Federal Court of Australia

TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave, nunc pro tunc, to file a further amended originating application in the form lodged with the Court on 2 April 2024.

2.    The proceeding be dismissed.

3.    The applicant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant is a national of Iran. He arrived in Australia in 1990, aged 28, and in 1995 was recognised by the Refugee Review Tribunal as a refugee, and was granted a protection visa. In 2021, under an International Treaties Obligations Assessment (ITOA), the applicant was again recognised as a refugee.

2    In 1996, the applicant married his wife. Then, in November 1997, the applicant killed his wife in the most horrific circumstances. The applicant pleaded guilty to manslaughter, but after a trial by jury he was convicted of murder and sentenced to a term of imprisonment of 22 years with a minimum term of 18 years. The sentencing judge identified a number of aggravating features, and described the applicant’s crime as calculated and premeditated murder. An application by the applicant for leave to appeal against his sentence was dismissed, with the appeal court stating that the case called for a life sentence which the applicant was lucky not to be serving.

3    On 23 July 2015, the applicant’s protection visa was cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth). The cancellation was mandatory because a delegate of the Minister was satisfied that the applicant did not pass the character test by reason of his conviction for murder, and because the applicant was at that time still serving his sentence of imprisonment. The applicant served his term of imprisonment in full, after which he was taken into immigration detention.

4    The applicant made representations pursuant to s 501CA(3)(b) of the Act seeking to have the mandatory cancellation of his visa revoked. On 28 April 2020, the Minister, acting personally, determined not to revoke the cancellation of the applicant’s visa. By an order of this Court made by consent on 7 October 2020, a writ of certiorari was ordered to be issued quashing the Minister’s decision on the ground of jurisdictional error. The order records that the Minister conceded that the decision was affected by jurisdictional error on the basis that the Minister failed to give meaningful consideration to the applicant’s representations on the existence of non-refoulement obligations as a reason to revoke the cancellation decision.

5    On 30 May 2022, a delegate of the Minister determined not to revoke the cancellation of the applicant’s visa. The applicant then sought review of that decision by the Administrative Appeals Tribunal pursuant to s 500(1)(ba) of the Migration Act. On 22 August 2022, the Tribunal affirmed the delegate’s decision, publishing written reasons on 26 August 2022.

6    The applicant claims that the Tribunal’s decision was affected by jurisdictional error and seeks orders for the issue of constitutional writs quashing the Tribunal’s decision and directing the Tribunal to determine the review according to law.

The Tribunal’s decision

7    The applicant was represented before the Tribunal by a specialist migration lawyer, and the Minister was represented by counsel. The parties to the review before the Tribunal filed statements of facts, issues and contentions. The documents before the Tribunal comprised over 1,500 pages. The Tribunal conducted a four-day hearing between Tuesday 16 and Friday 19 August 2022 during which the applicant and others gave evidence, and oral submissions were made to the Tribunal by the parties’ representatives.

8    Under s 500(6L) of the Migration Act, if the Tribunal did not make a decision within 84 days of the applicant being notified of the decision under review, the Tribunal was taken to have affirmed the decision under review. The 84th day fell on Monday 22 August 2022. On that day, the Tribunal published its decision, with written reasons published on Friday 26 August 2022. The Tribunal’s statement of reasons is publicly available: TCXM and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2820 (R). It should be stated that the Tribunal’s reasons are detailed, are of a high standard, and their publication within that short time frame is indicative of commendable endeavours by the Senior Member who presided.

9    As this is an application for judicial review alleging jurisdictional error on specified grounds, it is unnecessary to summarise all aspects of the Tribunal’s detailed reasons, which included extensive references to the oral and documentary evidence. For the most part, the Tribunal’s reasons adopted as a framework the guidance in Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, given by the Minister under s 499 of the Act. The main features of the Tribunal’s reasons are as follows.

10    The Tribunal identified that the applicant did not pass the character test because he had a substantial criminal record, having been sentenced to imprisonment exceeding 20 years for the offence of murder.

11    At R[29], under the heading “Applicant’s evidence”, the Tribunal referred to an email from the applicant’s lawyers dated 22 July 2022 that stated that the applicant relied on three statements, which the Tribunal identified in a footnote. The Tribunal stated that the applicant adopted the statements as true and correct. The statements referred to included several submissions from the applicant to the Minister dated, respectively, 14 May 2021, 1 July 2021, and 18 July 2021.

12    The submission of 18 July 2021 comprised ten pages, which addressed the amendments to the Act effected by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). Amongst other things, the amending Act added s 197C(3), which qualifies the duty under s 198 to remove an unlawful non-citizen so that it does not apply where a protection finding has been made in the course of considering a valid application for a protection visa. Much of the submission is a critique of the amending Act, stating, for instance, that the amending Act “is basically replacing one human rights violation with another with far-reaching consequences”. The applicant went on to state in the submission –

What is clear, both refouling a genuine refugee like me, to where he would face harm and a newly introduced alternative of indefinite detention contravenes fundamental human rights obligations that Australia is bound under international law. This amendment has the practical effect of authorising my arbitrary detention, for the rest of my life, until I die, without adequate judicial review, whilst the immigration detention should be reasonable, necessary, and proportionate. For these reasons, the CIOR amendment is a draconian Act, which has illegal, embedded new injustices within Australia’s Migration law for more people that Australian Parliament may have ever envisaged. To be precise, in my opinion, and based on the facts, there are several problematic issues with this amendment, which are:

1.    The CIOR provides no sustainable alternative for a genuine refugee like me who is assessed (ITOA) as engaging Australia’s protection obligations and whilst was holding 866 Permanent Protection Visa.

