Federal Court of Australia

LVFG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1662

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the second respondent’s decision made on 9 May 2023 affirming the decision of a delegate of the first respondent not to grant the applicant a safe haven enterprise visa made on 17 January 2023.

2.    The matter be remitted to the second respondent for determination according to law.

3.    The costs of the application be reserved.

4.    On or before 12 January 2024 the applicant is to file and serve a minute of proposed orders for the costs of the application together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

5.    On or before 19 January 2024 the first respondent is to file and serve any competing minute of proposed orders for the costs of the application together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    On 29 May 2023 the applicant filed an originating process for judicial review of a decision of the second respondent (Tribunal) made on 24 April 2023 by which it affirmed a decision of a delegate of the first respondent (Minister) made on 17 January 2023 to refuse to grant the applicant a safe haven enterprise visa (Subclass 790). The applicant advances one ground of review; that the Tribunal made a jurisdictional error by failing to consider the applicant’s representations regarding the effect or likely effect of indefinite detention on the applicant’s mental and physical health in its consideration of the legal consequences of the visa refusal under s 501 of the Migration Act 1958 (Cth).

2    The applicant is a 46-year-old citizen of the Islamic Republic of Iran. He entered Australia as an unauthorised maritime arrival in March 2013. The applicant has a daughter with his current partner who was born in July 2021. Both the applicant’s partner and daughter are Australian citizens. After his entry into Australia the applicant was granted a temporary humanitarian visa and, later, a series of bridging visas before the last of those was cancelled in May 2022.

3    Between December 2015 and August 2021 the applicant committed 66 relatively minor offences relating to drugs, trespass, stealing, weapons, providing false information, breaches of bail and driving. In February 2017 his then current bridging visa was cancelled due to convictions and pending charges extant at that time. In June 2017 the applicant applied for the safe haven enterprise visa and in September 2017 the applicant was granted a further bridging visa.

4    On 22 January 2022 the applicant was convicted of offences for dangerous driving and driving without authority committed in December 2020 and sentenced to eight months and four months for those offences to be served concurrently. He was also convicted of six counts for offences relating to failure to give driver identity information and fined $1,000. On 26 May 2022 the applicant’s last bridging visa was cancelled due to his convictions under s 116(1)(g) of the Act. As a consequence of the cancellation of his last visa, the applicant’s right to enter and remain in Australia ceased, therefore, following his release from prison on 28 May 2022, he was taken into immigration detention where he remains.

5    In the meantime, on 20 May 2022 a delegate of the Minister considered and made a record pursuant to s 36A(1)(a) of the Act that the delegate was satisfied that the applicant meets the criteria in s 36(2)(a) and s 36(1C), namely, that the applicant is a refugee and not a person whom the Minister (delegate) considers, on reasonable grounds, is a danger to Australia’s security and (or) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. Thereafter, notwithstanding the protection finding made in favour of the applicant, a delegate of the Minister made a decision refusing to grant the applicant’s visa under s 501(1) of the Act. The applicant lodged an application for review of the delegate’s decision with the Tribunal. The Tribunal affirmed the decision of the delegate. The applicant then applied to this Court for review of the Tribunal’s decision.

6    For the reasons which follow, the application must be allowed, the Tribunal’s decision set aside and the matter remitted for determination according to law. I will hear the parties on the question of costs.

Legislative framework

Visa applications and grant

7    Division 3 of Pt 2 of the Act contains provisions conferring power on the Minister to grant a non-citizen a visa that permits the visa holder to do either or both of travelling to and entering Australia, or remaining in Australia. The Act prescribes a number of different classes of visa, including, in s 35A, a class of visa known as a protection visa. Section 35A provides for a number of different categories of protection visa including, in s 35A(3A), safe haven enterprise visas.

8    A person may apply for a protection visa under s 36 of the Act. Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a protection visa must meet one of the criteria set out in subss 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. If satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa under s 65 of the Act.

9    The criteria for the grant of a protection visa are set out in s 36 and certain other criteria prescribed by the Regulations. Section 36(1A) provides that an applicant for a protection visa must satisfy both of the criteria in s 36(1B) (applicant is not assessed adversely by the Australian Security Intelligence Organisation) and s 36(1C) (Minister does not consider on reasonable grounds that the applicant is a danger to Australia’s security, or, having been convicted of ‘a particularly serious crime’, is a danger to the Australian community), and at least one of the criteria in s 36(2) (Australia owes protection obligations to the applicant because they are a refugee or because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm).

10    The Regulations include a number of criteria for safe haven enterprise visas. One criterion is that the applicant satisfies the public interest criterion. The public interest criterion can only be satisfied if one of the following is met:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

11    Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subs (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

12    It is not in dispute that the applicant did not pass the character test in s 501(1) because of the operation of subs (6)(a), on the basis of subs (7)(c) and subs (7A), due to his convictions for the driving related offences on 22 January 2022 for which he was sentenced to eight months and four months to be served concurrently. That is, a total term of imprisonment of 12 months.

13    Section 47(1) of the Act imposes a duty on the Minister to consider a valid application for a visa. Section 65 provides that, after considering a valid application for a visa, the Minister is to grant or refuse the visa. The Minister’s power to grant a visa under ss 29, 36 and 65 the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.

14    Where, as here, the power to refuse the grant of a visa is exercised by a delegate of the Minister, an application may be made to the Tribunal for review of that decision under s 500(1)(b). Subject to certain procedural modifications, a review under s 500(1)(b) is undertaken in the general division of the Tribunal.

Immigration detention and removal from Australia

15    A non-citizen’s right to travel to, enter and remain in Australia is conferred through the grant of a visa. A non-citizen who holds a visa is a ‘lawful non-citizen’: s 13 of the Act. A non-citizen who is not a ‘lawful non-citizen’ is an ‘unlawful non-citizen’: s 14 of the Act. If an officer knows or reasonably suspects that a person is an unlawful non-citizen, the officer must detain the person: s 189 of the Act. A person so detained must be kept in immigration detention until removed from Australia under, relevantly, s 198 or until they are granted a visa: s 196 of the Act.

16    Section 198 provides that an officer must remove an unlawful non-citizen from Australia as soon as reasonably practicable in a number of specified circumstances. Relevantly, s 198(6) provides that an officer must remove as soon as reasonably practicable an unlawful non-citizen (a) who is a detainee; and (b) who has made an application for a visa that can be granted; and (c) where the grant of the visa has been refused and finally determined; and (d) who has not made another application for a substantive visa that can be granted.

