Ground one: failure to take account of legal consequences
32 By his written submissions, the applicant contended (references omitted and emphasis original):
In conducting the balancing exercise required of it, the Tribunal was obliged to consider the "legal consequences" of its decision.
In this case, the legal consequence of the Tribunal's decision is that an officer of the Commonwealth acting [pursuant to] s 198 of the Act must remove the applicant from Australia, as soon as is reasonably practicable, so as to comply with the Act (and in light of s 197C). In this case, the only apparent place to where the applicant could be returned is Indonesia, despite Australia having made binding commitments to other nations not to return him there as he would face a well-founded fear of persecution there.
A conundrum indeed.
The Tribunal needed to grapple with the legal consequence of its decision to affirm the decision under review, which was that the applicant now has to be removed from Australia (subject of course to the resolution of judicial review proceedings, which have not been regarded as a relevant interposition upon the need for administrative decision makers to consider legal consequences of their decisions), and that would seem to involve a breach of Australia's commitments to other nations because Indonesia seems to be the only place to where the applicant could be returned. Yet, Australian government policy is that it will not return the applicant to Indonesia, despite the command of ss 197C and 198 of the Act.
Perhaps the Australian government will look for a country other than Indonesia to where it might remove him from Australia, and the applicant would sit in (potentially prolonged) administrative detention meanwhile. Perhaps no such country will be found and the applicant will remain in administrative detention indefinitely. The obvious potential for these scenarios had to be considered by the Tribunal.
Had the Tribunal considered these matters, it could realistically have affected the outcome. Non-refoul[e]ment obligations was plainly a topic that received great weight in the Tribunal's consideration, and the possibility of detention as a result of the above may have led it to place even more weight on this factor, which might have outweighed the adverse considerations.
33 The Minister accepts that the Tribunal "…must correctly understand the legal consequences of its decision". I have understood that as a concession that the Tribunal was obliged to take account of the legal consequences - or, at the very least, some of the legal consequences - that attached to the discretion that it declined to exercise (namely, to revoke the Cancellation Decision).
34 This court has repeatedly held that administrative decision makers who exercise similar discretionary powers - specifically, powers to refuse or cancel visas on character grounds under s 501 of the Act - must first consider the legal consequences that arise from their doing so: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ; hereafter, "NBMZ"); Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 (North, Kenny and Perry JJ; hereafter, "Cotterill"); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 (Kenny, Flick and Griffiths; hereafter, "Taulahi"). I was not alerted to any full court authority that expressly extends that principle directly into the realm of revocation under s 501CA(4), although there are some that certainly appear to accept that it applies in that context, at least to some extent: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 (Robertson, Moshinksy and Bromwich JJ; hereafter, "BHA17"); BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (Bromberg, Davies and Mortimer JJ); DLJ18 v Minister for Home Affairs [2019] FCAFC 236 (Flick, Bromberg and Snaden JJ). Taulahi (particularly at 168 [84]; Kenny, Flick and Griffiths JJ) would seem to suggest that the principle applies as much to an exercise of power under s 501CA(4) of the Act as to the exercise of any other power.
35 The obligation imposed upon decision makers who exercise discretionary powers under the Act to consider the legal consequences of their doing so has been held to arise implicitly from the subject matter, scope and purpose of the applicable legislative scheme: see, for example, NBMZ, 4 [6] (Allsop CJ and Katzmann J). In other words, it has been held that there is something about the subject matter, scope and/or purpose of the Act - or the parts of it that confer or pertain to particular powers - that, by implication, requires that the exercise (or non-exercise) of those powers be conditioned upon consideration of the legal consequences that arise therefrom.
36 For obvious reasons, I have not embarked upon a close study of the authorities that recognise the implied obligation to which the parties agree (or appear to agree) that the Tribunal in this case was subject (namely, to take account of the legal consequences of its decision - or, perhaps, at least some of them). I proceed (as I must) upon the assumption that the proposition is sound: specifically, that the Tribunal was obliged to condition the exercise (or, in this case, the non-exercise) of its statutory power upon prior consideration of the statutory (or legal) consequences (or at least some of the statutory or legal consequences) to which that exercise would give rise.
