FEDERAL COURT OF AUSTRALIA

SPFH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 97

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    The decision of the Second Respondent dated 14 April 2021 be set aside.

3.    The application for review of the decision of the delegate of the First Respondent not to revoke the cancellation of the Applicant’s visa made 25 January 2021 be remitted to the Tribunal (differently constituted) to be re-determined according to law.

4.    The First Respondent pay the Applicant’s costs of the application, in an amount to be agreed, and if not agreed to be fixed by the Registrar on a lump sum basis.

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

REASONS FOR JUDGMENT

MURPHY J

INTRODUCTION

1    The applicant in this proceeding is a 37-year-old citizen of Afghanistan. He left Afghanistan with his mother and two siblings when he was around 10 years old, following the murder of his father and brother. They then spent seven years in Pakistan in a United Nations High Commission for Refugees camp, until they were each granted a Class BA Subclass 202 Global Special Humanitarian visa in 2003. The applicant arrived in Australia in June 2003 on that visa (the visa) when he was 17 years old.

2    The applicant suffers from serious mental health problems and he began to criminally offend in Australia a short time after his arrival. Over the ensuing years he was convicted of numerous offences. In September 2018 he was convicted of sexual assault and indecent assault and two charges of robbery, and sentenced to an aggregate term of imprisonment of three years and ten months. As a result of those convictions and sentence, the applicant’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act) by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the visa cancellation decision). Subsequently, a delegate of the Minister decided not to revoke the visa cancellation decision pursuant to the power to do so under s 501CA(4) of the Act (the non-revocation decision). The applicant then applied to the second respondent, the Administrative Appeals Tribunal, for merits review of the non-revocation decision, which decided to affirm the decision.

3    By way of an amended originating application dated 22 February 2022 the applicant seeks judicial review of the Tribunal’s decision. The applicant contends that the Tribunal fell into jurisdictional error:

(a)    by failing to give meaningful consideration to the prospect that, if it decided not to revoke the visa cancellation decision, the applicant would remain detained beyond the period necessary for considering any protection visa application the applicant may make and/or for the exercise of the Minister’s discretionary and non-compellable powers, and the effect of such indefinite detention on the applicant; and

(b)    because its finding that the applicant would likely be released into the community or be granted a protection visa or be the beneficiary of ministerial intervention is irrational and irreconcilable with its findings that the applicant did not pass the character test and posed an unacceptable risk to the Australian community.

4    For the reasons I now turn to explain, I am persuaded that the Tribunal made the first of those alleged errors. It is therefore appropriate to set aside the Tribunal’s decision and remit the application to the Tribunal to be re-determined according to law.

THE LEGISLATIVE FRAMEWORK

Provisions regarding visa cancellation

5    Under s 501(3A) of the Act the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the “character test”, as defined in s 501(6) of the Act read together with s 501(7). Relevantly, a person does not pass the character test if the person has a “substantial criminal record” (s 501(6)(a)). A person has a substantial criminal record if, amongst other things, the person has been sentenced to a term of imprisonment of 12-months or more (s 501(7)(c)).

6    Under s 501CA(4) of the Act, the Minister may revoke a visa cancellation decision under s 501(3A) if the person makes representations in accordance with an invitation from the Minister to do so, and the Minister is satisfied either that:

(a)    the person passes the character test; or

(b)    there is “another reason” why the visa cancellation decision should be revoked.

7    In a case like the present, in which it is common ground that the applicant does not pass the character test, the only basis upon which the Minister can decide to revoke a visa cancellation decision is if the Minister is satisfied that there is another reason why the decision should be revoked.

Provisions regarding the detention and removal of unlawful non-citizens

8    Section 4(1) of the Act states that the object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.” Section 4(2) states that, to advance its object, the Act “provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.” Section 4(4) states that, to advance its object, the Act “provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.”

9    Section 13 provides that a “lawful non-citizen” is a non-citizen who is in the “migration zone” (in broad terms, Australia) who holds a visa that is in effect. Section 14 provides that an “unlawful non-citizen” is a non-citizen who is in the migration zone and is not a lawful non-citizen (that is, does not hold a visa that is in effect).

10    In Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43 (AJL20 HC) at [14] Kiefel CJ, Gageler, Keane and Steward JJ explained that “[t]he dichotomy between lawful non-citizens and unlawful non-citizens is fundamental to the scheme of ss 189, 196 and 198 of the Act whereby an unlawful non-citizen is not at liberty to enter the Australian community”. Their Honours approved the remarks of Hayne J in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [178] where his Honour said:

The Act provides no middle ground between being a lawful non-citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen, who may, usually must, be detained and who (assuming there is no pending consideration of a valid visa application) must be removed from Australia as soon as reasonable and practicable.

11    Section 189 of the Act authorises and requires the Executive to detain unlawful non-citizens. It provides:

If an officer knows or reasonably suspects that a person in the migration zone…is an unlawful non-citizen, the officer must detain the person.

12    As stated in AJL20 HC (at [16]), detention under s 189(1) has two distinct and sequential operations.

First, it authorises and requires a person in the migration zone to be taken into immigration detention by an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Secondly, it authorises and requires the person, having been taken into immigration detention, to be kept in immigration detention by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen.

13    Section 196 governs the period for which a person taken into immigration detention is to be kept in immigration detention under s 189(1) by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen. It relevantly provides:

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of the citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a),(aa) or (b) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

…

(6)    This section has effect despite any other law.

14    The authority and duty to detain an unlawful non-citizen pursuant to s 189(1) for the period specified in s 196(1) is attended by an obligation on the Executive to effect the removal of an unlawful non-citizen “as soon as reasonably practicable”. That obligation is found in s 198 of the Act, which relevantly provides:

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 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)    who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); 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 who has not subsequently been immigration cleared; 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 a regulation 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).

…

15    Section 197C was inserted into the Act to overcome decisions of the Court which had interpreted s 198 to the effect that it did not require the removal of an unlawful non-citizen where the removal would place Australia in breach of its non-refoulement obligations: see the Explanatory Memorandum of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), at 165-166 [1135]‑[1140]. The section provides:

(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.

Ministerial Direction No. 79

16    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act, regarding the performance of those functions or the exercise of those powers. Under subs (2A) a person or body, such as the Tribunal, must comply with a direction under subs (1). Subsection (2) provides that subs (1) does not empower the Minister to give directions that would be inconsistent with the Act or regulations.

17    On 20 December 2018 the Minister made a direction under s 499(1) of the Act entitled Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79). It came into effect on 28 February 2019.

18    Direction 79 provides that, in deciding whether or not there is another reason why a visa cancellation decision should be revoked, the decision-maker must be guided by it. For example, para 7(b) provides that a decision-maker “must take into account the considerations in Part C [of Direction 79], in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”. Paragraph 8(1) requires the decision-maker to take into account “the primary and other considerations relevant to the individual case”. Paragraphs 8(3)-(5) provide that primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa, and that primary considerations should generally be given greater weight than the other considerations.

19    Paragraph 13(2) of Part C identifies three “primary considerations” that the Tribunal is required to take into account in determining whether to revoke the cancellation of a visa, being:

(a)    protection of the Australian community from criminal or other serious conduct by non-citizens;

(b)    best interests of minor children in Australia; and

(c)    expectations of the Australian community.

20    Paragraph 14 of Part C provides a non-exhaustive list of five “other considerations” that the Tribunal is required to take into account, where relevant, in determining whether to revoke the cancellation of a visa, being:

(a)    international non-refoulement obligations;

(b)    strength, nature and duration of the non-citizen’s ties to Australia;

(c)    impact on Australian business interests of the non-citizen’s removal;

(d)    impact on victims; and

(e)    the extent of impediments for the non-citizen if removed from Australia.

21    Paragraph 14.1 concerns Australia’s international non-refoulement obligations. It provides:

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.

22    Paragraphs 14.1(2) and (6) provide that the decision-maker is required to take into account that Australia will not remove an unlawful non-citizen to a country in respect of which Australia has non-refoulement obligations.

AUSTRALIA’S NON-REFOULEMENT OBLIGATIONS

23    Australia’s non-refoulement obligations are principally derived from various international conventions to which it is a party, being the Convention Relating to the Status of Refugees, (Refugees Convention) opened for signature 28 July 1951, 189 UNTS 137, acceded by Australia on 22 January 1954 (entered into force on 22 April 1954), and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 acceded by Australia on 13 December 1973 (entered into force for October 1967); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), opened for signature 10 December 1984, 1465 UNTS 85 (entered into force on 26 June 1987), ratified by Australia on 8 August 1989; the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), ratified by Australia on 17 December 1990; and the International Covenant on Civil and Political Rights (ICCPR), opened for signature 19 December 1966, (entered into force on 23 March 1976), ratified by Australia on 13 August 1980.

24    For example, the non-refoulement obligation expressed in the CAT provides:

Article 3

1.    No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2.    For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

25    The following account of the facts is drawn from the Tribunal decision and the materials filed in the application.

26    The applicant left Afghanistan with his mother and two remaining siblings in about 1996, when he was around 10 years old doing so, as the Tribunal found, following the murder of the applicant’s father and a brother five years earlier. The applicant also claimed that two paternal uncles and his grandmother were killed in a suicide bombing around a year later, and that two of his aunts were burnt alive in public by the Taliban for failing to wear the mandated religious clothing and being in the city centre without a male family member to accompany them. The Tribunal did not make a finding in relation to those claims. After leaving Afghanistan the applicant, his mother and his two remaining siblings spent around seven years in a UNHCR refugee camp in Pakistan before coming to Australia in June 2003.

