1. It is conceded by the respondent that the probable effect of affirming the decision under review is that the applicant would be forcibly returned to the Philippines, conduct which would involve a breach by this country of its international obligations under the Refugees Convention. That fact is likely significantly to affect community expectations in my opinion. It would be a matter of real concern if the community learned that Australia had knowingly or deliberately breached its treaty obligations. Such conduct would be regarded as contrary to the best interests of Australia. It would be thought to be likely to cause harm to Australia's international reputation.
2. If, as I have been informed by the respondent, government policy remains that Australia will not refoule non-citizens in breach of its treaty obligations, then a result involving the affirming of the reviewable decision in this case would be all the harder for the community to accept. The government policy of which I have been informed would be regarded as obviously right by this community.
3. Moreover, the applicant has been punished for his offending, he has taken significant steps towards his rehabilitation, he has lived here with all his immediate family almost all his life, and the reason why he was accorded refugee status is that he has a well-founded fear that his life will be at risk if he is returned to the Philippines. To put his life at risk rather than expose the community to a risk that he will offend again, when he has already been punished for his crimes, would seem to most of this community to be wholly disproportionate, and to many to be double punishment. That is not to say that the applicant's level of offending would be seen as other than serious, and if this matter were looked at before 2014, when the applicant began to try to rehabilitate himself, the risk of his offending again would have been seen to be high. In 2018 the position about the risk of his re-offending seems lower, although it has not yet been tested in community conditions.
4. Overall, this factor favours the setting aside of the reviewable decision.

1. The applicant has no children of his own, and is not in a parental relationship with any children. Nevertheless he is the uncle of children born to his younger sister and to his brother. When he was last in the community they were babies, but at Villawood he has come to know them better. His brother has an older son and a younger daughter with whom he has a good and close relationship. He describes his sister's children (both boys) as very outgoing and playful. His sister and mother both confirm the evidence of the applicant as to the strong relationship which has developed between the applicant and them since he has been on the methadone program at Villawood. The children look forward to his release into the community.
2. This factor also favours the setting aside of the reviewable decision, although not strongly, in my opinion.
3. The three factors just considered are called primary factors in the direction. There follows in clause 12 a non-exhaustive list of "other" factors which should be taken into account "where relevant". The first of those is Australia's international non-refoulement obligations.

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

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

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

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

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

1. A number of matters require consideration about this clause of the Direction. I will take them in turn although some necessarily overlap with others

Section 197C and authorities in the Federal Court of Australia

1. Section 197C of the Migration Act provides that

(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.

1. Section 198(2A) Act relevantly provides that "[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen".
2. DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 ('DMH16') concerned a refusal by the Minister personally to grant a protection visa notwithstanding that it had been concluded that the applicant was a person in respect of whom protection obligations were owed by Australia. It was held by North ACJ that the Minister misunderstood s.197C of the Act, he was persuaded by the same view which is stated in the clause 12.1 (6) of the Direction, namely, that the applicant "may face the prospect of indefinite immigration detention because of the operation of s189 and s196 of the Migration Act." North ACJ accepted that the true position was that as things then stood, there was no evidence that it was not reasonably practicable to remove the applicant to Syria. The effect of the Minister's refusal of the visa was that the applicant would be forthwith removed to Syria, and was not that he would face the prospect of indefinite immigration detention. He also held that if the Minister decided to consider granting a visa under s.195A of the Act then the non-citizen could be detained for so long as was necessary for him to complete that consideration, and if he decided to refuse to do so, or to refuse to grant a visa under s.195A, then the effect of s.197C was that there would the arise a duty to remove the applicant forthwith to Syria.
3. This Tribunal is, of course, bound by the decision of North ACJ. It is bound to find that the operation of sections 189 and 196 of the Act does not mean that if the protection visa is refused, the applicant would face the prospect of indefinite immigration detention. Rather, and in the absence of the Minister choosing to exercise his power under s.195A, there would be a duty arising under s.197C immediately to deport the present applicant to the Philippines, at any rate as soon as such removal is reasonably practicable. To that extent, at least, the Direction is inconsistent with the Migration Act and not binding under s.499 of the Act.
4. Other questions were debated before me about whether other aspects of clause 12 ought to be taken to be amended in consequence. Trying to work out the intention of the document in that way seems to me to be very difficult and risks a decision-maker mistaking the task involved. The Direction is, under s.499 of the Act, binding except to the extent to which it is inconsistent with the Act. I am not satisfied that any part of the Direction is inconsistent with the Act other than the words at the end of clause 12.1 (6) which read "the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention".[1]
5. When s.197C was introduced by way of amendment to the Migration Act, the explanatory memorandum stated at paragraph [1142]:

