Federal Court of Australia

CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent dated 28 February 2023 to affirm the decision made by a delegate of the first respondent dated 6 December 2022 not to revoke the mandatory cancellation of the applicant’s Resolution of Status (Class CD) (Subclass 851) visa be set aside.

2.    The decision be remitted to the second respondent for reconsideration according to law.

3.    The applicant’s costs of the proceeding be paid by the first respondent.

4.    The applicant have leave to apply to a Registrar of the Court for a lump-sum costs determination.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal not to revoke the cancellation of the applicant’s Resolution of Status (Class CD) (Subclass 851) visa. The visa was mandatorily cancelled on “character” grounds under s 501(3A) of the Migration Act 1958 (Cth). The decision of the Tribunal not to revoke the cancellation was a decision under s 501CA(4) of the Act. Judicial review is sought under s 476A of the Act which requires the establishment of jurisdictional error.

2    As will be seen, the central issue in this case is the role played in the Tribunal’s reasoning by the harsh consequences for the applicant arising from his probable indefinite detention due to the cancellation of his visa, and the decision by the Tribunal not to revoke that cancellation. Indefinite in this context does not mean permanent. Indefinite detention in this context means detention limited only by the time taken for the Minister to consider other options or until removal to some other country is reasonably practicable: WKMZ v Minister for Immigration [2021] FCAFC 55; 285 FCR 463 at [95] and [123] per Kenny and Mortimer JJ. In any particular case, the practical reality of a person’s situation may be such that although there are theoretical avenues by which their immigration detention might be brought to an end, no such avenue presently has any realistic possibility of materialising.

Background

3    The applicant was born in Afghanistan in 1978. He arrived in Australia in 1999 when he was 21 years of age.

4    The applicant belongs to the Hazara ethnic group in Afghanistan. He is a Shi’a Muslim and speaks the Dari language. He was involved in defending his community against the Taliban. After the Taliban came to power in 1996, they pursued reprisals against Hazara people which caused the applicant to flee, first to Pakistan and from there to Indonesia and then Australia.

5    In January 2000, the applicant was granted a Protection (Class XA) Temporary visa on the basis that he is a person to whom Australia owes protection obligations under the Refugee Convention of 1951. That was because it was accepted that the applicant has a fear of persecution on return to Afghanistan for reasons of race and religion. From then the applicant held a series of temporary protection visas until 27 May 2011, when he was granted a Resolution of Status (Class CD) (Subclass 851) Permanent visa.

6    The applicant has accumulated a long criminal history, starting with a conviction for common assault in November 2001 for which he was sentenced to a 12 month bond. Many subsequent offences were dealt with under the Mental Health Act 2007 (NSW), but several also resulted in the applicant spending periods of time in gaol. Ultimately, in July 2015, the applicant was sentenced by the District Court of New South Wales to a custodial term of 32 months’ imprisonment on a conviction of “Assault with act of indecency – T2”. The term of imprisonment commenced on 8 May 2014. A non-parole period of 16 months was set.

7    On the basis of that sentence being a term of imprisonment of 12 months or more and the applicant thus having a “substantial criminal record” within the meaning of s 501(7)(c) of the Act and hence having failed the “character test” in s 501(6), by a letter dated 24 August 2015, the Minister for Immigration, Citizenship and Multicultural Affairs mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Act. However, apparently because of his mental illness and cognitive impairment, to which I will return, the applicant did not make representations as referred to in s 501CA(4) of the Act for the revocation of the cancellation.

8    On 9 September 2015, the applicant was released from gaol to parole, but immediately taken into immigration detention because of the cancellation of his visa. He has remained in immigration detention since then, ie, for a period of eight years. That is to say, after serving 16 months in gaol for his crime for which he confessed and pleaded guilty, the applicant has thus far spent eight years in immigration detention awaiting possible removal to another country or some other resolution of his position.

9    More than five years later on 2 October 2020, the Guardianship Tribunal (a tribunal of the Guardianship Division of the Civil and Administrative Tribunal), New South Wales, appointed the Public Guardian as the applicant’s guardian. The appointment was initially for a period of 12 months and was later extended for a further 24 months to 21 October 2023.