27    The Tribunal found that the applicant suffers from PTSD, depression, anxiety, stress and a persistent depressive disorder, including suicidal ideation. To my mind, that is unsurprising given his traumatic upbringing.

The applicant’s criminal offending

28    The applicant began to criminally offend a relatively short time after his arrival in Australia, and he has an extensive history of criminal convictions. The Tribunal decision (SFPH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 874) sets out the applicant’s criminal record (at [27]-[33]), and it is not necessary that I go to the same detail. It suffices to note that:

(a)    in the period between July 2004 and October 2008 the applicant appeared before the Dandenong Magistrates’ Court on four occasions and he was found guilty of soliciting prostitution in March 2004 (about nine months after arriving in Australia), intentionally causing injury in September 2005, multiple (around 14) driving offences and four charges of failing to answer bail. Generally, the applicant was fined without conviction; and

(b)    in the period between October 2008 and September 2018, the applicant appeared before the courts on around 12 occasions, and he was found guilty in October 2008 of two charges of driving while disqualified; in May 2009 one charge of behaving in an offensive manner in a public place; in June 2011 obtaining property by deception and making a false statement; in August 2011 on charges of driving while unlicensed, stating a false name, driving with a blood alcohol level exceeding the prescribed concentration, and fraudulently altering a notice; in April 2012 contravening a community correction order; in February 2014 recklessly causing injury and attempt to commit an indictable offence and criminal damage by fire; in September 2014 burglary, theft, unlicensed driving and failing to answer bail; in October 2015 criminal damage; in December 2016 driving while disqualified, failing to wear a seatbelt, breaching an alcohol interlock condition, driving in breach of a licence condition, stating a false name, contravening a community correction order, making a threat to kill, assault, stalking and contravening an interim intervention order; and in May 2018 on a charge of contravening a community correction order. Generally, the applicant was fined, on several occasions he was given a community correction order, and on one occasion he was sentenced to imprisonment for two months, wholly suspended.

29    Then, in September 2018 the applicant was convicted on charges of robbery, assault (two charges), sexual assault and indecent assault for which the applicant was sentenced in an aggregate term of imprisonment of three years and ten months, and placed on the register of sex offenders for eight years (the September 2018 convictions).

30    The convictions for sexual assault and indecent assault related to two incidents. The first offence took place in June 2014 when the applicant was 28 years old, and involved a girl aged 16. It involved the applicant attempting to force the girl to perform oral sex on him, without consent. The second offence occurred in March 2016 when the applicant was 30 years old, and involved a girl aged 18. It involved the applicant demanding that the girl to perform oral sex on him. When the girl refused to do so the applicant punched her several times in the face, and she then gave way to his demand. The girl suffered stress, depression and other mental health effects together with physical injury from being punched in the face.

31    The convictions for robbery and assault related to the applicant purchasing a car for $6,000 in December 2016 and subsequently, in company with others, going to the vendor’s home complaining about the quality of the car and demanding a refund. The applicant punched the vendor in the face and threatened to kill him if he went to the police. Later, the applicant, in company with others, returned to the vendor’s home and again threatened to kill him if the price of the car was not refunded within 15 minutes. The applicant and those accompanying him were armed with knives and they chased away a friend of the vendor who the vendor had called to assist him. After the vendor gave the applicant $6,000 the applicant threatened “we will kill everyone” if the vendor went to the police. Notwithstanding the purchase price having been repaid, the applicant did not return the car to the vendor.

32    As a result of the charges of robbery, assault, sexual assault and indecent assault, the applicant was remanded into custody in April 2017. He remained on remand until his conviction in September 2018, and then commenced to serve the sentence of imprisonment that had been imposed.

The visa cancellation and non-revocation decisions

33    As a result of the September 2018 convictions and sentence, on 10 December 2018 the Minister mandatorily cancelled the applicant’s visa under s 501(3A) of the Act on the basis that the applicant did not pass the “character test” in s 501(2) as he had a “substantial criminal record” as defined in s 501(6) read together with s 501(7).

34    In accordance with the Minister’s invitation under s 501CA(3) of the Act, the applicant then made representations seeking revocation of the visa cancellation decision. The applicant accepted that he did not pass the character test, but submitted that there was “another reason” why the visa cancellation decision should be revoked. By a decision made on 25 January 2021 a delegate of the Minister was not satisfied as to that and the power under s 501CA(4) to revoke the visa cancellation decision was therefore not enlivened.

35    The applicant then applied to the Tribunal for review of the delegate’s decision. Before the Tribunal, the applicant accepted that he did not pass the character test, but again submitted that there was another reason why the visa cancellation decision should be revoked. By a decision made on 14 April 2021 the Tribunal was not satisfied that there was another reason to revoke the visa cancellation decision and affirmed the visa cancellation decision.

The applicant’s immigration detention

36    Upon the completion of the term of imprisonment to which the applicant was sentenced in September 2018, the applicant was placed into immigration detention where he has remained.

THE TRIBUNAL’S DECISION

37    At [15]-[38] of its decision the Tribunal set out the relevant factual background including that the applicant left Afghanistan with his mother and two remaining siblings following the murder of his father and brother, the mental health problems from which the applicant suffers, and his lengthy history of criminal offending. I have already summarised those matters and will not do so again.

38    The Tribunal found (at [39]-[40]) that the applicant did not pass the “character test” as he had a “substantial criminal record” within the meaning of s 501(6)(a) of the Act read with s 501(7). There is no challenge to that finding. The Tribunal then turned to consider whether it was satisfied under s 501CA(4) of the Act that there was another reason why the visa cancellation decision should be revoked.

39    The Tribunal noted (at [42]) that in deciding whether there was another reason why the visa cancellation decision should be revoked it was required to comply with Direction 79. It said (at [43]) that it was required to take into account “the primary and other considerations relevant to the individual case” (para 8) and to consider whether to revoke the visa cancellation decision “given the specific circumstances of the case” (paras 6.1(3) and 13(1)).

40    The Tribunal (at [44]) set out the principles in para 6.3 of Direction 79, including the two following principles which, in its view, were of particular relevance given the applicant’s circumstances, namely that:

(a)    the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas of, if they commit serious crimes in Australia or elsewhere (para 6.3(2)); and

(b)    a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to forfeit the privilege of staying in Australia (para 6.3(3)).

41    At [47]-[51] the Tribunal noted the “primary considerations” and “other considerations” in Direction 79 that it was required to take into account.

42    The Tribunal considered the first primary consideration, “protection of the Australian community” (at [53]-[124]). It summarised its conclusions (at [121]-[124]), as follows:

121.    I have found that the Applicant’s offending has been very serious, frequent, repetitive and sustained.

122.    Should he commit further offences or engage in other serious conduct, the likely harm would entail loss of property, psychological harm and physical harm to a broad range of individuals, and to the community at large.

123.    As to the likelihood of him committing further offences or engaging in other serious conduct, I am not satisfied that it is unlikely. I am, however, satisfied that the risk of him re-offending is moderate.

124.    The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

43    The Tribunal considered the second primary consideration, “best interests of minor children in Australia” (at [125]-[160]). It summarised its conclusion (at [156]-[160]), as follows:

156.    Overall, my determination is that revocation of the Applicant’s visa cancellation decision is in the best interests of each of his niece and nephews. In essence, this is because non-revocation would impair their opportunity to have a potentially positive relationship with their uncle.

157.    In relation to the daughter, however, revocation of the Applicant’s visa cancellation decision would have no effect on her interests.

158.    Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

159.    The weight I attribute to this consideration is, however, not significant. This is because the opportunity being impaired by a non-revocation decision only concerns a relationship that is not, and would not be, parental and one that would, in any event, need to be substantially enhanced over that which currently subsists in order for the impairment to be material.

160.    I note that attributing little weight to this consideration with respect to the Applicant’s niece and nephews is not inconsistent with the approach he took when completing a personal circumstances form in December 2019.124 In that form, the Applicant was asked to identify all minor children in his life. The Applicant’s response was to list only his daughter.

44    The Tribunal considered the third primary consideration, “expectations of the Australian community” (at [161]-[173]). At [165]-[167] the Tribunal said that as the applicant had committed “very serious crimes”, para 6.3(2) of Direction 79 indicated a deemed expectation of the Australian community that the decision to cancel the applicant’s visa should not be revoked. Thus, the expectations of the Australian community weighed against the Tribunal being satisfied that there was another reason to revoke the visa cancellation decision.

45    The Tribunal found that the applicant’s offending conduct was “very serious” and tended towards the upper end of the spectrum of such offending, and the risk of his reoffending was moderate (at [171]-[173]). It concluded that it should give significant weight to the consideration, and concluded that the expectations of the Australian community weighed to a “significant extent” against there being another reason to revoke the visa cancellation decision.

46    The Tribunal then turned to consider the five “other considerations” set out in para 14 of Direction 79 (at [174]). It is, though, only necessary to summarise the Tribunal’s reasons in the “international non-refoulement obligations” consideration, as it is only in relation to that consideration that the Tribunal’s reasons are impugned in the application.