17    The requirement of an officer to remove an unlawful non-citizen from Australia under s 198 can, in certain circumstances, come into conflict with international non-refoulement obligations Australia may owe to an unlawful non-citizen. In this respect, s 197C of the Act provides:

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

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

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

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

(a)    the non-citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

(iii)    the non-citizen has asked the Minister, in writing, to be removed to the country.

…

18    The expression ‘protection finding’ is defined in subss 197C(4)–(7). Relevantly, a protection finding is made for a non-citizen with respect to a country if the Minister is satisfied that the non-citizen meets the criterion in s 36(2)(a) with respect to the country (the person is a refugee) and also meets the criterion in s 36(1C) (the person is not a danger to Australia’s security and has not been convicted of a particularly serious crime or is not a danger to the Australian community): s 197C(5)(a) of the Act.

19    As mentioned earlier in these reasons, a delegate of the Minister made a protection finding with respect to the applicant. The effect of that finding was that owing to a well-founded fear of persecution the applicant is unable or unwilling to avail himself of the protection of Iran. Therefore, s 197C(3) applies to the applicant.

20    The effect of the applicant being the subject of a protection finding means that removal of the applicant to Iran is neither required nor authorised by s 198 because Australia, in effect, owes protection to the applicant. Therefore, a consequence of a decision to refuse to grant the applicant a visa was that he would remain in immigration detention indefinitely subject to the constitutional limitation that the lawfulness of his detention would come to an end if there is no real prospect of removal from Australia in the reasonably foreseeable future: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [55].

Direction 99

21    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1).

22    At the time of the Tribunal’s review the Minister had given Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Direction 99 is dated 23 January 2023 and commenced on 3 March 2023.

23    Section 5 of Part 1 of Direction 99 contains a preamble that sets out the objectives of the direction. Amongst other things, para 5.1 indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501 of the Act. A non-citizen who does not pass the character test is liable for refusal of their visa.

24    Paragraph 5.2 sets out principles that provide the framework within which decision-makers should approach their task of deciding, relevantly, whether to refuse a non-citizen’s visa under s 501. The factors (to the extent relevant in a particular case) that must be considered in making that decision are set out in Part 2 of the Direction.

25    Section 8 of Part 2 of Direction 99 sets out the primary considerations for decisions under s 501. These are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the strength, nature and duration of ties to Australia; (4) the best interest of minor children in Australia; and (5) expectations of the Australian community. Paragraphs 8.1–8.5 describe the primary considerations in detail and provide guidance to decision-makers as to the manner in which each of those considerations is to be taken into account.

26    Section 9 of Part 2 of Direction 99 sets out the other considerations, being considerations that must be taken into account when a decision is made under s 501(1) but are generally given less weight than primary considerations: Direction 99 para 7(2). These are (but are not limited to): a) legal consequences of the decision; b) extent of impediments if removed; c) impact on victims; and d) impact on Australian business interests. Paragraphs 9.1–9.4 describe the other considerations in detail and provide guidance on the manner in which each is to be taken into account.

27    Paragraph 9(1)(a) of Direction 99 requires decision-makers to consider, amongst ‘other considerations’, the ‘legal consequences of the decision’. Paragraph 9.1 provides as follows:

9.1    Legal consequences of decision under section 501 or 501CA

(1)    Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    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, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3)    International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

28    Relevantly, paragraph 9.1.1 goes on to describe the considerations for a non-citizen who is the subject of a protection finding:

9.1.1    Non-citizens covered by a protection finding

(1)    Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

(2)    Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

(3)    Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will 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 – see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.

The Tribunal’s reasons for decision

29    The Tribunal commenced its reasons for decision (T) by setting out the background to the application for review, the issues, the hearing and the evidence, the legislative framework and the provisions of Direction 99 (T [1]-[29]). The Tribunal identified the evidence as the applicant’s bundle of evidence, the section 501G documents and a supplementary bundle of documents. The Tribunal also noted that the applicant and respondent had filed statements of issues, facts and contentions (T [15]-[16]).

30    In the applicant’s statement of facts, issues and contentions (SFIC) under the heading ‘LEGAL CONSEQUENCES OF DECISION UNDER SECTION 501 OR 501CA’ the applicant made the following representations (footnotes omitted):

119.    The applicant states:

If I’m not released back into the community I will stay in detention. I have no choice. I have my daughter here and it is not safe for me in Iran. I came here as a refugee. I don’t have anywhere to go. If I’m not released, I will have no option but to stay in detention forever. This will be bad for my mental and physical health. It feels like a prison – I don’t want to stay in detention.

I don’t have any mental health conditions however I feel a lot of stress being in detention. I’m apart from my family. I don’t want to get into any trouble for my family, I just want to be with them.

120.    In 2011, Physicians for Human Rights released a report which examined the harmful health effects of indefinite detention. According to the report, the harmful psychological and physical effects of indefinite detention include:

   a.    Severe and chronic anxiety and dread;

b.    Pathological levels of stress that have damaging effects on the core physiologic functions of the immune and cardiovascular systems, as well on the central nervous system;

   c.    Depression and suicide;

   d.    Post-traumatic stress disorder; and

e.    Enduring personality changes and permanent estrangement from family and community that compromises any hope of the detainee regaining a normal life following release.

121.    Amnesty International noted in 2005 that there “is mounting evidence that detainees, particularly those who are kept in prolonged or indefinite detention, are at high risk of experiencing chronic depression, incidents of self-harm or attempted suicide.”61 The Royal Australian and New Zealand College of Psychiatrists stated in 2005 that immigration detention is:

…not suitable for the treatment of the mentally ill, that there should be immediate release of those with mental illness and mental disorder into appropriate psychiatric facilities. Detention centres don’t operate as hospitals and in no way can be said to be therapeutic.

122.    As recently as 16 May 2021, the Guardian Australia reported that:

Indefinite detention is considered arbitrary – and therefore unlawful – under international human rights law.

Decades of medical research across the world – including studies commissioned by the Australian government – have consistently warned the wearing uncertainty of indefinite detention is deeply damaging for those so held.

123.    One of the studies commissioned by the Australian government found that:

People in detention had an estimated 1.2 (95% CI, 1.18–1.27) health encounters per person-week. Those detained for > 24 months had particularly poor health, both mental and physical. Asylum seekers had more health problems than other people in detention. The main health problems varied depending on the length of time in detention, but included dental, mental health, and musculoskeletal problems, and lacerations. Both time in, and reason for, detention were significantly related to the rate of new mental health problems (P = 0.018 and P < 0.001, respectively).