37 That invites consideration of three related questions: first, was the prospect of prolonged immigration detention one that can properly be described as a legal consequence of the Tribunal's Decision; second, if it was, was it a consequence of the kind of which the Tribunal was obliged to take account; and third, if it were, did the Tribunal take account of that prospect in the course of making its decision?
38 I do not accept that the prospect that the applicant might be subjected to prolonged immigration detention can fairly be described as a legal consequence of the Tribunal's Decision. Plainly, the applicant's efforts to persuade the Tribunal (and, initially, the Minister's delegate) to revoke the Cancellation Decision were designed to secure for him, by means of the Visa, an ongoing entitlement to remain in Australia as a lawful non-citizen. Nonetheless, it was not by reason of the Tribunal's Decision that the applicant lost that entitlement. That was a consequence of the Cancellation Decision, which, of course, involved the mandatory exercise of statutory power under s 501(3A) of the Act. The legal consequences of the Tribunal's Decision not to revoke that cancellation was that it remained undisturbed, as did the applicant's status as an unlawful non-citizen (within the statutory meaning attributed to that phrase). I confess some difficulty in understanding how a state of affairs (here, the applicant's becoming an unlawful non-citizen who was liable to be detained, possibly for a "prolonged" period) the existence of which pre-dates the making of a particular decision (here, the Tribunal's Decision) might, nonetheless, amount to a consequence of that later decision.
39 But even assuming - as some authorities, including NBMZ, Cotterill and Taulahi, have found in the context of other statutory powers - that the legal consequences of the applicant remaining an unlawful non-citizen should properly be understood as legal consequences of the Tribunal's Decision not to revoke the Cancellation Decision, those consequences do not include the prospect that the applicant might be subjected to prolonged immigration detention.
40 The primary legal consequence attaching to the applicant's status as an unlawful non-citizen is that he must be removed from Australia as soon as might reasonably be practicable: the Act, s 198. The fact that the applicant is, as the Tribunal found (and as the Minister accepts), a person in respect of whom Australia owes obligations of non-refoulement has no bearing upon that requirement: the Act, s 197C (above, [13]).
41 The prospect, if there is one, that the applicant might languish for a prolonged period in immigration detention arises (at least in large part) because it is the policy of the Australian government that unlawful non-citizens in respect of whom there exist obligations of non-refoulement will not be returned to the countries within which they properly fear that they will be persecuted. In order that the applicant might be removed from Australia, there must first be somewhere to which he might be removed. His homeland, Indonesia, is not an option in that respect because taking him there would offend government policy. Thus, removal "as soon as reasonably practicable" might take longer in the case of the applicant than would otherwise be the case; but that is not so because of anything in the Act.
42 To observe that removal might take longer in the applicant's case is to invite speculation as to what might be in store for the applicant following the Tribunal's Decision. There are a number of avenues by which the applicant's time in immigration detention might be brought to an end (and that do not involve him being sent to Indonesia). Perhaps the most obvious is that he might apply for and obtain a protection visa: a possibility that the Tribunal itself urged the applicant to explore (Tribunal's Decision, [97]; above, [24]). The mere possibility of prolonged immigration detention is not a circumstance of which the subject matter, scope and/or purpose of the legislative scheme require, by implication, that a decision maker take account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act.
43 That last observation, it must be conceded, is difficult to reconcile with the conclusion of the full court in Cotterill. That case involved the discretionary cancellation of a visa on character grounds under s 501(2) of the Act. The appellant, Mr Cotterill, was in poor health and it was unlikely that he would be able to travel at the point that his visa was cancelled. On appeal (although not before the primary judge), he contended that the cancellation of his visa and his likely inability to leave Australia meant that he faced the prospect of indefinite detention. That, he said, was a legal consequence of the Minister's decision to cancel his visa, which the Minister was obliged to (but did not) consider in the exercise of his discretion. Kenny and Perry JJ, accepting that submission, concluded (at 52-53 [133]) that the Minister was obliged:
…to take into account that indefinite detention is in prospect as a legal consequence of his proposed decision… [because the material before the Minister] indicated that there was a real possibility that the appellant's removal would not be reasonably practicable on account of his ill-health and that, if this were the case, the appellant would face indefinite detention…
44 Their Honours recognised (also at 52-53 [133]) a factual distinction separating Cotterill from NBMZ: whereas indefinite detention was "virtually certain" in NBMZ, it was merely a "real possibility" or "in prospect" in Cotterill. Nonetheless, their Honours accepted that the Minister's exercise of the power in question was subject to the obligation identified. North J came to an equivalent conclusion (at 48 [107]).