47    The Tribunal considered Australia’s international non-refoulement obligations in relation to the applicant (at [175]-[235]). The Tribunal accepted (at [187]), amongst other things, that the applicant:

(a)    would not have the benefit of any family support network in Afghanistan, which is one of the main protection and coping mechanisms in Afghan society;

(b)    could communicate orally in Dari, but would do so with an accent which betrayed his upbringing in the West. He neither reads nor writes in Dari, and thus would have difficulties in understanding and communicating in writing; and

(c)    would have great difficulty in obtaining any treatment for his PTSD and other mental disorders in Afghanistan, which was of particular concern as the Tribunal accepted the opinion of a psychologist, Ms Carla Ferrari that, absent treatment, there is a significant risk of deterioration in his mental health.

48    At [201] the Tribunal also accepted Ms Ferrari’s opinion that if the applicant was returned to Afghanistan he is likely to suffer a severe decline in his mental health and functioning. Ms Ferrari opined that:

…[s]eparation from his family and returning to a country has no connection to, no psychosocial stability or support would cause a severe decline in…[the applicant’s] mental health and functioning, particularly in an individual already susceptible to a depressive illness and a history of trauma” and “will significantly impact…[the applicant’s] pre-existing symptoms which are currently severe. He experiences daily suicidal ideation, and is indicated if he is to be deported, it would take his own life due to the likelihood of persecution and violence on his return to Afghanistan; given his level of psychological distress this is a significant risk.

49    The Tribunal also accepted (at [188]-[195]) country information that said that:

(a)    people should not travel to Afghanistan because of “the extremely dangerous security situation and the very high threat of terrorist attack” (Department of Foreign Affairs and Trade (DFAT) travel advisory, 13 April 2021) and because of “the unstable security situation, ongoing insurgency, terrorist attacks, risk of kidnapping and high crime rate”: Government of Canada travel advisory, effective as at 11 February 2021;

(b)    most returnees to Afghanistan “take measures to conceal their association with the country from which they returned, and keep a low profile on return”: DFAT report, 17 June 2019 (DFAT report);

(c)    the security situation in Afghanistan “is dangerous, complex and highly fluid…. International and domestic observers agree that the general security situation in Afghanistan has deteriorated considerably in recent years. In the Asia Foundation’s 2018 Survey of the Afghan People, 71.1 percent of Afghans reported feeling fearful for their personal safety”: DFAT report;

(d)    “[a]nalysts found that seven out of ten Afghan refugees to return home are forced to flee again due to violence, with many of them becoming internally displaced”: DFAT Country of Origin Information Services Section publication entitled “Return and Relocation Afghanistan”, effective from 23 October 2020 (COISS report);

(e)    in 2018 there were nearly 11,000 civilian casualties of the violence endemic in Afghanistan, and over 10,000 casualties in 2019, and during the first quarter of 2020, “the conflict in Afghanistan continued to be one of the deadliest in the world for civilians”: Afghanistan: Security Situation (September 2020) (EAO security report); and

(f)    people living in Kabul (where the Tribunal concluded that the applicant was likely to be located) not only suffered from politically motivated violence, they also faced an increase in criminality which had started to occur even in relatively safe central areas, “turning the city into one of the most dangerous places for businessmen, foreigners, local officials and ordinary people”: EAO security report.

50    The Tribunal accepted country information that advised as to other risks of harm faced by returnees to Afghanistan (at [196]-[204)], including that:

(a)    the Afghan government had only a limited capacity to address the reception and reintegration of refugees and that “30% of them faced difficulties finding livelihood opportunities and 18% had challenges when accessing food”: Afghanistan: Key Socio-Economic Indicators: Focus on Kabul City, Mazar e Sharif and Herat City (August 2020) (EAO economic report)

(b)    the proportion of Afghans living in poverty was estimated to have increased from 55% in 2017 to between 61% and 72% in 2020. The “effects of conflict, crime, corruption, poor economy, drought and food insecurity, and the COVID-19 pandemic, have seen the vast majority of the population reduced to living below the poverty line”. In September 2019, 3.9 million Afghans were “in need of emergency food and livelihoods assistance” and 13.5 million were “severely food insecure”: EAO economic report. Returnees to Afghanistan are said to face “a food insecurity crisis”: COISS report.

(c)    while poverty can be alleviated by employment, and while Kabul might offer greater employment opportunities than might be found elsewhere in Afghanistan, “unemployment and underemployment are widespread in Kabul”: EAO economic report. Afghanistan’s unemployment rate in 2020 was estimated at 11.2%: COISS report;

(d)    returnees to Afghanistan faced risks associated with a lack of adequate access to essential services, such as access to potable water. In January 2020, 90% of returnees interviewed found it “difficult to subsist”: COISS report; and

(e)    there are risks associated with inability to access health care. In 2018 it was estimated that 27% of returnees were unable to access health care (EAO economic report) and that difficulty was worse in relation to mental health care which was compounded by the large number of sufferers of mental health conditions and the limited number of facilities. “With extremely low availability of psychosocial support services and repeated exposure to traumatic shocks, recovery opportunities are likely to be minimal, with people instead of resorting to negative coping mechanisms”: EAO economic report.

51    The Tribunal found that the risks for Afghans generally were exacerbated in the case of the applicant as his circumstances would be unlike those of most other Afghans (at [203]). That was said to be because most “returnees in Kabul City depend on relatives for accommodation and other in-kind support. The importance of social networks is reported as vital for returnees. When originally not from Kabul and without a safety net or extended family in the capital, returnees face difficulties supporting themselves, finding jobs or renting accommodation”; and that the “2018 Oxfam study revealed that extended family networks were vital for returnees in finding and maintaining employment and housing”: EAO economic report. The Tribunal accepted that the applicant would have no access to a family network if returned to Afghanistan.

52    The Tribunal concluded that the applicant faced a necessary and foreseeable risk of irreparable harm were he to be returned to Afghanistan, and that Australia’s non-refoulement obligations under the ICCPR were therefore engaged (at [186]). At [205] the Tribunal said that the outlook for the applicant was “bleak” if he was to be returned to Afghanistan.

53    The Tribunal then turned to consider the consequences for the applicant if it decided not to revoke the visa cancellation decision (at [210]-[235]). The Tribunal accepted (at [210]) that the applicant’s return to Afghanistan might be said to be a “direct and immediately prescribed consequence of” (citing Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]), a “legally proximate consequence of” (citing DLJ18 v Minister for Home Affairs [2019] FCAFC 236 at [5]-[15] per Flick J; [24] per Bromberg J; and [85] per Snaden J), or a “legal consequence of which there is a real possibility that it will flow from” (citing DYY18 v Minister for Home Affairs [2019] FCA 1901 at [24]), of a decision by it not to revoke the visa cancellation decision.

54    That was said to be because (at [211]-[212]):

(a)    under s 14 of the Act, upon cancellation of his visa the applicant became an unlawful non-citizen;

(b)    under s 189(1), when the applicant became an unlawful non-citizen, immigration officers became obliged to detain him;

(c)    once the applicant was detained as a consequence of the visa cancellation decision, s 196 required that the applicant be kept in detention until he is either deported under s 200; removed from Australia under s 198; is granted a visa; or a court determines that his detention is unlawful; and

(d)    under s 198, when the applicant became an unlawful non-citizen, immigration officers became obliged to remove him from Australia “as soon as reasonably practicable”, and under s 197C any non-refoulement obligations are irrelevant to the obligation to so remove him and the duty of such officers to effect that removal would arise irrespective of whether such obligations had been assessed.

55    Alternatively, the Tribunal suggested (at [212(e)]) that if the Minister considered it in the public interest to do so, the Minister might decide to exercise his or her personal power under s 195A of the Act to grant the applicant a visa, or exercise the power under ss 197AC and 197AE to allow the applicant to reside in a place other than an immigration detention centre by way of a “residence determination” (sometimes called community detention), but the Minister could not be compelled to consider doing so.

56    The Tribunal concluded as follows (at [213]-[215]):

[213]    In light of the foregoing, it would be wrong to assume that the Applicant would not be refouled should his visa cancellation decision not be revoked.

[214]    Nevertheless, I do not consider that the Applicant’s removal from Australia would presently be likely should his visa cancellation decision not be revoked, given his capacity to apply for a protection visa.

[215]    Moreover, while I do not assume that the Applicant would not be refouled, I accept the Applicant’s submission that, as a matter of government policy, it is unlikely that he would be.

57    The Tribunal noted that the Australian government policy against removing a person from Australia in breach of international non-refoulement obligations has found expression in a number of places (at [216]). It noted:

(a)    (at [217]), that paras 14.1(2) and (6) of Direction 79 state:

(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 the visa, to the country in respect of which the non-refoulement obligation exists.

…

(6)    … 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.

(b)    (at [219]), that s 197C of the Act came into force on enactment of the Migration and Maritime Powers Legislation Amendments (Resolving the Asylum Legacy Caseload) Act 2014, the explanatory memorandum to which states (at 1142) that:

Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

and

(c)    (at [220]), that the Statement of Compatibility with Human Rights set out as Attachment A to the explanatory memorandum states (at 28):

Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non-compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest.

58    The Tribunal also referred (at [221]) to several decisions which it said appear to recognise the existence of a policy, the operation of which makes refoulement of a person in breach of non-refoulement obligations unlikely, citing:

(a)    BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [68], where Kerr J said in relation to a non-citizen in respect of whom non-refoulement obligations are owed “Australia ultimately will not refoule such a person”; and

(b)    Sowa v Minister for Home Affairs [2019] FCAFC 111 at [43], where Jagot, Bromwich and Thawley JJ noted that the applicant there had not referred to what was characterised as Australia’s practice of not returning a person to a place if non-refoulement obligations are owed.

