DFTD v Minister for Home Affairs

THE APPEAL 12 The sole ground of appeal is that the primary judge should have accepted ground 2 of the application for judicial review, as ultimately formulated in the Further Amended Originating Application. Grounds 1 and 2, being all of the grounds of judicial review, were: 1. The [Tribunal] failed to consider the legal consequences of its decision, specifically the legal consequences arising under ss 197C and 198 of the Migration Act 1958 (Cth), having regard to the finding that the applicant is a person in respect of whom Australia owes obligations to other nations not to return the applicant to Indonesia. 2. The Tribunal failed to consider relevant government policy, being that the Commonwealth will not remove a person to a country if that removal would be contrary to Australia's non-refoul[e]ment obligations. 13 The primary judge rejected both grounds. Although the appellant only appeals in respect of ground 2, his Honour's reasons in relation to ground 1 assumed some relevance in the parties' submissions. His Honour stated: [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). … [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. 14 As to ground 2, the primary judge summarised the issues in the following way at J[55]: It was common ground between the parties that the policy of the Australian government is and was that unlawful non-citizens are not to be removed from Australia to places in respect of which they hold a well-founded fear of persecution. The applicant contends that the Tribunal was obliged to take account of that policy (hereafter, the "Non-Refoulement Policy") in forming its view as to whether or not to revoke the Cancellation Decision. He says that it did not do so and that that failure amounts to jurisdictional error. Two questions arise for the court's consideration: first, was the Tribunal obliged to take account of the Non-Refoulement Policy; and, second, did it do so? 15 As to the two questions, identified in the last sentence of the passage just set out, his Honour concluded that: (1) first, the Tribunal was not obliged to take account of the "Non-Refoulement Policy": J[60]; and (2) secondly, in any event, the Tribunal did not fail to take account of the "Non-Refoulement Policy", it expressly referring to Direction No 79 at T[87]: J[63]. 16 As to the first question, the appellant, referring to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, contended before the primary judge that the "Non-Refoulement Policy" was "directly relevant to a critical issue before the Tribunal" and that the Tribunal was, accordingly, obliged to consider it: J[56]. The primary judge stated: [59] There are obvious points of difference separating Gray from the present case. In Gray, the policy of which the Tribunal was bound to take account was one specifically aimed at the exercise of the power that was in issue in that case. It was one whose development and promulgation the legislature was presumed to have contemplated; and to which it was presumed to have intended that decision makers would give consideration in the course of exercising the power. Here, by contrast, the Non-Refoulement Policy exists as an incident of commitments that Australia has made to other nations. It exists independently of the power conferred by s 501CA(4) of the Act. [60] There is no general, wide-ranging obligation imposed upon the Tribunal (either expressly or as a matter of implication arising from the subject matter, scope or purpose of the legislation) to take account of executive policy when considering an exercise of power under s 501CA(4) of the Act. In the present case, I am unable to identify - and the applicant did not nominate - anything about the subject matter, scope or purpose of the relevant provisions that, by implication, conditions the exercise or non-exercise of power under s 501CA(4) of the Act upon consideration of the Non-Refoulement Policy. The Tribunal was not obliged to take account of that policy prior to making its decision. 17 Direction No 79 identifies what a non-refoulement obligation is and notes that Australia has such obligations: paragraph 14.1(1). Paragraph 14.1(2) of Direction No 79 states, in the second sentence, that the policy of the Commonwealth government is not to remove a person in contravention of its international non-refoulement obligations. However, the relevant direction with which the Tribunal must "comply" (s 499(2A)) is that, in making its decision on a matter to which Direction No 79 applies, "[t]he existence of a non-refoulement obligation does not preclude non­revocation of the mandatory cancellation of a non-citizen's visa". The "direction" with which the Tribunal has to "comply" is stated in the first sentence of paragraph 14.1(2). The second sentence, which acknowledges the existence of the policy, explains why the "direction" in the first sentence has been given. The reason is that there are other steps which may be taken by other decision-makers in order to give effect to Australia's non-refoulement obligation, after consideration of whether to revoke a cancellation. These other steps would include consideration of the grant of a protection visa or the exercise of power by the Minister under s 195A. 18 Paragraph 14.1(2) of Direction No 79 does