2.    Even if I, as a person to whom Australia owes non-refoulement obligations is not removed as a consequence of visa cancellation, my indefinite detention raises concerns about breaches of Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which recognises the rights to liberty and security of the person. This Article prohibits arbitrary arrest and detention and obliges the Australian government to allow those refugees who are deprived of their liberty to challenge their detention through the courts. To the contrary, the CIOR Act does not provide any judicial review of my indefinite ‘life sentence’ in a detention centre.

3.    The consequences of CIOR are contrary to Australia’s obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment (CAT). Authorising and applying a ‘life sentence’ in detention on me without any charge constitutes as cruel, inhuman, and unjust punishment, because it is an arbitrary detention that is inflicting daily mental and physical torture, particularly when considering my health and old age.

4.    There are significant impracticalities and inefficiencies in the process of applying this amendment. To be precise, the Department of Immigration (Department) must constantly assess me for another visa or removal to a safe country; and if no country can be found, my ‘life sentence’ will continue until I die in detention. The practicality of continuous assessment by the Department, or offering me another type of protection visa, or potential acceptance and transfer to a third country are extremely remote.

5.    This legislation exposes the Australian government’s willingness to leave growing numbers of refugees languishing in detention without any plan. In fact, it leads to warehousing many refugees like me in detention centres with considerable financial costs to taxpayers and burden to the staff at the Department, and Australian Border Force in detention centres.

6.    The CIOR amendment is having grave psychological effects on refugees, including me. This comment reflects the opinion of many refugees in Yongah Hill Immigration Detention Centre whom I talked to and asked about spending the remainder of their life in a detention centre. We are unanimously horrified about our future.

7.    The consequences of the CIOR Act are also inconsistent with the practices in other democratic countries. They impose statutory time limits on immigration detention of refugees and allow judicial oversight of such detention. In fact, democratic commonwealth countries, such as the United Kingdom, Canada and New Zealand provide a range of preferable alternatives, that avoid both refoulement and indefinite detention. These countries strictly follow international law and have adopted policies that ensure detainees with a criminal history can be assessed and then released into the community, with any potential risk managed through humane conditions of their release.

Based on the above reasons, the CIOR amendment is fundamentally flawed. This was the reason that the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills expressed significant concerns about the consequences and legality of this amendment to the Migration Act. In its latest report, Australian Human rights Commissioner Rosalind Croucher also raised alarm over the CIOR amendment and potential ‘arbitrary detention’ of refugees in detention centres. In addition, 33 organisations and individuals who are experts in refugee and migration law and policy recently signed a statement expressing the view that the CIOR amendment is contrary to its stated intention, especially when its effects, are retrospective.

Based on the facts that are noted in this Presentation, I request to the Honourable Decision-maker to revoke the cancellation of my Permanent Protection visa Subclass 866, because no other humane alternative solution exists. The consequence of declining to revoke the cancellation of my visa means, that the Honourable Decision-maker will subject me to a ‘life sentence’ until I die in detention. The option of another type of visa or sending me to another country are just illusions, do not exist and will never eventuate.

(Footnotes omitted.)

13    The weight to be given to the applicant’s detention was also taken up in the statement of facts, issues and contentions relied on by the applicant before the Tribunal. By that document the applicant contended that because he had been recognised as a refugee who was entitled to protection, the effect of s 197C(3) of the Migration Act was that there was no expectation that he would ever be removed from Australia. The applicant contended that a refusal to revoke the cancellation of the applicant’s protection visa meant indefinite detention and “a life/death sentence in immigration detention for the applicant”. It was contended that as an effective second punishment, such detention would be unlawful.

14    The Tribunal found that the protection of the Australian community from criminal or other serious conduct weighed very substantially against granting the visa.

15    The Tribunal considered the applicant’s criminal history and his behaviour in custodial settings: R[54]-[59]. The Tribunal also noted that the applicant had entered Australia on a fraudulent passport and, in doing so, provided false information in an official context: R[65], citing Direction No 90 at para 8.1.1(1). The Tribunal held that the applicant’s premeditated murder of his wife was a serious example of an extremely serious crime, and characterised the applicant’s offending and other misconduct as extremely serious: R[61], [66].

16    In relation to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal considered that the applicant had displayed aggressive, threatening, abusive, confrontational, and anti-social behaviours. Claims that the applicant had made about developed insight and rehabilitative progress were contradicted by his persistent objectionable behaviour: R[100]. The Tribunal found the applicant’s expressions of remorse unpersuasive: R[103]. The Tribunal found that the applicant’s recidivism risk was at least moderate. The Tribunal found that the extremely serious nature of his past offending and significant risk of harm from any repetition were such that the applicant’s conduct fell into a category of harm where any risk of it being repeated was unacceptable: R[111].

17    In relation to the consideration concerning the seriousness of crimes of violence against women or children, the Tribunal stated that the family violence consideration referred to in Direction No 90 weighed very substantially “against non-revocation” [sic]: R[120]. This must be a typographical error given the Tribunal’s reasoning at R[116]-[119] which referred to the “devastating pervasiveness of violence against women and girls” and in which the Tribunal stated that “[p]remeditated murder of a spouse constitutes family violence of the most extreme kind”.

18    The Tribunal considered that the extremely serious nature of the applicant’s offending and other conduct was such that the applicant should expect to forfeit the privilege of remaining in Australia. The Tribunal considered that the applicant’s offending was so serious that even opposing considerations were insufficient to outweigh it. The Tribunal gave very substantial weight to the expectations of the Australian community in favour of refusing to revoke the cancellation of the visa: R[135].

