CYY21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1672

1. The second complaint, in particular (d) of ground 1 of the Amended Application, is that "the reasoning in WKMZ at [151] was not applicable to the applicant's circumstances". There are two limbs of this complaint as follows.
2. The first limb of the complaint, asserted in the balance of particular (d), is that "the reasons of the Full Court in WKMZ were directed to considering s 197C in a previous form, which no longer applied at the time of the Tribunal's decision". It is stated at AS [13]:

Second, the reasoning in WKMZ at [151] would not be applicable to the Applicant's circumstances at the time of the Tribunal's decision as reasoning in that judgment dealt with an older version of s.197C of the Act prior to the introduction of the amendment to s.197C by way of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).Prior to this amendment, s.197C required the removal of an unlawful non-citizen under s.198 of the Act irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

1. I agree that, at the time the WKMZ Tribunal made its decision and at the time of the Full Court's decision in April 2021, the version of s 197C in paragraph 6 above was in force. In May 2021, s 197C was amended by adding subparagraphs (3)-(9). Some of the additional subparagraphs are set out or summarised in paragraph 7 above. However, as correctly stated by the first respondent at RS [21]-[22], the amendments to s 197C "enhances the Tribunal's point at [51] rather than diminish[es] it" and "the amendment to s 197C assists the respondent's case, not the applicant's case". This is clear from both the text of the additional subparagraphs and the Explanatory Memorandum to the amending Act, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) which stated in part:

Section 197C was therefore not intended to operate to require the removal of a person who had been found to engage non-refoulement obligations ... The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations ...

1. The second limb of the applicant's complaint, explained at AS [12], is:

The reasons of the Full Court in WKMZ at [151] were directed to dealing with reasons given by a Tribunal in the context of dealing with particular claims raised in the context of a decision of a Tribunal to affirm a decision not to revoke the cancellation of a visa under s.501CA(4) of the Act. The nature of a review of s.501CA(4) entails a different exercise of statutory power under the Act and is not analogous to the exercise of discretion to cancel a visa under s.109(1) of the Act.

(a) the WKMZ Tribunal was reviewing a decision of a delegate of the Minister under s 501CA of the Act not to revoke the mandatory cancellation of an applicant's visa under s 501(3A); and

(b) as stated at AS [12], "the nature of a review [under] s 501CA(4) entails a different exercise of statutory power under the Act and is not analogous to the exercise of discretion to cancel a visa under s 109(1) of the Act".

But these propositions do not affect the correctness or applicability of the Tribunal's analysis at [51], including its reference to WKMZ at [151]. As correctly stated by the first respondent at RS [20], "what was stated in [151] of WKMZ is dealing with ss 197C and 198 generally, and is not stated by their Honours to only be relevant to s 501CA(4) of the Act".

1. The third complaint, in particular (e) in ground 1 of the Amended Application, is explained at AS [14]-[15] as follows:

[14] Third, the post-amendment version of s.197C of the Act which applied at the time of the Tribunal's decision still did not operate to prevent the Applicant's removal from Australia to Pakistan. The finding as expressed in [50] of the Tribunal's decision would not have amounted to a protection finding made in respect of the Applicant in relation to Pakistan as defined in s.197C(4)-(7) of the Act as there was no finding made as to the Applicant's satisfaction of the criteria for the grant of a protection visa in s.36 of the Act so as to bring this finding within definition of a protection finding as set out in subsections (4)-(7).

[15] As the only operative protection finding had been made by a delegate of the Minister in respect of the Applicant in relation to Afghanistan as part of the grant of his previous protection visa on 1 June 2012, contrary to the Tribunal's findings at [51]-[52] and [68], s.197C(2) of the Act continued to operate to require the Applicant to be removed in accordance with s.198 of the Act, if his Subclass 155 visa were to remain cancelled. To the extent that the Tribunal's exercise of the discretion to cancel the Applicant's visa was predicated on an assumption that the law would not require him to be removed to Pakistan, this was incorrect and amounted to jurisdictional error.

1. The third complaint appears to be founded on the duty of officers of the Department in s 198(5) of the Act to "remove as soon as reasonably practicable an unlawful non-citizen" who is, among other conditions, "a detainee".
2. However, this third complaint overlooks the combination of the reasoning in WKMZ and the Tribunal's reference at [51] to "Australia's usual policy of not returning people to a country where they may face harm".
3. In relation to the reasoning in WKMZ, the Full Court stated at [107], [113] and [115]:

[107] The approach adopted in decisions to date is that after the final conclusion of any visa refusal or cancellation process, ss 197C and 198 do not preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia (or other options such as admission to a safe third country).