59    In further support of its finding that it was unlikely that the applicant would be returned to Afghanistan the Tribunal noted (at [222]) that taking that course would reflect a failure by Australia to respect obligations it owes to other nations, which could adversely affect Australia’s “reputation and standing in the global community” or its “reputational interest” (citing Ali v Minister for Home Affairs [2020] FCAFC 109 at [91] and Hernandez v Minister for Home Affairs [2020] FCA 415 at [63]).

60    Having concluded (at [215]) that as a matter of government policy it was unlikely that the applicant would be returned to Afghanistan, the Tribunal then turned to consider (at [223]-[228]) what the consequences might be for the applicant if it decided not to revoke the visa cancellation decision. These paragraphs are central to this application.

61    At [223] the Tribunal asked: “If, as I have found, the Applicant’s return to Afghanistan in breach of non-refoulement obligations owed in respect of him is a presently unlikely consequence of a non-revocation decision, what then?” The Tribunal turned to answer that question at [224]-[228].

62    The Tribunal used a restricted meaning of the expression "indefinite detention” (at [224]). It said that, to its mind, indefinite detention meant “detention with no end as opposed to detention of uncertain duration”. The Tribunal went on to say that indefinite detention would not be a consequence of non-revocation of the visa cancellation decision. The Tribunal explained its view in that regard (at [225]-[228]), as follows:

[225]    As a legal matter, it is unnecessary for the Tribunal to consider indefinite detention as such a consequence. It “…was not a possibility because…the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non-refoulement obligations” [AQM18 v Minister for Immigration and Border Protection [2019] FCAF 27; 268 FCR 424 at [25]] I note that here, as in MNLR [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; 283 FCR 525 at [158]], it has not been contended that the removal of the Applicant from Australia is not reasonably practicable.

[226]    Further, quite apart from the right of the Applicant to seek a protection visa, as I mentioned, the Respondent has certain powers the exercise of which would see the Applicant released into the community which, albeit non-compellable, might well be exercised in implementation of the policy I have found to exist. In addition, I note the decision of Bromwich J [sic] in AJL20 [v Commonwealth of Australia [2020] FCA 1305]. His Honour found that a person’s ongoing detention was unlawful where there had been a failure to remove the person from Australia as soon as reasonably practicable due to non-refoulement obligations being engaged.

[227]    The upshot is that, if the Applicant’s visa cancellation decision is not revoked and if a protection visa application by him is refused, then pending any decision by the Respondent concerning the exercise of his non-compellable powers (should the Respondent decide to consider their exercise), the Applicant would be detained. If the Respondent was to refuse to exercise those powers or consider their exercise, the Applicant would either be removed from Australia (an unlikely result given the policy which I have found exists) or released into the community (potentially in reliance on the approach adopted in ALJ20).

[228]    Even if (as I have concluded) detention is not indefinite, the Applicant might well remain in detention for some time. That would have adverse consequences. Generally, the Applicant would continue to be denied freedom of movement. His capacity to liaise with family and friends would be constrained (especially in a COVID-19 context), as would his capacity to implement any plans he might have had for his future. Moreover, the Applicant’s detention is likely to have an adverse effect on his mental health due to the pressures associated with detention and to a limited “...capacity to engage in mental health treatment due to reduced availability in custody and detention.”

63    At [230] the Tribunal rejected the applicant’s contention that it ought to determine the likelihood of the applicant succeeding should he apply for a protection visa, doing so on the basis that such determination would be “speculative”. In this regard the Tribunal cited MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; 283 FCR 525 at [158] (SC Derrington and Perram JJ, with Wigney dissenting on the point), which in turn approved the observations of Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [33].

64    The Tribunal expressed its conclusion on the “international non-refoulement obligations” consideration (at [231]-[235]), as follows:

[231]    Non-refoulement obligations are owed in respect of the Applicant. He would be at a risk of irreparable harm, a risk which is both a necessary and foreseeable consequence of him being refouled to Afghanistan.

[232]    Consistently with submissions made on behalf of the Applicant, I do not consider that the Applicant’s removal from Australia and return to Afghanistan to be a likely consequence of a non-revocation decision, at present.

[233]    Instead, the more likely consequence of such a decision is that he would remain in detention. While that detention would not be indefinite, it would nevertheless carry with it a number of adverse consequences for the Applicant.

[234]    While adverse consequences will flow from a decision not to revoke the Applicant’s visa cancellation decision, therefore, it is not presently likely that his refoulement to Afghanistan will be one of them (as submitted by the Applicant).

[235]    In the result, this consideration weighs in favour of there being another reason to revoke the Applicant’s visa cancellation decision but does so to a moderate extent.

65    In expressing its conclusion as to whether there was another reason to revoke the visa cancellation decision the Tribunal said the following (at [259]-[261]):

[259]    In considering whether there is another reason for revocation of the decision to cancel the Applicant’s visa, my conclusions in relation to the various considerations to which Direction 79 requires that I have regard do not point in a uniform direction.

[260]    In particular, in the circumstances of this matter:

(a)    The primary considerations as to protection of the Australian community from criminal or other serious conduct and as to expectations of the Australian community weigh heavily in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision.

(b)    The primary consideration concerning the interests of children weighs in favour of a conclusion that there is that there is another reason to revoke the visa cancellation decision but the weight attributed to it is not significant.

(c)    Two of the “other considerations” weigh in favour of a conclusion that there is another reason to revoke the visa cancellation decision, to a significant extent (being the considerations concerning the Applicant’s ties to Australia and extent of impediments if removed to Afghanistan).

(d)    One of the “other considerations” weighs in favour of a conclusion that there is another reason to revoke the visa cancellation decision, to a moderate extent (being the consideration concerning international non-refoulement obligations).

(e)    In weighing, in particular, the consideration concerning non-refoulement obligations against the seriousness of offending, I have found that the Applicant’s offending has been at the upper end of the spectrum of very serious offending.

[261]    In the result, I am not satisfied that there is another reason for revocation of the visa cancellation decision. As I see it, there is nothing in the circumstances that warrants displacement of the general position requiring that more weight be given to the primary considerations than that given to the other considerations.

THE APPLICATION FOR JUDICIAL REVIEW

66    The Amended Originating Application has two grounds of review, but only ground one, which advances two related arguments, is pressed. Ground one alleges:

The Tribunal’s decision was affected by jurisdictional error in that the Tribunal misunderstood its task, made findings based on irrational reasoning or failed to give proper consideration to the prospect that the applicant would either be refouled to Afghanistan or would face indefinite detention as a consequence of the non-revocation of the visa cancellation decision.

Particulars

(a)    The Tribunal accepted that the applicant faced a real risk of significant harm if he returned to Afghanistan as a necessary and foreseeable consequence of being returned.

(b)    The Tribunal’s finding that the applicant would likely be released into the community or be granted a protection visa or be the beneficiary of ministerial intervention is irrational and irreconcilable with the Tribunal’s findings that the applicant did not pass the character test and posed an unacceptable risk to the Australian community.

(c)    Further and alternatively, the Tribunal failed to consider the prospect that the applicant would remain detained beyond the period necessary for considering any further visa application or the exercise of the Minister’s discretionary powers and the effect of such indefinite detention on the applicant.

CONSIDERATION

67    The sole ground of review may be broken down into two parts. The questions raised by the application are whether the Tribunal decision was affected by jurisdictional error because:

(a)    the Tribunal’s finding that the applicant would likely be released into the community or be granted a protection visa or be the beneficiary of ministerial intervention is irrational and irreconcilable with the Tribunal’s findings that the applicant did not pass the character test and posed an unacceptable risk to the Australian community (the particular (b) ground); and

(b)    the Tribunal failed to consider the prospect that the applicant would remain detained beyond the period necessary for considering any further visa application or the exercise of the Minister’s discretionary powers and the effect of such indefinite detention on the applicant (the particular (c) ground).

The particular (c) ground

68    It is convenient to start with the ground raised under particular (c).

69    In deciding whether to revoke the cancellation of a person's visa under s 501CA(4) of the Act an administrative decision-maker is obliged to consider the legal and practical consequences for the person of a decision not to revoke the visa cancellation: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]-[10], [17] (Allsop CJ, Buchanan and Katzman JJ); Taulahi v Minister for Immigration & Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]-[88]. Separately, the decision-maker is obliged to consider any clearly expressed and significant representation made by the affected person as to the harm that he or she may suffer if the visa cancellation decision is not revoked: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589, 602-604 at [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). In these contexts, the obligation of a decision-maker to “consider” a matter is an obligation to engage in an active intellectual process in relation to the legal and practical consequences of a decision: Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 476-477 per Burchett J and 495 per Kiefel J (as her Honour then was): Omar at [35]-[36]. ,

70    Before me, the Minister’s arguments proceeded on the basis of an acceptance that the applicant’s representations included the claim that, if the Tribunal decided not to revoke his visa cancellation, he faced the prospect of indefinite detention. There was no suggestion that was not a clearly expressed and significant representation.

71    On the applicant’s argument, if the Tribunal decided not to revoke his visa cancellation, the likely consequences for him were binary. He either faced the prospect of being returned to Afghanistan (where the Tribunal accepted that he faced a risk of irreparable harm) or he faced the prospect of indefinite detention. The applicant does not, however, confine the meaning of “indefinite detention” to “detention with no end” (as the Tribunal did); rather he says the meaning of the phrase includes a prolonged period of detention with no chronologically fixed end point, such that its duration is uncertain.

