigration cleared; and

   (c)    who either:

(i)    has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

(ii)    has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

(2A)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

  (a)    the non-citizen is covered by subparagraph 193(1)(a)(iv); and

(b)    since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision—either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.

Note:    The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.

(2B)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

Note:    The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

(3)    The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.

…

(5)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

   (a)    is a detainee; and

(b)    neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non-citizen has made a valid application for a bridging visa.

(5A)    Despite subsection (5), an officer must not remove an unlawful non-citizen if:

(a)    the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and

(b)    either:

(i)    the grant of the visa has not been refused; or

(ii)    the application has not been finally determined.

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

   (ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(7)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)    the non-citizen is a detainee; and

(b)    Subdivision AI of Division 3 of this Part applies to the non-citizen; and

   (c)    either:

   (i)    the non-citizen has not been immigration cleared; or

(ii)    the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (d)    either:

(i)    the Minister has not given a notice under paragraph 91F(1)(a) to the non-citizen; or

(ii)    the Minister has given such a notice but the period mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(8)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)    the non-citizen is a detainee; and

(b)    Subdivision AJ of Division 3 of this Part applies to the non-citizen; and

   (c)    either:

(i)    the Minister has not given a notice under subsection 91L(1) to the non-citizen; or

(ii)    the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(9)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)    the non-citizen is a detainee; and

(b)    Subdivision AK of Division 3 of this Part applies to the non-citizen; and

   (c)    either:

   (i)    the non-citizen has not been immigration cleared; or

(ii)    the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (d)    either:

(i)    the Minister has not given a notice under subsection 91Q(1) to the non-citizen; or

(ii)    the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(10)    For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(11)    This section does not apply to an unauthorised maritime arrival to whom section 198AD applies

24    Dealing with the applicant’s submission also requires that some presently material extracts from s 195A, s 197AB and s 197AE be set out:

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

As presently material, s 197AB(1) provides:

…the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

[emphasis in original]

25    Subsection 197AB is qualified by s 197AE, which provides, “The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.”

26    Against this statutory background, the critical paragraph of the Direction, paragraph 14.1 should now be reproduced:

14.1    International non-refoulement obligations

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

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

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)    Where a non-citizen makes claims which may give rise to international non­ refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5)    If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

27    The Tribunal described (at [149]) the statement of policy position of the Executive, as stated in paragraph 14.1(2), and repeated within paragraph 14.1(6), of the Direction, as “important”, adding:

Provided it accurately reflects Australia’s position then it significantly diminishes the weight that would otherwise attach to a finding that sending the applicant to Afghanistan would breach Australia’s non-refoulement obligations. It essentially directs decision makers to proceed on the understanding that if a non-refoulement obligation is owed, that obligation will be honoured and no return to that country will occur while that is the case. Consequently a finding that a non-refoulement obligation is owed does not significantly advance the applicant's cause to have the visa cancellation revoked because as a practical matter it makes it unlikely that he will be removed to a country that poses such a risk.

28    Responding to a submission made to it on behalf of the applicant, the Tribunal allowed (at [184]) that, were it satisfied that “Australia ever would send a person to a country in breach of its non-refoulement obligations”, this would weigh very heavily in favour of revoking the visa cancellation. However the Tribunal considered it nonetheless had an obligation to comply with the Direction and thus to decide the review on the basis that the policy position in paragraph 14.1(2) of the Direction would be applicable to the applicant.

29    In fairness to the Tribunal, it opined (at [185]) that the then recently decided cases, CWY20 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCA 1855 and AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424, “raise concerns about adherence to that policy”. The Tribunal resolved these concerns by recording that, “when I asked the respondent’s [Minister’s] representative expressly whether the Department was backing away from the statement that Australia will not return a person to their country of origin contrary to a non-refoulement obligation, the response was that the representative did not believe that was the case”. The Tribunal added (at [186]):

If the Direction involved misleading independent decision makers, I am confident that, consistent with the obligations imposed by section 33(1AA) and (1AB) of the Administrative Appeals Tribunal Act 1975, I would have been advised at that point of any change of position on this important matter by the Australian Government.

The sections mentioned in this passage specify duties of assistance which are owed to the Tribunal.

30    The result (at [187]) was that the Tribunal was “satisfied that at some point in the administrative process following my decision, that the Australian Government will take steps to ensure that it complies with its non-refoulement obligations, even if this involves use of non-compellable discretionary powers like s195A”.