124.    The Federal Court has previously noted that “the practical realities of individual circumstances mean that some people may face detention for years, with no end in sight.” The Federal Court emphasised the “harshness of indefinite detention” and the “physical and psychological burdens on a detainee.”

125.    In Perez v Minister for Immigration and Multicultural Affairs [1999] FCA 1342, Madgwick J stressed the gave seriousness of indefinite detention noting that:

Administrative detention for a long or indefinite period, except in cases of utter urgency or necessity, is abhorrent to our legal and political traditions and to international conceptions of human rights for which Australia has signified our respect by entering into treaties.

126.    Professor Ben Saul, the Challis Chair of International Law at the University of Sydney, stresses the gravity of mandatory indefinite detention under Australia’s migration framework:

… continuing and potentially indefinite detention is arbitrary or unreasonable since there are no current or realistic prospects of removal to another safe country and their detention is neither time-limited nor subject to binding periodic review.

127.    Human rights bodies have also been equally scathing of this type of detention. The Australian Human Rights Commission also has previously found that prolonged and indefinite detention constituted arbitrary detention and a breach of Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).

128.    The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (OHCHR) has also found in general terms that:

… the longer a situation of arbitrary detention and inadequate conditions lasts, and the less affected detainees can do to influence their own situation, the more intense their mental and emotional suffering will become, and the higher is the likelihood that the prohibition of ill-treatment has been breached.

129.    In response to prolonged indefinite detention, the OCHCR have also raised concerns about individuals being coerced into “voluntary” repatriation. They state:

Great concern also arises with regard to the use of procedures that are of a nature or deliberate design to render migrant detention potentially indefinite, to maximize uncertainty, unpredictability and frustration, or to prompt affected migrants to withdraw their requests for asylum, subsidiary protection or other stay and agree to "voluntary" return,’ in exchange for their release.

130.    This correctly summarises the situation the Applicant is likely to find himself in, where he will be faced with choosing being voluntary repatriation to a place where will face harm or to remain detained indefinitely in Australia.

131.    The connection between indefinite detention and mental illness is also well established. The Australian Medical Association has repeatedly raised concerns about the impact of “[p]rolonged, indeterminate detention of asylum seekers in immigration detention centres,” noting that it “violates basic human rights and contributes adversely to their health. The longer a person is in detention, the higher their risk of mental illness.”

132.    The Applicant does not pose an unacceptable risk to the Australian community, but will be detained indefinitely in immigration detention in Australia if his application for a SHEV is refused.

133.    This consideration weighs heavily in favour of the Applicant being granted a SHEV to remain in the Australian community and significantly outweighs all other considerations.

(Emphasis original).

31    The statement referred to in para [119] of the applicant’s SFIC is taken from para [45] and para [46] of his statement dated 3 April 2023 that formed part of the applicant’s evidence submitted to the Tribunal. There were five footnotes within paras [120]-[123] of the applicant’s SFIC. These contained references to a 2011 report by Physicians for Human Rights, publications by Amnesty International and the Royal Australian College of Psychiatrists and articles published by the Guardian Newspaper Australia and in the Medical Journal of Australia based on a study funded by the Australian Department of Immigration and Citizenship. There were hyperlinks to each of those reports and articles contained in the SFIC as submitted to the Tribunal, but the reports and articles were not submitted directly to the Tribunal.

32    In the course of considering the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal made the following observations about the applicant’s fear of indefinite detention.

84.    The Applicant appreciates the negative impact that his imprisonment and detention has had on his partner and that his partner has been struggling emotionally without him. He is fearful of being detained indefinitely (A1/014, para [45]). He does not want to be separated from his partner and daughter again. He stated that he would not break the law again because he knows that he will not be given a “second chance”. He also stated that he previously did not think about the consequences of his actions, but now that he has a child, he realises that his offending could result in someone being hurt (A1/013-014, paras [38], [47]-[49]; transcript/68). The Applicant’s appreciation of the impact that his offending has had on his partner, his desire not to be separated from his family, the fear of immigration detention and future indefinite detention or return to Iran if he offends again, and his appreciation that he could hurt someone if he reoffends, may provide some insight and motivation not to revert to drug use and not to reoffend.

…

86.    In summary, the following factors are protective and may reduce the likelihood of the Applicant relapsing to drug use and reoffending:

(a)    His resolve not to use drugs so that he and his partner can regain custody of their infant daughter who is in the care of DCP, a process which requires them both to undergo random drug testing.

(b)    He has been abstinent from drugs since he went to prison in August 2021, and this period of abstinence may assist him to remain abstinent in the community.

(c)    He appreciates the emotional impact of his absence on his partner, feels responsible for the care of his partner and daughter, does not want to be separated from them again, and wants to financially support them and to be a family.

(d)    He cannot return to Iran and fears being indefinitely detained if he is released and then offends again.

(e)    He has work experience as a delivery driver, painter and a mechanic which may assist him to find employment (and a possible offer of employment from a friend) which will help make meaningful use of his time.

(f)    He has shown some insight into why he offended and the harm that could be caused to members of the Australian community if he offends again.

33    The Tribunal concluded that the risk to the Australian community (para 8.1.2 of Direction 99) ‘weighed strongly in favour of discretion being exercised to refuse to grant the Visa’ (T [89]). Further, that the primary consideration in para 8.1 of Direction 99 (protection of the Australian community) ‘weighs strongly in favour of discretion being exercised to refuse to grant the [visa]’ (T [90]). The Tribunal concluded that there was no evidence of the applicant having committed family violence and so this primary consideration was not applicable (para 8.2 of Direction 99) (T [91]).

34    In relation to the strength, nature and duration of ties to the Australian community (para 8.3 of Direction 99) the Tribunal summarised the applicant’s ties to his infant daughter and partner as strong, and his ties to his stepchildren as low to moderate and his ties to the community in general as being slight (T [92]-[108]). Overall, the Tribunal concluded that the strength, nature and duration of ties to Australia weighed moderately against discretion to refuse to grant the applicant a visa (T [109]).

35    The Tribunal then turned to the considerations of the best interests of minor children in Australia affected by the decision (para 8.4 of Direction 99) (T [110]-[153]). The Tribunal ultimately found that with respect to the applicant’s daughter, her interests weigh moderately against discretion being exercised to refuse to grant the visa (T [113]-[130]). The Tribunal then considered the best interests of the applicant’s stepchildren (T [131]-[153]), concluding that their interests also weigh slightly against refusal of granting the visa (T [153]).