19    In relation to the other considerations, the Tribunal found that the applicant was a person in respect of whom Australia owes non-refoulement obligations: R[147]. The Tribunal noted that because of s 197C(3) of the Act, the duty to remove the applicant under s 198 of the Act did not apply in his circumstances and that removal from Australia was not an immediate legal consequence of an adverse decision. However, the Tribunal considered that as a corollary there was a likelihood that the applicant would be subjected to prolonged or indefinite detention in the event of an adverse decision on his application: R[141]. The Tribunal was not prepared to engage in speculation about future events, noting the short statutory timeframe in which a decision had to be made: R[142]-[144]. The Tribunal accepted that there was no current evidence about potential ways the applicant might be released from detention in the event of an adverse decision, and that he would likely continue to be detained for an indeterminate period: R[148]. The Tribunal gave international non-refoulement obligations the weight of a primary consideration and found that this consideration weighed very substantially in favour of revocation: R[149]. The Tribunal did not accept that an adverse decision inevitably consigned the applicant to “life” in detention, stating that it was unable to predict future events: R[172].

20    The terms of the Tribunal’s reasoning leading to these conclusions are important, and therefore I will set out R[143]-[144] (footnotes omitted) –

143.    The existence of non-refoulement obligations alone does not give rise to indefinite detention. Moreover, in contrast with the assessment undertaken for recidivism risk, which is often informed by past convictions and expert evidence, considering the duration of a non-citizen’s detention encompasses future-focussed factors such as applications yet to be made, ministerial discretion yet to be considered, potentially changed circumstances in a receiving country, the possibility of third-country relocation, voluntary request for removal, and other irresoluble branches and sequels of future events. This task is only exacerbated by the short statutory timeframe in which decisions must be made; in this case one working day after the hearing ends.

144.    Having identified some of the potentialities, however, the Tribunal is not required to engage in speculation or fact-finding about future events, and respectfully adopts the reasoning in Ali v Minister for Immigration and Border Protection (Ali):

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

21    The Tribunal then went on to state at R[147]-[149] –

147.    The Tribunal accepts the Applicant is a person in respect of whom Australia owes non-refoulement obligations. Irrespective of future decisions yet to be made or options that might emerge, non-revocation would be a significant, adverse outcome for him. It gives rise to continuing and indeterminate deprivation of his personal liberty, with potentially significant impacts on the Applicant’s health, wellbeing, and ability to advance his study aspirations.

148.    The Tribunal accepts there is no current evidence about potential ways the Applicant might be released from detention in the event of an adverse decision. His detention is now approaching three years, and, on current facts, will likely continue for an indeterminate period if an adverse decision is made. This may result in a deterioration of his mental health.

149.    The Tribunal finds that in the specific circumstances of this case, including because of the prospect of indefinite detention, this consideration assumes the weight of a primary consideration and weighs very substantially in favour of revocation.

22    In rejecting the applicant’s claim that an adverse decision would consign him to life in detention, the Tribunal stated at R[172] –

172.    Mr Turner submitted that the authorities cited by the Tribunal were distinguished from the Applicant’s circumstances because they did not relate to indefinite detention for the “rest of the Applicant’s life”. The Tribunal is unable to predict future events but for the reasons previously adduced, does not accept an adverse decision inevitably consigns the Applicant to “life” in detention. It is also clear the statutory purpose of executive detention is “not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power”. No weight is placed on this consideration.

(Footnotes omitted.)

23    In its conclusions at R[175], the Tribunal stated –

175.    The Applicant is owed non-refoulement obligations and non-revocation would represent a significant, adverse outcome for him. It gives rise to the prospect of indeterminate deprivation of his personal liberty, with potentially significant impacts on his physical and mental health. …

24    The Tribunal addressed a submission by the applicant that his detention constituted “an effective second punishment” and was therefore “unlawful”. In doing so, the Tribunal referred in footnote (251) to three paragraphs of the applicant’s statement of facts, issues and contentions where submissions to this effect were made. The Tribunal did not accept the applicant’s contention that his detention was unlawful or a second punishment and placed no weight on this representation: R[170]-[172].

25    Having weighed all relevant considerations individually and cumulatively, the Tribunal found there was not another reason why the mandatory cancellation of the applicant’s visa should be revoked. That was because the three relevant primary considerations considerably outweighed the combined weight to be given to international non-refoulement obligations, which was afforded the weight of a primary consideration, and the other consideration in favour of revocation: R[179]. The Tribunal affirmed the delegate’s decision: R[180].

Constitutional limitations on executive detention

26    The Tribunal’s decision, and the initial submissions in this proceeding, occurred before the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 (NZYQ).

27    In NZYQ, the Court in a joint judgment held that there were constitutional limitations on the continuing executive detention of unlawful non-citizens that is authorised by ss 189(1) and 196(1) of the Migration Act. In substance, the Court held that continuing detention under those provisions is unlawful if there is no real prospect of removal of the unlawful non-citizen becoming practicable in the reasonably foreseeable future. That may occur in a case such as NZYQ, where a person has been recognised under domestic law as being owed protection obligations, and by reason of that fact and the person’s offending, there is no country to which the person can practicably be removed. The underlying reasoning of six members of the Court was that detention in these circumstances cannot be incidental to the purpose of making the alien available for deportation, or to prevent the alien from entering Australia or the Australian community pending the making of a decision as to whether the alien will be allowed entry, being two legitimate reasons for executive detention identified in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. In coming to these conclusions, the Court overruled Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb). The Court at [55] expressed the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end “when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future”. For these reasons, and having regard to the operation of s 3A of the Migration Act, ss 189(1) and 196(1) were held not to apply to the plaintiff NZYQ, and therefore his detention at that point in time was not authorised. The Court noted at [73] that this finding could not affect the validity of those provisions in their application to authorise detention in other circumstances.

28    After NZYQ was decided, this Court was advised by email from the Minister’s solicitors that the applicant had been released from immigration detention and resided within the community. However, this is not formally the subject of any evidence before the Court, and for the reasons given by Kennett J in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 (AJN23) at [24], even if this fact were properly before the Court, it would not be relevant to the applicant’s claims of jurisdictional error in the Tribunal’s decision, which is to be assessed at the time the decision was made.