31    The Tribunal thus discounted removal to Afghanistan (refoulement) as a practical consequence of any decision not to revoke the cancellation of the applicant’s visa. It plainly saw it as necessary (at [159]) to address any such practical consequence. Another such practical consequence which the Tribunal addressed was the possibility of indefinite detention. Having regard to DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (DMH16), the Tribunal concluded that indefinite detention would not be a practical consequence. Quoting from DMH16, the Tribunal stated (at [228]):

If the applicant is successful in his application for a protection visa he will be released into the community. If the applicant is not granted a protection visa he will be detained and must be removed as soon as is reasonably practicable notwithstanding any non-refoulement obligation. As Justice North determined in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [26] if a ‘protection visa was refused the applicant would either be removed...immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister refused to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed...’. Given this statutory framework I am not satisfied that the applicant does face a risk of indefinite detention.

[emphasis in original]

32    Grounds 1 and 2 entail a repetition on behalf of the applicant of the submissions made to the Tribunal in relation to an inconsistency between the Act and the Direction in relation to refoulement. Superadded to this is the allegation that the Tribunal failed to take account of the prospect of indefinite detention when deciding whether there was an “other reason” why the cancellation of the visa should be revoked.

33    Uninstructed by authority and as a matter of initial impression, it is by no means impossible to see how it might reasonably be concluded that there was an inconsistency between the Act and the Direction of the kind for which the applicant contends. At first blush, paragraph 14.1(2) of the Direction does indeed look to be a defiance by the Minister of the Crown of the will of Parliament as expressed in s 197C of the Act. A recollection of our history instructs that, carried to extremes, such defiance, in the mid-17th century, resulted in civil war and regicide, in the aftermath of which emerged our modern understanding of the supremacy of parliament. Subsection 499(2) visits a more benign consequence upon any such Ministerial defiance. A Ministerial direction may not be inconsistent with the Act. If it were, it would be invalid.

34    There is some Tribunal level authority which would support the applicant’s inconsistency submission notably, Re PRHR and Minister for Immigration and Border Protection (2017) 73 AAR 435 (PRHR). However, in BDQ19 v Minister for Home Affairs (2019) 167 ALD 38 (BDQ19), upon the judicial review of a decision of the Tribunal which had applied PRHR, Kerr J concluded that there was no inconsistency and, at [68], that an administrative decision-maker (including the Tribunal) could, “proceed on the basis that the existence of a non-refoulement obligation will not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa even in circumstances where, absent non-compellable Ministerial intervention, that cancellation would necessitate their removal to a country in respect of which a non-refoulement obligation exists. It is a direction to the decision maker to proceed in that manner because Australia ultimately will not refoule such a person.” Later, at [74], Kerr J adverted to the prospect of indefinite detention if the refoulement of a person to whom protection obligations were owed were not possible, stating:

[The] decision maker need not speculate as to how those obligations will be met. It is uncontentious that there are available legal means as can secure that outcome. The unavailability of indefinite detention as one of those means, which the Minister by his counsel accepts is the law, does not alter that position.

[Emphasis added]

An obligation not to refoule is not, of course, confined to the Refugee Convention. Other treaties to which Australia has subscribed, which are mentioned in paragraph 14.1(1) of the Direction, also create such an obligation.

35    BDQ19 and many other authorities concerning the interplay between the provisions of the Act pleaded in grounds 1 and 2 and statements of policy in the Direction or in earlier analogues concerning the honouring of non-refoulement obligations in respect of persons whose visa had been cancelled were reviewed by the Full Court in WKMZ.

36    At the time when WKMZ was decided and as the reasons for judgment in that case reveal, the High Court was yet to deliver its judgment in another case concerning s 197C and s 198 of the Act. It has now done so: AJL20. In that case, the primary judge had found that that officers of the Department of Home Affairs had formed the view that to remove the respondent to Syria would place Australia in breach of its international non-refoulement obligation. The primary judge had also found, and it was not contested, that officers of the Department had not removed AJL20 from Australia as soon as reasonably practicable. The primary judge had ordered that AJL20 be released into the community. In their joint judgment, Kiefel CJ, Gageler, Keane and Steward JJ, stated, at [8], “By reason of s 197C of the Act, that consideration was irrelevant to whether it was reasonably practicable that the respondent be removed from Australia.” That statement might be thought to support, if not dictate, the successful outcome of the applicant’s policy inconsistency submission. However, it was unnecessary in AJL20 for the High Court to consider whether the policy of the Executive, as expressed in the Direction, that Australia would adhere to its non-refoulement obligations, was consistent with s 197C and s 198. Thus, on that subject, I consider that WKMZ remains authoritative in relation to the present exercise in this Court of original jurisdiction.