36    In relation to expectations of the Australian community (para 8.5 of Direction 99), the Tribunal considered the applicant’s disobedience of Australian laws (T [154]-[163]). Ultimately the Tribunal concluded that these expectations weigh strongly in favour of refusal of the visa (T [164]).

37    The Tribunal then considered each of the ‘other considerations’ referred to in Direction 99 (T [165]-[194]). The Tribunal began with a consideration of the legal consequences of a decision under s 501 and para 9.1 of Direction 99 (T [166]-[180]). The Tribunal noted that para 9.1(a) of Direction 99 required the Tribunal to consider the legal consequences of the decision and that para 9.1.1 was applicable because a protection finding had been made with respect to the applicant (T [166]-[173]). The Tribunal then reasoned as follows:

174.    Applying paragraph 9.1.1(2) of Direction No 99, if I make an adverse decision in this application, Australia will not breach its non-refoulement obligations by removing the Applicant to Iran. This means that the Applicant will remain in immigration detention unless another visa is granted, or until such time as he can be removed to a third country. Paragraph 9.1.1(2) of Direction No 99 provides:

(2)    Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

175.    In addition, I note that the Applicant could be removed to Iran if he makes a voluntary request to be removed (although there is no evidence of an intention to make such a request). He could also be removed if a finding is made under s 197D of the Migration Act that he is no longer a person to whom a protection finding applies.

176.    The Minister may, in the future, consider whether to exercise his non-compellable powers under s 195A of the Migration Act to grant the Applicant a visa, or under s 197AB of the Migration Act to make a residence determination. At the date of the hearing no decision had been made as to whether to exercise these non-compellable powers. Even if the Minister were to do so, or if the Minister decided to remove the Applicant to a third country, the Applicant would remain in immigration detention for an indefinite period until such a decision was made and implemented.

177.    Further, paragraph 9.1.1(3) of Direction No 99 provides that:

Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will 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 - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.

178.    Applying paragraph 9.1.1(3) of Direction No 99, as the Reviewable Decision was the refusal of a protection visa, the Applicant would be prevented by s 48A of the Migration Act from making a further application for a protection visa while he is in the migration zone unless the Minister makes a determination (under s 48B of the Migration Act) that s 48A does not apply. Again, as at the date of the hearing there was no indication the Minister intends to make such a determination. The Applicant would also be prevented from applying for any other class of visa, except for a Bridging R (Class WR) visa.

179.    Overall, the most likely and immediate consequence of a decision to affirm the Reviewable Decision is that the Applicant will remain in detention for an indefinite period, that is an uncertain period with no fixed chronological end point.

180.    I therefore find that this consideration weighs strongly against discretion being exercised to refuse to grant the Visa to the Applicant.

38    Except for the reference to para [45] of the applicant’s statement referred to at T [84] and T [86(d)] noted earlier in these reasons, the Tribunal’s reasons for decision make no mention of that evidence and make no reference to the facts, issues and contentions set out in paras [119] – [133] of the applicant’s SFIC. In particular, there is no mention of the applicant’s contentions about the harmful health effects of indefinite detention.

39    In relation to the balance of the ‘other considerations’, the Tribunal found that the extent of impediments if removed (para 9.2 of Direction 99) should be given neutral weight having regard to the fact that the applicant is the subject of a protection finding and that ‘the likely legal consequence is that he would not be returned [to Iran] because Australia owes him [non-refoulement] obligations’ (T [181]-[189]). The Tribunal then turned to considering the impact on victims (para 9.3 of Direction 99), concluding that there was no material before it regarding such an effect and that the consideration was not relevant (T [190]-[192]). Similarly, the impact on Australian business interests were not relevant in this case (T [193]-[194]).

40    The Tribunal then turned to consider and undertake a weighing exercise with respect to the primary and other considerations (T [195]-[203]). In the course of that consideration and exercise the Tribunal said:

197.    For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:

(a)    The primary consideration of the protection of the Australian community from criminal or other serious conduct weighed strongly in favour of discretion being exercised to refuse to grant the Visa.

(b)    The strength, nature and duration of the Applicant’s ties to Australia weighed moderately against discretion being exercised to refuse to grant the Visa.

(c)    The best interests of the Applicant’s minor daughter, D, weighed moderately against discretion being exercised to refuse to grant the Visa. The best interests of the Applicant’s stepchildren weighed slightly against discretion being exercised to refuse to grant the Visa.

(d)    The expectations of the Australian community weighed strongly in favour of discretion being exercised to refuse to grant the Visa.

198.    I made the following findings with respect to the other considerations that were relevant. These were:

(a)    A protection finding has been made with respect to the Applicant, and therefore the most likely legal consequence of an adverse decision is that he may be detained for an indefinite period, that is, a period with no fixed chronological end point. This consideration weighed strongly against discretion being exercised to refuse to grant the Visa to the Applicant.

(b)    Due to the existence of a protection finding, the Applicant cannot be removed to Iran. Given that it is unlikely that he will be returned to Iran, I gave the impediments if removed other consideration neutral weight.

199.    The weighing exercise in this application has been a difficult one. This is particularly because of the legal consequence of an adverse decision being that the Applicant is likely to be indefinitely detained.

...

202.    I am mindful and concerned that the legal consequences of the decision are that the Applicant faces the prospect of indefinite detention, and although that other consideration weighs strongly against the exercise of the discretion not to grant the Visa, applying paragraph 7(2) of Direction 99, it does not outweigh the primary considerations of protection of the Australian community and the expectations of the Australian community, even when added to the primary considerations that weigh in the Applicant’s favour.

203.    Having regard to the relevant primary and other considerations in Direction No 99, I find that I should exercise discretion under s 501(1) of the Migration Act to refuse to grant the Applicant the Visa. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.

41    The Tribunal concluded with a decision to affirm the delegate’s decision to refuse the applicant’s application for a visa (T [204]).

Parties’ submissions

Applicant’s submissions

42    It is not in contention between the parties that the most likely legal consequence of the refusal decision is that the applicant will remain in detention indefinitely.