29    I gave leave on the papers for the parties to file supplementary written submissions addressing NZYQ, and the applicant and the Minister took up that opportunity. The applicant’s submissions sought leave to file a further amended originating application to raise formally as grounds of the application some of the points the subject of submissions. In responding submissions, counsel for the Minister did not address the question of leave to amend, but addressed the substance of the arguments. In these circumstances, I give leave to the applicant to amend further the originating application, and I will address all the grounds that are maintained.

The applicant’s grounds

30    The applicant’s further amended application raises grounds of claimed jurisdictional error that can be grouped into three topics: (1) legal unreasonableness; (2) failure to take account of mandatory relevant considerations; and (3) error of law. During the course of the hearing, counsel for the applicant abandoned Grounds 4, 6, 7 and 8(b) of the amended originating application. I will consider the remaining grounds, including the new grounds, in turn.

The principles applicable to review by the Court on the ground of jurisdictional error

31    The evaluation of the applicant’s representations, and the question of satisfaction that there was “another reason” why the cancellation of the applicant’s protection visa should be revoked were matters for the Tribunal to consider in the exercise of its executive review function conferred by s 500 of the Migration Act. It is not for the Court to consider the merits of the applicant’s representations: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [23] (The Court). Although the discretion under s 501CA(4) of the Act is wide, it is to be exercised by considering the claims put forward by the applicant by his representations. While the representations as a whole must be considered, not every statement within the representations is a mandatory relevant consideration: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (Plaintiff M1) at [21]-[22] (Kiefel CJ, Keane, Gordon and Steward JJ).

32    In addressing the applicant’s grounds of jurisdictional error, I have had regard to the principles essayed in Plaintiff M1 at [21]-[27] concerning the obligations on a decision-maker to consider the representations of a former visa-holder upon making a decision whether to revoke the mandatory cancellation of a visa pursuant to s 501CA(4). Those principles include the following –

(a)    a decision-maker must read, identify, understand, and evaluate the representations;

(b)    decision-makers must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them;

(c)    from that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate;

(d)    the weight to be afforded to the representations is a matter for the decision-maker;

(e)    the decision-maker is not obliged to make actual findings of fact as an adjudication of all material claims made by a former visa holder;

(f)    the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness;

(g)    what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations, and the requisite level of engagement will vary, among other things, according to the length, clarity, and degree of relevance of the representations; and

(h)    if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked, or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa-holder, that may give rise to jurisdictional error.

33    The Tribunal’s decision under s 501CA(4) involved the exercise of a wide discretion: Plaintiff M1 at [22]. Within the applicant’s grounds is a claim that the Tribunal’s decision, in its outcome, was legally unreasonable. It is an incident of common law principles of statutory interpretation that it is an implied condition of the Tribunal’s statutory function that the review must be undertaken rationally and reasonably. A complementary implication is that the threshold of unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J). The high threshold to establish that an executive decision in its outcome is legally unreasonable has been expressed in different ways. A decision that is legally unreasonable has been characterised as one which is arbitrary or capricious or which abandons common sense, or involves an exercise of power in a way that no reasonable person could exercise it: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [123] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] (French CJ) and [72] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10]-[11] (Kiefel CJ), [51]-[52] (Gageler J), [82] (Nettle and Gordon JJ), and [134] (Edelman J).

34    There are further implications on the lawful exercise of the Tribunal’s review function, including that the review must be undertaken on a correct understanding of legal principles, correctly applied: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29] (Kiefel CJ, Gageler and Keane JJ).

35    Not every error will be jurisdictional in nature. Ordinarily, a statute will incorporate a threshold of materiality in the event of non-compliance with an express or implied condition of the decision-making function: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

36    All these principles find their place alongside the principle that the court is not astute to discern error in the reasons of an administrative decision-maker: Plaintiff M1 at [38].

Legal unreasonableness – Ground 1

37    By Ground 1 the applicant claimed that the Tribunal’s decision was legally unreasonable or irrational, relying on the following particulars –

(a)    The Tribunal accepted that if it did not revoke the cancellation of the Applicant’s protection visa (“the visa”), the Applicant would remain in immigration detention indefinitely. But indefinite detention is unlawful. (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”).

(b)    Further to particular (a) to this Ground, the Tribunal accepted (for example [at [147]) that continuing indefinite detention of the applicant has “significant impacts on the Applicant’s health, wellbeing…” and (at [175]) that such indefinite detention will potentially significantly impact on his physical and mental health.

(c)    Further to particulars (a) and (b) to this Ground, a decision not to revoke the cancellation of the visa, meant that there was real possibility that the Applicant would spend the rest of his life in detention.

(d)    It was legally unreasonable for the Tribunal not to find that the circumstances set out above, separately or in combination, were another reason to revoke the cancellation of the visa.

38    In support of Ground 1, counsel for the applicant submitted at the hearing of the application that a decision not to revoke the cancellation of the applicant’s visa meant that there was a real possibility that the applicant would spend the rest of his life in detention. This was the premise of a submission to the Court that there was a possibility that the applicant would be deprived of his liberty for the rest of his life, which would have a deleterious effect on his physical and mental health. It was submitted that, having regard to the statutory context, it was legally unreasonable for the Tribunal not to find that the circumstances relied on, separately or in combination, were another reason to revoke the decision to cancel the applicant’s visa.

39    Following the decision in NZYQ, in supplementary written submissions the applicant argued that it was outside the bounds of reasonableness, and legally unreasonable, for the Tribunal to make a decision which had the practical consequence that the applicant would be detained indefinitely, and therefore unlawfully.