72    The applicant argues that the Tribunal erred because it only gave consideration to the prospect that he would be detained for a "temporary" period, while consideration was given to any application for a protection visa he made and/or while the Minister gave consideration to the exercise of his discretionary powers (including to grant the applicant a visa under s 195A of the Act or to make a residence determination under ss 197AC and 197AE). He says the Tribunal erred because it failed to give proper (indeed any) consideration to the prospect that he would continue to be detained beyond that period and the effect of such indefinite detention upon him.

73    On the Minister’s argument, the impugned reasoning of the Tribunal involved two steps: first, that, if the Tribunal decided not to revoke the visa cancellation decision, it was unlikely that the consequences for the applicant would include his removal to Afghanistan; and second that it was unlikely that the consequences for the applicant would include his indefinite detention. The Minister contends that in deciding that it was unlikely that the consequences for the applicant would include the prospect of his indefinite detention, the Tribunal did not limit its consideration only to the risk of his detention for a period while consideration was given to any application for a protection visa by the applicant and/or while the Minister gave consideration to the exercise of his non-compellable powers. The Minister submits that the Tribunal gave consideration to both ways that one can describe “indefinite detention”, being:

(a)    detention with no end, which the Minister called “true or prolonged detention” or “unending detention”; and

(b)    detention that has no chronologically fixed end point and is of uncertain duration.

74    The Minister submits that the Tribunal decided that neither type of indefinite detention was a likely consequence of a decision not to revoke the cancellation of the applicant’s visa, and that the Tribunal did not make the asserted error.

75    I do not accept the Minister’s argument.

76    It is common ground between the parties that (at [224]-[226]) the Tribunal gave consideration to whether the consequences for the applicant of a decision not to revoke the visa cancellation decision included the prospect of the applicant’s “indefinite detention” in the sense of “unending detention” or “detention with no end”.

77    The Tribunal said (at [224]) that, to its mind, indefinite detention meant “detention with no end” as opposed to “detention of uncertain duration”. Having so confined the meaning of indefinite detention, the Tribunal said that indefinite detention would not be a consequence of a decision not to revoke the visa cancellation decision, and gave the following four reasons for that (at [225]-[226]):

(a)    First, as a “legal matter”, indefinite detention was not a possibility because the effect of s 197C of the Act was that the applicant would be returned to Afghanistan notwithstanding that Australia owed non-refoulement obligations in respect of him (citing AQM18 v Minister for Immigration and Border Protection [2019] FCAF 27; 268 FCR 424 at [25] per Besanko, White and Thawley JJ and MNLR at [158] per SC Derrington J with Perram J agreeing) (at [225]);

(b)    Second, the applicant had the capacity to apply for a protection visa and the grant of such would mean the applicant would be permitted to live in the community (at [226] referring back to [214]);

(c)    Third, the Minister had and could choose to exercise his personal non-compellable powers, including to grant the applicant visa or to make a residence determination in the applicant’s favour, which powers might well be exercised in implementation of the government policy against returning non-citizens to a country where doing so would be a breach of Australia's non-refoulement obligations (at [226]); and

(d)    Fourth, that in AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20 FC) Bromberg J held that it was unlawful to continue to detain a person where there had been a failure to remove the person from Australia as soon as reasonably practicable due to non-refoulement obligations being engaged (at [226]).

78    It is also common ground that (at [227]-[228]) the Tribunal gave consideration to whether the consequences for the applicant of a decision not to revoke the cancellation of his visa included the prospect of his being detained for the period taken while consideration was given to any protection visa application he made, and/or while the Minister considered the exercise of his non-compellable powers. That can be seen:

(a)    at [227], where the Tribunal said that, if it did not revoke the visa cancellation decision, and if a protection visa application by the applicant was refused, then pending any decision by the Minister concerning the exercise of his non-compellable powers (should the Minister decide to consider their exercise) the applicant would be detained. The Tribunal further said that if the Minister was to refuse to exercise his non-compellable powers, or consider their exercise, the applicant would either be removed from Australia (which was unlikely because of the Australian government policy against the return of persons to a country in breach of Australia’s international non-refoulement obligations) or released into the community, “potentially” in reliance on the approach adopted in AJL20 FC; and

(b)    (at [228]), where the Tribunal said that while such detention would not be indefinite, the applicant “might well remain in detention for some time” which would have “adverse consequences” for the applicant. It described those adverse consequences as denying the applicant’s freedom of movement; constraining his capacity to liaise with family and friends and his capacity to implement any plans he might have had for his future; and “adverse effect on his mental health due to the pressures associated with detention and to a limited “capacity to engage in mental health treatment due to reduced availability in custody and detention”” (citing the March 2021 report of Ms Ferrari).

79    The Minister’s argument is that the Tribunal’s statement that the applicant “might well remain in detention for some time” and its consideration of the adverse consequences for the applicant show that it gave meaningful consideration to whether the consequences for the applicant of a decision not to revoke the cancellation of his visa included the prospect that he would remain in detention beyond the period taken while any protection visa application he made is considered and/or while the Minister gave consideration to the exercise of his non-compellable powers. The Minister contends that the Tribunal accepted that the consequences for the applicant of a decision not to revoke the visa cancellation decision included the prospect of his remaining in detention for such a period, while rejecting the risk that he would face “detention with no end” for the reasons explained at [225]-[226].

80    I do not accept the Minister’s argument. I accept the applicant’s central contention that the Tribunal erred by failing to give meaningful consideration to whether, if it decided not to revoke the visa cancellation decision, the consequences for him included the prospect of his remaining in detention for an indefinite duration beyond the period taken while any protection visa application he made is considered and/or while the Minister gave consideration to the exercise of his non-compellable powers.

81    I commence by noting that, having regard to decision in AJL20 HC, it is plain that the Tribunal erred in its findings (at [226] and [227]) in reliance on the reasoning in AJL20 FC. By majority, the High Court overturned the decision in AJL20 FC and rejected the proposition that where an unlawful non-citizen in Australia has been lawfully detained under s 189 of the Act, the continued detention of the person in pursuit of a government policy not to return people to a country where doing so would be a breach of Australia’s non-refoulement obligations does not render that continued detention unlawful. Relatedly, the majority (at [71]) rejected the proposition that a person whose continued detention is in pursuit of such a policy could be released into the community, stating that “[b]ecause the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise.” This error was, however, given little emphasis by the applicant.

82    In my view, the Tribunal’s error began with it confining the meaning of “indefinite detention” to “detention with no end” and excluding from the meaning “detention of uncertain duration”. I consider the Tribunal’s meaning gave an artificially narrow meaning to the expression which led the Tribunal into error.

83    In MNLR (at [93]-[94]) Wigney J said, and I agree:

It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.

There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy….

84    Those remarks were cited with approval by the Full Court in WKMZ (at [104]). In that case Kenny and Mortimer JJ undertook a comprehensive review of the authorities in relation to the interaction between s 197C and Executive policy as reflected in Direction 79 in the context of the refusal or cancellation of visas.

85    I agree with their Honours’ conclusion (at [107]), that following the final conclusion of any visa refusal or cancellation process, ss 197C and 198 of the Act do not preclude detention of a person for a period of time so that the Executive can genuinely consider alternative possibilities for a person to remain in Australia (or other options such as admission to a safe third country). As their Honours said, that is so notwithstanding that the Court has consistently held that the insertion of s 197C into the Act clarified Parliament’s intention that a person should not be detained beyond the time required for any such genuine consideration, and should instead be removed from Australia, even if removal is to a country where the person faces a serious risk of harm in breach of Australia’s non-refoulement obligations.

86    Their Honours said (at [108]) that this appeared to be why some of the authorities went as far as to contend that there is no longer any basis in the legislative scheme of the Act for the “indefinite detention” of an individual. Their Honours disagreed with that conclusion, as follows:

As we explain, if that is the logical consequence of some of the reasoning, in our respectful opinion the situation may not be quite as clear-cut as might be thought, and indeed this approach is not consistent with the authorities set out at [94] above. Rather, much may depend on the particular difficulties in removing a particular individual, as well as what is meant by “indefinite” detention. Apart from Wigney J’s discussion in MNLR… some of the discussion in the other authorities may indicate that the term “indefinite” was there understood as something akin to “permanent”. As we explain below, we do not see the concept as that absolute.

87    I also agree with following remarks of Kenny and Mortimer JJ (at [122]-[123], [132]-[133], [136]):

[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.

…

[132]…whether the reference to such a person facing “indefinite detention” is legally problematic depends on what is meant by the adjective “indefinite”. If, when applied to executive detention, the adjective means detention without a chronologically fixed endpoint, the existence of the executive policy set out in para 14.1(2) makes this a correct statement. Having failed in all challenges to a protection visa refusal or cancellation, to avoid refoulement affected individuals will then depend on the implementation of the executive policy set out in para 14.1(2) through the favourable exercise of one of the non-compellable discretions in the Act, or other avenues such as a successful third country resettlement process. Otherwise, their detention may continue, unless and until the executive abandons its policy of adherence to Australia’s international obligations in respect of that particular individual, or is compelled by a Court to remove a person (one of the options canvassed in AJL20). The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18 [at [129]], be a serious step and not a decision taken quickly….

[133]    As the facts of AJL20 demonstrate, in reality these administrative steps and inquiries may take a very long time, and not have any clear outcome, despite the presence of s 197C. In the case of the individual who is AJL20, his detention continued notwithstanding an express judicial determination in 2017 about the effect of s 197C. In our opinion such circumstances fit comfortably within a general concept of executive detention that can be characterised as “indefinite”

…

[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].