37    This aside, AJL20 confirms, yet again, the validity of the detention of a person who is an unlawful non-citizen, pending removal from Australia “as soon as reasonably practicable”. The case also confirms, yet again, the view adopted of s 196(1) and s 198 of the Act by Beaumont J in NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [11] – [15] that the remedy where this duty of removal is not so discharged is a mandamus. The order for the release of AJL20 into the community was therefore set aside.

38    In WKMZ and as to the emphasised reference in BDQ19, at [74], to the “unavailability of indefinite detention”, Kenny and Mortimer JJ observed, at [94]:

… we are uncertain why it is said (including by the Minister on the current appeal) that indefinite detention is not “available”, in light of reasoning of a majority of the High Court in Al Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [33]-[35], [48] (per McHugh J), [267] - [268] (per Hayne J); Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at [124] - [126]; and the reasoning of the Full Court in ASP15 v Commonwealth of Australia [2016] FCAFC 145; 248 FCR 372 at [32].

They added, “it may depend on what is meant by the term ‘indefinite’ in the phrase ‘indefinite detention’”. That subject was addressed later in their joint judgment.

39    It is not necessary, in order to determine this application, to rehearse the many authorities discussed in WKMZ, which include those to which the Tribunal made reference, only to appreciate and apply certain conclusions reached in the joint judgment.

40    In WKMZ, Kenny and Mortimer JJ, at [134], acknowledged that, “in a literal sense the terms of s 197C and the intention of executive policy may pull in different directions” but continued, “Executive policy and s 197C operate on different repositories of power, with different functions within the legislative scheme, and outside it”. Their Honours then concluded in relation to that policy and s 197C that they were not necessarily inconsistent:

They are not necessarily inconsistent, although where a person is found to engage Australia’s non-refoulement obligations, any executive policy or executive action which intends to postpone or control the performance of the duty in s 198 could only do so in circumstances which fit within the concept of “as soon as reasonably practicable” as affected by s 197C. Otherwise, mandamus may be available to enforce the duty in s 198, and the lawfulness questions to which AJL20 is directed may also arise.

41    Their Honours drew together consideration of further authorities and reiterated their conclusion as to the absence of any inconsistency in WKMZ, at [152]:

[There] is no necessary inconsistency between the executive policy as revealed in Direction 79 and s 198, read with s 197C when it is recalled that Direction 79 is applied by decision makers in the circumstances of considering whether to grant, refuse or restore a visa, and not at any later stage of decision making in relation to what might happen to an individual. It is that later stage with which AJL20 is concerned. Paras 14.1(2) and (6) of the Direction are not unlawful, and the Tribunal did not err in its approach to the matters in para 14 of the Direction.

42    These conclusions bind me. It is thus neither necessary nor appropriate for me to explore how Ministerial responsibility for the administration of the Act, including therefore the performance of statutory duties by officers under s 198 and adherence by officers to the will of Parliament as expressed in s 197C, is to be reconciled with an executive policy announced by the Minister which “may pull in a different direction”. Further, as will shortly be seen, insofar as such reconciliation exists, it is offered in a passage from the Explanatory Memorandum in respect of what became s 197C of the Act which was cited with approval by majority of the High Court in AJL20.

43    What follows from this is that the Tribunal’s conclusion, which took account of the policy of the Executive as set out in paragraph 14.1 of the Direction, that, “a finding that a non-refoulement obligation is owed does not significantly advance the applicant's cause to have the visa cancellation revoked because as a practical matter it makes it unlikely that he will be removed to a country that poses such a risk” was not necessarily inconsistent with s 198 and s 197C of the Act. The Minister’s submission that, in this respect, no jurisdictional error as pleaded in grounds 1 and 2 was made should therefore be accepted.

44    Grounds 1 and 2, and the applicant’s related submissions, are premised upon there being error in the Tribunal’s further conclusion that indefinite detention would not be a practical consequence of its conclusion that non-refoulement obligations were owed to the applicant. That, too, contributed to its minimising of the weight it gave to its conclusion as to the existence of non-refoulement obligations.