43    The applicant’s argument is essentially that, in circumstances where indefinite detention is a legal consequence of the decision, the Tribunal had to grapple with the factual consequences (here, the health of the applicant) of indefinite detention that flow from the legal consequences as part of the ‘other considerations’ under para 9.1 of Direction 99. On the applicant’s submission, by virtue of the applicant’s representations referred to above regarding the health effects of indefinite detention, the case before the Tribunal raised a factual consequence of the refusal decision which was not bound-up with the legal consequence to which the Tribunal had regard.

44    The applicant submits there is no reference in the Tribunal’s reasons to evidence of any consideration of the risk to the applicant’s physical or mental health as a result of indefinite detention. Further, the applicant submits that it cannot be inferred from the reasons that the Tribunal read, identified, understood and evaluated the factual consequences of indefinite detention, being the effect of the deprivation of liberty on the applicant’s health, because it is self-evident from the reasons that the Tribunal only directed itself to consideration of the legal consequences of indefinite detention. So the applicant submits, the representations about the risk posed to the applicant’s physical and mental health were not so insubstantial as could warrant an inference that the Tribunal’s failure to reference them could be attributed to a lack of prominence or emphasis by the applicant. Ultimately, because the applicant made representations as to the harmful health effects of indefinite detention that were central to his case, the Tribunal was obliged to consider those representations and the fact that it did not amounts to jurisdictional error.

45    The applicant relies on Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [45] (North J); NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9] (Allsop CJ and Katzmann J) [177] (Buchanan J); NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 at [2] (Allsop CJ and Katzmann J) [127], [132] (Buchanan J) for the proposition that as well as legal consequences of refusal being mandatory considerations, the immediate factual consequences associated with these legal consequences are also mandatory considerations. In the alternative, irrespective of whether factual consequences are in fact mandatory considerations, the applicant submits that nothing turns on this because the health risk posed by indefinite detention was a clear and substantial representation relevant to the exercise of discretion.

46    In terms of the use of hyperlinks within the applicant’s SFIC, the applicant relies on and invites the Court to adopt the approach taken to hyperlinks in Google LLC v Defteros [2022] HCA 27; (2022) 403 ALR 434 at [42]-[44] (Kiefel CJ and Gleeson J) where hyperlinks were essentially compared to footnotes. The applicant submits the effect of that authority is that, in circumstances where there is a footnote containing a hyperlink to a document that is relevant, one would reasonably expect the Tribunal to read it. In any event, the applicant submits that the representation was made in the body of the SFIC and the hyperlinks provided support for the statement. Therefore, the hyperlinks formed part of the applicant’s representation.

Minister’s submissions

47    The Minister advances the submission that the Tribunal understood that the applicant was representing that indefinite detention would or might have adverse consequences for him. The Minister submits that the Court should find that legal and factual consequences are coterminous considerations and that the applicant’s ground must therefore fail because the Tribunal would have necessarily considered the potential harmful health impacts of indefinite detention when considering the legal consequences of indefinite detention. In other words, the Tribunal was not required to make a specific finding as to the health implications of indefinite detention on the applicant because those considerations are so inherent within any consideration of the legal consequences of indefinite detention that it can be inferred that it was considered.

48    Therefore, it can be inferred that the Tribunal was aware of, in the sense that it had read and identified, the applicant’s representations as to the adverse effects of indefinite detention. The Minister submits that such an inference finds support in the reasons as a whole and that the Tribunal referenced the SFIC and acknowledged the quality of the applicant’s submissions and identified that the applicant was, in effect, fearful of being detained indefinitely (at T [84] and T [86(d)]). Further, it concluded that the prospect of the applicant remaining in detention indefinitely ‘weighed strongly against discretion being exercised to refuse to grant the applicant’s visa’ (at T [179]-[180]), it considered the weighing exercise difficult because of the prospect of the applicant being indefinitely detained (at T [199]) and it was mindful of and concerned that the applicant faces such a prospect (at T [202]). The Minister submits that these observations are consistent with the Tribunal having read, identified, understood and evaluated the applicant’s representations as to the adverse effect, or likely adverse effect, that indefinite detention would have on him. The absence from the Tribunal’s reasons of reference to paras [115]-[133] of the SFIC is also explicable because of the inference to be drawn above. The Minister also submits that the relevant paragraphs of the applicant’s SFIC contain merely generic reports concerning adverse health impacts of indefinite detention, rather than direct concerns of the applicant himself, subject to the applicant’s statement at [119] referred to in para [30] above.

49    Through oral submissions, the Minister accepts the applicant’s submission that hyperlinks can be treated as footnotes. Nevertheless, the Minister submits that the hyperlinks cannot be seen to be a part of the applicant’s representations. On the Minister’s submission, it cannot be the case that the obligation to consider the representations as a whole includes ‘the obligation to consider every hyperlinked document and every aspect of that hyperlinked document and potentially every hyperlink within that hyperlinked document as part of the reasoning process.’ In essence, if an issue is sufficiently important to demand and require the Tribunal’s engagement, it is not an issue that can be ‘hidden’ in a hyperlink that can only be sourced through a footnote. The Minister contends this position finds support in the proposition that the requisite level of engagement and the degree of effort needed by the decision-maker will vary according to the length, clarity and degree of relevance of the representations: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [25]. Further the Minister relies on AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] (Flick, Griffiths and Moshinsky JJ) where it was stated that the ‘greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim.’

50    The Minister submits that even if the Tribunal failed to consider the applicant’s representations regarding the effect or likely effect of indefinite detention, this failure is not material based on the test of reasonable conjecture established in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398. The Minister submits that there is no realistic possibility, as a matter of reasonable conjecture, that a different decision could have been made had the Tribunal considered (in the required sense) the applicant’s representations about the adverse effect or likely adverse effect that indefinite detention would have on him because the applicant contended, and the Tribunal agreed, that the legal consequences of its decision (that the applicant would likely be indefinitely detained), weighed strongly (or ‘heavily’) in the applicant’s favour.

Consideration

Applicable legal principles

51    While both the applicant and the Minister relied on the principles drawn from Plaintiff M1/2021 at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ), it is important to bear in mind that Plaintiff M1/2021 concerned the review of a decision of a delegate of the Minister not to revoke the mandatory cancellation of a visa under s 501CA(4) of the Act. In that context, the delegate is directly considering the representations a former visa-holder has made in accordance with an invitation under s 501CA of the Act. In this case, the review concerns the exercise of the Tribunal’s review function under s 500(1)(b) of the Act. That is, a review of a decision of a delegate of the Minister not to grant the applicant a visa under s 501(1) of the Act.