(Emphasis added.)

88    Their Honours held that the legal and practical consequences of the decision not to revoke the visa cancellation decision in that case included the prospect that the appellant would remain in detention while the Executive pursued the government policy against returning him to a country in breach of Australia’s non-refoulement obligations. And as their Honours noted (at [132]) it is appropriate to infer that any decision by the Executive to abandon its adherence to Australia’s non-refoulement obligations under international treaties would “be a serious step and not a decision taken quickly” (citing White J in AQM18 at [129]).

89    The same can be said in the present case. In my view, if the Tribunal decided not to revoke the cancellation of the applicant's visa, the legal and practical consequences for him included the prospect that he would remain in detention beyond the period taken while consideration is given to any protection visa application he made and/or while the Minister considered the exercise of his non-compellable powers.

90    I say that, first, because if the applicant is not granted a protection visa and/or the Minister does not exercise his non-compellable powers in the applicant’s favour, the Australian government policy against returning persons to a country in breach of Australia’s non-refoulement obligations means that the Executive would be on the horns of a dilemma. The Tribunal decided that the applicant’s offending conduct fell at the “upper end of the spectrum of very serious offending” (at [59] and [260(e)]); his offending was “very serious, frequent, repetitive and sustained” (at [121]); it was “not unlikely” that if he were released into the community he would commit further offences or engage in other serious conduct (at [79]); and the protection of the Australian community from criminal or other serious conduct "weighs heavily” against being satisfied that it is appropriate to reinstate his visa (at [124]). The Tribunal also decided that returning the applicant to Afghanistan would mean he faced a risk of significant and irreparable harm, and that doing so would be contrary to Australia’s non-refoulement obligations. In such circumstances, what is the Executive to do?

91    Experience shows that before embracing either the (apparently unpalatable) course of releasing the applicant into the community or the alternative unpalatable course of returning him to Afghanistan, the Executive would turn to consider other options to deal with the applicant, including by considering having him resettled in a safe third country. It also shows that investigating and procuring such outcomes often takes significant time. If the various administrative inquiries and steps do not produce an outcome which the Executive considers acceptable, the applicant will face the prospect of continued detention unless and until the Executive abandons its policy of adherence to Australia’s international non-refoulement obligations. As I have said, it is appropriate to infer that any decision to abandon such a long-standing policy would not be quickly taken, and there is no evidence to show that the Executive is considering doing so. As the Tribunal found (at [222]), abandoning its adherence to those obligations would reflect a failure by Australia to respect obligations it owes to other nations, which could adversely affect Australia’s “reputation and standing in the global community” or its “reputational interest”, citing Ali v Minister for Home Affairs [2020] FCAFC 109 at [91] and Hernandez v Minister for Home Affairs [2020] FCA 415 at [63].

92    The reality is that the consequences for the applicant of a decision not to revoke the cancellation of his visa included the prospect of his prolonged detention beyond the period taken while consideration is given to any protection visa application he may make and/or while the Minister considers the exercise of his non-compellable powers. It is appropriate to describe such detention as “indefinite detention” because its duration is uncertain and depends upon the completion of a set of administrative and Executive steps and inquiries, and because the applicant would have no way of ascertaining when his detention might end. On a fair reading of the Tribunal’s reasons, without an eye keenly attuned to error, the Tribunal did not consider the prospect that he would remain in detention for such a period, nor the effect of such indefinite detention on the applicant.

93    Second, and relatedly, the Tribunal’s consideration failed to confront and engage with the human consequences for the applicant if it decided not to revoke the visa cancellation decision.

94    In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3], Allsop CJ (with Markovic and Steward JJ agreeing), explained, and I respectfully agree:

…it can be said cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(Citations omitted, emphasis added.)

95    In my view, on a fair reading of the Tribunal’s reasons, the Tribunal did not confront or engage with the effect on the applicant of prolonged further detention beyond the period taken up by consideration of any protection visa application he made and/or for the Ministers consideration of the exercise of his non-compellable powers. The Tribunal said only that the applicant “might well remain in detention for some time” and that such detention would have adverse consequences including “an adverse effect on the applicant’s mental health due to the pressures associated with detention and to a limited “capacity to engage in mental health treatment due to reduced availability in custody and detention”. It must be kept in mind that the Tribunal accepted that the applicant suffers from PTSD, depression, anxiety, stress and a persistent depressive disorder and from daily suicidal ideation. The Tribunal’s reference to the possible adverse effect on the applicant’s mental health did not come near to recognising and engaging with the prospect that such prolonged further detention might cause him extreme hardship, have devastating consequences, or perhaps even prove fatal if his daily suicidal ideation worsened as a result. In my view, the Tribunal failed to honestly confront the prospect that the applicant would face such consequences.

96    Turning then to the issue of materiality, in my view, the gravity of the impact of detention on the applicant for the period taken while consideration is given to any protection visa application he makes and/or while the Minister considers the exercise of his non-compellable powers, is plainly very different to the impact of detention for a prolonged further time beyond that period, with no fixed end point, and where the applicant would have no way of ascertaining when it might end. Had the Tribunal considered the prospect that such indefinite detention might cause the applicant extreme hardship or have devastating consequences, including the risk that he might commit suicide, which is likely to have weighed more heavily in favour of revocation of the visa cancellation decision. I am persuaded that there is a realistic possibility that it could have resulted in a different outcome. The Tribunal’s error was ‘material’, and therefore jurisdictional: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ) and in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ).

97    Accordingly, I have made orders to allow the application on the basis of the ground under particular (c).

The particular (b) ground

98    Under this ground the applicant submits that the Tribunal fell into jurisdictional error because its finding that the applicant would likely be released into the community or be granted a protection visa or be the beneficiary of ministerial intervention is irrational and irreconcilable with its findings that the applicant did not pass the character test and posed an unacceptable risk to the Australian community. The applicant says that the Tribunal’s reasoning along the way to its conclusion that it was not satisfied that there was another reason to revoke the visa cancellation decision reveals illogicality or irrationality.

99    The applicant’s argument finds support in the remarks of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189; 168 ALD 276 at [49]-[54]. While this decision is not on all fours with the present case, in my view, the reasoning is applicable by analogy. In BAL19 the Minister’s reasons referred to the applicant’s eligibility to apply for a bridging visa and the possibility that the Minister may grant him a visa in exercise of his non-compellable powers under s 48B and/or s 195A of the Act. In relation to the possibility of the Minister granting the applicant another visa, Rares J described the Minister’s reasoning as resembling the “catch” in Joseph Heller’s novel Catch 22 (at [43]). His Honour explained as follows (at [48]-[49]):

No Minister, acting reasonably, having made the decision under s 501(1) to refuse the applicant the protection visa he had sought could consider, at the same time, that an application for another visa had any prospect of being granted before the removal of the applicant had to occur as soon as recently practicable after that refusal. That is because the risk of harm to the Australian community from the grant of the visa, on which the Minister based his decision, is necessarily inherent in the grant of any other visa since a visa allows its holder to be in the community.

The Minister’s duty required him to engage in an active intellectual process and to reason through the inevitable consequence of his findings (at [115]-[118]) that the potential harm that could occur by granting the, and necessarily any other, visa to the applicant “is so great that any likelihood that it would occur represents a significant risk to the Australian community” and (at [117]) that this risk was “unacceptable” (at [118]) (emphasis added). That reasoning exposed the lack of any active intellectual engagement with each of the legal and the practical consequences of the refusal to grant the protection visa when the Minister expressed his animadversions in [94]-[97] about the possibility of the grant of a bridging, or of some other substantive, visa…

100    Here, the same can be said about the likelihood of the applicant being granted a protection visa, or of the Minister exercising his non-compellable powers so that the applicant is released into the community. In my view, the chances of the applicant being granted a protection visa (should he apply for one) or that the Minister will decide to exercise his non-compellable powers in his favour so that he is released to the community are vanishingly small because (as the Tribunal found) he does not pass the character test; his offending conduct falls at the “upper end of the spectrum of very serious offending” (at [59] and [260(e)]); his offending was “very serious, frequent, repetitive and sustained” (at [121]); it was “not unlikely” that if he were released into the community he would commit further offences or engage in other serious conduct (at [79]); and the protection of the Australian community from criminal or other serious conduct "weighs heavily” against being satisfied that it is appropriate to reinstate his visa (at [124]).

101    In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [228]-[230] Wigney J agreed with Rares J’s remarks in BAL19 and described the Minister’s speculation in that case about the grant of another visa as positively Kafkaesque. Again, the decision is not on all fours with the present case but in my view the reasoning is applicable by analogy. His Honour said (at [229]-[231]):

[229]    In BAL19, Rares J concluded (at [49]-[54]) that the Minister’s reasons, which explained the effect of his decision to refuse a visa in terms of Australia’s international non-refoulement obligations in almost identical terms to the Minister’s reasons in this matter, gave rise to a jurisdictional error. That was because the reasoning “exposed the lack of any active intellectual engagement with each of the legal and the practical consequences of the refusal to grant the protection visa when the Minister expressed his animadversions … about the possibility of the grant of a bridging, or some other substantive, visa” (at [49]). His Honour also found (at [54]) that the Minister had acted “unreasonably … and did not address the correct question, namely what would happen to the applicant (i.e. the legal or practical consequence) if the visa were not granted”.