10    The Guardianship Tribunal found that the applicant has a history of schizophrenia going back to at least 2005 – although the evidence before the Court is that the applicant was first diagnosed with schizophrenia at Bankstown Hospital in 2002. He had been admitted on eight occasions to mental health facilities. He had twice been hospitalised while in immigration detention “due to bizarre behaviour suggestive of psychosis”. The Guardianship Tribunal found that the applicant’s chronic mental illness has led to a degree of cognitive impairment and frontal executive deficits that impact on his organisational and cognitive abilities. He has an impaired ability to make his own decisions. On that basis, the Guardianship Tribunal was satisfied that the applicant is not able to make his own important life decisions because of his chronic mental illness and resulting cognitive impairment.

11    The Guardianship Tribunal found that the applicant does not have the cognitive capacity to make decisions or give clear instructions about his immigration matters. He was found to have limited understanding of the process and had shown little interest in meeting with the necessary people to discuss progressing an application for the reinstatement of his visa. The applicant presented as a very vulnerable man who, due to his mental illness, had been unable for five years to progress matters that could have seen him granted a new visa and released from immigration detention into the community.

12    On 3 December 2021, Judge Given in the Federal Circuit and Family Court of Australia (Division 2) made a declaration in favour of the applicant, with the consent of the Minister, that the Minister had not performed the duty required by s 501CA(3)(b) of the Act, in that the notice purportedly given on 24 August 2015 to cancel the applicant’s visa failed to invite the applicant to make representations within the period and in the manner ascertained in accordance with the regulations. Thus, on 21 December 2021, the applicant was re-invited to make representations for revocation of the cancellation of his visa. Assisted now by his Public Guardian and Legal Aid NSW, on 24 December 2021, the applicant made the requisite representations to revoke the cancellation.

13    On 6 December 2022, a delegate of the Minister refused to revoke the mandatory cancellation decision. The applicant immediately sought merits review of the delegate’s decision in the Tribunal. Following a hearing on 8-9 February 2023, on 28 February 2023 the Tribunal, comprising a Deputy President and a Senior Member, affirmed the delegate’s decision.

A terminological excursus

14    Although having no bearing on the issues in the case, a point of terminology should be noted. At several instances in the formal documents in this case, the word “Afghani” has been used when “Afghan” should have been used. The noun “Afghan” refers to a national, native or inhabitant of the state of Afghanistan. The noun “Afghani” exclusively refers to the principal monetary unit of Afghanistan; it is not correctly used to refer to someone or something from Afghanistan. Similarly, the adjective “Afghan” is used to describe anything of or relating to Afghanistan or Afghans. See Brians P, Common Errors in English Usage (3rd ed, William, James & Company, 2013); Oxford English Dictionary (online at 1 September 2023) ‘Afghan’; Afghani’.

15    Although the errors in the use of “Afghani” were doubtless entirely innocent, and they were not made by the Tribunal, I raise the point because such errors have the potential to leave people feeling unseen or disrespected.

The Tribunal’s decision

16    It was common ground before the Tribunal, as it is before me, that the applicant fails the character test. The Tribunal accordingly recognised that it was required to decide whether there was “another reason” why the cancellation of the applicant’s visa should be revoked.

17    The Tribunal recognised that it was required to make its decision within the guidance set by Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. After identifying relevant guiding principles extracted from the Direction, the Tribunal proceeded to consider each of the “primary” and “other” considerations identified in the Direction.

18    With respect to primary consideration 1, being protection of the Australian community from criminal or other serious conduct, the Tribunal concluded that the totality of the applicant’s unlawful conduct in Australia can be readily characterised as very serious. The Tribunal was satisfied that were the applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious and would likely involve physical, psychological and quantifiable economic harm to his victims including, conceivably, harm at a catastrophic level. Following its review of the evidence relating to the applicant’s level of recidivist risk, the Tribunal found that the applicant remains at a significant and unresolved risk of reoffending. Those findings caused the Tribunal to find that primary consideration 1 “confers a very heavy level of weight in favour of affirming the decision under review” (emphasis in the original).

19    With respect to primary consideration 2, being whether the conduct engaged in constituted family violence, the Tribunal found that two female victims of the applicant’s violent offending by him were, at the relevant times, his domestic partners. The Tribunal found them to be members of the applicant’s family for the purposes of the Direction. The Tribunal was satisfied that the applicant’s conduct in August 2003 and July 2004, which resulted in convictions in September 2004, constitutes family violence for the purposes of the Direction. The Tribunal ultimately concluded that primary consideration 2 “confers a heavy level of weight in favour of affirming the decision under review” (emphasis in the original).