40    Both ways in which the applicant advanced his claim that the Tribunal’s decision was legally unreasonable were directed to claiming that there was an unreasonable outcome. That is, that the decision not to revoke the cancellation of the applicant’s visa was itself unreasonable having regard to all the circumstances. This amounted to a claim that, rather than giving very substantial weight to the prospect of an indeterminate period of executive detention, the Tribunal should have given this factor overriding or determinative weight. In oral argument, counsel for the applicant accepted that the applicant’s claim amounted to saying that there was only one reasonable outcome, namely revocation.

41    I do not accept the applicant’s claim that the Tribunal’s decision was affected by legal unreasonableness. The starting point is to identify what the Tribunal decided, and then to identify what the Tribunal held in relation to the applicant’s claims about the prospect of indefinite detention.

42    As to what the Tribunal decided, it was not the Tribunal’s function on review to decide whether the applicant should be detained. The Tribunal’s function was to decide for the purposes of s 501CA(4) of the Act, and on the assumption that the applicant did not pass the character test, whether there was “another reason” why the mandatory cancellation of the applicant’s visa should be revoked, having regard to the representations made by the applicant, the legal consequences of the Tribunal’s decision, and the matters to which Direction No 90 required the Tribunal to have regard. The detention of the applicant was a result of the application of ss 189(1) and 196(1) of the Migration Act to the applicant. The detention of the applicant fell to be considered by the Tribunal as being relevant to its decision, because it was a likely legal consequence of its decision and was the subject of the applicant’s representations. However, the jurisdiction that the Tribunal was exercising was to determine whether the cancellation of the applicant’s visa should be revoked.

43    I referred to the Tribunal’s findings in relation to the prospects of detention for the applicant at [19]-[22] above, setting out the key passages. It is important to read the Tribunal’s reasons as a whole in order to appreciate what the Tribunal conveyed by its references to a period of indeterminate or indefinite detention. It is clear that the Tribunal did not equate an indeterminate or indefinite period of detention with permanent detention. Rather, it was referring to a period of detention with no fixed termination point: cf WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 at [108], [122]-[123], [132] (Kenny and Mortimer JJ). At R[143]-[149], the Tribunal approached the potential period of detention on the basis that it could not be reliably ascertained on the evidence before it, and it declined to speculate about the course of future decision-making and potential changed circumstances. This was for reasons including the short time-frame available to the Tribunal for the making of its decision having regard to the time limit in s 500(6L), to which the Tribunal referred at R[143].

44    Upon addressing the applicant’s representations, the Tribunal’s decision not to speculate about the likely length of the applicant’s detention was a course that was open to it on the material before it. See, in allied contexts: Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [33] (Flick J); MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; 283 FCR 525 at [149]-[150] (SC Derrington J, Perram J agreeing at [1]); BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 at [15]-[17] (Thawley, Stewart and Cheeseman JJ); RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32]-[33] (Nicholas, Yates and Burley JJ). Nevertheless, the Tribunal accepted that detention of the applicant would likely continue for an indeterminate period if the decision to cancel the applicant’s visa was not revoked. The Tribunal accepted that a period of prolonged detention for an indeterminate period of time would have potentially significant effects on the applicant’s physical and mental health, and that this weighed very substantially in favour of revocation. However, the Tribunal did not accept that the applicant would face “life” in detention, which was a contention that the applicant had made.

45    The Tribunal’s reasoning proceeded on the basis that detention of the applicant for an indeterminate period was lawful, and at footnote (253) cited the decisions of the High Court in Al-Kateb and Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 (Falzon) in support. The Tribunal’s reasons did not refer to the possibility that at some point in time ss 189(1) and 196(1) of the Migration Act might cease to apply to the applicant because of the operation of s 3A of the Act on the ground that the constitutionally permitted period of detention would lapse. This was unremarkable given the state of High Court authority at the time and the content of the representations made on behalf of the applicant. Nonetheless, as Kennett J observed in AJN23 at [21], the decision in NZYQ did not change the law. NZYQ does not operate only prospectively, and it must be taken to state the law as it applied at the time of the Tribunal’s decision.

46    The result is that the legal consequences of the decision of the Tribunal to refuse to revoke the cancellation of the applicant’s visa were as follows: (1) as a result of the operation of s 197C(3) of the Migration Act, the applicant would not be removed to Iran because a protection finding had been made in his favour, and by reason of the ITOA assessment, he remained a person in respect of whom a protection finding was made; (2) the applicant might be removed to some other country should another country be willing to receive him; (3) in the interim, the applicant would remain in executive detention for a period that on the evidence before the Tribunal could not reliably be estimated; (4) by operation of s 3A of the Act, the period of detention authorised by ss 189(1) and 196(1) of the Act, in their application to the applicant, was limited by the consideration that during the continuation of the detention there must exist a real prospect of removal of the applicant from Australia becoming practicable in the reasonably foreseeable future; and (5) it was otherwise open to the Minister to grant the applicant some other form of visa in the exercise of personal powers under s 195A of the Act.

47    Nothing decided in NZYQ supports the applicant’s claim that there was any jurisdictional error in the Tribunal’s decision, or in the process of reasoning leading to it. It was not in prospect that a consequence of the Tribunal’s decision was that the applicant would be subject to unlawful executive detention. Indeed, the applicant’s claims before the Tribunal and this Court amount to a contention that a legal consequence of the non-revocation of the cancellation of his visa would be unlawful detention, which is a contradiction. That is why it is important to identify that the Tribunal’s task was not to determine whether the applicant should continue to be detained, but rather to determine whether the cancellation of the applicant’s visa should be revoked. Further, the Tribunal’s function on review did not require making findings of fact that would be material to the questions whether, or when, the constitutionally authorised period of executive detention of the applicant would lapse. That issue was subsumed by the Tribunal’s finding that it would not engage in speculation or fact-finding about the future course of the applicant’s detention.