45    One of the bases upon which the Tribunal minimised indefinite detention as a practical consequence was that the Minister would exercise his non-compellable power under s 195A to grant a protection visa to the applicant. The Tribunal did not address at all the likelihood that the applicant would be granted a protection visa were the Minister to choose to exercise this power. The Tribunal was not, in my view, obliged to predict what might be the fate of any such exercise of power under s 195A of the Act by the Minister, only to recognise, as the Tribunal did, at [228], that such a power existed and its exercise offered a way in which, if non-refoulement obligations were owed to the applicant, and refoulement were not, after investigation by the Minister, possible, the Minister might, as a matter of express policy, cause Australia to comply with its international treaty obligation not to refoule.

46    As the Minister submitted in the present case, such a reconciliation of s 197C of the Act and executive policy as found in the Direction enjoys at least the tacit support of the majority of the High Court in AJL20, at [74] in their citation with approval of a passage from the Explanatory Memorandum in respect of what became s 197C of the Act:

It is evident that the Executive found the prospect of the removal of the respondent to Syria in breach of Australia’s non-refoulement obligations unpalatable. In that regard, it is equally evident that, if the Minister wished to avoid the realisation of that unpalatable prospect, a visa might be granted to the respondent – precisely as the Explanatory Memorandum to the Bill that introduced s 197C contemplated:

Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s nonrefoulement obligations will be met through … the Minister’s personal powers in the Migration Act, including those under section … 195A … of the Migration Act.

(Footnote references omitted - emphasis added by High Court)

47    If one were to delete from the passage just quoted, “Syria” and instead insert “Afghanistan”, the result would be precisely descriptive of a contingency recognised by the Tribunal as to the possible outcome of further consideration by the Minister of the fate of the applicant even if the refusal to revoke the cancellation of his visa were upheld. This would neither necessarily result in indefinite detention nor any forced return of the applicant to Afghanistan.

48    Of course, even in the short period which has passed since the High Court’s judgment in AJL20 was handed down in late June and related supplementary submissions filed by late July this year momentous events have occurred in relation to the “Afghanistan” which one inserts into this passage. I consider that the interests of justice, which include an understanding by the applicant and his family of the respective roles of the Judiciary and the Executive in relation to the operation of the Act, require some explanation of the ramifications of these events both for the present application and the future.

49    As I noted at the outset of these reasons for judgment, what was once the Islamic Republic of Afghanistan is now the Islamic Emirate of Afghanistan. The existence of the overthrow in August this year of the government of the former by the Taliban and the establishment of a different government of a differently named country is a notorious international event of which I consider I am entitled by s 144 of the Evidence Act 1995 (Cth) to take judicial notice. That provision is declaratory of the position at common law concerning judicial notice of notorious international events, qv Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, at 212, per Lord Sumner. However, in relation to the present application, the Court is concerned with whether, on the grounds set out in the application, the Tribunal’s decision was affected by jurisdictional error. For the reasons given above, my conclusion is that it was not. It is no part of the Court’s role to make its own evaluation on the factual merits of whether or not the cancellation of the applicant’s visa should be revoked, let alone to consider events which have occurred since the Tribunal’s decision. Those factual merits as they then existed were considered by the Tribunal by reference to the material before it at the time when it made its decision. At that time, Afghanistan was differently governed. It is quite irrelevant to the Court’s role that there has been a change in government. Not so in relation to the Executive when the Minister comes to investigate the applicant’s removal as an unlawful non-citizen for the purpose of discharging the Minister’s statutory duty and, perhaps as a result of that investigation, to consider whether in order to ensure adherence to Australia’s international obligations, it is necessary to exercise the Minister’s power under s 195A of the Act. On these subjects, it will be for the Minister to reach his own conclusions as to the ramifications of the change of government, as part of the then prevailing factual position relating to the applicant. The applicant is perfectly at liberty, notwithstanding the fate of this application, to make submissions to the Minister as to what these might be.

50    The course of events in Afghanistan since the Tribunal made its decision highlights in a dramatic way why, as the Full Court observed in the passage quoted from WKMZ, at [152], there is no necessary inconsistency between s 197C of the Act and the policy position enunciated in the Direction. The factual position which will now fall for investigation by the Executive will, obviously, be different to that which prevailed at the time when the Tribunal made its decision.

51    For the reasons given, the application must be dismissed, with costs.

Associate:    

Dated:    22 October 2021