[230]    The same can be said concerning the Minister’s consideration of the effect of his refusal to grant a protection visa to the appellant in this case. I am not persuaded that Rares J was wrong to so conclude, let alone plainly wrong. That is all the more so given that Katzmann J recently arrived at the same conclusions in relevantly indistinguishable circumstances: AEM20 at [108]-[117]. There is, in those circumstances, no sound reason why I should not apply the same reasoning to the relevantly identical circumstances of this case.

[231]    I should emphasise that I am not suggesting that the Minister’s consideration of the operation of ss 189, 197C, and 198 of the Act, or his discussion of the possibility of the appellant being granted another visa, was wrong or that the Minister misunderstood the operation of those sections: cf. AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 at [16]-[22]. Nor do I think that Rares J was suggesting as much in BAL19. Rather, the point is that by speculating about the grant of another visa to the appellant, the Minister failed to give real and genuine consideration to the fact that the almost inevitable consequence of his decision to refuse the appellant’s visa application on the basis that he did not satisfy the character test was that the appellant would be refouled to Syria, in breach of Australia’s international non-refoulement obligations. That was the almost inevitable result because, given the Minister’s findings concerning the appellant’s failure to satisfy the character test, there was no reasonable or rational basis to consider that the appellant might be granted some other visa.

(Emphasis added.)

102    The same point was made by Bromberg and Mortimer JJ in DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 334 at [107]-[108] where their Honours said that the appellant in that case had “some cause” to consider that his prospects of being granted a visa were “infinitesimal” given his criminal record and the decision to cancel his visa on character grounds and his criminal record.

103    The Minister submits that the authorities, in the context of deciding whether or not to revoke a visa cancellation decision, show that a decision-maker is not obliged to consider whether there is any realistic prospect that a revocation applicant will be granted a protection visa or that the Minister will exercise his or her non-compellable powers in the applicant’s favour. He says that this ground of the application must be dismissed as contrary to Full Court authority.

104    The line of authority upon which the Minister relies commences with the observations of Flick J in Ali at [31]-[33]. Similarly to the present case this was an application for judicial review of a decision of the Minister under s 501CA(4) of the Act not to revoke a visa cancellation decision made under s 501(3A). His Honour said:

[31]    To the extent that the Applicant may at some point of time in the future make an application for some other kind of visa other than a Protection visa (or even a future application for a Protection visa) and that application was considered by the Minister rather than a delegate of the Minister, that application would confront the Minister with the need to then consider whether:

•    that application should again be refused pursuant to s 501(1) or 501(3) upon the basis that the Applicant does not satisfy the character test; and/or

•    the Applicant should be given some form of visa, possibly subject to conditions, to regularise his continued presence in Australia.

The difficulties confronting the Minister would then be considerable. One possibility to be raised only to be rejected would be the prospect that the Applicant would be returned to Afghanistan in breach of Australia’s international obligations. That, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past. Nor would such a possibility be lightly entertained. But the difficulty then confronting the Minister could be compounded by the fact that a person who is not lawfully entitled to remain in Australia is to be removed as soon as practicable. And s 197C provides that, for the purposes of s 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

[32]    The prospect of regularising the status of the Applicant such that he would not face refoulement to Afghanistan in breach of Australia’s international obligations may well lead the Minister to grant some form of visa, with or without conditions, notwithstanding the inability of the Applicant to satisfy the character test.

[33]    But these are all decision[s] to be made and – if necessary – reviewed at some point of time in the future. 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.

105    Later that year, Griffiths J handed down DOB18 v Minister for Home Affairs [2018] FCA 1523. It is not on all fours with the present case, involving as it did an application for judicial review of a decision of the Minister under s 501BA of the Act to, in effect, intervene and overturn a decision of the Tribunal under s 501CA(4) to revoke a visa cancellation decision made under s 501(3A). At [33]-[35] Griffiths J cited the reasoning in Ali at [33]-[34] with approval, and noted that it had been adopted and applied in Greene v Assistant Minister for Home Affairs [2018] FCA 919 at [19] (Logan J) and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 at [40] (Farrell J), both being applications for judicial review of a decision under s 501CA(4) of the Act not to revoke a mandatory cancellation of a visa under s 501(3A). In his Honour’s view, the reasoning in Ali was applicable by analogy and he said: (at [35]):

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, when considering a judicial review challenge to a particular exercise of power in what might potentially be part of a wider process of decision-making, such as that presented by the Minister’s decision here under s 501BA.

106    Next, the Full Court decision in DQM18 was handed down on 25 June 2020. Like the present case, it involved an application for judicial review of a decision under s 501CA(4) of the Act not to revoke a mandatory cancellation of a visa under s 501(3A), and it runs contrary to the Minister’s argument.

107    Bromberg and Mortimer JJ (with whom Snaden J agreed in the result but on narrower grounds) considered the statement in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [70] where Allsop CJ, Robertson and Griffiths JJ said that “[t]he further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention”. Bromberg and Mortimer JJ said the following, with which I agree:

[107]    It may be the case that legal and factual consequences in the situation of a particular individual will “not necessarily” involve removal or indefinite detention, because of the prospect of a successful visa application. It is important, with respect to the Full Court, to qualify the statement made by noting that it is only a successful visa application which is capable of avoiding removal or indefinite detention. The fact of a visa application itself is no more than a temporary delay to removal or in some limited circumstances a temporary reprieve from indefinite detention. The fact of a visa application may otherwise form part of a period of indefinite detention if a person is not released into the community on a bridging visa while the visa application is processed. For persons in the circumstances of the appellant (who has been found to present an unacceptable risk to the Australian community), it is likely he would be detained during any consideration of a visa application.

[108]    Applying the Full Court’s statement to the appellant is, however, dependent on the appellant applying for a protection visa. He may or may not do so: he (and those advising him) may, with some cause, consider his prospects of being granted such a visa are infinitesimal given the Assistant Minister’s decision and his criminal record. That is, to use the High Court’s phrases cited above in a different context, a “logical deduction grounded in the seeming improbability” of the appellant, having had his visa cancelled twice on the principal basis that the protection of the Australian community requires that he not be permitted to remain, being granted a different visa so he can remain in the Australian community. Absent such an improbability, that would leave either removal to Sudan or South Sudan, or indefinite detention.

[109]    …The Assistant Minister addressed the appellant’s legal entitlement to apply for the protection visa and addressed the contents of Direction 75, which the Assistant Minister found was likely to require a delegate to consider any non-refoulement obligations owed to the appellant. However, this did not grapple with the realities of the appellant’s situation. The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant’s indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur.

(Emphasis added.)

108    Their Honours did not refer to Flick J’s reasoning in Ali or to the single judge decisions which approved that reasoning, but it is readily apparent that their Honours disagreed with such reasoning.

109    The Minister says that the reasoning in DQM18 is not applicable in this case, as it has been superseded by three subsequent Full Court decisions, MNLR, BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 (Thawley, Stewart and Cheeseman JJ) and RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 (Nicholas, Yates and Burley JJ).

110    The first of those decisions, MNLR, was handed down on 16 March 2021. Like the present case it concerns an application for judicial review of a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of a visa under s 501(3A). At [150] SC Derrington J (with whom Perram J agreed) endorsed Flick J’s reasoning in Ali at [33] and noted that Yates J had approved that reasoning in FBW18 v Minister for Home Affairs [2019] FCA 1878 at [77]. Her Honour said “as had been conceded by the appellant, the Tribunal was not obliged to speculate on what might happen next and, in particular, on the course or outcome of any application for a protection visa, including the time it might take.”

111    Wigney J concurred in the result, but expressly disagreed with the reasoning in Ali, and found the reasoning in DQM18 to be “compelling”. His Honour summarised paragraphs [107]-[109] of DQM18 (at [62]-[65]) and went on to say the following (at [72]-[73]):

Despite the distinguishing features in DQM18, the reasoning of Bromberg and Mortimer JJ provides significant support for the appellant’s contention that the Tribunal erred in the way it considered his representation concerning the possibility of indefinite detention. In considering the legal consequences of a decision not to revoke the cancellation of the appellant’s visa, the Tribunal simply adverted to the fact that the appellant could apply for a protection visa and that the Minister could grant a visa under s 195A of the Act. The Tribunal did not, however, “grapple with the realities of the appellant’s situation”: cf DQM18 at [109]. Had it done so, it would most likely have concluded that the prospects of the appellant being granted either a protection visa or a visa under s 195A of the Act was “infinitesimal”, essentially for reasons that mirror those referred to by Bromberg and Mortimer JJ in DQM18. In short, having urged upon the Tribunal that the cancellation of the appellant’s visa on character grounds should not be revoked, including because he presented an unacceptable risk to the Australian community, it is hardly likely that the Minister would do a complete about-face and grant the appellant another visa, be it a protection visa or a visa under s 195A of the Act.

The Minister’s submission that the Tribunal was not required to consider and assess whether there was any prospect of the appellant being granted a protection visa, or a visa under s 195A of the Act, because that would amount to speculation about the future course of decision-making, was supported, to an extent, by the reasoning of Flick J in Ali. It should nonetheless be rejected. The reasoning of Bromberg and Mortimer JJ in DQM18 is, with respect, compelling and is to be preferred. The assessment of whether there was any realistic prospect of the appellant being granted such a visa in the future does not involve speculation. Rather, it involves a deduction or inference having regard to the undisputed or ineluctable circumstances; the reality of the position that the appellant was in. In contrast, the Minister’s submission in this case that a different decision-maker may take a different approach to any future protection visa application made by the appellant appeared to involve mere speculation or conjecture. It was not based on any undisputed or ineluctable facts.