48    The assumptions underlying the applicant’s claim that the Tribunal’s decision was legally unreasonable are therefore flawed. As I have explained, the applicant would not be subject to unlawful detention, and the Tribunal did not find that the detention of the applicant would be permanent. While the Tribunal held that the period of detention was indefinite, or indeterminate in the sense I have explained, it declined to speculate as to the future course of events, which was a course open to it.

49    It follows that the resolution of Ground 1 is not complicated. Having regard to all the circumstances, and in particular the Tribunal’s findings as to the significant matters that weighed against revocation, such as the seriousness of the applicant’s offending involving the premeditated murder of his wife of the most extreme kind, the Tribunal’s decision not to give executive detention and its potentially significant effects on the applicant’s health more weight than the very substantial weight that it did, was well open to the Tribunal. The applicant’s claim of legal unreasonableness in the outcome of the Tribunal’s evaluation does not approach the threshold necessary to show that the Tribunal’s decision was not within the range of decisions authorised by the Act.

Relevant considerations – Ground 2

50    Ground 2 is in the following terms –

2.    The AAT considered the prospect of the applicant being detained indefinitely, but erred in not considering that a decision not to revoke the cancellation of the applicant’s visa may as a real possibility cause the applicant to spend the rest of his life in detention, and die in detention, because of the existence of non-refoulement obligations and possibly no alternative options to detention. (CB 580-585) …

51    I reject Ground 2. The Tribunal engaged with the applicant’s claim that he would spend life in detention, and at R[172] specifically rejected it. Otherwise, the Tribunal considered the applicant’s claims about his likely period of future detention, and declined to speculate as to its course, which was an outcome within jurisdiction.

Relevant considerations – Ground 2A

52    Ground 2A was introduced by the applicant by amendment following the High Court’s decision in NZYQ and is in the following terms –

2A.    The Tribunal did not consider that indefinite detention is unlawful. (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”) …

53    In support of Ground 2A, the applicant submitted that the Tribunal was obliged to consider whether a decision not to revoke the cancellation of the visa would have the practical consequence that the applicant would be detained unlawfully.

54    The applicant represented to the Tribunal that his continued detention was unlawful. The Tribunal rejected that claim, citing the High Court’s decisions in Al-Kateb and Falzon. The Court’s later decision in NZYQ does not gainsay the Tribunal’s conclusion. NZYQ does not stand for the proposition that, in some generic way, indefinite detention in the sense considered by the Tribunal in this case, that is, detention of unfixed duration, is unlawful. That is clear from [73] of the Court’s reasons, where the Court stated that the invalidity of ss 189(1) and 196(1) of the Migration Act in their application to authorise the detention of the plaintiff in that case, “cannot affect the validity of those provisions in their application to authorise detention in other circumstances”.

55    Further, and as I have held above, unlawful detention could not be a legal consequence of the Tribunal’s decision, and the legality of the continued detention of the applicant, as opposed to a consideration of its likely duration, was not an issue that was within the review jurisdiction that the Tribunal was exercising.

56    To the extent that it might be said that the Tribunal did not give specific attention to the prospect that the applicant’s period of detention might end upon ss 189(1) and 196(1) of the Act ceasing to apply to him, that issue is to be regarded as subsumed by the field of contingencies about which the Tribunal declined to speculate, and there was no jurisdictional error in taking that course. However, it does not appear that the applicant advances that claim as a ground of jurisdictional error. Any such claim would be difficult to sustain for the additional reason that it is not easy to see without the benefit of argument how there would be a realistic possibility that the decision made in fact could have been different if the Tribunal had turned its mind specifically to the possibility that the constitutionally authorised period of detention applicable to the applicant would lapse: see LPDT at [14].

Relevant considerations – Ground 3

57    Ground 3 is in the following terms –

3.    The AAT failed to consider whether indefinite detention of the applicant would be a breach of Australia’s international obligations, including under Article 9 of the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as submitted by the Applicant (CB580-682), or under Articles 7, 26 or 31 of the Convention Relating to the Status of Refugees.

58    The applicant submitted that while the issue of Australia’s international obligations was not of itself a mandatory relevant consideration for the Tribunal except so far as they are enacted by domestic law, they were raised by the material before the Tribunal. The applicant submitted that the international obligations arising under Articles 7, 26 and 31 of the Refugees Convention raised questions squarely on the material before the Tribunal, and submitted that these obligations were made relevant by Direction No 90 under the non-refoulement consideration. The applicant submitted that the question of the possible indefinite or life-long detention of the applicant required the Tribunal to consider the questions posed by the international agreements cited above, but the Tribunal did not do so.

59    The applicant submitted to the Court, presumably on the question of materiality, that the prospect of Australia contravening its solemn promises to the international community weighed heavily in favour of revocation, citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 (FAK19), and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 (CWY20) at [3].

60    I do not accept that Ground 3 is established. That is for two principal reasons. The first is that the Tribunal did not accept the premise of the applicant’s claim that indefinite detention of him would place Australia in breach of Australia’s international obligations. The second is that indefinite detention in the sense advocated on behalf of the applicant was not a legal consequence of the Tribunal’s decision.

61    It was not in issue before the Tribunal that the applicant would be removed to Iran: the review proceeded on the basis that the applicant would not be removed to Iran. Rather, the relevant focus of the applicant’s claims was continuing detention. This directed attention to the applicant’s claims concerning indefinite detention, rather than the non-refoulement considerations in Direction No 90, which (unlike an earlier direction, Direction No 79) makes no express reference to indefinite detention.

62    I set out at [12] above the applicant’s representations. The applicant claimed that he would be detained for the rest of his life, and that the amendments to the Migration Act effected by the Migration Amendment (Clarifying International Obligations for Removal) Act were “illegal”. The applicant stated that his indefinite detention raised concerns about breaches of Article 9 of the International Covenant on Civil and Political Rights, which recognises the rights to liberty and security of the person. The applicant also claimed that the consequences of the amendments were contrary to obligations arising under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There were two themes underlying these representations: (1) that the applicant would face “life” in detention; and (2) continued detention was having grave psychological effects on the applicant.