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

1. In the course of his second-reading speech for the bill which introduced s.197C (the Migration and Maritime Powers Legislation Amendment (resolving the Asylum Legacy Caseload) Bill 2014 the Minister said that the changes were "in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia's non-refoulement obligations" identified in any earlier processes. The Minster further stated that "The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant's protection claims has been concluded" (emphasis added).
2. During the hearing of this matter, I enquired of the respondent whether it remained government policy that Australia will not forcibly remove a non-citizen to his or her country of origin if such removal would involve a breach of Australia's international non-refoulement obligations. I was informed by Ms Watson, who took instructions from the Department, that government policy was still to that effect, and I act on that basis.
3. One reason for my enquiry was that Ms Bampton, on behalf of the applicant, queried whether government policy was still to the effect stated in the previous paragraph, and announced to members of parliament by the then Minister in 2014. That is because it is difficult to understand why, in the light of the policy, the respondent opposes this application. The simplest way to give effect to the policy would have been for the respondent to consent to the setting aside of the reviewable decision so as to open the way for the applicant to be granted the protection visa.
4. The government policy in question is restated twice within clause 12.1 of the Direction: See clauses 12.1(2) and 12.1(6). Those statements operate at least as a reminder to decision-makers of the policy when they come to exercise discretions under the clause. Their presence in the Direction, which is made binding by s.499, could possibly be thought to operate as making the government policy binding on decision-makers. That would mean that in an appropriate case, a decision-maker must not refuse to grant a protection visa. That possible view is very hard to justify, when the other provisions of Direction 65 are borne in mind. That is because clause 12.1 states only one consideration which is mandatory to take into account, and there are others, which the direction always requires to be taken into account, where relevant. Since the Direction is binding, the question of its wisdom does not arise for a decision-maker. Leaving it to a member of the executive government to decide whether or not Australia should, or should not, go into breach of an international treaty is curious in the extreme, but that seems to be the effect of Direction 65.
5. The default method by which the clause states that the policy will be given effect to (namely indefinite detention) turns out, in the light of s.197C, as construed in DMH16, to be incorrect. Another view of the clause, either as a matter of construction, or as a matter of the proper exercise of discretion in a particular case, is that in considering whether to refuse to grant a protection visa, the government policy will predispose a decision-maker not to do so. That is, short of binding a decision-maker to take into account the consequences of a breach of a treaty, the decision-maker will be entitled to treat the consideration as a powerful reason not to refuse the grant of a protection visa. Although not necessarily conceding that the proposition is correct as a matter of the proper construction of clause 12, the Minister concedes that it is open to this Tribunal (and, it must follow, to delegates as decision-makers) to give great weight to the non-refoulement consideration.
6. In this Tribunal, although government policy is not, as such, binding on the Tribunal, it is, in general, proper to be taken into account when exercising discretions. This was established in the decision of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 ('Drake's case'). Bowen CJ and Deane J wrote a joint judgment and Smithers J wrote a separate judgment. Bowen CJ and Deane J stated, in the course of their reasons for judgment, that ordinarily:

an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. Clearly, in considering whether a deportation order should be made in respect of the plaintiff in the present matter, the Minister was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or objects of the Migration Act.

1. Their Honours also said, when considering the role of this Tribunal:

In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision.

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.

1. If the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, their Honours said that it is desirable that "the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion".
2. Smithers J stressed in the course of his reasons for judgment, considerations in decision-making by reference to what is seen to be good government in the best interests of Australia, and found that the Tribunal decision had not tested the decision under review against the dictates of good government in the best interests of Australia but rather had exercised a supervisory role inconsistent with the mandate of the Tribunal to form its own independent decision of the correct or preferable result.
3. In Drake's case, the order made by the Full Court was that the matter be remitted to the Tribunal to be reheard. It came on before Brennan J, as President of this Tribunal. His reasons for decision on the remitter are reported in Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (1979) 49 FLR 409; (1979) 2 ALD 634. The judgment is one of importance for many purposes in this Tribunal. For present purposes, it is sufficient to note that His Honour said in the course of his reasons_:_

"Good government", as I understand the Smithers J to use the phrase in Drake's case has to do with balancing the protective effect of a deportation order with those other effects which an order invariably has upon the person to be deported, upon those directly affected by the proposed deportation and upon the community at large. And good government is, of course, in the best interests of Australia.