20    In respect of primary consideration 3, being the best interests of minor children in Australia, the Tribunal identified one minor child relevant to the consideration, namely a child born in 2006. After having considered the parties’ respective positions and the evidence, the Tribunal concluded that primary consideration 3 “confers, at best, a slight and not determinative level of weight in favour of setting aside the decision under review” (emphasis in the original).

21    With respect to primary consideration 4, being the expectations of the Australian community, the Tribunal concluded that the Australian community’s expectations are not modified by the applicant’s circumstances – the community does not have a higher than usual tolerance of criminal conduct by the applicant. Because of the applicant’s “very serious domestically (sic) and other violent offending which involved violent offending against a woman”, the Tribunal concluded that the community expects that the Government can and should cancel the applicant’s visa. The Tribunal concluded that primary consideration 4 “confers a very heavy level of weight in favour of affirming the decision under review” (emphasis in the original).

22    With respect to other consideration (a), the Tribunal concluded on the basis of a common position between the parties that it did not have to consider Australia’s international non-refoulement obligations. That was because it was accepted that Australia has non-refoulement obligations in respect of the applicant arising from the prior protection finding in his favour with the result that there is little or no risk that he will be removed to Afghanistan.

23    Similarly with respect to other consideration (b), on the basis of the agreed position between the parties that the applicant would not be removed to his “home country” because of the protection finding in his favour, the Tribunal concluded that it did not have to consider the extent of the impediments that would be faced by the applicant if he was removed to his home country.

24    Similarly with respect to other consideration (c), the parties were agreed that there was no victim statement before the Tribunal so that it did not need to consider the impact on the applicant’s victims of a decision to revoke the cancellation of his visa.

25    With respect to other consideration (d), being the applicant’s links to the Australian community, the Tribunal concluded that the totality of the evidence points to the allocation of “a slight and not determinative level of weight in favour of setting aside the decision under review” (emphasis in original).

26    Next, the Tribunal considered “Indefinite detention in the context of this case” which it referred to as other consideration (e). The prospect of indefinite immigration detention is not identified in the Direction as a matter that is required to be considered, which the Tribunal recognised with reference to VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16]. It arose for consideration before the Tribunal because in his statement of facts, issues and contentions (SFIC) the applicant made specific representations on the subject of the likelihood of him facing indefinite detention, and the harsh consequences of that. It was submitted on his behalf in the SFIC (at [69]) that the legal and practical consequence of a non-revocation decision is that he would be indefinitely detained.

27    The applicant’s review ground 3 concerns the Tribunal’s treatment of this consideration. For this reason, it is necessary to identify the Tribunal’s reasoning in some detail.

28    The Tribunal accepted that s 189 of the Act, which requires the detention of someone in the migration zone who is an unlawful non-citizen, has the result that a non-revocation outcome would result in the applicant’s continued detention until his removal from Australia. The Tribunal therefore accepted that a non-revocation outcome “could very well extend the applicant’s time in an immigration detention facility” (at [224]).

29    The Tribunal accepted that the likely reality of it affirming the cancellation decision would be that the applicant would remain in immigration detention “until another event ends that detention” (at [225]). With reference to paragraph 9.1(3) of the Direction, the Tribunal identified three possible alternatives to refoulement (which it recognised could not occur) or ongoing detention, namely:

(1)    removal to another country; or

(2)    the Minister exercising their personal discretion under s 195A of the Act to grant the applicant “another visa”; or

(3)    the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the applicant to reside at a specified place in the community, subject to appropriate conditions.

30    Section 195A(2) of the Act provides that if the Minister thinks that it is in the public interest to do so, they may grant a person who is in detention under s 189 a visa of a particular class, whether or not the person has applied for the visa. The power is non-compellable (s 195A(4)) and must be exercised by the Minister personally (s 195A(5)). If a visa is granted under the section, the Minister is required to table various details of such a grant by way of a statement laid before each House of the Parliament (ss 195A(6)-(8)).

31    Section 197AB(1) of the Act provides that if the Minister thinks that it is in the public interest to do so, they may make a “residence determination” to the effect that a person who is required or permitted to be detained under s 189, or who is in detention under that section, is to reside at a specified place instead of being in immigration detention. The Minister must specify the conditions to be complied with by a person covered by a residence determination (s 197AB(2)).