63    The Tribunal referred to these representations at R[29]. The proper inference from R[29], read in the context of the whole of the statement of reasons, is that the Tribunal identified and read the representations. The Tribunal then addressed the applicant’s claims concerning indefinite detention at R[141]-[149] and [172], to which I referred at [19]-[22] and [43]-[44] above. The Tribunal did not accept that the applicant would face indefinite detention, and specifically rejected his claim that he would face life in detention. At R[172] the Tribunal alluded to the pertinent observation of Colvin J in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; 181 ALD 49 at [19] that “the statutory purpose of executive detention under the Migration Act is to effect removal not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power”. The applicant’s claim that his continuing detention would be unlawful was specifically addressed by the Tribunal and rejected at R[171]. However, as I have noted, unlawful detention could not be a legal consequence of a refusal to revoke the cancellation of the applicant’s protection visa. Having approached the issues in this way, the applicant’s criticisms of the legislation, and his claims that Australia might be in contravention of international obligations should he be detained indefinitely and for the rest of his life did not arise. The applicant linked his representations of “arbitrary detention” in breach of international obligations to his claim that he would face detention “for the rest of my life, until I die”. The Tribunal’s consideration of those representations was subsumed by its rational and reasonable rejection of the underlying premises of the representations, with the result that the representations did not in the circumstances require any greater level of engagement: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] (French, Sackville and Hely JJ); ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 at [6]-[9] (Mortimer, Colvin and O’Sullivan JJ); Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431 at [50]-[53] (Katzmann, Jackson and McEvoy JJ). And the question of a potential breach of international obligations did not arise as a mandatory relevant consideration other than by reference to the terms of the applicant’s representations.

64    As for the Full Court’s decisions in CWY20 and FAK19 which counsel for the applicant cited, they both pre-date Plaintiff M1. As I stated earlier, it appeared that counsel for the applicant relied upon them as going to materiality. That issue does not arise, because I have rejected the applicant’s claim that the Tribunal failed to consider his representations that indefinite detention would place Australia in breach of its international obligations. In any event, there are reasons to doubt that CWY20 survives Plaintiff M1: see BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609 at [139] (Bromwich and Kennett JJ, Perry J contra at [136]). And the relevant paths of reasoning in FAK19 were expressly disapproved in Plaintiff M1 at [32]-[35] (Kiefel CJ, Keane, Gordon and Steward JJ).

Relevant considerations – Ground 5

65    Ground 5 is in the following terms –

5.    The Tribunal considered it adverse to the Applicant and relevant to the Nature and seriousness of the conduct that the Applicant had entered Australia on a false passport (CB 1657, Decision [57]), but did not consider this in the context of him as a person later determined to be a refugee or to have a real chance of persecution or a real risk of significant harm and to be owed protection by Australia.

66    The Tribunal referred to the applicant arriving in Australia on a fraudulent passport in several places in its reasons. As I have mentioned, the Tribunal referred to the applicant’s false passport in the context of other conduct in addition to his criminal history: see R[57] and [60]. By way of summary, the Tribunal stated at R[160] –

The Applicant arrived in Australia as a mature man in his 30s and on a fabricated passport. He lived here illegally for a time before regulating his visa status. He murdered his wife within approximately seven years of arrival. His 30-year residence has mostly been spent in custodial settings.

67    In support of Ground 5, counsel for the applicant submitted that the Tribunal considered it adverse to the applicant and relevant to the nature and seriousness of the applicant’s conduct that the applicant had entered Australia on a false passport, but did not consider this in the context of the applicant as a person later determined to be a refugee, or to have a real chance of persecution, or a real risk of significant harm and to be owed protection by Australia. In oral argument, counsel for the applicant accepted that the Tribunal was obliged to consider whether the applicant had provided false or misleading information to the Department in an official capacity: see Direction No 90 at para 8.1.1(1)(f).

68    The fact that the applicant had arrived in Australia on a false passport was referred to in the ITOA assessment, and was raised as an issue before the Tribunal by the Minister’s statement of facts, issues and contentions at [6.5] and [27]. Because the relevance of the applicant’s fraudulent passport to the Tribunal’s review was a matter raised by the Minister before the Tribunal, and because the applicant was legally represented, he had fair notice of its potential relevance. It is apparent from the Tribunal’s reasons that the applicant gave evidence before the Tribunal, and that closing submissions were made by the parties’ representatives. I was not taken to any representation of the applicant that addressed the Minister’s contention concerning the relevance of his fraudulent passport. Further, counsel for the applicant accepted in oral argument that the submission now put to the Court was not put to the Tribunal. Instead, counsel submitted that the context in which the applicant had arrived on a false passport arose squarely from the material before the Tribunal, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, where at [58] the Full Court held that the Refugee Review Tribunal was under an obligation to consider an unarticulated claim raised “squarely” on the material before it.

69    I am unable to accept that the applicant’s claims concerning the context in which he arrived in Australia on a fraudulent passport arose squarely on the material before the Tribunal in circumstances where the applicant was legally represented, gave evidence to the Tribunal, and where there were closing submissions. All these steps had the effect of shaping the applicant’s representations: see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [65] (Bromwich and Wheelahan JJ). In these circumstances, the requisite level of engagement that was referred to in Plaintiff M1 at [25] did not require the Tribunal to consider or give weight to these unarticulated matters, as they did not form part of the applicant’s representations. This ground of jurisdictional error amounts to no more than a submission that the Tribunal should have placed a different complexion on the fact that the applicant arrived in Australia on a fraudulent passport. The applicant has therefore failed to establish that the Tribunal acted in excess of jurisdiction in treating the applicant’s fraudulent passport in the manner it did.