(Emphasis added.)

112    His Honour did not though find for the appellant because doing so would effectively involve permitting the appellant to resile from or withdraw the concession that he made before the primary judge (at [76]). His Honour also said (at [78]) that unlike the position in DQM18, no meaningful or cogent representations had been made as to why it would not be “reasonably practicable” to return the appellant to Iraq. On that basis his Honour said that if the Tribunal had considered the prospects of the appellant being granted a protection visa or a visa under s 195A of the Act and found that the prospects were infinitesimal “it was highly unlikely that that would have altered the Tribunal’s finding that the appellant’s detention would not be indefinite…because the Tribunal would more than likely have found, in any event, that the appellant would be released from detention when he was removed from Australia and returned to Iraq.”

113    Several points can be made about the Minister’s reliance upon the reasoning in Ali and in MNLR in this case:

(a)    First, the argument addressed in Ali is different to the argument advanced in the present case. In Ali, the Minister declined to directly address representations that had been made in relation to Australia’s non-refoulement obligations on the basis that those obligations would be considered if, and when, the applicant applied for a protection visa. It was contended that in declining to address the representations concerning Australia’s non-refoulement obligations the Minister had constructively failed to exercise his jurisdiction and had proceeded on the basis of an incorrect understanding of the law. The reasoning of Flick J must be considered in that context. His Honour did not engage in that reasoning in the context of the argument advanced by the applicant in this case, being that the consequences of a non-revocation decision for the applicant included the prospect that he would be detained for a prolonged and indefinite period beyond the time taken to consider any protection visa application he made and/or while the Minister gave consideration to exercising his non-compellable powers; and

(b)    Second, as noted in MNLR (at [150]), the appellant conceded that the Tribunal was not obliged to speculate on the outcome of any application for a protection visa he might make, and the question was therefore not argued. Perhaps because it was not argued, SC Derrington J made no reference to the contrary reasoning in DQM18. Clearly, the ratio of the decision does not include the proposition stated at [150].

114    BFMV, the second of the decisions relied on by the Minister, was handed down on 16 November 2021. Like the present case it involves an application for judicial review of a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of a visa under s 501(3A). In the judgment below (BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 573) Nicholas J gave some consideration (at [41]-[44]) to the reasoning in DQM18 and noted that in MNLR that Wigney J preferred that reasoning to the reasoning in Ali. His Honour also noted that the reasoning in Ali had been applied in a number of other single judge decisions. His Honour held (at [57]) that:

The fact that the Tribunal did not attempt to assess the likelihood that an application for a protection visa by the applicant would be granted does not reveal any failure by the Tribunal to give proper consideration to the applicant’s claim that he would suffer serious harm if forcibly returned to Iraq or that he would be indefinitely detained if he was not. It accepted that these were possibilities but that they were not sufficient when considered with other relevant matters to weigh in favour of revocation of the decision to cancel his Visa. 

115    On appeal, Thawley, Stewart and Cheeseman JJ approved Nicholas J’s remarks at [57] and said the following (at [13]-[15]):

[13]    …The Tribunal was not required to reach a view as to whether a future application for a protection visa would be rejected on “character grounds” in order to discharge its function of reviewing the delegate’s decision including by taking into account the representations which the appellant had made.

[14]    At the time of the Tribunal’s decision, the appellant had not applied for a protection visa. An application for such a visa would have been unnecessary if the appellant’s review in the Tribunal were successful. If such an application is made, the Minister would then need to consider that application in light of the circumstances as they exist at the time of his consideration of that application. This is a decision to be made at some point of time in the future. It is a decision which may, if thought necessary, also be challenged. Whether any such decision will be challenged and the basis for any such challenge are not known.

[15]    The Tribunal did not err in a manner going to jurisdiction in not reaching a more specific conclusion as to the degree of likelihood of a future protection visa application being rejected or of refoulement to Iraq or indefinite detention becoming a reality…

Their Honours also cited Flick J’s observations in Ali at [31]-[33] with approval, and noted that they had been approved by SC Derrington J (with Perram J agreeing) in MNLR at [150].

116    On the Minister’s argument, having regard to the remarks in BFMV (at [14]), it must be the case that to require the Tribunal to assess the likelihood of the applicant being granted a protection visa would necessarily involve “speculation”. That argument is not without force, but the problem with BFMV is that their Honours made no reference to the Full Court decision in DQM18, and thus did not explain why it is appropriate to distinguish that decision or hold it to be plainly wrong. Their Honours also referred with approval to MNLR when the issue was not argued in MNLR.

117    RRFM, the final case in the trilogy on which the Minister relies, was handed down on 4 March 2022. Like the present case it involves an application for judicial review of a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of a visa under s 501(3A). Nicholas, Yates and Burley JJ said (at [31]-[33]), [37]):

[31]    In the present case it is clear that the Tribunal gave consideration to the appellant’s representations concerning the possibility that he could experience indefinite detention in the event that he was not returned to Afghanistan. The Tribunal’s consideration of that matter did not lead it to make any finding in relation to the likelihood of that occurring. Rather, the Tribunal reasoned that whether or not the appellant faced the prospect of indefinite detention depended upon a number of possibilities including the outcome of any application made by the appellant for a protection visa. The Tribunal said that the outcome of any such application could not be speculated upon, but that the appellant’s prospects of being granted a protection visa “were not implausible”.

[32]    As is apparent from the extracts from the reasons previously set out, the Tribunal referred expressly to the decisions in Ali v Minister for Immigration and Border Protection [2018] FCA 650 and DOB18 v Minister for Home Affairs [2018] FCA 1523 In DOB18 Griffiths J referred to a number of other cases in which Flick J’s reasoning in Ali has been adopted and applied. Those decisions show that the course followed by the Tribunal in this case was open to it and that it was not required to speculate about future possibilities with respect to future visa applications or the duration of any detention to which the appellant may be subjected.

[33]    Flick J’s observations in Ali at [33] were referred to with approval by the Full Court in BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 (Thawley, Stewart and Cheeseman JJ) at [15]-[16]. In that case the primary judge held that the fact that the Tribunal did not attempt to assess the likelihood that an application for a protection visa by the appellant would be granted, did not reveal any failure by the Tribunal to give proper consideration to the appellant’s claim that he would suffer serious harm if forcibly returned to Iraq or that he would be indefinitely detained if he was not. The Full Court held that this conclusion was correct.

…

[37]    What is clear is that the Tribunal came to its ultimate conclusion having taken into account, and actively engaged with, the appellant’s representation that he would experience prolonged or indefinite detention if not returned to Afghanistan. The Tribunal was not required, in considering the appellant’s representations, to make any specific finding as to the likelihood that the appellant would experience prolonged or indefinite detention, any more than it was required to make any specific finding as to the likelihood that the appellant would be granted a protection visa in the future.

(Emphasis added.)

118    Again, the problem with the decision RRFM is that their Honours made no reference to the decision in DQM18, and thus did not explain why it is appropriate to distinguish that decision or hold it to be plainly wrong. Further, to some extent this decision springboards from BFMV which has the same difficulty.

119    The Minister accepts that the Full Courts in BFMV and RRFM gave no consideration to the reasoning of the Full Court in DQM18, but argues that the reasoning in BFMV and RRFM should be preferred and that they are binding on me, being the most recent Full Court decisions on the question.

120    There is some tension between the reasoning in DQM18 and that in BFMV and RRFM. If I was unconstrained by authority I would prefer the Full Court’s reasoning in DQM18. In my opinion, the reality is that the prospect of the applicant being granted a protection visa or the Minister exercising his non-compellable powers in the applicant’s favour are vanishingly small. In my view, the Tribunal’s finding, or at least suggestion, that there is a serious possibility that the applicant will be granted a protection visa and/or that the Minister will exercise his non-compellable powers in the applicant’s favour is irreconcilable with the Tribunal’s findings that the applicant does not pass the character test; his offending conduct falls at the “upper end of the spectrum of very serious offending”; his offending was “very serious, frequent, repetitive and sustained”; it was “not unlikely” that if he were released into the community he would commit further offences or engage in other serious conduct; and the protection of the Australian community from criminal or other serious conduct "weighs heavily” against being satisfied that it is appropriate to reinstate his visa.

121    However, I consider I am bound to follow the reasoning in BFMV and RRFM which provides that the Tribunal was under no obligation to reach a view as to the likelihood of the applicant being granted a protection visa should he apply for one and/or of the Minister deciding to exercise his non-compellable powers in the applicant’s favour. Once it is accepted that the Tribunal did not have such an obligation, the particular (b) ground falls away. Resolution of the tension between the reasoning in DQM18 and that in BFMV and RRFM is a matter for the Full Court.

122    It is appropriate to dismiss this ground.

CONCLUSION

123    As a consequence of the decision on the ground under particular (c) I have made orders for the Tribunal decision to be set aside and be remitted to the Tribunal (differently constituted) to be re-determined according to law.

124    I am not aware of any reason why costs should not follow the event, and the orders provide that the Minister pay the applicant’s costs in an amount to be agreed and if not agreed to be fixed by the Registrar on a lump sum basis. I grant the parties liberty to apply within seven days should either party contend that some other costs order is appropriate.

Associate:    

Dated:    16 February 2023