32    The Tribunal reasoned that “[w]hile it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed endpoint and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (e) should, in our view, be tempered for a couple of reasons” (at [226]). The Tribunal’s use of the transitive verb “temper” in this way is to be understood as meaning that the weight otherwise to be allocated to the consideration in issue should be diluted, or modified or qualified by lessening it.

33    The Tribunal identified two reasons to “temper” the weight attributable to the prospect of indefinite detention as follows:

227.     … First, paragraph 9.1(3) of the Direction relevantly provides that if the Applicant is able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined [fn. s 198(5A) of the Act]. Given that a ‘protection finding’ has been made, the Applicant would not be liable for removal unless and until any one of the following occur:

•     the decision grounding the protection finding is quashed or set aside; or

•     pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or

•     the Applicant asks the Minister, in writing, to be removed.

228.     Here, the protection findings made in respect to the Applicant means he can apply for a protection visa. The visa currently held by the Applicant is not a type of protection visa. Given that it was this non-protection type visa that was cancelled, it means that the bar in s 48A of the Act does not apply to him and he is able to apply for a protection visa in the event this Tribunal does not set aside the decision under review.

229.     Second, as outlined earlier, protection findings have already made in relation to this Applicant (sic). Therefore, were this Tribunal to affirm the decision under review, the Applicant would most likely remain in immigration detention until:

•     he applies for and is granted a protection visa; or

•     one of the events in s 197C(3)(c) occurs; or

•     the Minister exercises their personal powers to grant another visa to the Applicant; or

•     the Minister makes a resident determination in respect of the Applicant.

34    The Tribunal then concluded as follows in relation to this consideration:

230.     If the Applicant succeeds in obtaining a protection visa, then his time in detention will end. If he is unsuccessful then it must be accepted that a legal consequence of this Tribunal affirming the decision under review is that the Applicant will be detained for an unknown period or until one of the three abovementioned alternatives at paragraph 9.1(3) of the Direction occur. If none of those three alternatives occur, the Applicant may well remain in immigration detention without a fixed end point. We are of the view (and we find) that this Other Consideration (e) carries a heavy, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain here.

35    The Tribunal next considered whether any “indefinite detention” of the applicant would breach Australia’s international obligations. That arose from submissions on behalf of the applicant that keeping him in prolonged or indefinite detention would cause Australia to be in breach of Arts 7 and 9 of the International Covenant on Civil and Political Rights (ICCPR) and Arts 14 and 15 of the Convention on the Rights of Persons with Disabilities (CRPD). The Tribunal rejected those submissions.

36    The Tribunal concluded (at [248]) by summarising its various findings, weighing them up, and concluding that the combined weight allocated to each of Primary Consideration 3 and Other Considerations (d) and (e) are not sufficient to outweigh the combined weight allocated to Primary Considerations 1, 2 and 4. On that basis, the Tribunal affirmed the decision not to revoke the cancellation of the applicant’s visa.

Review ground 3

37    By review ground 3 in the amended originating application, the applicant contends that the Tribunal:

(1)    failed to consider submissions and/or critical material as to the legal consequences of its decision;

(2)    engaged in illogical reasoning; and/or

(3)    misunderstood the law.

38    The particulars to the ground of review are put as follows:

a.    The Tribunal found that a “possible outcome” of the decision for the applicant “is that he will be detained for a period with no chronologically fixed end point” (AB 1107 at [226]) but tempered the weight it afforded to this consideration due to:

i.    the applicant being able to apply for a protection visa; and

ii.    the applicant being subject to a protection finding.

b.    The Tribunal reasoned that:

i.    the applicant is able to apply for a protection visa, and “If [he] succeeds in obtaining a protection visa, then his time in detention will end”; and

ii.    if unsuccessful, the applicant will be detained “until one of the three […] alternatives at paragraph 9.1(3) of the Direction occur” (AB 1107-1108 at [228]-[230]).

c.    The applicant advanced substantial, clearly articulated submissions that there was no realistic possibility of the applicant being granted another visa, or any of those “alternatives” occurring.

d.    As to (a)(i), the first respondent accepted that whether the applicant had the ability to apply for a protection visa was “not a material issue”, because “if he applied for another protection visa, he’d be subject to the same character requirements and so on”: AB 1010 line 44.

e.    The tribunal failed to consider the submissions at (c).

f.    As to (a)(ii), the applicant being subject to a protection finding was not a logical reason to temper the weight afforded to indefinite detention as it increased the likelihood the applicant would be indefinitely detained by preventing his deportation under s 197C;

g.    The errors were material because, had the Tribunal considered the submissions or not misapprehended the relevance of the protection finding, it might have found that indefinite detention was more than a “possible outcome” and so given greater weight to this consideration as a reason to revoke the cancellation of the applicant’s visa.