45 Those observations sat somewhat in contrast with observations made (albeit in obiter) a year earlier in Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 (Flick, Griffiths and Perry JJ; hereafter, "Ayoub"). Ayoub was also a visa cancellation case. The appellant, as in NBMZ and Cotterill, contended that the discretionary cancellation of his visa visited upon him a risk of indefinite detention because of legitimate fears that he held about being returned to his native Lebanon. He submitted that the Minister was obliged to, but did not, consider that prospect when making his decision. The court concluded (at 519 [17]) that the Minister, in fact, did consider that possibility. It went on, in any event, to observe in obiter (at 519 [19]):
NBMZ…is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to "indefinite detention" at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of "indefinite detention" may have to be confronted.
46 Similar reasoning was adopted in COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148 (North, Collier and Flick JJ). That case involved an appeal from a judgment of the Federal Circuit Court of Australia, by which that court dismissed the appellant's application for judicial review of a tribunal's decision to cancel his visa. That visa, importantly, was not a protection visa. The appellant submitted that the tribunal's decision was the product of jurisdictional error in that it had declined to consider his claim that he could not safely return to his native Afghanistan. The tribunal was, instead, satisfied that any such claims could be addressed in the context of a subsequent protection visa application (in the event that the appellant was minded to make one). This court, referring to Ayoub, dismissed the appellant's contention (at 157 [38]):
The same reasoning is applicable in the circumstances of the present case. That reasoning is reflected in the decision of the Tribunal. The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulement obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.
47 In Minister for Immigration and Broder Protection v Le (2016) 244 FCR 56 ("Le"; Allsop CJ, Griffiths and Wigney JJ), the court again had occasion to consider whether the prospect of indefinite detention was a mandatory consideration that conditioned the exercise of the Minister's discretion to cancel a visa under s 501(2) of the Act. The appellant had successfully contended before the primary judge that, because he was a person in respect of whom Australia owed obligations of non-refoulement, the cancellation of his visa would inflict upon him the prospect of indefinite immigration detention, which was a consequence arising from that decision of which the Minister had wrongly failed to take account. The Minister submitted that it was open to the appellant to make an application for a protection visa, and that any concerns about non-refoulement obligations or the prospect of indefinite detention could be resolved at that juncture.
48 In overturning the primary decision, the court embarked upon a thorough examination of the relevant full court authorities, including NBMZ, Ayoub, COT15 and Cotterill. As to the latter, it was observed (at 69 [58] - emphasis original) that the court in that case was not understood:
…to suggest that, in exercising the power under s 501(2), the Minister must in every such case take into account the prospect of indefinite detention as an aspect of the legal consequences of such a decision. In our view, it is significant that NBMZ involved a refusal to grant a protection visa on character grounds. It may be inferred that the appellant there was prevented by s 48A from making a fresh visa application in Australia and there was a finding by Allsop CJ and Katzmann J that the possibility of the appellant obtaining a visa under s 195A was simply a matter of speculation. The facts in Cotterill do not suggest that there was any factual basis for the appellant in that case to make an application for a protection visa in Australia or elsewhere. The prospect of his indefinite detention in Australia related to his ill-health and not to Australia's non-refoulement obligations.