52    The Tribunal’s function was to review the decision of the delegate and form its own view as to the ‘correct or preferrable decision’ on the basis of the materials before the Tribunal at the time of its decision: Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; (1979) 46 FLR 409 at 419 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] (Hayne and Heydon JJ). The materials before the Tribunal may include additional or different materials to those that were before the delegate. The materials also include documents the Minister must lodge with the Tribunal that are in the Minister’s possession or under the Minster’s control that were relevant to the making of the decision: s 500(6F). The delegate must provide copies of the same documents to the former visa-holder at the time of informing that person of the decision to refuse to revoke the cancellation decision: s 501G(2) (the G documents). Therefore, the nature of the review that the Tribunal was required to perform is informed by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500 of the Act. Accordingly, while the principles set out in Plaintiff M1/2021 are generally applicable and draw on established principles that apply to decision-makers in different statutory contexts, those principles are not directed specifically to the exercise of the Tribunal’s review function under s 500(1)(b).

53    Nonetheless, the passages from Plaintiff M1/2021 to which the parties refer in their submissions emphasise the importance of the representations (or, in the case of review by the Tribunal, the applicant’s case in the Tribunal) to the exercise of the discretion under s 501(1). ‘More broadly, the degree of consideration that is necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed. … It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons’. However, ‘[i]t is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error’: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [52]-[53] (and the authorities there cited).

54    It is also important to keep in mind that the Tribunal (and the delegate) was bound to apply Direction 99. In that context, where the evidence or materials before the Tribunal raise a matter that is made relevant and must be taken into account in accordance with Direction 99, the decision-maker is bound to take that matter into account irrespective of whether or not the visa applicant has specifically made a representation (or submission) about that matter.

55    Where, as here, a protection finding (within the meaning of s 197C) has been made in respect of the visa applicant, the Tribunal was bound to take into account, as a mandatory relevant consideration, the legal consequences of a refusal to grant the applicant a visa. A mandatory relevant consideration for the applicant was that refusal to grant a visa may result in his indefinite detention: NBMZ at [9]-[10] (Allsop CJ and Katzman J), [90], [115], [121], [139] (Buchanan J). The Tribunal was also required to take that legal consequence into account by paras 9(1)(a), 9.1 and 9.1.1 of Direction 99.

56    As to the question of whether a decision-maker has read, identified, understood and evaluated a former visa-holder’s representations (or case in the Tribunal), the established principles also include that the conclusion that the decision-maker has not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence. The question of whether there has been such engagement will frequently be a matter of impression reached in light of all the circumstances of the case bearing in mind that the onus is on the applicant to demonstrate error. Whether the reasons of the decision-maker fall on the ‘wrong side of the line’ will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required is the reality of consideration by the decision-maker. On judicial review the Court must assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations made. Each case necessarily turns on its own particular facts and circumstances and the reasons must be considered by reference to those facts and construed in a practical and common-sense manner: KXXH at [46]-[50] (and the authorities there cited).

57    In ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 (at [7]) the Court explains that it is for the decision-maker, ‘acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance’. Accordingly, a failure of the decision-maker to refer to a particular matter in its reasons may indicate that the decision-maker was not persuaded of its significance. It does not necessarily mean that the decision-maker failed to identify and understand the representations being made. That is so even if the matter was clearly articulated by the applicant or clearly arose on the materials. The Court, on judicial review, is required to determine whether the reasons demonstrate that the decision-maker has read, identified, understood and evaluated the former visa-holder’s representations. However, that is not an enquiry into the ‘degree or quality of consideration in the reasoning’, rather the enquiry is simply as to whether there has been consideration of the representations. While the task of sifting and attributing weight are matters for the decision-maker, a decision-maker is not able to perform that function properly without a proper awareness and understanding of the representations and ‘a proper appreciation of the matters that might bear upon the decision to be made’. Put another way, the decision-maker’s reasons must demonstrate that the statutory function of considering the representations (as a whole) has been performed.

58    In Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98 the Court, drawing on Plaintiff M1/2021 and ECE21 summarised the established principles about the degree of consideration required of an applicant’s ‘representations’ as follows:

55.    …    they are:

(1)    A conclusion that the decision-maker 'has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].

(2)    What is required is the reality of consideration by the decision-maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the relevant matter: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).

(3)    The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).

(4)    Although the likely effect that any separation from Mr Jabari would have had on his children was a mandatory consideration because of Direction 90, not because it was among his representations, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).

(5)    Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [19] (Perram J). On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE at [47].

Did the Tribunal ‘consider’ the applicant’s representations about the harmful consequences of indefinite detention?

59    It is quite clear that the Tribunal had understood and identified that it was required to consider the legal consequences of indefinite detention of the applicant. The Tribunal made reference to the relevant paragraphs of Direction 99, to the protection finding made on 22 May 2022 concerning the applicant, that Australia owes non-refoulement obligations to the applicant and to the prospect (likelihood) that if a visa were not granted that the applicant would remain in detention for an ‘indefinite period, that is an uncertain period with no fixed chronological end point’ (T [166]-[179]). The Tribunal concluded: ‘… this consideration weighs strongly against discretion being exercised to refuse to grant the Visa to the Applicant’ (T [180]).

60    While the Tribunal identified that the applicant had filed his SFIC dated 3 April 2023 and, in the context of considering the likelihood of the applicant engaging in further criminal or other conduct for the purposes of para 8.1.2(2)(b) of Direction 99, noted the applicant’s evidence that he was ‘fearful of being detained indefinitely’ by reference to the paragraphs of the applicant’s statement referred to at para [30] of these reasons, the Tribunal made no direct reference to the paragraphs of his SFIC and the documents referred to at paras [30] and [31] of these reasons. However, the failure to make specific reference to the applicant’s ‘representations’ in that respect does not necessarily mean that the Tribunal failed to read, identify, understand and evaluate the applicant’s case in the Tribunal.

61    The real questions for consideration are whether the applicant's case raised a factual consequence that was not bound-up with the legal consequence to which the Tribunal plainly had regard. And, if so, whether the Tribunal identified, understood and evaluated the applicant's case having regard to those separate factual consequences.