39    The applicant’s SFIC (at [70]) squarely submitted that the examples of alternatives to removal referred to in paragraph 9.1(3) of the Direction are not applicable or realistic in the applicant’s case. It was said that the applicant has no right to reside in any third country and there is no suggestion there is any third country he could be removed to. Also, it was submitted that there is no evidence that the Minister has any intention to consider exercising their personal non-compellable power under s 195A to grant a visa to the applicant, or under s 197AB to make a “residence determination” for him to reside in community detention – despite the applicant being a person with disabilities who had been detained for more than seven years and that for most of that time there were no ongoing visa processes. The latter point is supportive of the submission that there is no reasonable likelihood of his detention being brought to an end, other than by revocation of the cancellation of his visa.

40    Significantly, in the SFIC (also at [70]) the applicant submitted that the Minister’s formal guidelines for both ss 195A and 197AB state that cases should generally not be referred for consideration where a person has had a visa refused under s 501 of the Act or “presents character issues that indicate that they may fail the character test under section 501 of the Act”. References were given to the Procedures Advice Manual 3 (PAM3) in support of the submissions with regard to the current Ministerial guidelines.

41    The applicant also submitted that an immigration detention environment is not suitable for a person with a mental illness, and that indefinite detention poses an unacceptable risk of harm to the applicant whose mental state would reasonably be expected to continue to worsen as a result (SFIC at [73]). Particular attention was drawn to aspects of the evidence of Dr Chew, a forensic psychologist who gave expert evidence to the Tribunal. Dr Chew had said that ongoing detention would be negative for the applicant and would impede his chances of remaining in appropriate treatment. Dr Chew said that detention would likely exacerbate the applicant’s underlying mental conditions and that it is well documented that detention can worsen psychotic and trauma illnesses and even induce psychosis (SFIC at [77]).

42    The Minister’s SFIC (at [53]) accepted that the applicant would be liable to ongoing detention until he applied for and was granted a protection visa, or one of the events in s 197C(3)(c) occurred, or the Minister exercised their personal powers to either grant the applicant a visa or make a residence determination in respect of the applicant. The Minister accepted that this might result “in a prolonged period of detention with no chronologically fixed end point” and that the Tribunal should take the applicant’s loss of liberty into account in making its decision.

43    Notably, the Minister did not dispute the submission on behalf of the applicant that the Minister’s guidelines to the Department, as set out in PAM3 referenced by the applicant, provided that in respect of both ss 195A and 197AB, cases should generally not be referred to the Minister where the person has had a visa refused or cancelled, or the person may not pass the character test, under s 501. That is to say, it was common ground before the Tribunal that the effect of the Tribunal affirming the decision of the delegate not to revoke the mandatory cancellation of the applicant’s visa would be that the Department was under guidance from the Minister not to refer the applicant’s case to the Minister for the exercise of the Minister’s personal powers under s 195A or s 197AB. The Minister also did not dispute the submission that there was no evidence that they had any intention to consider exercising those powers.

44    In oral submissions before the Tribunal, an issue arose as to whether or not the applicant was barred from applying for a protection visa by s 48A of the Act. Although that issue was ultimately resolved on the basis that the applicant can apply for a protection visa, the Minister’s representative submitted that that was a “by-issue” and “not a material issue” because “if he applied for another protection visa, he’d be subject to the same character requirements and so on” (CB1010:40-47). That is to say, the Minister accepted that the applicant would not (or, at least, would not likely) be granted another protection visa if the cancellation of his Resolution of Status visa on character grounds was maintained.

45    Stepping back for a moment, it can be recognised that a (or, perhaps, the) central thrust of the applicant’s case as to why there was “another reason” why the cancellation of his visa should be revoked involved the following propositions – which I will refer to as the indefinite detention submission:

(1)    He had already been in immigration detention for a period of seven years. For five of those years there were no ongoing visa processes, yet no way of bringing his ongoing immigration detention to an end had been found.

(2)    As there was an existing protection finding in his favour, he would not be removed to Afghanistan.