49 Noting that it would be "…unwise to be overly prescriptive in summarising the relevant legal principles", their Honours offered (at 70 [61]):
…the following non-exhaustive summary of some of the relevant principles:
(a) in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;
(b) those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;
(c) the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or s 501(2), there is at least a real possibility that the person's removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act;
(d) the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably - for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia's non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person's health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;
(e) in determining whether or not to exercise the powers in s 501(1) or s 501(2) of the Migration Act, Australia's non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;
(f) this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to "lift the bar" (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee's status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia's non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or s 501(2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and
(g) the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or s 501(2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister's obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia's non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person's particular circumstances.
50 In this case, prolonged immigration detention - leaving aside the uncertainty inherent in that phrase - is not a prospect that arises as a statutory or legal consequence of the Tribunal's Decision. Even if it were, it is not, on the strength of Le, a consequence to which the subject matter, scope and/or purpose of the Act required, by implication, that the Tribunal give consideration before making its decision under s 501CA(4) of the Act. The prospect of prolonged detention, if it exists at all, exists contingently upon circumstances unrelated to the Tribunal's Decision.
51 Chief amongst those circumstances is that the applicant may apply - or, at the time of the decision, could apply - for a protection visa. In the context of such an application (assuming one were made), regard would be had to the circumstances that the applicant nominates as the source of the non-refoulement obligations by which he is covered: see Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J) (and, in particular, his Honour's consideration - at [18]-[19] - of Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J)). That being so, there is no warrant for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned, in this case, upon consideration of those obligations. Given that it is those obligations (and their interplay with government policy) that was said to create the prospect of prolonged immigration detention in this case, I cannot see (and was not alerted to) any reason for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned upon consideration of that prospect (whatever it might be). This is not the first time that this court has reasoned in that manner: see BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 176 [85] (Bromberg J).
52 I should return to tackle the indefinite nature of "prolonged detention". Counsel for the applicant described the concept as detention "…without a known end date" and "…until a solution is found". Respectfully (and appreciating, as I do, the predicament in which counsel found himself, having accepted that "indefinite" detention was not in prospect), "detention without a known end date" is another way of saying "indefinite detention". Detention "until a solution is found" is only slightly more helpful. The reference to a "solution", in the present context, is a reference to the realisation of a state of affairs by which the applicant, having failed to have the Cancellation Decision revoked, might be removed from immigration detention. In most cases, that occurs by means of removal to the former visa holder's country of origin. Sometimes, it occurs after the exhaustion of judicial review processes (including appeals), many months - and sometimes much longer - after the non-revocation decision is made. In this case, the applicant's removal from immigration detention could result from the applicant's removal to a country other than Indonesia or from the granting to him of a protection visa. If circumstances permit (or, perhaps more accurately, change), it might result from his return to Indonesia (unlikely though that presently seems). It could, of course, result from a beneficial re-exercise of the power under s 501CA(4) of the Act, were the Tribunal's Decision to be set aside.
53 Howsoever a "solution" manifests in any given case, there is always a period following the non-exercise of the power conferred by s 501CA(4) of the Act during which the non-citizen will remain subject to immigration detention. Where (as occurs frequently) review or appeal rights are engaged, that period can be more than trivial. There is nothing about the subject matter, scope or purpose of the relevant legislative provisions that, by implication, conditions the non-exercise of the power conferred by s 501CA(4) of the Act upon prior consideration of the likelihood that a former visa holder will be detained for a lengthy period whilst those processes play out. It is not apparent to me why the subject matter, scope or purpose of the provisions should be thought to condition, by implication, the non-exercise of the power upon prior consideration of that prospect (lengthy detention) inasmuch as it might arise in any other way (including, for example, as a consequence of executive policy and its interplay, in a given case, with accepted non-refoulement obligations). The applicant did not advance any submissions in that regard.
54 The prospect of the applicant's being subjected to prolonged immigration detention was not a consideration of which the subject matter, scope or purpose of the Act (or the relevant parts of it) required that the Tribunal take account before declining to exercise its power under s 501CA(4) of the Act. The Tribunal's failure to take that prospect into account en route to the making of its decision does not qualify as jurisdictional error. The applicant's first ground of review is not made out.