Legal consequences

62    In NBMZ the Court concluded that when exercising the unfettered discretion under s 501(1) of the Act the Minister is bound to take into account the operation of the Act in making a decision. That requires the Minister to take into account what Parliament has prescribed by way of legal consequences of the decision. The legal consequences of a decision to refuse to grant a visa include indefinite detention where that consequence flows from the power and obligation to detain unlawful non-citizens and Australia’s obligation of non-refoulement: NBMZ at [9]-[10] (Allsop CJ and Katzmann J), [130]-[131], [139], [153], [207] (Buchanan J); see, also, NBNB at [2], (Allsop CJ and Katzmann J), [88], [109]-[110], [127] (Buchanan J); Cotterill at [100]-[107] (North J), [123]-[127] (Kenny and Perry JJ).

63    The obligation of the Minister (or a delegate or the Tribunal) to take into account the legal consequences of refusal to grant a visa, including indefinite detention, is reflected in para 9(1)(a) and para 9.1 of Direction 99. Where applicable, a failure to take into account the legal consequences may result in a failure to take into account a mandatory relevant consideration, of the kind Mason CJ referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-48, and may amount to jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]-[68].

64    Here, the Tribunal concluded that the most likely and immediate consequence of a decision to affirm the delegate’s decision is that the applicant will remain in detention for an indefinite period, that is an uncertain period with no fixed chronological end point (T [179]). The Tribunal also concluded that consequence (detention for an indefinite period) weighs strongly against refusal to grant the applicant a visa (T [180]). Therefore, the Tribunal understood that the legal consequence of refusal of a visa was that, by operation of ss 189, 197C, 196 and 198 of the Act, as an unlawful non-citizen in respect of whom a protection finding has been made, an officer was obliged to take the applicant into immigration detention pending his removal from Australia. However, as the applicant could not be removed to Iran, he would remain in detention unless and until he was granted a visa or removed to a country other than Iran.

65    Personal liberty is the most fundamental, elementary and important of all common law rights. It has been described as an absolute right vested in the individual by the immutable laws of nature: Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 292 (and the authorities there cited). The executive can neither detain citizen nor non-citizen without judicial mandate or as justified by valid legislative provision: Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 19-20; NZYQ at [27]. Thus, in general, there is a presumption against legislative provisions that curtail or abrogate the common law right of personal liberty in the absence of clear statutory language: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 at [86]-[95] (and the authorities there cited).

66    The Court’s conclusion in Al Masri (at [115]-[132]) to the effect that ss 189, 196 and 198 of the Act (as then enacted) did not manifest a clear intention to curtail the right of personal liberty to such an extent that an unlawful non-citizen could be detained indefinitely was, in effect, disapproved and overruled by the majority of the High Court in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. However, the (majority and minority) judgments in Al-Kateb accepted the general principle of statutory interpretation that Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unambiguous language. Further, that personal liberty is the most basic of those fundamental rights or freedoms. Where the majority in Al-Kateb departed from the minority in that case and the decision of the Federal Court in Al Masri was on the question of whether the provisions of ss 189, 196 and 198 of the Act, as they then stood, manifested that intention with respect to the right to personal liberty of unlawful non-citizens in Australia. Although in NZYQ the High Court overruled Al-Kateb on the constitutional lawfulness of detaining a non-citizen when there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future, leave to re-open Al-Kateb on the question of statutory construction was refused. The High Court noted that the point of difference between the majority and minority in Al-Kateb was on the application of the principles of statutory interpretation not on what are the correct principles: Al-Kateb at [19]-[23].

67    This application was heard on 24 October 2023 and I reserved my judgment on that day. The orders in NZYQ were pronounced on 8 November 2023 and reasons for decision published on 28 November 2023. After publication of the NZYQ reasons I invited the parties to indicate whether they considered that NZYQ had any bearing on the issues to be addressed in this matter and whether the parties wanted to make any further submissions. The parties responded with the shared view that NZYQ does not have any bearing upon the issues to be addressed in this matter, and there is no need for further submissions. Accordingly, I approach the consideration of the Tribunal’s reasons from the perspective that the Tribunal made no error of law when considering that a legal consequence of a decision to refuse to grant the applicant a visa was that he may remain in immigration detention indefinitely. Further, that the constitutional limitation on the lawfulness of the applicant’s indefinite detention recognised in NZYQ was of no relevance to the Tribunal’s decision in this case. Nonetheless, certain of the observations the High Court made in NZYQ are of relevance to a proper understanding of the legal consequences resulting from a refusal to grant the applicant a visa in circumstances where a protection finding has been made and the applicant cannot be removed to Iran.

68    Here, the relevant legal consequence of refusal of a visa was that the curtailment of the fundamental common law right of personal liberty for the limited period necessary for the applicant to make and have considered an application for a visa or otherwise to remove him from Australia would be extended to become an indefinite period of deprivation of liberty. Thus, a limited curtailment of a fundamental common law right would become or may become a substantial curtailment of that right.

69    The seriousness of the interference with that fundamental common law right, as a legal consequence, was to be considered and understood by the Tribunal in the context that, ‘exceptional cases aside, “the involuntary detention of a citizen [or non-citizen] in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”’ and ‘that it is the involuntary deprivation of liberty itself that ordinarily constitutes punishment’: NZYQ at [28] (and the authorities there cited). That is, de jure detention may be considered de facto punishment. Moreover, indefinite detention is rarely invoked in sentencing regimes and is regarded as oppressive even in the context of punishment. It is an extraordinary punishment only to be imposed on a convicted person against whom there is cogent evidence showing that the offender would be a constant danger to the community: Al Masri at [93]. That is, the legal consequence that the Tribunal was required to take into account and which Allsop CJ and Katzmann J quite rightly, with respect, characterised as ‘legal consequences of the decision [that] are important in human terms’: NBMZ at [9]. Therefore, in those circumstances, the legal consequences that the Minister (a delegate or the Tribunal) was required to take into account at the time of the Tribunal’s decision included the substantive curtailment of the applicant’s fundamental common law right of personal liberty.

Factual consequences

70    In a sense, indefinite detention may also be characterised as a practical or factual consequence of a decision to refuse a protection visa to a person to whom Australia owes non-refoulement obligations. The legal consequence of refusal of a visa has the practical or factual consequence, by operation of the applicable provisions of the Act, that the applicant may be held in immigration detention indefinitely. To an extent, it is also self-evident or intuitive that the loss of personal liberty will have physical and psychological effects on the person detained. Freedom of movement is a fundamental right, in part, because of the detrimental physical and psychological effects of detention. However, there is a distinction between deprivation of personal liberty as a legal consequence and the factual consequences that flow from depriving a person of personal liberty. The legal consequence is the curtailment of a fundamental common law right. The factual consequence for the person deprived of liberty may or may not involve physical and (or) mental harm to that person. The extent to which a particular person deprived of personal liberty indefinitely has suffered or is at risk of suffering physical and (or) mental harm is a question of fact not a question of law.