[113] ... ss 197CC and 198 do not preclude the continued detention of a person while the Minister considers the exercise of the personal powers conferred by ss 48B, 195A or 417 of the Act ...

[115] ... The use of the statutory phrase "as soon as reasonably practicable" in s 198 is to be understood as allowing for the duties in s 198 to remove a person to be performed in a way which accommodates other aspects of the statutory scheme of the Migration Act, and - for that matter - other relevant and non-statutory exercises of executive power, such as inquiries about whether there is a third country which may be willing to accept a person removed from Australia, or negotiations about an assertion of statelessness, or a denial of nationality by a putative receiving state.

1. The applicant's reasoning at AS [14]-[15] assumes that, following the Tribunal's decision, no time would be permitted for:

(a) the applicant to make any further visa applications, including requests for the Minister to lift a bar; or

(b) the Department, independently of any request by the applicant, to consider whether the forcible return of the applicant to Pakistan would breach one of Australia's international treaty obligations, in particular a non-refoulement obligation.

1. However, first, the applicant's assumptions are inconsistent with the reasoning in WKMZ. Second, the Tribunal expressly made findings about options for the applicant to obtain other visas to remain in Australia. Specifically, see:

(a) at [55] - The Tribunal found that "the applicant can make applications for certain visas in Australia without the Ministerial intervention [although] he would have very limited opportunities to do so".

(b) at [58] - The Tribunal recorded its discussion with the applicant's representative about "the possibility of making another application for a protection visa onshore". The representative accepted that the applicant might, by the Minister lifting a bar, be "eligible to make another application onshore" and added that the applicant then "has a strong chance of being granted the visa".

(c) at [61] - The Tribunal considered that, in circumstances where the applicant may face harm if returned to Pakistan due to being a Shia Hazara, "an assessment of these circumstances would be made before the applicant would be required to leave Australia and therefore ... there is little chance of the applicant being returned to Pakistan if it is determined that he would face harm in that country".

(d) at [64] - The Tribunal recorded the representative's submission "that there [is] likely to be a long delay before the applicant's status is resolved, where the bar is lifted to enable him to apply for another visa onshore or for [a] Ministerial intervention request to be determined". This submission by the representative to the Tribunal appears to be inconsistent with this aspect of the applicant's complaint to the Court.

1. The applicant did not challenge these findings of the Tribunal in the proceeding before this Court. These unchallenged findings are inconsistent with the applicant's third complaint to the Court.
2. Further, according to the Amended Application accepted for filing on 16 June 2025, the applicant was not in immigration detention. The duty to remove an applicant under s 198(5) of the Act only arises if the applicant "is a detainee".
3. For the above reasons, the Amended Application does not identify a jurisdictional error in the Tribunal's decision.
4. During the hearing on 16 July 2025, there was discussion about the Tribunal's reference at [51] to "Australia's usual policy of not returning people to a country where they may face harm". Based on documents in the Court Book, there was no direct evidence of this "usual policy" before the Tribunal. However:

(a) There is evidence of this policy in WKMZ, and on which the WKMZ Tribunal relied in 2019. The Tribunal considered WKMZ, and therefore considered the policy discussed in WKMZ.

(b) The applicant's representative did not provide evidence or make a submission to the Tribunal contrary to this policy.

(c) The applicant did not contend before this Court that the statement of "usual policy" by the Tribunal at [51] was wrong, or that the Tribunal did not have a basis for referring to or relying on the "usual policy" at [51].

1. As stated in paragraphs 32 to 34 above, during the hearing on 16 July 2025 I requested copies of two policy documents expressly or implicitly referred to in the Tribunal's decision and permitted the parties to file and serve post-hearing submissions.
2. It is stated in paragraph 4 of the applicant's post-hearing submission that "to the extent there is an implicit assumption in [64] of the Tribunal's decision ... that an ITOA would be conducted in respect of the applicant prior to being detained and removed in accordance with ss 189, 197C and 198 of the Migration Act, this is not supported by the wording of the ITOA policy". The Tribunal found at [61], rather than implicitly assumed at [64], that an ITOA would be conducted in respect of the applicant. If the applicant is attempting to challenge this finding by the Tribunal at [61] (set out in paragraph 48(c) above) for the first time in the proceeding before this Court in a post-hearing submission:

(a) This is not appropriate, since the applicant has not sought leave to raise a new ground.

(b) In any event, based on my brief consideration of the submission and the detailed response by the first respondent in its post-hearing written submission (with which I agree), it was open to the Tribunal at [61] to make the finding it made. Since the applicant has not sought leave to raise the new ground, it is not necessary to explain this point further.

1. I will hear submissions on costs at the delivery of judgment.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.