(3)    There was no realistic possibility of him being removed to another country (given the passage of time, his criminal history, his diagnosis with schizophrenia and his cognitive impairment).

(4)    There was no realistic possibility of him being granted a protection visa because he did not pass the character test and the cancellation of his visa was not revoked. (As mentioned, the Minister in substance accepted this proposition.)

(5)    There was no realistic possibility of him being granted a residence determination or another visa (given the passage of time, his not passing the character test and having had his visa cancelled, and the Minister’s directions to the Department not to put forward a case such as his for consideration).

(6)    He therefore faced indefinite detention, in the sense of his detention having no fixed chronological end point and his having no way of ascertaining when he might regain his freedom, and that there was simply no realistic possibility of his detention ending in any of the recognised ways.

(7)    Such continued and indefinite detention is especially hard on him given his mental health and cognitive impairment, and it would likely exacerbate his underlying mental conditions for the reasons identified by Dr Chew.

46    It is uncontroversial that the Tribunal was required to consider (in the sense of adverting to and understanding) the representations made by the applicant, and evaluate their significance in the course of making the decision, and that the Tribunal’s reasons should demonstrate that it had done so: ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[8] per Mortimer, Colvin and O’Sullivan JJ with reference to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [9], [24] and [27] per Kiefel CJ, Keane, Gordon and Steward JJ. Also, the requisite level of engagement by the Tribunal with the representations must occur within the bounds of rationality and reasonableness: Plaintiff M1/2021 at [25].

47    As mentioned, the Tribunal recognised that a possible outcome for the applicant would be that he would be detained “for a period with no chronologically fixed endpoint” and that that prospect of prolonged or indefinite detention “may weigh in favour of revocation”. Fairly read, particularly considering the Tribunal’s conclusion that those considerations carried a “heavy, but not determinative” weight in favour of revocation, the Tribunal must be understood to have been saying that those considerations do weigh in favour of revocation rather than that they may so weigh. However, the Tribunal offered two reasons why the weight attributable to them should be “tempered”.

48    Counsel for the Minister characterised the Tribunal’s reasoning with respect to the first reason given by it to temper the weight of the indefinite detention consideration as having “some lack of clarity”, to amount to “a confusion of topics”, and to be “strange” (T40:43; T41:1; T41:18). That characterisation is well justified. Indeed, it makes no sense at all to say, as the Tribunal did (at [227]-[228], quoted at [33] above), that the fact that the applicant cannot be removed to Afghanistan can temper the weight of the indefinite detention consideration (it has the opposite effect), or that the protection findings made in the applicant’s favour mean that he can apply for a protection visa (that possibility is given by s 501E(2) of the Act and does not depend in any way on the protection findings).

49    However, despite those absurdities in the reasoning of the Tribunal, I accept the submission on behalf of the Minister that the ultimate point sought to be made by the Tribunal with regard to its first reason to temper the weight of the indefinite detention consideration was that the applicant is not prevented from applying for a protection visa (at [228]). That conclusion is uncontroversial. However, it fails to address the applicant’s real point in relation to it, which was accepted by the Minister. That is that in circumstances where his visa was cancelled for failure to pass the character test and that cancellation was not revoked by the Tribunal, which is the premise upon which the indefinite detention consideration was being addressed, there was no realistic possibility that he would be granted a protection visa. Failure to engage with that submission is itself a failure to perform the statutory task, but perhaps more to the point in light of it being common ground that there was no realistic possibility that the applicant would be granted a protection visa, is that the fact that he could apply for such a visa could not rationally temper the weight to be attached to the indefinite detention consideration; it is only a successful application that could bring an end to the applicant’s detention.

50    It is the applicant’s submission, supported by the Minister’s acceptance, that the applicant would not realistically be granted a protection visa which distinguishes this case from several others where it has been held that the Tribunal was correct not to speculate as to that possibility. Those cases include Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[33]; MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150] and BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 at [16]-[17].

51    As to the second reason to temper the indefinite detention consideration, the Tribunal identified various ways in which the applicant’s immigration detention might end. None of them is controversial in the sense that each exists as a theoretical possibility. However, the applicant’s submission was that none of them offered any realistic possibility.

52    The applicant’s submission with regard to there being no realistic possibility of his immigration detention ending was not an idle submission. He backed it up with cogent argument and reference to the Minister’s own directions to the Department. It certainly satisfied the description of being a “substantial and clearly articulated argument” as referred to in Plaintiff M1/2021 at [27], in turn referring to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] per Bell, Gageler and Keane JJ and [105] per Nettle and Gordon JJ and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] per Gummow and Callinan JJ and [95] per Hayne J.