71    In this case the applicant made representations or claims concerning the potential psychological detriments caused by indefinite detention. The Minister submitted that these representations were no more than ‘generic’ representations concerning such psychological detriments. Another way of characterising the representations is that they attempt to supply a substantive and evidential basis for the inherent or intuitive risk of psychological harm associated with indefinite deprivation of personal liberty. In either case, they formed part of the applicant’s representations or case in the Tribunal. Therefore, the Tribunal was bound to read, identify, understand and evaluate those representations as part of the applicant’s representations or case, as a whole, in the Tribunal. The Tribunal was also required to consider these representations as part of its consideration of the legal consequences made mandatory by Direction 99.

72    Given that the Tribunal was bound, in the circumstances, to take into account the legal consequences of a decision to refuse to grant the applicant a visa and that included indefinite detention and the curtailment of the common law right of personal liberty, it does not follow that the Tribunal’s consideration of that subject necessarily meant that, by implication, the Tribunal also considered and took into account the representations the applicant made specifically about the risk of detrimental psychological effects arising from indefinite detention.

73    Attaching the label ‘generic’ to the applicant’s representations about potential psychological effects of indefinite detention does not diminish the significance or prominence of the representations as an aspect or integer of the applicant’s case in the Tribunal. His representations about potential detrimental psychological effects of indefinite detention were a prominent and central part of the applicant’s case. I am not persuaded that I should infer from a passing reference to the applicant’s SFIC, a reference to the applicant’s statement about his fear of indefinite detention and the Tribunal’s consideration of the legal consequences of indefinite detention that the Tribunal identified, understood and evaluated the applicant’s representations with a correct appreciation or understanding of the applicant’s case regarding the potential for psychological harm to him. Nor am I persuaded by the Tribunal’s conclusions that those representations, correctly understood, were not sufficiently material to its decision to warrant explanation.

74    The relevant part of the applicant’s SFIC is directed towards indefinite detention as a legal consequence and the factual consequences of indefinite detention. In part, the applicant’s SFIC drew attention to the interference with the right of personal liberty. For example, he made the contention that it is ‘abhorrent to our legal and political traditions and to international conceptions of human rights’. However, the predominant focus of this part of the applicant’s SFIC is on the ‘harmful health effects of indefinite detention’. Specifically, the risk of psychological harm arising from indefinite detention. Taking into account these risks, the applicant submitted that the consideration (legal consequences) ‘weighs heavily in favour of the Applicant being granted a [visa] to remain in the Australian community and significantly outweighs all other considerations’. Put another way, the focus of the relevant paragraphs of the applicant’s SFIC was on the factual consequences (risk of psychological harm) arising from indefinite detention. That was a separate and distinct reason for the grant of his visa that formed part of his contention that the legal consequences outweighed all other considerations.

75    Given the prominence and centrality of the applicant’s case about the risk of psychological harm arising from indefinite detention, if they had been read, identified, understood and evaluated, I would expect to have seen the facts, issues and contentions set out in paras [119] to [133] of the applicant’s SFIC addressed in the Tribunal’s reasons for decision as a ‘reason’ the applicant asserted for the grant of a visa. I would also expect to have seen an explanation of the reasons that these facts, issues and contentions were or were not taken into account in the Tribunal’s decision. As noted earlier, the Tribunal’s reasons make no reference to paras [119] to [133] of the applicant’s SFIC. The only consequence the Tribunal identifies in its reasons for decision is that ‘the Applicant will remain in detention for an indefinite period, that is an uncertain period with no fixed chronological end point’. That is, the Tribunal identifies the ‘legal consequence’ to which it has had regard as indefinite detention which it considered weighed strongly against exercising the discretion to refuse to grant the applicant a visa. No further explanation is provided. There is no explanation of what, if anything, the Tribunal has taken into account in reaching its conclusion that the consideration weighs strongly against refusal beyond that it would result in indefinite detention, as a legal consequence. There is no explanation of what the legal consequence meant generally (interference with a fundamental common law right) or specifically for the applicant (risk of psychological harm).

76    In short, I am not satisfied from the Tribunal’s reasons for decision and passing references to the applicant’s SFIC and his fear of indefinite detention that it has performed the statutory task it was required to perform according to law. On the contrary, the inference I draw is that the Tribunal has not identified, understood and evaluated the applicant’s case in the Tribunal and, thereby, failed to consider an important integer of his application for the grant of a protection visa; namely, that there is a factual consequence or risk of harm to him arising from indefinite detention.

Was the Tribunal’s error material?

77    Materiality is essential to the existence of jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ). In order to establish that the Tribunal’s error was material, the applicant must establish that there is a realistic possibility that the Tribunal’s decision could have been different had the breach of the relevant condition not occurred: SZMTA at [45].

78    In Nathanson at [32], the plurality (Kiefel CJ, Keane and Gleeson JJ) explained, by reference to MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38], 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’. Although said with regard to a failure to afford procedural fairness, the plurality also indicated that the standard of ‘reasonable conjecture’ is ‘undemanding’: Nathanson (at [33]).

79    The Minister submits that the undemanding test is not satisfied because the Tribunal concluded that the legal consequence (indefinite detention) weighed strongly against refusal to grant the visa. The evident implication being that consideration of the psychological harm of indefinite detention could not realistically have changed the relative weight the Tribunal attributed to the legal consequence consideration of Direction 99. I do not accept that submission.

80    If the risk of psychological harm had been considered it may have had an influence on the relative weight the Tribunal attributed to the legal consequence consideration. The ultimate weighing exercise is a matter for evaluative judgment where the relative weight of each consideration is to be taken into account in the exercise of the discretion to grant or refuse to grant a visa. Therefore, there is a realistic possibility that consideration of an important integer of the applicant’s representations which was overlooked could have resulted in a different outcome of the specific weight attributed to the legal consequences of the refusal decision and in the relative weight of that consideration in the overall weighing exercise. The undemanding materiality threshold is crossed in this case.

Conclusion

81    There will orders for the issue of a writ of certiorari setting aside the Tribunal’s decision and for the matter to be remitted to the Tribunal for determination according to law. I will hear the parties on the question of costs.

Associate:

Dated:    22 December 2023