Error of law – Grounds 8(a) and (c)

70    By Ground 8, the applicant claimed that the Tribunal had erred in interpreting or applying the law, relying on the particulars set out in paragraphs (a) and (c) under Ground 8. As I mentioned earlier, Ground 8(b) was abandoned during the course of argument.

Ground 8(a)

71    Ground 8(a) is in the following terms –

(a)    The Tribunal erred in interpreting or applying the primary consideration of the Expectations of the Australian Community, because that primary consideration is relevant to the purpose of the Act in section 4, namely to “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”, but the decision to be made by the Tribunal would not and could not affect whether the Applicant would remain in Australia, but only whether he would be in immigration detention or at liberty. The Tribunal therefore erred to find that this primary consideration could weigh against revocation of the cancellation of the visa.

72    Under s 499(2A) of the Migration Act, the Tribunal was required to comply with a ministerial direction made under s 499(1). In this case, the applicable direction was Direction No 90, which referred at para 5.2 to principles that provided a framework within which decision-makers should approach their task, and in Part 2 identified factors that must be considered in making a decision. The principles in para 5.2 include the following –

...

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

...

73    Paragraph 8.4(1) of Direction No 90, which is within Part 2, refers to the expectations of the Australian community, which is a primary consideration by operation of para 8(4) –

8.4    Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

...

74    The Tribunal applied the principles in para 5.2 and the expectations of the Australian community identified in para 8.4 in stating at R[135] –

The extremely serious nature of the Applicant’s offending and other conduct is such that he should expect to forfeit the privilege of remaining in Australia: cls 5.2(1)-(2). It is so serious that even countervailing considerations are insufficient: cl 5.2(5) of the Direction. That is so despite the Applicant spending a long period of time in Australia and the other positive aspects of his case. This primary consideration weighs very substantially against revocation.

75    In support of Ground 8(a) counsel for the applicant submitted that the Tribunal erred in interpreting or applying the primary consideration of the expectations of the Australian community, because that primary consideration is relevant to the purpose of the Migration Act in s 4, namely to “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. Counsel submitted that the decision to be made by the Tribunal would not and could not affect whether the applicant would remain in Australia, but only whether he would be in immigration detention or at liberty. It was submitted that the Tribunal therefore erred in finding that this primary consideration could weigh against revocation of the cancellation of the visa. In oral argument, counsel for the applicant explained the submission as being that the decision of the Tribunal would not determine whether the applicant would remain in Australia or not, but on the Tribunal’s findings relating to the question of indefinite detention the Tribunal would in fact determine whether the applicant would be at liberty or not. It was on this basis that counsel submitted that the Tribunal had erred in applying the primary consideration of the expectations of the Australian community.

76    Ground 8(a) is without merit. I have already referred at [42] above to the subject matter of the Tribunal’s decision, which was to determine for the purposes of s 501CA(4) of the Migration Act whether there was “another reason” why the mandatory cancellation of the applicant’s visa should be revoked. Direction No 90, by its terms, provided guidance to decision-makers in making such a decision, and the Tribunal was required to comply with it.

77    The immediate effect of a decision of the Tribunal favourable to the applicant to revoke the cancellation of his visa would have been that his detention would cease, and that he would be entitled to remain in Australia as a “lawful non-citizen”. The applicant’s presence in Australia would continue to be subject to the Migration Act and any relevant terms of his protection visa, but the effect of the revocation of the cancellation of his visa would be that he was lawfully entitled to have the privilege of remaining in Australia. The immediate effect of a decision affirming the delegate’s decision not to revoke the cancellation of the applicant’s visa would be the consequences to which I referred at [46] above. Contrary to the applicant’s case, it was not inevitable that the applicant would remain in permanent detention, and he remains liable to be removed from Australia as an unlawful non-citizen in the event that there arise circumstances in the future in which his removal is authorised by ss 197C and 198. The Tribunal adverted to that possibility at R[143], referring to potentially changed circumstances in a receiving country, the possibility of third-country relocation, and a voluntary request for removal.

78    By their terms, the principles in para 5.2, and the expectations of the Australian community identified in para 8.4 related directly to the question whether the applicant should be permitted to remain in Australia, which was the decision that the applicant sought to have made by the Tribunal revoking the mandatory cancellation of his protection visa. There was no error by the Tribunal in the application of these provisions of Direction No 90.

Ground 8(c)

79    Ground 8(c) is in the following terms –

(c)    The Tribunal erred in not correctly interpreting or applying the law in that it did not understand and apply the principle that indefinite detention is unlawful. (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”) …

80    In written submissions in support of Ground 8(c), counsel for the applicant submitted that NZYQ “has revealed that indefinite detention is unlawful”. Counsel submitted that the Tribunal’s decision was made without grasping and applying the law correctly. It was submitted that there had been “an objective failure correctly to interpret and apply the law subsequently revealed in NZYQ”. Counsel submitted in conclusion that the Tribunal’s decision committed the applicant to continue in indefinite detention, and that this detention was unlawful.

81    I am able to deal with Ground 8(c) briefly, because the issues that it raises have been addressed in the course of considering other grounds, and in particular Ground 2A. Ground 8(c) fails for three reasons –

(a)    the Tribunal did not accept that the applicant faced indefinite detention in the way advanced on behalf of the applicant;

(b)    the applicant’s period of detention, although uncertain, was not relevantly indefinite because ss 189(1) and 196(1) are subject to s 3A of the Migration Act, so that in their application to the applicant, lawful continuing detention would come to an end when there was no real prospect of removal of the applicant from Australia becoming practicable in the reasonably foreseeable future; and

(c)    as I have explained, unlawful detention could not be a legal consequence of the Tribunal’s decision.

Conclusion

82    The proceeding will be dismissed, and the applicant will be ordered to pay the Minister’s costs.

Associate:

Dated:    3 May 2024