53    It was observed by Kenny and Mortimer JJ in WKMZ at [123] that the continued deprivation of a person’s liberty by reason of the operation of the statutory scheme is 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. Whether or not the Tribunal was required to consider that matter other than because the applicant made it a necessary consideration by reason of his substantial and clearly articulated argument in relation to it, is not in issue in this proceeding. The observation nevertheless underscores the significance of the applicant’s indefinite detention submission, and explains why it was fundamentally important to the case before the Tribunal. Indeed, the Tribunal could not have properly confronted the devastating consequences visited upon the applicant by its decision without dealing substantively with the submission about the reality of indefinite detention. See Hands v Minister for Immigration & Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] per Allsop CJ, Markovic J agreeing.

54    The cogency of the applicant’s submission that there was no realistic possibility of him being granted a protection visa, or indeed some other visa, is underscored by observations made in some of the cases. For example, in WKMZ at [124], Kenny and Mortimer JJ, with reference to FRH18 v Minister for Home Affairs [2018] FCA 1769; 266 FCR 413, observed that it is difficult to see how any delegate (or the Minister) acting rationally and reasonably could decide to grant a visa to the person who has had a different visa cancelled and has unsuccessfully applied for the cancellation to be revoked.

55    In DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [107], Bromberg and Mortimer JJ made the obvious observation that it is only a successful visa application which is capable of avoiding removal or indefinite detention. Their Honours found (at [109]) that the relevant decision-maker, being the Assistant Minister, was not entitled to ignore the realities of the appellant’s circumstances or to fail to grapple with the realities of the appellant’s situation, being the likelihood of indefinite detention. It is true, as submitted on behalf of the Minister before me, that in that case the Assistant Minister had made no findings about the risk of indefinite detention, which distinguishes it from the facts of the present case. That observation, however, merely directs attention to what the Tribunal did in the present case and whether it adequately addressed the applicant’s indefinite detention submission.

56    It is submitted on behalf of the Minister that the Tribunal was not required to engage with the applicant’s submissions about the likelihood of any of the possibilities identified by the Tribunal actually occurring (T41:23). AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [70] is referred to in support of that submission. In that paragraph, Allsop CJ and Robertson and Griffiths JJ recognised some significance in the fact that it remained open for the appellant to apply for a protection visa to be that “the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention”. That statement was made in relation to appeal ground 3 in that case, which was not the appeal ground dealing with the risk of the appellant being detained indefinitely in Australia (which was appeal ground 2). Moreover, it was a statement made in relation to the facts of that case, which are far removed from the facts of the present case. It is not a statement in favour of the proposition that the Tribunal was not required to properly consider the applicant’s submissions, substantially and clearly articulated, that if his visa remained cancelled there would be no realistic possibility that any of the ways out of immigration detention would eventuate and that he would therefore face indefinite detention.

57    Counsel for the Minister also relies on KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069 at [22]-[23] where Mortimer J characterised certain reasoning of the Tribunal in that case as “correctly” reflecting the legal position. In particular, the Tribunal had said that it would be an error if it engaged in an exercise of assessing whether or not an applicant meets the criteria for the grant of a protection visa, and that that is not a question for the Tribunal to determine. That was said in the context of whether or not Australia owed any non-refoulement obligations in respect of the applicant in that case. The Tribunal reasoned, which reasoning her Honour held was not in error, that it was not its task to decide whether non-refoulement obligations are owed, but only whether they may be owed (at [24]). Her Honour accepted that what the Tribunal meant by that was that it had to look at what might in fact happen to the applicant if returned to the country in question, while stating that it did not have to determine the legal (or perhaps mixed law and fact) question as to whether Australia’s non-refoulement obligations were engaged in relation to the applicant (at [25]-[26]).

58    No submission was made to the Tribunal in KYMM that there was no realistic possibility that the applicant in that case would be granted a protection visa because he did not pass the character test. The reasoning in that case, relied on by the Minister in the present case, concerned non-refoulement obligations. That reasoning is not authority for the proposition that the Tribunal was not obliged to consider the applicant’s submission that there was no realistic possibility that he would be granted a protection visa.