1. In Gungor and Minister for Immigration and Ethnic Affairs [1980] AATA 32 Smithers J referred to the judgment of Brennan J in Drake's case, and said:

it was pointed out that the learned judge placed great emphasis on consistency which might be achieved by adherence to a policy. Consistency is undoubtedly a virtue. Ultimately however, it must be related to principle and is safely sought by reference to policy only when the policy has passed the test of compatibility with good government and the best interests of Australia.

1. Taking up the same theme in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 305, Smithers J said:

It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.

1. In Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 327 those remarks were approved by Keifel J with whose reasons on this matter Crennan J agreed.
2. The respondent drew attention to the possibility that the Minister may exercise his personal, non-compellable power under s.195A of the Act to grant some kind of visa to the applicant, which might (depending on its terms, which are at large) avoid or defer the consequence of putting Australia in breach of its treaty obligations. This possibility is remote in my opinion. It was described as "a matter of speculation" by the Full Federal Court in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, a case, like the present, where there was not even an indication that the Minister might consider exercising his personal, non-compellable power to act under s.195A. If any such visa was intended to be granted by the Minister, it would have been simple for evidence to that effect to be led before me from an officer of the Department, and none was led.
3. The current guidelines published by the Minister for the exercise of his powers under s.195A would probably not lead to the present application being referred to him by the Department for consideration.
4. The protection visa is the means specifically designated in s.36 of the Act for the purpose of enabling Australia to give effect to its protection obligations. If it is refused, then the applicant is unable to apply for any other visa, except one that would not prevent his removal from Australia. For a decision-maker to rely on the mere possibility that a Minister might in the future take action which there is no obligation on him to take, when exercising a discretion to grant or refuse a protection visa may well amount to a legally unreasonable failure to exercise discretion if, on that account, the decision-maker put the non-refoulement obligations aside.
5. To sum up in relation to the non-refoulement consideration, it is in my opinion there is a very powerful discretionary reason why the reviewable decision should be set aside. A breach of a treaty to which this country is a party is not in the best interests of Australia, it is not consistent with the dictates of good government. The government policy to which I have referred in paragraph 52 above is one entirely consistent with the best interests of the country and with the dictates of good government, and, in the proper exercise of discretion, it, also, ought to be taken into account by decision-makers acting under Direction 65 and s 501(1).

1. This is another mandatory "other" consideration. The applicant's three siblings and his nephews and niece all live here. They are all settled here and would be unable to accompany the applicant back to the Philippines. They have not, in the case of the applicant's siblings, yet become citizens, but they are permanent residents. Their evidence about the impact upon them of the applicant's forced removal is not in contest. If the result were that the applicant suffered injury or death as a result of his return to the Philippines, the impact upon them would necessarily be severe indeed. This factor also favours setting aside the reviewable decision.
2. Drawing together the various mandatory considerations already discussed, the only consideration which supports the reviewable decision is the first, that of protection of the Australian community. All of the others, including some primary considerations, favour the setting aside of the reviewable decision. The non-refoulement consideration in particular strongly favours setting aside the delegate's decision. In my opinion the correct and preferable decision is to set the reviewable decision aside.
3. The decision to refuse the application will be set aside and remitted for reconsideration with the direction that notwithstanding that the applicant does not pass the character test in s.501 of the Act, the discretion in s.501(1) should be exercised in favour of granting his application for a protection visa. That will enable consideration of any other matters arising under the application for a visa.

I certify that the preceding 71 paragraphs are a true copy of the reasons for the decision herein of Deputy President B. W. Rayment

.........................[sgd]...............................................

[1] Since preparing the reasons for decision I have been referred to the decision of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 at paragraphs [148] - [155]. As at present advised, and with respect, the decision of Deputy President Forgie does not cause me to alter what I have written in this paragraph.