not require a decision-maker to take account of Australia's non-refoulement obligations. Where an applicant raises the existence of a non-refoulement obligation as relevant to whether a visa cancellation should be revoked, then Direction No 79 instructs that "[t]he existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa". That is not to say that the claimed or established existence of non-refoulement obligations, or the possibility of harm occurring on refoulement whether or not a non-refoulement obligation is owed, may not be a consideration which a decision-maker is required to take into account in a particular case, including because it is raised by the person whose visa has been cancelled as part of the representations made under s 501CA - see: Ali v Minister for Home Affairs (2020) 380 ALR 393; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; and GBV18 v Minister for Home Affairs [2020] FCAFC 17. The appellant's case on appeal was, in substance, confined to an argument that the Tribunal should not have entertained the possibility that the appellant would be refouled to West Papua because of the second sentence of paragraph 14.1(2). The appellant did not argue that the Tribunal erred in considering whether Australia owed non-refoulement obligations. Any discrepancy between paragraph 14.1(4) of Direction No 79 and the Full Court authorities just mentioned was not the subject of argument on this appeal for the reason that the Tribunal did consider and take into account the appellant's representations, a central aspect of which was that he was owed non-refoulement obligations. 19 The appellant did not submit that Australia's non-refoulement policy arose as a mandatory consideration outside of Direction No 79. It follows that the appellant has not established that the primary judge erred in concluding that the Tribunal did not have an obligation to take into account Australia's non-refoulement obligation in reaching a decision under s 501CA. 20 Before turning to the second of the questions identified by the primary judge, something should be said about paragraph 14.1(6). As noted earlier, the last sentence of that paragraph states: 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 remains cancelled, they would face the prospect of indefinite immigration detention. 21 The Minister accepted that he could not hold a person in immigration detention except for a lawful purpose. The Minister acknowledged that, since the introduction of s 197C into the Act, indefinite detention, in the sense of holding a person in detention for no lawful purpose and not refouling the person in breach of Australia's non-refoulement policy, was not a possible legal outcome - see: AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424. To the extent the last sentence of paragraph 14.1(6) is to be understood otherwise it cannot be correct. 22 As to the second matter, the primary judge stated: [62] An inference that a decision maker has failed to consider an issue is one that should not too readily be drawn in circumstances where the reasons for a given decision are comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ). The court requires clear evidence before such an inference might be drawn and it is the applicant who bears the evidential onus: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ). [63] In this case, it cannot safely be inferred that the Tribunal failed to take account of the Non-Refoulement Policy. The Tribunal was plainly alive to its existence: it is expressly referred to in Direction 79, which the Tribunal's Decision relevantly extracted (at [87]; above, [23]). The fact that the Tribunal's Decision does not identify the significance (if any) that the Non-Refoulement Policy assumed in this case is not a sufficient basis upon which to infer that it went unconsidered. The Tribunal was not obliged to say anything in particular about it. That it didn't do so is neither here nor there. Even assuming, contrary to my conclusion above, that the Tribunal was obliged to take account of the Non-Refoulement Policy, I do not infer that it failed to do so. 23 The Tribunal did take account of Australia's non-refoulement policy. Not only did it set out the terms of paragraph 14.1 of Direction No 79, but it stated at T[87] that the direction "refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm". It stated at T[97] that it had "a duty to consider non-refoulement regardless of [the appellant's] ability to apply for a protection visa". Whilst the reasons could have been better expressed, the preferable understanding of the Tribunal's decision is that the Tribunal took into account that, if the mandatory cancellation decision were not revoked, it was likely that the appellant would remain in detention whilst options were considered in light of Australia's non-refoulement policy. The Tribunal also recognised that a possible result of its decision was that the appellant might be refouled to West Papua in breach of Australia's non-refoulement obligations. The Tribunal was not obliged by paragraph 14.1(2) to proceed on the basis that this was not a possible outcome. It clearly was, by reason of s 197C.

CONCLUSION 24 For these reasons the appeal should be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Derrington and Thawley.