59    Counsel for the Minister submits that there is no inconsistency in the Minister’s position that revocation should be resisted but that it is possible that in the future the applicant might be granted a protection visa. That is said to be because “at some point in the future … there will be new and different information”, such as compliance by the applicant with his medication regime and control of his schizophrenia. That is of course true, but it is highly speculative – the future is unknown and almost anything is possible. Also, Dr Chew said that ongoing detention would lessen, not improve, the prospect of the applicant’s treatment regime being maintained. But more to the point, it is not the kind of speculation that the Tribunal even embarked on. It simply reasoned that there was a possibility of a number of ways that indefinite detention might be avoided without giving any consideration to the applicant’s submission that none of them was realistically possible.

60    The Minister also relies on RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [37]. However, in that case it was found that the Tribunal took account of, and actively engaged with, the appellant’s representation that he would experience prolonged or indefinite detention if not returned to Afghanistan. The case is therefore clearly distinguishable.

61    In summary, I find that the Tribunal was in error in considering that the fact of it being legally possible for the applicant to apply for a protection visa could temper the weight to be given to the indefinite detention consideration. That reasoning was illogical and irrational because only a successful protection visa application could have that effect, and it was common ground that such an application would not realistically be successful. Also, the Tribunal failed to consider (in the requisite sense) the submission made by the applicant, and accepted by the Minister, that a protection visa application held no realistic possibility of succeeding. The Tribunal also failed to consider (in the requisite sense) the applicant’s submission that none of the other possible ways in which his detention might end had any realistic possibility of materialising, and that he therefore faced indefinite detention – not only in the sense of there being no way of knowing when it might end, but also that it might in effect continue without end.

62    Putting the question of materiality to one side, to which I will return, those errors are sufficient to amount to jurisdictional error such as to justify the quashing of the Tribunal’s decision. However, I also find that the Tribunal failed to discharge its statutory task by failing to consider and evaluate the applicant’s submission that the other possibilities of avoiding indefinite detention identified by the applicant bore no realistic possibility of success. The Tribunal merely identified them as possibilities, and on that basis tempered the weight to be given to the indefinite detention consideration. Unless they bore some realistic possibility of materialising, they could not rationally have tempered the weight to be afforded to the indefinite detention consideration. For that reason, the applicant’s submissions had to be understood and evaluated. They were not.

63    The materiality of any error is essential to it being characterised as jurisdictional error: SZMTA at [45] per Bell, Gageler and Keane JJ. In order to establish that the Tribunal’s errors identified above were material, the applicant must establish that there is a realistic possibility that the Tribunal’s decision could have been different had the error not occurred: SZMTA at [45].

64    In Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32], it was explained by Kiefel CJ, Keane and Gleeson JJ that the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made” (with reference to MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [38]). That necessarily directs attention to the reasoning process of the Tribunal. It was also said in Nathanson (at [33]), that the standard of “reasonable conjecture” is “undemanding”.

65    The Tribunal, as mentioned, gave the possibility of prolonged detention a “heavy, but not determinative, level of weight in favour of revoking the cancellation of the applicant’s visa.” Had any one of the identified errors not been made, it is a matter of speculation what weight might have been given to this consideration. More particularly, it is not apparent just what impact it would have had in the weighing exercise ultimately undertaken by the Tribunal at the end of its reasons. That process of reasoning is opaque. It is nevertheless sufficiently clear from the Tribunal’s reasoning that the considerations in favour of revocation were “not sufficient to outweigh” the combined weight allocated to the considerations against revocation, that the ultimate decision was not obvious or a foregone conclusion. Indeed, it would appear to have been a relatively close call for the Tribunal.

66    In those circumstances, had one or other of the errors not been made, it is realistically possible that the Tribunal’s ultimate decision could have been different. Each error therefore amounts, independently, to jurisdictional error.

Review grounds 1 and 2

67    In view of my conclusion with regard to review ground 3, it is not necessary to give any further consideration to review grounds 1 and 2. Given the length of time that the applicant has been in immigration detention, there is a significant personal and public interest in judgment in this case being published as soon as possible. Also, by their nature, by which I mean that no oral evidence or findings of fact are required, an appeal court would be in just as good a position to decide review grounds 1 and 2 on any notice of contention. For those reasons, I have decided not to consider them any further.

Disposition

68    There should accordingly be orders setting aside the decision of the Tribunal and remitting the matter to the Tribunal for reconsideration. The parties were agreed that the costs should follow the event.

Associate:

Dated:    5 September 2023